Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 907

Introduced by Assembly Member begin delete Morrell end delete begin insert Conway end insert

February 22, 2013

An act to amend Section begin delete 1771 of the Labor Code, relating to prevailing wages. end delete begin insert 510 of, and to add Section 511.5 to, the Labor Code, relating to employment. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 907, as amended, begin delete Morrell end delete   begin insert Conway end insert . begin delete Public works: prevailing wage rates. end delete begin insert Employment: flexible work schedules. end insert

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Existing law, with certain exceptions, establishes 8 hours as a day’s work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law authorizes the adoption by 2⁄3 of employees in a work unit of alternative workweek schedules providing for workdays no longer than 10 hours within a 40-hour workweek.

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This bill would permit an individual nonexempt employee to request an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek, and would allow an employer to implement this schedule without the obligation to pay overtime compensation for those additional hours in a workday. The bill would require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt regulations.

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Existing law defines the term “public works” for purposes of requirements regarding the payment of prevailing wages, the regulation of working hours, and the securing of workers’ compensation for public works projects. Existing law further requires that, except as specified, not less than the general prevailing rate of per diem wages be paid to workers employed on public works projects, and imposes misdemeanor penalties for a violation of this requirement. Existing law exempts certain projects from the prevailing wage requirements, including public works projects of less than $1,000.

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This bill would make technical, nonsubstantive changes to those provisions.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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This act shall be known and may be cited as the Workplace Flexibility Act of 2013.

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begin insert SEC. 2. end insert   

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The Legislature finds and declares all of the following:

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(a) Small businesses and their workers suffer from outdated
and inefficient workplace and overtime rules that do not allow for
sufficient flexibility for employers and workers to schedule their
hours of work for mutual benefit.

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(b) California overtime laws, which are unique in the country,
make it difficult for most employers to reach an agreement with
an individual worker that would allow a flexible work schedule.

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(c) Existing law does not permit an employer to allow an
individual worker to choose a flexible work schedule of four
10-hour days per week without overtime being paid.

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(d) As a consequence, millions of California workers do not
have the opportunity to take advantage of a flexible work schedule
that would benefit the workers and their families.

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(e) Permitting workers to elect to work four 10-hour days per
week without the payment of overtime would allow them to spend
much-needed time with their families, lessen traffic congestion on
our crowded roads and highways, and would allow workers to
spend one day a week on personal matters, such as volunteering
at a child’s school, scheduling medical appointments, and attending
to other important family matters that often are difficult to schedule
with a five-day-per-week, eight-hour-per-day schedule.

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(f) It is the intent of the Legislature in enacting the Workplace
Flexibility Act of 2013 to protect workers as follows:

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(1) A worker may not be forced to work more than eight hours
in a day without receiving overtime, but, instead, he or she may
request a flexible work schedule of up to four 10-hour days per
week and an employer may agree to this schedule without having
to pay overtime for the ninth and tenth hours worked per day in
that schedule.

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(2) An employer will be required to pay overtime rates after 10
work hours in a day for workers who have chosen a flexible
schedule pursuant to this act.

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(3) An employer will be required to pay double normal pay after
12 work hours in a day for a worker who has chosen a flexible
schedule under this act.

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(4) Any worker, including one who chooses a flexible schedule
under this act, will receive overtime for any hours worked over 40
hours in a single week.

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(g) Workplaces that are unionized already allow workers to
choose to work four 10-hour days; however, it is virtually
impossible for workers of nonunionized workplaces to enjoy this
benefit.

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(h) No compelling public policy reason exists for this
discrepancy in the flexibility of work schedules between unionized
and nonunionized workers.

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begin insert

begin insert SEC. 3. end insert   

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begin insert Section 510 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

510.  

(a) Eight hours of labor constitutes a day’s work. Any
work in excess of eight hours in one workday and 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. In addition, 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. Nothing in this section requires an
employer to combine more than one rate of overtime compensation
in order to calculate the amount to be paid to an employee for any
hour of overtime work. The requirements of this section do not
apply to the payment of overtime compensation to an employee
working pursuant to any of the following:

(1) An alternative workweek schedule adopted pursuant to
Section 511.

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(2) An employee-selected flexible work schedule adopted
pursuant to Section 511.5.

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(2)

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begin insert (3) end insert  An alternative workweek schedule adopted pursuant to a
collective bargaining agreement pursuant to Section 514.

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(3)

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begin insert (4) end insert  An alternative workweek schedule to which this chapter is
inapplicable pursuant to Section 554.

(b) Time spent commuting to and from the first place at which
an employee’s presence is required by the employer shall not be
considered to be a part of a day’s work, when the employee
commutes in a vehicle that is owned, leased, or subsidized by the
employer and is used for the purpose of ridesharing, as defined in
Section 522 of the Vehicle Code.

(c) This section does not affect, change, or limit an employer’s
liability under the workers’ compensation law.

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begin insert SEC. 4. end insert   

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begin insert Section 511.5 is added to the end insert begin insert Labor Code end insert begin insert , to read: end insert

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begin insert 511.5. end insert   

(a) Notwithstanding Section 510 or any other law or
order of the Industrial Welfare Commission, an individual
nonexempt employee may work up to 10 hours per workday without
any obligation on the part of the employer to pay an overtime rate
of compensation, except as provided in subdivision (b), if the
employee requests this schedule in writing and the employer
approves the request. This shall be referred to as an overtime
exemption for an employee-selected flexible work schedule.

(b) If an employee-selected flexible work schedule is adopted,
the employer shall pay overtime at one and one-half times the
employee’s regular rate of pay for all hours worked over 40 hours
in a workweek or over 10 hours in a workday, whichever is the
greater number of hours. All work performed in excess of 12 hours
per workday and in excess of eight hours on a fifth, sixth, or
seventh day in the workweek shall be paid at double the employee’s
regular rate of pay.

(c) An employer may inform its employees that it is willing to
consider employee requests to work an employee-selected flexible
work schedule, but shall not induce a request by promising an
employment benefit or threatening an employment detriment.

(d) An employee or employer may discontinue an
employee-selected flexible work schedule at any time by giving
written notice to the other party. The request will be effective the
first day of the next pay period or the fifth day after notice is given
if there are fewer than five days before the start of the next pay
period, unless otherwise agreed to by the employer and the
employee.

(e) This section does not apply to any employee covered by a
valid collective bargaining agreement or employed by the state,
a city, county, city and county, district, municipality, or other
public, quasi-public, or municipal corporation, or any political
subdivision of this state.

(f) This section shall be liberally construed to accomplish its
purposes.

(g) (1) The Division of Labor Standards Enforcement shall
enforce this section and shall adopt or revise regulations in a
manner necessary to conform and implement this section.

(2) This section shall prevail over any inconsistent provisions
in any wage order of the Industrial Welfare Commission.

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begin insert SEC. 5. end insert   

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The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.

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SECTION 1.  

Section 1771 of the Labor Code is amended to
read:

1771.  

(a) Except for public works projects of one thousand
dollars ($1,000) or less, not less than the general prevailing rate
of per diem wages for work of a similar character in the locality
in which the public work is performed, and not less than the general
prevailing rate of per diem wages for holiday and overtime work
fixed as provided in this chapter, shall be paid to a worker
employed on a public works project.

(b) This section is applicable only to work performed under
contract, and is not applicable to work carried out by a public
agency with its own forces. This section is applicable to contracts
let for maintenance work.

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