BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: April 29, 2009 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 665
Author: Cedillo
Version: As Amended April 27, 2009
SUBJECT
Employment: meal periods.
KEY ISSUE
Should the Legislature 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 if the employee has a written on-duty meal
period agreement with his or her employer containing specified
terms?
PURPOSE
To grant employers of registered security guards greater
flexibility to provide meal periods.
ANALYSIS
Existing law defines a contract security officer as someone who
protects persons or property, is employed by a private patrol
provider, and protects the persons or property on or about the
premises owned or controlled by the customer of the private patrol
operator or with the persons being protected.
Existing law requires contract security officers to be registered by
the Bureau of Security and Investigative Services, which is a part
of the Department of Consumer Affairs. No individual may be
employed as a contract security officer without registering with the
Bureau.
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.
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 employee and employer, but only if the work period is
no more than 12 hours, and the first meal period was not waived.
Existing law exempts the following employees from meal period
requirements if they are covered by a collective bargaining
agreement:
a) Employees of the wholesale baking industry;
b) Employees of the motion picture industry or broadcast
industry;
c) Employees of a public agency who operate a commercial motor
vehicle.
Existing Wage Order 4 , which is the industry-specific regulation
established by the Industrial Welfare Commission that includes
security officers, allows for on-duty meal periods where the
employee is not relieved of work responsibilities, but the
employee is allowed to eat while they work. An on-duty meal
period may only be taken if the nature of the work prevents an
employee from being completely relieved of work, and the on-duty
meal period agreements must be in writing. The employee may
revoke the on- duty meal period agreement in writing at any
time .
This Bill permits on-duty meal periods for contract security
officers, with the exception of contract armored car guards, if
either of the following is applicable:
1)The contract security officer is covered by a valid collective
bargaining agreement and the agreement expressly provides for:
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Senate Committee on Labor and Industrial Relations
a) Wages, hours of work, and working conditions of
employees;
b) Meal periods for those employees;
c) Final and binding arbitration of disputes concerning
application of its meal period provisions;
d) Premium wage rates for all overtime hours worked,
and
e) A regular hourly rate of pay not less than 30
percent more than the state minimum wage.
1)The contract security officer and his or her employer have
entered into a written on-duty meal period agreement that
complies with all of the following:
a) The security officer is provided the opportunity to
take a paid 30-minute on-duty meal period during each
work period of five or more hours;
b) If the security officer works 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;
c) The security officer receives full compensation for
on-duty meal periods;
d) The security officer voluntarily entered into the
written on-duty meal period agreement; and
e) The written agreement states that the security
officer may revoke the agreement in writing at any time .
COMMENTS
1. Legislative 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
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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.
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. However, 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.
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
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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." (Emphasis added.)
2. Staff Comments:
SB 665 is distinct from the two other meal and rest period
bills being heard today in that its impact on the definition
of providing a meal period does not impact off-duty meal
periods required by Labor Code 512, nor does it impact any
other industry or job classification outside of security
officers.
SB 665 deals with the provision of an on duty meal period for
security officers on page 3, lines 17-19:
The security officer is provided the opportunity
to take a 30-minutes on-duty meal period during
each work period of five or more hours. (Emphasis
added.)
SB 665 does not directly redefine "provide for a meal period"
with respect to the rights of employees generally; rather, it
redefines the provision of an on-duty meal period for security
officers that are not covered by a collective bargaining
agreement. The language used is similar to the 2004 DLSE
emergency regulations that were discussed above.
Currently, IWC Wage Order 4 covers security officers and
places the responsibility for the provision of an on duty meal
period with the employer. By changing the responsibility from
providing the meal period to providing an opportunity to take
a meal period, SB 665 shifts the responsibility of taking the
meal period from the employer to the employee, as it would be
up to the employee to actualize the opportunity to take a meal
period.
Miriam-Webster's Collegiate Dictionary (Tenth Edition, 2001)
defines "opportunity" as "a favorable juncture of
circumstance", which would seem to suggest that SB 665 would
allow a security officer to take a meal period when "a
favorable juncture of circumstance" allowed such a meal period
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Senate Committee on Labor and Industrial Relations
to take place.
The Committee may wish to explore if "a favorable juncture of
circumstance" is enough of a provision for security officers
to allow for necessary daily meal periods, particularly if the
security officer has health challenges. The Committee may
also wish to explore if shifting the burden for the provision
of a meal period from an employer to an employee creates
problems surrounding meal period coercion.
3. Proponent Arguments :
Proponents argue that the contract security industry is
unusual, due to the dispersal of sites and the public safety
necessity in a post-9/11 world for constant guard on more and
more of California's infrastructure. Proponents believe that
SB 665 will allow employers and employees in the contract
security industry to negotiate on meal periods on their own
terms and to their mutual benefit, while ensuring
round-the-clock protection through on-duty meal periods.
Proponents also argue that SB 665 will clarify contested labor
law and free the contract security industry from class-action
lawsuits regarding meal period violations.
4. Opponent Arguments :
Opponents argue that SB 665 would significantly weaken meal
break rights for non-union employees and that it deviates
sharply from existing law and regulation for on-duty meal
periods. Opponents note that current meal period laws and
regulations significantly limit the use of on-duty meal
periods in the workplace. Opponents also argue that SB 665
will virtually eliminate the meal period protections workers
currently have simply due to their job classification, rather
than factors at the workplace, and that the creation of an
on-duty meal period carve out will create the possibility of
employer intimidation. Opponents also believe that SB 665
will become a precedent for other industries to negotiate
carve outs, weakening worker protections.
Other opponents, such as the California Manufacturing and
Technology Association, and other employer organizations, have
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Senate Committee on Labor and Industrial Relations
taken an 'oppose unless amended' position, arguing that SB 665
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 SB 665 should follow the
example of SB 287 (Calderon), which will be heard in this
Committee today.
5. Current 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, and
exempt collective bargaining agreements from meal period law.
This bill will be heard in the Senate Labor Committee today.
SB 807 (Benoit) would grant employers greater flexibility to
provide meal periods, and also reduce the punishment for
failing to provide a meal period. This bill will be heard in
the Senate Labor Committee today.
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.
AB 569 (Emmerson) would exempt employees in the construction
and transportation industry that are covered by a collective
bargaining agreement from meal period requirements. This bill
was heard in Assembly Labor and Employment on April 22nd and
was passed out and sent to Assembly Appropriations Committee.
SB 741 (Maldonado) would revise existing law on propriety
private security employees; require that, upon approval of an
application by the Director of Consumer Affairs, officer and
employer applicants be issued a registration card or
registration certificate, respectively. This bill is
currently before the Senate Appropriations Committee.
6. Prior Legislation :
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Senate Committee on Labor and Industrial Relations
SB 529 (Cedillo) contained language permitting on-duty meal
periods for security officers that was nearly identical to the
language in this bill. SB 529 was placed on the Assembly
Inactive file at the request of Assembly Member Torrico near
the end of last year's legislative session.
AB 2880 (Chavez), Statutes of 2002, Chapter 886, increased the
training requirements for private security officers, required
additional on-going security officer education, and created
the Private Security Services Fund for ongoing licensing and
regulation of private security services.
SUPPORT
Service Employees International Union (Sponsor)
ABM Security Services
AlliedBarton Security Services
Boyd & Associates
California Association of Licensed Security Agencies, Guards and
Associates
Contact Security, Inc.
DN Security Services
Executive Assurance Entertainment Security
Garda Private Security, Inc.
Kern Security Patrol
Securitas Security Services USA, Inc.
Select Patrol
Service Employees International Union
Western Area Security Services
OPPOSITION
Aerospace and Agricultural Implement Workers of America
Associated Builders and Contractors of California (Unless
Amended)
California Cleaners Association (Unless Amended)
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Construction & Industrial Materials Association
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Senate Committee on Labor and Industrial Relations
(Unless Amended)
California Employment Law Council (Unless Amended)
California Hospital Association (Unless Amended)
California Labor Federation, AFL-CIO
California Lodging Industry Association (Unless Amended)
California Manufacturers and Technology Association (Unless
Amended)
California Nurses Association/National Nurses Organizing
Committee
California Retailers Association (Unless Amended)
California Teamsters Public Affairs Council
Consumer Attorneys of California
Department of Industrial Relations
Engineers and Scientists of California
International Longshore and Warehouse Union
International Union
Lumber Association of California and Nevada (Unless Amended)
National Federation of Independent Business (Unless Amended)
National Union of Healthcare Workers
State Building and Construction Trades Council, AFL-CIO
UNITE HERE!
United Automobile
United Food & Commercial Workers Western States Council
Western Growers (Unless Amended)
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Hearing Date: April 29, 2009 SB 665
Consultant: Gideon L. Baum Page 9
Senate Committee on Labor and Industrial Relations