BILL NUMBER: SB 945 CHAPTERED 09/08/00 CHAPTER 365 FILED WITH SECRETARY OF STATE SEPTEMBER 8, 2000 APPROVED BY GOVERNOR SEPTEMBER 7, 2000 PASSED THE SENATE AUGUST 18, 2000 PASSED THE ASSEMBLY AUGUST 10, 2000 AMENDED IN ASSEMBLY MAY 24, 2000 AMENDED IN SENATE JANUARY 24, 2000 INTRODUCED BY Senator Vasconcellos FEBRUARY 25, 1999 An act to amend Section 1171 of the Labor Code, and to amend Section 634.5 of the Unemployment Insurance Code, relating to employment. LEGISLATIVE COUNSEL'S DIGEST SB 945, Vasconcellos. Employment. (1) Existing law governing employment prescribes wages, hours, and working conditions for all employees in the state except individuals employed as outside salesmen. This bill would additionally except from those employment law provisions individuals participating in a national service program, such as AmeriCorps, carried out using specified federal assistance. This bill would require, however, that those participants be informed, prior to the commencement of their service, of any requirement to work in excess of 8 hours per day, or 40 hours per week, or both, and that those participants be allowed to opt out of the national service program at that time. This bill would also prohibit discrimination against participants for refusing to work overtime for a legitimate reason. (2) Existing law governing unemployment insurance defines "employment" for those purposes, and with respect to certain public entities and certain nonprofit organizations, exempts from that definition certain specified services. This bill would add as exempted services in this regard service performed as a participant in a national service program carried out using specified federal assistance. (3) This bill would state legislative findings, declarations, and intent in this regard. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) That AmeriCorps is a unique and valuable program created by the United States federal government that seeks to provide young Americans opportunities to engage themselves in volunteer service in their communities, while earning credits toward their college or university education and being provided with living allowances including benefits and workers' compensation coverage. Because AmeriCorps participants become involved in unpredictable service commitments (from individual to community emergencies), their hours of service are irregular at times. (b) There are now approximately $32 million of federal funds coming into California supporting 60 different and distinct AmeriCorps programs with nearly 9,400 participants. SEC. 2. (a) The Legislature hereby intends to recognize the unique and valuable character of the AmeriCorps program, and its 60 programs now operating in California, and to assure their ready operation by providing them a unique exemption from the California wage and hour law and an exemption from state unemployment insurance laws. (b) In so doing, it is not the intention of the Legislature to create any precedent that would otherwise curtail the full operation of California's wage and hour law or its unemployment insurance laws. SEC. 3. Section 1171 of the Labor Code is amended to read: 1171. The provisions of this chapter shall apply to and include men, women and minors employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise, but shall not include any individual employed as an outside salesman or any individual participating in a national service program carried out using assistance provided under Section 12571 of Title 42 of the United States Code. Any individual participating in a national service program pursuant to Section 12571 of Title 42 of the United States Code shall be informed by the nonprofit, educational institution or other entity using his or her service, prior to the commencement of service of the requirement, if any, to work hours in excess of eight hours per day, or 40 hours per week, or both, and shall have the opportunity to opt out of that national service program at that time. Individuals participating in a national service program pursuant to Section 12571 of Title 42 of the United States Code shall not be discriminated against or be denied continued participation in the program for refusing to work overtime for a legitimate reason. SEC. 4. Section 634.5 of the Unemployment Insurance Code is amended to read: 634.5. Notwithstanding any other provision of this code or any other code or law, no provision of this code or any other code or law excluding service from "employment" shall apply to any public entity defined by Section 605 or to any nonprofit organization described by Section 608, except as provided by this section. With respect to any public entity defined by Section 605 or any nonprofit organization described by Section 608, "employment" does not include service excluded under Sections 629, 631, 635, and 639 to 648, inclusive, or service performed in any of the following: (a) In the employ of (1) a church or convention or association of churches or (2) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches. (b) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by the order. (c) In the employ of any public entity defined by Section 605, if the service is performed by an individual in the exercise of his or her duties as any of the following: (1) An elected official. (2) A member of a legislative body, or a member of the judiciary, of a state or political subdivision thereof. (3) A member of a State National Guard or Air National Guard. (4) An employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or other similar emergency. (5) In a position which, under or pursuant to state law, is designated as either of the following: (A) A major nontenured policymaking or advisory position. (B) A policymaking or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week. (6) As an election official or election worker if the amount of remuneration reasonably expected to be received by the individual during the calendar year for services as an election official or election worker is less than two hundred dollars ($200), provided that this paragraph shall not take effect unless and until the service is excluded from service to which paragraph (1) of subdivision (a) of Section 3309 of the federal Unemployment Tax Act (26 U.S.C. Sec. 3301 et seq.) applies by reason of exemption under subdivision (b) of Section 3309 of that act. (d) Except as provided by Section 605.5, by an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of either: (1) Rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury; or (2) Providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market. (e) As part of an unemployment work relief or work training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving work relief or work training. (f) By a ward or an inmate of a custodial or penal institution pursuant to Article 1 (commencing with Section 2700), Article 4 (commencing with Section 2760), and Article 5 (commencing with Section 2780) of Chapter 5 of, and Article 1 (commencing with Section 2800) of Chapter 6 of, Title 1 of Part 3 of the Penal Code, Section 4649 and Chapter 1 (commencing with Section 4951) of Part 4 of Division 4 of the Public Resources Code, and Sections 883, 884, and 1768 of the Welfare and Institutions Code. (g) By an individual under the age of 18 years in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution. (h) By an individual in, and at the time of, the sale of newspapers or magazines to ultimate consumers, under an arrangement under which the newspapers or magazines are to be sold by him or her at a fixed price, his or her compensation being based on retention of the excess of the price over the amount at which the newspapers or magazines are charged to him or her whether or not he or she is guaranteed a minimum amount of compensation for the service, or is entitled to be credited with the unsold newspapers or magazines turned back. (i) As a substitute employee whose employment does not increase the size of the employer's normal work force, whose employment is required by law, and whose employment as a substitute employee does not occur on more than 60 days during the base period, except that this subdivision shall not take effect unless and until the United States Secretary of Labor, or his or her designee, finds that this subdivision is in conformity with federal requirements. (j) As a participant in a national service program carried out using assistance provided under Section 12571 of Title 42 of the United States Code. This section shall become operative on July 1, 1978.