BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Senator Ben Hueso, Chair
Date of Hearing: March 26, 2014 2013-2014 Regular
Session
Consultant: Alma Perez-Schwab Fiscal:No
Urgency: No
Bill No: SB 1360
Author: Padilla
As Introduced/Amended: February 21, 2014
SUBJECT
Compensation: meal and rest or recovery periods
KEY ISSUE
Should the Legislature clarify that a legally mandated rest or
recovery period is counted as hours worked and, therefore, shall
not result in any deductions from an employee's wages?
ANALYSIS
Existing law establishes, within the Department of Industrial
Relations, the following entities:
Industrial Welfare Commission (IWC): to regulate
employee wages, hours and working
conditions. (Labor Code §70-74)
Division of Occupational Safety and Health (Cal/OSHA):
tasked with the responsibility
of protecting workers and the public from safety hazards
through its various programs.
Occupational Safety and Health Standards Board (OSHSB):
to adopt reasonable and enforceable standards at least as
effective as federal standards.
Division of Labor Standards Enforcement: to adjudicate
wage claims, investigate discrimination and public works
complaints, and enforce Labor Code and IWC orders.
Existing law, with certain exceptions, defines a day's work as
eight hours of labor. Any additional hours worked in excess of
eight hours in one day, or a 40-hour workweek, must be
compensated with the payment of overtime.
Regarding meal, rest and recovery periods, existing law requires
the following:
Meal Periods: 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 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)
Unless an employee is relieved of all duty during his/her
meal period, the period shall be considered "on duty" and
counted as hours worked which must be compensated at
his/her regular rate of pay.
Rest Periods:Industrial Welfare Commission 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 employer.
Recovery Periods: A recovery period is defined as a
cooldown period afforded to nonexempt employees to prevent
heat illness. Employees are authorized and encouraged to
take a cool-down recovery rest period in the shade for a
period of no less than five minutes if they feel the need
to protect themselves from overheating. [T8CCR 3395(d)(3)]
Hearing Date: March 26, 2014 SB 1360
Consultant: Alma Perez-Schwab Page 2
Senate Committee on Labor and Industrial Relations
Existing law prohibits an employer from requiring employees to
work during a meal or rest or recovery period mandated pursuant
to an applicable statute, regulations, standard, or order of the
IWC, the OSHSB, or Cal/OSHA. Failure to provide an employee
with a meal, rest or recovery period, entitles the employee to
one additional hour of pay at his/her regular rate of
compensation for each workday that the meal, rest or recovery
period is not provided. (Labor Code §226.7)
This Bill would specify that a rest or recovery period mandated
pursuant to state law, including, but not limited to, an
applicable statute, regulation, standard, or order of the
Industrial Welfare Commission, the Occupational Safety and
Health Standards Board, or the Division of Occupational Safety
and Health, shall be counted as hours worked, for which there
shall be no deduction from wages. The bill also would make this
provision declaratory of existing law.
COMMENTS
1. Rest and Recovery Period Requirements in Statute, Standards
and IWC Wage Orders:
Under existing law, one of the functions of the Department of
Industrial Relations (DIR) is to foster, promote, and develop
the welfare of the wage earners of California, to improve
their working conditions, and to advance their opportunities
for profitable employment. Within DIR there are various boards
and divisions tasked with the execution of these requirements
including the Industrial Welfare Commission (IWC), the
Division of Occupational Safety and Health (Cal/OSHA), the
Occupational Safety and Health Standards Board (OSHSB), and
the Division of Labor Standards Enforcement (DLSE).
Each of the seventeen (17) IWC Wage Orders includes a section
on rest period requirements - authorizing non-exempt employees
to take a rest period at a rate of ten (10) minutes per 4
hours or major fraction thereof. According to the IWC wage
orders, authorized rest period time shall be counted as hours
Hearing Date: March 26, 2014 SB 1360
Consultant: Alma Perez-Schwab Page 3
Senate Committee on Labor and Industrial Relations
worked for which there shall be no deduction from wages.
Existing Labor Code §226.7 prohibits an employer from
requiring employees to work during a meal, rest or recovery
period mandated pursuant to an applicable statute,
regulations, standard, or order of the IWC, the OSHSB, or
Cal/OSHA. Failure to provide an employee with a meal, rest or
recovery period, entitles the employee to one additional hour
of pay at his/her regular rate of compensation for each
workday that the meal, rest or recovery period is not
provided. (Labor Code §226.7)
2. Need for this bill?
Although existing law affords employees - by statute,
regulation and standards - the ability and protections to take
a meal, rest and recovery period, there appears to be some
ambiguity as to whether or not these periods are counted as
hours worked and, therefore, required to be compensated. While
a meal period is unpaid (as long as the employee is relieved
of all duty), rest periods are construed as "hours worked" and
must be compensated at the employee's regular rate of pay.
The IWC Wage Orders clearly state that, "authorized rest
period time shall be counted as hours worked for which there
shall be no deduction from wages." However, for recovery
periods, even though they are a legally protected right to
recover from heat-illness, and one would assume the same
protection applies requiring these to also be compensated, it
appears that there is a need for further clarification.
This bill would clarify that a rest or recovery period
mandated pursuant to a state law, is to be counted as hours
worked, for which there shall be no deduction from wages. The
bill would declare this provision to be declaratory of
existing law. Additionally, the sponsors argue that this bill
is necessary to address an inadvertent deletion of this
language in a previous version of SB 435 (Padilla) from last
year which codified the existing recovery period provisions
found in Labor Code §226.7.
3. Proponent Arguments :
Hearing Date: March 26, 2014 SB 1360
Consultant: Alma Perez-Schwab Page 4
Senate Committee on Labor and Industrial Relations
According to the sponsors, this bill would correct a drafting
error made in the final amendments to SB 435 (Padilla) from
last year which inadvertently removed language stating that
daily rest periods and heat stress-related recovery periods
are "to be counted as hours worked, for which there shall be
no deduction from wages." The sponsors argue that prior to
its final amendments, SB 435 sought to: 1) provide the same
protections and remedies for heat stress-related recovery
periods as apply to daily rest periods; 2) clarify that piece
rate workers are entitled to be paid their average piece rate
earnings during their daily rest and recovery periods; and 3)
codify existing law which holds that these periods are to be
considered compensated time.
The sponsors state that as SB 435 moved through the
legislative process, a California appellate court's decision
in Bluford v Safeway affirmed that piece rate workers were
entitled to be paid during their rest periods. The Safeway
defendants sought review of this decision in the CA Supreme
Court, which later denied the petition for review, letting
Bluford stand. However, they argue, prior to the Supreme
Court's action, the co-sponsors had removed the section of the
bill that attempted to codify the required pay during these
periods in order to clear the way for a possible Supreme Court
consideration of the issue. This bill, they argue, simply
restores this language and clarifies that workers are to be
compensated for taking a cool down recovery period.
4. Opponent Arguments :
None received.
5. Prior Legislation :
SB 435 (Padilla) of 2013: Chaptered
SB 435 enacted the current provisions of Labor Code §226.7
which prohibits an employer from requiring employees to work
during a meal, rest or recovery period, and entitles him/her
to one additional hour of pay for each workday that a period
is not provided.
SB 1538 (Alarcon) of 2004: Vetoed by the Governor
Hearing Date: March 26, 2014 SB 1360
Consultant: Alma Perez-Schwab Page 5
Senate Committee on Labor and Industrial Relations
SB 1538 would have required employers to pay for any rest
period mandated by statute, regulation, or IWC order and would
have established a formula to determine piece-rate pay.
AB 755 (De La Torre) of 2005: Vetoed by the Governor
Almost identical to SB1538, however, AB 755 did not enumerate
the formula for piece-rate pay, but rather stated that it be
the "average piece-rate" wage.
SUPPORT
California Rural Legal Assistance Foundation (Co-Sponsor)
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Teamsters Public Affairs Council
Engineers & Scientists of CA, IFPTE Local 20, AFL-CIO
International Longshore and Warehouse Union
Professional & Technical Engineers, IFPTE Local 21, AFL-CIO
Utility Workers Union of America, Local 132
UNITE-HERE, AFL-CIO
OPPOSITION
None received
Hearing Date: March 26, 2014 SB 1360
Consultant: Alma Perez-Schwab Page 6
Senate Committee on Labor and Industrial Relations