BILL ANALYSIS
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THIRD READING
Bill No: AB 569
Author: Emmerson (R)
Amended: 7/1/09 in Senate
Vote: 21
SENATE LABOR & INDUS. RELATIONS COMMITTEE : 6-0, 6/25/09
AYES: DeSaulnier, Wyland, Ducheny, Hollingsworth, Leno,
Yee
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 72-2, 5/21/09 - See last page for vote
SUBJECT : Meal periods: exemptions
SOURCE : United Parcel Service
DIGEST : This bill exempts employees in a construction
occupation and commercial drivers that are covered by a
collective bargaining agreement from meal period laws, as
specified.
ANALYSIS :
Existing law requires, with certain exemptions, that all
employees receive a meal break of 30 minutes before the
start of the 5th hour of work, unless the work period is no
more than six hours and both the employer and the employee
choose to waive the meal period by mutual consent.
CONTINUED
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Meal period exemptions apply to:
1. Employees in the wholesale baking industry, when covered
by a collective bargaining agreement.
2. Employees in the motion picture industry, when covered
by a collective bargaining agreement.
3. Public transit bus drivers covered by a collective
bargaining agreement.
Existing law requires that if the work period is more than
ten hours, a second meal period of 30 minutes must also be
granted to an employee. This second meal period can be
waived by the mutual consent of the employer and employee,
but only if the work period is no more than 12 hours, and
the first meal period was not waived.
Existing law states that if an employer fails to provide a
meal break, the employer must give the employee one hour of
additional premium wages at the employee's regular rate of
compensation for each workday that a meal period was not
provided. If unpaid, existing law requires that this wage
accrues for 30 days and the statute of limitations on its
collection runs for three years.
Existing wage orders state that employees in the
transportation and construction industries must be relieved
of all duty during the meal break. Otherwise, the meal
break is considered "on duty" and counted as work. An "on
duty" meal break may be allowed only when the nature of the
work prevents an employee of being relieved of all work
duties, and when a written agreement between the employer
and employee for an on-the-job paid meal break period is
agreed to. The employee may revoke the agreement in
writing at any time.
This bill exempts employees employed in the construction
industry and commercial drivers in the transportation
industry if those employees are covered by a collective
bargaining agreement, and that agreement:
A. Expressly provides for the wages, hours of work,
and working conditions of employees, and expressly
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provides for meal periods for those employees.
B. Provides final and binding arbitration of
disputes concerning application of its meal period
provisions.
C. Provides a premium wage rates for all overtime
hours worked, and a regular hourly rate of pay of
not less than 30 percent more than the state
minimum wage rate.
This bill also declares that these meal period exemptions
do not affect the nature or scope of existing law related
to meal periods for employees or employers not specifically
covered by the exemptions.
Comments
AB 60 (Knox), Chapter 134, Statutes of 1999, included the
codification of the Industrial Welfare Commission (IWC)
Wage Order requirement that all employers provide a meal
period for their employees. Prior to AB 60, meal periods
had been required by the regulatory IWC Wage Orders, but,
with the exception of a few industries, were not
statutorily required. The following year, AB 2509
(Steinberg), Chapter 876, Statutes of 2000, created the
monetary punishment for employers who do not provide a meal
period for their employees.
In 2002, the Department of Labor Standards Enforcement
(DLSE) enforcement manual interpreted the requirement of
the employer to provide a meal period as a responsibility
that falls directly on the employer to ensure that the
employee takes a meal period, much as it is the employer's
responsibility to ensure that his/her employee is paid the
minimum wage.
Two years later, the DLSE sought to create emergency
regulations to define the requirement to provide a meal
period to "supply" or "make available". These regulations
were withdrawn in 2005, and the DLSE decided to not move
forward with further meal period regulations in 2006. This
left the 2002 DLSE interpretation intact.
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During this period, Wage Order 16, which applied to
construction employees, contained a collective bargaining
exemption for construction employees. However, in 2006, a
California Court of Appeal held in Bearden v. U.S. Borax,
Inc. that this collective bargaining exemption contained in
Wage Order 16 conflicted with the Labor Code and was
therefore invalid.
On July 22, 2008, the California Court of Appeal in Brinker
Restaurant Corporation v. Superior Court of San Diego
County (Hohnbaum) (2008) interpreted existing law and the
IWC Wage Order meal period provisions as a requirement for
employers to provide meal periods by making them available,
but need not ensure that they are taken. Employers,
however, cannot impede, discourage or dissuade employees
from taking meal periods.
However, On October 22, 2008, the California Supreme Court
granted review of the California Court of Appeal decision
in Brinker Restaurant Corp. v. Superior Court of San Diego
County (Hohnbaum). The Supreme Court's grant of review
supersedes the Court of Appeal's decision. The Supreme
Court is expected to confirm, among other things, whether
the meal period laws and regulations impose upon employers
a responsibility to ensure that employees actually take the
meal period, or rather that the employer's obligations is
simply to make that meal period available to the employee
and afford the employee the opportunity to take the meal
period.
Until the Supreme Court can clarify the meaning of Labor
Code Section 512, the new position of the DLSE is that
"[t]aken together, the language of the statute and the
regulation, and the cases interpreting them demonstrates
compelling support for the position that employers must
provide meal periods to employees but do not have an
additional obligation to ensure that such meal periods are
actually taken."
Related/Prior legislation
SB 287 (Calderon) would grant employers greater flexibility
to provide meal periods, expand the number of qualifying
circumstances for creating on-duty meal period agreements,
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and exempt collective bargaining agreements from meal
period law. The hearing of this bill was cancelled at the
author's request.
SB 380 (Dutton) would grant employers greater flexibility
to provide meal periods, expand the number of qualifying
circumstances for creating on-duty meal period agreements,
exempt collective bargaining agreements from meal period
law, and state these amendments are declarative of existing
law, and would not be considered amendatory of existing
law. The hearing of this bill was cancelled at the
author's request.
SB 665 (Cedillo) would allow an employer of a registered
security officer to provide on-duty meal periods if the
officer is covered by a valid collective bargaining
agreement containing specified terms or has a written
on-duty meal period agreement with his or her employer
containing specified terms. The hearing of this bill was
cancelled at the author's request.
SB 807 (Benoit) would grant employers greater flexibility
to provide meal periods, and also reduce the punishment for
failing to provide a meal period. Testimony for this bill
was taken, and a further hearing will be set later.
AB 2593 (Keene) of 2005, would have exempted commercial
drivers from meal period provisions. AB 2593 was vetoed by
the Governor in 2005. In his veto message, the Governor
said that he vetoed AB 2593 because it singled out a
specific industry, and the Governor felt it could imperil
ongoing litigation.
AB 1734 (Koretz), Statutes of 2005, Chapter 414, exempted
certain employees in the motion picture industry from meal
period requirements if they were covered by a valid
collective bargaining agreement with specified terms.
AB 3018 (Koretz) of 2003, which contained language
identical to AB 2593 of 2005, allowed commercial drivers to
negotiate meal period requirements if covered by a
collective bargaining agreement. It was vetoed by the
Governor.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/14/09)
United Parcel Service (source)
Associated General Contractors
California Legislative Conference of the Plumbing, Heating
and
Piping Industry
California-Nevada Conference of Operating Engineers, SEIU
Construction Employers Association
Engineering Contractors' Association
National Electrical Contractors Association, California
chapters
Service Employees International Union
OPPOSITION : (Verified 7/14/09)
Associated Builders and Contractors of California
California Cleaners Association
California Construction & Industrial Materials Association
California Employment Law Council
California Hospital Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Nurses Association
California Retailers Association
Department of Industrial Relations
Lumber Association of California and Nevada
National Federation of Independent Business
Western Growers
ARGUMENTS IN SUPPORT : The sponsor of this bill, the
United Parcel Service (UPS), argues that this bill will
provide an immediate necessary flexibility for collectively
bargained commercial drivers and employees of the
construction industry. UPS notes that, while they continue
to support broader approaches to meal period flexibility,
UPS argues that it cannot continue to discipline their
collectively bargained drivers when flexible solution
agreed to by management and employers is available.
AGC argues that the various interpretations of meal period
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law by enforcement officials have led to significant
confusion and litigation. AGC reports that in order to
avoid liability, contractors are forced to police their
workforce to their meal periods without interruption.
Although many construction companies operate under
collective bargaining agreements, they have lost their
ability to bargain on the meal period issue due to Bearden
v. Borax . Finally, AGC notes that, in this economic
climate, providing flexibility for collectively bargained
contractors will supply key relief from litigation.
ARGUMENTS IN OPPOSITION : The California Nurses
Association (CNA) argues that by carving out two groups of
workers under collective bargaining agreements will
compromise basic labor law that protects the ability of all
workers to have a lunch break. CNA believes that carving
out commercial drivers and employees of the construction
industry will encourage other employers to push for similar
exemptions, which employers will use as a take-away during
negotiation. CNA notes that it is difficult for registered
nurses (RNs) to receive meal breaks due to staffing issues
and nurse to patient ratio laws. CNA believes that the
best way for RNs to take their meal breaks is to be
backed-up by existing law, and therefore opposes any
collective bargaining carve out that could create a
precedent for the healthcare industry.
Other opponents, such as the California Manufacturing and
Technology Association, the California Hospital
Association, the Associated Builders and Contractors of
California, and other employer organizations, have taken an
'oppose unless amended' position, arguing that this bill
should be amended to provide meal period flexibility to all
employers. These opponents feel that current meal period
law is too rigid and inflexible, and this bill should
follow the example of SB 287 (Calderon). The Department of
Industrial Relations also opposes this bill due to its
"piecemeal approach", and believes that a global solution
that provides meal period flexibility for all employers is
necessary.
ASSEMBLY FLOOR :
AYES: Adams, Arambula, Beall, Bill Berryhill, Tom
Berryhill, Blakeslee, Block, Blumenfield, Brownley,
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Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, Duvall,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Furutani, Gaines, Galgiani, Gilmore, Hagman, Hall,
Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Lieu, Logue, Bonnie Lowenthal, Ma,
Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, John A. Perez, V. Manuel Perez, Portantino,
Price, Ruskin, Salas, Silva, Skinner, Smyth, Solorio,
Audra Strickland, Swanson, Torlakson, Torres, Torrico,
Tran, Villines, Yamada, Bass
NOES: Anderson, Fuller
NO VOTE RECORDED: Ammiano, DeVore, Garrick, Knight,
Krekorian, Saldana
AGB:do 7/14/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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