BILL ANALYSIS Ó
AB 67
Page 1
Date of Hearing: March 18, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 67
(Gonzalez) - As Introduced December 17, 2014
SUBJECT: Double Pay on the Holiday Act of 2015
SUMMARY: Enacts the "Double Pay on the Holiday Act of 2015," as
specified. Specifically, this bill:
1)Defines "family holiday" to mean either December 25 or the
fourth Thursday of November each year.
2)Provides that any work performed on a family holiday shall be
compensated at no less than twice the employee's regular rate
of pay.
3)Provides that "employee" does not include an employee covered
by a valid collective bargaining agreement that meets
specified criteria.
FISCAL EFFECT: Unknown
COMMENTS: This bill would enact the Double Pay on the Holiday
Act of 2015 that would require an employer to pay at least two
AB 67
Page 2
times the regular rate of pay to an employee for work on a
family holiday, as defined.
According to the author:
"In recent years, Black Friday shopping deals have
increasingly spread into the Thanksgiving holiday, forcing
workers to miss out on celebrating the holiday and spending
time with their families in order to keep their jobs. In some
cases, this work has become mandatory, forcing workers to give
up their holiday or risk losing their jobs. Many of these
business practices have carried over to Christmas as well. The
increasing commercialization of the holiday season has created
significant public backlash, including petitions, media
criticism and worker protests.
This past Thanksgiving, millions of Americans worked at a
dozen major retailers: Walmart, Macys, Sears/Kmart, Kohl's,
Gap/Old Navy/Banana Republic, Target, Staples, JC Penney, Toys
R Us, Sports Authority, Best Buy and Radio Shack. That
includes nearly a million people at Walmart stores alone, and
many more at food outlets like Starbucks.
Current California law allows employers to mandate working
scheduled overtime, and nationally there have been reports of
retailers like Kmart threatening employees with termination if
they don't work on Thanksgiving.
In fact, more than three-fifths of the country's large
employers have Thanksgiving shifts, while just one in five
small businesses do the same.
Recent polling found that half of Americans think that it's a
AB 67
Page 3
bad idea for stores to be open on Thanksgiving, and despite
talk about consumer demand, data shows that opening earlier
didn't actually boost overall sales. Instead, sales on
Thanksgiving Day just came out of Black Friday sales, meaning
taking away employees' holiday didn't actually help the bottom
line.
Holiday work scheduling has inspired multiple petitions from
workers and their families across the country. Nearly
two-thirds of wealthy nations guarantee paid holidays, though
the United States isn't one of them. On top of that, the
United States is the only one not to guarantee any vacation
days."
Work Restrictions in Other States and "Blue Laws"
This bill would appear to establish the first law in the nation
that would require double pay for working on specified holidays.
However, other state laws prohibit work from being performed on
specified holidays or restrict the types of work that may
performed on certain days, usually Sundays.
Currently three states (Massachusetts, Rhode Island, and Maine)
actually prohibit most retail stores, including grocery stores,
from opening on Thanksgiving and Christmas. In Massachusetts,
state law also prohibits stores from opening on the mornings of
Columbus Day and Veterans Day without state permission. Maine
allows certain sporting goods stores to remain open, an
exemption that allows Maine-based outdoor retailer L.L. Bean to
operate on a year-round basis.
Many states and local jurisdictions have laws on the books that
restrict work (or certain types of work) from being performed on
Sundays. These laws are generally referred to as "blue laws."
AB 67
Page 4
For example, more than 30 counties in the South have "blue laws"
restricting the hours stores can open on Sundays. For instance,
Aiken, South Carolina has a "blue law" that bans most stores
from opening their doors before 1:30 on Sunday afternoons.
Arizona previously limited alcohol sales hours on Sundays (10
a.m. to 2 a.m., the other six days of the week alcohol could be
purchased starting at 6 a.m.). This law was repealed in 2010.
Arkansas prohibits alcohol sales on Sundays. In addition, car
dealerships may not open for sales on Sundays.
Maine was the last New England state to repeal laws that
prohibited department stores from opening on Sundays. The law
prohibiting department stores from opening on Sundays was ended
by referendum in 1990. Recent efforts to overturn the laws
restricting automobile dealerships from opening on Sunday have
died in committee in the Maine legislature. In addition in
Maine, alcohol sales remain restricted between the hours of 1
a.m. and 7 a.m. Monday - Saturday and 1 a.m. and 9 a.m. on
Sunday.
In the past, certain state "blue laws" have been challenged on
constitutional grounds. However, in the 1961 case of McGowan v.
Maryland, 366 U.S. 420, the U.S. Supreme Court held that
Maryland's laws violated neither the Free Exercise Clause nor
the Establishment Clause of the First Amendment. It approved the
state's blue law restricting commercial activities on Sunday,
noting that while such laws originated to encourage attendance
at Christian churches, the contemporary Maryland laws were
intended to serve "to provide a uniform day of rest for all
citizens" on a secular basis and to promote the secular values
of "health, safety, recreation, and general well-being" through
AB 67
Page 5
a common day of rest. That this day coincides with the
Christian Sabbath is not a bar to the state's secular goals - it
neither reduces its effectiveness for secular purposes nor
prevents adherents of other religions from observing their own
holy days.
ARGUMENTS IN SUPPORT
Supporters argue that this bill guarantees that employees are
fairly compensated for the undue hardships associated with
working on the traditional family holidays of Thanksgiving and
Christmas. Like the author, they contend that the increasing
commercialization of these holidays in recent years has forced
workers to miss out on celebrating the holiday and spending time
with their families in order to keep their jobs. In some cases,
this work has become mandatory, forcing workers to give up their
holiday or risk losing their jobs.
They state that requiring employers in California to pay at
least two times the regular rate of pay to an employee that
works on Thanksgiving or Christmas will increase the level of
respect for California's workers, assist in paying towards a
living wage, and perhaps have retailers think twice about
forcing a worker to miss a special holiday with his or her
family.
AB 67
Page 6
ARGUMENTS IN OPPOSITION
Opponents argue that this bill will result in unavoidable cost
increases for certain businesses. While some employers may
close their place of business on a "family holiday" to
accommodate their employees, others do not realistically have
that option for their business models. For example, hospitals,
medical facilities, and lodging accommodations, need to stay
open even on "family holidays" for public benefit. Despite
this, this bill would increase these employers' costs of doing
business by forcing them to provide all employees with double
pay. This mandate places such employers in an unfair
predicament as they do not have the option to avoid those costs
by closing down.
Opponents also argue that this bill would create a competitive
disadvantage for "brick-and-mortar" stores. They state that
this bill would unilaterally increase the cost of doing business
only for those employers who have a physical presence in
California, thereby automatically placing them at a competitive
disadvantage with online companies and out-of-state businesses
that would not be subject to this cost.
Opponents also argue that this bill is not explicitly limited to
hourly paid employees, and therefore includes exempt, salaried
employees. They contend that under this bill, no matter how long
the exempt employee actually worked on a "family holiday," the
AB 67
Page 7
exempt employee would be entitled to double compensation for the
entire day, thereby significantly increasing the cost of all
employers. This mandate would create a windfall for exempt
employees who may work only an hour on a "family holiday."
Finally, opponents argue that this bill violates constitutional
rights to religious freedom. They state:
"Forcing a non-Christian employer to recognize Christmas as a
unique workday by paying all employees double their regular
rate of pay is likely a violation of that employer's
constitutional free exercise of religion. See Sands v.
Morongo Unified School District, 53 Cal.3d 863, 879
(1991)(quoting Justice O'Connor that '[i]f government is to be
neutral in matters of religion, rather than showing either
favoritism or disapproval . . ., government cannot endorse the
religious practices and beliefs of some citizens without
sending a clear message to nonadherents that they are
outsiders or less than full members of the political
community.'") (citations omitted); Catholic Charities of
Sacramento, Inc. v. Superior Ct., 32 Cal.4th 527, 547-548
(2004)(stating "[t]he government may not regulate beliefs as
such by compelling or punishing their affirmation, nor may it
target conduct for regulation only because it is undertaken
for religious reasons . . ."). [This bill] is not neutral on
its face, but rather, affirmatively recognizes Christmas as a
"family holiday" on which employers must provide double
compensation to all employees. This is a government
endorsement of a Christian holiday, to the detriment of all
other non-Christian religious denominations and beliefs.
AB 67
Page 8
Similarly, forcing an employer, especially those who are
immigrants and do not embrace American culture to recognize
Thanksgiving as a special "family holiday" fails to embrace
other cultures and beliefs. The Legislature should not
mandate certain days as more significant based upon religious
or cultural beliefs that are not maintained by all."
In addition, the Construction Employers' Association opposes
this bill unless amended because the collective bargaining
exemption only applies if the agreement provides for paid sick
days. They contend that this requirement is not germane to the
bill and the exemption should be limited to the subject matter
of the bill.
COMMITTEE STAFF COMMENT:
As discussed above, certain state or local laws that prohibit
work (or certain work) from being performed on Sundays have
generally been held to survive constitutional scrutiny. See,
for example, McGowan v. Maryland, 366 U.S. 420 (1961), discussed
above.
AB 67
Page 9
In addition, federal law making Christmas a national holiday has
similarly survived constitutional challenge. For example, a
1999 case argued that the federal recognition of Christmas as a
holiday violated the First Amendment's establishment clause.
However, the U.S. District Court rejected that argument.
Ganulin v. U.S., 71 F.Supp. 2d 824 (S.D. Ohio 1999). In 2000,
the 6th U.S. Circuit Court of Appeals affirmed the lower court
decision, and the U.S. Supreme Court subsequently refused to
grant certiorari.
In a somewhat unusual precedent, the District Court Judge (Susan
J. Dlott) prefaced her opinion with the following nine-stanza
poem:
The Court will address plaintiff's seasonal confusion
erroneously believing Christmas merely a religious intuition.
Whatever the reason constitutional or other,
Christmas is not an act of Big Brother!
Christmas is about joy and giving and sharing,
it is about the child within us, it is most about caring!
One is never jailed for not having a tree,
for not going to church, for not spreading glee!
The Court will uphold seemingly contradictory causes,
*826 decreeing "the establishment" and "Santa" both worthwhile
AB 67
Page 10
"Claus(es)!"
We are all better for Santa, the Easter bunny too,
and maybe the great pumpkin, to name just a few!
An extra day off is hardly high treason.
It may be spent as you wish, regardless of reason.
The Court having read the lessons of "Lynch"
refuses to play the role of the Grinch!
There is room in this country and in all our hearts too,
for different convictions and a day off too!
Nevertheless, as discussed above, opponents argue that this
bill, in mandating employers (including private employers) to
pay premium wages for work performed on Christmas and
Thanksgiving, violates constitutional rights to religious
freedom.
REGISTERED SUPPORT / OPPOSITION:
Support
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
AB 67
Page 11
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Nurses Association
California School Employees Association
California Teamsters Public Affairs Council
Engineers & Scientists of California
International Longshore & Warehouse Union
Professional & Technical Engineers
UNITE-HERE
Utility Workers Union of America
Opposition
Agricultural Council of California
Alhambra Chamber of Commerce
AB 67
Page 12
Associated General Contractors
CalChamber
California Association of Bed and Breakfast Inns
California Association of Health Services at Home
California Attractions and Parks Association
California Automotive Wholesalers Association
California Broadcasters Association
California Citrus Mutual
California Cotton Ginners Association
California Employment Law Council
California Farm Bureau Association
California Grocers Association
California Hotel & Lodging Association
California Manufacturers & Technology Association
California New Car Dealers Association
California Newspaper Association
California Pool & Spa Association
California Restaurants Association
Camarillo Chamber of Commerce
Construction Employers' Association
Culver City Chamber of Commerce
El Dorado Hills Chamber of Commerce & California Welcome Center
Fullerton Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Riverside Chambers of Commerce
Greater San Fernando Valley Chamber of Commerce
Lake Tahoe South Shore Chamber of Commerce
Long Beach Area Chamber of Commerce
Maxim Healthcare Services
Motion Picture Association of America
National Association of Theatre Owners of California/Nevada
(NATO)
Oxnard Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce & Visitors Bureau
San Jose Silicon Valley Chamber of Commerce
Santa Clara Chamber of Commerce & Convention-Visitors Bureau
Southwest California Legislative Council
AB 67
Page 13
Southwest California Legislative Council
Torrance Chamber of Commerce
Valley Industry and Commerce Association
Western Agricultural Processors Association California Dairies,
Inc.
Western Growers Association
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091