§13655. Determination of Guarantor's Proportionate Share of Liability.

The Labor Commissioner may determine the proportionate share of liability of a wage guarantor under Labor Code Section 2673.1 by using any one of the following methods, at the discretion of the Labor Commissioner. Records maintained by the contractor and guarantor(s) may be used to establish proportionate share, but in the event that any necessary records are not produced, incomplete, or inaccurate, the Labor Commissioner may rely on any other available evidence, including the testimony of claimants, with respect to these issues:

(a) Contractor's Gross Sales -- The amount earned by the contractor as a result of work performed by the contractor's employees on behalf of the wage guarantor during a pay period as a percentage of the total amount earned by the contractor as a result of work performed by its employees during that pay period.

(b) Employees' Hours Worked -- The amount of time that the contractor's employees spent performing work on behalf of the wage guarantor during a pay period as a percentage of the total hours worked by the contractor's employees during that pay period.

(c) Garments Produced -- The number of garments or articles of wearing apparel finished, assembled, produced or otherwise prepared by the contractor's employees on behalf of the wage guarantor during a pay period as a percentage of the total number of garments or articles of wearing apparel finished, assembled, produced or otherwise prepared by the contractor's employees during that pay period.

(d) Presumption in the Absence of Records -- In the absence of records, the Labor Commissioner will make just and reasonable inferences about a guarantor's proportionate share based on the competent testimony of the claimant(s). If such testimony is insufficient to allow the Labor Commissioner to determine proportionality based on subsections (a), (b), or (c) above, the full amount of the claim for unpaid minimum wages and overtime will be apportioned equally amongst the known guarantors.

NOTE: Authority cited: Section 2672, Labor Code. Reference: Section 2673.1(b), Labor Code.

HISTORY

1. New section filed 9-9-2002; operative 10-9-2002 (Register 2002, No. 37).