July 5, 2000

MINUTES of PUBLIC HEARING
OF THE
INDUSTRIAL WELFARE COMMISSION

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 was held on May 26, 2000, in Sacramento, at the State Capitol, Room 4202, to consider amendments proposed by one or more of the commissioners.

Chairman Bill Dombrowski opened the hearing at 10:20 a.m. Commissioners Barry Broad, Leslee Coleman, Bill Dombrowski and Doug Bosco were present. Commissioner Harold Rose was absent. The IWC's staff, including, Executive Officer Andrew Baron, Principal Analyst Michael Moreno, Analyst Nikki Verrett, Analyst Donna Scotti as well as the IWC's legal counsel, Deputy Attorney General Molly Mosley, were also present.

Commissioner Broad moved to approve the minutes from the April 14 and May 5 meetings. Commissioner Coleman seconded the motion, which passed unanimously.

Commissioner Broad proposed an amendment to language in the agenda, (attached) on the first page, (B)(1): " -- limited to licensed and certified healthcare personnel employed by a licensed, 24-hour health facility or licensed dialysis clinic, who are engaged in direct patient care, or pharmacists dispensing prescriptions in any practice setting where they are required to engage in direct patient care." Motion died for want of a second.

Commissioner Broad proposed as a substitute for language in the agenda, (attached): "All hours worked in excess of 36 hours in a workweek shall be compensated at a rate of not less than one and a half times the employee's regular rate of pay and all hours worked in excess of 12 hours in a day or in excess of 8 hours on any workday beyond three days in any workweek shall be compensated at a rate of twice the employee's regular rate of pay." Motion died for want of a second.

Commissioner Broad proposed for language in attached agenda: (B)(4: "No employees assigned to work a 12-hour shift established pursuant to this section shall be require to work more than 12 hours in a 24-hour period or more than 40 hours in a workweek, except under the conditions provided in Subsection (b). Prior to mandating overtime pursuant to this section, an employer shall exhaust all reasonable staffing alternatives, including soliciting off-duty employees to report voluntarily to work, soliciting on-duty employees to volunteer to work overtime, and recruiting per-diem and registry employees to report to work. And then (b) An employee may be required to work overtime if either of the following conditions are met: 1) a state of emergency declared by a county, state, or federal authority is in effect in the county in which the healthcare facility is located; or 2) in unanticipated and nonrecurring event which imperils patient care at the healthcare facility. An employee shall not be required to work overtime under this subsection on more than three occasions in a twelve-month period." Motion died for want of a second.

Commissioner Broad proposed as language to attached agenda: "Paragraph (5): Employees assigned to work a 12-hour shift established pursuant to this section may voluntarily work an additional 4 hours of overtime in the same 24-hour period, provided, however, that every employee shall be entitled to not less than 8 consecutive hours off-duty within a 24-hour period. That essentially caps the amount of overtime at 4 hours so that they would work a 16-hour day, maximum. Assuming that they're working other 12-hour days in the same workweek, it's possible that within a 48-hour period, they could work 32 hours, under this proposal, as opposed to 48 hours or 72 hours consecutively." Commissioner Bosco seconded the motion. Vote was two in favor and two opposed. The IWC will revisit the motion next month.

Commissioner Broad proposed as language to attached agenda: "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. The purpose here is that when you have 12-hour -- employees on 12-hour shifts, that they do have an off-duty meal period, a time which is free. Otherwise, what they would be essentially required to do is work all 12 hours and try to catch a meal period during that time." Commissioner Bosco seconded the motion. Vote was two in favor and two opposed.

Commissioner Broad proposed as language to attached agenda: "Any alternative workweek agreement adopted pursuant to this section shall provide for not less than two days off within a workweek and shall provide for not less than 4 hours of work in any workday." The motion died for want of a second.

Commissioner Broad proposed as language to attached agenda: "Paragraph (F):

Nothing in this section shall prohibit an employer and an employee, by mutual consent, 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." Commissioner Bosco seconded. The proposal passed by a vote of three to one.

Commissioner Broad proposed as substitute for attached language proposed by Chairman Dombrowski: "..in the section of Mr. Dombrowski's that refers to a reasonable (sic) operated by the employer, provided the employee meets the qualifications of this position. 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 is hired after the date of the election and who is unable to work the alternative schedule established as a 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 a manner provided by subdivision (j) of Section 12940 of the Government Code." The motion died for want of a second.

Commissioner Broad proposed as language to attached agenda: "Paragraph (C) The one that begins, For the purposes of this section, 'regularly scheduled' And the difference is that that means that they have to name - they're voting on the days of the week of their schedule as opposed to number of days. And I would sort of add to that that you would also change that in Paragraph (A). Or actually, you could leave it as scheduled workdays, actually the way it is, in your proposal. His proposal, if I understand it right, would have you designate the specific days. In other words, you would be voting on a four-10 arrangement Monday through Friday, or a menu of alternatives that the employer would propose, but that they would name the days of your schedule. The language that we adopted a moment ago allowing the employee -- in combination with what I'm just proposing and the language we adopted a moment ago, a person would have a regularly scheduled workweek, and by mutual consent with the employer, they could switch the days of the week. That's the -- that would be the effect of that." The motion died for want of a second.

Commissioner Broad proposed as language to attached agenda: "Paragraph (C) would provide that except for the alternative workweeks with regard to healthcare employees that are doing 12-hour shifts, -- 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. Or shift sharing a community of interest concerning the conditions of their employment in a readily identifiable work group is what is added. The existing rule has no concept in it that the employees have to be somehow related in some way to one another. And I think employers should -- it's very wide- ranging language as it is, but at least suggests that the employer -- and it can be down to one individual -- however, the employees need to be somehow related to one another. It does not make sense for an employer to have an alternative workweek schedule that has, the janitors in one facility and the television engineers in another facility of the same employer voting together." Commissioner Bosco seconded. The vote was two in favor and two opposed.

Commissioner Broad proposed as language to the attached agenda: "Paragraph (D) -- says that, At least 14 days prior to an election on a proposal to adopt or repeal an alternative workweek schedule, the employer shall provide each affected employee with a written disclosure of the time and location of the balloting, the effects of the adoption of the proposal on the wages, hours, and benefits of the employee, the rights of employees to repeal the proposal" -- and the new -- and then I will strike "the neutral party selected to conduct the election pursuant to (D), and the right of employees to request of the Labor Commissioner of the appropriateness of a 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 English if at least 5 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 an 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. The difference here is -- actually, it just sort of fleshes out what the requirement is. Right now there is nothing that -- the employer has to hold a meeting, as I understand it, under Mr. Dombrowski's proposal, but doesn't -- it's not clear what happens to people who can't -- who are not there that day at work, or who are sick. This requires them to just mail the written notice that's already required to them and to provide -- where you have non-English-speaking employees, to provide it in that language so that they can understand what they're voting on. I think that would be the only significant changes from the current requirement." The motion died for want of a second.

Commissioner Broad proposed as language to attached agenda: "Paragraph (G): Any election to establish or repeal an alternative workweek schedule shall be held during the regular working hours at the work site of the affected employees. The employer shall bear the costs of conducting an election held pursuant to this section is current law, but is not in the wage orders, and I think should be specified. They can't charge the employees for the costs of conducting an election. Upon complaint by an affected employee and after investigation by the Labor Commissioner, the Labor Commissioner may require the employer to select a neutral third party to conduct the election." Commissioner Dombrowski seconded the motion. The motion unanimously carried.

Commissioner Broad proposed as language to attached agenda: "Paragraph (H): Employees affected by the change in any work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new hours for at least 30 days after the announcement of the final results of the election. The purpose of this is to ensure that people can rearrange their lives to do this. We heard a great deal of testimony about family matters and childcare and other concerns that are raised. Going from an 8-hour shift to -- you know, five 8-hour days to three 12-hour days, would necessarily require major changes in things like childcare and transportation. So I think this is a very reasonable proposal." Commissioner Bosco seconded the motion. The motion unanimously carried.

Commissioner Broad proposed as language to attached agenda: "Paragraph (I), it's already in the proposal, and it is in the statute, I believe, as well as in the proposal -- correct me if I'm wrong -- I know it's in the statute -- I'm not sure if it's in Mr. Dombrowski's proposal -- but:

No work unit may be established by an employer solely for the purposes of adopting or repealing an alternative workweek schedule. The Labor Commissioner ---- and this is new -- -- 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. The Labor Commissioner's determination shall be final and binding. This allows employees who feel like this is a bizarre or inappropriate work unit, where people do not belong together in any logical way, to make a request to the Labor Commissioner. The Labor Commissioner -- the Labor Commissioner's determination would settle the matter for all purposes for that election." Commissioner Bosco seconded the motion. The vote was two in favor and two opposed.

Mr. Baron clarified that all issues that received two-to-two votes will be noted for reconsideration.

Commissioner Bosco moved to adopt the chair's amended proposal. Commissioner Coleman seconded the motion. The motion passed by three to one vote.

Commissioner Dombrowski moved that Item 3 of the Agenda, consideration of 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 the federal regulations, be put over until the next hearing. Commissioner Coleman seconded the motion, which then passed unanimously.

Commissioner Bosco moved to adopt Item 4 of the Agenda. Commissioner Coleman seconded, which then passed unanimously.

Commissioner Broad moved to adopt Item 6 of the Agenda with the amendment "Be no later than October 1, 2000" Commissioner Coleman seconded, and it passed unanimously.

Commissioner Broad moved to accept named members to the Minimum Wage Board. Commissioner Coleman seconded. The motion unanimously carried.

Commissioner Broad moved to accept the charge to the Minimum Wage Board. Commissioner Bosco seconded. The motion unanimously carried.

Commissioner Coleman moved to reconsider Item 8. Commissioner Broad seconded. The motion unanimously carried.

Commissioner Broad moved to close the investigation of wages, hours, and conditions of labor and employment of stables employees in the horseracing industry. Commissioner Bosco seconded it, which was unanimously adopted.

The following individuals presented testimony:

DON MADDY, George Steffes, Inc.; California Healthcare Association
KERRY RODRIGUEZ MESSER, California Association of Health Facilities
KATHY REES, California Assisted Living Facilities Association
RICHARD SIMMONS, Sheppard, Mullin, Richter & Hampton; California Healthcare Association
TOM LUEVANO, Sutter Health
MICHAEL ARNOLD California Dialysis Council
DENYNE KOWALEWSKI, California Association for Health Services at Home
HOLLY SWIGER, Vitas Healthcare; California Hospice and Palliative Care Association
ROBYN BLACK, Aaron Reed & Associates; California Society for Respiratory Care
RANDY CLARK, California Respiratory Care Therapists
CINDY LAUBACHER, California Veterinary Medical Association
CHARLES SKOIEN, JR., Community Residence Care Facilities of California
WARDELL JACKSON, Association of California Care Home Operators
TONY MARTINNO, Association of California Care Home Operators
LILA SMITH, respiratory therapist
PATRICIA HARDER, registered nurse
TOM RANKIN, California Labor Federation, AFL-CIO
RICHARD HOLOBER, California Nurses Association
TOM RANKIN, California Labor Federation, AFL-CIO
GLENDA CANFIELD, Service Employees International Union
RICHARD HOLOBER, California Nurses Association
PATRICIA GATES, Van Bourg, Weinberg, Roger & Rosenfeld
GLENDA CANFIELD, Service Employees International Union
DEBORAH BAYER, registered nurse; California Nurses Association
TOM RANKIN, California Labor Federation, AFL-CIO
MICHELLE CHINARD, registered nurse, County of Marin Psychiatric Emergency Service
ALLEN DAVENPORT, Service Employees International Union
MIKE ZACKOS, United Nurses Associations of California
BILL CAMP, Sacramento Central Labor Council
BARBARA DENT, registered nurse
CHERYL OBASIH-WILLIAMS, Tenet employee
CAROL SWEET, Tenet employee

Managerial Duties

BRUCE YOUNG, California Retailers Association
LYNN THOMPSON, Law Firm of Brian Kays
JAMES ABRAMS, California Hotel and Motel Association
TOM RANKIN, California Labor Federation, AFL-CIO
MARCIE BERMAN, California Employment Lawyers Association
SCOTT WETCH, State Building and Construction Trades Council of California, AFL-CIO

MATTHEW McKINNON, California Conference of Machinists
PATRICIA GATES, Van Bourg, Weinberg, Roger & Rosenfeld
RICHARD HOLOBER, California Nurses Association
BILL CAMP, Sacramento Central Labor Council

TOM RANKIN, California Labor Federation, AFL-CIO
JULIANNE BROYLES, California Chamber of Commerce

ALLEN DAVENPORT, Service Employees International Union