BILL NUMBER: AB 244 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Maze
FEBRUARY 3, 2003
An act to amend Sections 510, 554, 556, and 1182.1 of, to add
Section 1183.5 to, and to repeal Sections 500, 511, 513, 514, 515.5,
515.6, and 517 of, the Labor Code, relating to wages.
LEGISLATIVE COUNSEL'S DIGEST
AB 244, as introduced, Maze. Wages: overtime.
Existing law provides that, except for an employee working an
alternative workweek schedule and for certain occupations, hours
worked in excess of 8 hours a day, in excess of 40 hours a week, and
the first 8 hours worked on a 7th day of work are to be compensated
at a rate at least 11/2 times the regular rate of pay, and hours
worked in excess of 12 hours a day and in excess of 8 hours on the
7th day of work are to be compensated at a rate at least twice the
regular rate of pay. Employers are subject to civil penalties for
violating these requirements. The Labor Commissioner is authorized
to issue citations for violations.
This bill would provide that parties may agree as to the number of
hours that constitute a day's work. It would remove the requirement
that work in excess of 8 hours a day, in excess of 40 hours a week,
and the first 8 hours on the 7th day of work are to be compensated at
no less than 11/2 times the regular rate of pay, and hours worked in
excess of 12 hours a day and in excess of 8 hours on the 7th day of
work are to be compensated at no less than twice the regular rate of
pay. The bill would also provide that any employer who intends to
use a flexible scheduling technique, as permitted by an order of the
Industrial Welfare Commission, is required to make full written
disclosure to all employees.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 500 of the Labor Code is repealed.
500. For purposes of this chapter, the following terms shall have
the following meanings:
(a) "Workday" and "day" mean any consecutive 24-hour period
commencing at the same time each calendar day.
(b) "Workweek" and "week" mean any seven consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed
and regularly recurring period of 168 hours, seven consecutive
24-hour periods.
(c) "Alternative workweek schedule" means any regularly scheduled
workweek requiring an employee to work more than eight hours in a
24-hour period.
SEC. 2. Section 510 of the Labor Code is amended to read:
510. (a) Eight hours of labor constitutes a day'
s work . Any work in excess of eight hours in one workday
and any work in excess of 40 hours in any one workweek and the first
eight hours worked on the seventh day of work in any one workweek
shall be compensated at the rate of no less than one and one-half
times the regular rate of pay for an employee. Any work in excess of
12 hours in one day shall be compensated at the rate of no less than
twice the regular rate of pay for an employee. In addition, any
work in excess of eight hours on any seventh day of a workweek shall
be compensated at the rate of no less than twice the regular rate of
pay of an employee. Nothing in this section requires an employer to
combine more than one rate of overtime compensation in order to
calculate the amount to be paid to an employee for any hour of
overtime work. The requirements of this section do not apply to the
payment of overtime compensation to an employee working pursuant to
any of the following:
(1) An alternative workweek schedule adopted pursuant to Section
511.
(2) An alternative workweek schedule adopted pursuant to a
collective bargaining agreement pursuant to Section 514.
(3) An alternative workweek schedule to which this chapter is
inapplicable pursuant to Section 554.
(b) unless it is otherwise expressly stipulated by
the parties to a contract. Time spent commuting to and from
the first place at which an employee's presence is required by the
employer shall not be considered to be a part of a day's work, when
the employee commutes in a vehicle that is owned, leased, or
subsidized by the employer and is used for the purpose of
ridesharing, as defined in Section 522 of the Vehicle Code.
(c) This section does not affect, change, or
limit an employer's liability under the workers' compensation law.
SEC. 3. Section 511 of the Labor Code is repealed.
511. (a) Upon the proposal of an employer, the employees of an
employer may adopt a regularly scheduled alternative workweek that
authorizes work by the affected employees for no longer than 10 hours
per day within a 40-hour workweek without the payment to the
affected employees of an overtime rate of compensation pursuant to
this section. A proposal to adopt an alternative workweek schedule
shall be deemed adopted only if it receives approval in a secret
ballot election by at least two-thirds of affected employees in a
work unit. The regularly scheduled alternative workweek proposed by
an employer for adoption by employees may be a single work schedule
that would become the standard schedule for workers in the work unit,
or a menu of work schedule options, from which each employee in the
unit would be entitled to choose.
(b) An affected employee working longer than eight hours but not
more than 12 hours in a day pursuant to an alternative workweek
schedule adopted pursuant to this section shall be paid an overtime
rate of compensation of no less than one and one-half times the
regular rate of pay of the employee for any work in excess of the
regularly scheduled hours established by the alternative workweek
agreement and for any work in excess of 40 hours per week. An
overtime rate of compensation of no less than double the regular rate
of pay of the employee shall be paid for any work in excess of 12
hours per day and for any work in excess of eight hours on those days
worked beyond the regularly scheduled workdays established by the
alternative workweek agreement. Nothing in this section requires an
employer to combine more than one rate of overtime compensation in
order to calculate the amount to be paid to an employee for any hour
of overtime work.
(c) An employer shall not reduce an employee's regular rate of
hourly pay as a result of the adoption, repeal or nullification of an
alternative workweek schedule.
(d) An employer shall make a reasonable effort to find a work
schedule not to exceed eight hours in a workday, in order to
accommodate any affected employee who was eligible to vote in an
election authorized by this section and who is unable to work the
alternative schedule hours established as the result of that
election. An employer shall be permitted to provide a work schedule
not to exceed eight hours in a workday to accommodate any employee
who was hired after the date of the election and who is unable to
work the alternative schedule established as the result of that
election. An employer shall explore any available reasonable
alternative means of accommodating the religious belief or observance
of an affected employee that conflicts with an adopted alternative
workweek schedule, in the manner provided by subdivision (j) of
Section 12940 of the Government Code.
(e) The results of any election conducted pursuant to this section
shall be reported by an employer to the Division of Labor Statistics
and Research within 30 days after the results are final.
(f) Any type of alternative workweek schedule that is authorized
by this code and that was in effect on January 1, 2000, may be
repealed by the affected employees pursuant to this section. Any
alternative workweek schedule that was adopted pursuant to Wage Order
Numbers 1, 4, 5, 7, or 9 of the Industrial Welfare Commission is
null and void, except for an alternative workweek providing for a
regular schedule of no more than 10 hours' work in a workday that was
adopted by a two-thirds vote of affected employees in a secret
ballot election pursuant to wage orders of the Industrial Welfare
Commission in effect prior to 1998. This subdivision does not apply
to exemptions authorized pursuant to Section 515.
(g) Notwithstanding subdivision (f), an alternative workweek
schedule in the health care industry adopted by a two-thirds vote of
affected employees in a secret ballot election pursuant to Wage
Orders 4 and 5 in effect prior to 1998 that provided for workdays
exceeding 10 hours but not exceeding 12 hours in a day without the
payment of overtime compensation shall be valid until July 1, 2000.
An employer in the health care industry shall make a reasonable
effort to accommodate any employee in the health care industry who is
unable to work the alternative schedule established as the result of
a valid election held in accordance with provisions of Wage Orders 4
or 5 that were in effect prior to 1998.
(h) Notwithstanding subdivision (f), if an employee is voluntarily
working an alternative workweek schedule providing for a regular
work schedule of not more than 10 hours work in a workday as of July
1, 1999, an employee may continue to work that alternative workweek
schedule without the entitlement of the payment of daily overtime
compensation for the hours provided in that schedule if the employer
approves a written request of the employee to work that schedule.
SEC. 4. Section 512 of the Labor Code is repealed.
512. (a) An employer may not employ an employee for a work period
of more than five hours per day without providing the employee with
a meal period of not less than 30 minutes, except that if the total
work period per day of the employee is no more than six hours, the
meal period may be waived by mutual consent of both the employer and
employee. An employer may not employ an employee for a work period
of more than 10 hours per day without providing the employee with a
second meal period of not less than 30 minutes, except that if the
total hours worked is no more than 12 hours, the second meal period
may be waived by mutual consent of the employer and the employee only
if the first meal period was not waived.
(b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a meal
period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.
SEC. 5. Section 513 of the Labor Code is repealed.
513. If an employer approves a written request of an employee to
make up work time that is or would be lost as a result of a personal
obligation of the employee, the hours of that makeup work time, if
performed in the same workweek in which the work time was lost, may
not be counted towards computing the total number of hours worked in
a day for purposes of the overtime requirements specified in Section
510 or 511, except for hours in excess of 11 hours of work in one day
or 40 hours in one workweek. An employee shall provide a signed
written request for each occasion that the employee makes a request
to make up work time pursuant to this section. An employer is
prohibited from encouraging or otherwise soliciting an employee to
request the employer's approval to take personal time off and make up
the work hours within the same week pursuant to this section.
SEC. 6. Section 514 of the Labor Code is repealed.
514. Sections 510 and 511 do not apply to an employee covered by
a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of the
employees, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those
employees of not less than 30 percent more than the state minimum
wage.
SEC. 7. Section 515.5 of the Labor Code is repealed.
515.5. (a) Except as provided in subdivision (b), an employee in
the computer software field shall be exempt from the requirement that
an overtime rate of compensation be paid pursuant to Section 510 if
all of the following apply:
(1) The employee is primarily engaged in work that is intellectual
or creative and that requires the exercise of discretion and
independent judgment, and the employee is primarily engaged in duties
that consist of one or more of the following:
(A) The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software, or
system functional specifications.
(B) The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including
prototypes, based on and related to, user or system design
specifications.
(C) The documentation, testing, creation, or modification of
computer programs related to the design of software or hardware for
computer operating systems.
(2) The employee is highly skilled and is proficient in the
theoretical and practical application of highly specialized
information to computer systems analysis, programming, and software
engineering. A job title shall not be determinative of the
applicability of this exemption.
(3) The employee's hourly rate of pay is not less than forty-one
dollars ($41.00). The Division of Labor Statistics and Research
shall adjust this pay rate on October 1 of each year to be effective
on January 1 of the following year by an amount equal to the
percentage increase in the California Consumer Price Index for Urban
Wage Earners and Clerical Workers.
(b) The exemption provided in subdivision (a) does not apply to an
employee if any of the following apply:
(1) The employee is a trainee or employee in an entry-level
position who is learning to become proficient in the theoretical and
practical application of highly specialized information to computer
systems analysis, programming, and software engineering.
(2) The employee is in a computer-related occupation but has not
attained the level of skill and expertise necessary to work
independently and without close supervision.
(3) The employee is engaged in the operation of computers or in
the manufacture, repair, or maintenance of computer hardware and
related equipment.
(4) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by
the use of computers and computer software programs and who is
skilled in computer-aided design software, including CAD/CAM, but who
is not in a computer systems analysis or programming occupation.
(5) The employee is a writer engaged in writing material,
including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other
similar written information, either for print or for onscreen media
or who writes or provides content material intended to be read by
customers, subscribers, or visitors to computer-related media such as
the World Wide Web or CD-Roms.
(6) The employee is engaged in any of the activities set forth in
subdivision (a) for the purpose of creating imagery for effects used
in the motion picture, television, or theatrical industry.
SEC. 8. Section 515.6 of the Labor Code is repealed.
515.6. (a) Section 510 shall not apply to any employee who is a
licensed physician or surgeon, whose primary duties require licensure
pursuant to Chapter 5 (commencing with Section 2000) of Division 2
of the Business and Professions Code, and whose hourly rate of pay is
equal to or greater than fifty-five dollars ($55.00). The Division
of Labor Statistics and Research shall adjust this threshold rate of
pay each October 1, to be effective the following January 1, by an
amount equal to the percentage increase in the California Consumer
Price Index for Urban Wage Earners and Clerical Workers.
(b) The exemption provided in subdivision (a) shall not apply to
an employee employed in a medical internship or resident program or
to a physician employee covered by a valid collective bargaining
agreement pursuant to Section 514.
SEC. 9. Section 517 of the Labor Code is repealed.
517. (a) The Industrial Welfare Commission shall, at a public
hearing to be concluded by July 1, 2000, adopt wage, hours, and
working conditions orders consistent with this chapter without
convening wage boards, which orders shall be final and conclusive for
all purposes. These orders shall include regulations necessary to
provide assurances of fairness regarding the conduct of employee
workweek elections, procedures for employees to petition for and
obtain elections to repeal alternative workweek schedules, procedures
for implementation of those schedules, conditions under which an
adopted alternative workweek schedule can be repealed by the
employer, employee disclosures, designations of work, and processing
of workweek election petitions pursuant to Parts 2 and 4 of this
division and in any wage order of the commission and such other
regulations as may be needed to fulfill the duties of the commission
pursuant to this part.
(b) Prior to July 1, 2000, the Industrial Welfare Commission shall
conduct a review of wages, hours, and working conditions in the ski
industry, commercial fishing industry, and health care industry, and
for stable employees in the horseracing industry. Notwithstanding
subdivision (a) and Sections 510 and 511, and consistent with its
duty to protect the health, safety, and welfare of workers pursuant
to Section 1173, the commission may, based upon this review, convene
a public hearing to adopt or modify regulations at that hearing
pertaining to the industries herein, without convening wage boards.
Any hearing conducted pursuant to this subdivision shall be concluded
not later than July 1, 2000.
(c) Notwithstanding subdivision (a) of Section 515, prior to July
1, 2000, the commission shall conduct a review of wages, hours, and
working conditions of licensed pharmacists. The commission may,
based upon this review, convene a public hearing to adopt or modify
regulations at that hearing pertaining to licensed pharmacists
without convening wage boards. Any hearing conducted pursuant to
this subdivision shall be concluded not later than July 1, 2000.
(d) Notwithstanding sections 1171 and subdivision (a) of Section
515, the Industrial Welfare Commission shall conduct a review of
wages, hours, and working conditions of outside salespersons. The
commission may, based upon this review, convene a public hearing to
adopt or modify regulations at that hearing pertaining to outside
salespersons without convening wage boards. Any hearing conducted
pursuant to this subdivision shall be concluded not later than July
1, 2000.
(e) Nothing in this section is intended to restrict the Industrial
Welfare Commission in its continuing duties pursuant to Section
1173.
(f) No action taken by the Industrial Welfare Commission pursuant
to this section is subject to the requirements of Article 5
(commencing with Section 11346) of Chapter 3.5 of Part 1 of Division
3 of Title 2 of the Government Code.
(g) All wage orders and other regulations issued or adopted
pursuant to this section shall be published in accordance with
Section 1182.1.
SEC. 10. Section 554 of the Labor Code is amended to read:
554. (a) Sections 551 and 552 This
chapter shall not apply to any cases of emergency nor to work
performed in the necessary care of animals, crops, or
agricultural lands, nor to work performed in the protection of
life or property from loss or destruction, nor to any common carrier
engaged in or connected with the movement of trains. 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. Nor shall the provisions of this chapter
apply when 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.
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
this chapter. Nothing contained herein shall affect
contracts in existence on the effective date of this amendment
.
SEC. 11. Section 556 of the Labor Code is amended to read:
556. Sections 551 and 552 This chapter
shall not apply to any employer or employee when the total
hours of employment do not exceed 30 hours in any week or six hours
in any one day thereof.
SEC. 12. Section 1182.1 of the Labor Code is amended to read:
1182.1. Any action taken by the commission pursuant to
Sections 517 and 1182 Section 1182 shall be
published in at least one newspaper in each of the Cities of Los
Angeles, Sacramento, Oakland, San Jose, Fresno, San Diego, and San
Francisco. A summary of the action taken and notice of where the
complete text of the new or amended order may be obtained may be
published in lieu of the complete text when the commission determines
such summary and notice will adequately inform
the public. The statement as to the basis of the order need not be
published.
SEC. 13. Section 1183.5 is added to the Labor Code, to read:
1183.5. (a) Any employer who intends to use a flexible scheduling
technique, as permitted by an order of the Industrial Welfare
Commission, requiring a vote of the affected employees shall make a
full disclosure in writing to each of the affected employees. The
notice shall include the effects of the proposed scheduling,
including the employees' wages, hours, and benefits. The employer
shall not be required to distribute the notice to employees on a
leave of absence for any cause.
(b) Within the health care industry, the disclosure shall include
meetings, duly noticed, for the specific purpose of discussing the
effects of flexible scheduling.
(c) Failure to comply with this section shall make the election
null and void.