BILL NUMBER: SB 929	CHAPTERED
	BILL TEXT

	CHAPTER  482
	FILED WITH SECRETARY OF STATE  OCTOBER 11, 2007
	APPROVED BY GOVERNOR  OCTOBER 11, 2007
	PASSED THE SENATE  SEPTEMBER 12, 2007
	PASSED THE ASSEMBLY  SEPTEMBER 11, 2007
	AMENDED IN ASSEMBLY  SEPTEMBER 7, 2007
	AMENDED IN ASSEMBLY  JULY 5, 2007

INTRODUCED BY   Senator Cogdill

                        FEBRUARY 23, 2007

   An act to amend Sections 515.5 and 1773.9 of the Labor Code,
relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 929, Cogdill. Overtime compensation: prevailing wage
determinations.
   Existing law provides that 8 hours of labor constitutes a day's
work. Under existing law, any work in excess of 8 hours in one
workday and any work in excess of 40 hours in any one workweek and
the first 8 hours worked on the 7th day of work in any one workweek
is required to be compensated at the rate of no less than 11/2 times
the regular rate of pay for an employee. Existing law exempts a
professional employee in the computer software field from this
overtime compensation requirement if the employee is primarily
engaged in work that is intellectual or creative, the employee's
hourly rate of pay is not less than $41, and the employee meets other
requirements.
   This bill would decrease the hourly rate of pay requirement for
this exemption to not less than $36.
   Existing law generally requires contractors and subcontractors
performing work on public works, as defined, costing over $1,000 to
pay to their workers the general prevailing rate of per diem wages,
including these wage rates for holiday and overtime work, in the
locality in which the public work is performed. Existing law provides
that per diem wages includes both hourly wage rates and employer
payments for employee benefits, as specified. Existing law requires
the Director of Industrial Relations to determine per diem wages by
referencing collective bargaining agreements, wage rates for federal
public works, and, in certain instances, data from the labor
organizations and employers associations, as specified. If the
director determines that the general prevailing rate of per diem
wages is the rate established by a collective bargaining agreement,
and that collective bargaining agreement contains definite and
predetermined changes during its term that will affect the rate
adopted by the director, existing law requires the director to
incorporate those changes into his or her prevailing wage
determination.
   This bill would authorize contractors and subcontractors, whenever
the director's prevailing wage determination contains a
predetermined change but does not specify how the change will be
allocated between hourly wages and employer payments for benefits, to
allocate payments equal to that change to either hourly wages or
benefits for a specified time period, as provided. This bill would
also provide that, if the allocation of a predetermined change is
subsequently altered by the parties pursuant to the collective
bargaining agreement that was the basis of the prevailing wage
determination, a contractor or subcontractor may allocate payments of
not less than the amount of the definite and predetermined change in
accordance with either the originally published allocation or the
allocation as altered in the collective bargaining agreement.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  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 thirty-six
dollars ($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
thirty-six dollars ($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. 2.  Section 1773.9 of the Labor Code is amended to read:
   1773.9.  (a) The Director of Industrial Relations shall use the
methodology set forth in subdivision (b) to determine the general
prevailing rate of per diem wages in the locality in which the public
work is to be performed.
   (b) The general prevailing rate of per diem wages includes all of
the following:
   (1) The basic hourly wage rate being paid to a majority of workers
engaged in the particular craft, classification, or type of work
within the locality and in the nearest labor market area, if a
majority of the workers is paid at a single rate. If no single rate
is being paid to a majority of the workers, then the single rate
being paid to the greatest number of workers, or modal rate, is
prevailing. If a modal rate cannot be determined, then the director
shall establish an alternative rate, consistent with the methodology
for determining the modal rate, by considering the appropriate
collective bargaining agreements, federal rates, rates in the nearest
labor market area, or other data such as wage survey data.
   (2) Other employer payments included in per diem wages pursuant to
Section 1773.1 and as included as part of the total hourly wage rate
from which the basic hourly wage rate was derived. In the event the
total hourly wage rate does not include any employer payments, the
director shall establish a prevailing employer payment rate by the
same procedure set forth in paragraph (1).
   (3) The rate for holiday and overtime work shall be those rates
specified in the collective bargaining agreement when the basic
hourly rate is based on a collective bargaining agreement rate. In
the event the basic hourly rate is not based on a collective
bargaining agreement, the rate for holidays and overtime work, if
any, included with the prevailing basic hourly rate of pay shall be
prevailing.
   (c) (1) If the director determines that the general prevailing
rate of per diem wages is the rate established by a collective
bargaining agreement, and that the collective bargaining agreement
contains definite and predetermined changes during its term that will
affect the rate adopted, the director shall incorporate those
changes into the determination. Predetermined changes that are
rescinded prior to their effective date shall not be enforced.
   (2) When the director determines that there is a definite and
predetermined change in the general prevailing rate of per diem wages
as described in paragraph (1), but has not published, at the time of
the effective date of the predetermined change, the allocation of
the predetermined change as between the basic hourly wage and other
employer payments included in per diem wages pursuant to Section
1773.1, a contractor or subcontractor may allocate payments of not
less than the amount of the definite and predetermined change to
either the basic hourly wage or other employer payments included in
per diem wages for up to 60 days following the director's publication
of the specific allocation of the predetermined change.
   (3) When the director determines that there is a definite and
predetermined change in the general prevailing rate of per diem wages
as described in paragraph (1), but the allocation of that
predetermined change as between the basic hourly wage and other
employer payments included in per diem wages pursuant to Section
1773.1 is subsequently altered by the parties to a collective
bargaining agreement described in paragraph (1), a contractor or
subcontractor may allocate payments of not less than the amount of
the definite and predetermined change in accordance with either the
originally published allocation or the allocation as altered in the
collective bargaining agreement.