BILL NUMBER: SB 389 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 4, 2011
AMENDED IN SENATE APRIL 14, 2011
INTRODUCED BY Senator Dutton
FEBRUARY 15, 2011
An act to amend Sections 512, 553, and 2699.5 of, to add Section
512.3 to, and to repeal Section 226.7 of, the Labor Code, relating to
employment, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 389, as amended, Dutton. Employment: meal periods.
Existing law requires employers to provide meal periods and rest
periods, as specified. Existing law requires an employer who fails to
provide a meal period or a rest period to pay the employee one
additional hour of pay at the employee's regular rate of compensation
for each workday that the meal or rest period is not provided. Under
existing law, an employer who fails to provide a required meal
period may be guilty of a misdemeanor.
This bill would provide that the maximum compensation an
employee may receive for the employer's failure to provide a meal or
rest period in a workday is one additional hour of pay.
This bill would also provide that the payment of
that additional one hour of pay per workday in which the employer
failed to provide a meal period or a rest period would constitute
compliance with any requirement to provide an employee with a meal
period or rest period and is the exclusive remedy for that failure to
provide a meal period or rest period and would no longer constitute
a misdemeanor.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: no. State-mandated
local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 226.7 of the Labor Code is repealed.
SEC. 2. Section 512 of the Labor Code is amended to read:
512. (a) An employer may not employ an employee for a work period
of more than 5 hours per day without providing the employee with a
meal period of not less than 30 minutes, except that if the total
work period per day of the employee is no more than 6 hours, the meal
period may be waived by mutual consent of both the employer and
employee. An employer may not employ an employee for a work period of
more than 10 hours per day without providing the employee with a
second meal period of not less than 30 minutes, except that if the
total hours worked is no more than 12 hours, the second meal period
may be waived by mutual consent of the employer and the employee only
if the first meal period was not waived.
(b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a meal
period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.
(c) Subdivision (a) does not apply to an employee in the wholesale
baking industry who is subject to an Industrial Welfare Commission
wage order and who is covered by a valid collective bargaining
agreement that provides for a 35-hour workweek consisting of five
7-hour days, payment of one and one-half times the regular rate of
pay for time worked in excess of 7 hours per day, and a rest period
of not less than 10 minutes every 2 hours.
(d) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Order Numbers 11 and 12, is covered by a
valid collective bargaining agreement that provides for meal periods
and includes a monetary remedy if the employee does not receive a
meal period required by the agreement, then the terms, conditions,
and remedies of the agreement pertaining to meal periods apply in
lieu of the applicable provisions pertaining to meal periods of
subdivision (a) of this section, Section 512.3, and Industrial
Welfare Commission Wage Order Numbers 11 and 12.
(e) Subdivisions (a) and (b) do not apply to an employee specified
in subdivision (f) if both of the following conditions are
satisfied:
(1) The employee is covered by a valid collective bargaining
agreement.
(2) The valid collective bargaining agreement expressly provides
for the wages, hours of work, and working conditions of employees,
and expressly provides for meal periods for those employees, final
and binding arbitration of disputes concerning application of its
meal period provisions, premium wage rates for all overtime hours
worked, and a regular hourly rate of pay of not less than 30 percent
more than the state minimum wage rate.
(f) Subdivision (e) applies to each of the following employees:
(1) An employee employed in a construction occupation.
(2) An employee employed as a commercial driver.
(3) An employee employed in the security services industry as a
security officer who is registered pursuant to Chapter 11.5
(commencing with Section 7580) of Division 3 of the Business and
Professions Code, and who is employed by a private patrol operator
registered pursuant to that chapter.
(4) An employee employed by an electrical corporation, a gas
corporation, or a local publicly owned electric utility.
(g) The following definitions apply for the purposes of this
section:
(1) "Commercial driver" means an employee who operates a vehicle
described in Section 260 or 462 of, or subdivision (b) of Section
15210 of, the Vehicle Code.
(2) "Construction occupation" means all job classifications
associated with construction by Article 2 (commencing with Section
7025) of Chapter 9 of Division 3 of the Business and Professions
Code, including work involving alteration, demolition, building,
excavation, renovation, remodeling, maintenance, improvement, and
repair, and any other similar or related occupation or trade.
(3) "Electrical corporation" has the same meaning as provided in
Section 218 of the Public Utilities Code.
(4) "Gas corporation" has the same meaning as provided in Section
222 of the Public Utilities Code.
(5) "Local publicly owned electric utility" has the same meaning
as provided in Section 224.3 of the Public Utilities Code.
SEC. 3. Section 512.3 is added to the Labor Code, to read:
512.3. (a) An employer shall not require an employee to work
during any meal or rest period mandated by Section 512 or an
applicable order of the Industrial Welfare Commission.
(b) If an employer fails to provide an employee a meal period or
rest period in accordance with an applicable order of the Industrial
Welfare Commission, the employer shall pay the employee one
additional hour of pay at the employee's regular rate of compensation
for each workday that the meal or rest period is not provided.
The maximum compensation an employee may receive under this
section for each workday is one additional hour of pay.
Payment of this one additional hour of pay shall constitute
compliance with any requirement to provide an employee with a meal
period or a rest period and shall be the exclusive remedy for failure
to provide a meal period or a rest period.
SEC. 4. Section 553 of the Labor Code is amended to read:
553. Except as provided in Section 512.3, any person who violates
this chapter is guilty of a misdemeanor.
SEC. 5. Section 2699.5 of the Labor Code is amended to read:
2699.5. The provisions of subdivision (a) of Section 2699.3 apply
to any alleged violation of the following provisions: subdivision
(k) of Section 96, Sections 98.6, 201, 201.3, 201.5, 201.7, 202, 203,
203.1, 203.5, 204, 204a, 204b, 204.1, 204.2, 205, 205.5, 206, 206.5,
208, 209, and 212, subdivision (d) of Section 213, Sections 221,
222, 222.5, 223, and 224, subdivision (a) of Section 226, Sections
227, 227.3, 230, 230.1, 230.2, 230.3, 230.4, 230.7, 230.8, and 231,
subdivision (c) of Section 232, subdivision (c) of Section 232.5,
Sections 233, 234, 351, 353, and 403, subdivision (b) of Section 404,
Sections 432.2, 432.5, 432.7, 435, 450, 510, 511, 512, 512.3, 513,
551, 552, 601, 602, 603, 604, 750, 751.8, 800, 850, 851, 851.5, 852,
921, 922, 923, 970, 973, 976, 1021, 1021.5, 1025, 1026, 1101, 1102,
1102.5, and 1153, subdivisions (c) and (d) of Section 1174, Sections
1194, 1197, 1197.1, 1197.5, and 1198, subdivision (b) of Section
1198.3, Sections 1199, 1199.5, 1290, 1292, 1293, 1293.1, 1294,
1294.1, 1294.5, 1296, 1297, 1298, 1301, 1308, 1308.1, 1308.7, 1309,
1309.5, 1391, 1391.1, 1391.2, 1392, 1683, and 1695, subdivision (a)
of Section 1695.5, Sections 1695.55, 1695.6, 1695.7, 1695.8, 1695.9,
1696, 1696.5, 1696.6, 1697.1, 1700.25, 1700.26, 1700.31, 1700.32,
1700.40, and 1700.47, paragraphs (1), (2), and (3) of subdivision (a)
of, and subdivision (e) of, Section 1701.4, subdivision (a) of
Section 1701.5, Sections 1701.8, 1701.10, 1701.12, 1735, 1771, 1774,
1776, 1777.5, 1811, 1815, 2651, and 2673, subdivision (a) of Section
2673.1, Sections 2695.2, 2800, 2801, 2802, 2806, and 2810,
subdivision (b) of Section 2929, and Sections 3095, 6310, 6311, and
6399.7.
SEC. 6. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to address California's historically high unemployment
rate, reduce the number of employment-related lawsuits, and allow
businesses to return more people to work, it is necessary that this
act take effect immediately.