Amended in Senate April 16, 2013

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 amended, 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 basisbegin insert, or to employees exempt under specified lawend insert.

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

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

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SECTION 1.  

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

3

226.7.  

(a) As used in thisbegin delete section, “piece-rateend deletebegin insert section:end insert

4begin insert(1)end insertbegin insertend insertbegin insert“Piece-rateend insert basis” means a method of payment based on
5units of production earned by an employee during a work day or
6a pay period, or any fraction thereof.begin delete “Unitend delete

begin insert

7(2) “Recovery period” means a cooldown period afforded an
8employee to prevent heat illness.

end insert

9begin insert(3)end insertbegin insertend insertbegin insert “Unitend insert of production” means any measurable or quantifiable
10employee activity that can be assigned a monetary value for
11purposes of computing pay for activity performed by the employee
12during a work day or pay period or fraction thereof.

13(b) An employer shall not require any employee to work during
14any meal or rest or recovery period mandated pursuant to any
15applicable statute, or applicable regulation, standard, or order of
16the Industrial Welfare Commission, the Occupational Safety and
17Health Standards Board, or the Division of Occupational Safety
18and Health.

19(c) If an employer fails to provide an employee a meal period
20or rest period in accordance with any state law, including, but not
21limited to, any applicable statute or applicable regulation, standard,
22or order of the Industrial Welfare Commission, the Occupational
23Safety and Health Standards Board, or the Division of Occupational
24Safety and Health, the employer shall pay the employee one
25additional hour of pay at the employee’s regular rate of
26compensation for each work day that the meal or rest or recovery
27period is not provided.

28(d) (1) Rest or recovery periods mandated pursuant to any state
29law, includingbegin insert,end insert but not limited to,begin insert aend insert statute, orbegin insert aend insert regulation,
P3    1standard, or order of the Industrial Welfare Commission, the
2Occupational Safety and Health Standards Board, or the Division
3of Occupational Safety and Health, shall be counted as hours
4worked for which there shall be no deduction from wages. An
5employee working on a piece-rate basis shall be compensated for
6rest periods by being paid his or her average piece-rate wage during
7each pay period, or portion of a pay period, in which the employee
8was paid on a piece-rate basis.

9(2) Pursuant to a civil action or a claim filed with the Division
10of Labor Standards Enforcement, an employee working on a
11piece-rate basis may recover his or her unpaid average piece-rate
12wage for each rest or recovery period in any pay period in which
13a violation of this subdivision occurred in addition to any amounts
14owed pursuant to subdivision (c).

15(e) This section does not apply to an employee whose wages,
16hours, and working conditions are covered by a collective
17bargaining agreement that expressly addresses rest or recovery
18periods for employees paid on a piece-rate basis.

begin insert

19(f) This section does not apply to an employee who is exempt
20pursuant to any state law, including, but not limited to, a statute
21or a regulation, standard, or order of the Industrial Welfare
22Commission.

end insert


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