BILL ANALYSIS Ó
SB 1360
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Date of Hearing: June 11, 2014
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB 1360 (Padilla) - As Introduced: February 21, 2014
SENATE VOTE : 23-7
SUBJECT : Compensation: meal and rest or recovery periods.
SUMMARY : Clarifies 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.
Specifically, this bill :
1)Specifies 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 (IWC), the Occupational Safety and Health
Standards Board (OSHA Standards Board), or the Division of
Occupational Safety and Health (DOSH), shall be counted as
hours worked for which there shall be no deduction from wages.
2)Provides that this provision is declaratory of existing law.
EXISTING LAW prohibits an employer from requiring employees to
work during a meal or rest or recovery period mandated pursuant
to an applicable statute, regulation, standard or order of the
IWC, the OSHA Standards Board, or DOSH. Failure to provide an
employee with a meal or rest or recovery period entitles the
employee to one additional hour of pay at his or her regular
rate of compensation for each workday that the meal, rest or
recovery period is not provided.
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : 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 (DOSH), the
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Occupational Safety and Health Standards Board (OSHA Standards
Board), and the Division of Labor Standards Enforcement (DLSE).
Each of the seventeen IWC Wage Orders includes a section on rest
period requirements - authorizing non-exempt employees to take a
rest period at a rate of ten minutes per four hours or major
fraction thereof. According to the IWC wage orders, authorized
rest period time shall be counted as hours 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 OSHA Standards Board, or
DOSH. 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)
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.
ARGUMENTS IN SUPPORT :
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According to the sponsor, this bill would correct a drafting
error made in the final amendment 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 sponsor argues 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 sponsor states 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 sponsor 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Rural Legal Assistance Foundation (sponsor)
California School Employees Association
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers & Scientists of CA, IFPTE Local 20
International Longshore and Warehouse Union
Professional & Technical Engineers, IFPTE Local 21
United Farm Workers
UNITE-HERE
Utility Workers Union of America, Local 132
SB 1360
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Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091