Bill Text: CA SB378 | 2011-2012 | Regular Session | Introduced
Bill Title: Employment: alternative workweek schedules.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB378 Detail]
Download: California-2011-SB378-Introduced.html
BILL NUMBER: SB 378 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Dutton
FEBRUARY 15, 2011
An act to amend Section 511 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 378, as introduced, Dutton. Employment: alternative workweek
schedules.
Existing law authorizes an employer to propose an alternative
workweek schedule, that authorizes work for the affected employees
for no longer than 10 hours a day within a 40-hour workweek without
the requirement to pay overtime wages, that may be either a single,
standard work schedule or part of a menu of work schedule options
offered to the employees. Under existing law, approval by secret
ballot election of at least 2/3 of the affected employees in a
readily identifiable work unit is required for adoption of an
alternative workweek schedule. Existing law requires the employer to
pay overtime compensation to employees who work more than their
regularly scheduled hours under the alternative workweek and to make
reasonable accommodations to find a work schedule that does not
exceed 8 hours per day for employees who were eligible to vote in the
election but are unable to work the alternative workweek hours.
This bill would provide that an alternative workweek schedule
adopted pursuant to those provisions may include a regularly
scheduled alternative workweek that authorizes work by the affected
employees for more than 10 hours a day, as long as the employees are
paid at the appropriate overtime rate set forth in those provisions.
The bill would provide a definition of "regularly scheduled." The
bill further would exempt from those provisions employers with 5 or
fewer employees, but would permit such employers and their employees
to voluntarily enter into a revocable written agreement setting forth
an alternative workweek schedule that allows an employee to work up
to 10 hours a day, 40 hours a week, without the payment of overtime
wages, with the requirement to pay a prescribed rate of overtime pay
for excess hours and days.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 511 of the Labor Code is amended to read:
511. (a) Upon the proposal of an employer, the employees of an
employer may adopt a regularly scheduled alternative workweek that
authorizes work by the affected employees for no longer than 10 hours
per day within a 40-hour workweek without the payment to the
affected employees of an overtime rate of compensation pursuant to
this section. An alternative workweek schedule adopted pursuant
to this section may include a regularly scheduled alternative
workweek that authorizes work by the affected employees for more than
10 hours a day, as long as the employees are paid at the appropriate
rate as set forth in subdivision (b). A proposal to adopt an
alternative workweek schedule shall be deemed adopted only if it
receives approval in a secret ballot election by at least two-thirds
of affected employees in a readily identifiable work unit. The
regularly scheduled alternative workweek proposed by an employer for
adoption by employees may be a single work schedule that would become
the standard schedule for workers in the work unit, or a menu of
work schedule options, from which each employee in the unit would be
entitled to choose. Notwithstanding subdivision (c) of Section 500,
the menu of work schedule options may include a regular schedule of
eight-hour days that are compensated in accordance with subdivision
(a) of Section 510. Employees who adopt a menu of work schedule
options may, with employer consent, move from one schedule option to
another on a weekly basis.
(b) An affected employee working longer than eight hours but not
more than 12 hours in a day pursuant to an alternative workweek
schedule adopted pursuant to this section shall be paid an overtime
rate of compensation of no less than one and one-half times the
regular rate of pay of the employee for any work in excess of the
regularly scheduled hours established by the alternative workweek
agreement and for any work in excess of 40 hours per week. An
overtime rate of compensation of no less than double the regular rate
of pay of the employee shall be paid for any work in excess of 12
hours per day and for any work in excess of eight hours on those days
worked beyond the regularly scheduled workdays established by the
alternative workweek agreement. Nothing in this section requires an
employer to combine more than one rate of overtime compensation in
order to calculate the amount to be paid to an employee for any hour
of overtime work.
(c) An employer shall not reduce an employee's regular rate of
hourly pay as a result of the adoption, repeal, or nullification of
an alternative workweek schedule.
(d) An employer shall make a reasonable effort to find a work
schedule not to exceed eight hours in a workday, in order to
accommodate any affected employee who was eligible to vote in an
election authorized by this section and who is unable to work the
alternative schedule hours established as the result of that
election. An employer shall be permitted to provide a work schedule
not to exceed eight hours in a workday to accommodate any employee
who was hired after the date of the election and who is unable to
work the alternative schedule established as the result of that
election. An employer shall explore any available reasonable
alternative means of accommodating the religious belief or observance
of an affected employee that conflicts with an adopted alternative
workweek schedule, in the manner provided by subdivision (j) of
Section 12940 of the Government Code.
(e) The results of any election conducted pursuant to this section
shall be reported by an employer to the Division of Labor Statistics
and Research within 30 days after the results are final.
(f) Any type of alternative workweek schedule that is authorized
by this code and that was in effect on January 1, 2000, may be
repealed by the affected employees pursuant to this section. Any
alternative workweek schedule that was adopted pursuant to Wage Order
Numbers 1, 4, 5, 7, or 9 of the Industrial Welfare Commission is
null and void, except for an alternative workweek providing for a
regular schedule of no more than 10 hours' work in a workday that was
adopted by a two-thirds vote of affected employees in a secret
ballot election pursuant to wage orders of the Industrial Welfare
Commission in effect prior to 1998. This subdivision does not apply
to exemptions authorized pursuant to Section 515.
(g) Notwithstanding subdivision (f), an alternative workweek
schedule in the health care industry adopted by a two-thirds vote of
affected employees in a secret ballot election pursuant to Wage Order
Numbers 4 and 5 in effect prior to 1998 that provided for workdays
exceeding 10 hours but not exceeding 12 hours in a day without the
payment of overtime compensation shall be valid until July 1, 2000.
An employer in the health care industry shall make a reasonable
effort to accommodate any employee in the health care industry who is
unable to work the alternative schedule established as the result of
a valid election held in accordance with provisions of Wage Order
Number 4 or 5 that were in effect prior to 1998.
(h) Notwithstanding subdivision (f), if an employee is voluntarily
working an alternative workweek schedule providing for a regular
work schedule of not more than 10 hours' work in a workday as of July
1, 1999, an employee may continue to work that alternative workweek
schedule without the entitlement of the payment of daily overtime
compensation for the hours provided in that schedule if the employer
approves a written request of the employee to work that schedule.
(i) For purposes of this section, "work unit" includes a division,
a department, a job classification, a shift, a separate physical
location, or a recognized subdivision thereof. A work unit may
consist of an individual employee as long as the criteria for an
identifiable work unit in this section is met.
(j) For purposes of this section, the term "regularly scheduled"
means the employee is scheduled to work the same number of workdays
and the same number of hours per workday as the work schedule or
schedules adopted through the election. An alternative workweek
schedule is valid even if the actual days scheduled and the start and
end times of each shift change from one week to the next.
(k) Nothing in this section applies to employers with five
employees or fewer. Such employers may voluntarily enter into a
written agreement with their employees that sets forth an alternative
workweek schedule that allows an employee to work up to 10 hours a
day, 40 hours a week, without the payment of an overtime rate of
compensation. If the agreement provides for work of over 10 hours a
day or 40 hours in a week, the employer shall pay overtime wages at
one and one-half times the employee's regular rate of pay for all
hours worked over 40 hours in a workweek or over 10 hours in a
workday, whichever is the greater number of hours. All work performed
in excess of 12 hours per workday and in excess of eight hours on a
fifth, sixth, or seventh day in the workweek shall be paid at double
the employee's regular rate of pay. The agreement must provide an
opportunity for either party to revoke it.
