BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: April 29, 2009 2009-2010 Regular
Session
Consultant: Rodger Dillon Fiscal:Yes
Urgency: No
Bill No: SB 187
Author: Benoit
Version: As introduced February 18, 2009
SUBJECT
Employment: working hours.
KEY ISSUE
Should an alternative to the existing workplace election
procedure be established that would: (a) allow an employee to
request to work up to 10 hours per day within a 40-hour
workweek, and (b) relieve the employer of the obligation to pay
overtime compensation under such a schedule?
PURPOSE
To allow for greater flexibility in the scheduling of individual
worker's hours and to delete a requirement for overtime
compensation.
ANALYSIS
Existing law:
1.Provides that eight hours of labor constitutes a day's work;
2.Provides for the payment of overtime compensation as follows:
a) 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;
b) 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;
c) Any work in excess of eight hours on any seventh day of
a work week shall be compensated at the rate of no less
than twice the regular rate of pay of an employee.
3.Provides that the standard requirements for overtime
compensation do not apply to certain exempt executive,
administrative, and professional employees;
4.Provides that the standard requirements for overtime
compensation do not apply where:
a) An employee submits a written request to make up work
time that would be lost as a result of a personal
obligation of the employee if the make-up work time is
performed in the same workweek in which the work time was
lost. Such make-up work time may not be counted towards
computing the total number of hours worked in a day;
b) An alternative workweek schedule has been adopted
pursuant to Labor Code Section 511. Under this procedure,
an employer may propose an alternative workweek for no
longer that 10 hours per day within a 40-hour workweek and,
if it is approved, the employer is not required to pay
overtime compensation for such a work schedule. The
employer specifies the workers in a work unit and conducts
a secret ballot election. If two-thirds of the workers
approve, the new workweek is deemed adopted. The employer
is required to make a reasonable effort to find a work
schedule not to exceed eight hours for a worker unable to
work the alternative schedule;
c) Employees have adopted an alternative workweek schedule
pursuant to a collective bargaining agreement;
d) An alternative workweek schedule is inapplicable because
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 2
Senate Committee on Labor and Industrial Relations
the work relates to cases of emergency or the protection of
life or property, to the movement of trains, or to certain
hardship exceptions as specified by the Chief of the
Division of Labor Standards Enforcement.
This Bill:
1.Sets forth certain Legislative Declarations and Legislative
Intent relating to the need for additional work-hour
flexibility for individual workers and for worker protections
connected with this flexibility;
2.Provides that an individual nonexempt employee may work up to
10 hours per workday without any obligation on the part of the
employer to pay an overtime rate of compensation - except as
provided in number 3, below - if the employee requests this
schedule in writing and the employer approves the request.
This shall be referred to as an overtime exemption for an
employee-selected flexible work schedule;
3.Specifies that if an employee-selected flexible work schedule
is adopted, the employer shall pay overtime at one and
one-half times the employee's regular rate of pay for all
hours worked over 40 hours in a workweek or over 10 hours in a
workday, whichever is the greater number of hours. All work
performed in excess of 12 hours per workday and in excess of
eight hours on a fifth, sixth, or seventh day in the workweek
shall be paid at double the employee's regular rate of pay;
4.Provides that an employer may inform its employees that it is
willing to consider an employee request to work an
employee-selected flexible work schedule, but shall not induce
a request by promising an employment benefit or threatening an
employment detriment;
5.Specifies that an employee or employer may discontinue the
employee-selected flexible work schedule at any time by giving
written notice to the other party. The request will be
effective the first day of the next pay period or the fifth
day after notice is given if there are fewer than five days
before the start of the next pay period, unless otherwise
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 3
Senate Committee on Labor and Industrial Relations
agreed to by the employer and the employee;
6.Provides that this section does not apply to any employee
covered by a valid collective bargaining agreement or employed
by the state, a city, county, city and county, district,
municipality, or other public, quasi-public, or municipal
corporation, or any political subdivision of this state;
7.Requires that this section shall be liberally construed to
accomplish its purposes;
8.Specifies that the Division of Labor Standards Enforcement
shall enforce this section and shall adopt or revise
regulations in a manner necessary to conform and implement
this section;
9.Requires that this section shall prevail over any inconsistent
provisions in any wage order of the Industrial Welfare
Commission;
10. Provides that the provisions of this act are severable.
COMMENTS
1. Need for this bill?
Here in the State Capitol there is often discussion of the
issue of whether there ought to be more flexibility in the
scheduling of workweeks. In most of these sessions, employers
make the argument on behalf of their businesses and their
employees. Much less frequently, employees participate to
articulate their reasons for wanting more flexible working
hours. It is not clear to Committee staff what proportion of
the workers who desire more flexible working hours also wish
to retain their eligibility for overtime compensation in
accordance with existing law. Certainly, some employers see
an advantage to be gained in reduced overhead costs (through
energy savings, etc) by adopting an alternative workweek, and
some may wish to accommodate their employees' wishes to reduce
their commuting hours. This bill provides for a process under
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 4
Senate Committee on Labor and Industrial Relations
which individual employees may make a request for an
alternative workweek schedule, giving up overtime for work in
excess of 8 hours. It is unknown how widespread is the need
for such individual accommodation.
2. Proponent Arguments :
The author and supporters of this bill believe California law
should permit flexible work week schedules for individual
workers desiring to find a balance between work and personal
lives. They argue that current law is inflexible. They state
that the process for establishing an alternative work week is
too complex and that it subjects employers to too much
liability with respect to the secret ballot election process.
Supporters say that today many employers cannot afford to pay
overtime and need to choose between allowing alternative
schedules with overtime pay, and keeping more employees on the
payroll. Supporters note that variances in schedules or the
use of more than one schedule - unless it was offered through
the complex secret ballot process - is prohibited without
repeating the voting process. Working a compressed four-day
workweek provides for up to 50 more days off for the average
full-time employee. This allows workers to spend more time
with their families or to take care of other personal matters.
A compressed workweek schedule could also help to ease
traffic congestion, and allow workers to spend less time
commuting. Supporters note this bill provides for important
employee protections in allowing for this alternative
scheduling.
3. Opponent Arguments :
Opponents of this bill argue that there is no need for it.
They note that current law was carefully crafted to ensure
adequate flexibility for employers and employees while
protecting the basic right to overtime. Employers who want to
institute an alternative workweek schedule can either
negotiate one through collective bargaining or conduct an
employee election. Employees who need an occasional schedule
change can request make up time, allowing them to leave early
one day and work late the next without accruing overtime.
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 5
Senate Committee on Labor and Industrial Relations
Opponents emphasize that the alternative workweek election
process is largely in the hands of the employer: (1) the
employer has sole discretion over whether to conduct an
election; (2) the employer decides which worksite, department,
or division is eligible to participate in the election,
regardless of its size; (3) the employer decides what
alternate schedules to make available and can offer just one
or a menu of options. SB187 would provide for no criteria for
schedules to be approved or denied and nothing to prevent
employers from awarding desirable schedules based purely on
favoritism. There would be no protection for workers who feel
pressured to waive daily overtime because the workplace
election would be replaced by a one-on-one discussion with the
boss. The current system strikes the right balance, say
opponents to the bill.
4. Prior Legislation :
AB2127 (Benoit) of 2008, AB510 (Benoit) of 2007, AB2217
(Villines) of 2006, SB1254 (Ackerman) of 2006, and AB640
(Tran) were essentially identical or very similar bills to
SB187. All of these bills failed passage in their first
policy committee.
SUPPORT
California Chamber of Commerce (Sponsor)
Acclamation Insurance Management Services
Alameda Chamber of Commerce
American Canyon Chamber of Commerce
Anaheim Chamber of Commerce
Antioch Chamber of Commerce
Apple Valley Chamber of Commerce
Associated Builders and Contractors of California
Associated General Contractors
Bakersfield Chamber of Commerce
Barstow Area Chamber of Commerce
Brawley Chamber of Commerce
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 6
Senate Committee on Labor and Industrial Relations
Burbank Chamber of Commerce
California Association of Health Facilities
California Association of Health Services at Home
California Association of Joint Powers Authority
California Chapter of the American Fence Contractors'
Association
California Correctional Supervisors Organization
California Farm Bureau Federation
California Fence Contractors' Association Flasher/Barricade
Association
California Framing Contractors Association
California Grocers Association
California Hospital Association
California Hotel and Lodging Association
California Independent Grocers Association
California Manufacturers and Technology Association
California Newspaper Publishers Association
California Restaurant Association
California Retailers Association
California Society of Association Executives -CalSAE
Canoga Park/West Hills Chamber of Commerce
Carlsbad Chamber of Commerce
Catalina Island Chamber & Visitors Bureau
Cerritos Regional Chamber of Commerce
Citrus Heights Regional Chamber of Commerce
Civil Justice Association of California
Claremont Chamber of Commerce
Clear Lake Chamber of Commerce
Clovis Chamber of Commerce
Corona Chamber of Commerce
Costa Mesa Chamber of Commerce
Covina Chamber of Commerce
Culver City Chamber of Commerce
Dana Point Chamber of Commerce
Dublin Chamber of Commerce
El Centro Chamber of Commerce
El Dorado County Chamber of Commerce
Elk Grove Chamber of Commerce
Encino Chamber of Commerce
Engineering & Utility Contractors Association
Fairfield-Suisun Chamber of Commerce
Folsom Chamber of Commerce
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 7
Senate Committee on Labor and Industrial Relations
Fontana Area Chamber of Commerce
Fremont Chamber of Commerce
Fresno Area Chamber of Commerce
Garden Grove Chamber of Commerce
Gilroy Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater Riverside Chambers of Commerce
Greater San Fernando Valley Chamber of Commerce
Hayward Chamber of Commerce
Hollywood Chamber of Commerce
Independent Waste Oil Collectors
Indio Chamber of Commerce
Irvine Chamber of Commerce
Irwindale Chamber of Commerce
Lafayette Chamber of Commerce
Lake Elsinore Valley Chamber of Commerce
Long Beach Area Chamber of Commerce
Lumber Association of California and Nevada
Malibu Chamber of Commerce
Manhattan Beach Chamber of Commerce
Marin Builders' Association
Millbrae Chamber of Commerce
Milpitas Chamber of Commerce
Modesto Chamber of Commerce
Montclair Chamber of Commerce
Moreno Valley Chamber of Commerce
Mountain View Chamber of Commerce
Murrieta Chamber of Commerce
Napa Chamber of Commerce
National City Chamber of Commerce
Newport Beach Chamber of Commerce
North Lake Tahoe Chamber of Commerce
Novato Chamber of Commerce
Oceanside Chamber of Commerce
Orange Chamber of Commerce & Visitors Bureau
Orange County Business Council
Oxnard Chamber of Commerce
Palm Desert Chamber of Commerce
Palm Springs Chamber of Commerce
Palos Verdes Peninsula Chamber of Commerce
Pleasanton Chamber of Commerce
Rancho Cucamonga Chamber of Commerce
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 8
Senate Committee on Labor and Industrial Relations
Redondo Beach Chamber of Commerce
Regional Chamber of Commerce of San Gabriel Valley
Roseville Chamber of Commerce
Sacramento Hispanic Chamber of Commerce
Sacramento Metro Chamber of Commerce
San Bernardino Area Chamber of Commerce
San Diego East County Chamber of Commerce
San Fernando Valley Chamber of Commerce
San Francisco Chamber of Commerce
San Jose Silicon Valley Chamber of Commerce
San Leandro Chamber of Commerce
San Pedro Peninsula Chamber of Commerce
San Rafael Chamber of Commerce
San Ramon Chamber of Commerce
Santa Clara Chamber of Commerce
Santa Clarita Valley Chamber of Commerce
Santa Monica Chamber of Commerce
Santa Rosa Chamber of Commerce
Sherman Oaks Chamber of Commerce
South Orange County Regional Chambers of Commerce
South San Francisco Chamber of Commerce
Stockton (Gtr.) Chamber of Commerce
Temecula Valley Chamber of Commerce
Thousand Oaks-Westlake Village Regional Chamber of Commerce
Torrance Area Chamber of Commerce
Tulare Chamber of Commerce
Turlock Chamber of Commerce
United Chambers of Commerce of the San Fernando Valley
Upland Chamber of Commerce
Vallejo Chamber of Commerce
Valley Industry & Commerce Association
Ventura Chamber of Commerce
Visalia Chamber of Commerce
West Covina Chamber of Commerce
Western Growers
Woodland Hills-Tarzana Chamber of Commerce
OPPOSITION
Amalgamated Transit Union
American Federation of State, County and Municipal Employees
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 9
Senate Committee on Labor and Industrial Relations
(AFSCME)
California Applicant Attorneys Association
California Conference of Machinists
California Labor Federation
California Nurses Association
California Professional Firefighters
California School Employees Association, AFL-CIO
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, Local 20, IFPTE
IFPTE Local 21
International Longshore and Warehouse Union
San Diego County Court Employees Association
Strategic Committee of Public Employees, Laborers' International
Union of N. America
UNITE HERE! AFL-CIO
United Food and Commercial Workers Union, Western State Council
United Nurses Associations of California/ Union of Health Care
Professionals.
* * *
Hearing Date: April 29, 2009 SB 187
Consultant: Rodger Dillon Page 10
Senate Committee on Labor and Industrial Relations