1. Minutes from May 26 public hearing approved.
2. The following proposed amendments to the IWC’s Wage Orders 1 through 13, 15 and Interim Wage Order 2000 were adopted:
DEFINITIONS
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 and are not otherwise prohibited by law from engaging in the subject work: 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 (1½) 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 (1½) 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 in a workweek; 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 in a workweek.
(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 "Except as provided in subsections
referring to: overtime for minors 16 or 17 years of age, availability of place to eat for
workers on night shift, and limit on work over seventy-two (72) hours, 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 (1) day or forty (40) hours of work in one (1) 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 (4) 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)In § 17 regarding Exemptions - delete the words "Section 11, Meal Periods," in accordance with Labor Code § 512.
In addition, this section other than (C), shall not apply to Wage Orders 4 and 5 (see Item #3, Meal Periods Section), nor to Wage Order 12. See also Item #4.
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.
(In accordance with AB 60, the IWC voted to extend this Penalties Section to Wage Order 14 during the public hearing held on May 26, 2000).
3. The IWC adopted the following proposed amendments to the IWC’s Wage Orders 1-13 and Interim Wage Order 2000, concerning alternative workweeks and election procedures, as well as meal periods in Wage Orders 4 and 5:
ALTERNATIVE WORKWEEKS
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 the election procedures set forth in this wage order, a regularly scheduled alternative workweek 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. 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 employee's regular rate of pay. All work performed in excess of twelve (12) hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one (1) 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. No hours paid at either one and one-half (1½) or double the regular rate of pay shall be included in determining when forty (40) hours have been worked for the purpose of computing overtime compensation.
Include in Statement as to the basis:
After receiving testimony and correspondence from employers seeking flexibility and employees seeking predictability, the IWC concluded that the alternative workweek schedule presented to employees for their approval must establish the number of days of the workweek and the duration of the shift. The employer need not specify the actual days to be worked within that workweek prior to that alternative workweek election. However, the term "regularly scheduled" as set forth in Labor Code § 511(a), means that the employer must schedule the actual work days and the starting and ending time of the shift in advance, providing the employees with reasonable notice of any changes; wherein said changes, if occasional, shall not result in a loss of the overtime exemption. In no event does Labor Code § 511(a) authorize an employer to create a system of "on-call" employment in which the days and hours of work are subject to continual changes, depriving employees of a predictable work schedule.
(B) 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) hours for the day the employee is required to work the reduced hours.
(C) 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.
(D) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of § 12940 of the Government Code.
(E) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) 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 workweek schedule established as the result of that election.
(F) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election.
(G) The provisions of Labor Code §§ 551 and 552 regarding one (1) day’s rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7).
(H) Notwithstanding the above provisions regarding alternative workweek schedules, no employer of employees in the healthcare industry shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order a regularly scheduled alternative workweek schedule that includes work days exceeding ten (10) hours but not more than twelve (12) hours within a forty 40-hour workweek without the payment of overtime compensation, provided that:
(1) An employee who works beyond twelve (12) hours in a workday shall be compensated at double the employee’s regular rate of pay for all hours in excess of twelve (12);
(2) An employee who works in excess of forty (40) hours in a workweek shall be compensated at one and one-half (1½) times the employee’s regular rate of pay for all hours over forty (40) hours in the workweek;
(3) Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift.
(4) The same overtime standards shall apply to employees who are temporarily assigned to a work unit covered by this subsection;
(5) Any employer who instituted an alternative workweek schedule pursuant to this subsection shall make a reasonable effort to find another work assignment for any employee who participated in a valid election prior to 1998 pursuant to the provisions of Wage Orders 4 and 5 and who is unable to work the alternative workweek schedule established.
(6) An employer engaged in the operation of a licensed hospital or in providing personnel for the operation of a licensed hospital who institutes, pursuant to a valid order of the Commission, a regularly scheduled alternative workweek that includes no more than three (3) twelve (12)-hour workdays, shall make a reasonable effort to find another work assignment for any employee who participated in the vote which authorized the schedule and is unable to work the 12-hour shifts. An employer shall not be required to offer a different work assignment to an employee if such a work assignment is not available or if the employee was hired after the adoption of the twelve (12) hour, three (3) day alternative workweek schedule.
(I) For purposes of this order,
(A) The term "healthcare industry" is defined as hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, clinics operating twenty-four (24) hours per day, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis.
(B) Employees in the healthcare industry means any of the following:
(1) Employees in the healthcare industry providing patient care; or
(2) Employees in the healthcare industry working in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting; or
(3) Employees in the healthcare industry working primarily or regularly as a member of a patient care delivery team
(4) Licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care.
(C) Notwithstanding Section (I)(B), "employees in the healthcare industry" shall not include those persons primarily engaged in the following duties or combination of duties: providing meals, performing maintenance or cleaning services, or performing business office or other clerical functions.
Include in Statement as to the Basis
For Item (I)(A):The IWC received testimony and correspondence that in intermediate care and residential care facilities other regulatory agencies use the term "resident" to describe persons receiving medical care in those facilities. The IWC concluded that the term "patient" includes "residents" of those facilities as defined by Health & Safety Code: §§ 1250(c), 1250(d), 1250(e), 1250(g), 1250(h),and 1569.2(k).
For Item (I)(B)(4): Within the meaning of B&P Code §§ 4825-4857
(J) 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. Any such request and approval must be made on or before May 30, 2000. An employee may revoke his or her voluntary authorization to continue such a schedule with thirty (30) days written notice to the employer.
(K) No employee assigned to work a twelve (12) hour shift established pursuant to this Order shall be required to work more than twelve (12) hours in any twenty-four (24) hour period unless the Chief Nursing Officer or authorized executive declares that:
(1) A "healthcare emergency", as defined below, exists, and
(2) All reasonable steps have been taken to provide required staffing, and
(3) Considering overall operational status needs, continued overtime is necessary to provide required staffing.
Provided further that no employee shall be required to work more than sixteen (16) hours in a twenty-four (24) hour period unless by voluntary mutual agreement of the employee and the employer and no employee shall work more than twenty-four (24) consecutive hours until said employee receives not less than eight (8) consecutive hours off-duty immediately following the twenty-four (24) consecutive hours of work.
For the purposes of this section, a "healthcare emergency" consists of an unpredictable or unavoidable occurrence at unscheduled intervals relating to healthcare delivery, requiring immediate action.
(L) Notwithstanding Section (K), an employee may be required to work up to thirteen (13) hours in any twenty-four (24) hour period if the employee scheduled to relieve the subject employee does not report for duty as scheduled and does not inform the employer more than two (2) hours in advance of that scheduled shift that he/she will not be appearing for duty as scheduled.
(M) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000, provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of Section (F) (Election procedures). New arrangements can be entered into pursuant to the provisions of this section. Notwithstanding the foregoing, if a healthcare industry employer implemented a reduced rate for twelve (12) hour shift employees in the last quarter of 1999 and desires to reimplement a flexible work arrangement that includes twelve (12) hour shifts at straight time for the same work unit, the employer must pay a base rate to each affected employee in the work unit that is no less than that employee's base rate in 1999 immediately prior to the date of the rate reduction.
Wage Orders 1, 7, and 9 are amended as set forth above, except that Sections (H), (I), (K) and (L), shall not apply, and Section (J), above shall become Sections (H) for those Wage Orders. Wage Orders 2, 3, 6, 8, 10, 11, 12, and 13 are amended as set forth above, except that Sections (H) through (L) shall not apply. Sections I (A-C) only apply to Orders 4 and 5.
ELECTION PROCEDURES
Wage Orders 4 and 5 are amended as follows:
(A) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose 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.
Include in Statement as to the basis (same as in Alternative Workweeks Section):
After receiving testimony and correspondence from employers seeking flexibility and employees seeking predictability, the IWC concluded that the alternative workweek schedule presented to employees for their approval must establish the number of days of the workweek and the duration of the shift. The employer need not specify the actual days to be worked within that workweek prior to that alternative workweek election. However, the term "regularly scheduled" as set forth in Labor Code § 511(a), means that the employer must schedule the actual work days and the starting and ending time of the shift in advance, providing the employees with reasonable notice of any changes; wherein said changes, if occasional, shall not result in a loss of the overtime exemption. In no event does Labor Code § 511(a) authorize an employer to create a system of "on-call" employment in which the days and hours of work are subject to continual changes, depriving employeesof a predictable work schedule.
(B) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees’ work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection is met.
(C) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees’ wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least fourteen (14) days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule An employer shall provide that disclosure in a non-English language, as well as in English, if at least five (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. Failure to comply with this section shall make the election null and void;
(D) 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. Upon a complaint by an affected employee, and after an investigation by the Labor Commissioner, the Labor Commissioner may require the employer to select a neutral third party to conduct the election.
(E) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than thirty (30) days after the petition is submitted to the employer, except that the election shall be held not less that twelve (12) months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. However, where an alternative workweek schedule was adopted between October 1, 1999 and the effective date of this Order, a new secret ballot election to repeal that alternative workweek schedule shall not be subject to the twelve (12) month interval between elections. The election shall take place during regular working hours at the employees’ work site. 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 an extension of time for compliance.
(F) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the 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.
(G) 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.
(H) Employers shall not intimidate or coerce employees to vote either in support or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of subsection shall be subject to Labor Code § 98 et seq.
Wage Orders 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, and 13, are amended as set forth above, except for Subsection E which will read as follows:
(E) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than thirty (30) days after the petition is submitted to the employer, except that the election shall be held not less that twelve (12) months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees’ work site. 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 an extension of time for compliance.
MEAL PERIODS
Pursuant to the provisions of Labor Code § 516, and notwithstanding the provisions of Labor Code § 512, Wage Orders 4 and 5 will read as follows:
(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 an 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 the employee and employer agree in writing to an on-the-job paid meal period.
(B) In all places of employment where employees are required to eat on the premises, the employer shall designate a suitable place for that purpose.
(C) Notwithstanding any other provision of this order, employees in the healthcare industry who work shifts in excess of eight (8) hours total in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer with at least one (1) day’s written notice. The employee shall be fully compensated for all working time, including an on-the-job meal period, while such a waiver is in effect.
4. Pursuant to Labor Code §§ 516 and 517(a), the following proposal concerning meal and rest periods for Wage Orders 1-13 and 15 were adopted:
-If an 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 additional 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. The IWC adopted the following proposed amendment to Wage Order 5, deleting personal attendants, resident managers and employees who have direct responsibility for children in twenty-four (24) hour care from Section 3(D) of that Order to comply with pertinent federal regulations.
3. Hours and Days of Work
(D) This section does not apply to organized camp counselors who are not employed more
than fifty-four (54) hours not more than six (6) days in any workweek except under the
conditions set forth below. This section shall also 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 resident managers of homes for the aged having
less than eight (8) beds, provided that persons employed in such occupations shall not be
employed more than forty (40) hours nor more than six (6) days in any workweek; except
under the following conditions:
In case of emergency, employees may be employed in excess of forty (40) hours or six (6) days in any workweek, provided the employee is compensated for all hours in excess of forty (40) hours and six (6) days in the workweek, at not less than one and one-half (1½) times the employee's regular rate of pay. However, regarding organized camp counselors, in case of emergency they may be employed in excess of fifty-four (54) hours or six (6) days, provided that they are compensated at not less than one and one half (1½) times the employee's regular rate of pay for all hours in excess of fifty-four (54) hours and six (6) days in the workweek.
6. Pursuant to Labor Code § 517(b), the IWC adopted the following proposal 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 § 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 § 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 six (6) hours of work compensated at a rate of no less than six (6) times the hourly minimum wage.
(2) A "three-quarter 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.
(3) A "full-day trip" shall be comprised of a maximum of twelve (12) hours of work compensated at a rate of no less than twelve (12) times the hourly minimum wage.
(4) An "overnight trip" shall be comprised of a maximum of twelve (12) hours worked within a period of no less than twenty-four (24) hours 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 § 7920) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code, the provisions of (A)(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.
Add the following sentence to Section 12, Rest Periods:
A crew member employed on a commercial passenger fishing boat who is on an overnight trip within the meaning of Section 4 (E) shall receive no less than eight (8) hours off-duty time during each twenty-four (24) hour period.
Statement as to the Basis
(Section 3)
The IWC received testimony from persons employed in the commercial passenger fishing industry that, due to the uncertain length of the work day as well as long established customs in the industry, which is highly dependent on the availability of fish, it would be inappropriate to impose a requirement that employees receive overtime pay. In addition, commercial passenger fishing boats are subject to minimum manning requirements regulated by the United States Coast Guard, Title 46, Code of Federal Regulation, Part 15, which limit the number of hours that crew members may work while at sea. There is also an exemption from overtime requirements for commercial fishing vessels under the Fair Labor Standards Act. Therefore, the IWC concluded that it would continue the exemption from Section 3, formerly set forth in the Labor Code § 1182.3, for employees of commercial passenger fishing boats when they perform duties as licensed crew members. Such an exemption would not apply to other employees in the industry, such as clerical or maintenance personnel, who do not perform duties as licensed crew members on fishing boats.
(Section 4)
The IWC received testimony from representatives of the commercial passenger fishing industry that the custom in the industry was to pay crew members on the basis of "one-half day," "three-quarter day," "full day," or "overnight" trips. These employers wished to continue this custom consistent with their obligation to pay the minimum wage for all hours worked. The provisions of Section 4 (E) would allow employers to record pay of crew members in accordance with a formula based on the length of the trip. However, if the trip exceeds the defined hours of the formula, the additional hours would have to be recorded as additional hours worked and compensated accordingly. In practice, this alternative record keeping system may result in employees being paid more than the actual hours worked, but can never result in them being paid less than the actual hours worked. It is, therefore, primarily established as a convenience for employers. It is noted that regulations of the United States Coast Guard establish minimum crew standards which are intended to insure that, when boats are at sea for protracted periods, they receive adequate rest periods.
(Section 12)
The IWC added the last paragraph of Section 12 to insure that crew members on commercial passenger fishing boats are at sea for periods of twenty-four (24) hours or longer receive no less than eight (8) hours off-duty within each twenty-four (24) hour period to permit the employee to sleep. This rest period is in addition to the meal and rest periods otherwise required under Section 12.
Amend Wage Order 14 (Agricultural Occupations) as follows:
Add a new Subsection (7) to Section 2 (C):
(8) The harvesting of fish, as defined by § 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 § 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.
Statement as to the Basis
The IWC received testimony from persons employed in the commercial fishing industry that, due to the uncertain length of the work day as well as long established customs in the industry, which is highly dependent on the availability of fish, it would be inappropriate to impose a requirement that employees receive overtime pay. There is also an exemption from overtime requirements for commercial fishing vessels under the Fair Labor Standards Act. Therefore, the IWC concluded that it would continue the exemption from Section 3, formerly set forth in Labor Code § 1182.3, for employees of commercial fishing vessels when they perform duties as licensed crew members. Such an exemption would not apply to other employees in the industry, such as clerical or maintenance personnel, who do not perform duties as licensed crew members on fishing vessels.
7. Pursuant to Labor Code § 517 (b), the IWC adopted the following proposed language 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 (1½) the employee’s regular rate of pay for any hours worked in excess of ten (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. The IWC adopted the following proposal regarding executive, administrative, and professional duties as provided for in AB 60 - Labor Code § 515:
DUTIES TEST FOR OVERTIME EXEMPTIONS
Sections 3 through 12 of this Order shall not apply to persons employed in administrative, executive or professional capacities. The following requirements shall apply in determining whether an employee’s duties meet the test to qualify for an exemption from those sections:
A. Executive Exemption. A person employed in an executive capacity means any employee:
(1) Whose duties and responsibilities involve the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and
(2) Who customarily and regularly directs the work of two or more other employees therein; and
(3) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
(4) Who customarily and regularly exercises discretionary powers; and
(5) Who is primarily engaged in duties which meet the test of the exemption. For purposes of this provision, "primarily engaged in" means that more than one-half (½) of the employee’s work time must be spent engaged in exempt work. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order (29 C.F.R. §§ 541.102, 541.104-111, 541.115-116) and shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement.
(6) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code § 515(c) as forty (40) hours per week.
B. Administrative Exemption. A person employed in an administrative capacity means any employee:
(1) Whose duties and responsibilities involve either:
(a) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer’s customers, or
(b) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department of subdivision thereof; in work directly related to the academic instruction or training carried on therein; and
(2) Who customarily and regularly exercises discretion and independent judgment; and
(3) (a) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section), or
(b) who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or
(c) who executes under only general supervision special assignments and tasks, and
(4) Who is primarily engaged in duties which meet the test of the exemption. For purposes of this provision, "primarily engaged in" means that more than one-half (1/2) of the employee’s work time must be spent engaged in exempt work. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order (29 C.F.R. §§ 541.201-205, 541.207-208, 541.210, 541.215) and shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement.
(5) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time is defined in Labor Code § 515(c) as forty (40) hours per week.
C. Professional Exemption. A person employed in a professional capacity means any employee who meets all of the following requirements:
(1)(a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or
(b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of:
(i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished form a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes or work that is an essential part of or necessarily incident to any of the above work; or
(ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which an be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and
(iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
(2) Who customarily and regularly exercises discretion and independent judgment in the performance of the duties set forth in paragraph (1).
(3) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment.
(4) Subsection (1) (b) is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this Wage Order: 29 CFR §§ 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and 541.310.
(5) Notwithstanding the provisions of this subsection, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this section unless they individually meet the criteria established for exemption as executive or administrative employees.
9. The IWC directed the Executive Officer to finalize the statement as to the basis and summary language in accordance with the Commission's deliberations and regulations that have been adopted. The Executive Officer shall report on its completion to the Commission.
10. The IWC adopted the following proposal regarding the effective date of its actions:
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.
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