Amended in Senate June 14, 2016

Amended in Assembly May 14, 2015

Amended in Assembly April 6, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1066

Introduced by Assembly Member Gonzalez

February 26, 2015

begin delete An act to amend Sections 45103 and 88003 of the Education Code, relating to classified employees. end delete begin insert An act to amend Section 554 of, and to add Chapter 6 (commencing with Section 857) to Part 2 of Division 2 of, the Labor Code, relating to employment. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1066, as amended, Gonzalez. begin delete Classified employees: short-term employees. end delete begin insert Agricultural workers: wages, hours, and working conditions. end insert

begin insert

Existing law sets wage, hour, meal break requirements, and other working conditions for employees and requires an employer to pay overtime wages as specified to an employee who works in excess of a workday or workweek, as defined, and imposes criminal penalties for the violation of these requirements. Existing law exempts agricultural employees from these requirements. Under existing law, the function of the Department of Industrial Relations is to, among other things, 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.

end insert begin insert

This bill would remove the exemption for agricultural employees regarding hours, meal breaks, and other working conditions, including specified wage requirements, and would create a schedule that would phase in overtime requirements for agricultural workers, as defined, over the course of 4 years, from 2019 to 2022, inclusive. Beginning January 1, 2022, the bill would require any work performed by a person, employed in an agricultural occupation, in excess of 12 hours in one day to be compensated at the rate of no less than twice the employee’s regular rate of pay. The bill would authorize the Governor to delay the implementation of these overtime pay provisions if the Governor also suspends the implementation of a scheduled state minimum wage increase, as specified. The bill would require the Department of Industrial Relations to update a specified wage order for consistency with these provisions.

end insert begin insert

The bill would create a state-mandated local program by including agricultural employees as a class of employees protected by criminal penalties under existing law.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

(1) Existing law requires school districts and community college districts to employ persons for positions not requiring certification qualifications and to classify, as defined, these persons. These employees are generally known as classified employees. Existing law provides that substitute and short-term employees, as defined, employed and paid for less than 75% of a school year or college year, shall not be part of the classified service.

end delete begin delete

This bill would revise the definition of “short-term employee” to require that a short-term employee position not continue on a year-after-year basis.

end delete begin delete

To the extent that this bill would impose new duties on school districts and community college districts, it would constitute a state-mandated local program.

end delete begin delete

(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end delete begin delete

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 554 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

554.  

(a) Sections 551 and 552 begin delete shall end delete begin insert do end insert not apply to begin delete any end delete cases
of emergency begin delete nor end delete begin insert or end insert to work performed in the protection of life
or property from loss or destruction, begin delete nor end delete begin insert or end insert to any common carrier
engaged in or connected with the movement of trains. begin delete This chapter,
with the exception of Section 558, shall not apply to any person
employed in an agricultural occupation, as defined in Order No.
14-80 (operative January 1, 1998) of the Industrial Welfare
Commission. end delete Nothing in this chapter shall be construed to prevent
an accumulation of days of rest when the nature of the employment
reasonably requires that the employee work seven or more
consecutive days, if in each calendar month the employee receives
days of rest equivalent to one day’s rest in seven. The requirement
respecting the equivalent of one day’s rest in seven shall apply,
notwithstanding the other provisions of this chapter relating to
collective bargaining agreements, where the employer and a labor
organization representing employees of the employer have entered
into a valid collective bargaining agreement respecting the hours
of work of the employees, unless the agreement expressly provides
otherwise.

(b) In addition to the exceptions specified in subdivision (a),
the Chief of the Division of Labor Standards Enforcement may,
when in his or her judgment hardship will result, exempt any
employer or employees from the provisions of Sections 551 and
552.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Chapter 6 (commencing with Section 857) is added to
Part 2 of Division 2 of the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 6. end insert Agriculture

 

begin insert 857. end insert   

This chapter shall be known and may be cited as the
Phase-In Overtime for Agricultural Workers Act of 2016.

begin insert 858. end insert   

The Legislature finds and declares all of the following:

(a) Agricultural employees engage in back-breaking work every
day.

(b) Few occupations in today’s America are as physically
demanding and exhausting as agricultural work.

(c) In 1938, the United States Congress enacted the federal Fair
Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.), which
excluded agricultural workers from wage protections and overtime
compensation requirements.

(d) It is the intent of the Legislature to enact the Phase-In
Overtime for Agricultural Workers Act of 2016 to provide any
person employed in an agricultural occupation in California, as
defined in Order No. 14-2001 of the Industrial Welfare Commission
(revised 07-2014) with an opportunity to earn overtime
compensation under the same standards as millions of other
Californians.

begin insert 859. end insert   

For purposes of this chapter, “employed in an agricultural
occupation” has the same meaning as in Order No.14-2001 of the
Industrial Welfare Commission (revised 07-2014).

begin insert 860. end insert   

Notwithstanding any other provision of law, including
Chapter 1 (commencing with Section 500):

(a) Commencing January 1, 2019, any person employed in an
agricultural occupation shall not be employed more than nine and
one-half hours in any one workday or work in excess of 55 hours
in any one workweek, unless the employee receives one and
one-half times that employee’s regular rate of pay for all hours
worked over nine and one-half hours in any workday or over 55
hours in any workweek.

(b) Commencing January 1, 2020, any person employed in an
agricultural occupation shall not be employed more than nine
hours in any one workday or work in excess of 50 hours in any
one workweek, unless the employee receives one and one-half
times that employee’s regular rate of pay for all hours worked
over nine hours in any workday or over 50 hours in any workweek.

(c) Commencing January 1, 2021, any person employed in an
agricultural occupation shall not be employed more than eight
and one-half hours in any one workday or work in excess of 45
hours in any one workweek, unless the employee receives one and
one-half times that employee’s regular rate of pay for all hours
worked over eight and one-half hours in any workday or over 45
hours in any workweek.

(d) Commencing January 1, 2022, any person employed in an
agricultural occupation shall not be employed more than eight
hours in any one workday or work in excess of 40 hours in any
one workweek, unless the employee receives one and one-half
times that employee’s regular rate of pay for all hours worked
over eight hours in any workday or over 40 hours in any workweek.

begin insert 861. end insert   

Except as set forth in Section 860 and subdivision (a) of
Section 862, all other provisions of Chapter 1 (commencing with
Section 500) regarding compensation for overtime work shall
apply to workers in an agricultural occupation commencing
January 1, 2017.

begin insert 862. end insert   

(a) Beginning January 1, 2022, and consistent with
Section 510, any work performed by a person, employed in an
agricultural occupation, in excess of 12 hours in one day shall be
compensated at the rate of no less than twice the employee’s
regular rate of pay.

(b) Consistent with Section 861, notwithstanding subdivision
(a) or Section 863, the other provisions of Section 510 shall be
applicable to workers in an agricultural occupation commencing
January 1, 2019.

begin insert 863. end insert   

(a) Notwithstanding Section 860 or 862, the Governor
may temporarily suspend scheduled phase in overtime requirements
set forth in Section 860, or subdivision (a) of Section 862 only if
the Governor suspends scheduled minimum wage increases
pursuant to clause (i) of subparagraph (A) of, and subparagraph
(B) of, paragraph (3) of subdivision (d) of Section 1182.12.

(b) If the Governor makes a final determination to temporarily
suspend scheduled phase in overtime requirements set forth in
Section 860 or subdivision (a) of Section 862 for the following
year, all implementation dates applicable to Section 860 and
subdivision (a) of Section 862 that are suspended subsequent to
the September 1 final determination date, consistent with clause
(i) of subparagraph (A) of, and subparagraph (B) of, paragraph
(3) of subdivision (d) of Section 1182.12, shall be postponed by
an additional year, but the full implementation of the overtime
requirements set forth in Section 860 or subdivision (a) of Section
862 shall in no event be later than January 1, 2022. The
Governor’s temporary suspension under this section shall be by
proclamation.

(c) The Governor’s authority to suspend the scheduled overtime
requirements under this section shall end upon the phase in of the
overtime requirements contained in subdivision (d) of Section 860
or the phase in of the overtime requirements contained in
subdivision (a) of Section 862.

begin insert 864. end insert   

The Department of Industrial Relations shall update Wage
Order No. 14-2001 to be consistent with this chapter, except that
the Wage Order 14-2001 provision for payment of double the
employee’s regular rate of pay for all hours worked over eight
hours on the seventh day of work in the workweek shall continue
to apply.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

Section 45103 of the Education Code is amended
to read:

45103.  

(a) The governing board of a school district shall
employ persons for positions not requiring certification
qualifications. The governing board of a school district shall, except
where Article 6 (commencing with Section 45240) or Section
45318 applies, classify all of these employees and positions. The
employees and positions shall be known as the classified service.

(b) (1) Substitute and short-term employees, employed and
paid for less than 75 percent of a school year, shall not be a part
of the classified service.

(2) Apprentices and professional experts employed on a
temporary basis for a specific project, regardless of length of
employment, shall not be a part of the classified service.

(3) Full-time students employed part time, and part-time students
employed part time in any college workstudy program, or in a
work experience education program conducted by a community
college district pursuant to Article 7 (commencing with Section
51760) of Chapter 5 of Part 28 and that is financed by state or
federal funds, shall not be a part of the classified service.

(4) Part-time playground positions shall not be a part of the
classified service, where the employee is not otherwise employed
in a classified position. Part-time playground positions shall be
considered a part of the classified service when the employee in
the position also works in the same school district in a classified
position.

(c) Unless otherwise permitted, a person whose position does
not require certification qualifications shall not be employed by
the governing board of a school district, except as authorized by
this section.

(d) As used in this section:

(1) “Seventy-five percent of a school year” means 195 working
days, including holidays, sick leave, vacation, and other leaves of
absence, irrespective of the number of hours worked per day.

(2) “Short-term employee” means any person who is employed
to perform a service for the school district, upon the completion
of which the service required or similar services will not be
extended or needed on a continuing basis. Before employing a
short-term employee, the governing board of a school district, at
a regularly scheduled board meeting, shall specify the service
required to be performed by the employee pursuant to the definition
of “classification” in subdivision (a) of Section 45101, and shall
certify the ending date of the service. The ending date may be
shortened or extended by the governing board of the school district,
but shall not extend beyond 75 percent of a school year. A
short-term employee position shall not continue on a year-after-year
basis.

(3) “Substitute employee” means any person employed to
replace any classified employee who is temporarily absent from
duty. In addition, if the school district is then engaged in a
procedure to hire a permanent employee to fill a vacancy in any
classified position, the governing board of the school district may
fill the vacancy through the employment, for not more than 60
calendar days, of one or more substitute employees, except to the
extent that a collective bargaining agreement then in effect provides
for a different period of time.

(e) Employment of either full-time or part-time students in any
college workstudy program, or in a work experience education
program, shall not result in the displacement of classified personnel
or impair existing contracts for services.

(f) This section shall apply only to school districts not
incorporating the merit system as outlined in Article 6
(commencing with Section 45240).

SEC. 2.  

Section 88003 of the Education Code is amended to
read:

88003.  

(a) The governing board of a community college district
shall employ persons for positions that are not academic positions.
The governing board, except where Article 3 (commencing with
Section 88060) or Section 88137 applies, shall classify all those
employees and positions. The employees and positions shall be
known as the classified service. Substitute and short-term
employees, employed and paid for less than 75 percent of a college
year, shall not be a part of the classified service. Part-time
playground positions, apprentices, and professional experts
employed on a temporary basis for a specific project, irrespective
of length of employment, shall not be a part of the classified
service. Full-time students employed part time, and part-time
students employed part time in any college work-study program,
or in a work experience education program conducted by a
community college district and that is financed by state or federal
funds, shall not be a part of the classified service. Unless otherwise
permitted, a person whose position does not require certification
qualifications shall not be employed by a governing board, except
as authorized by this section.

(b) As used in this section:

(1) “Seventy-five percent of a college year” means 195 working
days, including holidays, sick leave, vacation, and other leaves of
absences, irrespective of the number of hours worked per day.

(2) “Short-term employee” means any person who is employed
to perform a service for the community college district, upon the
completion of which the service required or similar services will
not be extended or needed on a continuing basis. Before employing
a short-term employee, the governing board, at a regularly
scheduled board meeting, shall specify the service required to be
performed by the employee pursuant to the definition of
“classification” in subdivision (a) of Section 88001, and shall
certify the ending date of the service. The ending date may be
shortened or extended by the governing board, but shall not extend
beyond 75 percent of a college year. A short-term employee
position shall not continue on a year-after-year basis.

(3) “Substitute employee” means any person employed to
replace any classified employee who is temporarily absent from
duty. In addition, if the community college district is then engaged
in a procedure to hire a permanent employee to fill a vacancy in
any classified position, the governing board may fill the vacancy
through the employment, for not more than 60 calendar days, of
one or more substitute employees, except to the extent that a
collective bargaining agreement then in effect provides for a
different period of time.

(c) Employment of either full-time or part-time students in any
college work-study program, or in a work experience education
program, shall not result in the displacement of classified personnel
or impair existing contracts for services.

(d) This section shall apply only to community college districts
not incorporating the merit system as outlined in Article 3
(commencing with Section 88060).

SEC. 3.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end delete