AUGUSTUS v. ABM SECURITY SERVICES (To be called and continued to the September 29, 2016, calendar.)

Appellant’s Request for Judicial Notice

Cal.August 31, 2015

No. 8224853 IN THE SUPREME COURT OF CALIFORNIA JENNIFER AUGUSTUS,et al., SUPREME COURT Plaintiffs and Respondents, F | L -E ry Vv. ABM SECURITY SERVICES,INC., AUG 8 1 2015 Defendant and Appellant, Frank A. McGuire Clerk Denuty After a Decisionofthe Court of Appealofthe State of California, Second Appellate District, Division One, Case Nos. B243788 & B247392 The Superior Court of Los Angeles County, The Honorable John Shepard Wiley Jr. Case Nos. BC336416, BC345918, & CG5444421 DEFENDANT-APPELLANT’S MOTION FOR JUDICIAL NOTICE; MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF THEANE EVANGELIS KEITH A. JACOBY (SBN 150233) *THEODORE J. BOUTROUS, JR. (SBN 132099) DOMINIC J. MESSIHA (SBN 204544) THEANE EVANGELIS (SBN 243570) LITTLER MENDELSON,P.C. ANDREWG.PAPPAS (SBN 266409) 2049 Century Park East, 5th Floor BRADLEY J. HAMBURGER(SBN 266916) Los Angeles, CA 90067 GIBSON, DUNN & CRUTCHER LLP , Tel: (310) 553-0308 333 South Grand Ave. Fax: (310) 553-5583 Los Angeles, CA 90071 Tel: (213) 229-7000 Fax: (213) 229-7520 tboutrous@gibsondunn.com Attorneysfor Defendant and AppellantABMSecurity Services, Inc. Service on the Attorney General required per Bus. & Prof. Code, § 17209 No. 8224853 IN THE SUPREME COURT OF CALIFORNIA JENNIFER AUGUSTUS,etal., Plaintiffs and Respondents, v. ABM SECURITY SERVICES,INC., Defendant and Appellant, After a Decision of the Court ofAppealofthe State of California, Second Appellate District, Division One, Case Nos. B243788 & B247392 The Superior Court of Los Angeles County, The Honorable John Shepard WileyJr. Case Nos. BC336416, BC345918, & CG5444421 DEFENDANT-APPELLANT’S MOTION FOR JUDICIAL NOTICE; MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF THEANE EVANGELIS KEITH A. JACOBY (SBN 150233) *THEODORE J. BOUTROUS,JR. (SBN 132099) DOMINIC J. MESSIHA (SBN 204544) THEANE EVANGELIS (SBN 243570) LITTLER MENDELSON,P.C. ANDREW G. PAPPAS (SBN 266409) 2049 Century Park East, 5th Floor BRADLEY J. HAMBURGER(SBN 266916) Los Angeles, CA 90067 GIBSON, DUNN & CRUTCHER LLP Tel: (310) 553-0308 333 South Grand Ave. Fax: (310) 553-5583 Los Angeles, CA 90071 Tel: (213) 229-7000 Fax: (213) 229-7520 tboutrous@gibsondunn.com Attorneysfor Defendant and AppellantABMSecurity Services, Inc. Service on the Attorney General required per Bus. & Prof. Code, § 17209 MOTIONFOR JUDICIAL NOTICE Pursuant to Evidence Codesections 451, 452, and 459 and California Rules of Court, rule 8.520(g), Appellant ABM Security Services, Inc. (“ABM”) respectfully requests that this Court take judicial notice of the following statutory and regulatory enactments and history, which are referenced in ABM’s answeringbriefand are relevantto the interpretation of section 226.7 of the Labor Code and Wage Order No. 4, which govern this proceeding: I. Assembly Bill No. 2509 1. Assembly Committee on Labor and Employment, Analysis of Assembly Bill No. 2509 (1999-2000 Reg. Sess.) as introduced February 24, 2000, attached as Exhibit A to the Declaration of Theane Evangelis (“Evangelis Declaration”). | 2. Senate Judiciary Committee, Analysis of Assembly Bill No. 2509 (1999-2000 Reg. Sess.) as amended August 7, 2000, attached as Exhibit B to the Evangelis Declaration. I. RulemakingFile for 1952 Revisions to Wage Order No. 4 3. Industrial Welfare Commission Order No. 4-52, attached as Exhibit C to the Evangelis Declaration. 4. . Industrial Welfare Commission, Minutes of a Meeting of the Industrial Welfare Commission ofthe State ofCalifornia, May 16, 1952, 1952 Wage Order Rulemaking File, attached as Exhibit D to the Evangelis Declaration. III. Rulemaking File for 2000 Revisions to Wage Order No. 4 5. History of Basic Provisions in a Representative Order of the Industrial Welfare Commission, the Order Covering the Manufacturing Industry, 2000 Wage Order Rulemaking File, attached as Exhibit F to the Evangelis Declaration. 6. Industrial Welfare Commission, Statementas to the Basis, 2000 Wage Order Rulemaking File, attached as Exhibit E to the Evangelis Declaration. The foregoing items are appropriate subjects of judicial notice and comply with the criteria for judicial notice under the California Rules of Court: 1. They are relevant to ABM’s arguments relating to the interpretation ofWage Order No. 4 and Labor Codesection 226.7 (Cal. Rules of Court, rule 8.252(a)(2)(A)); 2. None of the items submitted with this motion relates to proceedings occurring after thejudgmentthatis the subject ofthis appeal (Cal. Rules of Court, rule 8.252(a)(2)(D)); and 3. Although they were not presented to the trial court, they are admissible regulatory and legislative history (Cal. Rules of Court, rules 8.252(a\(2)(B) and 8.252(a)(2)(C); Evid. Code, §§ 451, 452, 459). DATED: August 31, 2015 Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP By: ThAy ~ TheodoréJ. Boutrous,Jr. [IPO Attorneys for Defendant and Appellant ABMSecurity Services, Inc. TABLE OF CONTENTS Page MEMORANDUMOF POINTS AND AUTHORITIES....scsssssssssssssteesseeeee 1 TL. INTRODUCTION.eseescccossssssssecsssssssetsssssssssssssssecsssssseesecceeeesessseeseesean 1 TL. ARGUMENT ..csssssesecesccsssssssssvssessssssecessssssscessssecsssssseceescsssssssssneceeeeees 1 TIL. CONCLUSION....cscsesesscsssssssssesssssssssesssssssssessssseecssssssesssccecssessnseeeeseeen4 DECLARATION OF THEANE EVANGELIS......sssssssssssssscsssssssssssneesessssses 1 TABLE OF AUTHORITIES Page(s) CASES Associated Builders & Contractors, Inc. (1999) 21 Cal4th 352.eeeceeesenscesssssssessssecesenseseeeeseeseenseessnsseeseseees 2 Boehm & Associates v. Workers’ Comp. Appeals Bd. (2003) 108 Cal.App.4th 137.eeeeseesssessssesrenssesesseesesseesesseenssaeeeees 3 California School ofCulinary Arts v. Lujan (2003) 112 CaLApp.4th 16...cecscsceesccecssscesssesesseeneesensesesesseeeeenees 3 Jensen v. BMWofNorth America, Inc. (1995) 35 Cal.App.4th 112.cccssssscesssensesseseeneeneesaeessessseneseesseseeres 3 United Teachers ofLos Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504.0.eceeeseseecescesecesessessssssnsscssseseeseeeseesessesseeneeeens 3 STATUTES Evid. Code, § 452 ......ccccscssesssssseeseceseesesecerseecccscecerseseesescesssseessecseceeeesrenes 1 Evid. Code, § 459, subd.(€)..........:cccssscessessecesceesessessssenseeseesesenseessenseeeeseeeees 2 Lab. Code, § 226.7 ......cccccssccsscecscccesseeeessescssesessscesesessaseeseeseeeeneesaessnesesnees 1,2 RULES Cal. Rules of Court, rule 8.252(a)..........ccccssccsscssseeesseecesseeeeeecsesssensseseseneeerees 1 -Cal. Rules of Court, rule 8.252(a)(2)(A).......-secesecssesseerevsssessensssesessesneesseee 2 Cal. Rules of Court, rule 8.252(a)(2)(C)......cccsesseeeeseeseesscensecssecseeeseseesees 2,3 Cal. Rules of Court, rule 8.520(2)...........:cesssssscssecsseecensceeseesesreeseeseeesseeeennes 1 OTHER AUTHORITIES Assem.Bill 2509 (1999-2000 Reg. SeSS.) ....cececesscsccssesserseeseseseeeseeeeneens 1 REGULATIONS Cal. Indust’] Welfare Com. Order No. 4-2001 .............eceessseeseceeceeereeeeeeees 1,2 -ii- MEMORANDUMOF POINTS AND AUTHORITIES I. INTRODUCTION This action concerns whether, under Labor Code section 226.7 and Wage Order No.4-2001, on-call rest breaks are impermissible as a matter of law. Accordingly, this motion seeks judicial notice of (i) selected legislative history ofLabor Codesection 226.7, which codified certain provisions ofAB 2509, and (ii) selected regulatory history of Wage Order No. 4. These materials are referenced in the accompanying answering brief ofDefendant- Appellant ABM Security Services, Inc. (“ABM”) and confirm thatneither the California Legislature nor the Industrial Welfare Commission intended to create aper se rule prohibiting on-call rest breaks. These materials satisfy the requirements for judicial notice under the California Rules of Court, rules 8.520(g) and 8.252(a), because they are relevant to this proceeding; they do notrelate to proceedings occurring after the judgmentthatis the subject matter of this proceeding; and, although they were not presented to the lower courts, they are proper subjects ofjudicial notice under Evidence Codesection 452. Il. ARGUMENT Thelegislative and regulatory materials for which ABM seeksjudicial notice meetall of the applicable requirements under the California Rules of Court: First, the materials to be judicially noticed are highly relevant to the central issue in this appeal—whether on-call rest breaks are per se invalid under Wage Order No.4 (the “Wage Order’) and Labor Codesection 226.7 (“Section 226.7”). (See Cal. Rules of Court, rule 8.252(a)(2)(A)). The selected legislative and regulatory histories of the Wage Order and Section 226.7 will aid this Court in interpreting these authorities and in determining the intent ofthe Legislature and Industrial Welfare Commission in creating the rest break requirement. This Court regularly considers such materials when determining the purposeandeffect of specific statutes and regulations. (See, e.g., AssociatedBuilders & Contractors, Inc. (1999) 21 Cal.4th 352, 374 fn. 4 {taking “judicial notice of administrative agency records”].) Second,although ABMbelieves these materials were not presented to the trial court, the materials are subject tojudicial notice under Evidence Code sections 452 and 459. (See Cal. Rules of Court, rule 8.252(a)(2)(C)). Evidence Code section 459, subdivision(a), providesthat the “reviewing court may take judicial notice of any matter specified in Section 452.” In turn, Section 452 providesthat a court may takejudicial notice of“[r]egulations and legislative enactments issued by or underthe authority of . . .any public entity in the United States,” and of “[o]fficial acts ofthe legislative, executive, and judicial departments of the United States and of any state of the United States.” Such official acts include “relevant legislative history.” (United Teachers ofLos Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 528.) California courts have taken judicial notice of the same types of legislative and regulatory documentsthat are the subject ofthis motion. (See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 138 [considering analysis by Assembly Committee on Labor and Employment, similar to Exhibit A to the Evangelis Declaration]; Boehm & Associates v. Workers’ Comp. Appeals Bd. (2003) 108 Cal.App.4th 137, 146 [considering analysis bySenateJudiciaryCommittee, similar to Exhibittothe Evangelis _ Declaration]; California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 26-27 [considering meeting minutes and other administrative records ofIndustrial Welfare Commission, similar to Exhibits C through F of the Evangelis Declaration].) Finally, none of the materials to be noticed relates to proceedings that have occurred after the orders and judgments that are the subject of this appeal. (See Cal. Rules of Court, rule 8.252(a)(2)(C)). The earliest orderat issue hereis the trial court’s 2009 order granting class certification, but the materials to be noticed do not relate to any proceedings that took place after 2000. Iii. CONCLUSION For the foregoing reasons, ABM respectfully requests that the Court grant its Motion for Judicial Notice. DATED: August 31, 2015 Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP {l0zo py. DhBe Theodore J. Boutrous,Jr. Attorneys for Defendant and Appellant ABMSecurity Services, Inc. DECLARATION OF THEANE EVANGELIS I, Theane Evangelis declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am a partnerin the law firm ofGibson, Dunn & Crutcher LLP, counsel of record for Defendant-Appellant ABM Security Services, Inc. (“ABM”). I have personal knowledge of the facts stated herein unless indicated otherwise, and, if called as a witness, I could and would testify competently thereto. I make this declaration in support ofABM’s Motionfor Judicial Notice. 2. I am informed and believe that attorneys at my firm retained Legislative Intent Service, Inc. (“LIS”) to obtain the legislative history for Assembly Bill No. 2509. Exhibits A and B are true and correct copies of relevant portions of the legislative history provided by LIS in the form providedbyLIS. 3. Attached hereto as Exhibit A is a true and correct copy ofthe relevant portion of the Assembly Committee on Labor and Employment’s analysis of Assembly Bill 2509, as provided to my firm by LIS. 4. Attached hereto as Exhibit B is a true and correct copy ofthe relevant portion of the Senate Judiciary Committee’s analysis of Assembly Bill 2509, as provided to my firm by LIS. 5. I am informed andbelieve that attorneys from my firm further retained LISto obtain the rulemakingfile and other regulatory history relating to the 1952 revision of the Industrial Welfare Commission Order No. 4. Exhibits C and D are true and correct copies of relevant portions of the 1952 rulemaking file and other regulatory history provided by LIS in the form providedby LIS. 7. Attached hereto as Exhibit C is a true and correct copy of the Industrial Welfare Commission Order No. 4-52, as provided to my firm by LIS. 8. Attached hereto as Exhibit D is a true and correct copy of the relevant portion of the Minutes of a Meeting of the Industrial Welfare Commission ofthe State ofCalifornia, dated May 16, 1952, as provided to my firm by LIS. 9. I am informed and believe that attorneys from my firm further retained LIS to obtain the rulemaking file and other regulatory history relating to the 2000 revision of the Industrial Welfare Commission Order No. 4. Exhibits E and F are true and correct copies of relevant portions of the 2000 . rulemaking file and other regulatory history provided by LIS in the form provided by LIS. 10. Attached hereto as Exhibit F is a true and correct copyof the History ofBasic Provisions in a Representative Orderofthe Industrial Welfare Commission, the Order Covering the Manufacturing Industry, part of the rulemakingfile for the 2000 revision ofWage Order No.4, as provided to my firm by LIS. 11. Attached hereto as Exhibit E is a true and correct copy of the Industrial Welfare Commission’s Statement as to the Basis, part of the rulemakingfile for the 2000 revision ofWage Order No.4, as provided to my firm by LIS. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on this 28th day of August, 2015, in Los Angeles, California. Tipo Theahe mrt Exhibit A AB 2509 Page 1 Date of Hearing: April 12, 2000 ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT Darrell Stemberg, Chair AB 2509 (Steinberg) — As Introduced: February 24, 2000 SUMMARY:Revisesstatutes relating to the administrative and civil enforcementofwage and hour laws including wagecollection and enforcement procedures before the Labor Commissioner (Commissioner). Specifically, this bill: 1) 2) 3) 4 5) Provides that in an administrative wage claim proceeding (Berman hearing) before the Commissioner, a notice for production of documents, which is served by mail, may be used in lieu of subpoena, which requires personal service. Provides that the legal rate of interest on due and unpaid wages at a Berman hearingshall be ° at the rate established by Civil Code Section 3289(b), which is 10%. Provides that following a Berman hearing, an employer filing an appeal shall post an undertaking in the amount ofthe Commissioner’s final order, decision or award. Provides further that the requirementofjudicial arbitration does not apply in such proceedings. Provides that in cases where the Commissioner represents the wage claimantin such proceedings, the Commissioner may be awarded attorneys fees in the same manneras private counsel representing a wageclaimant. Provides ifthe United States Department of Labor (Labor Department) determinesthat the Commissioner has erredin dismissing the complaint ofan employee ofunlawful retaliation, as specified, theCommissioner shall, within 15 days after receipt ofthe Labor Department’s determination, either notify the parties ofthe ongoing ofthe investigationofthe employees complaint, or shall issue a new determination in the matter. Provides that an employee mayfile a civil action for unlawful retaliation, as specified, withoutfirst filing a discrimination claim before the Commissioner, and thatthe limitation periods for such administrative remedies do not apply in such civil action. Provides that the parent of and substantial shareholders in a corporationare jointly and severally liable with the corporation for unpaid wages and penalties. Defines "substantial - shareholder" as provided in Labor Code section 3717, as a shareholder who owns atleast 15 6). 7) percent ofthe total value ofall classes of stock,or fifteen percent ofthe beneficial interests in the corporation. Provides that a successor, as defined, to an employer who owes wagesto his or her former employees is liable for those wages. Provides that in cases where wages are paid with a check for which paymentis refused dueto insufficient funds, the imposition of up to 30 days' waiting time penalties appliesto all employers, rather than employers only in the building and construction industry. LIS - 3 i f L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 6 6 6 - 1 9 1 7 AB2509 Page 2 8) Clarifies that Labor Code Section 1194, which provides for an award of attorneys fees for an employee in cases involving failure to pay minimum wage and overtime wages, is separate from, and not controlled by Labor Code Section 218.5, which providesfor prevailing party attorneys fees in other wage cases. 9) Provides that the legal rate of interest on due and unpaid wages in a civil action for unpaid wages Shall be established by Civil Code Section 3289(b), which is 10%. 10) Provides that an employer's itemized wage statement shall include, among other information, the numberofpiecework units eared and any applicable piece rate ifpaid on a piecework basis, and for non-exempt employees, the applicable hourly rates in effect during the pay period and the hourly rate ofpay and hours worked, where applicable. Clarifies that the employershall keep specified payroll records for employees paid incash and by check. Provides, inthe case of a knowing and intentional failure by an employer to comply with the itemized wage statement requirements, for an employee to recover a penalty of up to $100 per payroll period up to a maximum of$10,000. Provides that an employee may bring a complaint before theCommissionerorfile a civil action for damages orpenalties, and attorney's fees. 11) Provides that in a case where an employer fails to maintain records thatidentify each employee to whom wagesarepaid, penalties shall be computedby multiplying the number of employees employed on the date the penalty for the preceding year, unless the employer affirmatively establishes evidencethat supports a lesser penalty based uponproofofa lesser number of affected employees. 12) Provides for penalties for an employer who violates the requirement that no employer shall require any employee to work during any meal or rest period mandated by an applicable order ofthe Industrial Welfare Commission (IWC). Provides for penalties of $50 per employee per (8 00 ) 6 6 6 - 1 9 1 7 pay period and payment of an amount equal to twice the average hourly rate of compensation for the employee for the full length ofthe meal or rest period. Provides that an employee may bring a complaint before the Commissionerorfile a civil action or for damages or penalties, o d / L E G I S L A T I V E I N T E N T S E R V I C E e and attorney's fees. 13) Provides that the Commissioner may orderan employer to post a bond if the employerfails to satisfy a final judgmentfor interest, penalties and other demands for compensation within the jurisdiction ofthe Commissioner, as well as unpaid wages. Provides thatthe bond shall coversuch interest, penalties, or other demands, as well as unpaid wages. 14) Provides that the Commissionershall, under specified circumstances, order the employer to post a workplace notice describing the nature of a violation and related information. 15) Provides that any amounts paiddirectly by a patron to a dancer employed by an employer subject to [WC Order No. 5 or 10 shall be deemeda gratuity. 16) Prohibits an employer from deducting from a gratuity indicated by a patron on a credit card slip any credit card payment processing fee or cost. Requires paymentofgratuities made by credit card to be made to the employeesnotlater than the next regular payday following the date the patron authorized the credit card payment. 17) Provides that an employer shall maintain payroll records showing the numberofplece-rate units earned by and any applicable piece rate paid to employees. 18) Provides thatthe civil penalty for an employer who willfully fails to maintain specified payroll records includes, in addition to records required by statute, records required by any applicable wage orders of theIWC. Revises the penalty for a violation of this section from $500 to $100 per employee foreach payroll period up to a maximum periodofthree years. 19) Provides that the liquidated damagesfor a violation ofminimumwage laws may be awarded in a hearing before the Commissioner in the same manneras civil action under current law. 20) Providesthat with respect to a claim for a failure to pay minimum wages, the Commissioner may,.in the same proceeding, order both payment ofwages owed, interest thereon, statutory liquidated damages andcivil penalties. EXISTING LAW: 1) Provides in a Berman hearing for documents to be obtained by subpoena served by personal service, but not a notice delivered by mail. 2) Establishes the rate of interest on unpaid wages a Berman hearing based ona statute which has been repealed. 3) Provides for the appeal to and a de novo review in court oftheCommissioner's order, decision, or award following a Berman hearing. 4) Provides for an appeal to the Labor Department ofa dismissal ofan employee's complaint of unlawful discrimination. 5) Provides under Labor Code section 2717 for a civil action to hold substantial shareholders of a corporation without workers’ compensation insurance liable for reimbursement ofthe _ Uninsured Employers Fund. 6) Provides under Labor Code section 2684 that in garment manufacturing, a business which is a successor to an employer who owes wagesto the former employeesis liable for those wagesifthe successor meets specified criteria. — 7) Provides a penalty ofup to 30 days’ wages for an employerin the building and construction trades who intentionally pays wages with a check for which paymentis refused due to insufficient funds. e t f L E G I S L A T I V E I N T E N T S E R V I C E ef , (8 00 ) 6 6 6 - 1 9 1 7 o w g i n s * AB 2509 Page 4 8) Provides for an employee to recoverin a civil action for a failure to pay minimum wageor overtime compensation reasonable attomey's fees, and costs of suit. 9) Provides under Civil Code Section 3289(b)for recovery ofinterest at a rate of 10% ina civil action for a breach of contract, as specified. 10) Provides that.when wages are paid, an employershall issue an itemized wage statement including specified information including net and gross wages earned; total hours worked; the dates of the period covered;and alldeductions. Provides, in the case ofa knowing and intentional failure by an employer to comply with the itemized wage statement requiremenits, an employee may recover a penalty of actual damages or $100, whicheveris greater, plus costs and reasonable attomeysfees. 11) Provides that an employer whoviolates the itemized wage statement requirements is subject to a civil penalty in the amount of $250 per employee perviolation in an initial citation and $1,000 per employee for each violation in a subsequentcitation. Provides that the Commissioner shall take into consideration whetherthe violation was inadvertent, and may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake. 12) Provides, under Wages Ordersofthe IWC for meal periods andrest periods. Provide under the Wage Orders for an "on duty" meal period whenthe nature ofthe work prevents an employee from beingrelieved ofall duty and whenby written agreement betweenthe parties an on-the-job paid meal period is agreed to. 13) Provides that the Commissioner may order an employer to post a bond to ensure future payment of wages in cases where the employer has failed to satisfy a final judgmentfor honpayment ofwages. 14) Provides for employers to post specified information including applicable wage orders ofthe IWC,information on safety and health, harassment and discrimination in employment, and rights under the Family and Medical Leave Act. 15) Defines "gratuity" to mean anytip, gratuity, money orpart thereof, which has been paid or given to orleft for an employee bya patron of a business over and above the actual amount due for services rendered or for goods, food, drink, or articles sold or served to the pation. 16) Provides that no employershall collect, take or receive any gratuity or part thereofpaid, given or left for an employee by a patron, or deduct any amount form wages due an employee on accountofsuch gratuity. Provides that this prohibition does not apply under specified circumstances. 17) Requires an employerto keep payroll records containing specified information includingthe names, addresses and hours worked daily by employees. 18) Provides a civil penalty of $500 for an employer whofails to keep specified payroll records. (8 00 ) 66 6- 19 17 . s a ” n e o f L E G I S L A T I V E I N T E N T S E R V I C E e AB 2509 Page 5 19) Provides that the liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon for a violation ofminimum wage laws may be awardedin a civil action. ” 20) Provides for the Commissioner to issue a civil penalty citation of $50 for an initial violation ofminimum wages and $250 for subsequent violations, and establishes a proceeding to contest such a penalty citation. Provides for the Commissionerto order payment ofminimum wages owed to an employeein a separate proceeding before the Commissioner under Labor Code-section 98. FISCAL EFFECT: Unknown COMMENTS: 1) Currentstatutes, regulations, and wage orders of the IWC establish requirements for the paymentofwages including minimum wages and overtime, hours ofwork, and a framework of administrative and civil remedies for violations ofwage and hour laws. Thisbill revises the administrative and civil procedures, remedies and record keeping requirements for the stated purpose ofstrengthening enforcement of existing wage and hour standards. It does not increase minimum wages or revise overtime requirements. 2) Revisions in the administrative procedures for wage claims before the Commissioner and appeals ofthe Commissioner's decision include: a) Allowingrecords to be obtained through a notice, rather than a subpoena. A subpoena, which is allowed under current law requires personal service. A notice may be mailed. b) Allowing the commissioner to combine two separate proceedings established under current law, one for payment ofminimum wages owed, and anotherforcivil penalties for failure to pay minimum wage,into a single proceeding. c) Providingthat the Commissioner may award liquidated damages for a minimum wage violation instead ofrequiringthe Commissioneror employeetofile a civil suit to recover such damages. Undercurrent law such damages may be recoveredin civil action by the Commissioneror the wageclaimant,but not in an administrative hearing before the Commissioner. d) Establishing the rate of interest on unpaid wages at 10% in both administrative and civil court cases. Current law cites a repealed section andis confusing. e) Requiring an employer appealing a Commissioner's order following a hearing to post an undertaking and waiving the requirementforjudicial arbitration in such cases. The judicial arbitration hearing may be viewed as redundantto the Berman hearingin these cases, , 3) Revisions related to wage and payroll records include: on o d o a (8 00 ) 6 6 6 - 1 9 1 7 i L E G I S L A T I V E I N T E N T S E R V I C E o L e ? 4) 5) 6) 7) 8) AB 2509 Page 6 a) Providing that itemized wage statements and central payroll records include piecerate and hourly pay rate information for piece rate and hourly workers. b) Increasing the penalties for violation of itemized wage statement and central payroll records requirements. c) Shifting the burden ofproof concerning the numberofworkers at an establishment where payroll records are missing. Revisions related to penalties for violations of other wage and hour standards include: a) Applying penalties for intentionally issuance of a bad (insufficient funds) payroll check applies to all employersrather than construction employers only. Under currentlaw,the penalty is limited to construction employers. b) Requiring an employer determined by the Commissioner to have engaged in a pattern and practice ofwage law violations to post a workplace notice of findings and the Commissioner's telephone numberto report further violations. . Revisions for the purpose ofclarifying existing law include: a) Clarifying that an employee maybring a civil action for unlawful retaliation without exhausting administrative remedies, as specified, with the Commissioner. b) ‘Clarifying that Labor Code Section 1194, which provides for an award ofattorneys fees for an employee in cases involving failure to pay minimum wage and overtime wages,is separate from, and not controlled by Labor Code Section 218.5, which provides for prevailing party attorneys feesin other wagecases. This bill also provides for unpaid wages to be collected from substantial shareholders and successor entities under specified circumstances. The substantial shareholders provisionis based on substantial shareholder liability for corporations which lack workers’ compensation insurance. The successor entity provision is based on the existing provision related to successorliability for unpaid wages in the garment manufacturing industry. Last year the supporters sponsored similar legislation in AB 633 and AB 1652, which passed and were vetoed. This bill doesnot contain a numberofcontroversial provisions proposed.in last year's legislation. For example,it does not establish a private right ofaction to recover andshare in a portion ofthe state's civil penalties for wage violations, and for minimum wage and overtimeviolations. It does not carry forward a proposal to establish liquidated damages for overtime violations. It does not prescribe the Commissioner's required efforts to collect wage judgements. Supporters state that California has a large and growing "underground economy" of employers whoare chronic violators of wage and hour,safety, and tax laws. Such employers pay cash underthe table or with checks that bounce,fail to report and pay employmenttaxes, (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E _ AB 2509 Page 7 worktheir employees long hours withoutrest breaks, and avoid paying wage judgments issued against them. They cheat workers out ofbillions of dollars in wages owed to them under minimum wage and overtime laws. California's underground economy supplants an estimated $60 billion in legal business transactions. According toexecutive orders concerning the expanding underground economy issued by Governor's Deukmejian and Wilson, the state's loss of income taxes alone increased from $2 billion in 1986 to $3 billion in 1993. Theystate thatthis bill streamlines the Commissioner process by allowing documentrequests by mail; by allowing the commissioner to re-open a discrimination case on remand from the Department ofLabor; and providing for a "one-stop" civil penalty system where both wages and penalties can be recovered at one time; ensures that workers are provided adequate record keeping information, ensures that employers cannoteasily escape wageliability, and thatthis bill clarifies areas ofthe law. 9) Opponents state that they have serious concerns regarding nearly all ofthe twenty-nine changes proposedbythis bill and their impact on California's employers who even inadvertently violate a wage and hourlaw. These include: authorizing the Commissionerto create new,different rules ofevidence and subpoenas process for wage and hour claims; eliminating judicial discretion to require non-bindingarbitration on appeals; reopening of previously dismissed claims whenletters criticizing a state program are filed with the U.S. DepartmentofLabor; establishment ofjoint, and several liabilities for substantial shareholders, parent corporations and successors for unpaid wages and penalties; mandated private taxpayer payment ofcivil servant attorneys; wage and hour claimspermitted in civil court prior to exhaustion of administrative remedies; new commissionerauthority to assess civil damages,including liquidated damages; and new mandated paymentofrestitution plus civil penalties for failure to pay minimum wageconsistingofall underpaid wages, any interest owed andstatutory liquidated damages. REGISTERED SUPPORT/ OPPOSITION: Support American Federation of State, County and Municipal Employees California Conference Board ofthe Amalgamated Transit Union California Conference ofMachinists California Labor Federation, AFL-CIO Employment Law Center, Legal Aid Society of San Francisco Engineers and Scientists of California Exotic Dancers Alliance — Hotel Employees, Restaurant Employees International Union Mexican American Legal Defense and Educational Fund Region 8 States Council of the United Food & Commercial Workers Service Employees International Union Transport Workers Union of America (8 00 ) 66 6- 19 17 sa ! L E G I S L A T I V E I N T E N T S E R V I C E * a Opposition Associated General Contractors | California Chamber ofCommerce California Manufacturers and Technology Association Califomia Retailers Association Civil Justice Association of California Western Growers Association Analysis Prepared by: Ralph Lightstone /L. & E. / (916)319-2091 AB 2509 Page 8 (8 00 ) 6 6 6 - 1 9 1 7 i f L E G I S L A T I V E I N T E N T S E R V I C E Exhibit B HULTM eee LD de PIDDCVAOL tt Rb ee PeSweeSa ee SENATEJUDICIARY COMMITTEE Adam B, Schiff, Chairman 1999-2000 Regular Session AB 2509 A Assembly Member Steinberg B AmendedAugust 7,2000 Hearing Date: August 8,2000 2 Labor Code 5 DLM7yjs 0 9 SUBJECT Wage and Hour Law: Remedies and Procedures D ON This bill proposes to make various changes to the Labor Coderelativeto rights, remedies,and procedures. Specifically, this bill wouldprovide that: In an administrative wage claim proceeding(Bermanhearing) before the Commissioner, a notice for production ofdocuments, which is served by tail, may be used in lieu of subpoena, which requires pereonal service: The legal rate of interest on due and unpaid wages at a Berman hearing shall be at the rate established by Civil Code Section 3289(b), which is 10%. Following a Berman hearing, an employer filing an appeal with the court shall post an undertakingin the amount of the Commissioner's final order, decision or award. . Therequirement of arbitration of civil court cases does not apply in an appeal of an administrative hearing decision. In cases where the Commissioner represents the wage claimant in a judidal appeal of an administrative decision, the Commissionermay be awarded attorney’s fees in the same manner as private counsel representing a wage claimant. If theUnited States Department of Labor (Labor Department) determines that the Commissioner has erred in dismissing the complaint of an employee of unlawful retaliation, the Commissioner shall, within 15 days after receipt of the Labor Department's determination,either notify the partiesof the (more) LIS - 4b e e s ) ¥ B U N _ e a r e a ] | “ T e d GI ON X2 4 } 1 8 0 d b L 9 Z K x e , no vo s y O , ay OY . Stated need for legislation and support According to the California Teamsters Public Affairs Council, ” For toolong, California has experienced a downwardspiral of labor Jaw enforcement. Unfortunately, this lax enforcement has sent the message to unscrupulous ernployers thatit is permissible to take advantage of vulnerable employees. AB.2509 addresses these problems by restoring the ability of California’s workers to receive the wages they worked sohard to earn.” AB 2509 is sponsored by the California Labor Federation, who offers the - following in support: “AB 2509 will streamline the labor commissioner process, Under AB 2509 the labor commissioner would be assured of receiving attorney fees whena worker files a complaint with the labor commissioner, wins and the commissioner then representsthe worker in a ‘de novo’review when the employer appeals to the court. AB 2509 would also allow the labor commissioner to request documents via mail;provide the labor commissioner an efficient means of calculating penalties for failure to provideitemized wage statements; allow the labor commissioner to re-open a discrimination case onremand from the US department of Labor; provide for a “one-stop” civil penalty systemwhere both wages and penalties can be recovered at one time; and permit the labor commissioner to order an employer who has failed to satisfy a judgment for unpaid interest and penalties to post a bond. (Currently, the labor commissioner can require the employer to post a bond for unpaid wages.)” . Finally, they assert, “AB 2509 ensuresthat workers are provided adequate record keeping information. Workers are often provided little information about their wages. This bill will remedy that problem. Under AB 2509 ' workers will be told abouttheir hourlyrate for all hours worked. Stiffer penalties will also be imposed for failing to provide workers information abouttheir wages. According to the Wilson Administration, California loses Se d * a e AP1- 8b (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E « 7 w e n n ? RUG-O7-208M 16:24 ASSEMBLYMEMBER STEINBERG 916 319 2189) P9419FAY EJUF (eibtbbserwnBs Page 9 approximately 3 billion dollars a year in much needed taxeswhen employers pay workers subminimun wages and cash under the table.” The Golden Gate University School of Law, Women’s Employment Rights Clinic, adds that the bond requirementof this bill is needed, based upon their experience that, “(O)}nce a person receives a judgment in his or her favor through the labor commissioner process, we find that it is not uncommonfor an employee to encounter extreme difficulty recovering the unpaid wages from theemployer. In addition, employees often have to wait unnecessary lengths of time for ajudgmentto be satisfied when an employer files a de novo court appeal. AB 2509 remedies this problem by requiring employers to post bonds, not only for unpaid wages, butalso for interestand penalties, as well as requiring any employer who appeals to the superiorcourt to post a bond. AB 2509 also includes a critical provision that imposes penalties for bounced paychecks.” California Rural Legal Assistance Foundation states that, “(A)lthough the federal Migrant and Seasonal Agricultural Worker Protection Act has required since 1983 that farm labor contractors, agricultural growers and agricultural associations providepiece rate pay stub information to workers, and keep such records forthree years, there is no comparable state law provision.” They add that, in addition to pay stub violations, a recent CRLAF survey found that farm workers were forced to labor during either meal or break periods. “We believethis practice is also widespread, and contributes to increased job placeinjuries. Although the practice is prohibited under California’s wage orders, thereare no effective penalties for violations. AB 2509remedies that, and in addition provides the types of private enforcementt tools thatwill help insure future compliance.” Py it Most of the opposition letters received by this Committee reflected concern with the entire packageof proposals contained in AB 2509. However, some of the bill’s provisions caused particular concern. The California Chamber of Commerce letter is typical of those the Comittee received, in saying: “California Chamber members have serious concerns regarding nearly all of the twenty-nine changes proposed by AB2509 andtheir impact ‘on California’s employers who-even inadvertently violate a wage and hour law. AB 2509contains many issues of deep concern to businesses throughout California, some of which are: * Authorizing the labor commissioner to create new, different rules of evidence and subpoena process for wage and hour claims; ¢ Eliminating judicial discretion to require non-binding arbitration on appeals; # of , e e , AP1 - 9b (8 00 ) 6 6 6 - 1 9 1 7 a ! L E G I S L A T I V E I N T E N T S E R V I C E PADe50ywot 16:25 ASSEMBLYMEMBER STEINBERG 916 319 21M9 §=P.1p/19 Page 10 « Reopeningofpreviously dismissed claims when letters criticizing a - state program is filed with the U.S. departmentofLabor. * Mandated private taxpayer paymentof civil servant attorneys; Wage and hour claims permitted in civil court prior to exhaustion of admirdstrative remedias; e New state labor commissioner authority to assess civil damages, including Hquidated damages; « New mandated paymentof‘restitution’ plus civil penalties for failure .to pay minimum wageconsistingof all under paid wages, any interest owed andstatutory liquidated damages.” The Associated General Contractorsand Associated General Contractors San Diego addthat, “AB 2509 contains provisions similar to AB 1652 (Steinberg) which was vetoed by Governor Davis last year mainly becausethe provisions were ‘excessive’ and ‘overly broad.’ This legislation goes far beyondlast year’s bill and wefail to understand thejustification for it. The Division of Labor StandardsEnforcement has received additional funding and augmentations to its staffing in order to allow theLabor Commissioner's office to fulfill its enforcement duties. Nowthat the Division is fully staffed, it seems reasonable to allow them an opportunity to do their job before increasing penalties and creatingnew violations.” The California Employment Law Council opposes the bill based,in part, upon the deletion of mandatory arbitration in de novo review of commission decisions, saying, “this legislation wouldcreate an exception for appeals from Labor Commissioner orders. This is senseless. Arbitration generally serves a useful purpose because itleads to the resolution of disputes efficiently and quickly, without significant costs, andhere a quick resolution by an independent decision maker is evenmore desirable.” As originally drafted AB 2509 would have provided that the parent of and substantial shareholders in a corporation wouldbe jointly and severallyliable with the corporation for unpaid wages and penalties. The bill also would have extended liability to expressly cover a successor to an employer who owes wages to his or her former employees, for those wages. These two provisions drew heated opposition frommany quarters, As a result of the concerns expressed, and in an attempt to moderate the bill, the author agreed to remove these provisions. (8 00 ) 66 6- 19 17 a f L E G I S L A T I V E I N T E N T S E R V I C E 4 4 * a " AP1 - 10b a " a o e AUG=8?-2880 16525” ASSEMBLYMEMBERST INDERSaat Ab Z5Uy (>teinperg) Page 11 4. Major remaining provisions in Committee’s junsdiction S a) Notice in lieu of subpoena Currently the Commissioner may compel attendance of witnesses and the production of documents through service of a subpoena, which is enforced by the courts. AB 2509 would providethat in an administrative wage claim proceeding before the Commissioner, a notice to compel attendance mayalso be used in lieu of subpoena. Generally, under the California Code of Civil Procedure, the process by. which the attendance of a witness is required is the subpoena. It is a writ or orderdirected to a person and requiring the person's attendance at a particular time and place to testify as a witness. Itmay also require a witness to bring anybooks, documents, or other things under the witness's control which the witness is bound by law to produce in evidence. Service of a subpoena is made by delivering a copy to the witness personally. In the case of the production of a party, personal service is not required if writtennotice requesting the presenceof a partyis served upon the @ attorney of that party or person. The giving ofthenotice to the attorney (8 00 ) 6 6 6 - 1 9 1 7 has the same effect as service of a subpoena on the witness. The service upon an attorneymay be madeatthe attorney's office, the attorney's residence, or mail Proofof serviceby mail may be madeby affidavit of a person over the age of 18 years, or certificate signed by a member ofthe State Bar of California, setting forth the exact title of the document served and filed in the cause, showing the name and residenceor business address of the person making the service, attesting that the person isnot a party to the cause, and showing the date and place of deposit in the mail, the name and L E G I S L A T I V E I N T E N T S E R V I C E address of the person served as shown on the envelope, and also showing of that the envelope was sealed anddepositediin the mail with the postage shan thereon fully prepaid. ; ‘se AB 2509 would extend this procedure to apply to production of witnesses as well as parties to an administrative action, According to the legal treatise, Califorrtia Civil Procedure Before Trial, “In mostinstances it is sound to attempt service initially by mail and acknowledgmentofreceipt because the approach saves costs if the defendant cooperates...The approach should notbe used, however, when prompt service is essential @ or when the person to be served is unaware ofthe filing of the action and likely to make service difficult after being informed of the action by AP1 - 11b .AUG-8?-2008 16:25 ASSEMBLYMEMBER STEINBERG 916 319 2189 =P.12/19BAD 20507 WrteuwerRSs Page 12 receipt of the notice form.” California Civil Procedure Before Trial 3d ed. CEB (1998) Section 24.33, Here, the concerns over timeliness should be met by the requirements contained in Section 1013 of the Code of Civil Procedure which AB 2509 references. That section provides that “service is complete at the time of the deposit, but any period of notice and anyright or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five days, upon service by mail, if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 daysif the place of address is outside the United States.” In addition, the CCP provides for service by“Express Mail” which would allow one day delivery of the notice to appear. |. ~b) Deletion of requi for judicia tion in de novo reviews 2B hearing decisi fUnderexistinglaw,cages of under $50,000 which are brought before superior courts with counties with 10 or more judges must go through mandatory arbitration prior to trial. This bill woulddo away with this requirementin caseswhich have already beenadjudicated at the administrative level, and are presented, to the court as ar appeal, This is consistent with other provisionsoflaw. Forinstance, actions that include a prayer for equitable relief need notbe submitted to judicial arbitration. (CCP 1141.13). Under this provision, judicial actions under the Fair Employment and Housing Act are not subjected to mandatory judicial arbitration. In addition, other exceptions exist, inchiding and actions found by the court to be “not amenable to arbitration onthe groundthat arbitration wouldnot reduce the probable time and expense necessary to resolvethe litigation.” (CaliforniaRuleof Court1600. [f]). Here, the bill would onlynegate the requirement for a arbitration in cases which appearbefore the trial court on appeal. These cases have already been adjudicated at the administrative level, therefore it is unlikely that subjecting the parties to yet another process priortotrial will “reduce the probable time and expense necessary to resolve the litigation.” . 4/ LE GI SL AT IV E IN TE NT SE RV IC E # 4 Existing law, Labor CodeSection 216 provides that “Nothing in this article shall limit the authority of the district attorney of any county or prosecuting attorney of any city to prosecute actions, either civil or AP1 - 12b ALI-@?-2@88 16:26 ASSEMBLYMEMBER STE INBER JAB 2509 (Sternberg) G S16 319 2199 P.13/19 Page 13 criminal, for violations of this article or to enforce the provisions thereof independently and without specific direction of the division. Nothing in this article shall limit the right of any wage claimantto sue directly or through an assignee for any wages or penalty due him under thisarticle.” AB 2509 would clarify that this language intends that claimants in wage claim cases need not exhaust administrative remedies with the Commissioner prior to resorting to court. To date, there is no court interpretation of this language in relation to wage and hour claims which are the subject ofAB 2509. d) Penalties AB 2509 proposes to raise penalties for numerous violations of the Labor Code. While not all penalties fall within this Committee’s jurisdiction, a ‘ 4 ! L E G I S L A T I V E I N T E N T S E R V I C E + completelisting ofall the changes are provided for informational purposes. These include: . Labor CodeSec. Cyrrent Law AB 2509 203.1 30 day waiting time Apply 3 day penalty Bounced Checks penaltyapplies to to all employers 226 For knowing and Forknowing and Itemized wage intentional violation intentional violation, statements an employee may employee may recover recover actual actual damages or $100 damages or $100, "perpayperiod, whichever whichever is greater. is greater, up to a max aggregate penalty of $10,000. 226.3 Itemized Civil penalties Penalty remainssame. ‘a wage statements Creates rebuttable presumption on number of employees where no records exist. Uses formula, number of current employees x 24 semimonthlypayperiods. 226.7 Meal & Nopenalty $50 civil penalty plus. AP1 - 13b (8 00 ) 6 6 6 - 1 9 1 7 € “ m e a meeeFersaest8‘262) ASSEMBLYMEMBER STEINBERG 916 319 2189) -P,14719 Page 14 breaktime twice hourly wages for length of meal or break period. 226.8 Tools Purchase tools Purchase tools or back pay 245 Posted No posting Pattern and practice notice requirement violators niust post notice . stating violation, etc 1174.5 Willful failure to Willful failure to maintain Payroll records maintain records records $100 per employee $500. For each payroll period up to three years maximum. Of these, the two most controversial are the increase in the civil penalty for failure to itemize wage statements and central payroll records. It should be noted that some of these issues are within the Senate IR Committee's jurisdiction. As detailed above, penalties for violation of these areas would be dramatically increased. The author makes.a convincing argument for the need of the Commissioner and employees to haveaccess tothis information, given that mostpenalty provisions in the Labor Code arebased upon the wages lost by either the individual employee or the employer's entire labor force. By wayofcomparison, ifone looks at the penalties available under The Fair Employmentand HousingAct, onefinds substantial penalties for violation. As the administrative procedures under the Labor Code and FEHA arequite similar, it may be instructive to look to theFEHA when consideringwage claim violations. (Gee!Leibert o. Transworld Systems (1995) 32 Cal. App. 4# 1693.) Underthe Fair Employment and Housing Act, the Commissionmay award actual damages as may be available in civil actions. However actual darnages shall not exceed, in combination with the amounts of any administrative fines one hundred fifty thousand dollars ($150,000) per aggrieved person per respondent. Here, the proposed raise in damages for knowing and intentional failure to comply with wage statement requirements would be capped at an agerepate amount of ten thousand dollars ($10,000). While this is a dramatic increase from the current cap of one hundred dollars ($100),it is less than the aggregate cap under FEHA. As well, the damages provided under AB 2509 for willful failure to maintain payroll records is increased from a flat five hundred dollars ($500) to one hundred dollars ($100) per employee for each payroll period (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E f % ta d a we AP1 - 14b AUG-B7—2808 16:26 ASSEMBLYMEMBER S ;Ab 25UY (dtenverg) BER STEINBERG 316 319 2105 Page 15 during which the violation occurs, reaching back a maximum of three years. Under FEHA,willful failure to maintain employmentrecords subjects the violator to a misdemeanor, punishable by up to six months in jail anda fine of up to one thousand dollars ($1000). e)Commiss{onerpenalties consistent with courts Currently, a court may agsess any penalty for violation available in statute in its decision. However, in the administrative realm, the Commissioner must conduct two different hearings, one to determine whether a violation occurred, and another to assess damages, fines and penalties. This bill would allow the Comunissioner to award damages,fines and penalties consistent with thecourt’s authority. This authority is generally consistent with the authority granted to the Fair Employment and Housing Commission for violations of employment provisions of the Fair Employment and Housing Act. Under the FEHA, if “the comunission finds that a respondenthas engaged in any unlawful practice under this part, it shall state its findings of fact and determination and shall issue and cause to be served onthe partiesan order requiring the respondentto cease and desist from the unlawful practice and to take action, including,but not limited to, any of the following: ¢ The hiring, reinstatement, or upgrading of employees, with or without backpay. e The admission or restoration to membership in any respondentlabor e The payment of actual damages as may be available in civil actions, however actual damages shall not exceed, in combination with the _ amounts of anyadministrative fines one hundred fifty thousand dollars ($150,000) per aggrieved person per respondent. In addition to the foregoing, in order to vindicate the purposes and policies of the FEHA, the Fair Employment and Housing Commission may also: Assess an administrative fine per aggrieved person per respondent. Assess a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 ofthe Civil Code, (Hate Crimes) as an unlawful practice under this part. P.15/19 n i f L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 66 6- 19 17 s a d AP1 - 156 3 % a e O r r ) n e AUG~87-2008 16:27 ASSEMBLY’ M ce AB 25UY (Steinberg) MEMBER STEINBERG 916 319 2189 P.1Kv19 Page 16 onand v AB 633 (Steinberg), Ch. 554, Stats of 1999, initially began as a broad ranging wage and hour bill, similar to AB 2509. It was narrowed to address only wage and hour issues within the garment industry. AB 1652 (Steinberg) of last year contained manyof the provisions being proposed in AB 2509. As presented to the Governor, AB 1652 would have: e Required the Commissioner, when acting on behalf of a judgment creditor, to make reasonable collection efforts, unless the judgment creditor requests in writing that the Commissioner take noaction. * Provided that an employer seeking judicial review of an adverse order, . decision, or award by the Commissioner shall post an undertaking in the amount of the order, decision, or award. = e Applied a provision of current law that imposes up to 30 days waiting 8 time penalties where wages (or fringe benefits) arepaid with a check for S which paymentis refused due to insufficient funds to all employers. This <= requirement currently applies only to the building and construction industry. 5 : > © e Required an employer to provide information concerning the number of o pieceworkunits earned and the applicable piece rate if the employee is B paid on apiecework basis. E WwW e Prohibited employers from requiring any employee to work during any = meal or restperiod, and would have provided for penalties for violation = of this section. © © Provided that an employerwho knowingly and intentionally fails to ~, maintain specifled payroll records shall be subject to fines of $50 for the initial pay period violation and $100 per employee per each subsequent a payroll periodin which therecords are not maintained, up to a maximum . of $5,000. . * Required an employer to post a workplace notice describing the nature of a violation and related information. TheGovernor vetoed thatmeasure, stating in relevant part: “This legislation, while laudablein its intent, duplicates many edsting enforcement efforts and contains excessive penalties, Existing law already provides penaltiesagainst employers who issue bad checks for paymentof AP1 - 16b AUG-87-2008 16527 ASSEMBLYMEMBER STEINBERG 916 319 2189 «=PL1P419228? UF \LeearesBy Page 17 wages. Additionally, requiring employers who engage in a pattern of violating wage and hour laws to post a declaration that there will be no further violations is unworkable and meaningless. This legislation, as drafted, is overly broad.” . 5. Additional provisions beyond Judiciary jurisdiction Provide that in cases where wages are paid with a check for which paymentis refused due to insufficient funds, the imposition of a penalty payment of up to 30 days’ of wages applies to all employers. Currently this applies only in the building and construction industry. Require that an employer's itemized wage statementshall include, among other information, the number ofpiecework units earned and any applicable piece rate if paid ona pieceworkbasis, and for non-exempt employees, the applicable hourly rates in effect during the pay period and the hourly rate of pay and hoursworked,where applicable. Clarify that the employer shall keep specified payroll records for employees . paid incash andby check. ( 80 0) 6 6 6 - 1 9 1 7 Provide that in a casewhere an employer fails to maintain records that identify each employee to whomwages are paid, penaities shall be computed by multiplyingthe number of employees employed on the date of the penalty for the preceding yeat, unless the employer affirmatively establishes evidence that supports a lesser penalty based upon proofof a lesser number ofaffected employees. Provide that no employer shall require any employee to work during any meal or rest period mandatedby an applicable order of the Industrial Welfare Commission (IWC). Providethat the Commissioner shall order the employer found in violation to ay post a workplace notice describing the nature of a violation andrelated ae information (described in detail below). . ¢ L E G I S L A T I V E I N T E N T S E R V I C E Provide thatany amounts paid directly by a patron to a dancer employed by an employer subject to IWC Order No.5 or 10 shall be deemed a gratuity, Prohibit an employer from deducting from a gratuity indicated by a patron ona credit card slip anycredit card payment processing fee or cost. The bill also would require payment'of gratuities made by credit card to be made to the employees notlater than the next regular payday following the date the patron authorized the credit card payment. AP1 - 176 RUG-B7-2ARO «16:27 RSSEMBLYMEMBER STEINBERG Sib 319 2 ‘ i AW Ase (oonwees Bi Page 18 Provide that an employer shall maintain payroll records showing the mumber of piece-rate units earned by and any applicable piece rate paid to employees. Providethat the civil penalty for an employer who willfully fails to maintain specified payroll records includes, in addition to records required by statute, records required by any applicable wage orders of the TWC. Revises the penalty for a violation of this section from$500 to $100 per employee for each payroll period, up to a maximum period of three years. California Manufacturers & Technology Association opposes creating, “a new paycheck information requirement to be added to an already confusing document and would allow damage awards of up to $10,000. It would also establish a new penalty for failure to keep certain payroll records and permit a penalty of $100 per employee for minor administrative errors where the employee suffered no harm.” Finally, the Engineering Contractors’ Association, the Marin Builder's Exchange, the Sacramento Builders’ Exchange, the Fence Contractors’ Association, the Flasher/Barricade Association and the Seismic Gas Valve Manufacturers’, sent a joint letter opposing AB 2509. While (we) strongly support any efforts to penalize employers who intentionally violate wage and hour laws, AB2509 would go far beyond this by even penalizing the ‘good’ employers whomake every effort to abideby the laws.” Support: California Professional Firefighters; Golden Gate University ~ School of Law, Women’s Employment Rights Clinic; Equal Rights Advocates; Legal Aid Society of San Francisco, Employment Law Center; Transport Workers Union ofAmerica; California Rural Legal Assistance Foundation; California Conference Board of the Amalgamated Transit Uniory Engineers and Scientistsof California; Region 8 States Council of the United Food &Commercial Workers; Hotel Employees, Restaurant Employees International Union; California Conference of Machinists; Service Employees International Union; California Chaptersofthe National Electrical Contractors Association; California Legislative Conference of the Plumbing, Heating and Piping Industry; Western Wall & Ceiling Contractors Association; Air conditioning& Refrigeration Contractors Association; California Association ofSheet Metal and Air Conditioning Contractors, National Association; American Federation of State, County and Municipal Employees, AFL-CIO; California Teamsters, Public Affairs Council: California Labor Federation; La Raza Centro Legal, Inc.; Exotic Dancers Alliance; Asian Law Caucus; Mexican American Legal Defense and Education Fund (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E R. > _Geen a *y AP 1 - 185 AUG=27-2008 16920 ASSEMBLYMEMBER STEINBERG 316 319 2129 Page 19 Opposition: Western Growers Association; California Retailers Association; Civil Justice Associationof California; California Grocers Association; California Chamber of Commerce; Roofing Contractors Association of California Associated General Contractors and Associated General Contractors San Diego; Orange County Business Council; Engineering Contractors’ Association; Marin Builders’ Exchange; Sacramento Builders’ Exchange; Fence Contractors’ Association; Flasher/Barricade Association; Seismic Gas Valve Manufacturers’; California Manufacturers & Technology Association; CaliforniaEmployment Law Council HISTORY Source: California Labor Federation, AFL-CIO Related Pending Legislation: None Known Prior Legislation: AB 1652 (Steinberg), of 1999, vetoed; AB 633 (Steinberg), Ch. 554, Stats. of 1999 Prior Vote: Assembly Labor and Employment Committee(6-3); Assembly Floor (41-32); Senate Committee on Industrial Relations (4-1) 0et TC P.i9/19 AP1 - 19b (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E Exhibit C ' ar) i, INDUSTRIALWELFARE.COMMISSION ORDER No.4.52," EFFECTIVE AUGUST I, 4952 | _ WAGES, HOURS,ANDWORKING . CONDITIONS FOR WOMEN AND- MINORS IN.PROFESSIONAL;TECHNICAL. CLERICAL, AND SIMILAR OCCUPATIONS. - LIS - 1 (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E * H e e ee. .@ ‘a. HOURS : To Whom It May Concerar a} No wamanor mi nor shall be employed more than eight : rtus of ° wrRARE NOMQE: Thatpursunnt1p Takiacostve, ef ~<0) Rowry during any one dey of twentyfone (24) hoors oer the Dabor Code of the State of Californis, and after public low! hanate(8) Gay s in any one Week, except under thefol- . . : eee . ‘lowlng conditions: hearing duly:bed, notice of said bearing heving boon duly a »Whon overtime employmentis not prohibited by Hec- given in the mannor provided by law, the Industrial Welfare ~ tions 1350.1254° of the Laber Code of the Btate of Comission, upon ita own motion, having foudd and con- California, wome n clghteen (18) years of age or over’ cluded that the Professional, Tedhutical, Qlorical and Similar may, in case of emergency , be exsployed.in excess of Occupations Order, Number 4R, enroted by the Industrial eight (8) hours in one day or in excess ofeix (B) days - Welfare Commission on February 8; 1947, should be altezed in one waek provided the employ es fs compensated fors-. and amended: . gil hours worked in excess of eight (8) hoursinone day - NOW, THEREFORE, Tho Industrial Wolfare Commission and for all hours worked on the xeventh (7th) day of the State of California does bereby alter and amend said . [exospt such seventh day em loyment a is authoriced, ° Professional, Technical, Clerical nnd. Similsr Occupations in wabseetion (a) (2) herent) at not leas than one and — - Order, Number 4k, and does hereby enaat its amended Order oud-helf (14) times the employee's regular rate of pay. } as followa: . (2) An employes may be employed saves (7) daya it one qreok when the total hours of employment during asia {No person, es defined in Section 18 ofthetLabor Codo,sball employ any wonthdor minor in any catablishniont or industry week do not exeecd thirty (3 0) audthe total-hours of |<. jn which tha wages, hours, or working conditions are nof in emp loyment in any one day thereof do not exceed ee econformanes with the standards horeinafter.esk forth; pix (6). : oy * See Inst column Cor “Excerptatrom Labor Cada," Bections 1480+ 1AeAOFORDER a royed i s s Ordor shall a to all wenren aud minors employe 8 y in professional, technfoal, slorien},. and elnflar oconpationn (Uy Tho eight (8) hours of emple t nat shallbeperformed im whether paidon a time, plece rate, commission, or othor bass, within a poriod ofnot mor e oh rteen (18) slave a z unless such oocupation is porformedin an industry covered by execpt when thera is a bons fide c hange of anit, even (11). | Order of this Commission, except that the provisions hours shall elapsebetween the oud of one work dey of:the of this Orderehall not-app)y to worten employed whera ono employes and the beginning oh theperk ir sportZi of tho following conditions prevalls: {e) No woman employca.aball be required to report for (a) The employee is engaged in work which is prodami- work orbedlsro tssed romwork between thehourgof10yo nantlyintellectnal, nanigerial, or crentlves and which ond 6 A: — oei tal th coea ciliti aeallbey it a requires exarolan of discretion and independent udg- meal erie roueh fo c ot tok * heath foodani . ment; and for which the remuneration is not less than ovis Or Becuy. ba a a to a 4 or ta llb ng nine ain ~ $360 persaonth j oF " eortted by the Biato of Sr;aeoeaeauckfodonddviakCo) The employes Is licensed or cortifed by the Stato o! be < *{b) attneaa fnengagedin the practice of ousaftha NOTE: f EFER 70STATE LADOR SODEFOR ADDI JONAL followlngprofessions: law, mediodue, dentistry, archi- 4 MINIMUMWAGES on wor NQ HOURS OF MINDRS. tecture, engincering, teaching, or accountingyor = + Oa) E Jover shall pay to each amino {c) ‘The employee in the exchange operator of a telephone (a) Every emp Yr. ali pay to each woman aud minor ‘gompany having leas than one bundred Atty (150) employee Wagespot lessthan seventy-fivecents (154) pordour. stations oporating under the jurisdiction of the Public forall boaree3 exceptbe arerydyale, bat not fees than : Rh sixty een per hour, 2 5 i Uilities Commission of the State of California, and (2) Women’ eighteen t8) rears of age or over, daring theemployee's duticg as operator are inoidsatal to their first twohundred (200) hours of em loyment in a, DENINITIONS pidlled or semi-sldlled occupations in which they have . ’ eae hod noprevious aimilar or relatedexperience, provided (a) Commission”? sacans tho Industrial Wolfaro Com: that the numbar of women emp} red esO s . tL auch rate shall qoission.of the State of California, not excead ton parcont (10%ofthe persons regularly ot gationmeantthe Division of Industrial Welfare employad in tho establishment, An employar of lexs a State 0 ornis. . . : 2 Os *Protenonaeabtel, aleiea, andSinton Os" thenfen2) persons may employ one learner ataaid pations" includes profecstomut, semi-professional, managerial, (2). Miriors, provided that th if mapervisorisl, laboratory, research, technical, clerical, ang at said hese rate shallnotcnedvanpoveeat ay 0 work .ocoupations. Said ocoupations shsll include, but of the persons “ . 4 @ : not be limited to, the following: Acconntanta; accounting ‘An onployer regu ar lycrnployed itheetait i clerks;sppraisora; board markers; bookkeeper; convarsora ; ony minor ut eatd losser rate, z cashlore; cheokroom nttendanta; olteokors; clerk; collsefom; (h). Byery employer shall to eompltera; somptiterss copyreadorn; copywriters; demou- establistied pay any for the etiod invalvedateentoe the girators; instructors; ioterviewsxa; Inveatigative shopparys applicable nunimum wagefbr all hours worked in thepayroll Ubrarlans and their assistants,messengers; ofteo machine oriod, whether the remuneration ia measured by thm¢, ee . operators; physicians’and dentiste’ aayistantsaudattond- commiusion, or otherwise, - eeeOT TOMts Petey apts; reseatolyx-ray, biedicel, or dental laboratory technl-. (cy Yn no cano shall gratuities or tips from. patrons or dinns and their vssixtants; uedretarios; aoolsl worketMs others bs counted as part of the minimum wage. No employee statiaticinna; nonowraphers teachors; telephons, telotyPe, shall be required to report tipe for this pnrpose. Prorat and telegraph operatars; tellera; ticket agentas traccra; ‘ Ti Y , ;. gray! f Hex (a) The provisions of th e gestion shall not. apply to typlats; aod other related occupations listed as professional, eyorantices regularly indentured under the State Division of - veal: rofessional,slorien)and xindzedoccupations, se work, ABPronticeship Btondsrds, ne mploy’ means to engage, mffor, or psi work, ““{a) 0 ‘doy | ttt; frzmpberee" moans any woman or reinor. employed by tovdiseata(Te)pe seyaevatatsalditionvo Gi ‘* vo * i.” ii2 eefimeplayer’” means auy"persom, a1 defilea in Beetion Pjeoratefxeept when the employes reafdes at the . "1B of the Labor Code, who directly or indireatly, or through an “ crgpnt Bnte” moans 4 Sock acheuis whish le titerrupled bynon- | sentor any other person, amp)oya or exerolsel control ¢ver working periods other than bona Mids reat or grea} ‘pertods.) , the wages, hours, or working conditions of s worgan or minor, 4. REPORTING TIME RAY ’ (a) ‘iveryocans, for the parpos of this Ordor, a male Bash day an employes is required to report for work and or Yamato portion under the age olo ghteon (8) yours, doce report but. is not put to work or js farniuhea Yee than halt (h) “Hours Worked’? means the tue daring which an aafd omployec’s ugual dey’s work, ths employee shall be paid employee a mbjoct to fhe contro] of an employer, eniiincludes for hulf the usual day's work, but in no event forless than two. all tho time the- employes iy suffered or tled-to work, honrs, at the enployoy’a regular rate of pay, moPred Perml * not less than the minimum eee herein prov aut shall bewhether or not required to do a0, (i) “Emergenoy” means an unpredictable or unavoldabls 6. PERMIT FOR HANDICAPPED WORKERScesurrence at wnocheduled {ntervala requiring immediate A permit mny be issued by the Commiaion authorizing em:tion. : ployment of n woman or minor whose earning capacity is”. impaired by advanced age, phyaleal disability, or mental. + deficiency, at Jessthan the mintinpm wage heres provided, _ ob pernsiis ai 0 granted oO on Jol: i employor and enrployee. nyap * at application of (8 00 ) 6 6 6 - 1 9 1 7 i f L E G I S L A T I V E I N T E N T S E R V I C E “4 “* * = Ld i a * Sp te oa gr me tn em e s t h e m e e @& % 7. RECORDS . . (u) Every employer shall keep at the pleco of employment, fn a manner approved.by the Division, acourate information with respeot to esch employee aa follows: . . 1) Full name, home address, snd occupation. {33 Dirth date, if under eighteen-(18) yeary, and dealy- pation as # pnor-on the payroll record. . * (3) Time revorda showingall in-and-outtime which aball be recorded when it occurs, and also. total hovre worked each day, Meal poriods during which opera- tions cease and authorized rost periods need not be recorded, e . . (4) otal wages paid oach payroll porlod, including yalue of board, lodging, or other componsation actu. ally furnished to the employes. The total hours worked in tha payroll period shall appear on tha same record aa wages paid for that period, . (b) All required recorde shall ho properly dated, showing month, day, aud year, and shall be kept onflo by the employer for at least-ona year. . * . (e) When a pisce rate or incentive plan la in operation, 6 schedule of rates oust be available in the workroom, An acou- rate production record ahall bo furnished to each employee unless the employer's ayatem of recording Is accoptable to tho Division. . : -(AT Clocks shall beprovided in all major work areas. &. CASH SHORTAGE AND BREAKAGE : No oraployer shall make any deduction fron: the minimum wage of an employes for any cash shortnge, breakage, or loss of squipment, notwithstanding avy contract or arrangement, to the contrary, unless it can be shown that the shortage, breakage, or Tous Je cattsed by a,dishonest or wilful act, or by the culpable nogiigeuco of the employee. ’ : : 9, UNIFORMS AND EQUIPMENT - - 8) No employee shall be required to contributa direatly or indireotly from the minimum wage for the purchase or main. * tenses of tools, equipment, or wniforma; nor for tha Jaunder- Sng and cleaning of untlorms,The tera 'wniform!! includes weartn apparel audatcessorica of Giatiactive dealgn or color require conditionof employment, . . ~ (b) When proteative yarmonts ara requiredby the em- loyer, or ara necessary to safeguard the health, or prevent Injary’ to an amployes, such garments shall be provided and paid Lor by the employer. . 10. MEALS AND LODGING “Best! means an adequate well-balanced sarving .of a . varkety ofwholesome, nutritious foods, + Lodging” means ving accommodations whith are ade- quate, decent, and sont accordingto usual and customary atandards, Employaes shall not be required to abaro a bod.. ‘When niesls or lodging are furnished by the employor as part of the minimum wage, they may not be. evalnated in + exeeas of the following: s Room Occupied Alone—$4per week. Room Bhared—$3 per week, Apariment—Two-thinds (34) ef tho ordinary rental _ Yalue, and in no everit more than $88 per month, . . Breakdast, 85 conte Meals: {Tanoh, 4S nents : *" [Dinnex, 70 cents 4 Deduetious may uot bs made for meals not eaten and shall be made only for. bona fide menla consistent with omployea’s work shift. . Tl. AAFAL PERIODS . oof os No employer shall employ any woman or minor for a work period of more than five (5) hours without a meal period of not Tess than thicty. (30). minutes; except that when 6 work -period of not-more than six ® houre will complete the day's work, the meal, pericd may waived. An “on duty’? men) period will be permitted only when tho natura of the work provents an smployesfrom belug ralievad of all duty, and timo spent Zor such “on duty’?meal pariod shall be. counted as tims ‘worked. 7s . 42, REST PERIODS. ' ' . Bvory employer aball nuthorizo and pormit all employees totake reat periods which, insofer as practicable, shall be in the middls ofeach work periéd. Tha authorized reat period , Hine shall ba'based on the total hours worked daily at the rate of ten (10) minates per four (4) houre or major. fraction thereot, However, 5 reat period need not be authorized for employees whose total daily work time fa Jens than three and one-half (3}) hours, Authorized-rest poriod tlms shall bo counted as hours worked for which thora sball ho no Asduction * from wages. y the employer to beworn by the employee aa a 13, DRESSING AND RESTROOMS . . (a) Bwploysra hall provide for adequate safekeeping of omploysea’ outer olothing durlag working hours, and for-thely ~ work clothes during non-working hours. Wher: the ocoupation ‘requires o change of clothing, a aultable apace ahall be pro- - yidod where female employees may make auch change in privacy and comfort. . » (b) “Whon the numbar of females employed at one time is raore than twenty (20) and lesa than fifty (50) there shall be: provided one couch, and thereafter at least one additional | couch shall bo provided for every one hundred (100) female suployees or fraction thereof; except that, when the nature: of tho work requires standing, onc eouch must be provided where thera are more than ten (10) female employees, Beds in - hospital roomsmey not be vounted in the number of reqoired couches, (9) Couches ahatl be placed In suitable rooms, conveniently lovnted, exclusively wad by women, and open to them during . all working hours,Such roome shall bs properly lighted, venti- lated, and heated. 14. DRINKING WATER AND-WASHING FACILITIES {a} Each place of eraployment ahatl be supped with pure drinking water, convenient to employees. Individual paper aups shall Le provided or sanitary drinklog fountains shall be {ralallod and soregulated that a jet of at least tro (2) inches shall be constantly available. ae? (b) For svery ‘twenty-five (25) female employees orfria- tion thergol, there shall one wash basin or equivalent group - washing facilities. Surfaces of this equipment shall bs smoo aud resistant to stain and shall be kept clean and sanitary, (e) “Sufficient sop snd either individual cloth or paper- towels ehall be supplied. Towels used in common are pro- hibited, » 15, TOMET ROOMS : ‘ . . ) NUMBER, Wonten's toilet roang myst be so marked and the numberof tollets required ix-dy follows: : ‘Weert ta sem der af . mera a I eoieeeeteerencenttien eens etieee.ae 18-30 .-ancornnnowancnenrnsnenneun 2 . BIAS oenneeteienc. 46-60 nonoeeemechnmeinne 61-80 2neneeee 814-200.nnennenweninenewnnna€. and thereafter one toilet for every twenty-five (26) female emmployees or majority fraction thereof. tee IC the antho atatt of an establishmentnombers Tose than fre '(#) and only ono follet ti nvailable, it may be used by both sexes, - (bh) GENERAL CONSTRUCTION . : (1) Toflets shall ba of the water pressure type, Jn- atalledfoaccordancewith approved and customary standards, ‘ (2) The entraueés to toilet -roome shall be etfectively ay sereéned ao that no toilet compartment. ta visible from any workroom, Hach toilet shall be jn asepa- rate compartment of adequate size, so constructed - ns to provide privacy, aud with a door of ‘eush- dimensions a% to permit easy entrance and exit. Each toilet compartment door eball be provided vy with a latch or bolt, co {3) The walls of toilet rooms shall extend to « ceiling © snd the room ball be thoroughly ventilated fo the outside atr.and shall be adequately lighted, (4) Floora sball be of cement, terrazzo, tits, glared * brick or other eonmposition which is impervious:to” moisttire and the augleformed by the floor and wall ebell bo scaled or coved. ioe (5) Surfoces of walls, partitions, doors, fixtures, toilet’ seats, bowls, and other equipment shall be smooth . and non-absorbebt, acd all painted surfaces shall . . be alight color, . : {u) BUPPLIES, Toitet paper, in a proper holder, shall be. mopplied in cach compartment, Sanitary napkius shall bs readily obfetnable ot a renssonsble price and a suitable means - for their disposal shall be-provided. (ad) LOCATION. Toilet rooms must bs convention loonted on. the immediate premises and not-mora than én: Goor immedistely above or below the employee’s workplace’ aantess adzquate clovator service ie avatlable. In existing catab- », lishments when, in the Judgment of the Division, a toilat ean- * not be loosted on the premises, relief periods other than required reat pericds shail ba euthorizad for women and minora, : oe . (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E w e w n e e ! w a n e ® eo {e) MAINTENANCE. Toilet rooms shall be kept clean and esnitary, and ahall contain only such equipment, fixtures, andsupplies as proparly belony therein. . 16, FIRSY AID. \ Adequate Brat aid pupplioa m1_t ba provided and kept oloan and mnitary in e dust-proof containen 17. LIFTING wot . No female employes shell ba required to lift or carry any object weighing in excess of twonty-five (25) pounds, except mpon permit from-the Division. —~ {Seo Inat oatumn for “Excerpls from Labor Code,” Hootlon 2262.) 18, STATS - Buitablo scats hall be provided for at! female omployves. ‘When the nature of the work requires slanding, au adequate numberof said seats ehall be placed adjacent,to the work ares sud-employeesshall-be permitted to-use such seals when not engaged in the active duties of their employment, 19, FLOORS (a) Unless the surface of the floor is af wood, cork, rubbor omposition, Hncleum,-asphalt tile, or other material of com- arablo reallience, the floor surface in-the work area where women or minors stand in the performance of their duties shall ba supplied with a covering materialof snitable realli. énco. (b) The floora and stairs of every ostablishment shall be safe, smocth-andtight. ° - . + (6) “Where wet processes ere employed, the floor must be properly drained. When floors aro wator slippery, racks or gcatings of sufflcient height and fros from hazard shall bepro- yidad. Id the nature of the employment will not permit the uso of racks or gratings, protection for the Zeet aball be provided by thaemployer. . . " . 20, CLEANLINESS AND UPKEEP | . FPromlacs, equipracat, ond Axtures shall-bo kept safo, clean, sanitary, end good repair, os ‘ 21. UGHIING - + All establishente in whichwomen or minora ars employed ahall ‘be properly lightod during working hours, Sources. of ‘{tumination shall bo of snoh nature and so plesed that tho {light fornisbed will be adequatefor ofolent workand provent Wnneccasary atraln on the vision or glare in the eyes of tho |workers, . : 22, VENTILATION . . Each room in which women or minora aro omployad eualt bs thoroughly ventlisted, 23,. TEMPERATURE . : ‘} Tho nature of-the employment permitting, there shall be- maintained in each workroom «minimum temperatare of 6° B®, and, weather permittiog, & maxtoum of 75° F. If, lowing to the nature of the proceas, exceznlve hent is created in ths workroom, apocla! devices shall be instalied to reducegach excoecive heat. Where the nature of the exployment will not pormll a temperature of 68* F.,.0 heated roomshall be pro- Yidedtepick employcnsmay retire for rarmth. Excaptas‘ otherwise herein provided, every floor, mexea- | nlus, orbalcony on whichwomen or minors ore employed shall , have at. Jeast two exits, remotely located from each othor, access to which is unobstructed. Such exits shall be other than alevntors. From tha third or bighor floors at least one means of-agresa muat be an aeceptéd fira exit, and’ additional fire axita may be ordered where -necesesty, Exits shall. bs plainly marked and kept unlocked during working hours, In faollities conatructed prior to the effectlye dato of this Order, the above requirement of two exita shall'‘pot apply ton firat Roor, second floor, mozzanize, or baléony whon all the folowing conditions are mets Tha promixes cannot be altered to provide.» astond-exit; zn adequate number of properly maintained fite extinguishers ave readily available; and the activities earried on in the catablishment do not crante's fre aZaTA, * {For atherregulations cepardiny exits, ave Geugrd) Balely Onders, Title &Seetlon 8244, Californls Adeulnletentive Code.) ‘ aS. ELEVATORS . When femalesars employed on the fourth or higher floors, adequate elevator servica must be provided. 26. EXEMPTIONS , If, in the oplnlon of the Commission atter dueinvestiyation, * itis found that the exforsement of any provision contained in . Beotions 11 to 25 of thia Ordor would not materially inorcazo tho covifort, health, or safety of omployees end would work - anduc hardship on the employor, exemplions may bs made at tho diseration of asta. Commission, Such. exeroptions nvaat' be dn writing to be effective and can bo revoked after reasonable notice is given in wilting. Applications forexemptions ahall be made by the employer to the Commission in wriling. : ve : oe i ot L eo ‘27. FILING REPORTS : Evory employor ahall furnish to the Commission and to the , Division any and nll reports or information which may be re.quired to carry out the purpose of this Order, such rbportaandinformation to bo verified if and wh u28. INSPECTION mmhon 60 reaueated. -'fho Commission and duly authorized repreaenitatives 6f the” Division zhall be allowed free access to any offs or eatadlish- mentcovered by this Order to investigate and gather. data” rogarding wages, hours, working conditions, and employment . prantices, and abal} be permitted to iuepect and make excerplafrom any aud alt racorda nod to queation all employeesfor auth purposes. ’ 29. PENALTIES .. Paitire, refusal or neglect to comply with any of the provi: sions of this Orderin a violation of the Labor Code of the State,ofCalifornia, and is punishable by fino or iraprisonment, or 30. SEPARADILITY . , T£ the application of any provision of this Order, or any sete * Hon,aubsootion, subdivision, aentence, clause, phrase, wordor .portion of this Order shall be held invalid or unconstithtional, tho remaining provi tions thereof shall not be affected thereby, but shall continus to be given full force and effectan tf the part:to beld invalid or unconstitutional had not been Included orein, 31, POSTING OF ORDER Evory employer shall ko ® copy of this Order whers it can be read hy the women and minor employecu, . .Dated at Loa Anccles, Californie, this sixteenthday of May,” * 4952. ¢ Order 4R, enscted February 8, 1947, fn bereby reainded. ~ es and of the dato when this Order becomes effective. 1: INDUSTRIAL WELFARD COMMISSION STATE OF CALIFORNIA LeRor E, Goopnopy, Chairman Daz Canvas Exeanon 0, Hewery ‘. Danren E. Koammann : ' MaeSrowewan 0, Uaion Onarauan; Acting OMe? ’ DivisionofIndustrial.Welloca EXCERPTS FROM STATE LABOR COD! Beotlon 1 “Terson™ miolns any person, Kesoolatlon, eranniaetion, i ist, OF oorperation, * aeantearysuibloyee or olhér person aating either inél- qidually or spn officer, agent, or employes of anciher pereon fa guilty. of A rialsdamennor and ty punishable by a fnew of not less then Atty. dollars (#60) or by imprivoumont for not lose tian49 days, or by both; who doss yn) of the following: = -+* . {n) Roqulres ox-enuses aby woman or minor to work for losget' j holirs than thava fized, of under sonditions o€ labor probibitsd,by ux order of the commlasion. . . {bv} Pays or cause (0 be pald to any wontan or mfaor a ways lene than tho winiowe Axed by an onder of the comral le . (a) Violates or ratuess or neglnote to comply with any provision of thin chapter or any order or ruling of the commésnion, wo. Bentton 1282. No femalc ammployse shall bs requested or permitted to carry anyobject woighini 10. poundsor mérs ip or down Any welc~ way or aorios of alalrwaye that risa for more thon tive fest from ihe base thermo : Eight Hour Laws Baotlon 1380. Not iis manuf, “+ To shall d¢ meshantesl, of mercantile oatabllahment ox Industry, laundry, dlean~ -- tng, dyotng, orcloauing-and dyalag eeteblishment, hotel, public lods~ dighowse, aparimant house, hospital, beauly ahop, barber shop, piace of amunntent, restaurant, careteria, telegraph or (clophons shtab= lahmontor offices, In the operation of clevatora In office bulldings, or by any azproas or transportation company fn this Giate,worethan olnht hours during any ove day of 24 houra or more than ds boticg in one Wook, of . . Sention 183. No employor shail employ, caver to be sriplozed or permit any fomsie to work any number of houre whatever, with knowledge that duoh Lemalohas therstofors bean amployat whhisthe samo day'ot 24 houra in any estabehmant or Industry and by any ~Y foUe aaiployar fore period of tide which will, combined with tha. venied of ime ut employmeat by & previous eniploysr, oxcesd efgat ours bs one day of 48 houre bs one week, Thie proviefon shall not pré-- vont the employment of any female In more Lhan one satabiehment whore the total number of hours worked by bar dosenot exosed eight hours tn any ona day of 24-hours or 48 hours ln one waek, * Bevtion 1882. The provisions of thle article in relntion to hours of employment ehall not apply te or affect graduate auress In h wor the harvasticg, otring, canning, or drying of any variety of par- ~ > Ishable frutt, fish, or vogeinbls during the periods whan {¢ by nscee- to hurvent, oUro, can, or Ory fruit, Geb, or yaretabdlea lo prevent spoiling. nor ivonployace aotually enxaxedin the procataing of dlo- Poyicaln, Duman blood products und other such products of Jabora- torlon operating under loanos from alther or both the United States Daysrimant ct the Treasury aud the United Slates Depaitasnt of Agriculture during cuch porlode when It le necassary to continus the procenalnx of aloh products to prevant spoliage or déterloration, Sention 18421, The provistonx ot thin artiole shal not apply to or _ afoot exeouttyes, cdminiairitors, or professional women, No wonen shall be consltcced to be employsd in ay administrative, exsoulltys’or = profesntonnl capaity unless one of the following conditions prerati: - Tho employes faoogared In. work which Ja preconiisndy ostitectuel, manumerial, or creative; which requires sxerolee of Als . > Loe re wot, ae : i , *posted, in a consplouona place, r a s w e e ww e e e e V i t e we y e e s (8 00 ) 66 6- 19 17 a L E G I S L A T I V E I N T E N T S E R V I C E * * n u e ir o Y Exhibit D No. 557 Page 1 MINUTES OF A MEETING OF THE INDUSTRIAL WELFARE COMMISSION OF THE STATE OF CALIFORNIA ' MAY 16, 1952 10:20 A.M. Pursuant to the adjournment of the meeting of April 19, 1952, the Industrial Welfare Commission met in Roon 907 State Building, Los Angeles, California, on Friday, May 16, 1952 at 10:20 A.M. PRESENT: Chairman LeRoy E. Goodbody Commissioner Mae Carvell Commissioner Eleanor C, Hewlett Commissioner Daniel E, Koshland Commissioner Mae Stoneman Secretary Florence R. Clark C. Ulrich Chapman, Acting Chief Jeanette Basile, Recording Secretary Ariel E. Hilton, Deputy Attorney General Glenn Mayfield, Industrial Welfare Agent . The meeting was called to order by Chairman Goodbody at 10:20 A.M. In memory of Rena Brewster, Chief, all rose for a moment of silent prayer. Commissioner Koshland suggested that we prepare a resolution that the Commission may adopt so that it can be embossed and delivered to Mr. Brewster, It was also requested that the press be advised of this action of the Commission, Following is the resolution: "WHEREAS, Rena Brewster, Chief of the Division of Industrial Welfare, recently departed this life, and WHEREAS, the State of California has thereby lost the services of a most distinguished woman who interested herself throughout her life in matters of public welfare, and 703456113 (8 00 ) 66 6- 19 17 L E G I S L A T I V E I N T E N T S E R V I C E Nos 557 Page 314 Commissioner Koshland made a motion that the following resolution be adopted: BE IT RESOLVED That the Industrial Welfare Commission hereby enacts the altered and amended Order as hereinbefore set forth. The motion was seconded by by Gonmissioner Hewlett, and it unanimously carried, Commissioner Goodbody made a motion that the Commission rescind Order No. 10 R, dated February 8, 1947, as and of the date when Order Noe 10-52 becomes effective August 1, 1952. Commissioner Stoneman seconded the motion, and it unanimously carried. Commissioner Stoneman made a motion that the Secretary be in- structed to order publication of the following Orders: 1-52, Manufacturing and Mercantile Industries; 2-52, Personal Service Industry; 3-52, Canning, Freezing, and Preserving Industries; h-52, Professional, Technical, Clerical, and Similar Occupations; 5-52, Public Housekeeping Industry; 6-52, Laundry, Dry Cleaning and Dyeing Industry; 8-52, Handling Farm Products After | Harvest; 9-52, Transportation Industries; and 10-52, Amusement and Recreation industries, in accordance with Section 1182 of the California Labor Code, and mail copies thereof in accordance with the requirements of Section 1183 of the California Labor Code. Commissioner Carvell seconded the motion, and it unanimously carried. | Commissioner Hewlett moved, seconded by Commissioner Carvell, and it was unanimously carried, that the Secretary be instructed to file the Orders. with the Division of Administrative Procedure for inclusion in Title 8, California Administrative Code, as required by Labor Code Section 1185. 7103456233 (8 00 ) 66 6- 19 17 a i ! L E G I S L A T I V E I N T E N T S E R V I C E Nos 557 Page 31-B Commissioner Stoneman moved, seconded by Commissioner Hewlett, and it was unanimously carried, that the following summary of findings as prepared by the Secretary be adopted. "The Commission, having appointed Wage Boards to make recommen- dations for altering or amending Industrial Welfare Commission Orders 1k, 2R, 3R, AR, 5R, 6R, 7R, 8R, OR, and 10R, and the recommendations of said Wage Boards having been received, the Commission held public hearings in San Francisco on Jamary 25 and 26, 1952, and in Los Angeles on February 1 and 2, 1952, in accordance with procedure set forth in Sections 1178 to 1181 of the State Labor Code. After study of the Wage Board recammenda- tions and of evidence presented at the public hearings, the Commission , held executive sessions during which the various provisions were dis- cussed. Following is a summary of the principal amendments and the reasons therefor: "The Commission considered the salary criteria for an executive, as contained in Section 1 (a) of all Minimum Wage Orders, and concluded that the present rate of $250 was not a suitable criteria in the face of increased prevailing wages for executives and, further concluded that considerable confusion had resulted from having a different rate in the Industrial Welfare Commission Orders than carried in the State Labor Code on the same subject. For these 703456234 (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E wy e ra C a te w a e e No. 557 - Page 32 reasons, the Commission raised the $250 criteria to $350. "Minor changes were made in the definitions for Orders 3R, 4R, 5R, 6R, and 9R» In no instance were the definitions changed substantially, but were intended to remove ambiguities and clarify jurisdiction. The Commission is aware that "night clubs" are listed in definitions under both Orders 5 and 10, It is intended that Order 5 cover such establishments when food is served but should a place of enter-~ tainment.be called a "night club" and not serve food, then Order 10 would cover it. "Upon recommendation of the enforcement staff» it was agreed to include the definitions of manufacturing and mercantile in one Order and to thereby eliminate Order 7. It is anticipated that this will achieve some simplification in enforce- ment. because it will eliminate the previous problem of determining whether an estab- lishment which both manufactures and sells is primarily engaged in manufacturing or selling. Inasmch as the wording of Orders 1 and 7 were heretofore identical, except for the definitions, it is felt. that no adverse circumstances can result from this combinatione "The provision regarding hours was altered to limit employment to 6 days in | one week in lieu of 48 hours. This change was deemed necessary because the Labor Code provision on this subject has so many exceptions that enforcement had become confusinge It was considered advisable to include the Labor Code exception for the employment of short-hour workers for 7 dayse "after consideration of recoumendations of the various Wage Boards, the Commission agreed that the present minimum wage of 65¢ was inadequate and concluded that 75¢ per hour would meet the requirements of the Labor Code and would also take into consideration economic factorse Other wage items were also raised for the sake of consistency, including a raise of the learner and minor rate to 60¢ and increases in the value of board and lodging. "Because of difficulties encountered in enforcing the maintenance of proper time records, the record keeping section was changed to require the records to show in and out time and also require that the recording be done at the time it 7034562395 a - u m e (8 00 ) 6 6 6 - 1 9 1 7 if L E G I S L A T I V E I N T E N T S E R V I C E “ 4 od a t ” Noe 557 Page 33 occurs. Other minor changes were made in the record keeping sections for the purpose of clarification. "The Commission gave serious consideration to the definition of "Industries Handling Farm Products After Harvest" and despite the recommendations of the Wage Board on this subject, it was felt that the request of the many famers attending the pablic hearings were justified and that no change should be made in this defini- tion until there has been considerable further study on the subject. "The request of the California State Nurses Association to include graduate nurses in the coverage of the Public Housekeeping Order was considered and it was concluded that the graduate nurses should still be exempted from this Order when they are employed in hospitals. The addition of the phrase "in hospitals" brings the Order in line with the language of the State Labor Code on this subject. "The Commission considered the Transportation Wage Board's recomnendation for defining "day" and concluded that the Attomey General's opinion on this sub- ject amply takes care of the matter and that such a definition should not be in- cluded in only one Order and therefore it is considered best to omit it. However, in order to clarify the matter of "call backs" in the transportation industry, a special provision was included prohibiting anyone being called back when there has been an elapsed time of less than 6 hours. "No special provisions for the airline industry have been included because insufficient data was available and it is expected that an Attorney General ruling on the matter of the jurisdiction of the Division will adequately solve the problem. "Because of problems arising from failure to acquaint employees with in- centive plan formulas, the Commission considered it advisable that this information be available to workers and included such a requirement under "Record Keeping". "the meal period provision was amended to permit a 6~hour work period without a meal when such a work shift would complete the day's work, and the addi- tional provision that a meal period shall be every 5 hours rather than providing only one meal period within the first 5 hours. 703456236 (8 00 ) 6 6 6 - 1 9 1 7 ada d i * L E G I S L A T I V E I N T E N T S E R V I C E * “ « n r a n e Noe 557 Page 34 "The rest period provision was clarified to indicate that an employee work~ ing less than 34 hours for the entire day would not need to have a rest period. It was further clarified that the Commission did not intend a completely off-duty rest period to be applicable in thecase of an employee who is alone on a shiftand has ample time to rest because of the nature of the work. This would be true in the case > of a nightswitchboard operator on asmall board, a night hotel clerk,. etc. If en~ ployees in such positions are able to rest on the job it is not intended that the employer provide a special relief employee. "A provision for maintenance was added to the section on toilet rooms to ‘simplify enforcement. Other changes in this section were merely for clarification. "It had been recommended by at least one Wage Board that the "lifting" section be amended by the addition of the word "knowingly" before "permit", The Commission considered that this objective wouldjust as well be served by eliminat- ing the word "permit" and considering it a violation only when the employer re- quires lifting in excess of 25 pounds. "Upon recommendation of the enforcement staff, an exemption to the two exit requirement was added to take care of existing establishments in which no hazard exists and in which a second exit cannot reasonably be constructed. "The Orders pertaining to the Canning and After Harvest Industries were altered by deleting the overtime pay requirement from the minimum wage section and adding it to the section on hours, thus bringing these Orders in conformance with the other Orders of the Commission and making overtime payment a condition of overtime work rather than establishing it as a minimum wage requirement. "The record keeping sections in the Caming and After Harvest industries were simplified to more nearly coincide with present practices and to eliminate some of the requirements which prevailed when regular auditing of canneries was provided under the law." 703456237 6 oF 4 4 / LE GI SL AT IV E IN TE NT SE RV IC E * (8 00 ) 66 6- 19 17 = e a m e a " No. 557 Page 35 It was regularly moved, seconded, and carried, that the next meeting of the Industrial Welfare Commission be held in Los Angeles > on Friday, August 1, 1952, at 10 A.M. Commissioner Hewlett moved, seconded by Commissioner Carvell, and jt was unanimously carried, that the Commission extends appreciation to Jeanette Basile, Recording Secretary, for her faithful service, and wish her every success in her new assignment, and regret that the Commission is losing her services. At 3:30 P.M., Commissioner Hewlett moved, seconded by Commissioner Carvell, and it was unanimously carried, that the meeting adjourn, Chairman tATTEST: Ht A eWlaeY, : Secretary . . _ 703456238 i f L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 66 6- 19 17 ? % = a n o m e w a n e Exhibit E STATEMENTAS TO THE BASIS TAKE NOTICE Pursuant to the "Eight-Hour-Day Restoration and Workplace Flexibility Act,” Stats. 1999, ch. 134 (commonly referred to as "AB 60"), the Legislature reaffirmed the State's commitment to the eight-hour workday standard and daily overtime, and authorized workers to adopt regularly scheduled alternative work days and weeks according to statutory and regulatory provisions. The Industrial Welfare Commission of the State of California ("IWC"), in accordance with the authority vested in it by the California Constitution, Article 14, Section 1, as well as Labor Code §§ 500-558, and 1171-1204, held public meetings and investigative hearings during which it received public comment regarding the implementation of AB 60 and, on March 1, 2000, the IWC's Interim Wage Order - 2000 becameeffective. The IWC subsequently has held additional public meetings and public hearings pursuant to Labor Code §517(a) to further review all of its ' Wage Orders for purposes of complying with AB 60. The !WC has consideredall correspondence,verbal presentations, and other written materials submitted prior to the adoption of amended wage orders. The IWC submits the following statement as to the basis for the various amendments made to sections 1, 2, 3, 4, 7, 9,11, 12, 17, and 20' of Wage Orders 1 through 15, and to the Interim Wage Order - 2000. The Statements as to the Basis for the remaining parts of the ]}WC's wage orders are containedin prior printings of those orders. These remaining parts have not been changed, and there is no need for an explanation because the IWCis continuing in effect regulations that have previously become a part of the standard working conditions of employeesin this State. 1. APPLICABILITY OF ORDER Amendments to this section apply to Wage Orders 1 through 13, 15, and the Interim Wage Order. Generally, the section now provides, in part, that employees employed in administrative, executive, and professional capacities are exempt from Sections 3 through 12 of these wage orders. According to the provisions of Labor Code § 515,the criteria that must be satisfied in order to obtain an exemption from overtime pay requirements based on the fact that an individual is an administrative, executive, or professional employee, are that the particular employee must be primarily engaged in duties which meet the test for the exemption, and earn a monthly salary of no fess than two times the state minimum wagefor full time employment. Labor Code § 515(e) defines “primarily” as "more than one-half of an employee's worktime," and § 515(c) defines “full-time employment” as 40 hours per week. ‘Pleasenote that not all amendments apply to all of the wage orders, and that the sections of the Interim Wage Orderareslightly different from the other wage orders. Please refer to the detailed Statement below. LIS -3 (8 00 ) 6 6 6 - 1 9 1 7 if L E G I S L A T I V E I N T E N T S E R V I C E 6 ‘ na e a * a m u m q u i s Thus the Legislature has codified the longstanding IWC regulatory requirement that an employee must spend more than 50% of his or her work time engaged in exempt activity in order to be exempt from receiving overtime pay. The IWC notesthat this California “quantitative test" continues to be different from and more protective of employeesthan, the federal "qualitative" or "primary duty" test. Unlike the California standard, federal law allows an employeethat is found to have the "primary duty" of an administrator, executive, or professional to be exempt from overtime pay even though that employee spends most of his or her work time doing nonexempt work. Under California law, one must look to the actual tasks performed by an employee in order to determine whether that employee is exempt. In addition, the statutory threshold for monthly employee remuneration has substantially increased from the amounts set forth in prior IWC wage orders, and that remuneration must be received in the form of a salary. in addition to the above requirements, Labor Code § 515(f) codified the IWC's existing treatment of registered nurses employed to engage in the practice of nursing. They are not to be considered exempt professional employees, and will not be considered exempt under Labor Code § 515(a) unless they individually meet the criteria established for executive or administrative employees. Similarly, Labor Code § 1186 (enacted by Senate Bill 651, Stats. 1999, ch. 190), provides that pharmacists employed to engagein the practice of pharmacy no longer qualify as exempt professional employees and mustindividually meetthe criteria established for executive or administrative employees in order to be considered exempt under Labor Code § 515(a). . In accordance with the mandate of Labor Code § 515(a) and the expedited process for the promulgation of regulations authorized by § 517, the |WC conducted a review in order to determine the administrative, executive, and professional duties that meet the test of the exemption. The IWC held public meetings and hearings, and received verbal and written public comment in the form of testimony, correspondence, and legal argument regarding various proposals for exempt duties. The bulk of the information came from employers and employeesinvolvedin retail, restaurant, and fast food service businesses, as well as representatives of these groups. The IWC also received substantial comment from the legal community. The chief concern of all of these groups related to the distinction between executive managerial employees and nonexempt employees. Employees stated that it was common to havethe title of a manager and not be paid overtime, yet perform manyof the same tasks as other nonexempt employees during most of the workday. Many employers asked for specific action by the IWC,including the classification of work in settings, such as retail stores, where managers may spend a significant amount of time on the retail floor in the course of managing the operation and directing and supervising the staff. They argued that an employee should not lose his or her exempt manager status merely because he or she sometimes may have to chip in and perform nonexempt work. Attorneys representing employers argued that California should move toward the federal regulatory standards. Other attorneys representing employees reminded the IWC that use of federal regulations might conflict with California's more protective statutory requirement that, in order to be exempt, employees must be "primarily we a l LE GI SL AT IV E IN TE NT SE RV IC E (8 00 ) 6 6 6 - 1 9 1 7 w n t © os a y engaged" in exempt work. The IWC determined that the way to harmonize these various and competing concerns was to focus on identifying the federal regulations that could be used to describe managerial duties within the meaning of California law. The purposeofidentifying and referring to such regulations is to more clearly delineate managerial duties that meet the test of the exemption and to promote consistent enforcementpractices. , The IWC also received festimony and correspondence from registered nurses regarding the loss of their exempt status as professional employees. The IWC received similar testimony and correspondence from pharmacists and pharmacy representatives. Some testimony reflected the desire to reinstate the professional exemption, while other testimony based on safety and accuracy considerations did not. In addition, advocates seeking an exemption for pharmacists urged that, if the professional exemption could no longer be used, the definition for the administrative exemption should be expanded to include the coverage of pharmacists. Arguments included greaterflexibility, professional degrees, and their managerial and advisory duties. Testimony submitted against the allowance of an exemption cited strenuous working conditions, potential jeopardy to the quality of patient care, and the interest of minimizing medical errors. The IWC does not have the powerto repeal Labor Code § 515(f) of1186, which explicitly require that registered nurses and pharmacists individually meet the administrative or executive criteria in order to qualify for an exemption. Accordingly, the IWC chose not to address regulations relating to registered nurses and pharmacists. Advanced practice nurses, which is an umbrella term that includes nurse practitioners, clirlical nurse specialists, certified registered nurse anesthetists, and certified nurse-midwives, submitted testimony advocating the continuation of their exempt status as professional employees. They noted, among otherthings, that they are not employed to engage in the practice of nursing, and they have advanced degrees in specialized areas, and/or special certification by the State of California. They further noted their 24-hour responsibility for patients, independent management duties, and the need for continuity of patient care asjustification for status as exempt professionals. Health care organizations and health care employees both submitted comments and correspondence urging an exemption for advanced practice nurses. On the other hand, labor organizations representing advanced practice nursestestified that they should be treated no differently than other nurses. The IWC also received information regarding pendinglegislation (Senate Bill 88) that would provide exempt professional status to three types of advanced practice nurses. This legisiation was enacted and signed by Governor Davis in September 2000. Accordingly, Sections 3-12 the IWC Wage Orders 1-13 and 15, and Sections 4 and 5 of the Interim Wage Order do not apply to certified nurse midwives, certified nurse practitioners, and certified nurse anesthetists, within the meaning of Articles 2.5, 7, and 8, of Business and Professions Code,Division 2, Chapter 6, who otherwise satisfy the requirements for the professional, executive or administrative exemption. (See Stats. 2000, ch. 492, amending Labor Code § 515.) (8 00 ) 6 6 6 - 1 9 1 7 s f LE GI SL AT IV E IN TE NT SE RV IC E * as % & m m t u n e After digesting all the information received in its review, the IWC chose to adopt regulations for Wage Orders 1 - 13, and 15 that substantially conform to current guidelines in the enforcement of IWC orders, whereby certain Fair Labor Standards Act regulations (Title 29 C.F.R. Part 541) have been used, or where they have been adapted to eliminate provisions that are inconsistent with the more protective provisions of California law. The IWC intends the regulations in these wage orders to provide clarity regarding the federal regulations that can be used describe the duties that meet the test of the exemption under California law, as well as to promote uniformity of enforcement. The IWC deemsonly those federal regulations specifically cited in its wage orders, and in effect at the time of promulgation of these wageorders, to apply in defining exempt duties under California law. Executive Exemption. The IWC derived the duties which meet the test for the executive exemption from language in the federal regulation 29 C.F.R. § 541.1(a)- (d), with one important exception. The reference in 29 C.F.R. § 541.1(a) to the phrase “primary duty" is omitted because, as discussed above, that phrase refers to a federal test that provides less protection to employees. Instead section A(1) generally refers to managerial duties and responsibilities, while section A(5) sets forth California's "primarily engaged” requirement. Section A(5) also refers to the federal regulations, 29 C.F.R. §§ 541.102, 541.104-541.111, 541.115-541.116, that may be used to describe exempt duties under California law. Included in these regulations are two which describe work and occasional tasks that are "directly and closely related" to exempt work. (29 C.F.R. §§ 541.108 and 541.110.) For example, time spent by a manager using a computer to prepare a management report should be classified as exempt time where use of the computer is a means for carrying out the exempt task. The IWC recognizes that 29 C.F.R. § 541.110 also refers to “occasional tasks" that are not "directly and closely related." The IWC does not intend for such tasks to be included in the calculation of exempt work. In addition, the last sentence of section A(5) comes from the California Supreme Court's decision in Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 801-802. Although that case involved the exemption for outside salespersons, the determination of whether an employee is an outside salesperson is also quantitative: the employee must regularly spend morethan half of his or her working time engagedin salesactivities outside the workplace. in remanding the case back to the Court of Appeal, the California Supreme Court offered the following advice: "Having recognized California's distinctive quantitative approach to determining which employees are outside salespersons, we must then address an issue implicitly raised by the parties that caused some confusion in the trial court and the Court of Appeal: Is the number of hours worked in sales-related activities to be determined by the number of hours that the employer, according to its job description or its estimate, claims the employee should be workingin sales, or should it be determined by the actual average hours the employee spent on sales activity? The logic inherent in the IWC's _ quantitative definition of outside salesperson dictates that neither alternative would be wholly satisfactory. On the one hand,if hours worked on sales were determined through an employef’s job (8 00 ) 66 6- 19 17 #/ LE GI SL AT IV E IN TE NT SE RV IC E 6, # * a * y a a g e * description, then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality. On the other hand, an employee whois supposed to be engagedin sales activities during most of his working hours and falls below the 50 percent mark due to his own substandard performance should not thereby beable to evade a valid exemption. ‘A trial court, in determining whether the employee is an outside salesperson, must steer clear of these twopitfalls by inquiring into the realistic requirements of the job. In so doing, the court should consider,first and foremost, how the employee actually spendshis or her time. But the trial court should also consider whether the employee's practice diverges from the employer's realistic expectations, whether there was any concrete expression of employer displeasure over an employee's substandard performance, and whether these expressions were themselvesrealistic given the actual overall requirements of the job.” The IWC, in summarizing the above languagein its wage orders, intends to provide some guidance in the enforcementof its regulations. The IWC does notintend to modify or limit the California Supreme Court's statementsorits decision. Administrative Exemption. The IWC similarly derived the duties that meet the test for the administrative exemption from languagein the federal regulation 29 C.F.R. § 541.2(a)-(c), with the exception of the "primary duty" phrase. Section B(1)(b), which restates 29 C.F.R. § 541.2(a)(2), refers to school administration, but is not intended to establish a different test with regard to school administration, or to affect the professional exemption as it relates to teachers, or to otherwise change existing law. Section B(4) sets forth the California "primarily engaged" requirement. That section also sets forth the federal regulations, 29 C.F.R. §§ 541.201-541.205, 541,207-541.208, 541.210, and 541.215, that may be used to describe exempt duties under State law. These regulations include types of administrative employees, categories of administrative work, and a description of what is meant by the phrase "discretion and independent judgment." The last sentence of section B(4) again-summarizes the California Supreme Court's decision in Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th at 801-802, quoted above. In summarizing that language, the IWC intends to provide some guidancein the enforcementofits regulations, and does not intend to modify orlimit the California Supreme Court's statementsorits decision. Professional Exemption. The IWC developed the duties that meet the test for the professional exemption from the list of recognized professions contained in prior wage orders as well as from language in the federal regulations 29 C.F.R. § 541.3(a)(1), (2), and (4), and 541.3(b). The recognized professions are law, medicine, dentistry, optometry, architecture, engineering, accounting, and teaching. Although registered nurses and pharmacists were previously included in the list of recognized professionals, as discussed above, they can no longer be considered to be exempt as professionals. (Labor Code §§ 515(f) and 1186.) Teaching continues to require a certificate from the Commission for Teacher Preparation and if L E G I S L A T I V E I N T E N T S E R V I C E . (8 00 ) G 6 6 - 1 9 1 7 e , @ at eo t o n e Licensing, or teaching in an accredited college or university, to be eligible for the professional exemption. Employees subject to Wage Orders 1, 4, 5, 9, and 10 have had the “learned or artistic” aspect of the professional exemption available to them since 1993. The IWC found no reasonto limit this aspect of the exemption to those five wage orders. The IWC therefore decided to include the "learned andartistic" provisions uniformly throughout all the wage orders. Section C(4) sets forth the federal regulations, 29 C.F.R. §§ 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and 541.310, that may be used to describe exempt duties under State law. The new regulations in this section of the IWC's wage orders regarding the administrative, executive, and professional exemption are consistent with existing law and enforcementpractices. Recent legislative enactments provide exemptions from some or all of the provisions of the IWC’s wage orders. In addition to an exemption for certain advanced practice nurses, SB 88, Stats. 2000, ch. 492, creates an exemption for certain employees in computer softwarefields.: Sections 3-12 of |WC Wage Orders 1-13 and 15, and Sections 4 and 5 of the Interim Wage Orderwill not apply to employees in computer software fields who 1) earn forty-one dollars ($41.00) or more per hour, 2) are primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment, and 3) are highly skilled and proficient in the theoretical and practical application of highly specialized information to Computer systems analysis, programming, and software engineering within the meaning of added Labor Code § 515.5. In addition, effective January 1, — 2001, the IWC’s orders will not apply to any individual participating in a National Service Program, such as AmeriCorps, AmeriCorps NCCC,and Senior Corps,that carry out services with the assistance of grants from the Corporation for National! and Community Service within the meaningofTitle 42, United States Code, Section 12571. (See Stats. 2000, ch. 365, amending Labor Code § 1171.) This section further provides that outside salespersons are exempt from the provisions of the IWC's wage orders. Pursuant to the requirements of Labor Code § 517(d), the IWC conducted a review of the wages, hours, and working conditions of outside salespersons and received testimony and correspondence on these matters. Some witnesses urged the IWC adopt a more expansive definition of an outside salesperson. Others asked the IWC to define more clearly those activities that are not "sales related." After considering proposals by both employers and employees, the IWC determined that it would not changeits longstanding definition of “outside salesperson." (See Ramirez v. Yosemite Water Co., 20 Cal.4th 785.) However, the IWC notes that this exception is to be construed narrowly, as a determination that an employee is an outside salesperson deprives that employee of the protections of the wage orders and manyotherprovisions of the Labor Code. The provisions of Wage Order 10 now apply to all employees employed by @ employer operating a business at a horse racing facility, including stable “employees. Stable employees include, but are notlimited to grooms, hotwalkers, (8 00 ) 6 6 6 - 1 9 1 7 o d ) L E G I S L A T I V E I N T E N T S E R V I C E + e r e a o t exercise workers, and any other employees engaged in the raising, feeding, or managementof racehorses, employed bya trainer at a racetrack or other non farm training facility. Employees in the commercial fishing industry are now covered by wage orders 10 and 14. The IWC received no compelling evidence, and concluded there was no reason at this time, to warrant making any other changesin the provisionsof this section. 2.. DEFINITIONS Amendmentsto this section apply to Wage Orders 1 through 13, and 15. The IWC received testimony from employee and employer groups requesting clarification regarding what a workday and a workweek included. There was also confusion regarding the definition of an alternative workweek. The IWC adopted thefollowing languageinto the Interim Wage Order - 2000: 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 (8) hours in a 24-hour period. This languagewill now replace the language in Wage Orders 1 through 13 and 15. The definitions provided in this section for "workday" and "day," "workweek" and "week," and “alternative workweek schedule" are identical to the definitions provided in Labor Code §500. The IWC determined that an additional definition for a work “shift” should be added to its wage orders. "Shift" means designated hours of work by an employee,with a designated beginning and quitting time. As discussed below in Section 3, Hours and Days of Work, the IWC also determined that the health care industry should retain the option to adopt alternative workweek schedules with work days of more than 10 but not exceeding 12 hours. The IWC has therefore included definitions in Wage Orders 4 and for the terms “health care industry," "employees in the health care industry" and “health care emergency." These three terms are discussed morefully in Section 3. The IWCreceived no compelling evidence, and concluded there was no authority at this time, to warrant making any other changein the provisions of this section other than those required by AB 60. an 4, he l. (8 00 ) 6 6 6 - 1 9 1 7 / LE GI SL AT IV E IN TE NT S E R V I C E * w e # a 3. HOURS AND DAYS OF WORK DAILY OVERTIME - GENERAL PROVISIONS? This portion of Section 3 states the daily overtime provisions mandated by AB 60 and applies to Wage Orders 1 through 13, unless otherwise indicated. This section clarifies that premium pay for the "seventh day of work in any one workweek"refers to the seventh consecutive day of work in a workweek. The IWC received testimony regarding the general provisions of overtime as mandated by AB 60. Both employers and employeestestified that they were confused regarding the meaning of the "seventh day of work"in the calculation of premium pay. The time-and-a-half provision in Labor Code §510(a) refers to "seventh day of a workweek," but the double time provision refers to "seventh day of a workweek." This slight difference creates the confusion as to whether AB 60 requires double time pay for any work performed in excess of eight hours on the seventh day of the workweek, evenif the employee has not worked onall seven days of that workweek. The IWC found that the purpose of the seventh day premium is to provide extra compensation to workers who are denied the opportunity to have a day off during the workweek. Followinga literal interpretation of the double time provision would illogically reward someone who may only be scheduled to work one day, and that day fortuitously happens to be the seventh day of the employer's workweek. To clarify this. matter, the IWC inserted the term "consecutive" to specify that an employee must work on all seven days in a designated workweekto receive overtime compensation for the seventh day of work in.a workweek. In determining overtime compensation for nonexempt fulltime salaried employees, this section also restates Labor Code § 515 (d), which clarifies that the rate of 1/40th of the employee's weekly salary should be used in the computation. ALTERNATIVE WORKWEEKS SCHEDULES’ This portion of section 3 provides the general guidelines forWage Orders 1 through 13 for the adoption of employer proposed alternative workweek schedules provided by Labor Code § 511. Section 511 has specific provisions for adopting alternative workweek schedules and sets the standards for determining the overtime compensation for employees who adopt such schedules. Generally, Wage Orders 1 through 13 provide that an employer does notviolate the daily overtime provisions by properly instituting an alternative workweek schedule of up to ten (10) hours per day within a forty (40) hour workweek. Instead, once employees have properly adopted an alternative workweek schedule, an employer ‘must pay one and one-half (11) times the employees’ regular rate of payfor all work performed in any workday beyond that alternative workweek of up fo twelve (12) hours a day or beyondforty (40) hours per week, and double the employees’ regular * See Section 4 of the Interim Wage Order * See Sections 5-8 of the Interim Wage Order. (8 00 ) 6 6 6 - 1 9 1 7 , e Se ie t y a if L E G I S L A T I V E I N T E N T S E R V I C E o f 2 a m e * rate of pay for 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 adopted alternative workweek schedule. Wage Orders 4 and 5 also provide for alternative workweekschedules of up to twelve (12) hours in a workday within a forty (40) hour workweek for employees in the health care industry. In addition, the IWC has provided for special exemptions from daily overtime for organized camp counselors and employees in the ski and commercial fishing industries. These matters are discussed in more detail below. The IWC notes that Wage Order 1-89, which wasreinstated by AB 60, provided for an alternative workweek "of not more than ten (10) hours per day within a workweek of not less than forty (40) hours," as opposed to the language adopted by the [WC that provides for an alternative workweek of not more than ten (10) hours per day within a "within a forty (40) hour workweek," as specified in AB 60. To resolve this conflict, and in the interest of uniformity and greaterflexibility in crafting alternative workweek schedules, the IWC adopted the latter language to insert into Wage Orders 1 through 13. Thus, Wage Order 1 now contains languageidentical to the other wage orders. The IWC further clarified that hours considered in the calculation of daily overtime pay are not counted in the determination of 40-hour workweek overtime compensation. Basically, there is no "pyramiding" of separate forms of overtime pay for the same hours worked. Once an hour workedis paid at the applicable daily overtime rate, that same hour cannot be used in the computation of forty hours for the purposes of weekly overtime pay. After receiving testimony and correspondence from employees who sought predictability in work schedules, and employers who sought flexibility in work schedules, the IWC concluded that an employer proposal for. an alternative workweek schedule must designate the number of days in the workweek and numberof hoursin the work shift. The employer does not need to specify the actual days to be worked within that workweekprior to the alternative workweekelection. The phrase "regularly scheduled," as set forth in Labor Code § 511(a), meansthat 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. However, in no event does Labor Code § 511(a) authorize an employer to create a system of "on-call" employmentin which the days and hours of work are subject to continual changes, depriving employees of a predictable work schedule. Moreover, in Wage Orders 1, 2, 3, 6, 7, 8, 11, 12, and 13, the IWC retained the pre-AB-60 requirementthai alternative workweek schedules provide for two (2) consecutive days off for employees. The IWC received several inquiries concerning flexibility for employees switching alternative workweekoptions after an election is held. The !WC concluded that upon the approval of the employer, an employee may move from one menu option to another. Additionally, the "menu of options" provision provided in Labor Code § 511(a) provides that an employer may propose "a menu of work schedule options, & A f a m l e (8 00 ) 6 6 6 - 1 9 1 7 J d L E G I S L A T I V E I N T E N T S E R V I C E # e s a e from which each employee in the unit would be entitled to choose. “Such choice may be subject to reasonable nondiscriminatory conditions, such as a seniority based system or a system based on random selection for selection of limited alternative schedules, provided that any limitation imposed upon an employee’s ability to choose an alternative schedule is approved as part of the 2/3 vote of the work unit. If the employer's business needs preclude allowing its employees to freely choose among work schedule options, the employer should not propose a menuof work schedule options. Instead, the employer may be able to propose more than one alternative workweek schedule by dividing the workforce into separate work units, and proposing a different alternative workweek schedule for each unit. This method would inform each employee of exactly which schedule would be adopted by the election. In order to provide flexibility in accommodating the personal needs of employees, the IWC furtherclarified that employers may grant employeerequests t switch same-length shifts on an occasionalbasis. Based on someofthe testimony the IWC received regarding alternative workweek schedules, a question arose as to whether an employer who adopted an alternative workweek arrangement of no greater than ten (10) hours per day could lawfully require employees to work beyond those scheduled hours on a recurring basis with the paymentof appropriate overtime compensation. Labor Code §511(a) provides that employees mayelect to establish a "regularly scheduled alternative workweek" that authorizes work by the affected employees for no longer than 10 hours within a 40-hour workweek. However, Labor Code § 511(b) provides. that an employee working beyond the hours established by the alternative workweek agreement shall be entitled to overtime compensation. The IWC believes that, reading these two provisions of the Labor Code together, an employer who requires an employee to work beyond the number of hours established by the alternative workweek agreement, even if such overtime hours are worked on a recurring basis, does not violate the law if the appropriate overtime Compensationis paid. However, the IWC added a section to its wage orders out of its continued concern that employers. could establish alternative workweek agreements and then consistently deviate from the regular schedule approved by the employees without paying overtime compensation for work performed beyond eight hours in a day. Such conduct effectively deprives employees of the right established by Labor Code§511(a) to a "regularly scheduled” alternative workweek and could lead to abuses. To prevent any such abuses, the IWC wageorders. now providethat,if an employer sends workers homeearly on a work day that they are scheduled to work beyond eight hours without the payment of overtime pursuant to an alternative workweek agreement, the employer is required to pay overtime compensation in accordancewith the provisions of the Labor Code §511(a) for all hours worked in excessof eight (8) hours on that workday. The IWC has received questions regarding how part-time employees working in employee units that have adopted alternative workweeks should be paid overtime. It is the IWC's continued intention that a part-time. employee be paid overtime in the same manner as other employeesin the work unit. Thus if the employee work unit has adopted analternative work week schedule of four ten-hour days, a part-time 10 (8 00 ) 6 6 6 - 1 9 1 7 A f L E G I S L A T I V E I N T E N T S E R V I C E u k e “, - a w e employee working two fem-hour days would not be paid overtime after eight hours; rather, overtime would be paid after working the ten-hourdaily shift. This section echoes Labor Code §511(c), which prohibits employers from reducing an employee's regular rate of hourly pay as the result of the adoption, repeal, or nullification of an alternative workweek schedule. Labor Code §511(c} only applies to reductions in the regular rate of pay that are instituted after January 1, 2000, the effective date of AB 60. This section also reflects the requirements of Labor Code § 511(d) regarding the required reasonable accommodation of employees who are unable to work alternative workweek schedules that are established through election, the permissible accommodation of employees hired after the election who are unable to work the alternative workweek schedules established through election, and the required exploration of “any available reasonable alternative means” of accommodation of the religious belief of an affected employee that conflicts with the alternative workweek schedule established through election. In addition, this section states the requirements for the employer reporting of alternative workweek election results mandated by Labor Code §511(e), as well as the provisions in Labor Code §554 conceming the accumulation of days of rest. The requirement of one day's rest in seven is mandated by Labor Code §§ 551 and 552. Notwithstanding the general provisions in its wage orders regarding alternative workweeks, Wage Orders 4 and 5 allow employeesin the "health care industry" to adopt employer proposed alternative workweeks of up to twelve (12) hours in a workday within a forty (40) hour workweek. Labor Code § 511(g) and the Interim Wage Order 2000 previously authorized such alternative workweeksif they were adopted according to the election and other requirements contained in those measures. In addition, the Interim Wage Order provides that such alternative workweeks are valid only until the effective date of wage orders promulgated pursuant Labor Code §517. In the meantime, the IWC conducted a review of the health care industry, as required by Labor Code § 517(b), to determineinter alia whetherthe allowance of twelve hour workdays should continue to be an option for employees, and what employees should be considered a part of the health care industry. The IWC received testimony and correspondence from numerous employees, employers, and representatives of the health care industry regarding alternative workweeks.Citing personal preference, commutertraffic, mental and physical well- being, family care, and continuity of patient care issues, the vast majority of testimony from health care employees urged the retention of the 12-hour workday. Advocates of 12-hour workdays also noted that 8-hour shifts were impractical for hospital and home health care services, and that their industry should be afforded greaterflexibility. The IWC received additional testimony and correspondence from employees who work eight (8) hour shifts and prefer doing so. These employees also emphasized the need for flexibility in work scheduling, so that eight (8) shifts would not be ll (8 00 ) 6 6 6 - 1 9 1 7 f f L E G I S L A T I V E I N T E N T S E R V I C E df o s o m o t eliminated, and so that employees would not be forced to work longer or shorter hours than desired. The [WCalso received testimony concerning patient safety considerations in support of the elimination of 12-hour workdays. These witnesses advised that the last four hours of 12-hour shifts.can be exhausting and that exhaustion can result in a greaterinclination toward making mistakes. Based onall the informationit received, the IWC determined that the health care industry should retain the option to adopt alternative workweek schedules with work days of more than 10 but not exceeding 12 hours. The IWC further determinedthatit will retain through-its wage orders the provisions of former Labor Code § 1182.9, that employers engaged in the operation of a licensed hospital, or in providing personnelfor the operation of a licensed hospital, may propose regularly scheduled alternative workweeks that include no more than three (3) twelve (12)-hour workdays within a 40-hour workweek, and that, if such an alternative workweekis adopted, an employer must 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 shift. However, an employer is not being required to offer a different work assignment to an employee if such a work assignmentis not available orif the employee washired after the adoption of the twelve (12) hour, three (3) day alternative workweek schedule. The main question remaining was how the health care industry would be defined. Following several public meetings and hearings, employer and employee representatives decided to work together and attempt to resolve several issues regarding the health care industry and to draft proposed language for consideration by the IWC. Prior to the public hearing on June 30, 2000, these two groups were able to negotiate compromises agreeable to both sides and to propose such language to the IWC. The proposed language, which the IWC. adopted, defines the "health care industry” 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. The IWC received testimony and correspondencethat 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), (d), (e), (g), and (h), and 1569.2(k). The proposal also included language defining the employeesthat are a part of the health care industry. The IWC adoptedthis proposal with one amendment regarding animal health care. Employeesin the health care industry are now defined as those employees who provide patient care, or work in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting, or work primarily or regularly as members of a patient care delivery team, or are licensed veterinarians, registered veterinary technicians, and unregistered animal health 12 (8 00 ) 6 6 6 - 1 9 1 7 L E G I S L A T I V E I N T E N T S E R V I C E % # @oe 2% o m i & & assistants and technicians providing patient care in animal hospital settings or facilities equivalent to those described abovefor people. The regulations make clear that the phrase “employeesin the healthcare industry" does not include those persons primarily engaged in providing meals, performing maintenance or cleaning services, doing business office or other clerical work, or undertakings involving any combination of such duties. Therefore, any alternative workweek schedule that is adopted by employees primarily engaged in these duties, and that provides for workdays in excess of 10 hours, is now null and void. The IWC intends the definition of employees in the health care industry to encompass pharmacists who dispense prescriptions in all practice settings, including community retail pharmacists. The IWCalsointendsto include within the definition of the health care industry all employees whoprimarily or regularly provide hospice care as membersofa patient care delivery team. The IWC further notes that the requirement that an employee work primarily or regularly as a memberof a patient care delivery team means that the employee must spend more than one-half of his or her work time engaged in such work. In Wage Orders 4-89 and 5-89, as amended in 1993, the IWC had a different definition of the term “primarily” for employees in the health care industry. ' According to those orders, "the term ’primarily’ as used in section 1, Applicability, means(1) more than one-half the employee's work time as a rule of thumbor,(2)if the employee doesnot spend more than 50 percent of the employee's time performing exempt duties, where other pertinent factors support the conclusion that management, managerial, and/or administrative duties represent the employee's primary duty.” This definition no longer exists. Again, the IWC emphasizedthat, consistent with Labor Code §515(e), "primarily" means one-half the employee's work time. With regard to animal health care, the IWC received testimony from veterinarians and the California Veterinary Medical Association which represents approximately 4,500 licensed veterinarians and registered veterinary technicians who own and/or work in some 2,200 hospitals, clinics and independent practices throughout the State. The Association advised the IWC that approximately 50% of the animal care facilities are 24-hour hospitals that provide medical, dental, and surgical care, as well as emergency andcritical care for patients. The IWC determinedthatlicensed veterinarians, registered veterinary technicians and unregistered assistants had the same work-related issues and personal concerns regarding alternative workweek schedules as employees providing health care services to humans, and that such employees, who provide patient care within the meaning of Business and Professions Code §§ 4825-4857in facilities similar to those described above for the treatment of humans, should be included in the health care industry. The negotiated proposed language that the IWC adopted also includes a few protections for employees working 12-hourshifts. Employees cannot be required to work more than 12 hours in a 24-hour period unless there is a “health care emergency," as that phrase is defined in the regulation, and even though all reasonable steps have been taken to provide otherwise, the continued overtime is 13 if L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 66 6- 19 17 4 # n e w a e ? & a e necessary to provide the required staffing. However, an employee may be required to work up to thirteen (13) hours within a 24-hour period if the employee thatis supposedto relieve the first employee does not show upforhis or hershift on time and doesnotnotify the employer two hours in advance that he or she will not appear for duty as scheduled. Also, no employee can be required to work more than sixteen (16) hours in a 24-hourperiod unless by a voluntary mutual agreementof the employee and employer, and no employee can work more than 24 consecutive hours until that employee receives 8 consecutiveoff-duty hours. Finally, the adopted languageprovidesthat,if, during the last quarter of 1999, an employer implemented a reduced pay rate for employees choosing to work 12 hour shifts, 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 baseratein 1999 immediately prior to the date of the rate reduction. The !WCretained the provisions in Wage Order5 relating to the following method of calculating overtime compensation. An employer engaged in the operation of a hospital or other institution primarily engaged in the care of the sick, aged, or mentally ill or defective in residence may, pursuant fo an agreement or understanding arrived at before the performance of work, establish a work period of fourteen (14) consecutive daysin lieu of a workweek of seven (7) consecutive days if, for any work in excess of eighty (80) hours in such fourteen (14) day period, the employee receives compensation at a rate of not less than one and one-half (1%) ‘times the employee's regularrate of pay. ELECTION PROCEDURES Labor Code 517(a) directed the IWC to adopt regulations before July 1, 2000 regarding "the conduct of employee workweekelections, procedures for employees to petition for and obtain elections to repeal alternative workweek schedules, procedures for implementation of those schedules, conditions under which an adopted alternative workweek schedule can be repealed by the employer, employee disclosures, designations of work, and the processing d workweek election petitions.” In accordance with this mandate,this section also lays out the election proceduresfor the adoption and repeal of alternative workweek schedules. Labor Code § 511(e) requires employers to report the results of any election to the Division of Labor Statistics and Research. Based ontestimonyit received during public meetings and hearings, as well asits consideration of proposals of election procedures that were submitted, the IWC determined its wage orders should have more extensive procedures and safeguards than included in the Interim Wage Order - 2000. The language adopted reiterates the two-thirds (b) vote before the performance of work and secretballot election requirements found in Labor Code § 511(a), and also provides a definition for "affected employeesin the work unit." This definition is derived from preexisting language found in Wage Orders 4, 5, 9, and 10. 4 % » t d a a f/f LE GI SL AT IV E IN TE NT SE RV IC E (8 00 ) 6 6 6 - 1 9 1 7 * s a s However, the adopted language also sets up employee disclosure guidelines and mandates that an employer must provide disclosure in a non-English languageif at least five (5) percent of the affected employees primarily speak that non-English language. Written disclosure and at least one meeting must be held at least fourteen (14) days prior to the secret ballot vote. This 14-day notice provision was previously applicable only to the health care industry. Failure to abide by these employee disclosure requirements will render the election null and void. In addition, Wage Order election procedures now require employers to hold elections at the work site of the affected employees, specify that employers must bear any election costs, and authorizes the Labor Commissioner to investigate employee complaints. Following an investigation, an employer may be required to select a neutral third party to conduct the election. In order to provide additional protection for employees, the |WC added language that prohibits employers from intimidating or coercing employeesto vote either in support of or in opposition to a proposed alternative workweek. Also, employees cannot be discharged or discriminated against for expressing opinions about elections or for voting to adopt or repeal an alternative workweek agreement. The procedures further provide for the revocation of an alternative workweek schedule. The one-third (1/3) petition threshold and two-thirds (b) vote required to reverse an alternative workweek agreementreflects language adopted in the Interim Wage Order — 2000. While Wage Orders 1, 9, 10 and nor-health care industry employees in Wage Orders 4 and 5 already followed these requirements, Wage Orders 2, 3, 6, 7, 8, 11, 12, 13, and Wage Orders 4 and 5 in the coverage of health care industry employees instead required a majority of employeesto petition for an election. In the interest of establishing a universal provision applicable to all wage orders, the IWC decided to defer to the one-third (1/3) standard. Following the repeal of an alternative workweek schedule, the employer faces a sixty (60) day compliance deadline, but the Division of Labor Standards Enforcement (DLSE) may grant an extension upon showing of undue hardship. This provision merely restates preexisting language from Wage Orders 1 through 13. The requirements that an election to repeal an alternative workweek agreement must be held within thirty (30) days of an employee petition and on the affected employees’ work site fall under the IWC's Labor Code § 517 authority. The prerequisite twelve (12) month lapse after the adoption of an alternative workweek schedule before an election to repeal can be held reflects preexisting language found in Wage Orders 1 through 13. The adopted language clarifies that the report on election results is a public document, and further specifies the content required for each report. The language also provides for a thirty (30) day grace period before employees are required to work any new alternative workweek schedules adopted throughelection. OTHER PROVISIONS “ See Sections 6-8 of the Interim Wage Order. 15 é * ‘a i f L E G I S L A T I V E I N T E N T S E R V I C E a w e *é, (8 00 ) 66 6- 19 17 a a, * Minors: This section reflects the current penalties for violation of child labor laws. Violators are now subject to civil penalties from $500 to $10,000 as well as to criminal penalties. These increased penalties,initially set forth in the Interim Wage Order- 2000, will now bereflected in all the IWC's wageorders. Make up Time: This section implements the make up time provisions mandated by Labor Code §513. The statute provides that an employer must approvethe written request of an employee on each occasion the employee wouldlike to perform make up time in the same workweek. In the interest of employer and employee convenience, the IWC decided fo allow any employee who knowsin advance that he or she will be requesting make up over a succession of weeks to request make up worktime for up to four weeks in advance. Collective Bargaining Agreements: This section updates the criteria for the collective bargaining agreement exemption in accordance with Labor Code § 514. Except as provided in subsections referring to overtime for minors 16 and 17 years of age,the availability of a place to eat for workers on night shift, and limits on work over 72 hours, employees working undervalid collective bargaining agreements are exempt from the AB 60 overtime provisions if the agreement provides for the wages, hoursof work, and working conditions of the employees, premium wage rates are designated for all overtime hours worked, and their regular hourly rate of payis atleast thirty (30) percent more than the state minimum wage. This provision replaces the previous requirement that employees undercollective bargaining agreements must earn at least one-dollar ($1) an hour more than the state minimum wage to qualify for the exemption. Premium wage rates are any rates higher than theregular hourly wage rate. The IWC also adopted languagethat requires the application of "one day's rest in seven" for employees working under a collective bargaining agreement unless the agreementexplicitly states otherwise. The California Labor Federation submitted testimony that Labor Code §514 was intended to. permit the parties to a collective bargaining agreement to define what constitutes “overtime hours" and to determine the rate of premium payto be paid for all overtime hours worked. The Commission agrees that § 514 permits the parties to a collective bargaining agreementto establish alternative workweek agreements through the collective bargaining process provided certain conditions are met. Thus, so long as the collective bargaining agreement establishes regular and overtime hours within the work week, establishes premium payfor all such hours worked, and the regular rate of pay is more than (30) percent above the minimum wage,then the exemption established by Labor Code § 514 is applicable. Personal Attendants: Wage Order5 previously included an exemption from Section 3, Hours and Days of Work, for personal attendants, 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 (24) hour care, organized camp counselors, and resident managers of homesfor the aged having less than eight (8) beds as long as such employees were not employed more than 54 hours nor more than six (6) days in any workweek, except under certain emergency conditions. The 16 i f L E G I S L A T I V E I N T E N T S E R V I C E (8 00 ) 6 6 6 - 1 9 1 7 T e a ” z e e * IWC learned, however, that, except for organized camp counselors, the provisions of this exemption violate the requirements of the federal! Fair Labor Standards Act. In order to comply with federal law, the IWC reduced the weekly overtime provisions to 40 hours for personal attendants, adult employees or minors who are permitted to workas adults who havedirect responsibility for children under eighteen (18) years of age receiving twenty-four(24) hour care, and resident managers of homesfor the aged having less than eight (8) beds. It is the IWC's intention is that these employees may work more than eight (8) hours in a day as long as their weekly hours do not exceed 40 and, consistent with prior enforcement practices, any such employees who work more than 40 hours in a workweek must receive overtime pay for any day during that workweekin which they worked more than eight (8) hours. The IWC notes, however, that personal attendants who are also "employees in the health care industry,” who also work in facilities within the meaning of the term "health care industry,” may elect to work pursuant to an alternative workweek schedule adopted pursuantto the provisions applicable to such employees. Ski Industry Employees (See Wage Order 10): Pursuant to Labor Code § 517(b), The IWC conducted a review of the wages, hours, and working conditions of employees working at establishments that offer Alpine and Nordic skiing and related recreational activities to the public. The IWC received testimony and written submissions from employees who overwhelmingly disapproved the special exemption from overtime set forth in former Labor Code § 1182.2 whereby employees could be required to work up to 56 hours in a workweek without the payment of overtime. Employees stated that their income is just above the minimum wage, that they have often worked ten (10) to fourteen (14) hours at straight time without breaks or meal periods, and at their incomeit is difficult to pay rent or otherwise make ends meet. They asked that they receive the same protections as other employees under AB 60. In addition, labor representatives testified that ski facilities in neighboring Nevada are required to pay overtime to employeesafter eight (8) hours without any apparentfinancial hardship. Employers testified that they are a very small industry of 38 facilities, with a low profit margin that is very dependent upon the vagaries of the weather and a primarily seasonal workforce. Employers further stated that, unlike other industries that are dependent on the weather, ski facilities must be cleared for safe public use every day they are open. Theyalso noted that, the under the federal Fair Labor Standards Act, the ski industry is exempt from having to pay weekly overtime after forty (40) hours, and that, if they are required to comply with all the requirements of AB 60, their profit margin will be eliminated. As a compromise, they requested that the iWG issue regulations requiring overtime to be paid after forty-eight (48) hours in a workweek year-round. The {WC concludedthat it would be inconsistent with the health, safety, and welfare of employees to continue the former statutory exemption from daily overtime in a regulation. Instead, Wage Order 10 will now provide that an employer engagedin the operation of a ski establishment as defined in that orderwill not be in violation of overtime provisions byinstituting a regularly scheduled alternative workweekof 48 hours or less during any month of the year when Alpine or Nordic skiing activities are actually being conducted. However, overtime must be paid at the rate of 1% 17 (8 00 ) 6 6 6 - 1 9 1 7 é “ ae @, i f L E G I S L A T I V E I N T E N T S E R V I C E a o d a q a a n ? times the regular rate of pay for all hours worked in excess of ten (10) hours in a day or 48 hours in a workweek. Commercial Fishing Employees (See Wage Orders 10 and 14): The IWC received testimony from persons employed in the commercial passengerfishing 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 !WC concluded that itwould continue the exemption from Section 3, Hours and Days of Work, formerly set forth in the Labor Code § 1182.3, for employees of commercial passengerfishing 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. The IWC received no compelling evidence to warrant making any other changesin the provisions of Section 3, Hours and Days of Work. 4, MINIMUM WAGES While there are no changes to present minimum wagelevels, the IWC currently is conducting its minimum wage review. A new minimum wage may becomeeffective January 1, 2001. If there is a new minimum wage,it will, in turn, affect the level of meal and lodging credits. Commercial Fishing: Under former Labor Code § 1182.3 employeesin this industry were exempt from the minimum wage. The IWC conducted a review ofthis industry pursuant to Labor Code § 517(b), and received testimony from representatives of the commercial passengerfishing industry that fhe 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 present 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. : 18 (8 08 ) 6 6 6 - 1 9 1 7 if L E G I S L A T I V E I N T E N T S E R V I C E @ ot f a o e a t , o m e 9. UNIFORMS AND EQUIPMENT The IWCretainedits longstanding policy of requiring employers to provide uniforms, tools and equipment necessary for the performance of a job. Subsection (B) permits an exception to the general rule by allowing an employee who earns more . than twice the State minimum wage to be required to provide hand tools and equipment where such tools and equipment are customarily required in a trade or craft. This exception is quite narrow andis limited to hand (as opposed to power) tools and personal equipment, such astool belts or tool boxes, that are needed by the employee to secure those hand tools. Moreover, such hand tools and equipment must be customarily required in a recognized tradeorcraft. 11. MEAL PERIODS® Wage Orders 1, 2, 3, 6, 7, 8, 9, 10, 11, 13 and 15 continue the preexisting requirement of a meal period for an employee working for a period of more thanfive (5) hours, and provide for a second meal period in accordance with Labor Code §512(a). Senate Bill 88, Stats. 2000, chapter 492, added subsection (b) to Labor Code § 512, which provides that, notwithstanding subsection (a), the IWC may adopt a working condition orderthat allows a mealperiod to begin after six hours of work if it determines that the order is consistent with the health and welfare of the affected employees. The {WC made such a determination with regard to Wage Order 12 and continued the existing language providing for a first meal for an employee working for a period of more than six (6) hours, and for a second meal! period in accordance with Labor Code §512. Consistent with the health, safety, and welfare of employees in the health care industry, the IWC determined that Wage Orders 4 and 5 should have somewhat different language regarding meal periods. The IWC received correspondence from members of the health care industry requesting the right to waive a meal period if an employee works more than a 12-hour shift. The IWC notes that Labor Code § 512 explicitly states that, whenever an employee works for more than. twelve hours in a day, the secondmeal period cannot be waived. However, Labor Code § 516 authorizes the IWC to adopt or amend the orders with respect to break periods, meal periods, and days ofrest for all California workers consistent with the health and welfare of those workers. 5 See Section 9 of the Interim Wage Order. (8 00 ) 6 6 6 - 1 9 1 7 “ i ! L E G I S L A T I V E I N T E N T S E R V I C E sd n e a ® u o a m The IWC received several comments concerning the potential prohibition of on-duty meal periods. Under the current IWC wageorders, an “on-duty meal period” is permitted only when (1) the nature of the work prevents the employee from being relieved of all duty, and (2) the employee and employer have enteredinto a written agreement permitting an on-duty meal period. An employee must be paid for the ‘entire on-duty mealperiod since it is considered time worked. Any employee who works more than six hours in a workday must receive a 30- minute meal period. If an employee works more than five hours but less than six hours in a day, the meal period may be waived by the mutual consent of the employer and employee. Notwithstanding other provisions regarding meal periods, the IWC adopted proposed language prepared for its consideration by employee and employer representatives of the health care industry. This language provides that employees in the health care industry covered by Wage Orders 4 and 5 who work shifts in excess of eight (8) hours in a workday mayvoluntarily waive their right to one of their two meal periods, provided that the waiveris in writing and voluntarily signed by the employer and employee. The employee may revoke the waiver at any time by providing the employer with at least one (1) day's written notice of the revocation. However, while the waiver is in effect, the employee must be paid for all working time, including an on-the-job mealperiod. During its review of its wage orders and of various industries pursuant to the provisions of AB 60, the IWC heard testimony and received correspondence regarding the lack of employer compliance with the meal and rest period requirements of its wage orders. The IWC therefore added a provision to this section that requires an employer to pay an employee one additional hour of pay at the employee's regular rate of pay for each work day that a meal period is not provided. An employer shall not count the additional hour of pay as "hours worked" for purposes of calculating overtime pay. The IWC received no compelling evidence, and concluded there was no authority at this time, to warrant making any other changein the provisions of this section other than those required by AB 60. 20 20 # a i f L E G I S L A T I V E I N T E N T S E R V I C E o d % (8 00 ) 6 6 6 - 1 9 1 7 a e o s t e a e 12. REST PERIODS As discussed above in Section 11, Meal Periods, the IWC heard testimony and received correspondence regarding the lack of employer compliance with the meal and rest period requirements of its wage orders. The IWC therefore added a provision to this section that requires an employer to pay an employee one additional hour of pay at the employee's regular rate of pay for each work daythat a rest period is not provided. An employer shall not count the additional hour of pay as "hours worked"for purposes of calculating overtime pay. , Commercial Fishing Employees: The IWC added the last paragraph of Section 12 to insure that crew members on commercial passengerfishing 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. 17. EXEMPTIONS This section previously allowed the Division of Labor Standards Enforcement, after an investigation and finding that enforcement would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, to exempt the employer and employees from the requirements of certain sections of the IWC's wage orders. After considering the testimony and correspondenceit received with regard to meal periods, and in light of the mandatory provisions of Labor Code § 512, the IWC decided to remove Section 11, Meal Periods, from the list of sections that can be.exempt from enforcement. 20. PENALTIES °® This section sets forth the provisions of Labor Code § 558, which specifies penalties for initial and subsequent violations. In accordance with that section, the IWC voted to extend the penalties provisions to Wage Order 14. The IWC received inquiries as to whether“willfulness” is a required elementfor the issuance of civil penalty. There were also concerns over the assessment of penalties against an employer's payroll clerk, payroll supervisor, or a payroll processing service for failure to issue checks reflecting the required overtime compensation. AB 60 fails to address these issues, but the IWC noted that there is no intent to penalize individuals that are merfely carrying out policies formulated by an employer. ®See Section 10 of the Interim Wage Order. 2) 21 (B 00 ) 66 6- 19 17 s f L E G I S L A T I V E I N T E N T S E R V I C E an 9 4 am e a Exhibit F History of Basic Provisions in a Representative Order of the Industrial Welfare Commission, the Order Covering the Manufacturing Industry Year of Order 1919-20 1932 31947 1952 1957 1963 1968 1976 1980 REST PERTODS SANITARY REGULATIONS applicable to manufacturing: Rest periods are not specified as such. Provisions at that time were limited to time out for meals and availability of seats. "Women and minors shall be permitted to use the seats when not engaged in the active duties. of their occupation. Such shail apply in any room where manufacturing, altering, repairing, finishing, cleaning or laundering is carried on." (Section 23, Order #13) . Previous order amended to add "As far as and to whatever extent, in the judgment of the Commission, when women and minors are required by the nature of their work to stand, a relief period shall be given every two (2) hours of not less than ten (10) minutes." (Order #18) bh Sanitary provisions were incorporated in industry orders. a oO Rest Period clearly designated. It reads: “Every employer shall S authorize all employees to take rest periods which, insofar as S practicable, shall be in the middle of each work period. Rest © periods shall be computed on the basis of ten minutes forfour. hours working time, or majority fraction thereof. No wage deduction shail wy be made for such periods." (Section 11, Order #1R) Q or Previous order amended to add: "A rest period need not be authorized Ww for employees whose total daily work time is less than three and be one-half (33) hours." (Section 12, Order 1-52). Z e No change from 1952 (Order 1-57). é 2 No change from 1957 (Order 1-63). > wad “a No change from 1963 (Order 1-68).. 5 uw ont No change from 1968, except it: covers men as well as women and minors, and “net” 10 minutes.is specified. (Order 1-76) =we men Pane ee Nee ee % No change fron 1976. It reads: "Every ewployer shall authorize and a ‘permit a11 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 (35) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages." 801426138 RM - 1710 their occupation. Such shall apply in any room where manufacturing, altering, repairing, finishing, cleaning or laundering is carried on." (Section 23, Order #13) 1932 Previous order amended to add "As far as and to whatever extent, in the judgment of the Commission, when women and minors are required by the nature of their work to stand, a_ relief period shall be given “ every two (2) hours of not lesst anten (10)minutes.” (Order #18) ' Sanitary provisions were incorporated in industry orders. 1947 Rest. Period clearly designated. It reads: "Every employer shall authorize all employees to take rest periods which, insofar as practicable, shall be in the middle of each work period. Reat periods shall be computed on the basis of ten minutes for four hours Working time, or majority fraction thereof. No wage deduction shall be made for such periods." (Section 11, Order #8) 1952 _ Previous order amended to add: "A rest period need not be authorized for employees whose totel daily work time is less than three and one-half (33) hours." (Section 12, Order 1-52). 1957 No change from 1952 (Order 1-57). 1963 No change fron 1957 (Order 1-63). 1968 ‘ No change from 1963 (Order 1-68), 1976 , No change frou 1968, except it’ covers men as well as women and minors 5 and "net" 10 minutes is specified. (Order 1-76) 1980 No change fro, ‘1976. It reads: "Every employer shall authotize and permit ald employees to take rest periods, which insofar as practicable shall be in the middle of each work wperiod. 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 wajor fraction thereof. However, a rest period need not be authorized. for (3h)nour whose total daily work time is less than three and one-half i 3) hours. Authorized rest period time shall be counted.as hours en for which there shall be no deduction from wages." 801426139, - RM - 1711 {8 00 } 6 6 6 - 1 9 1 7 D o . a ! L E G I S L A T I V E I N T E N T S E R V I C E CERTIFICATE OF SERVICE PROOF OF SERVICE I, Carol J. Aranda, declare as follows: I am employedin the County of San Francisco, State of California; I am overthe age of eighteen years and am not a party to this action, my business address is 555 Mission Street, Suite 3000, San Francisco, California 94105, in said County and State. On August 31, 2015, I served the within: MOTION FOR JUDICIAL NOTICE to each of the persons named belowat the address(es) shown, in the manner described. SEE ATTACHED SERVICE LIST IV] BY MAIL:I placed a true copy in a sealed envelope addressed as indicated on the attachedservicelist for collection and mailing at my businesslocation, on the date mentioned above, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondencefor mailing with the United States Postal Service. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the U.S. Postal Service in a sealed envelope with postage fully prepaid. I am aware that on motion ofthe party served, service is presumedinvalid if the postal cancellation date or postage meter date on the envelope is more than one dayafter the date of deposit for mailing contained in the proofofservice. I certify under penalty ofperjury that the foregoing is true andcorrect, that the foregoing document(s), and all copies made from same, were printed on recycled paper, and thatthis certificate was executed on August 31, 2015 at San Francisco, California. Foe CarolAranda SERVICE LIST Keith A. Jacoby, Esq. Co-Counselfor Defendant Dominic J.Messiha, Esq. andAppellant ABM Carlos Jimenez, Esq. Security Services, Inc., LITTLER MENDELSON, PC formerly d.b.a. American 2049 Century Park East, Fifth Floor Commercial Security Los Angeles, CA 90067-3107 Services, Inc. Telephone: (310) 553-3107 Facsimile: (310) 553-5583 Drew E. Pomerance, Esq. Counselfor Plaintiffand Michael B. Adreani, Esq. Respondent Jennifer Marina N.Vitek, Esq. Augustus and the Class ROXBOROUGH, POMERANCE, NYE & ADREANI LLP 5820 Canoga Avenue, Suite 250 Woodland Hills, CA 91367 Telephone: (818) 992-9999 Facsimile: (818) 992-9991 Andre E.Jardini, Esq. Hillary M. Goldberg, Esq. . KNAPP, PETERSEN & CLARKE 550 N.Brand Blvd., 20" Floor Glendale, CA 91203-1904 Telephone: (818) 547-5000 Facsimile: (818) 547-5329 Michael S. Duberchin, Esq. -LAW OFFICES OF MICHAELS.DUBERCHIN ,P.O. Box 8806Calabasas, CA 91372Telephone: (818) 246-8487Facsimile: (818) 246-6277 Monica Balderrama, Esq. G. Arthur Meneses, Esq. INITIATIVE LEGAL GROUP APC 1801 Century Park East, Suite 2500 Los Angeles, CA 90067 Telephone: (310) 556-5637 Facsimile: (310) 861-9051 Jeffrey Isaac Ehrlich, Esq. THE EHRLICH LAW FIRM 16130 Ventura Boulevard, Suite 610 Encino, CA 91436 Telephone: (818) 905-3970 Facsimile: (818) 905-3975 Scott Edward Cole, Esq. Matthew R.Bainer, Esq. SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Suite 950 Oakland, CA 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 Alvin L. Pittman, Esq. LAW OFFICES OF ALVIN L. PITTMAN 5933 W. Century Blvd., Suite 230 Los Angeles, CA 90045 Telephone: (310) 337-3077 Facsimile: (310) 337-3080 Joshua M.Merliss, Esq.GORDON, EDELSTEIN, KREPACK,GRANT, FELTON & GOLDSTEIN, LLP3580 Wilshire Boulevard, Suite 1800Los Angeles, CA 90010Telephone: (213) 739-7000Facsimile: (213) 386-1671 Louis Benowitz LAW OFFICES OF LOUIS BENOWITZ 9454 Wilshire Boulevard, Penthouse Beverly Hills, CA 90212 Telephone: (310) 844-5141 Facsimile: (310) 492-4056 Counselfor Amicus Curiae California Employment Lawyers Association William Turley, Esq. David T. Mara, Esq. THE TURLEY LAW FIRM, APLC 625 Broadway, Suite 635 San Diego, CA 92101 Counselfor Amicus Curiae Consumer Attorneys of California David R. Ongaro THOMPSON & KNIGHT LLP 50 California Street, Suite 3325 San Francisco, CA 94111 Telephone: (415) 433-3900 Facsimile: (415) 433-3950 Counselfor Amicus Curiae Trueblue, Inc. John A. Taylor, Jr. Robert H. Wright Felix Shafir Horvitz & Levy LLP . 15760 Ventura Boulevard, 18th Floor Encino, CA 91436-3000 Telephone: (818) 995-0800 Facsimile: (818) 995-3157 Counselfor Amici Curiae Chamber ofCommerce of the United States of America, National Association ofSecurity Companies, and California Association ofLicensed Security Agencies D. Gregory Valenza SHAW VALENZA LLP 300 Montgomery Street, Suite 788 San Francisco, CA 94104 Telephone: (415) 983-5960 Facsimile: (415) 983-5963 Counselfor Amicus Curiae California Chamber of Commerce Paul GrossmanPAUL HASTINGS LLP515 South Flower Street, 25th FloorLos Angeles, CA 90071-2228Telephone: (213) 683-6000Fax: (213) 627-0705 Counselfor Amici CuriaeCalifornia EmploymentLaw Council and The ~Employers Group Hon. John Shepard Wiley, Jr. Los Angeles Superior Court Central Civil West Courthouse 600 S. Commonwealth Ave. Dept. 311 Los Angeles, CA 90005 Case No. BC336416 (consolidated with CGV5444421, BC345918; related to BC388380) Court of Appeal Second Appellate District, Division One _ Office of the Clerk 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 Electronic copy submitted to the Office of the Attorney Generalat https://oag.ca.gov/services- info/17209-brief/add