BILL NUMBER: AB 2127 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Benoit
(Coauthor: Assembly Member Smyth)
FEBRUARY 20, 2008
An act to amend Sections 511 and 515 of the Labor Code, relating
to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2127, as introduced, Benoit. Employment: alternative workweek
schedules: small business option.
Existing law, with certain exceptions, establishes 8 hours as a
day's work and a 40-hour workweek, and requires payment of prescribed
overtime compensation for additional hours worked. Existing law
authorizes the adoption by 2/3 of employees in a work unit of
alternative workweek schedules providing for workdays no longer than
10 hours within a 40-hour workweek.
This bill would authorize an individual employee employed by an
employer with 25 or fewer employees to request a work schedule of up
to 10 hours per day within a 40-hour workweek, and would authorize an
employer to implement this schedule without any obligation to pay
overtime compensation for hours worked as part of the schedule. The
employee would be required to request the specific schedule desired
in writing and if the employer agrees to that schedule, the employer
and the employee would be required to execute a written agreement
memorializing that schedule. The employee or employer would be
authorized to terminate the agreement with written notice at least 7
days in advance of the desired termination date. The employer would
be required to maintain the agreement as a record for 3 years after
the termination of the agreement.
This bill also would make conforming and technical changes to
related provisions.
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 511 of the Labor Code is amended to read:
511. (a) Upon the proposal of an employer, the employees of an
employer may adopt a regularly scheduled alternative workweek that
authorizes work by the affected employees for no longer than 10 hours
per day within a 40-hour workweek without the payment to the
affected employees of an overtime rate of compensation pursuant to
this section. A proposal to adopt an alternative workweek schedule
shall be deemed adopted only if it receives approval in a secret
ballot election by at least two-thirds of affected employees in a
work unit. The regularly scheduled alternative workweek proposed by
an employer for adoption by employees may be a single work schedule
that would become the standard schedule for workers in the work unit,
or a menu of work schedule options, from which each employee in the
unit would be entitled to choose.
(b) This shall be known as the "Small Business Family Scheduling
Option." Notwithstanding subdivision (a), an employer with 25 or
fewer employees may approve a written request of an employee to work
an alternative workweek schedule for no longer than 10 hours per day
within a 40-hour workweek without the payment to the affected
employee of an overtime rate of compensation pursuant to this
section. An employee shall provide a voluntary, signed written
request that includes the start date of the alternative workweek
schedule and the days and the number of hours per day for the
alternative workweek schedule. If agreed, the employer and employee
shall execute a written agreement that includes the start date of the
alternative workweek schedule and the days and the number of hours
per day for the alternative workweek schedule. The employer shall
maintain the written agreement as a record for three years beyond the
termination of the alternative workweek agreement. The employee or
employer may terminate the agreement at any time upon seven days'
advance written notice.
(b)
(c) An affected employee working longer than eight
hours but not more than 12 hours in a day pursuant to an alternative
workweek schedule adopted pursuant to this section shall be paid an
overtime rate of compensation of no less than one and one-half times
the regular rate of pay of the employee for any work in excess of the
regularly scheduled hours established by the alternative workweek
agreement and for any work in excess of 40 hours per week. An
overtime rate of compensation of no less than double the regular rate
of pay of the employee shall be paid for any work in excess of 12
hours per day and for any work in excess of eight hours on those days
worked beyond the regularly scheduled workdays established by the
alternative workweek agreement. Nothing in this section requires an
employer to combine more than one rate of overtime compensation in
order to calculate the amount to be paid to an employee for any hour
of overtime work.
(c)
(d) An employer shall not reduce an employee's regular
rate of hourly pay as a result of the adoption, repeal ,
termination, or nullification of an alternative workweek
schedule.
(d)
(e) An employer shall make a reasonable effort to find
a work schedule not to exceed eight hours in a workday, in order to
accommodate any affected employee who was eligible to vote in an
election authorized by this section
subdivision (a) and who is unable to work the alternative
schedule hours established as the result of that election. An
employer shall be permitted to provide a work schedule not to exceed
eight hours in a workday to accommodate any employee who was hired
after the date of the election and who is unable to work the
alternative schedule established as the result of that election. An
employer shall explore any available reasonable alternative means of
accommodating the religious belief or observance of an affected
employee that conflicts with an adopted alternative workweek
schedule, in the manner provided by subdivision (j) of Section 12940
of the Government Code.
(e)
(f) The results of any election conducted pursuant to
this section shall be reported by an employer to the Division of
Labor Statistics and Research within 30 days after the results are
final.
(f)
(g) Any type of alternative workweek schedule that is
authorized by this code and that was in effect on January 1, 2000,
may be repealed by the affected employees pursuant to this section.
Any alternative workweek schedule that was adopted pursuant to Wage
Order Numbers 1, 4, 5, 7, or 9 of the Industrial Welfare Commission
is null and void, except for an alternative workweek providing for a
regular schedule of no more than 10 hours' work in a workday that was
adopted by a two-thirds vote of affected employees in a secret
ballot election pursuant to wage orders of the Industrial Welfare
Commission in effect prior to 1998. This subdivision does not apply
to exemptions authorized pursuant to Section 515.
(g)
(h) Notwithstanding subdivision (f)
(g) , an alternative workweek schedule in the health care
industry adopted by a two-thirds vote of affected employees in a
secret ballot election pursuant to Wage Orders 4 and 5 in effect
prior to 1998 that provided for workdays exceeding 10 hours but not
exceeding 12 hours in a day without the payment of overtime
compensation shall be valid until July 1, 2000. An employer in the
health care industry shall make a reasonable effort to accommodate
any employee in the health care industry who is unable to work the
alternative schedule established as the result of a valid election
held in accordance with provisions of Wage Orders 4 or 5 that were in
effect prior to 1998.
(h)
(i) Notwithstanding subdivision (f)
(g) , if an employee is voluntarily working an alternative
workweek schedule providing for a regular work schedule of not more
than 10 hours work in a workday as of July 1, 1999, an employee may
continue to work that alternative workweek schedule without the
entitlement of the payment of daily overtime compensation for the
hours provided in that schedule if the employer approves a written
request of the employee to work that schedule.
SEC. 2. Section 515 of the Labor Code is amended to read:
515. (a) The Industrial Welfare Commission may establish
exemptions from the requirement that an overtime rate of compensation
be paid pursuant to Sections 510 and 511 for executive,
administrative, and professional employees, provided that the
employee is primarily engaged in the duties that meet the test of the
exemption, customarily and regularly exercises discretion and
independent judgment in performing those duties, and earns a monthly
salary equivalent to no less than two times the state minimum wage
for full-time employment. The commission shall conduct a review of
the duties that meet the test of the exemption. The commission may,
based upon this review, convene a public hearing to adopt or modify
regulations at that hearing pertaining to duties that meet the test
of the exemption without convening wage boards. Any hearing conducted
pursuant to this subdivision shall be concluded not later than July
1, 2000.
(b) (1) The
commission may establish additional exemptions to hours of work
requirements under this division where it finds that hours or
conditions of labor may be prejudicial to the health or welfare of
employees in any occupation, trade, or industry. This paragraph shall
become inoperative on January 1, 2005.
(2) Except as otherwise
provided in this section and in subdivision (g)
(h) of Section 511, nothing in this section requires the
commission to alter any exemption from provisions regulating hours of
work that was contained in any valid wage order in effect in 1997.
Except as otherwise provided in this division, the commission may
review, retain, or eliminate any exemption from provisions regulating
hours of work that was contained in any valid wage order in effect
in 1997.
(c) For the purposes of this section,
"full-time employment" means employment in which an employee is
employed for 40 hours per week.
(d) For the purpose of computing the overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee, the
employee's regular hourly rate shall be 1/40th of the employee's
weekly salary.
(e) For the purposes of this section,
"primarily" means more than one-half of the employee's worktime.
(f) (1) In addition to the requirements of subdivision (a),
registered nurses employed to engage in the practice of nursing shall
not be exempted from coverage under any part of the orders of the
Industrial Welfare Commission, unless they individually meet the
criteria for exemptions established for executive or administrative
employees.
(2) This subdivision does not apply to any of the following:
(A) A certified nurse midwife who is primarily engaged in
performing duties for which certification is required pursuant to
Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2
of the Business and Professions Code.
(B) A certified nurse anesthetist who is primarily engaged in
performing duties for which certification is required pursuant to
Article 7 (commencing with Section 2825) of Chapter 6 of Division 2
of the Business and Professions Code.
(C) A certified nurse practitioner who is primarily engaged in
performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2
of the Business and Professions Code.
(D) Nothing in this paragraph shall exempt the occupations set
forth in subparagraphs (A), (B), and (C) from meeting the
requirements of subdivision (a).