BILL ANALYSIS                                                                                                                                                                                                    




                                                                  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 



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          <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 



















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          <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).