BILL NUMBER: SB 389 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 14, 2011
INTRODUCED BY Senator Dutton
FEBRUARY 15, 2011
An act to amend Section 512 of the Labor Code, relating
to employment. Sections 512, 553, and 2699.5 of, to
add Section 512.3 to, and to repeal Section 2 26.7 of, the
Labor Code, relating to employment, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 389, as amended, Dutton. Employment: meal periods.
Existing law requires employers to provide meal periods and rest
periods, as specified. Existing law requires an employer who fails to
provide a meal period or a rest period to pay the employee one
additional hour of pay at the employee's regular rate of compensation
for each workday that the meal or rest period is not provided. Under
existing law, an employer who fails to provide a required meal
period may be guilty of a misdemeanor.
This bill would provide that the maximum compensation an employee
may receive for the employer's failure to provide a meal or rest
period in a workday is one additional hour of pay. This bill would
also provide that the payment of that additional one hour of pay per
workday in which the employer failed to provide a meal period or a
rest period would constitute compliance with any requirement to
provide an employee with a meal period or rest period and is the
exclusive remedy for that failure to provide a meal period or rest
period and would no longer constitute a misdemeanor.
This bill would declare that it is to take effect immediately as
an urgency statute.
Existing law requires an employer to provide an employee who works
more than 5 hours in a workday with a meal period of not less than
30 minutes, unless the employee works no more than 6 hours in a
workday and the meal period is waived by mutual consent. An employer
also is required to provide an employee who works more than 10 hours
in a workday with a 2nd meal period of not less than 30 minutes,
unless the employee works no more than 12 hours, the first meal
period was not waived, and the 2nd meal period is waived by mutual
consent. The Industrial Welfare Commission (IWC) of the Department of
Industrial Relations adopts and amends wage orders that, among other
things, specify how meal periods are required to be provided to
covered employees within various industries, including the procedures
for providing employees with on-duty meal periods. Existing law
provides that a violation of these provisions is a misdemeanor.
This bill would revise the statutory requirements for the
provision of meal periods to specify that the requirements apply only
to employees subject to the meal period provisions of an order of
the IWC. The statutory requirements for providing the meal periods
would be revised to specify that a meal period based on working more
than 5 hours in a workday is required to be provided before the
employee completes 6 hours of work, unless the existing waiver
provision is invoked. The waiver provision for the 2nd meal period
would be changed to provide an exception for different provisions
within specified IWC wage orders, and to permit the employer and
employee to agree to waive either the first or the 2nd meal period if
the employee otherwise is entitled to 2 meal periods. The bill also
would specify conditions under which on-duty meal periods are
permitted. The meal period provisions of a valid collective
bargaining agreement would be required to be implemented for covered
employees rather than the statutory requirements.
The bill would require that orders of the IWC be interpreted in a
manner consistent with this section, and would require the Department
of Industrial Relations to amend and republish specified IWC wage
orders to be consistent with the revised meal period requirements.
Because this bill would create a new crime, it would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: yes no .
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 226.7 of the Labor
Code is repealed.
226.7. (a) No employer shall require any employee to work during
any meal or rest period mandated by an applicable order of the
Industrial Welfare Commission.
(b) If an employer fails to provide an employee a meal period or
rest period in accordance with an applicable order of the Industrial
Welfare Commission, the employer shall pay the employee one
additional hour of pay at the employee's regular rate of compensation
for each work day that the meal or rest period is not provided.
SEC. 2. 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 both 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 the employee 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, then 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
512.3 , 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.
SEC. 3. Section 512.3 is added to the
Labor Code , to read:
512.3. (a) An employer shall not require an employee to work
during any meal or rest period mandated by Section 512 or an
applicable order of the Industrial Welfare Commission.
(b) If an employer fails to provide an employee a meal period or
rest period in accordance with an applicable order of the Industrial
Welfare Commission, the employer shall pay the employee one
additional hour of pay at the employee's regular rate of compensation
for each workday that the meal or rest period is not provided. The
maximum compensation an employee may receive under this section for
each workday is one additional hour of pay. Payment of this one
additional hour of pay shall constitute compliance with any
requirement to provide an employee with a meal period or a rest
period and shall be the exclusive remedy for failure to provide a
meal period or a rest period.
SEC. 4. Section 553 of the Labor Code
is amended to read:
553. Any Except as provided in Section
512.3, any person who violates this chapter is guilty of a
misdemeanor.
SEC. 5. Section 2699.5 of the Labor Code
is amended to read:
2699.5. The provisions of subdivision (a) of Section 2699.3 apply
to any alleged violation of the following provisions: subdivision
(k) of Section 96, Sections 98.6, 201, 201.3, 201.5, 201.7, 202, 203,
203.1, 203.5, 204, 204a, 204b, 204.1, 204.2, 205, 205.5, 206, 206.5,
208, 209, and 212, subdivision (d) of Section 213, Sections 221,
222, 222.5, 223, and 224, subdivision (a) of Section 226, Sections
226.7, 227, 227.3, 230, 230.1, 230.2, 230.3,
230.4, 230.7, 230.8, and 231, subdivision (c) of Section 232,
subdivision (c) of Section 232.5, Sections 233, 234, 351, 353, and
403, subdivision (b) of Section 404, Sections 432.2, 432.5, 432.7,
435, 450, 510, 511, 512, 512.3, 513, 551, 552, 601, 602,
603, 604, 750, 751.8, 800, 850, 851, 851.5, 852, 921, 922, 923, 970,
973, 976, 1021, 1021.5, 1025, 1026, 1101, 1102, 1102.5, and 1153,
subdivisions (c) and (d) of Section 1174, Sections 1194, 1197,
1197.1, 1197.5, and 1198, subdivision (b) of Section 1198.3, Sections
1199, 1199.5, 1290, 1292, 1293, 1293.1, 1294, 1294.1, 1294.5, 1296,
1297, 1298, 1301, 1308, 1308.1, 1308.7, 1309, 1309.5, 1391, 1391.1,
1391.2, 1392, 1683, and 1695, subdivision (a) of Section 1695.5,
Sections 1695.55, 1695.6, 1695.7, 1695.8, 1695.9, 1696, 1696.5,
1696.6, 1697.1, 1700.25, 1700.26, 1700.31, 1700.32, 1700.40, and
1700.47, paragraphs (1), (2), and (3) of subdivision (a) of, and
subdivision (e) of, Section 1701.4, subdivision (a) of Section
1701.5, Sections 1701.8, 1701.10, 1701.12, 1735, 1771, 1774, 1776,
1777.5, 1811, 1815, 2651, and 2673, subdivision (a) of Section
2673.1, Sections 2695.2, 2800, 2801, 2802, 2806, and 2810,
subdivision (b) of Section 2929, and Sections 3095, 6310, 6311, and
6399.7.
SEC. 6. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to address California's historically high unemployment
rate, reduce the number of employment-related lawsuits, and allow
businesses to return more people to work, it is necessary that this
act take effect immediately. All matter omitted in this version
of the bill appears in the bill as introduced in the Senate,
February 15, 2011. (JR11)