BILL NUMBER: AB 1789 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Morrell
FEBRUARY 21, 2012
An act to amend Section 512 of 2699 of,
and to add Section 1182.2 to, the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1789, as amended, Morrell. Employment: meal periods.
Wage orders: review: private rights of action.
Existing law regulates the wages, hours, and working conditions of
any man, woman, and minor employed in any occupation, trade, or
industry, whether compensation is measured by time, piece, or
otherwise, except for individuals employed as outside salespersons
and individuals participating in specified national service programs.
Under existing law, the Industrial Welfare Commission within the
Department of Industrial Relations is authorized to adopt rules,
regulations, and orders to ensure that employers comply with those
provisions of law.
This bill would require the commission to review and, if
necessary, revise every wage order in effect as of January 1, 2013,
to ensure that each order is consistent with current work conditions
in the industry covered by that wage order. The commission would be
required to indicate on its Internet Web site that an order has been
reviewed and whether revision of the order is needed.
Existing law, the Labor Code Private Attorneys General Act of
2004, authorizes an aggrieved employee to recover through a civil
action a civil penalty that would be assessed and collected by the
Labor and Workforce Development Agency, as specified.
The bill would prohibit actions under the Labor Code Private
Attorneys General Act of 2004 from being brought for a violation of a
wage order until the wage order has been reviewed and, if revision
is deemed necessary by the commission, revised.
Existing law requires an employer to provide an employee with one
meal period during a work period of more than 5 hours and 2 meal
periods during a work period of more than 10 hours, as prescribed.
This bill would make nonsubstantive changes to those provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1182.2 is added to the
Labor Code , to read:
1182.2. The commission shall review and, if necessary, revise
every wage order in effect as of January 1, 2013, to ensure that each
wage order is consistent with current work conditions in the
industry covered by the wage order. After a wage order has been
reviewed, the commission shall indicate on its Internet Web site that
the wage order has been reviewed and whether the wage order needs to
be revised.
SEC. 2. Section 2699 of the Labor Code
is amended to read:
2699. (a) Notwithstanding any other provision of law, any
provision of this code that provides for a civil penalty to be
assessed and collected by the Labor and Workforce Development Agency
or any of its departments, divisions, commissions, boards, agencies,
or employees, for a violation of this code, may, as an alternative,
be recovered through a civil action brought by an aggrieved employee
on behalf of himself or herself and other current or former employees
pursuant to the procedures specified in Section 2699.3.
(b) For purposes of this part, "person" has the same meaning as
defined in Section 18.
(c) For purposes of this part, "aggrieved employee" means any
person who was employed by the alleged violator and against whom one
or more of the alleged violations was committed.
(d) For purposes of this part, "cure" means that the employer
abates each violation alleged by any aggrieved employee, the employer
is in compliance with the underlying statutes as specified in the
notice required by this part, and any aggrieved employee is made
whole.
(e) (1) For purposes of this part, whenever the Labor and
Workforce Development Agency, or any of its departments, divisions,
commissions, boards, agencies, or employees, has discretion to assess
a civil penalty, a court is authorized to exercise the same
discretion, subject to the same limitations and conditions, to assess
a civil penalty.
(2) In any action by an aggrieved employee seeking recovery of a
civil penalty available under subdivision (a) or (f), a court may
award a lesser amount than the maximum civil penalty amount specified
by this part if, based on the facts and circumstances of the
particular case, to do otherwise would result in an award that is
unjust, arbitrary and oppressive, or confiscatory.
(f) For all provisions of this code except those for which a civil
penalty is specifically provided, there is established a civil
penalty for a violation of these provisions, as follows:
(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred
dollars ($500).
(2) If, at the time of the alleged violation, the person employs
one or more employees, the civil penalty is one hundred dollars
($100) for each aggrieved employee per pay period for the initial
violation and two hundred dollars ($200) for each aggrieved employee
per pay period for each subsequent violation.
(3) If the alleged violation is a failure to act by the Labor and
Workplace Development Agency, or any of its departments, divisions,
commissions, boards, agencies, or employees, there shall be no civil
penalty.
(g) (1) Except as provided in paragraph (2), an aggrieved employee
may recover the civil penalty described in subdivision (f) in a
civil action pursuant to the procedures specified in Section 2699.3
filed on behalf of himself or herself and other current or former
employees against whom one or more of the alleged violations was
committed. Any employee who prevails in any action shall be entitled
to an award of reasonable attorney's fees and costs. Nothing in this
part shall operate to limit an employee's right to pursue or recover
other remedies available under state or federal law, either
separately or concurrently with an action taken under this part.
(2) No action shall be brought under this part for any violation
of a posting, notice, agency reporting, or filing requirement of this
code, except where the filing or reporting requirement involves
mandatory payroll or workplace injury reporting.
(3) No action shall be brought under this part for a violation of
a wage order adopted by the commission that is in effect on January
1, 2013, until the wage order has been reviewed, and, if the
commission determines the wage order needs to be revised, until the
effective date of any revision.
(h) No action may be brought under this section by an aggrieved
employee if the agency or any of its departments, divisions,
commissions, boards, agencies, or employees, on the same facts and
theories, cites a person within the timeframes set forth in Section
2699.3 for a violation of the same section or sections of the Labor
Code under which the aggrieved employee is attempting to recover a
civil penalty on behalf of himself or herself or others or initiates
a proceeding pursuant to Section 98.3.
(i) Except as provided in subdivision (j), civil penalties
recovered by aggrieved employees shall be distributed as follows: 75
percent to the Labor and Workforce Development Agency for enforcement
of labor laws and education of employers and employees about their
rights and responsibilities under this code, to be continuously
appropriated to supplement and not supplant the funding to the agency
for those purposes; and 25 percent to the aggrieved employees.
(j) Civil penalties recovered under paragraph (1) of subdivision
(f) shall be distributed to the Labor and Workforce Development
Agency for enforcement of labor laws and education of employers and
employees about their rights and responsibilities under this code, to
be continuously appropriated to supplement and not supplant the
funding to the agency for those purposes.
(k) Nothing contained in this part is intended to alter or
otherwise affect the exclusive remedy provided by the workers'
compensation provisions of this code for liability against an
employer for the compensation for any injury to or death of an
employee arising out of and in the course of employment.
( l ) The superior court shall review and approve any
penalties sought as part of a proposed settlement agreement pursuant
to this part.
(m) This section shall not apply to the recovery of administrative
and civil penalties in connection with the workers' compensation law
as contained in Division 1 (commencing with Section 50) and Division
4 (commencing with Section 3200), including, but not limited to,
Sections 129.5 and 132a.
(n) The agency or any of its departments, divisions, commissions,
boards, or agencies may promulgate regulations to implement the
provisions of this part.
SECTION 1. Section 512 of the Labor Code is
amended to read:
512. (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 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 employee, but
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 hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.
(c) Subdivision (a) does not apply to an employee in the wholesale
baking industry who is subject to an Industrial Welfare Commission
wage order and who is covered by a valid collective bargaining
agreement that provides for a 35-hour workweek consisting of five
7-hour days, payment of one and one-half times the regular rate of
pay for time worked in excess of seven hours per day, and a rest
period of not less than 10 minutes every two hours.
(d) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Order Numbers 11 and 12, is covered by a
valid collective bargaining agreement that provides for meal periods
and includes a monetary remedy if the employee does not receive a
meal period required by the agreement, the terms, conditions, and
remedies of the agreement pertaining to meal periods apply in lieu of
the applicable provisions pertaining to meal periods of subdivision
(a) of this section, Section 226.7, and Industrial Welfare Commission
Wage Order Numbers 11 and 12.
(e) Subdivisions (a) and (b) do not apply to an employee specified
in subdivision (f) if both of the following conditions are
satisfied:
(1) The employee is covered by a valid collective bargaining
agreement.
(2) The valid collective bargaining agreement 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 hourly rate of pay of not less than 30 percent
more than the state minimum wage rate.
(f) Subdivision (e) applies to each of the following employees:
(1) An employee employed in a construction occupation.
(2) An employee employed as a commercial driver.
(3) An employee employed in the security services industry as a
security officer who is registered pursuant to Chapter 11.5
(commencing with Section 7580) of Division 3 of the Business and
Professions Code, and who is employed by a private patrol operator
registered pursuant to that chapter.
(4) An employee employed by an electrical corporation, a gas
corporation, or a local publicly owned electric utility.
(g) The following definitions apply for the purposes of this
section:
(1) "Commercial driver" means an employee who operates a vehicle
described in Section 260 or 462 of, or subdivision (b) of Section
15210 of, the Vehicle Code.
(2) "Construction occupation" means all job classifications
associated with construction by Article 2 (commencing with Section
7025) of Chapter 9 of Division 3 of the Business and Professions
Code, including work involving alteration, demolition, building,
excavation, renovation, remodeling, maintenance, improvement, and
repair, and any other similar or related occupation or trade.
(3) "Electrical corporation" has the same meaning as provided in
Section 218 of the Public Utilities Code.
(4) "Gas corporation" has the same meaning as provided in Section
222 of the Public Utilities Code.
(5) "Local publicly owned electric utility" has the same meaning
as provided in Section 224.3 of the Public Utilities Code.