BILL ANALYSIS �
SB 435
Page 1
Date of Hearing: August 14, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hern�ndez, Chair
SB 435 (Padilla) - As Amended: August 5, 2103
SENATE VOTE : 25-11
SUBJECT : Compensation: meal and rest and recovery periods
SUMMARY : Enacts provisions of law related to recovery periods,
as specified. Specifically, this bill :
1)Provides that, in addition to meal and rest periods, an
employer shall not require any employee to work during any
"recovery period" mandated by any applicable statute,
regulation, standard or order of the Occupational Safety and
Health Standards Board (Standards Board) or the Division of
Occupational Safety and Health (DOSH).
2)Defines a "recovery period" as a cool-down period afforded an
employee to prevent heat illness.
3)Provides that an existing provision of law that requires an
employer to pay an employee one additional hour of pay at the
employee's regular rate of compensation for each work day that
a meal or rest period is not provided also applies to work
days that a "recovery period" is not provided.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author, this bill is intended to
encourage workers exposed to extreme heat to take recovery
periods.
Existing Meal and Rest Period Requirements of Current Law
Under current law, an employer may not employ a worker for a
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 is no more than six hours,
the meal period may be waived by mutual consent of both parties.
A second 30 minute meal period is required if an employee works
more than ten hours per day, except if total hours worked is no
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more than 12, the second meal period may be waived by mutual
consent only if the first meal period was not waived. (Labor
Code �512).
In addition, the Industrial Welfare Commission (IWC) Wage Orders
require that employers authorize and permit nonexempt employees
to take a rest period that must, insofar as practicable, be
taken in the middle of each work period. The rest period is
based on the total hours worked and must be at the minimum rate
of a net 10 consecutive minutes for each 4 hour work period, or
major fraction thereof. A rest period is not required for
employees whose total daily work time is less than 3.5 hours.
According to the IWC Wage Orders, authorized rest periods are
counted as time worked and therefore, must be paid by the
employer.
Existing Labor Code �226.7 prohibits an employer from requiring
any employee to work during any meal or rest period mandated by
an applicable order of the IWC. Furthermore, an employer who
fails to provide this meal or rest period is required to pay the
employee one additional hour of pay for each work day that the
meal or rest period is not provided.
"Recovery Periods" Under the Existing Heat Illness Prevention
Standard
In addition to the IWC orders and Labor Code �226.7, the Heat
Illness Prevention regulations established by the Occupational
Safety and Health Standards Board have an additional requirement
regarding a "recovery" period applicable to all outdoor places
of employment. Since August 2005, employers in the State of
California have been required by regulation to protect outdoor
employees from the hazard of heat illness. This regulation was
promulgated in response to unusually hot summer temperatures
over a wide area of the state which led to a greatly elevated
number of cases of serious heat illness in the workplace,
including a number of deaths. This regulation, codified at Title
8 CCR �3395, came about first by adoption of an emergency
temporary standard and was followed by adoption of a permanent
standard in 2006. Under these regulations, employees are
allowed and encouraged to take a cool-down rest in the shade for
a period of no less than five minutes at a time when they feel
the need to do so to protect themselves from overheating.
ARGUMENTS IN SUPPORT :
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The California Rural Legal Assistance Foundation (one of the
sponsors of this measure), writes the following in support:
"[This bill], as amended, generally treats heat
stress-related cool down recovery periods the same way
daily rest periods are treated under the Labor Code:
Employers would be prohibited from requiring workers to
perform any work during any heat stress recovery period
and, if the employer failed to provide such a recovery
period in accordance with state law, the employer would
have to pay the employee one additional hour of pay at the
employee's regular rate of compensation for each work day
that a recovery period was not provided.
The right of workers to be afforded heat stress-related
recovery periods to cool down during high heat conditions
is established by California Code of Regulations, Title 8,
Section 3395(d). Although compliance with these
requirements is argued to be improving in a number of
industries, Cal-OSHA reported, for 2012, that overall
compliance with the heat stress regulation (found during
inspections) was only 69% in agriculture and 72% in
construction, illustrating that many violations likely
continue to occur. (See Cal-OSHA Advisory Committee Report
Summaries, June 6, 2013.) Currently, the sole remedy for a
violation is a citation issued by DOSH.
Given the critical importance of protecting workers from
avoidable heat stress illness, and continued limited DOSH
enforcement resources, the sponsors and supporters of
[this bill] believe it is appropriate to extend to workers
the same strong protections from violations of recovery
period requirements as are provided for violations of daily
rest period requirements. This will allow both the Division
of Labor Standards Enforcement and workers themselves to
take action if an employer requires work during, or fails
to provide, a cool down recovery rest period."
COMMITTEE STAFF COMMENTS :
1) As introduced, this bill also contained provisions
related to employees paid on a piece-rate basis, including
a requirement that such employees be compensated at their
average piece-rate earnings during mandated rest or
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recovery periods. However, with the most recent set of
amendments, the piece-rate provisions have been deleted
from the bill.
2) In addition, at the request of then-opponents of the
bill, the author and the sponsor previously agreed to add
language to the bill to provide an exemption for specified
exempt employees. However, according to the sponsor, in
the most recent set of amendments, this language was
inadvertently deleted. Therefore, the author and the
sponsor have agreed to add the language back to the bill,
but due to legislative time constraints will take that
amendment in the Assembly Appropriations Committee.
PRIOR RELATED LEGISLATION :
SB 1538 (Alarc�n) of 2004 would have required employers to pay
employees for any rest period mandated by statute, regulation,
or order of the IWC and would have established the specific
formula by which the rate of pay would have been determined for
the rest periods of piece-rate workers in the agricultural and
garment industries, as specified. SB 1538 was vetoed by
Governor Schwarzenegger.
AB 755 (De La Torre) of 2005 was similar to SB 1538. However,
AB 755 merely stated that piece-rate workers in the agriculture
and garment industries would be compensated at their "average
piece-rate wage" for rest periods. AB 755 was also vetoed by
Governor Schwarzenegger.
Among other things, AB 2346 (Butler) of 2012 would have required
an agricultural employee working on a piece-rate basis to be
compensated at the employee's average piece-rate wage during the
pay period in which a rest period or recovery period was taken.
However, this provision was subsequently amended out of the
bill.
REGISTERED SUPPORT / OPPOSITION :
Support
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Rural Legal Assistance Foundation (sponsor)
California Teamsters Public Affairs Council
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Engineers & Scientists of California, IFPTE Local 20
International Longshore & Warehouse Union
National Lawyers Guild Labor & Employment Committee
Professional and Technical Engineers, IFPTE Local 21
United Farm Workers
United Food and Commercial Workers Western States Council
UNITE HERE!
Utility Workers Union of America, Local 132
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091