BILL ANALYSIS Ó AB 1948 Page A Date of Hearing: April 18, 2012 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Sandre Swanson, Chair AB 1948 (Grove) - As Introduced: February 23, 2012 SUBJECT : Wage and hour laws: Legislature. SUMMARY : Provides that specified provisions of the Labor Code related to wages and hours (including overtime, meal periods, and certain penalties and fines for violations of the law) are applicable to the Legislature as an employer. FISCAL EFFECT : Unknown COMMENTS : Under federal law, wage and hour issues are governed under the Fair Labor Standards Act (FLSA). The FLSA explicitly excludes from its definition of "employee" certain state and local legislative employees. (FLSA § 3(e)(3)(C)). In order to meet this exemption, the employee must either (1) hold a public elective office of a government agency, (2) be selected by the holder of such an office to be a member of his or her personal staff, (3) be appointed by such an officeholder to serve on a policy-making level, (4) be an immediate advisor to such an officeholder with respect to the constitutional or legal powers of the office, or (5) be an employee in the legislative branch or legislative body of a government agency. Wage and hour issues are also the subject of state law under the Labor Code and the Industrial Welfare Commission (IWC) Wage Orders. However, each of the IWC Wage Orders generally exempts public employees from coverage from its provisions, other than the requirement to pay minimum wage<1>. In addition, even assuming certain wage and hour laws applied to legislative employees, some (but not all) would nonetheless potentially be excluded under certain "executive," "administrative" or "professional" exemptions under existing law. AUTHOR'S STATEMENT IN SUPPORT OF THIS BILL : The fact sheet provided by the author states the following: "This bill ends the California State Legislature's special and unjustified exemption from the burdensome wage and hour ------------------------- <1> See, for example, IWC Wage Order 4-2001 Section 1(B). AB 1948 Page B laws that it has imposed on other employers in the state. The California Labor Code is the basis for state policies concerning the payment of proper wages, including minimum wage, unpaid wages, timely payment of wages, overtime, meal and rest periods, vacation and holiday pay, sick pay, unauthorized deductions, uniforms, and unreimbursed expenses. In addition, the Labor Code assigns the IWC to ascertain the wages paid to all employees in this state, to ascertain the hours and conditions of labor and employment in the various occupations, trades and industries in which employees are employed in this state, and to investigate the health, safety, and welfare of those employees. The California Division of Labor Standards Enforcement (DLSE), overseen by the Labor Commissioner (LC), monitors and enforces wage and hour laws. Some of the most controversial issues considered by the California State Legislature in recent years are related to wage and hour laws. One example is Assembly Bill 60 (1999), which established in statute the eight-hour workday as the standard basis for overtime. Compliance with wage and hour laws is a costly undertaking for California employers, but these laws create numerous jobs and business opportunities for lawyers, human resources consultants, and other professional service providers. A significant amount of litigation is generated through the state's wage and hour laws, including class action lawsuits under the Unfair Competition Law and the Labor Code Private Attorneys General Act. The California Supreme Court is expected to issue a decision by April 12 in Brinker v. Superior Court regarding a fundamental dispute over whether or not employers must force employees to take their entitled meal and rest periods. What's good for the goose is good for the gander: the California State Legislature should not exempt itself from the burdensome and costly laws that it imposes on other employers. Perhaps coverage under these laws will spur the Legislature to consider the excesses of its wage and hour laws and make AB 1948 Page C reasonable amendments." COMMITTEE STAFF COMMENTS : As stated above, the author states that "what's good for the goose is good for the gander" and that the laws that apply to private employers should apply to the Legislature as well. Since this bill is purportedly about leveling the playing field, the author may wish to consider whether the opposite is true as well. The Legislature provides certain benefits and terms of employment that are not mandated to private employers, but perhaps they should be. Therefore, the author may wish to consider adding the following provisions to the bill: (1) The Assembly currently provides employees with paid sick leave, something that is not required of private employers under California law. Numerous bills in recent years have attempted to require employers to provide paid sick leave, including AB 400 (Ma) from 2011, AB 1000 (Ma) from 2009, and AB 2716 (Ma) from 2008. Therefore, the author may wish to consider amending this bill to require private employers to provide paid sick days, consistent with the Legislature. (2) The Assembly currently provides employees with up to three days of paid bereavement leave, something that is not required of private employers under California law. Several bills in recent years have attempted to require employers to provide paid bereavement leave, including AB 325 (Lowenthal) from 2011, AB 2340 (Monning) from 2010, and SB 549 (Corbett) from 2007. Therefore, the author may wish to consider amending this bill to require private employers to provide up to three days of paid bereavement leave, consistent with the Legislature. (3) Several other types of public employees in California have collective bargaining rights (administered by the Public Employment Relations Board) and are able to organize through a process known as AB 1948 Page D "majority recognition" or "card-check."<2> Therefore, the author may wish to consider amending this bill to extend collective bargaining rights and card-check recognition to Legislative employees, consistent with other public employees in California. REGISTERED SUPPORT / OPPOSITION : Support Dayton Public Policy Institute Labor Issues Solutions, LLC Opposition None on file. Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091 --------------------------- <2> See for example: Government Code Section 3507.1 (local public employees under the Meyers-Milias-Brown Act); Government Code Section 3520.5 and implementing regulations (state employees); Government Code Section 3544 (educational employees); and Government Code Section 3573-4 (higher education employees).