BILL ANALYSIS �
AB 1948
Page A
Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 1948 (Grove) - As Introduced: February 23, 2012
SUBJECT : Wage and hour laws: Legislature.
SUMMARY : Provides that specified provisions of the Labor Code
related to wages and hours (including overtime, meal periods,
and certain penalties and fines for violations of the law) are
applicable to the Legislature as an employer.
FISCAL EFFECT : Unknown
COMMENTS : Under federal law, wage and hour issues are governed
under the Fair Labor Standards Act (FLSA). The FLSA explicitly
excludes from its definition of "employee" certain state and
local legislative employees. (FLSA � 3(e)(3)(C)). In order to
meet this exemption, the employee must either (1) hold a public
elective office of a government agency, (2) be selected by the
holder of such an office to be a member of his or her personal
staff, (3) be appointed by such an officeholder to serve on a
policy-making level, (4) be an immediate advisor to such an
officeholder with respect to the constitutional or legal powers
of the office, or (5) be an employee in the legislative branch
or legislative body of a government agency.
Wage and hour issues are also the subject of state law under the
Labor Code and the Industrial Welfare Commission (IWC) Wage
Orders. However, each of the IWC Wage Orders generally exempts
public employees from coverage from its provisions, other than
the requirement to pay minimum wage<1>. In addition, even
assuming certain wage and hour laws applied to legislative
employees, some (but not all) would nonetheless potentially be
excluded under certain "executive," "administrative" or
"professional" exemptions under existing law.
AUTHOR'S STATEMENT IN SUPPORT OF THIS BILL :
The fact sheet provided by the author states the following:
"This bill ends the California State Legislature's special
and unjustified exemption from the burdensome wage and hour
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<1> See, for example, IWC Wage Order 4-2001 Section 1(B).
AB 1948
Page B
laws that it has imposed on other employers in the state.
The California Labor Code is the basis for state policies
concerning the payment of proper wages, including minimum
wage, unpaid wages, timely payment of wages, overtime, meal
and rest periods, vacation and holiday pay, sick pay,
unauthorized deductions, uniforms, and unreimbursed
expenses. In addition, the Labor Code assigns the IWC to
ascertain the wages paid to all employees in this state, to
ascertain the hours and conditions of labor and employment
in the various occupations, trades and industries in which
employees are employed in this state, and to investigate
the health, safety, and welfare of those employees. The
California Division of Labor Standards Enforcement (DLSE),
overseen by the Labor Commissioner (LC), monitors and
enforces wage and hour laws.
Some of the most controversial issues considered by the
California State Legislature in recent years are related to
wage and hour laws. One example is Assembly Bill 60
(1999), which established in statute the eight-hour workday
as the standard basis for overtime.
Compliance with wage and hour laws is a costly undertaking
for California employers, but these laws create numerous
jobs and business opportunities for lawyers, human
resources consultants, and other professional service
providers.
A significant amount of litigation is generated through the
state's wage and hour laws, including class action lawsuits
under the Unfair Competition Law and the Labor Code Private
Attorneys General Act. The California Supreme Court is
expected to issue a decision by April 12 in Brinker v.
Superior Court regarding a fundamental dispute over whether
or not employers must force employees to take their
entitled meal and rest periods.
What's good for the goose is good for the gander: the
California State Legislature should not exempt itself from
the burdensome and costly laws that it imposes on other
employers.
Perhaps coverage under these laws will spur the Legislature
to consider the excesses of its wage and hour laws and make
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reasonable amendments."
COMMITTEE STAFF COMMENTS :
As stated above, the author states that "what's good for the
goose is good for the gander" and that the laws that apply to
private employers should apply to the Legislature as well.
Since this bill is purportedly about leveling the playing field,
the author may wish to consider whether the opposite is true as
well. The Legislature provides certain benefits and terms of
employment that are not mandated to private employers, but
perhaps they should be.
Therefore, the author may wish to consider adding the following
provisions to the bill:
(1) The Assembly currently provides employees with paid
sick leave, something that is not required of private
employers under California law. Numerous bills in recent
years have attempted to require employers to provide paid
sick leave, including AB 400 (Ma) from 2011, AB 1000 (Ma)
from 2009, and AB 2716 (Ma) from 2008.
Therefore, the author may wish to consider amending this
bill to require private employers to provide paid sick
days, consistent with the Legislature.
(2) The Assembly currently provides employees with up to
three days of paid bereavement leave, something that is
not required of private employers under California law.
Several bills in recent years have attempted to require
employers to provide paid bereavement leave, including AB
325 (Lowenthal) from 2011, AB 2340 (Monning) from 2010,
and SB 549 (Corbett) from 2007.
Therefore, the author may wish to consider amending this
bill to require private employers to provide up to three
days of paid bereavement leave, consistent with the
Legislature.
(3) Several other types of public employees in
California have collective bargaining rights
(administered by the Public Employment Relations Board)
and are able to organize through a process known as
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Page D
"majority recognition" or "card-check."<2> Therefore,
the author may wish to consider amending this bill to
extend collective bargaining rights and card-check
recognition to Legislative employees, consistent with
other public employees in California.
REGISTERED SUPPORT / OPPOSITION :
Support
Dayton Public Policy Institute
Labor Issues Solutions, LLC
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
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<2> See for example: Government Code Section 3507.1 (local
public employees under the Meyers-Milias-Brown Act); Government
Code Section 3520.5 and implementing regulations (state
employees); Government Code Section 3544 (educational
employees); and Government Code Section 3573-4 (higher education
employees).