BILL ANALYSIS
AB 1421
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Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 1421 (Swanson) - As Amended: April 14, 2009
SUBJECT : Employment: work hours.
SUMMARY : Provides that time spent in transit on a
facility-provided conveyance from a remote employee parking
location to and from the place at which an employee's presence
is required by the employer shall be considered compensable when
the employee is employed at an airport, amusement park, sports
venue or entertainment venue.
FISCAL EFFECT : Unknown
COMMENTS : This bill addresses whether specified time spent by
employees on employer-provided vehicles is compensable (and must
therefore be included in a day's work as paid time).
In general under California law, if an employee is "suffered or
permitted" to work, even though not specifically instructed or
requested to do so, the time spent is compensable as "hours
worked." The Industrial Welfare Commission Wage Orders define
"hours worked" to mean "the time during which an employee is
subject to the control of the employer, and includes all the
time the employee is suffered or permitted to work, whether or
not required to do so."
In 2002 the California Supreme Court provided further guidance
on this question in the case of Morillion v. Royal Packing Co.,
(2002) 22 Cal. 4th 575. The Court stated that employees must be
compensated for the time they are "subject to the control" of
the employer, even if they are not "suffered or permitted to
work" during the period.
The Morillion case also involved the specific question of time
spent by employees on employer-provided transportation. The
Court held that "when an employer requires its employees to meet
at designated places to take its buses to work and prohibits
them from taking their own transportation, these employees are
subject to the control of an employer and their time spent
traveling on the buses is compensable as hours worked."
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However, in a recent case involving Disneyland employees, the
Court of Appeal distinguished Morillion in finding that time
employees spend on an employer-provided shuttle that transports
them from a parking lot to the worksite is not compensable.
Overton v. Walt Disney Company. The Court noted that Disney did
not require employees to park in the parking lot and take the
shuttle, and encouraged employees to travel to work by bus,
train or vanpool, or be dropped off by friends or family.
This bill would provide that time spent in transit on a
facility-provided conveyance from a remote employee parking
location to and from the place at which an employee's presence
is required by the employer shall be considered to be part of a
workday when the employee is employed at an airport, amusement
park, sports venue or entertainment venue.
Recent amendments to the bill specify that the provisions apply
to the specified venues "as these places of employment are
defined by the North American Industry Classification System or
its predecessor." The North American Industry Classification
System (NAICS) is a standard used by federal statistical
agencies in classifying business establishments. NAICS was
developed under the auspices of the Office of Management and
Budget and adopted in 1997 to replace the Standard Industrial
Classification System.
ARGUMENTS IN SUPPORT :
This measure is sponsored by the Service Employees International
Union (SEIU). Writing in support of this bill, SEIU states the
following:
"As airline passengers and theme park customers are acutely
aware, taking a flight or getting into the park involves
many points of delay, from driving long distances, to
finding a place to park their car, to taking some sort of
shuttle to get to the entrance gate
For airport and amusement park workers, this is an integral
part of their daily work. After a long commute to work,
their "employee parking" is in a remote lot; for example,
beyond the airport "economy" lot. They take shuttles to
get to their worksite, often adding another 30 minutes each
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way to their commute time in order for them to get to their
worksite. This adds another hour each day that they are on
employer or employer-provided property, meeting the needs
of the employer, without being compensated for their time.
Most airports and amusement parks are located in areas
where parking immediately adjacent to those sites is not
affordable or available to employees to use on a daily
basis. For airport workers at Los Angeles International
Airport, who typically make about $10.50 per hour, parking
close to their worksite would cost $30.00 per day, more
than one-third of their daily gross earnings of $84. Also,
at many airports like LAX, there is no public
transportation that takes people directly into the airport.
For amusement park workers, it is more a matter of time and
distance. They may receive free parking in a remote
location, but they will still need a 20 minute shuttle ride
to get to the gate where they are able to clock-in for
their work day.
At the end of the day, these workers again have
considerable transit time to their employee-parking before
beginning the long commute home. Typically these workers
lose an hour a day that they could spend with their
children and spouses in time spent on the employer's
property, meeting the needs of the employer?
?Because public transportation is not always a reasonable
option, especially for shift work at airports and amusement
parks, alternatives are not always available for the
workers to get to their worksite. Rather than leave this
matter to future case-by-case litigation, [this bill]
provides that the time they spend on employer-provided
shuttles from employer-provided parking to the worksite is
compensated. The bill will give these workers equity with
other workers, who, because of the nature and assignment of
the work, must assemble at considerable distance from the
actual place of employment."
ARGUMENTS IN OPPOSITION :
This measure is opposed by the Air Transport Association of
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America, Inc. (ATA), who states that enacting such a policy
would be both technically flawed and unduly burdensome on the
airline industry.
ATA states that its member airlines typically provide
transportation for their employees to and from remote parking
lots, incurring both the costs of the transportation as well as
the parking services of their respective employees. They
consider this a benefit to employees who would otherwise be
paying for those services out of pocket.
ATA believes that by mandating that wage rates be paid on top of
the build in costs associated with employee transportation
services, an unnecessarily punitive and fiscally unsustainable
environment would be created that would push some airlines into
opting not to provide remote shuttle services at all. They
contend that this would be particularly onerous at this point in
time when airlines have suffered thirteen bankruptcies within
the last sixteen months.
The California Employment Law Council (CELC) opposes this
measure and argues that it would require compensation of
employees who make a voluntary decision to avail themselves of
optional, free transportation from a remote parking location to
the work site. CELC contends that this would have the perverse
consequence of discouraging employers from providing
transportation from remote locations. Instead, employees would
simply be forced to walk. In addition, CELC argues that
shuttling employees en masse has environmental benefits which
could be compromised if this transportation option is
eliminated. Finally, they contend that many employers other
than the four categories covered by the bill, including
universities, oil refineries, and other, offer shuttle
transportation. CELC questions the policy rationale for
limiting the bill to the covered categories.
REGISTERED SUPPORT / OPPOSITION :
Support
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation, AFL-CIO
California Teamsters Public Affairs Council
Engineers and Scientists of California
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International Longshore and Warehouse Union
Professional and Technical Engineers, Local 21
Service Employees International Union (sponsor)
Strategic Committee of Public Employees, LIUNA
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Opposition
Air Transport Association of America, Inc.
California Attractions and Parks Association
California Chamber of Commerce
California Employment Law Council
California Hospital Association
California Hotel and Lodging Association
California Restaurant Association
California Travel Industry Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091