Amended in Assembly August 5, 2013

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:begin delete piece-rate workers:end deletebegin insert meal andend insert 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.begin delete 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.end delete

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 requirebegin delete employersend deletebegin insert an employerend insert to paybegin delete employeesend deletebegin insert an employee,end insert for anybegin insert meal orend insert restbegin insert or recoveryend insert period mandated by law,begin delete 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, or to employees exempt under specified law.end deletebegin insert one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest or recovery period is not provided. The bill would define “recovery period” for those purposes.end insert

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) As used in thisbegin delete section:end deletebegin insert section, “recovery period”
4means a cooldown period afforded an employee to prevent heat
5illness.end insert

begin delete

6(1) “Piece-rate basis” means a method of payment based on
7units of production earned by an employee during a work day or
8a pay period, or any fraction thereof.

end delete
begin delete

7 9(2) “Recovery period” means a cooldown period afforded an
10employee to prevent heat illness.

end delete
begin delete

11(3)  “Unit of production” means any measurable or quantifiable
12employee activity that can be assigned a monetary value for
13purposes of computing pay for activity performed by the employee
14during a work day or pay period or fraction thereof.

end delete

15(b) An employer shall not require any employee to work during
16any meal or rest or recovery period mandated pursuant to any
17applicable statute, or applicable regulation, standard, or order of
18the Industrial Welfare Commission, the Occupational Safety and
19Health Standards Board, or the Division of Occupational Safety
20and Health.

21(c) If an employer fails to provide an employee a meal begin deleteperiodend delete
22 or restbegin insert or recoveryend insert period in accordance with any state law,
23including, but not limited to, any applicable statute or applicable
24regulation, standard, or order of the Industrial Welfare
25Commission, the Occupational Safety and Health Standards Board,
P3    1or the Division of Occupational Safety and Health, the employer
2 shall pay the employee one additional hour of pay at the
3employee’s regular rate of compensation for each workday that
4the meal or rest or recovery period is not provided.

begin delete

5(d) (1) Rest or recovery periods mandated pursuant to any state
6law, including, but not limited to, a statute, or a regulation,
7standard, or order of the Industrial Welfare Commission, the
8Occupational Safety and Health Standards Board, or the Division
9of Occupational Safety and Health, shall be counted as hours
10worked for which there shall be no deduction from wages. An
11employee working on a piece-rate basis shall be compensated for
12rest periods by being paid his or her average piece-rate wage during
13each pay period, or portion of a pay period, in which the employee
14was paid on a piece-rate basis.

15(2) Pursuant to a civil action or a claim filed with the Division
16of Labor Standards Enforcement, an employee working on a
17piece-rate basis may recover his or her unpaid average piece-rate
18wage for each rest or recovery period in any pay period in which
19a violation of this subdivision occurred in addition to any amounts
20owed pursuant to subdivision (c).

21(e) This section does not apply to an employee whose wages,
22hours, and working conditions are covered by a collective
23bargaining agreement that expressly addresses rest or recovery
24periods for employees paid on a piece-rate basis.

25(f) This section does not apply to an employee who is exempt
26pursuant to any state law, including, but not limited to, a statute
27or a regulation, standard, or order of the Industrial Welfare
28Commission.

end delete


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