April 25, 2000
NOTICE OF PUBLIC HEARING
INDUSTRIAL WELFARE COMMISSION
May 26, 2000
In accordance with the "Eight-Hour-Day Restoration and Workplace
Flexibility Act of 1999," commonly known as AB 60, as well as Labor Code §1181, the
Industrial Welfare Commission ("IWC") will be considering the adoption of
amendments to the Interim Wage Order 2000, as well as Wage Orders 1 through 14. A public
hearing will therefore be held on May 26, 2000, in Sacramento, at the State Capitol, Room
4202, to consider amendments proposed by one or more of the commissioners. The meeting
will commence at 10:00 a.m.
1. Approval of Minutes
2. Consideration of and public comment on the following proposed amendments to Wage Orders 1 through 13, offered by Commissioner Broad, regarding alternative workweek schedules and election procedures:
Wage Orders 4 and 5 are amended as follows:
(A) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to a voluntary written agreement proposed by the employer and ratified in a secret ballot election held in accordance election procedures required by this Order by at least two-thirds (2/3) vote of the affected employees in the work unit, a regularly scheduled alternative work week schedule of not more than ten (10) hours per day within a forty (40) hour workweek without the payment of an overtime rate of compensation, provided that all work performed in any workday beyond the schedule established by the agreement up to twelve (12) hours a day or beyond forty (40) hours per week shall be paid at one and one-half (1½) times the employees regular rate of pay. All work performed in excess of twelve hours (12) hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled workdays established by the alternative workweek agreement shall be paid at a rate of twice the employees regular rate of pay.
(B) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to a voluntary written agreement proposed by the employer and ratified in a secret ballot election held in accordance election procedures required by this Order by at least two-thirds (2/3) vote of the affected employees in the work unit, a regularly scheduled alternative workweek of twelve (12) hours per day within a thirty-six (36) hour workweek without the payment of an overtime rate of compensation if, in addition to the other requirements of this section, the following conditions are met:
(1) An alternative workweek consisting of three 12-hour shifts, shall be limited to licensed or certified healthcare personnel employed by a licensed hospital, who are engaged in patient care, or pharmacists dispensing prescriptions in any practice setting where they are required to engage in direct patient care.
(2) All hours worked in excess of thirty-six (36) hours in a workweek shall be compensated at a rate of not less than one and one-half (1½) times the employees regular rate of pay and all hours worked in excess of twelve (12) hours in a work day or in excess of eight (8) hours on any workday beyond three days in any workweek shall be compensated at a rate of twice the employees regular rate of pay.
(3) Employees working three, 12-hour shifts per week shall be paid not less than the equivalent of forty (40) hours in a week at the regular hourly rate of pay. Part-time employees working 12-hour shifts composed of fewer than three workdays shall be paid at prorated rates consistent with this provision.
(4) No employees assigned to work a 12-hour shift established pursuant to this section shall be required to work more than 12 hours in a 24-hour period or more than 40 hours in a workweek.
(5) Employees assigned to work a 12-hour shift established pursuant to this section may voluntarily work an additional four hours of overtime in the same 24-hour period; provided, however, that every employee shall be entitled to not less than eight (8) consecutive hours off-duty within a 24-hour period.
(6) Every employee assigned to work a 12-hour shift established pursuant to this section shall be entitled to not less than one duty-free meal period during the shift, which may not be waived. However, an employee shall be entitled to a second meal period, which may be taken as an on-duty meal period by mutual consent of the employer and the employee consistent with the provisions of this Order.
(7) Any employer who reduced hourly wage rates between July 8, 1999 and January 1, 2000, for the purpose of continuing shifts which included regularly scheduled 12-hour days, shall restore that base rate of pay as a precondition to adopting an alternative workweek composed of three, 12-hour days.
(C) For the purposes of this section, "regularly scheduled" means a schedule where the length of the shift and the days of work are predesignated pursuant to a valid alternative workweek agreement.
(D) The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another.
(E) Any alternative workweek agreement adopted pursuant to this section shall provide for not less than two consecutive days off within a workweek and shall not provide for less than four (4) hours of work in any workday.
(F) Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime.
(G) If an employer, whose employees have adopted an alternative workweek agreement permitted by this Order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1½) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of twelve (12).
(H) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule.
(I) An employer shall make a reasonable effort to find a work schedule not to exceed eight hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative schedule hours established as the result of that election. At a minimum, an employer shall give an employee who is unable to work the alternative workweek schedule first priority to work an eight-hour shift in any department within the facility where the employee regularly works or any other facility operated by the employer. Nothing in this section shall prohibit an employer from permitting employees who are unable to work the hours established by the alternative workweek agreement to work 8-hour shifts within the same work unit covered by the agreement. An employer shall be permitted, but is not required, to accommodate any employee who was hired after the date of the election and who is unable to work the alternative schedule established as the result of that election. An employer shall explore any available reasonable alternative means of accommodating the religious beliefs or observance of an affected employee that conflicts with an adopted alternative workweek schedule in the manner provided by subdivision (j) of Section 12940 of the Government Code.
(J) Nothing in this section requires an employer to combine more than one rate of overtime in order to calculate the amount to be paid to an employee for any hour of overtime work.
(K) If an employee was voluntarily working an alternative workweek schedule as of July 1, 1999, that was an individual agreement made after January 1, 1998 between the employee and employer, and that agreement provides for a workday of not more than ten (10) hours, that employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in that schedule if the employee submits, and the employer approves, a written request to do so. Such a written request and approval shall have been made by May 31, 2000. An employee may revoke his or her voluntary authorization to continue such a schedule with thirty (30) days written notice to the employer.
Wage Orders 1, 7, and 9 are amended as set forth above, except that Section (B) shall not apply, and Sections (C) through (K) will be designated Sections (B) through (J), respectively. Wage Orders 2, 3, 6, 8, 10, 11, 12, and 13 are amended as set forth above, except that Sections (B) and (K) shall not apply, and Sections (C) through (J) will be designated Sections (B) through (I), respectively.
Wage Orders 4 and 5 are amended as follows:
(A) An employer may submit a proposal to hold an election seeking the adoption of an alternative workweek schedule no less than 12 months after a prior election to establish or repeal an alternative workweek schedule.
(B) All elections held pursuant to this section shall be based on a secret ballot election.
(C) Except as provided by the Alternative Workweeks Section (B)(1), for the purposes of this section, a "work unit" may include all nonexempt employees in a division, department, job classification, or shift sharing a community of interest concerning the conditions of their employment in a readily identifiable work group. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection is met.
(D) At least fourteen (14) days prior to an election on a proposal to adopt or repeal an alternative work schedule, the employer shall provide each affected employee with a written disclosure of the time and location of balloting, the effects of the adoption of the proposal on the wages, hours, and benefits of the employee, the right of employees to repeal the proposal, the neutral party selected to conduct the election pursuant to subsection (G) and the right of employees to request review by the Labor Commissioner of the appropriateness of any designated work unit. This written disclosure shall be distributed at a meeting held during the regular work hours and at the work site of the affected employees. An employer shall provide that disclosure in a non-English language, as well as in English, if at least five percent of the affected employees primarily speak that non-English language. The employer shall mail the written disclosure to employees who do not attend the meeting. The failure by the employer to distribute this written disclosure at the meeting and by mail renders the adoption of an employer-proposed alternative workweek schedule null and void.
(E) Upon the submission to the employer of a petition signed by at least one-third (1/3) of all affected employees requesting an election to repeal an alternative workweek schedule, a new secret ballot election shall be held and a majority vote of the affected employees shall be required to reverse the alternative workweek schedule. If the alternative workweek schedule is revoked, the employer shall comply within sixty (60) days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant a temporary extension not to exceed ninety (90) days for compliance. The election to repeal an alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. Failure by an employer to have an election conducted following receipt of a petition to repeal an alternative workweek, as provided in this subsection, renders the alternative workweek schedule null and void.
(F) Only employees who have been hired on a permanent full-time or permanent part-time basis or who have worked at least eight hours per week in the 13 weeks preceding the election shall be eligible to vote.
(G) Any election to establish or repeal an alternative workweek schedule shall be held during regular working hours at the worksite of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. The employer shall select a neutral third party to conduct the election from a list maintained by the Labor Commissioner of approved neutral third party organizations.
(H) Employees affected by a change in work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least thirty (30) days after the announcement of the final results of the election.
(I) No work unit may be established by an employer solely for purposes of adopting or repealing an alternative workweek schedule. The Labor Commissioner shall review and approve, reject, or modify the designation of any work unit of affected employees by an employer if a written request is made to the commissioner by an employee of the employer at least seven days prior to the date of the election held on the proposed adoption of an alternative workweek schedule.
(J) The employer shall maintain an atmosphere of neutrality regarding the election and employees shall be free from intimidation and coercion. No employee shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. Violation of this subsection shall render the alternative workweek schedule null and void.
(K) The results of any election conducted pursuant to this section shall be reported by an employer to the Division of Labor Statistics and Research within thirty (30) days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. The Division of Labor Statistics and Research shall develop a standard reporting form for employers to use for compliance with this section.
(L) In addition to the provisions of subsection E, an employer may repeal an alternative workweek schedule based on business necessity. If an employer unilaterally repeals an alternative workweek schedule, it must give employees forty-five (45) days written notice. No alternative workweek election may be held for at least one year following repeal. The employer shall report the repeal of the alternative workweek schedule to the Division of Labor Statistics and Research within thirty (30) days following repeal.
Wage Orders 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, and 13 are amended as set forth above, except that the phrase "Except as provided by the Alternative Workweeks Section (B)(1)" shall not be included in Section (C).
3. Consideration of an amendment to Wage Order 5, deleting personal attendants, resident managers and employees who have direct responsibility for children in 24-hour care from Section 3(D) of that Order to comply with pertinent federal regulations.
4. In accordance with the provisions of Labor Code §§554 and 558, consideration of and public comment on an amendment to Wage Order 14, to add the language in Section 10 of Interim Wage Order 2000 (Civil Penalties) to Section 17 of Wage Order 14.
5. Further consideration of managerial duties.
6. Consideration of whether to extend the provisions of Interim Wage Order - 2000 to the effective date of amendments adopted at this hearing or at a hearing concluded on or before July 1, 2000, pursuant to Labor Code §517(a).
7. Consideration of appointment of members to the Wage Board established to review the adequacy of the minimum wage, in accordance with Labor Code §1178.5.
8. Reconsideration of actions whereby the IWC voted to convene a wage board regarding employees who work as certain computer industry consultants, and voted to appoint wage board members.
9. Further review of the wages, hours and conditions of labor and employment of stable employees in the horseracing industry, in accordance with §§517(b), 1173 and 1182.10.
In order for the IWC to provide an opportunity for those interested in speaking at the public hearing, the amount of time within which each speaker will be allowed to address the IWC may be limited. Accordingly, the public is urged to submit written statements to the IWC regarding items on the agenda in advance of the hearing. The IWC may by a majority vote of commissioners when a quorum is present, approve amendment(s) to its Wage Orders, including an effective date for the amendment(s).
For further information, contact Andrew R. Baron, Executive Officer, or other staff
members of the IWC, at
INDUSTRIAL WELFARE COMMISSION
Bill Dombrowski, Chair
Doug Bosco, Commissioner
Barry Broad, Commissioner
Leslee Coleman, Commissioner
Harold Rose, Commissioner