BILL NUMBER: AB 2373 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Norby
FEBRUARY 24, 2012
An act to add Section 22.5 to the Business and Professions Code,
to add Section 22.5 to the Civil Code, to add Section 32.7 to the
Code of Civil Procedure, to amend Section 3405 of the Commercial
Code, to add Section 22 to the Corporations Code, to add Section 91
to the Education Code, to add Section 23 to the Financial Code, to
add Section 34 to the Food and Agricultural Code, to add Section 27
to the Government Code, to add Section 26 to the Harbors and
Navigation Code, to add Section 29 to the Health and Safety Code, to
add Section 49 to the Insurance Code, to add Section 30 to, and to
repeal Section 3353 of, the Labor Code, to amend Section 395.10 of
the Military and Veterans Code, to add Section 7.2 to the Penal Code,
to add Section 1102.5 to the Public Contract Code, to amend Section
6217.1 of the Public Resources Code, to add Section 20.2 to the
Public Utilities Code, to add Section 23.5 to the Revenue and
Taxation Code, to add Section 17.5 to the Unemployment Insurance
Code, to add Section 364 to the Vehicle Code, to add Section 27 to
the Water Code, and to add Section 28 to the Welfare and Institutions
Code, relating to independent contractors.
LEGISLATIVE COUNSEL'S DIGEST
AB 2373, as introduced, Norby. Independent contractor: definition.
Existing law defines "independent contractor" for purposes of the
Labor Code to mean a person who renders service for a specified
recompense for a specified result under the control of his or her
principal as to the result of his or her work only and not as to the
means by which this result is accomplished.
This bill would amend that definition to state that whether a
person is an independent contractor is determined by considering
various factors, as specified. The bill would amend various other
statutory codes to incorporate this definition of independent
contractor.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22.5 is added to the Business and Professions
Code, to read:
22.5. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 2. Section 22.5 is added to the Civil Code, to read:
22.5. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 3. Section 32.7 is added to the Code of Civil Procedure, to
read:
32.7. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 4. Section 3405 of the Commercial Code is amended to read:
3405. (a) In this section:
(1) "Employee" includes an independent contractor , as
defined in Section 30 of the Labor Code, and employee of an
independent contractor retained by the employer.
(2) "Fraudulent indorsement" means (A) in the case of an
instrument payable to the employer, a forged indorsement purporting
to be that of the employer, or (B) in the case of an instrument with
respect to which the employer is the issuer, a forged indorsement
purporting to be that of the person identified as payee.
(3) "Responsibility" with respect to instruments means authority
(A) to sign or indorse instruments on behalf of the employer, (B) to
process instruments received by the employer for bookkeeping
purposes, for deposit to an account, or for other disposition, (C) to
prepare or process instruments for issue in the name of the
employer, (D) to supply information determining the names or
addresses of payees of instruments to be issued in the name of the
employer, (E) to control the disposition of instruments to be issued
in the name of the employer, or (F) to act otherwise with respect to
instruments in a responsible capacity. "Responsibility" does not
include authority that merely allows an employee to have access to
instruments or blank or incomplete instrument forms that are being
stored or transported or are part of incoming or outgoing mail, or
similar access.
(b) For the purpose of determining the rights and liabilities of a
person who, in good faith, pays an instrument or takes it for value
or for collection, if an employer entrusted an employee with
responsibility with respect to the instrument and the employee or a
person acting in concert with the employee makes a fraudulent
indorsement of the instrument, the indorsement is effective as the
indorsement of the person to whom the instrument is payable if it is
made in the name of that person. If the person paying the instrument
or taking it for value or for collection fails to exercise ordinary
care in paying or taking the instrument and that failure contributes
to loss resulting from the fraud, the person bearing the loss may
recover from the person failing to exercise ordinary care to the
extent the failure to exercise ordinary care contributed to the loss.
(c) Under subdivision (b), an indorsement is made in the name of
the person to whom an instrument is payable if (1) it is made in a
name substantially similar to the name of that person or (2) the
instrument, whether or not indorsed, is deposited in a depositary
bank to an account in a name substantially similar to the name of
that person.
SEC. 5. Section 22 is added to the Corporations Code, to read:
22. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 6. Section 91 is added to the Education Code, to read:
91. "Independent contractor" whenever used in this code has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 7. Section 23 is added to the Financial Code, to read:
23. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 8. Section 34 is added to the Food and Agricultural Code, to
read:
34. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 9. Section 27 is added to the Government Code, to read:
27. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 10. Section 26 is added to the Harbors and Navigation Code,
to read:
26. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 11. Section 29 is added to the Health and Safety Code, to
read:
29. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 12. Section 49 is added to the Insurance Code, to read:
49. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 13. Section 30 is added to the Labor Code, to read:
30. "Independent contractor" means a person who renders service
for a specified recompense for a specified result, under the control
of his or her principal as to the result of his or her work only and
not as to the means by which such result is accomplished. Factors to
be considered in determining whether a person is an independent
contractor include the following:
(a) The extent to which the principal controls and directs the
manner and means of rendering the service.
(b) The extent to which the principal provides training to the
person rendering the service.
(c) Whether the service rendered is integrated into the principal'
s business operations.
(d) The method by which the principal provides recompense.
(e) Whether a continuing relationship exists between the principal
and person rendering the service.
(f) Whether the principal established the hours of work of the
person rendering the service.
(g) The amount of time required for the person to rendered the
service.
(h) Whether the principal or person rendering the service provides
the instrumentalities and facilities necessary for rendering the
service.
(i) The extend to which the person rendering the service is
required to report to the principal.
(j) The extent to which the person rendering the service has
unreimbursed business expenses or investments in the business of the
principal.
(k) Whether the person rendering the service is engaged in a
separate occupation or business or makes his or her service available
to the general public.
(l) Whether this kind of service is usually rendered under the
direction of the principal without supervision.
(m) Whether the parties believe they are establishing an
employer-employee relationship.
(n) The length of time for rendering the service.
(o) The extent to which the service pertains to the regular
business of the principal.
(p) The skill required to render the service.
(q) Whether the principal or person rendering the service have a
right to terminate their relationship.
SEC. 14. Section 3353 of the Labor Code is repealed.
3353. "Independent contractor" means any person who renders
service for a specified recompense for a specified result, under the
control of his principal as to the result of his work only and not as
to the means by which such result is accomplished.
SEC. 15. Section 395.10 of the Military and Veterans Code is
amended to read:
395.10. (a) Notwithstanding any other provision of law, a
qualified employer shall allow a qualified employee to take up to 10
days of unpaid leave during a qualified leave period.
(b) For purposes of this section:
(1) "Period of military conflict" means either of the following:
(A) A period of war declared by the United States Congress.
(B) A period of deployment for which a member of a reserve
component is ordered to active duty pursuant to either of the
following:
(i) Sections 12301 and 12302 of Title 10 of the United States
Code.
(ii) Title 32 of the United States Code.
(2) "Qualified employee" means a person who satisfies all of the
following:
(A) Is the spouse of a qualified member.
(B) Performs service for hire for an employer for an average of 20
or more hours per week, but does not include an independent
contractor , as that term is defined in Section 30 of the Labor
Code .
(C) Provides the qualified employer with notice, within two
business days of receiving official notice that the qualified member
will be on leave from deployment, of his or her intention to take the
leave provided for in subdivision (a).
(D) Submits written documentation to the qualified employer
certifying that the qualified member will be on leave from deployment
during the time the leave provided for in subdivision (a) is
requested.
(3) "Qualified employer" includes any individual, corporation,
company, firm, state, city, county, city and county, municipal
corporation, district, public authority, or any other governmental
subdivision, that employs 25 or more employees.
(4) "Qualified member" means a person who is any of the following:
(A) A member of the Armed Forces of the United States who has been
deployed during a period of military conflict to an area designated
as a combat theater or combat zone by the President of the United
States.
(B) A member of the National Guard who has been deployed during a
period of military conflict.
(C) A member of the Reserves who has been deployed during a period
of military conflict.
(5) "Qualified leave period" means the period during which the
qualified member is on leave from deployment during a period of
military conflict.
(c) A qualified employer shall not retaliate against a qualified
employee for requesting or taking the leave provided for in this
section.
(d) The leave provided for in this section shall not affect or
prevent a qualified employer from allowing a qualified employee to
take a leave that the qualified employee is otherwise entitled to
take.
(e) This section shall not affect a qualified employee's rights
with respect to any other employee benefit provided for in other
laws.
SEC. 16. Section 7.2 is added to the Penal Code, to read:
7.2. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 17. Section 1102.5 is added to the Public Contract Code, to
read:
1102.5. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 18. Section 6217.1 of the Public Resources Code is amended to
read:
6217.1. (a) This section and the process described in this
section governs govern the expenditure
of any funds received by the State of California from the federal
government for the purposes of salmon and steelhead trout
conservation and restoration, the expenditure of funds authorized for
the Coastal Watershed Salmon Habitat Program pursuant to Article 7
(commencing with Section 79104.200) of Chapter 6 of Division 26 of
the Water Code, and the expenditure of funds appropriated to the
Department of Fish and Game for salmon and steelhead trout
conservation and restoration from the California Clean Water, Clean
Air, Safe Neighborhood Parks, and Coastal Protection Fund pursuant to
Article 5 (commencing with Section 5096.650) of Chapter 1.696 of
Division 5 of the Public Resources Code.
(b) For purposes of this section, "project" means an activity that
improves fish habitat in coastal waters utilized by salmon and
anadromous trout species.
(c) (1) The Department of Fish and Game shall grant funds from the
Salmon and Steelhead Trout Restoration Account in the Resources
Trust Fund, as follows:
(A) At least 87.5 percent of the funds shall be allocated as
project grants through the existing grant program operated by the
fisheries management program of the Department of Fish and Game.
(B) Not more than 12.5 percent of the funds may also be used for
project contract administration activities and biological support
staff.
(2) (A) A project shall require the consent of a willing
landowner, and emphasize the development of coordinated watershed
improvement activities.
(B) Projects that restore habitat for salmon and anadromous trout
species that are eligible for protection as listed or candidate
species under state or federal endangered species acts shall be given
top funding priority.
(C) Projects shall be cost-effective and treat causes and not
symptoms of fish habitat degradation. Projects may implement
instream, riparian, water quality, water quantity, and watershed
prescriptions and shall be designed to restore the structure and
function of fish habitat.
(3) Any grant funds allocated to a project that exceed the actual
cost of completing the project shall be returned to the Salmon and
Steelhead Trout Restoration Account.
(d) (1) A citizen's advisory committee shall be appointed by the
Director of Fish and Game to give advice on the grant program.
(2) The advisory committee shall consist of seven representatives
recommended by the California Advisory Committee on Salmon and
Steelhead Trout, one representative from the agriculture industry,
one representative from the timber industry, one representative of
public water agency interests, one academic or research scientist
with expertise in anadromous fisheries restoration, and three county
supervisors from coastal counties in which anadromous trout exist.
The county supervisor members shall be recommended by the California
State Association of Counties.
(3) The advisory committee shall provide oversight of, and
recommend priorities for, grant funding under this section. In making
funding decisions, the Department of Fish and Game shall consider
the project selection priorities established by the advisory
committee.
(4) Members of any advisory committee established for these
purposes shall be reimbursed for travel and incidental expenses
related to the performance of their duties under this section.
Reimbursement for the advisory committee created pursuant to this
section shall be made from the funds designated in subparagraph (B)
of paragraph (1) of subdivision (c). Reimbursement for other
Department of Fish and Game salmon and steelhead trout advisory
committees shall be funded by appropriate sources.
(5) If a member of the advisory committee, or a member of his or
her immediate family, is employed by a grant applicant, the employer
of a grant applicant, or a consultant or independent contractor
employed by a grant applicant, the advisory committee member shall
make that disclosure to the other members of the committee, and shall
not participate in reviewing or making recommendations on the grant
application of that applicant. For purposes of this paragraph,
"independent contractor" has the same meaning as defined in Section
30 of the Labor Code.
(e) Except as provided in subdivision (f), the money in the Salmon
and Steelhead Trout Restoration Account shall be allocated as
follows:
(1) Not less than 65 percent of the money shall be used for salmon
habitat protection and restoration projects. Of that amount, at
least 75 percent shall be used for watershed (upslope) and riparian
area protection and restoration activities. These activities may
include, but are not limited to, grants to acquire and install fish
screens to protect juvenile and adult salmon and steelhead trout from
entrapment in water diversions, and grants to remove substandard
culverts, stream crossings, and bridges that constitute barriers to
spawning of salmon and steelhead trout and passage of fish. These
funds may also be used for the acquisition, from willing sellers, of
conservation easements for riparian buffer strips along coastal
rivers and streams to protect salmon and steelhead trout habitat or
for projects that protect and improve water quality and quantity.
(2) Up to 35 percent of the money shall be allocated for any of
the uses listed in this paragraph.
(A) Watershed evaluation, assessment, and planning necessary to
develop a site-specific and clearly prioritized plan to implement
watershed improvements.
(B) Multiyear grants for watershed planning and project monitoring
and evaluations.
(C) Watershed organization support and assistance.
(D) Project maintenance and monitoring after the project
implementations are complete.
(E) Public school watershed and fishery conservation education
projects.
(F) Private sector technical training and education project
grants, including teaching private landowners about practical means
of improving land and water management practices that, if
implemented, will contribute to the protection and restoration of
salmon stream habitat; scholarship funding for workshops and
conferences that teach restoration techniques; operation of nonprofit
restoration technical schools; and production of restoration
training and education workshops and conferences.
(G) Fish and wildlife habitat improvements, as defined by Section
4793, and authorized under the California Forestry Incentive Program
(CFIP).
(H) The salmon restoration project of the California Conservation
Corps.
(I) The state's share of the federal Watershed Stewards Program.
(J) Monitoring projects that utilize protocols approved by the
Department of Fish and Game and the National Marine Fisheries Service
(NMFS) to provide baseline or trend data, or both, for anadromous
fish populations or the physical and biological factors known to be
limiting recovery.
(K) Artificial propagation programs designed to restore depleted
stocks of salmonids that comply with the directives of the joint
Department of Fish and Game and NMFS Hatchery Operations Review
Committee.
(f) The advisory committee, in any fiscal year, may make a
recommendation to the Department of Fish and Game to allocate money
from the Salmon and Steelhead Trout Restoration Account for the
purposes stated in subdivision (e), but in different percentage
requirements than the 65/35 split stated in paragraphs (1) and (2) of
that subdivision. Following that recommendation, the Director of
Fish and Game may suspend the percentage requirements stated in
paragraphs (1) and (2) of subdivision (e) for that fiscal year only.
SEC. 19. Section 20.2 is added to the Public Utilities Code, to
read:
20.2. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code
SEC. 20. Section 23.5 is added to the Revenue and Taxation Code,
to read:
23.5. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 21. Section 17.5 is added to the Unemployment Insurance Code,
to read:
17.5. "Independent contractor," as used in this code, has the
same meaning as defined in Section 30 of the Labor Code.
SEC. 22. Section 364 is added to the Vehicle Code, to read:
364. "Independent contractor" has the same meaning as defined in
Section 30 of the Labor Code
SEC. 23. Section 27 is added to the Water Code, to read:
27. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.
SEC. 24. Section 28 is added to the Welfare and Institutions Code,
to read:
28. "Independent contractor," as used in this code, has the same
meaning as defined in Section 30 of the Labor Code.