BILL NUMBER: SB 1539 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 15, 2008
INTRODUCED BY Senator Calderon
FEBRUARY 22, 2008
An act to amend Section 512 of the Labor Code,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 1539, as amended, Calderon. Meal periods.
Existing law requires an employer to provide an employee who works
more than 5 hours in a workday with a meal period of not less than
30 minutes, unless the employee works no more than 6 hours in a
workday and the meal period is waived by mutual consent. An employer
also is required to provide an employee who works more than 10 hours
in a workday with a second meal period of not less than 30 minutes,
unless the employee works no more than 12 hours, the first meal
period was not waived, and the second meal period is waived by mutual
consent. The Industrial Welfare Commission (IWC) of the Department
of Industrial Relations adopts and amends wage orders that, among
other things, specify how meal periods are required to be provided to
covered employees within various industries, including the
procedures for providing employees with on-duty meal periods.
This bill would declare the intent of the Legislature to enact
legislation to address issues related to meal periods in employment.
This bill would revise the statutory requirements for the
provision of meal periods to specify that the requirements apply only
to employees subject to the meal period provisions of an order of
the IWC. The statutory requirements for providing the meal periods
would be revised to specify that a meal period based on working more
than 5 hours in a workday is required to be provided before the
employee completes 6 hours of work, unless the existing waiver
provision is invoked. The waiver provision for the 2nd meal period
would be changed to provide an exception for different provisions
within IWC wage orders in effect as of January 1, 2008, and to permit
the employer and employee to agree to waive either the first or the
2nd meal period if the employee otherwise is entitled to 2 meal
periods. The bill also would specify conditions under which on-duty
meal periods are permitted rather than meal periods in which the
employee is relieved of all duty. The meal period provisions of a
valid collective bargaining agreement would be required to be
implemented for covered employees rather than the statutory
requirements.
The bill would require that orders of the IWC be interpreted in a
manner consistent with this section, and would require the Department
of Industrial Relations to amend and republish specified IWC wage
orders to be consistent with the revised meal period requirements.
The bill also would declare that all those provisions are
declaratory and not amendatory of existing law.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to
enact legislation to address issues related to meal periods in
employment.
SECTION 1. Section 512 of the Labor Code is
amended to read:
512. (a) An employer shall not employ an employee who is subject
to the meal period provisions of an order of the Industrial Welfare
Commission and who works more than five hours in a workday without
providing the employee with one off-duty meal period per workday
before the employee completes six hours of work. If an employee works
no more than six hours per workday, the employer and employee may
agree to waive the employer's duty of providing the employee with a
meal period. An employer shall not employ an employee who is subject
to the meal period provisions of an order of the Industrial Welfare
Commission and who works more than 10 hours in a workday without
providing the employee with a second off-duty meal period. Except as
authorized by an Industrial Welfare Commission wage order in effect
as of January 1, 2008, if an employee works no more than 12 hours in
a workday, the employer and employee may agree to waive the employer'
s duty of providing the employee with either the first or the second
meal period, but not both.
(b) For purposes of this section, the following terms shall have
the following meanings:
(1) "Off-duty meal period" means a meal period of not less than 30
minutes during which the employee is relieved of all duty.
(2) "Providing the employee with" means giving the employee an
opportunity to take.
(c) Notwithstanding subdivision (a), an on-duty meal period shall
be permitted for an employee covered by an order of the Industrial
Welfare Commission that authorizes an on-duty meal period if the
employer and the employee have entered into a written agreement for
an on-duty meal period, the employee has an opportunity to eat while
on duty, the on-duty meal period is counted as time worked, and the
nature of the work prevents the employee from being relieved of all
duty based on at least one of the following conditions:
(1) The employee works alone or is the only person in the employee'
s job classification who is on duty at the location or in the
department, or there are no other qualified employees who can
reasonably relieve the employee of all duty.
(2) State or federal law imposes a requirement that the employee
remain on duty at all times.
(3) The nature of the work or the relevant circumstances make it
unreasonable or unsafe for the employee to be relieved of all duty.
(4) The work product or process will be destroyed or damaged by
relieving the employee of all duty.
(5) The employee works with perishable products, including the
transport and delivery of those products, and therefore cannot
reasonably be relieved of all duty.
(6) The employee has direct responsibility for children who are
under 18 years of age or who are not emancipated from the foster care
system and who, in either case, are receiving 24-hour residential
care, or is an employee of a 24-hour residential care facility for
the elderly, blind, or developmentally disabled individuals.
(d) If an employee is entitled to two meal periods pursuant to
subdivision (a), both meal periods may be on-duty meal periods if the
requirements of subdivision (c) are met.
(e) This section shall not apply to an employee covered by a
collective bargaining agreement that provides for meal periods. The
terms, conditions, and remedies of the valid collective bargaining
agreement pertaining to meal periods shall apply instead of this
section.
(f) All orders of the Industrial Welfare Commission shall be
interpreted in a manner consistent with this section, and the
Department of Industrial Relations shall amend and republish
Industrial Welfare Commission Wage Order Numbers 1 to 13, inclusive,
and 15 to 17, inclusive, to be consistent with this section, but
shall make no other changes to the wage orders.
(g) 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.
(h) 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
7-hour days, payment of one and one-half times 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.
(i) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Order Numbers 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 Order Numbers 11 and 12.
(j) This section is declaratory and not amendatory of existing
law.