BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                  SB 435
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          Date of Hearing:   August 14, 2013

                               Roger Hernández, Chair
                    SB 435 (Padilla) - As Amended:  August 5, 2103

           SENATE VOTE  :   25-11
          SUBJECT  :   Compensation: meal and rest and recovery periods

           SUMMARY  :   Enacts provisions of law related to recovery periods,  
          as specified.  Specifically,  this bill  :   

          1)Provides that, in addition to meal and rest periods, an  
            employer shall not require any employee to work during any  
            "recovery period" mandated by any applicable statute,  
            regulation, standard or order of the Occupational Safety and  
            Health Standards Board (Standards Board) or the Division of  
            Occupational Safety and Health (DOSH).

          2)Defines a "recovery period" as a cool-down period afforded an  
            employee to prevent heat illness.

          3)Provides that an existing provision of law that requires an  
            employer to pay an employee one additional hour of pay at the  
            employee's regular rate of compensation for each work day that  
            a meal or rest period is not provided also applies to work  
            days that a "recovery period" is not provided.

           FISCAL EFFECT  :   According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.

           COMMENTS  :   According to the author, this bill is intended to  
          encourage workers exposed to extreme heat to take recovery  

           Existing Meal and Rest Period Requirements of Current Law  

          Under current law, an employer may not employ a worker for a  
          period of more than five hours per day without providing the  
          employee with a meal period of not less than 30 minutes, except  
          that if the total work period per day is no more than six hours,  
          the meal period may be waived by mutual consent of both parties.  
          A second 30 minute meal period is required if an employee works  
          more than ten hours per day, except if total hours worked is no  


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          more than 12, the second meal period may be waived by mutual  
          consent only if the first meal period was not waived. (Labor  
          Code §512).

          In addition, the Industrial Welfare Commission (IWC) Wage Orders  
          require that employers authorize and permit nonexempt employees  
          to take a rest period that must, insofar as practicable, be  
          taken in the middle of each work period. The rest period is  
          based on the total hours worked and must be at the minimum rate  
          of a net 10 consecutive minutes for each 4 hour work period, or  
          major fraction thereof. A rest period is not required for  
          employees whose total daily work time is less than 3.5 hours.  
          According to the IWC Wage Orders, authorized rest periods are  
          counted as time worked and therefore, must be paid by the  

          Existing Labor Code §226.7 prohibits an employer from requiring  
          any employee to work during any meal or rest period mandated by  
          an applicable order of the IWC.  Furthermore, an employer who  
          fails to provide this meal or rest period is required to pay the  
          employee one additional hour of pay for each work day that the  
          meal or rest period is not provided.

           "Recovery Periods" Under the Existing Heat Illness Prevention  

          In addition to the IWC orders and Labor Code §226.7, the Heat  
          Illness Prevention regulations established by the Occupational  
          Safety and Health Standards Board have an additional requirement  
          regarding a "recovery" period applicable to all outdoor places  
          of employment. Since August 2005, employers in the State of  
          California have been required by regulation to protect outdoor  
          employees from the hazard of heat illness. This regulation was  
          promulgated in response to unusually hot summer temperatures  
          over a wide area of the state which led to a greatly elevated  
          number of cases of serious heat illness in the workplace,  
          including a number of deaths. This regulation, codified at Title  
          8 CCR §3395, came about first by adoption of an emergency  
          temporary standard and was followed by adoption of a permanent  
          standard in 2006.  Under these regulations, employees are  
          allowed and encouraged to take a cool-down rest in the shade for  
          a period of no less than five minutes at a time when they feel  
          the need to do so to protect themselves from overheating.



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          The California Rural Legal Assistance Foundation (one of the  
          sponsors of this measure), writes the following in support:

               "[This bill], as amended, generally treats heat  
               stress-related cool down recovery periods the same way  
               daily rest periods are treated under the Labor Code:  
               Employers would be prohibited from requiring workers to  
               perform any work during any heat stress recovery period  
               and, if the employer failed to provide such a recovery  
               period in accordance with state law, the employer would  
               have to pay the employee one additional hour of pay at the  
               employee's regular rate of compensation for each work day  
               that a recovery period was not provided.

               The right of workers to be afforded heat stress-related  
               recovery periods to cool down during high heat conditions  
               is established by California Code of Regulations, Title 8,  
               Section 3395(d). Although compliance with these  
               requirements is argued to be improving in a number of  
               industries, Cal-OSHA reported, for 2012, that overall  
               compliance with the heat stress regulation (found during  
               inspections) was only 69% in agriculture and 72% in  
               construction, illustrating that many violations likely  
               continue to occur. (See Cal-OSHA Advisory Committee Report  
               Summaries, June 6, 2013.) Currently, the sole remedy for a  
               violation is a citation issued by DOSH.

               Given the critical importance of protecting workers from  
               avoidable heat stress illness, and continued limited DOSH  
               enforcement resources, the sponsors and supporters of
               [this bill] believe it is appropriate to extend to workers  
               the same strong protections from violations of recovery  
               period requirements as are provided for violations of daily  
               rest period requirements. This will allow both the Division  
               of Labor Standards Enforcement and workers themselves to  
               take action if an employer requires work during, or fails  
               to provide, a cool down recovery rest period."


             1)   As introduced, this bill also contained provisions  
               related to employees paid on a piece-rate basis, including  
               a requirement that such employees be compensated at their  
               average piece-rate earnings during mandated rest or  


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               recovery periods.  However, with the most recent set of  
               amendments, the piece-rate provisions have been deleted  
               from the bill.

             2)   In addition, at the request of then-opponents of the  
               bill, the author and the sponsor previously agreed to add  
               language to the bill to provide an exemption for specified  
               exempt employees.  However, according to the sponsor, in  
               the most recent set of amendments, this language was  
               inadvertently deleted.  Therefore, the author and the  
               sponsor have agreed to add the language back to the bill,  
               but due to legislative time constraints will take that  
               amendment in the Assembly Appropriations Committee.


          SB 1538 (Alarcón) of 2004 would have required employers to pay  
          employees for any rest period mandated by statute, regulation,  
          or order of the IWC and would have established the specific  
          formula by which the rate of pay would have been determined for  
          the rest periods of piece-rate workers in the agricultural and  
          garment industries, as specified.  SB 1538 was vetoed by  
          Governor Schwarzenegger.

          AB 755 (De La Torre) of 2005 was similar to SB 1538.  However,  
          AB 755 merely stated that piece-rate workers in the agriculture  
          and garment industries would be compensated at their "average  
          piece-rate wage" for rest periods.  AB 755 was also vetoed by  
          Governor Schwarzenegger.

          Among other things, AB 2346 (Butler) of 2012 would have required  
          an agricultural employee working on a piece-rate basis to be  
          compensated at the employee's average piece-rate wage during the  
          pay period in which a rest period or recovery period was taken.   
          However, this provision was subsequently amended out of the  


          California Conference Board of the Amalgamated Transit Union
          California Conference of Machinists
          California Rural Legal Assistance Foundation (sponsor)
          California Teamsters Public Affairs Council 


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          Engineers & Scientists of California, IFPTE Local 20
          International Longshore & Warehouse Union 
          National Lawyers Guild Labor & Employment Committee 
          Professional and Technical Engineers, IFPTE Local 21
          United Farm Workers 
          United Food and Commercial Workers Western States Council
          UNITE HERE!
          Utility Workers Union of America, Local 132
          None on file.

          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091