BILL NUMBER: AB 1711	AMENDED
	BILL TEXT

	AMENDED IN SENATE  SEPTEMBER 7, 2007
	AMENDED IN ASSEMBLY  APRIL 10, 2007

INTRODUCED BY    Committee on Labor and Employment 
 (   Swanson (Chair), DeSaulnier, Galgiani,
Laird, Leno, and Ruskin   )   Assembly
Member   Levine 

                        FEBRUARY 28, 2007

    An act to amend Section 6330 of the Labor Code, relating
to occupational injury or illness.   An act to amend
Sections 218.5, 512, 514, 515.5, and 1194 of, and to add Sections 7.5
and 226.9 to, the Labor Code, relating to employment. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1711, as amended,  Committee on Labor and Employment
  Levine  . Employment  safety 
 : wages and hours  . 
   Under existing law, the prevailing party, with certain exceptions,
is entitled to an award of attorney's fees in an action brought for
nonpayment of wages, fringe benefits, or health and welfare or
pension fund contributions, or in an action brought for underpayment
of the minimum wage or overtime compensation.  
   This bill would add expert witness fees to the prevailing party in
any such recovery.  
   Existing law requires an employer to provide an employee who works
more than 5 hours per day with a meal period of not less than 30
minutes, unless the employee's total daily work period is not more
than 6 hours, in which case it may be waived by mutual agreement. An
employee working more than 10 hours per day must be provided with a
second meal period of not less than 30 minutes, unless the total
daily work period does not exceed 12 hours, in which case the 2nd
meal period may be waived by mutual agreement only if the first meal
period was not waived.  
   This bill would require that the first of these meal periods must
be completed before the end of the 6th hour of work. The bill also
would permit an employer and employee to agree to on-duty meal
periods, as specified, and subject to certain specified conditions.
The bill would further provide that these provisions relating to meal
periods would not apply to any employee covered by a collective
bargaining agreement that expressly provides for employee meal
periods, among other specified working conditions. The bill would
also provide that where a collective bargaining agreement exists, any
authorized individual waivers of an employer must be exercised by
the employee's authorized representative for collective bargaining
purposes. Additionally, the bill would require all private and public
employers to pay their employees an additional hour of compensation
for each split shift day worked, as defined.  
   Existing law requires that an employee in the computer software
field be exempt from the requirement that an overtime rate of
compensation be paid if certain conditions are met, including a
requirement that the employee's hourly rate of pay is not less than
$41.00 or the annualized full-time salary equivalent of that rate,
provided that all the other requirements for exemption are met and
that in each workweek the employee receives not less than $41.00 per
hour worked. 
   This bill would decrease the threshold hourly rate of pay from
$41.00 to $36.00 for purposes of that exemption.  
   Existing law requires the Director of Industrial Relations to
prepare and submit to the Legislature an annual report, containing
specific information on the activities of the Division of
Occupational Safety and Health.  
   This bill would require that the report include a summary of the
activities of all advisory committees convened by the division or the
Occupational Safety and Health Standards Board. 
   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 7.5 is added to the  
Labor Code   , to read:  
   7.5.  Where a collective bargaining agreement exists, all
individual waivers authorized by this code and the Wage Orders of the
Industrial Welfare Commission shall be exercised by the individual's
authorized representative for purposes of collective bargaining.
This section is declaratory of existing law. 
   SEC. 2.    Section 218.5 of the   Labor Code
  is amended to read: 
   218.5.  In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions, the
court shall award reasonable attorney's fees and costs  ,
including expert witness fees,  to the prevailing party if any
party to the action requests attorney's fees and costs upon the
initiation of the action. This section shall not apply to an action
brought by the Labor Commissioner. This section shall not apply to a
surety issuing a bond pursuant to Chapter 9 (commencing with Section
7000) of Division 3 of the Business and Professions Code or to an
action to enforce a mechanics lien brought under Chapter 2
(commencing with Section 3109) of Title 15 of Part 4 of Division 3 of
the Civil Code.
   This section does not apply to any action for which attorney's
fees are recoverable under Section 1194.
   SEC. 3.    Section 226.9 is added to the  
Labor Code   , to read:  
   226.9.  (a) For purposes of this section, "split shift" means a
work schedule that is interrupted by a nonpaid, nonworking period or
periods established by an employer, other than bona fide rest or meal
periods provided pursuant to Section 512 of the Labor Code or
mandated by an applicable order of the Industrial Welfare Commission
   (b) If an employee works a split shift, the affected employee
shall be entitled to one additional hour of compensation at his or
her regular rate of pay for each split shift day worked,
notwithstanding his or her regular wage rate.
   (c) This section applies to all employees, including those
employees directly employed by any public entity, including, but not
limited to, any county, incorporated city, town, other municipal
corporation, or the State of California. 
   SEC. 4.    Section 512 of the   Labor Code
  is amended to read: 
   512.  (a) An employer may not employ an employee for a work period
of more than five hours per day without providing the employee with
a meal period of not less than 30 minutes, except that if the total
work period per day of the employee is no more than six hours, the
meal period may be waived by mutual consent of both the employer and
employee.  The meal period shall be completed before the end of
the sixth hour of work.  An employer may not employ an employee
for a work period of more than 10 hours per day without providing the
employee with a second meal period of not less than 30 minutes,
except that if the total hours worked is no more than 12 hours, the
second meal period may be waived by mutual consent of the employer
and the employee only if the first meal period was not waived.

   (b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a meal
period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.  
   (b) An on-duty meal period shall be permitted only when it is
mutually agreed to in writing by an employer and employee and the
nature of the work prevents an employee from being relieved of all
duty based on at least one of the following conditions:  
   (1) Where the employee works alone or is the only person in his or
her job classification who is on duty and there are no other
employees who can reasonably relieve him or her of all duties. 

   (2) Where state or federal law imposes a requirement that the
employee not be relieved of all duties.  
   (3) Where the employee is the only person on duty who is licensed
to perform work for which a license is required by applicable state
or federal law.  
   (4) Where the employee works in an isolated location and the
circumstances of the workplace make it unreasonable for him or her to
be relieved of all duties.  
   An on-duty meal period shall be counted as time worked. All
employees who are eligible for and agree to on-duty meal periods
shall be allowed to eat. Where an on-duty meal period agreement is
executed between an employer and an employee, the employee has the
right to revoke at any time and the employer is obligated to notify
the employee of that right upon execution of agreement. An employee
who is eligible for an on-duty meal may have a second on-duty meal
period provided that he or she remains eligible for an on-duty meal
period. Piece rate employees shall not be eligible for on-duty meal
periods unless they are paid their average piece rate wage during the
meal period. 
   (c) Subdivision (a) does not apply to an employee in the wholesale
baking industry who is subject to an Industrial Welfare Commission
wage order and who is covered by a valid collective bargaining
agreement that provides for a 35-hour workweek consisting of five
seven-hour days, payment of 1 and1/2 the regular rate of pay for time
worked in excess of seven hours per day, and a rest period of not
less than 10 minutes every two hours.
   (d) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Orders 11 and 12, is covered by a valid
collective bargaining agreement that provides for meal periods and
includes a monetary remedy if the employee does not receive a meal
period required by the agreement, then the terms, conditions, and
remedies of the agreement pertaining to meal periods apply in lieu of
the applicable provisions pertaining to meal periods of subdivision
(a) of this section, Section 226.7, and Industrial Welfare Commission
Wage Orders 11 and 12.
   SEC. 5.    Section 514 of the   Labor Code
  is amended to read: 
   514.   (a)    Sections 510 and 511 do not apply
to an employee covered by a valid collective bargaining agreement if
the agreement expressly provides for the wages, hours of work, and
working conditions of the employees, and if the agreement provides
premium wage rates for all overtime hours worked and a regular hourly
rate of pay for those employees of not less than 30 percent more
than the state minimum wage. 
   (b) Sections 512 (a) and (b) do not apply to any employee covered
by a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of
employees, and expressly provides for meal periods for those
employees, final and binding arbitration of disputes concerning
application of its meal period provisions, premium wage rates for all
overtime hours worked, and regular hourly rate of pay of not less
than 30 percent more than the state minimum wage rate. 
   SEC. 6.    Section 515.5 of the   Labor Code
  is amended to read: 
   515.5.  (a) Except as provided in subdivision (b), an employee in
the computer software field shall be exempt from the requirement that
an overtime rate of compensation be paid pursuant to Section 510 if
all of the following apply:
   (1) The employee is primarily engaged in work that is intellectual
or creative and that requires the exercise of discretion and
independent judgment.
   (2) The employee is primarily engaged in duties that consist of
one or more of the following:
   (A) The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software, or
system functional specifications.
   (B) The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including
prototypes, based on and related to user or system design
specifications.
   (C) The documentation, testing, creation, or modification of
computer programs related to the design of software or hardware for
computer operating systems.
   (3) The employee is highly skilled and is proficient in the
theoretical and practical application of highly specialized
information to computer systems analysis, programming, and software
engineering. A job title shall not be determinative of the
applicability of this exemption.
   (4) The employee's hourly rate of pay is not less than 
forty-one   thirty-six  dollars  ($41.00)
  ($36.00)  , or the annualized full-time salary
equivalent of that rate, provided that all other requirements of this
section are met and that in each workweek the employee receives not
less than  forty-one   thirty-six  dollars
 ($41.00)   ($36.00)  per hour worked. The
Division of Labor Statistics and Research shall adjust this pay rate
on October 1 of each year to be effective on January 1 of the
following year by an amount equal to the percentage increase in the
California Consumer Price Index for Urban Wage Earners and Clerical
Workers.
   (b) The exemption provided in subdivision (a) does not apply to an
employee if any of the following apply:
   (1) The employee is a trainee or employee in an entry-level
position who is learning to become proficient in the theoretical and
practical application of highly specialized information to computer
systems analysis, programming, and software engineering.
   (2) The employee is in a computer-related occupation but has not
attained the level of skill and expertise necessary to work
independently and without close supervision.
   (3) The employee is engaged in the operation of computers or in
the manufacture, repair, or maintenance of computer hardware and
related equipment.
   (4) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by
the use of computers and computer software programs and who is
skilled in computer-aided design software, including CAD/CAM, but who
is not in a computer systems analysis or programming occupation.
   (5) The employee is a writer engaged in writing material,
including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other
similar written information, either for print or for onscreen media
or who writes or provides content material intended to be read by
customers, subscribers, or visitors to computer-related media such as
the World Wide Web or CD-ROMs.
   (6) The employee is engaged in any of the activities set forth in
subdivision (a) for the purpose of creating imagery for effects used
in the motion picture, television, or theatrical industry.
   SEC. 7.    Section 1194 of the   Labor Code
  is amended to read: 
   1194.  (a) Notwithstanding any agreement to work for a lesser
wage, any employee receiving less than the legal minimum wage or the
legal overtime compensation applicable to the employee is entitled to
recover in a civil action the unpaid balance of the full amount of
this minimum wage or overtime compensation, including interest
thereon, reasonable attorney's fees, and costs of suit  ,
including expert witness fees  .
   (b) The amendments made to this section by Chapter 825 of the
Statutes of 1991 shall apply only to civil actions commenced on or
after January 1, 1992. 
  SECTION 1.    Section 6330 of the Labor Code is
amended to read:
   6330.  (a) The director shall prepare and submit to the
Legislature, not later than March 1, an annual report on the division
activities. The report shall include, but need not be limited to,
the following information for the previous calendar year:
   (1) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
   (2) The total inspections made, and the total citations issued by
the division.
   (c)(3) The number of civil penalties assessed, the total amount of
fines collected, and the number of appeals heard.
   (4) The number of contractors referred to the Contractor's State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
   (5) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
   (6) Recommendations for legislation that improve the ability of
the division to provide safety in places of employment.
   (7) A summary of the activities of all advisory committees
convened by the division or the Occupational Safety and Health
Standards Board, including information on any specific actions taken
by the division or the board based on the activity of an advisory
committee.
   (b) The report shall be made to the Speaker of the Assembly and
the Chair of the Senate Committee on Rules, for assignment to the
appropriate committee or committees for evaluation.