BILL ANALYSIS �
SB 1360
Page 1
SENATE THIRD READING
SB 1360 (Padilla)
As Introduced February 21, 2014
Majority vote
SENATE VOTE :23-7
LABOR & EMPLOYMENT 5-0
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|Ayes:|Roger Hern�ndez, Alejo, | | |
| |Chau, Holden, | | |
| |Ridley-Thomas | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Clarifies that a legally mandated rest or recovery
period is counted as hours worked and therefore, shall not
result in any deductions from an employee's wages.
Specifically, this bill :
1)Specifies that a rest or recovery period mandated pursuant to
state law, including, but not limited to, an applicable
statute, regulation, standard, or order of the Industrial
Welfare Commission (IWC), the Occupational Safety and Health
Standards Board (OSHA Standards Board), or the Division of
Occupational Safety and Health (DOSH), shall be counted as
hours worked for which there shall be no deduction from wages.
2)Provides that this provision is declaratory of existing law.
EXISTING LAW prohibits an employer from requiring employees to
work during a meal or rest or recovery period mandated pursuant
to an applicable statute, regulation, standard or order of the
IWC, the OSHA Standards Board, or DOSH. Failure to provide an
employee with a meal or rest or recovery period entitles the
employee to one additional hour of pay at his or her regular
rate of compensation for each workday that the meal, rest or
recovery period is not provided.
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : Under existing law, one of the functions of the
SB 1360
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Department of Industrial Relations (DIR) is to foster, promote,
and develop the welfare of the wage earners of California, to
improve their working conditions, and to advance their
opportunities for profitable employment. Within DIR there are
various boards and divisions tasked with the execution of these
requirements including the IWC, DOSH, the OSHA Standards Board,
and the Division of Labor Standards Enforcement (DLSE).
Each of the 17 IWC Wage Orders includes a section on rest period
requirements - authorizing non-exempt employees to take a rest
period at a rate of 10 minutes per four hours or major fraction
thereof. According to the IWC wage orders, authorized rest
period time shall be counted as hours worked for which there
shall be no deduction from wages.
Labor Code Section 226.7 prohibits an employer from requiring
employees to work during a meal, rest or recovery period
mandated pursuant to an applicable statute, regulations,
standard, or order of the IWC, the OSHA Standards Board, or
DOSH. Failure to provide an employee with a meal, rest or
recovery period, entitles the employee to one additional hour of
pay at his/her regular rate of compensation for each workday
that the meal, rest or recovery period is not provided. (Labor
Code Section 226.7)
Although existing law affords employees - by statute, regulation
and standards - the ability and protections to take a meal, rest
and recovery period, there appears to be some ambiguity as to
whether or not these periods are counted as hours worked and,
therefore, required to be compensated. While a meal period is
unpaid (as long as the employee is relieved of all duty), rest
periods are construed as "hours worked" and must be compensated
at the employee's regular rate of pay. The IWC Wage Orders
clearly state that, "authorized rest period time shall be
counted as hours worked for which there shall be no deduction
from wages." However, for recovery periods, even though they
are a legally protected right to recover from heat-illness, and
one would assume the same protection applies requiring these to
also be compensated, it appears that there is a need for further
clarification.
This bill would clarify that a rest or recovery period mandated
pursuant to a state law, is to be counted as hours worked, for
which there shall be no deduction from wages. The bill would
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declare this provision to be declaratory of existing law.
Additionally, the sponsors argue that this bill is necessary to
address an inadvertent deletion of this language in a previous
version of SB 435 (Padilla), Chapter 719, Statutes of 2013,
which codified the existing recovery period provisions found in
Labor Code Section 226.7.
According to the sponsor, this bill would correct a drafting
error made in the final amendment to SB 435 which inadvertently
removed language stating that daily rest periods and heat
stress-related recovery periods are "to be counted as hours
worked, for which there shall be no deduction from wages." The
sponsor argues that prior to its final amendments, SB 435 sought
to: 1) provide the same protections and remedies for heat
stress-related recovery periods as apply to daily rest periods;
2) clarify that piece rate workers are entitled to be paid their
average piece rate earnings during their daily rest and recovery
periods; and, 3) codify existing law which holds that these
periods are to be considered compensated time.
The sponsor states that as SB 435 moved through the legislative
process, a California appellate court's decision in Bluford v
Safeway affirmed that piece rate workers were entitled to be
paid during their rest periods. The Safeway defendants sought
review of this decision in the California Supreme Court, which
later denied the petition for review, letting Bluford stand.
However, they argue, prior to the Supreme Court's action, the
sponsor had removed the section of the bill that attempted to
codify the required pay during these periods in order to clear
the way for a possible Supreme Court consideration of the issue.
This bill, they argue, simply restores this language and
clarifies that workers are to be compensated for taking a cool
down recovery period.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0003942