THE District Attorney’s Office of the County of Los Angeles, through its Bureau of Investigation, had late last year conducted worker’s compensation compliance checks in Carson, California.
Investigators interviewed employees of businesses who failed to secure workers’ compensation insurance for their employees in violation of Section 3700.5 of the California Labor Code.
The interviews were surreptitiously digitally recorded and downloaded to a CD, later booked at the District Attorney’s Sound Lab as evidence.
The owners of the erring businesses were issued a citation for violating Labor Code Section 3700.5, and ordered to appear at the Compton Courthouse for arraignment.
This Author represented one of the business owners at the Compton Court, whose identity is withheld to maintain confidentiality and to protect privacy rights, but has graciously consented to the publication of this article to warn other business owners.
Crime and disposition of failure to secure workers’ compensation insurance in California
Under Section 3700.5 of the California Labor Code, “the failure to secure the payment of (workers’) compensation by one who knew, or because of his or her knowledge or experience should be reasonably expected to have known, of the obligation to secure the payment of compensation, is a misdemeanor punishable by imprisonment in the county jail for up to one year, or by a fine of up to double the amount of premium, as determined by the court, that would otherwise have been due to secure payment of compensation during the time compensation was not secured, but not less than ten thousand dollars ($10,000.00), or by both that imprisonment and fine”.
At the arraignment on February 25, 2014, of this Author’s client in Department 8 of the Compton Court, the Hon. Tammy C. Ryu presiding, Deputy District Attorney Stefana Antonescu agreed to the following terms of the plea bargain: (1) payment of fine of $10,000, $6,000 of which is suspended, leaving $4,000 fine to be paid by the defendant; (2) twenty-four (24) months of summary probation; (3) early termination of probation upon proof of workers’ compensation insurance, payment of the $4,000 fine and Court fees; and (4) no opposition by the prosecution to dismissal (expungement) of the case under Section 1203.4 of the Penal Code.
This Author’s client agreed to plea no contest to the charge under the above-stated terms. She executed the Misdemeanor Advisement of Rights, Waiver, and Plea Form, and was accordingly sentenced by Judge Ryu.
She was given one year to pay the $220 court fees, and six months to pay the $4,000 fine to the California Department of Insurance, through the District Attorney’s Office. She paid the Court fees that same day.
The Court set a hearing on August 28, 2014 at 8:30 a.m. for early termination of probation. She would need to file a separate petition for dismissal under Section 1203.4 of the Penal Code.
Mitigating circumstances to reduce payment of fine
Discussions of this Author with Deputy District Attorney Stefana Antonescu revealed that the District Attorney’s Office would consider further reducing the $4,000 fine, based on mitigating circumstances put in writing for the Supervising Deputy District Attorney.
Mitigating circumstances would include: (1) short length of operation without workers’ compensation insurance; (2) losses in business operation; (3) few employees without workers’ compensation coverage; (4) personal circumstances of owner of the business: recent arrival in California, limited capitalization, etc.
The crime of failure to secure payment of workers’ compensation is quite easy for the prosecution to prove beyond a reasonable doubt to the jury. Employees who have been interviewed and recorded would be the best witnesses against the owner of the business.
This violation should be avoided because it is a misdemeanor that carries a large fine.
* * *
The Author, Roman P. Mosqueda, has practiced immigration law for more than 20 years, and is a long-standing member of AILA. Send e-mail to [email protected] or call (213) 252-9481 for a free initial and confidential consultation, or visit his website at www.mosquedalaw.com or www.EzineArticles.com to read his other articles.
