California Legislature—2015–16 Regular Session

Assembly BillNo. 1038


Introduced by Assembly Member Jones

(Principal coauthor: Assembly Member Baker)

(Principal coauthor: Senator Huff)

(Coauthors: Assembly Members Chang, Lackey, Olsen, Patterson, and Wilk)

(Coauthors: Senators Bates and Berryhill)

February 26, 2015


An act to amend Section 510 of, and to add Section 511.5 to, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1038, as introduced, Jones. Employment: flexible work schedules.

Existing law, with certain exceptions, establishes 8 hours as a day’s work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law authorizes the adoption by 23 of employees in a work unit of alternative workweek schedules providing for workdays no longer than 10 hours within a 40-hour workweek.

This bill would permit an individual nonexempt employee to request an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek, and would allow an employer to implement this schedule without the obligation to pay overtime compensation for those additional hours in a workday, except as specified. The bill would require that the flexible work schedule contain specified information and the employer’s and the employee’s original signature. The bill would also require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt regulations.

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.  

This act shall be known and may be cited as the
2Workplace Flexibility Act of 2015.

3

SEC. 2.  

The Legislature finds and declares all of the following:

4(a) Small businesses and their workers suffer from outdated and
5inefficient workplace and overtime rules that do not allow for
6sufficient flexibility for employers and workers to schedule their
7hours of work for mutual benefit.

8(b) California overtime laws, which are unique in the country,
9make it difficult for most employers to reach an agreement with
10an individual worker that would allow a flexible work schedule.

11(c) Existing law does not permit an employer to allow an
12individual worker to choose a flexible work schedule of four
1310-hour days per week without overtime being paid.

14(d) As a consequence, millions of California workers do not
15have the opportunity to take advantage of a flexible work schedule
16that would benefit the workers and their families.

17(e) Permitting workers to elect to work four 10-hour days per
18week without the payment of overtime would allow them to spend
19much-needed time with their families, lessen traffic congestion on
20our crowded roads and highways, and would allow workers to
21spend one day a week on personal matters, such as volunteering
22at a child’s school, scheduling medical appointments, and attending
23to other important family matters that often are difficult to schedule
24with a five-day-per-week, eight-hour-per-day schedule.

25(f) It is the intent of the Legislature in enacting the Workplace
26Flexibility Act of 2015 to protect workers as follows:

27(1) A worker may not be forced to work more than eight hours
28in a day without receiving overtime, but, instead, he or she may
29request a flexible work schedule of up to four 10-hour days per
30week and an employer may agree to this schedule without having
31to pay overtime for the 9th and 10th hours worked per day in that
32schedule.

P3    1(2) An employer will be required to pay overtime rates after 10
2work hours in a day for workers who have chosen a flexible
3schedule pursuant to this act.

4(3) An employer will be required to pay double normal pay after
512 work hours in a day for a worker who has chosen a flexible
6schedule under this act.

7(4) Any worker, including one who chooses a flexible schedule
8under this act, will receive overtime for any hours worked over 40
9hours in a single week.

10(g) Workplaces that are unionized already allow workers to
11choose to work four 10-hour days; however, it is virtually
12impossible for workers of nonunionized workplaces to enjoy this
13benefit.

14(h) No compelling public policy reason exists for this
15discrepancy in the flexibility of work schedules between unionized
16and nonunionized workers.

17

SEC. 3.  

Section 510 of the Labor Code is amended to read:

18

510.  

(a) Eight hours of labor constitutes a day’s work. Any
19work in excess of eight hours in one workday and any work in
20excess of 40 hours in any one workweek and the first eight hours
21worked on the seventh day of work in any one workweek shall be
22compensated at the rate of no less than one and one-half times the
23regular rate of pay for an employee. Any work in excess of 12
24hours in one day shall be compensated at the rate of no less than
25twice the regular rate of pay for an employee. In addition, any
26work in excess of eight hours on any seventh day of a workweek
27shall be compensated at the rate of no less than twice the regular
28rate of pay of an employee. Nothing in this section requires an
29employer to combine more than one rate of overtime compensation
30in order to calculate the amount to be paid to an employee for any
31hour of overtime work. The requirements of this section do not
32apply to the payment of overtime compensation to an employee
33working pursuant to any of the following:

34(1) An alternative workweek schedule adopted pursuant to
35Section 511.

begin insert

36(2) An employee-selected flexible work schedule adopted
37pursuant to Section 511.5.

end insert
begin delete

38(2)

end delete

39begin insert(3)end insert An alternative workweek schedule adopted pursuant to a
40 collective bargaining agreement pursuant to Section 514.

begin delete

P4    1(3)

end delete

2begin insert(4)end insert An alternative workweek schedule to which this chapter is
3inapplicable pursuant to Section 554.

4(b) Time spent commuting to and from the first place at which
5an employee’s presence is required by the employer shall not be
6considered to be a part of a day’s work, when the employee
7commutes in a vehicle that is owned, leased, or subsidized by the
8employer and is used for the purpose of ridesharing, as defined in
9Section 522 of the Vehicle Code.

10(c) This section does not affect, change, or limit an employer’s
11liability under the workers’ compensation law.

12

SEC. 4.  

Section 511.5 is added to the Labor Code, to read:

13

511.5.  

(a) Notwithstanding Section 510 or any other law or
14order of the Industrial Welfare Commission, an individual
15nonexempt employee may work up to 10 hours per workday
16without any obligation on the part of the employer to pay an
17overtime rate of compensation, except as provided in subdivision
18(b), if the employee requests this schedule in writing and the
19employer approves the request. This shall be referred to as an
20overtime exemption for an employee-selected flexible work
21schedule. The flexible work schedule shall include all of the
22following:

23(1) A statement that the employer and employee participating
24in the flexible work hour plan understand that work performed in
25excess of 10 hours in a day or in excess of 40 hours in a week is
26required to be compensated at the rate of one and one-half times
27the regular rate of pay.

28(2) A description of the flexible work hour plan.

29(3) A statement that the flexible work hour plan has not been
30made a condition of employment and that participation in the plan
31is voluntary.

32(4) The original signature of the employee and the employer or
33authorized representative.

34(b) If an employee-selected flexible work schedule is adopted,
35the employer shall pay overtime at one and one-half times the
36employee’s regular rate of pay for all hours worked over 40 hours
37in a workweek or over 10 hours in a workday, whichever is the
38greater number of hours. All work performed in excess of 12 hours
39per workday and in excess of eight hours on a fifth, sixth, or
P5    1seventh day in the workweek shall be paid at double the employee’s
2regular rate of pay.

3(c) An employer may inform its employees that it is willing to
4consider employee requests to work an employee-selected flexible
5work schedule, but shall not induce a request by promising an
6employment benefit or threatening an employment detriment.

7(d) An employee or employer may discontinue an
8employee-selected flexible work schedule at any time by giving
9written notice to the other party. The request will be effective the
10first day of the next pay period or the fifth day after notice is given
11if there are fewer than five days before the start of the next pay
12period, unless otherwise agreed to by the employer and the
13employee.

14(e) This section does not apply to any employee covered by a
15valid collective bargaining agreement or employed by the state, a
16city, county, city and county, district, municipality, or other public,
17quasi-public, or municipal corporation, or any political subdivision
18of this state.

19(f) This section shall be liberally construed to accomplish its
20purposes.

21(g) (1) The Division of Labor Standards Enforcement shall
22enforce this section and shall adopt or revise regulations in a
23manner necessary to conform and implement this section.

24(2) This section shall prevail over any inconsistent provisions
25in any wage order of the Industrial Welfare Commission.

26

SEC. 5.  

The provisions of this act are severable. If any
27provision of this act or its application is held invalid, that invalidity
28shall not affect other provisions or applications that can be given
29effect without the invalid provision or application.



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