BILL ANALYSIS
AB 1235
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Date of Hearing: May 13, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 1235 (Hayashi) - As Amended: May 4, 2009
SUBJECT : Meal periods.
SUMMARY : Establishes specific meal period requirements
applicable to licensed security guards, as specified.
Specifically, this bill :
1 Authorizes on-duty meal periods for registered security
officers employed by a private patrol operator if either of
the following apply:
a) The security officer is covered by a valid collective
bargaining agreement that expressly provides for the wages,
hours of work, and working conditions of employees and
expressly provides for meal periods for those employees,
final and binding arbitration of disputes concerning
application of its meal period provisions, premium wage
rates for all overtime hours worked, and a regular rate of
pay of not less than 30 percent more than the state minimum
wage
b) The security officer and his or her employer have
entered into a written on-duty meal period agreement that
complies with all of the following:
i) The security officer is provided the opportunity to
take a compensated, 30-minute on-duty meal period during
each work period of five or more hours in lieu of an
unpaid, 30-minute off-duty meal period during the same
work period.
ii) If the security officer workers 10 or more hours in
one work period, the security officer may take a second,
compensated on-duty meal period under the same conditions
as the first on-duty meal period.
iii) The security officer receives full compensation for
on-duty meal periods.
iv) The security officer voluntarily entered into the
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written on-duty meal period agreement.
v) The written agreement states that the security
officer may revoke the agreement in writing at any time.
2)Specifies that these provisions do not apply to an armored
vehicle guard employed by an armored contract carrier.
3)Specifies that these provisions do not affect the nature or
scope of the law related to meal periods, including the timing
of commencement of a meal period, for employees or employers
not specifically covered by this bill.
EXISTING LAW :
1)Prohibits an employer from employing any person for a work
period of more than five hours without providing the employee
with a meal period of not less than 30 minutes [Labor Code
Section 512 (a)].
2)Provides 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 [Labor Code
Section 512 (a)].
3)Provides that if an employer fails to provide an employee a
meal period or rest period, the employer shall pay the
employee one additional hour of pay at the employee's regular
rate of compensation for each work day that the meal or rest
period is not provided (Labor Code Section 226.7).
FISCAL EFFECT : Unknown
COMMENTS : California law currently regulates meal periods of
employees via statute and regulation. The Industrial Welfare
Commission (IWC) is the state agency generally empowered to
formulate regulations (known as Wage Orders) governing
employment.
The meal period provisions of the IWC's Wage Orders have
remained largely unchanged since 1947. Under those provisions,
non-exempt employees are entitled to 30-minute unpaid meal
periods depending on the number of hours worked. In 1999, the
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Legislature enacted Labor Code Section 512 to codify the
language regarding meal periods that had previously been
contained in most of the IWC wage orders<1>.
Labor Code Section 512 provides in relevant part as follows:
"(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 hour of work if the commission determines that
the order is
consistent with the health and welfare of the affected
employees."
In 2000, the IWC conducted a legislatively mandated review of
the remedy available to employees against an employer that
failed to provide a meal or rest period mandated by applicable
law. At the time, the only remedy available to an employee was
to obtain an injunction against the employer ordering the
---------------------------
<1> Labor Code Section 512 was enacted by Assembly Bill 60,
Chapter # 134, Statutes of 1999, the "Eight-Hour-Day Restoration
and Workplace Flexibility Act of 1999."
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employer to provide the meal and rest periods. In an effort to
provide employers with an incentive to comply with the meal and
rest period provisions, the IWC adopted a proposal which
required employers to pay employees one hour's pay for each day
on which an employee did not receive a meal or rest period.
In 2000, the Legislature adopted Labor Code Section 226.7
codifying the new remedy:
"(a) No employer shall require any employee to work during
any meal
or rest period mandated by an applicable order of the
Industrial Welfare
Commission.
(b) If an employer fails to provide an employee a meal
period or rest period
in accordance with an applicable order of the Industrial
Welfare Commission,
the employer shall pay the employee one additional hour of
pay at the
employee's regular rate of compensation for each work day
that the meal or
rest period is not provided."
THE MAJOR POINTS OF CONTENTION IN RECENT YEARS
The debate in recent years over California's meal period law has
largely focused on the following main issues:
Obligation to "Provide" Meal Periods
As discussed above, Labor Code Section 512 provides that "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."
There has been much dispute over the precise meaning of this
term. Representatives of workers and organized labor have
generally argued that the use of the term "provide" means that
an employer must actually provide the meal period and ensure
that employees are able to actually take it. On the other hand,
the business community has generally argued such an
interpretation is unreasonable and too restrictive and that
therefore the term "provide" means simply that an employer must
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make the meal period available to the employee (but not
necessarily ensure that the employee does in fact take the meal
period).
As discussed below, the courts have been grappling with this
issue as well in recent years, and the issue is currently before
the California Supreme Court.
Time Parameters in Which Meal Periods Must Be Provided
Another controversial issue has involved when an employer must
provide meal periods. As discussed above, Labor Code Section
512 and the IWC wage orders specify that employers cannot allow
employees to work more than five hours without taking a
30-minute meal period.
Some of the litigation in recent years has focused on whether
the meal period must be completed before the end of the fifth
hour of work. Some employers claim that they have been sued
over issues such as whether the meal period extended into the
sixth hour of work, even if only by a few minutes.
On-Duty Meal Periods
The IWC Wage Orders provide: "Unless the employee is relieved of
all duty during a 30 minute meal period, the meal period shall
be considered an 'on-duty' meal period and counted as time
worked. An 'on-duty' meal period shall be permitted only when
the nature of the work prevents an employee from being relieved
of all duty and when by written agreement between the parties an
on-the-job paid meal period is agreed to. The written agreement
shall state that the employee may, in writing, revoke the
agreement at any time."
There has been some dispute about when the "nature of the work"
supports the provision of an on-duty (as opposed to an unpaid
off-duty) meal period.
In 2002, the DLSE issued an opinion letter that stated the
following:
"In determining whether the 'nature of the work' prevents
an employee from being relieved of all duty, the Division
of Labor Standards Enforcement starts with the premise that
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the general requirement for an off-duty meal period is
remedial in nature, and any exceptions to that general
requirement must be narrowly construed, so as to avoid
frustrating the remedial purpose of the regulation. The
Division has always followed an enforcement policy that
this determination must be made on the basis of a
multi-factor objective test. The factors that should be
considered include the type of work, the availability of
other employees to provide relief to an employee during a
meal period, the potential consequences to the employer if
the employee is relieved of all duty, the ability of the
employer to anticipate and mitigate these consequences such
as by scheduling the work in a manner that would allow the
employee to take an off-duty meal break, and whether the
work product or process will be destroyed or damaged by
relieving the employee of all duty. The Division will
conclude that an off-duty meal period must be provided
unless these factors, taken as a whole, decisively point to
the conclusion that the nature of the work makes it
virtually impossible for the employer to provide the
employee with an off-duty meal period. Finally, the burden
rests on the employer for establishing the facts that would
justify an on-duty meal period.
Some in the employer community have argued that this is an
overly-restrictive interpretation that makes it impossible for
an employer to ever be able to lawfully provide an on-duty meal
period. There have been some efforts in recent years
(legislative and otherwise) to expand this interpretation and
the circumstances under which an on-duty meal period may be
provided.
Collective Bargaining Agreement Carve-Outs
Unlike California's overtime laws, the laws governing meal
periods do not provide a blanket collective bargaining agreement
carve-out that allows the parties to an agreement to negotiate
the provision of meal periods by contract.
However, there are a few industry-specific situations in which
such authority has been extended to collective bargaining
situations.
For example, Labor Code Section 512(c) provides that the meal
period requirements of current law do not apply to employees in
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the wholesale baking industry who are covered by a valid
collective bargaining agreement that meets certain specified
criteria. Labor Code Section 512(d) provides a similar
exception to employees in the motion picture industry or
broadcasting industry covered by a valid collective bargaining
agreement.
In addition, in 2003, the IWC amended Wage Order 9 to apply the
meal and rest period provisions of that order to commercial
drivers employed by governmental entities. In addition,
legislation was enacted to specifically authorize the IWC to
provide for a collective bargaining exemption when it extended
the meal and rest period requirements to public sector
commercial drivers.
In recent years, other industries have sought legislative
authority to allow them to negotiate the terms of their
provision of meal periods to their employees via the collective
bargaining process. Most notable among these has been the
transportation industry, which has sponsored several such bills
in recent years. However, each of these bills has been vetoed
by Governor Schwarzenegger. The following portion of the veto
message for AB 2593 (Keene) from 2006 is representative of the
Governor's sentiment:
"This bill seeks to provide relief for unionized
employers and employees in the transportation industry
from California's confusing meal period laws and
regulations. This confusion has resulted in costly
litigation against employers and even termination of
employees that do not comply with the law's burdensome
requirements. While well-intentioned, I cannot
support this bill because it singles out a specific
group of employers and employees for relief from a
problem that plagues almost every industry in this
state."
Additional Hour of Pay Under Labor Code Section 226.7
One of the most controversial points of contention over
California's meal period law has involved whether the remedy
provided in Labor Code Section 226.7 constituted a "penalty" or
"wages." However, as discussed below, this issue largely was
resolved in 2007 by the California Supreme Court.
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THE 2004 PROPOSED DLSE REGULATION
On December 10, 2004, the Division of Labor Standards
Enforcement (DLSE) of the Department of Industrial Relations
(DIR) submitted a proposed emergency regulation to the Office of
Administrative Law (OAL) regarding the provision of meal and
rest periods in the workplace. As a proposed emergency
regulation, there was a five (5) calendar day public comment
period, which ended on December 15, 2004. OAL had until
December 20, 2004 to act on the proposed regulation.
On December 20, 2004, DLSE withdrew the proposed emergency
regulation and resubmitted a revised proposed regulation under
the regular rulemaking process on January 4, 2005.
DLSE proposed to adopt section 13700, Meal and Rest Periods, in
Title 8 of the California Code of Regulations. According to
DLSE's notice of proposed rulemaking:
"DLSE proposes to adopt section 13700 to clarify that the
one hour of
pay an employer must pay an employee for each workday in
which a
meal or rest period is not provided in accordance with the
applicable
Industrial Welfare Commission Order is considered a penalty
as well
as to clarify the time parameters and criteria under which
meal periods
can be provided to employees."
The proposed meal period regulation contained three distinct
provisions:
Obligation to "Provide" Meal Periods
The first provision of the regulation attempted to define when
an employer has met the statutory requirement of "providing" a
meal period. Under the proposed regulation, an employer would
have been deemed to have provided a meal period if the employer:
(1) makes the meal period available and affords the employee an
opportunity to take it; (2) posts the applicable IWC wage order;
and (3) maintains accurate time records.
The first provision also provided that "as a further precaution"
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an employer may inform an employee in writing of the
circumstances under which he or she is entitled to a meal period
and the employee acknowledges in writing that he or she
understands those rights.
Time Parameters in Which Meal Periods Must Be Provided
The second provision of the proposed regulation related to the
time parameters in which meal periods must be provided. Labor
Code Section 512 and the IWC wage orders specify that employers
cannot allow employees to work more than five hours without
taking a 30-minute meal period.
The proposed regulation provided that a meal period may begin
before the end of the sixth hour of the work period.
Furthermore, an employee may request and commence their meal
period after the end of the sixth hour of work, so long as they
were provided the opportunity to take a meal period before the
end of the sixth hour of work.
The proposed regulation contained four examples to illustrate
this provision.
Additional Hour of Pay Under Labor Code Section 226.7
The final provision of the proposed regulation provided that any
amount paid or owed by an employer under Labor Code Section
226.7 is a "penalty" and not a "wage."
FINAL OUTCOME OF THE 2004 PROPOSED REGULATIONS
After questions emerged about the legal authority of DLSE to
promulgate the proposed regulation, this committee conducted an
oversight hearing on the subject on January 26, 2005.
Subsequently, the Legislature passed ACR 43 (J. Horton) which,
among other things, made a legislative declaration that the DLSE
did not have the authority to promulgate the proposed regulation
concerning meal and rest periods, and that the proposal was
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inconsistent with existing law.
On January 13, 2006, DLSE announced that it would not file the
proposed regulation with the OAL by the applicable deadline.
THE MURPHY V. KENNETH COLE DECISION
One of the most controversial points of contention over
California's meal period law has involved whether the remedy
provided in Labor Code Section 226.7 constituted a "penalty" or
"wages."
Following the enactment of Labor Code Section 226.7, employers
defending class action lawsuits for such compensation generally
raised this issue in two contexts, arguing that such payments
constitute "penalties." First, they argued that, as penalties,
employees had no private right of action to recover such
compensation. Second, employers argued that as "penalties," the
payments under Labor Code Section 226.7(b) were limited by the
one-year statute of limitations set forth in Code of Civil
Procedure Section 340(a) rather than the longer statute of
limitations provided for wage claims under the Labor Code.
As discussed above, the proposed 2004 DLSE regulation attempted
to specify that such amounts paid or owed by employers were
"penalties" and not "wages."
However, in 2007, the California Supreme Court resolved the
issue when it held that the "additional hour of pay" due to an
employee is a wage, not a penalty. Murphy v. Kenneth Cole
Productions, Inc., (2007) 40 Cal. 4th 1094. Specifically, the
Court stated:
"We hold that section 226.7's plain language, the
administrative and legislative history, and the
compensatory purpose of the remedy compel the conclusion
that the 'additional hour of pay' is a premium wage, not a
penalty."
RECENT CALIFORNIA APPELLATE CASES REGARDING THE MEANING OF AN
EMPLOYER'S OBLIGATION TO "PROVIDE" MEAL PERIODS
Most recently, much of the case law in this area has focused on
the meaning of an employer's obligation to "provide" meal
periods under Labor Code Section 512 and the IWC Wage Orders.
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In Cicairos v. Summit Logistics, Inc. (2005) 133 Cal. App. 4th
949, the California Court of Appeal for the First District
stated that employers have "an affirmative obligation to ensure
that workers are actually relieved of all duty." Many legal
observers have concluded that this means that employers have an
affirmative obligation to make employees take their meal periods
and that employees cannot refrain or refuse to take their meal
periods. However, others have argued that the language in
Cicairos does not go that far.
For example, in Brinker Restaurant Corporation v. Superior Court
of San Diego (Hohnbaum) (2008) 165 Cal. App. 4th 25, the
California Court of Appeal for the Fourth District interpreted
the applicable law to mean that employers must 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.
In October 2008, the California Court of Appeal for the Second
District reached a similar holding in Brinkley v. Public Storage
(2008) 167 Cal. App. 4th 1278. In that case, the court
similarly held that employers only have to make meal periods
available, essentially equating the "provide" language in the
law with language covering rest periods, which only require
employers to "authorize and permit" employee to take them.
Both the Brinker and the Brinkley courts attempted to
distinguish and provide a more narrow reading to the First
District Court of Appeal's decision in Cicairos.
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). Similarly, on January 13, 2009, the California
Supreme Court granted review in Brinkley v. Public Storage. The
Brinker and Brinkley decisions are now companion cases under
review by the California Supreme Court.
The California Supreme Court's grant of review supersedes the
Brinker and Brinkley decisions, and they may not be cited or
relied on by a court or a party in any other action.
(California Rules of Court 8.1105(e) and 8.1115(a)). In its
review of these cases, the California Supreme Court is expected
to confirm whether the law imposes upon employers an affirmative
duty to ensure that employees actually take meal periods or
rather, that the employer must merely make that meal period
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available to the employee and afford the employee the
opportunity to take the meal period.
MOST RECENT EFFORT AT COMPROMISE: AB 1711 (LEVINE) OF 2007-08
Last year, the California Labor Federation, AFL-CIO sponsored
legislation that sought to address several of the more
controversial issues involving meal periods in an effort to
provide more employer flexibility. Specifically, Assembly Bill
1711 (Levine) sought to make a number of changes to the current
law surrounding meal periods.
First, the bill would have specified that meal periods may not
commence before the third hour of work and must be completed
before the sixth hour of work. In essence, this would have
provided employers a three-hour window during which to provide
the meal period.
Second, the bill would have permitted on-duty meal periods when
mutually agreed to in writing between employer and the employee,
and when the nature of the work prevents the employee from being
relieved of work due to one of the following conditions:
1) The employee is the only employee at the worksite
and the essential functions of the job cannot be
performed unless the employee remains on-duty.
2) State and federal law impose a requirement that the
employee not be relieved of all duties.
Third, the bill would have provided an exemption for all
employees in all industries covered by a valid collective
bargaining agreement that met specified criteria.
However, the bill was opposed by some members of the employer
community, largely because they expressed concern that it did
not go far enough to address the issues of all employers and did
not deal with the issues surrounding the nature of the meaning
of an employer's obligation to "provide" meal periods. The
sponsor and the author decided not to move the bill.
RECENT BUDGET DISCUSSIONS
Over the last few years, Governor Schwarzenegger and Members of
the Senate and Assembly Republican Caucuses have proposed
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amendments to California's meal period laws as part of the
larger budget discussion. Most recently, those proposals have
been included in the "economic stimulus" proposals set forth by
both the Governor and the Republican Caucuses.
For example, one of the most recent proposals set forth by the
Governor stated that an employer must "make available to the
employee an opportunity to take" a meal period. In addition,
the Governor's proposal would have authorized the Department of
Industrial Relations (DIR) to adopt regulations defining the
circumstances in which the nature of the work prevents an
employee from being relieved of all duty (and therefore subject
to an on-duty meal period).
PRIOR AND RELATED LEGISLATION REGARDING SECURITY OFFICERS
AB 529 (Cedillo) from last session established various
exemptions from the meal period requirements of current law.
That measure was amended on the Assembly floor to contain
specific language to allow for on-duty meal periods for licensed
security officers in certain circumstances.
However, on August 25, 2008, the Executive Council of the
California Labor Federation, AFL-CIO voted to oppose SB 529. A
floor alert issued by the California Labor Federation stated the
following:
"SB 529 originally provided meal period flexibility for
parties to a collective bargaining agreement. It was
amended on August 22, 2008 to apply to all registered
security officers, union and non-union, making them
eligible for on-duty meal periods. It is this amendment
that the California Labor Federation must oppose.
Non-union workers are routinely pressured into signing
agreements to waive their rights on the job. This bill
would put every security officer in a position to be
pressured to sign away their right to an off-duty meal
period.
The right to a meal period, a time to walk away from one's
desk or post, to check in on one's family, or grab a bite
to eat, is a fundamental right in California. It is
essential to worker health and safety, and to maintaining
basic working conditions for all California workers."
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SB 529 was subsequently placed on the Assembly inactive file at
the request of the author.
SB 665 (Cedillo) from this year contains language related to
meal periods for licensed security officers identical to the
language that was contained in SB 529. SB 665 is currently
pending before the Senate Committee on Labor and Industrial
Relations. The bill was scheduled to be heard on April 29,
2009, but the author decided not to move the bill.
ARGUMENTS IN SUPPORT :
This bill is supported by the California Association of Licensed
Security Agencies, Guards and Associates (CALSAGA), who states
that it is the only trade association in California representing
the private security industry with nearly 300 member companies
employing 60,000 security officers in the state.
CALSAGA states that the industry continues to be susceptible to
class action lawsuits over alleged meal break violations. They
argue that these lawsuits don't solve anything and hurt both
employees and employers alike.
They contend that, due to the nature of contract private
security work, the requirement for an off-duty meal period is
not practical from a public safety, homeland security or
administrative perspective. From a public safety perspective,
allowing or even requiring a security officer to leave his or
her post unattended is essentially an advertisement to criminals
that a site is unprotected. Administratively, because security
officers are dispersed throughout many sites, it makes it
virtually impossible to designate employees from a company to
drive from site to site to relieve officers of duty to ensure
mandatory meal breaks are taken. Furthermore, CALSAGA contends
that nearly all employees prefer to perform eight hours of work
for eight hours of pay with an on-duty meal period, as opposed
to having to work for eight-and-a-half hours to get eight hours
of pay.
CALSAGA concludes that security officers are increasingly being
called upon to protect some of California's most critical
infrastructure sites, from energy facilities to oil refineries.
In many cases, their mere presence acts as a crime deterrent.
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The Service Employees International Union (SEIU) supports this
bill. One SEIU representative, writing in support of the bill,
states the following:
"Security officers we represent and security officers we
are organizing want this change in the law. More than a
break in the middle of the day, they want the opportunity
to go home early. They do not need the mid-day rest or a
relief from duty. They and their employers believe they can
remain attentive to their work while eating. They want to
go home early, to be with their families, to get more rest
off the job, especially if private security is, as is often
the case, their second job.
The current state of the law does not allow them this
opportunity. Since statutes were enacted at the beginning
of this decade (with California Labor Federation support)
creating a statutory right to a mid-day meal period,
collective bargaining agreements and private arrangements
to work through the lunch hour have been illegal. The
courts have made the mid-day meal break all but impossible
to overcome. Workers have won millions of dollars in back
wages for lost meal periods, even when their collective
bargaining agreements said otherwise. As recently as last
year a number of unions, under the sponsorship of the
California Labor Federation, were engaged with their
employers in reinstating the right to collectively bargain
meal breaks.
These efforts were unsuccessful because the state
administration and many industry groups wanted a "global"
solution that extended beyond collective bargaining. While
many in organized labor wanted the law to return to its
collectively bargainable status, none were willing to
accept a global compromise on workers not represented by
unions, and the talks fell apart. In fact, there has never
been a 'global' solution to the meal break issue, and there
never can be. Meal and rest, as collective bargaining
agreements and IWC wage orders show, have legitimate
peculiarities in every industry and have often been the
subject of labor- management agreement.
In the course of those discussions last year, it was clear
that there were some unions and their employers who could
reach agreements on this issue, based on their history and
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the peculiarities of their industry. SEIU discovered it had
a common interest with the contract security industry on
behalf of security officers, both represented and
unrepresented.
The security industry wanted to return to the past practice
of paying workers for an eight hour shift and letting them
eat on the job. The industry had lost a lot of money in
lawsuits and wanted to avoid future liability. SEIU wanted
as much cooperation as it could legitimately obtain from
the industry, because the National Labor Relations Act
permits only card-check union recognition where the same
union represents other workers on the job site. SEIU's
success in janitor organizing in urban areas means we are
already everywhere private contract security would be.
We cannot do the organizing except by card check--and we
cannot be rapidly successful to gain the industry density
to be powerful in negotiating with employers without
employer neutrality to card check. I am also convinced, by
talking to hundreds of non-union workers that they do not
need to be "coerced" into eating on the job and going home
early. This is was what they want, even more than their
employers. Only after this experience, hearing from the
workers, did SEIU conclude that extending the statutory
exemption to unrepresented workers would not be harmful to
them, and in fact, would aid SEIU in enabling more of these
security officers to obtain union representation sooner."
ARGUMENTS IN OPPOSITION :
Opponents state that under existing law, an employee who works
more than five hours per day is entitled to a thirty minute off
duty lunch break. If the employee works more than ten hours per
day, he or she is entitled to a second thirty minute off duty
lunch break. Functionally, "off duty" means free from the
employer's control. They argue that workers' rights to off duty
lunch breaks serve not just to ensure that they have a chance to
eat and meet their personal needs, but also to ensure that they
are sufficiently rested, both physically and mentally, for
health and safety reasons.
Existing law provides for an on duty rather than an off duty
meal break only in those situations "where the nature of the
work prevents the worker from being relieved of all duty." This
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has been construed very narrowly because of the important health
and safety concerns cited above. It applies to emergency
situations and is not construed to cover instances of economic
necessity.
Opponents contend that this bill would virtually eliminate these
rights for security guards by allowing for an on-duty meal break
simply because the worker happens to be in that job
classification. It doesn't matter whether the employee could be
relieved of duty - it just matters that he or she is a security
guard.
Opponents contend that this bill will mean that those workers
without the protection of a union will be intimidated to give up
this important right. They argue that the proponents cannot
argue that this type of intimidation does not occur in the
workplace.
In addition, opponents argue that the fact that there have been
numerous lawsuits in this industry for missed meal periods
indicates that security guards in fact do want off-duty meal
periods as required under current law.
Finally, opponents state the following:
"This bill is the result of a sweetheart deal between one
union and one security guard company, negotiated without
consultation with any of the other unions which represent a
large number of workers in that industry. We do not
believe that it is appropriate for certain unions to
arrogate unto themselves the right to speak for all of us
and to change the law in ways that harm workers or lower
critical protective standards for their own purposes."
In addition, the California Labor Federation, AFL-CIO writes the
following in opposition to this measure:
"In California, all workers are entitled to a thirty-minute
meal period. During that lunch break, workers must be
relieved of all duty. For example, a receptionist cannot
be required to sit at her desk and answer phones while
eating lunch. Under most circumstances, workers must be
permitted to leave work premises during the meal period.
There are many important policy reasons to relieve workers
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from duty during the meal break. Breaks have health and
safety benefits for all workers as they reduce accidents
caused by an employee being hungry, distracted, or
fatigued. Breaks mitigate repetitive stress injuries.
Regular breaks have taken on a greater importance as many
workers routinely do overtime work, resulting in shifts of
up to twelve hours a day.
Beyond health and safety reasons, the meal period was
established as a basic labor standard in 1947, to ensure
that workers had a brief time during the day when they were
free from employer control and could rest, eat, and recover
for the rest of the work day. Today, many workers use
their lunch break to attend to family needs, pick up their
kids, pay bills, or do personal errands. Whatever they
choose to do, this time is their own.
On-duty meal periods are permitted under current law but
only when an off-duty meal break is virtually impossible
due to the nature of the work. Under existing law, workers
cannot be persuaded by an employer to agree to on-duty
breaks simply for the employer's convenience.
[This bill] would change the law by permitting all licensed
security guards to do on-duty breaks. While they would
still have to agree to on-duty lunches, we know that in
practice such agreements typically consist of a signature
in an employee handbook on the first day of hire. That
hardly constitutes a truly voluntary waiver of one's right
to the off-duty lunch enjoyed by all other workers. We also
know that workers routinely face employer pressure and
intimidation to waive core labor rights and that
unrepresented, at-will workers have little ability to
withstand employer coercion.
We have no doubt that some workers would be willing to
agree to do on-duty meal breaks. But we also know there are
workers who depend on the availability of an off-duty break
to recuperate from hard work, rest their feet, or run home
to check on their kids. Security guards work in diverse
locations, including banks, hospitals, and parking lots.
They must be alert and on guard for their own safety and
for the safety of the public they protect. They deserve the
same break all others workers get to relax and clear their
heads in the midst of a stressful and sometimes dangerous
AB 1235
Page S
job.
We support collective bargaining language that allows union
members to negotiate terms that best meet the needs of the
membership because any such agreement will have to be
ratified by the workers themselves. This bill, however,
also applies to non-union workers who will not have the
opportunity to vote on whether they want to give up the
right to an off-duty lunch."
Finally, a coalition of employer groups opposes this measure,
arguing that currently all industries, business, and occupations
are subject to a restrictive statute which has resulted in
costly litigation. They believe that a comprehensive solution
must be reached in order to provide all businesses regardless of
size, type or union status with appropriate clarity and guidance
for the compliance and enforcement of meal period laws.
REGISTERED SUPPORT / OPPOSITION :
Support
AlliedBarton Security Services
Boyd & Associates
California Association of Licensed Security Agencies, Guards and
Associates
California Peace Officers' Association
California Police Chiefs Association
Contact Security, Inc.
Custom Protective Services
D.N. Security Services, Inc.
Executive Assurance
Garda Private Security, Inc.
Genesis Background Screening Services
Kern Security Patrol
Securitas Security Services USA, Inc.
Security Officers United in Los Angeles, SEIU Local 2006
Service Employees International Union Local 1877
Service Employees International Union Local 2007
Service Employees International Union Local 24/7
Service Employees International Union, California State Council
(sponsor)
Western Area Security Services
Opposition
AB 1235
Page T
Associated Builders and Contractors of California
California Cleaners Association
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Construction & Industrial Materials Association
California Employment Law Council
California Grocers Association
California Hospital Association
California Independent Oil Marketers Association
California Labor Federation, AFL-CIO
California Lodging Industry Association
California Manufacturers & Technology Association
California Nurses Association/National Nurses Organizing
Committee
California Retailers Association
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California
International Longshore and Warehouse Union
Lumber Association of California and Nevada
National Federation of Independent Business
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United Food & Commercial Workers, Western States Council
Western Growers
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091