Group 2. Industry and Occupation Orders
Article 13. Industries Preparing Agricultural Products for Market, on the Farm
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§11130. Order Regulating Wages, Hours, and Working Conditions in the Industries Preparing Agricultural Products for Market, on the Farm.
1. Applicability of Order. This Order shall apply to all persons employed in industries preparing agricultural products for market, on the farm, whether paid on a time, piece rate, commission, or other basis, except that:
(A) Provisions of sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities. No person shall be considered to be employed in an administrative, executive or professional capacity unless one of the following conditions prevails:
(1) The employee is engaged in work which is primarily intellectual, managerial or creative, and which requires exercise of discretion and independent judgment, and for which the remuneration is not less than $900.00 per month; or
(2) The employee is licensed or certified by the State of California and is engaged in the practice of one of the following recognized professions: law, medicine, dentistry, pharmacy, optometry, architecture, engineering, teaching, or accounting.
(B) The provisions of this Order shall not apply to employees directly employed by the State or any county, incorporated city or town or other municipal corporation, or to outside salespersons.
(C) Provisions of this Order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer.
2. Definitions.
(A) "Commission" means the Industrial Welfare Commission of the State of California.
(B) "Division" means the Division of Labor Standards Enforcement of the State of California.
(C) "Industries Preparing Agricultural Products for Market, on the Farm" means any operation performed in a permanently fixed structure or establishment on the farm or on a moving packing plant on the farm for the purpose of preparing agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced the products referred to herein and includes all operations incidental thereto.
(D) "Employ" means to engage, suffer, or permit to work.
(E) "Employee" means any person employed by an employer.
(F) "Employer" means any person as defined in section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.
(G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.
(H) "Minors" means, for the purpose of this Order, any person under the age of eighteen (18) years.
(I) "Outside Salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.
(J) "Primarily" as used in section 1, Applicability, means more than one-half the employee's work time.
(K) "Split shift" means a work schedule which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.
(L) "Teaching" means, for the purpose of section 1 of this Order the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing.
(M) "Wages" (See California Labor Code, section 200)
(N) "Workday" means any consecutive 24 hours beginning at the same time each calendar day.
(O) "Workweek" means 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. Hours and Days of Work.
(A) 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 1/2) times such employee's regular rate of pay for all hours worked over forty (40) hours in the workweek. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible under the following conditions:
(1) Any work by an employee in excess of seventy-two (72) hours in any one workweek shall be on a voluntary basis. No employee shall be discharged or in any other manner discriminated against for refusing to work in excess of seventy-two (72) hours in any one workweek; and
(2) Overtime hours shall be compensated at:
(a) One and one-half (1 1/2) 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) day of work.
(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) day of work in any workweek.
(B) No employer shall be deemed to have violated the provision of the above subsection (A) by instituting, pursuant to a written agreement voluntarily executed by the employer and at least two-thirds (2/3) of the affected employees before the performance of the work, a regularly scheduled week of work which includes not more than four (4) working days of not more than ten (10) hours each so long as the employee receives at least two (2) consecutive days off within each workweek, provided that:
(1) The employer is not required to pay the premium wage rate prescribed in subsection (A) for the 9th and 10th hours worked during such workdays;
(2) If an employee on such a four-day schedule is required or permitted to work more than ten (10) hours in any workday, the premium wage rate provisions in subsection (A) above shall apply to such employee for those hours worked in excess of the 10th hour of that workday;
(3) Any employee on such a schedule who is required or permitted to work on more than four (4) days shall be compensated at the rate of not less than one and one-half (1 1/2) times the employee's regular rate of pay for the first eight (8) hours on such additional workdays and double the employee's regular rate of pay for work in excess of eight (8) hours on those workdays.
(4) After a lapse of twelve (12) months and upon petition of a majority of the affected employees a new vote shall be held and a two-thirds (2/3) vote of the affected employees will be required to reverse the agreement above. If such agreement is revoked the employer shall comply within sixty (60) days. Upon a proper showing by the employer of undue hardship, the Division may grant an extension of the time for compliance.
(C) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over forty (40) hours in any workweek except that minors sixteen (16) and seventeen (17) years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) above.
(VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $100 to $5,000 as well as to criminal penalties provided herein. Refer to California Labor Code sections 1285 to 1311 and 1390 to 1398 for additional restrictions on the employment of minors. Employers should ask school districts about required work permits.)
(D) An employee may be employed on seven (7) workdays in one workweek with no overtime pay required when the total hours of employment during such workweek do not exceed thirty (30) and the total hours of employment in any one workday thereof do not exceed six (6).
(E) If, during any workday an employer declares a work recess of one-half (1/2) hour or more, other than a meal period, and the employer notifies the employees of the time to report back for work and permits them to leave the premises, such recess need not be treated as hours worked provided that there shall not be more than two (2) such recess periods within one shift and the total duration does not exceed two (2) hours. Work stoppages of less than one-half (1/2) hour may not be deducted from hours worked.
(F) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food or drink or for heating food or drink; and a suitable sheltered place shall be provided in which to consume such food or drink.
(G) The provisions of this section are not applicable to employees whose hours of service are regulated by
(1) the United States Department of Transportation Code of Federal Regulations, title 49, sections 395.1 to 395.13, Hours of Service of Drivers, or
(2) Title 13 of the California Code of Regulations, subchapter 6.5, sec. 1200 and following sections, regulating hours of drivers.
(H) Except as provided in subsections (C) and (F), this section shall not apply to any employee covered by a collective bargaining agreement if said agreement provides premium wage rates for overtime work and a cash wage rate for such employee of not less than one dollar ($1.00) per hour more than the minimum wage.
4. Minimum Wages.
(A) Every employer shall pay to each employee wages not less than four dollars and seventy-five cents ($4.75) per hour for all hours worked, effective October 1, 1996; not less than five dollars ($5.00) per hour for all hours worked, effective March 1, 1997; not less than five dollars and fifteen cents ($5.15) per hour for all hours worked, effective September 1, 1997; and not less than five dollars and seventy-five cents ($5.75) per hour for all hours worked, effective March 1, 1998, except:
(1) LEARNERS. Employees 18 years of age or over, during their first one hundred and sixty (160) hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than eighty-five percent (85%) of the minimum wage rounded to the nearest nickel.
(2) MINORS may be paid not less than eighty-five percent (85%) of the minimum wage rounded to the nearest nickel provided that the number of minors employed at said lesser rate shall not exceed twenty-five percent (25%) of the persons regularly employed in the establishment. An employer of less than ten (10) persons may employ three (3) minors at said lesser rate. The twenty-five percent (25%) limitation on the employment of minors shall not apply during school vacations.
(3) Minors sixteen (16) and seventeen (17) years old must be paid the minimum wage for all hours worked within any workweek during which they work overtime.
NOTE: Under certain conditions, the full minimum wage may be required for minors under 16 years of age. See Labor Code section 1391.2(b).
(B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment.
(D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards.
5. Reporting Time Pay.
(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage.
(B) If an employee is required to report for work a second time in any workday and is furnished less than two hours of work on the second reporting, said employee shall be paid for two hours at the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when:
(1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or
(2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system; or
(3) The interruption of work is caused by an Act of God or other cause not within the employer's control.
(D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time.
6. Licenses for Handicapped Workers. A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any.
A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees.
All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division.
(See California Labor Code, sections 1191 and 1191.5.)
7. Records.
(A) Every employer shall keep accurate information with respect to each employee including the following:
(1) Full name, home address, occupation and social security number.
(2) Birthdate, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.
(4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee.
(5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request.
(6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer.
(B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing:
(1) all deductions;
(2) the inclusive dates of the period for which the employee is paid;
(3) the name of the employee or the employee's social security number; and
(4) the name of the employer; provided all deductions made on written orders of the employee may be aggregated and shown as one item.
(C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable.
8. Cash Shortage and Breakage. No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee.
9. Uniforms and Equipment.
(A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color.
NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board.
(B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards.
NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to section 400 and following of the Labor Code, or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job.
(D) No extra player shall be required by the employer to wear any wardrobe, consisting of wearing apparel and/or other accessories, after prior use thereof by another, unless it shall have been first cleaned or laundered and/or made sanitary at the employer's expense.
10. Meals and Lodging.
(A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods.
"Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary, according to usual and customary standards. Employees shall not be required to share a bed.
(B) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following:
Effective Effective
January 1, 1998 March 1, 1998
Room occupied alone..........$24.25 per week $27.05 per week
Room shared..................$20.00 per week $22.30 per week
Apartment--two-thirds
(2/3) of the ordinary
rental value, and in no
event more than..............$290.80 per month $324.70 per month
Where a couple are
both employed by the
employer, two-thirds
(2/3) of the ordinary
rental value, and in no
event more than............$430.20 per month $480.30 per month
Meals:
Breakfast..................$1.80 $2.05
Lunch......................$2.55 $2.85
Dinner.....................$3.40 $3.80
(C) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received nor lodging not used.
(D) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein.
11. 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. Unless the employee is relieved of all duty during a thirty (30) minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.
(B) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated.
12. Rest Periods. Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.
However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
13. Change Rooms and Resting Facilities.
(A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during nonworking hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean.
NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours.
14. Seats.
(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.
15. Temperature.
(A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed.
(B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60o F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68o.
(C) A temperature of not less than 68o shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use.
(D) Federal and State energy guidelines shall prevail over any conflicting provisions of this section.
16. Elevators. Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level.
17. Exemptions. If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in section 7, Records; section 11, Meal Periods; section 12, Rest Periods; section 13, Change Rooms and Resting Facilities; section 14, Seats; section 15, Temperature; or section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division.
18. Filing Reports. (See California Labor Code, section 1174(a))
19. Inspection. (See California Labor Code, section 1174)
20. Penalties. (See California Labor Code, section 1199)
21. Separability. If the application of any provision of this Order, or any section, subsection, subdivision, sentence, clause, phrase, word or portion of this Order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order. Every employer shall keep a copy of this Order posted in an area frequented by employees where it may be easily read during the work day. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this Order and make it available to every employee upon request.
NOTE: Authority cited: Section 1173, Labor Code; and California Constitution, Article XIV, Section 1. Reference: Sections 1182 and 1184, Labor Code.
HISTORY
1. Amendment filed 4-22-88; operative 7-1-88 (Register 88, No. 19).
2. Repealer of subsection 4(4) filed 1-11-89; operative 1-11-89 (Register 89, No. 4).
3. Change without regulatory effect pursuant to section 100, title 1, California Code of Regulations repealing subsection 8 (last sentence only) filed 4-24-89 (Register 89, No. 17).
4. Editorial correction of printing errors (Register 91, No. 32).
5. Amendment of subsection 4.(A) filed 9-19-96; operative 10-1-96. Submitted to OAL for printing only (Register 96, No. 38).
6. Amendment of subsection 4.(A) filed 1-14-97; operative 3-1-97. Submitted to OAL for printing only (Register 97, No. 3).
7. Amendment of order number and subsection 10.(B) filed 8-5-97; operative 1-1-98. Submitted to OAL for printing only (Register 97, No. 32).
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