BILL ANALYSIS
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THIRD READING
Bill No: AB 569
Author: Emmerson (R)
Amended: 8/20/10 in Senate
Vote: 21
2009 VOTES NOT RELEVANT
SENATE LABOR & INDUSTRIAL RELATIONS COMM : 5-0, 6/23/10
AYES: DeSaulnier, Ducheny, Hollingsworth, Leno, Yee
NO VOTE RECORDED: Wyland
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : Not relevant
SUBJECT : Meal periods: exemptions
SOURCE : United Parcel Service
DIGEST : This bill exempts employees in certain
industries from meal period laws if the employees are
covered by a collective bargaining agreement.
Senate Floor Amendments of 8/20/10 delete the reference to
the transportation industry" in reference to commercial
drivers.
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
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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.
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; and
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 in the following industries:
1.Construction;
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2.Commercial drivers;
3.Security officers employed by private patrol operators;
and
4.Gas companies, electric companies, and publicly owned
utilities
Those employees are only exempted if they are covered by a
collective bargaining agreement, and that agreement:
1.Expressly provides for the wages, hours of work, and
working conditions of employees, and expressly provides
for meal periods for those employees,
2.Provides final and binding arbitration of disputes
concerning application of its meal period provisions, and
3.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.
Background
In 1999, AB 60 (Knox) became law, which 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) 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 or her employee is paid
the minimum wage.
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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.
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 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
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obligation to ensure that such meal periods are actually
taken." (Emphasis added.)
This bill excludes commercial drivers and construction
employees covered by a collective bargaining agreement from
Labor Code 512, which would side-step the question of the
provision of a meal period for other employees in these
industries.
Prior Legislation
AB 2593 (Keene) 2005-06 Session, would have exempted
commercial drivers from meal period provisions. This bill
was vetoed in 2005. The Governor stated that he vetoed AB
2593 because it singled out a specific industry, and the he
felt it could imperil ongoing litigation. This bill passed
the Senate Floor on 8/30/06 (38-0).
AB 1734 (Koretz), Chapter 414, Statutes of 2005, 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. This
bill passed the Senate Floor on 9/7/05 (36-3).
AB 3018 (Koretz) of 2003-04 Session, 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. This bill passed the Senate Floor on 8/26/04
(30-2).
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/24/10)
United Parcel Service (source)
AFA Chapter
Associated General Contractors
CAL SMACNA
California Association of Licensed Security Agencies,
Guards and
Associates
California Chapter of the National Electrical Contractors
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Association
California Fence Contractors Association
California Legislative Conference of the Plumbing, Heating
and Piping Industry CLC
California-Nevada Chapter of Operating Engineers
Construction Employers' Association
Engineering & Utility Contractors Association
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
MV Transportation, Inc., Fairfield, CA
National Electrical Contractors Association
Southern California Contractors Association
OPPOSITION : (Verified 8/24/10)
Associated Builders and Contractors of California (Unless
Amended)
California Employment Lawyers Association
California Hospital Association (Unless Amended)
California Manufacturers and Technology Association (Unless
Amended)
California Nurses Association/National Nurses Organizing
Committee
Department of Industrial Relations
National Federation of Independent Business (Unless
Amended)
National Gypsum (Unless Amended)
National Right to Work Committee
USS-POSCO Industries (Unless Amended)
ARGUMENTS IN SUPPORT : The supporters state 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.
Associated General Contractors (AGC) argues that the
various interpretations of meal period law by enforcement
officials have led to significant confusion and litigation.
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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 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 specific industries 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 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 other meal period legislation that
applied to all employers.
PQ:nl 8/24/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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