Senate BillNo. 435


Introduced by Senator Padilla

February 21, 2013


An act to amend Section 226.7 of the Labor Code, relating to compensation.

LEGISLATIVE COUNSEL’S DIGEST

SB 435, as introduced, Padilla. Compensation: piece-rate workers: rest and recovery periods.

Existing law prohibits an employer from requiring an employee to work during any meal or rest period mandated by an order of the Industrial Welfare Commission (IWC) and establishes penalties for an employer’s failure to provide a mandated meal or rest period. Existing law establishes the Division of Labor Standards Enforcement (DLSE) in the Department of Industrial Relations for the enforcement of labor laws, including wage claims.

This bill would make that prohibition applicable to any meal or rest or recovery period mandated by applicable statute or applicable regulation, standard, or order of the IWC, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health. The bill would require employers to pay employees for any rest period mandated by law, including any applicable statute or applicable regulation, standard, or order of the IWC, the board, or the Division of Occupational Safety and Health, that is not provided. The bill would require the rate of pay for the rest and recovery periods of piece-rate workers to be the average piece-rate wage, as specified. The bill would authorize a piece-rate worker, pursuant to a civil action or a claim filed with DLSE, to recover his or her unpaid average piece-rate wage for each rest or recovery period in which a violation of these provisions occurred. The bill would provide that it does not apply to an employee whose wages, hours, and working conditions are covered by a collective bargaining agreement that expressly addresses rest or recovery periods for employees paid on a piece-rate basis.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

P2    1

SECTION 1.  

Section 226.7 of the Labor Code is amended to
2read:

3

226.7.  

(a) begin deleteNo end deletebegin insertAs used in this section, “piece-rate basis” means
4a method of payment based on units of production earned by an
5employee during a work day or a pay period, or any fraction
6thereof. “Unit of production” means any measurable or
7quantifiable employee activity that can be assigned a monetary
8value for purposes of computing pay for activity performed by the
9employee during a work day or pay period or fraction thereof.end insert

10begin insert(b)end insertbegin insertend insertbegin insertAn end insertemployer shallbegin insert notend insert require any employee to work during
11any meal or restbegin insert or recoveryend insert period mandatedbegin delete by anend deletebegin insert pursuant to
12anyend insert
applicablebegin insert statute, or applicable regulation, standard, orend insert order
13of the Industrial Welfare Commissionbegin insert, the Occupational Safety
14and Health Standards Board, or the Division of Occupational
15Safety and Healthend insert
.

begin delete

16(b)

end delete

17begin insert(c)end insert If an employer fails to provide an employee a meal period
18or rest period in accordance withbegin delete anend deletebegin insert any state law, including, but
19not limited to, anyend insert
applicablebegin insert statute or applicable regulation,
20standard, orend insert
order of the Industrial Welfare Commission,begin insert the
21Occupational Safety and Health Standards Board, or the Division
22of Occupational Safety and Health,end insert
the employer shall pay the
23employee one additional hour of pay at the employee’s regular
24rate of compensation for each work day that the meal or restbegin insert or
25recoveryend insert
period is not provided.

begin insert

26(d) (1) Rest or recovery periods mandated pursuant to any state
27law, including but not limited to, statute, or regulation, standard,
28or order of the Industrial Welfare Commission, the Occupational
29Safety and Health Standards Board, or the Division of
30Occupational Safety and Health, shall be counted as hours worked
31for which there shall be no deduction from wages. An employee
32working on a piece-rate basis shall be compensated for rest periods
P3    1by being paid his or her average piece-rate wage during each pay
2period, or portion of a pay period, in which the employee was paid
3on a piece-rate basis.

end insert
begin insert

4(2) Pursuant to a civil action or a claim filed with the Division
5of Labor Standards Enforcement, an employee working on a
6piece-rate basis may recover his or her unpaid average piece-rate
7wage for each rest or recovery period in any pay period in which
8a violation of this subdivision occurred in addition to any amounts
9owed pursuant to subdivision (c).

end insert
begin insert

10(e) This section does not apply to an employee whose wages,
11hours, and working conditions are covered by a collective
12bargaining agreement that expressly addresses rest or recovery
13periods for employees paid on a piece-rate basis.

end insert


O

    99