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May 31, 2000

 

NOTICE OF PUBLIC HEARING
of the
INDUSTRIAL WELFARE COMMISSION
June 30, 2000
Sacramento

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 15. A public hearing will therefore be held on June 30, 2000, in Sacramento, at the State Capitol, Room 4202, to consider amendments proposed by one or more of the commissioners. The hearing will commence at 10:00 a.m.

1. Approval of Minutes

2. Consideration of the following proposed amendments to the IWC’s Wage Orders 1 through 13 and 15 from the Interim Wage Order:

            DEFINITIONS

    1. "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day.
    2. "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods.
    3. An "Alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period.

                    DAILY OVERTIME - GENERAL PROVISIONS

The following overtime provisions are applicable to employees eighteen (18) years of age or over and to employees sixteen (16) or seventeen (17) years of age who are not required by law to attend school: such employees shall not be employed more than eight (8) hours in any workday or more than forty (40) hours in any workweek unless the employee receives one and one-half (1) times such employee’s regular rate of pay for all hours worked over forty (40) hours in the workweek. Eight (8) hours of labor constitutes a day’s work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than:

(A) One and one-half (1) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours up to and including twelve (12) hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work; and

(B) Double the employee’s regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work.

(C) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee’s regular hourly salary as 1/40th of the employee’s weekly salary.

COLLECTIVE BARGAINING AGREEMENTS


(A) Section 3. Hours and Days of Work - pertinent collective bargaining subsections in this Section of these Orders shall be amended to state that certain subsections of Section 3 shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than thirty (30) percent more than the state minimum wage.

(B) Notwithstanding Subsection (A), where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one day’s rest in seven shall apply, unless the agreement expressly provides otherwise.

MAKE UP TIME

If an employer approves a written request of an employee to make-up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that make-up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of eleven (11) hours of work in one day or forty (40) hours of work in one workweek. If an employee knows in advance that he or she will be requesting make-up time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make-up work time for up to four weeks in advance; provided, however, that the make-up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up a work time pursuant to this Section. While an employer may inform an employee of this make-up time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make-up the work hours within the same workweek pursuant to this Section.

                    MEAL PERIODS

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee.

(B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than thirty (30) minutes, except that if the total hours worked is no more than twelve (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

(C) Section 17 Exemptions - delete the words "Section 11, Meal Periods," in accordance with Labor Code 512.

MINORS

VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.

                    PENALTIES

In addition to any other civil or criminal penalty provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to a civil penalty of:

(A) Initial Violation - $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover underpaid wages.

(B) Subsequent Violations - $100.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover underpaid wages.

(C) The affected employee shall receive payment of all wages recovered.

The Labor Commissioner may also issue citations pursuant to Labor Code  1197.1 for payment of wages for overtime work in violation of this order.

3. Reconsideration of actions by the Commission at the May 26 public hearing. (Attachment A)

The IWC shall review the attached language adopted at the May 26 public hearing. Among the subjects to be reconsidered are the following:

-the definition of the health care industry and health care industry employees for the purpose of determining who is eligible for 12-hour shifts without the payment of overtime.
-whether employees working regular 12-hour shifts should receive overtime in excess of 36 hours or in excess of 40 hours worked in a workweek.
-circumstances in which mandatory overtime may be required for employees working 12-hour shifts.
-an absolute limit on work time within a 24-hour period for those employees working 12-hour regularly scheduled shifts within an alternative workweek arrangement.
-employee entitlement to duty-free meal periods.
-whether workers should be required to share a community of interest in setting a work unit.
-whether the 14-day disclosure by the employer to employees concerning the election shall be in a non-English language where applicable.
-whether employees may seek approval of the work unit by the Labor Commissioner.

4. Pursuant to Labor Code 517(b), consideration of the following proposals by Commissioner Broad concerning meal and rest periods for Orders 1-13 and 15:

-An employer shall pay the employee one hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided. Whenever any employer fails to provide an employee a meal period or rest period in accordance with the applicable provisions of these orders, it shall pay the employee one hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided.
-Amend Section 11, "Meal Periods," in each order to add at the end of the subsection regarding on-duty meal periods that the written agreement shall state that the employee may, in writing, revoke the agreement at any time.

5. 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.

(D)This section does not apply to personal attendants as defined in section 2(K), nor to adult employees or minors who are permitted to work as adults who have direct responsibility for children under eighteen (18) years of age receiving twenty-four hour care, nor to organized camp counselors, nor to resident managers of homes for the aged having less than eight (8) beds: provided that persons employed in that occupation shall not be employed more than fifty-four (54) hours and six (6) days in any, except under the following conditions:

6. Pursuant to Labor Code 517(b), consideration of the following language proposed by Commissioner Broad regarding the commercial fishing industry:

Amend Wage Order 10 (Amusement and Recreation) as follows:

Add a new section 3(l):

(l) The provisions of this section are not applicable to any crew member employed on a commercial passenger fishing boat licensed pursuant to Article 5 (commencing with Section 7920) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code.

Add a new section 4(E):

(E) If the employee is a crew member employed on a commercial passenger fishing boat licensed pursuant to Article 5 (commencing with Section 7920) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code, the minimum wage obligation of this section may, at the employer’s option, be satisfied by paying employees according to the following formula:

(1) A "one-half day trip" shall be comprised of a maximum of five (5) hours of work compensated at a rate of no less than five (5) times the hourly minimum wage.

(2) A "three-quarter day trip" shall be comprised of a maximum of eight (8) hours of work compensated at a rate of no less than eight (8) times the hourly minimum wage.

(3) A "full-day trip" shall be comprised of a maximum of ten (10) hours of work compensated at a rate of no less than ten (10) times the hourly minimum wage.

(4) An "overnight trip" shall be comprised of a maximum of twelve (12) hours worked within a twenty-four (24) hour period compensated at a rate of no less than twelve (12) times the hourly minimum wage.

Nothing in this subsection relieves the employer of the obligation to pay employees no less than the minimum wage for all hours worked.

Add a new section 7(E):

(E) If the employee is a crew member employed on a commercial passenger fishing boat licensed pursuant to Article 5 (commencing with Section 7920) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code, the provisions of subsections 3 and 5 may, at the employer’s option, be satisfied by expressing the hours worked in terms of the formula established pursuant to section 4 (E). Hours worked in excess of the formula in section 4(E) shall be recorded on the employee’s pay record as additional hours worked.

Amend Wage Order 14 (Agricultural Occupations) as follows:

Add a new subsection (7) to Section 2 (C):

(7) The harvesting of fish, as defined by Section 45 of the Fish and Game Code, for commercial sale.
(Change current #7 to #8)

Add a new subsection (F) to Section 1, Applicability of Order:

(F) Section 3 of this Order shall not apply to an employee licensed pursuant to Article 3 (commencing with Section 7850) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code who serves as a crew member on a commercial fishing vessel.

7. Pursuant to Labor Code 517 (b), consideration of the following proposed language by Commissioner Dombrowski regarding the ski industry:

Amend Wage Order 10 as follows:

No employer who operates a ski establishment shall be in violation of this Order by instituting a regularly scheduled workweek of not more than forty-eight (48) hours during any month of the year when Alpine or Nordic skiing activities, including snowmaking and grooming activities, are actually being conducted by the ski establishment; provided, however, that any employee shall be compensated at a rate of not less than one and one-half times the employee’s regular rate of pay for any hours worked in excess of 10 hours work in a day or forty-eight (48) hours in a workweek. For purposes of this section, "ski establishment" means an integrated, geographically limited recreational industry which is comprised of basic skiing facilities, together with all operations and facilities related thereto.

8 Consideration of the types of executive, administrative, and professional duties that meet the test of the exemption from an overtime rate of compensation as provided in Section 515(a). Proposed language for consideration is set forth in Attachment B.
(Attachment B)

9. Consideration of summaries and statements as to the basis for the wage orders reflecting commission actions.

10. Consideration of whether to extend the provisions of Interim Wage Order - 2000 to the effective date of proposals adopted at this hearing pursuant to Labor Code 517(a).

Any action taken by the Industrial Welfare Commission at this hearing to adopt wage, hours, and working conditions orders is taken pursuant to the provisions of Labor Code 517 (a). In furtherance of that Section, the effective date of such actions taken at this public hearing shall be no later than October 1, 2000. If the IWC takes no action to amend the Interim Wage Order Section 5(K), (L), (M), or (N), the provisions of those subsections shall expire on July 1. The remaining provisions of the Interim Wage Order 2000, as well as Wage Orders 1-15 currently in effect, shall remain operative until superceded.

In order for the IWC to provide an opportunity for interested parties to speak at the public hearing, the amount of time that which each speaker will be allowed to address the IWC may be limited. Accordingly, the public is strongly urged to submit written statements to the IWC regarding items on the agenda no later than 72 hours in advance of the hearing. The IWC may, by a majority vote of commissioners when a quorum is present, approve amendment(s) to the Interim Wage Order, 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 (916) 322-0167.

INDUSTRIAL WELFARE COMMISSION

Bill Dombrowski, Chair
Doug Bosco, Commissioner
Barry Broad, Commissioner
Leslee Coleman, Commissioner
Harold Rose, Commissioner