BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 27, 2012 2011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 1313
Author: Allen
As Introduced/Amended: September 2, 2011
SUBJECT
Overtime wages: agricultural workers.
KEY ISSUE
Should the Legislature require that agricultural employees are
eligible for overtime after the 8th hour in a workday and ensure
the provision of meal periods?
PURPOSE
To withdraw the exemption on agricultural workers from overtime
and meal period requirements.
ANALYSIS
Existing law, with certain exceptions, defines a day's work as
eight hours of labor. Any additional hours worked in excess of
eight hours in one day, or a 40-hour workweek, must be
compensated with the payment of overtime. (Labor Code §510)
Under existing law, the payment of overtime compensation is as
follows:
§ Any work in excess of eight hours in one workday, any
work in excess of 40 hours in any one workweek, and the
first eight hours worked on the seventh day of work in any
one workweek shall be compensated at the rate of no less
than one and one-half times the regular rate of pay for an
employee;
§ Any work in excess of 12 hours in one day shall be
compensated at the rate of no less than twice the regular
rate of pay for an employee;
§ Any work in excess of eight hours on any seventh day of
a workweek shall be compensated at the rate of no less than
twice the regular rate of pay of an employee.
(Labor Code §510)
Existing law provides that the standard requirements for the
payment of overtime compensation do not apply where:
a) An employee submits a written request to make up work
time that would be lost as a result of a personal
obligation of the employee if the make-up work time is
performed in the same workweek in which the work time was
lost. Such make-up work time may not be counted towards
computing the total number of hours worked in a day.
b) An alternative workweek schedule has been adopted
pursuant to Labor Code Section 511. Under this procedure,
an employer may propose an alternative workweek for no
longer that 10 hours per day within a 40-hour workweek and,
if it is approved, the employer is not required to pay
overtime compensation for such a work schedule. The
employer must specify the workers in a work unit and
conduct a secret ballot election. If two-thirds of the
workers approve, the new workweek is deemed adopted. The
employer is required to make a reasonable effort to find a
work schedule not to exceed eight hours for a worker unable
to work the alternative schedule.
c) Employees have adopted an alternative workweek schedule
pursuant to a collective bargaining agreement if the
agreement expressly provides for 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.
Hearing Date: June 27, 2012 AB 1313
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
d) An alternative workweek schedule is inapplicable because
the work relates to cases of emergency or the protection of
life or property, to the movement of trains, or to certain
hardship exceptions as specified by the Chief of the
Division of Labor Standards Enforcement.
(Labor Code §§510, 511, 514, and 554)
Existing law requires, with certain exemptions, that all
employees receive a meal break of 30 minutes before the start of
the 5th hour of work, unless the work period is no more than six
hours and both the employer and the employee choose to waive the
meal period by mutual consent. (Labor Code §512)
Existing law requires that if the work period is more than ten
hours, a second meal period of 30 minutes must also be granted
to an employee. This second meal period can be waived by the
mutual consent of the employer and employee, but only if the
work period is no more than 12 hours, and the first meal period
was not waived. (Labor Code §512)
Existing law exempts employers of agricultural workers from
these requirements.
This bill would require that employers of agricultural workers
must follow these requirements.
COMMENTS
1. Legislative Background and Regulatory Requirements for
Agricultural Workers:
In 1938, Congress passed the Fair Labor Standards Act (FLSA),
which set statutory minimum requirements for labor laws in all
states. The FLSA includes, among other requirements, overtime
provisions, but these provisions were not extended to
agricultural workers. However, as with all provisions with
the FLSA, states are allowed to exceed the requirements laid
out in the FLSA.
Hearing Date: June 27, 2012 AB 1313
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
The issue of overtime for agricultural workers in California
law was first dealt with in 1941. Previously, the Labor Code
had been mute on agricultural employees, but in 1941 the
Legislature chose to exempt all agricultural employees from
the statutory requirements of overtime, similar to the FLSA.
Subsequently, the statutory overtime exemption has largely
remained unchanged, and was indirectly extended to meal
periods in 1999.
This statutory exemption, however, did not prohibit the
Industrial Welfare Commission (IWC) from legally promulgating
overtime provisions that were applicable beyond the 8-hour
timeframe. Currently, the applicable wage order requires the
payment of overtime wages when an agricultural worker works
longer than 10 hours in a single day, and no more than six
days during any workweek . Similarly, the applicable wage
order requires a meal period after the 5th hour of work, but
unlike statute is silent on a second meal period after the
10th hour of work.
Similarly, this statutory construct would not prevent an
employer from agreeing to pay overtime wages before the 10th
hour. Such an agreement could be structured through a company
policy or through a contract, such as a collective bargaining
agreement.
2. Proponent Arguments :
Proponents argue that agricultural workers face increasingly
difficult working conditions for very low pay. Proponents
note that agricultural employees are completely dependent on
their employers for the provision of bathrooms and clean
water, and the agricultural workers frequently work in
incredibly hot weather conditions, yet can only receive
overtime after they work 10 hours in a workday, or sixty hours
in a workweek. Proponents believe that agricultural employees
should not be treated in a unique or distinct way, and that
the two-tiered overtime provisions are antiquated and should
be abolished.
Hearing Date: June 27, 2012 AB 1313
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations
3. Opponent Arguments :
Opponents note that agriculture is critically affected and
dependent on weather conditions and the seasonality of
agricultural production, and opponents argue that this
requires greater flexibility in scheduling work than other
industries, which is currently reflected in both federal and
state labor laws. Opponents also argue that California
already has the nation's most progressive labor protections
for agricultural production, and that no other state currently
requires overtime once agricultural workers have exceeded the
40 hour work week. Moreover, opponents argue that due to
razor-thin profit margins, farmers will be forced to cut hours
and layoff employees if they face an increase in labor costs.
Opponents believe that this will hurt the California economy,
as agriculture has aided the state's recovery during the
current economic downturn, as well as place the state's
agricultural industry at a competitive disadvantage.
4. Prior Legislation :
AB 841 (Dickey), Statutes of 1941, Chapter 1264, originally
created the overtime exemption for agricultural workers.
SUPPORT
California Catholic Conference
California Labor Federation
California Rural Legal Assistance Foundation
Mexican American Legal Defense and Educational Fund
United Farm Workers
157-Individuals
OPPOSITION
Agricultural Council of California
Alliance Western Milk Producers
Allied Grape Growers
American Pistachio Association
Hearing Date: June 27, 2012 AB 1313
Consultant: Gideon L. Baum Page 5
Senate Committee on Labor and Industrial Relations
California Association of Nurseries and Garden Centers
California Association of Wheat Growers
California Association of Winegrape Growers
California Bean Shippers Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Growers and Ginners Association
California Farm Bureau Federation
California Grain & Feed Association
California Grape and Tree Fruit League
California Pear Growers Association
California Seed Association
California State Floral Association
California Tomato Growers Association
California Warehouse Association
California Women for Agriculture
Family Winemakers of California
Fresno County Farm Bureau
Grower-Shipper Association of Central California
Grower-Shipper Vegetable Association of Santa Barbara and San
Luis Obispo Counties
Neisei Farmers League
Pacific Coast Renderers Association
Pacific Egg & Poultry Association
Ventura County Agricultural Association
Western Agricultural Processors Association
Western Growers
Western United Dairymen
Wine Institute
Hearing Date: June 27, 2012 AB 1313
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations