Bill Text: CA SB990 | 2009-2010 | Regular Session | Amended

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Bill Title: Employment: meal periods.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2010-04-05 - Re-referred to Com. on L. & I.R. [SB990 Detail]

Download: California-2009-SB990-Amended.html

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BILL NUMBER: SB 990	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MARCH 25, 2010

INTRODUCED BY   Senator  Hollingsworth   Dutton


                        FEBRUARY 8, 2010

   An act to amend Section 512 of the Labor Code, relating to
employment  , and declaring the urgency thereof, to take effect
immediately  .



	LEGISLATIVE COUNSEL'S DIGEST


   SB 990, as amended,  Hollingsworth   Dutton
 . Employment: meal periods. 
   Existing law requires an employer to provide an employee who works
more than 5 hours in a workday with a meal period of not less than
30 minutes, unless the employee works no more than 6 hours in a
workday and the meal period is waived by mutual consent. An employer
also is required to provide an employee who works more than 10 hours
in a workday with a 2nd meal period of not less than 30 minutes,
unless the employee works no more than 12 hours, the first meal
period was not waived, and the 2nd meal period is waived by mutual
consent. The Industrial Welfare Commission (IWC) of the Department of
Industrial Relations adopts and amends wage orders that, among other
things, specify how meal periods are required to be provided to
covered employees within various industries, including the procedures
for providing employees with on-duty meal periods. Existing law
provides that a violation of these provisions is a misdemeanor. 

   This bill would revise the statutory requirements for the
provision of meal periods to specify that the requirements apply only
to employees subject to the meal period provisions of an order of
the IWC. The statutory requirements for providing the meal periods
would be revised to specify that a meal period based on working more
than 5 hours in a workday is required to be provided before the
employee completes 6 hours of work, unless the existing waiver
provision is invoked. The waiver provision for the 2nd meal period
would be changed to provide an exception for different provisions
within IWC wage orders in effect as of January 1, 2009, and to permit
the employer and employee to agree to waive either the first or the
2nd meal period if the employee otherwise is entitled to 2 meal
periods. The bill also would specify conditions under which on-duty
meal periods are permitted rather than meal periods in which the
employee is relieved of all duty. The meal period provisions of a
valid collective bargaining agreement would be required to be
implemented for covered employees rather than the statutory
requirements.  
   The bill would require that orders of the IWC be interpreted in a
manner consistent with this section, and would require the Department
of Industrial Relations to amend and republish specified IWC wage
orders to be consistent with the revised meal period requirements.
 
   Because this bill would create a new crime, it would impose a
state-mandated local program.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason.  
   This bill would declare that it is to take effect immediately as
an urgency statute.  
   Existing law requires an employer to provide an employee with one
meal period during a work period of more than 5 hours and 2 meal
periods during a work period of 10 hours, as prescribed. 

   This bill would make nonsubstantive changes to these provisions.

   Vote:  majority   2/3  . Appropriation:
no. Fiscal committee:  no   yes  .
State-mandated local program:  no   yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 512 of the   Labor
Code   is amended to read: 
   512.  (a) An employer  may   shall  not
employ an employee  for a work period of   who
is subject to the meal period provisions of an order of the
Industrial Welfare Commission and who works  more than five
hours  per day   in a workday  without
providing the employee with  a  one off-duty
 meal period  of not less than 30 minutes, except that
if the total work period per day of the employee is no more than six
hours, the meal period may be waived by mutual consent of both the
employer and employee   per workday before the employee
completes six hours of work. If an employee works no more than six
hours per workday, the employer and employee may agree to waive the
employer's duty of   providing the employee with a meal
period  . An employer  may   shall 
not employ an employee  for a work period of  
who is subject to the meal period provisions of an order of the
Industrial Welfare Commission and who works  more than 10 hours
 per day   in a workday without providing
the employee with a second  off-duty  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   . Except as authorized by
an Industrial Welfare Commission wage order in   effect as
of January 1, 2009, if an employee works no more than 12 hours in a
workday, the employer and employee may agree to waive the employer's
duty of providing the employee with either the first or the second
meal period, but not both  . 
   (b) For purposes of this section, the following terms have the
following meanings:  
   (1) "Off-duty meal period" means a meal period of not less than 30
minutes during which the employee is relieved of all duty. 

   (2) "Providing the employee with" means making available to the
employee.  
   (c) An on-duty meal period shall qualify as a lawful meal period
under subdivision (a) for an employee covered by an Industrial
Welfare Commission wage order that authorizes an on-duty meal period
if all of the following conditions are satisfied:  
   (1) The employer and the employee have entered into a written
agreement for an on-duty meal period which includes a statement that
the employee may revoke the agreement in writing with no less than
three business days' notice to the employer if the applicable
Industrial Welfare Commission wage order authorizes the employee to
revoke the agreement.  
   (2) The employee has an opportunity to eat while on duty. 

   (3) The on-duty meal period is counted as time worked.  
   (4) The nature of the work prevents the employee from being
relieved of all duty.  
   (d) The nature of an employee's work is deemed to prevent that
employee from being relieved of all duty, pursuant to paragraph (4)
of subdivision (c), if at least one of the following conditions
exists:  
   (1) The employee works alone or is the only person in the employee'
s job classification who is on duty at the location or in the
department, or there are no other qualified employees who can
reasonably relieve the employee of all duty.  
   (2) State or federal law imposes a requirement that the employee
remain on duty at all times.  
   (3) The nature of the work creates an imminent danger or makes it
unsafe for the employee, the public, or the environment if the
employee is relieved of all duty.  
   (4) The work product or processing of the product, including the
transport or delivery of the product, will be destroyed or damaged if
the employee is relieved of all duty.  
   (5) The employee has direct responsibility for children who are
under 18 years of age or who are not emancipated from the foster care
system and who, in either case, are receiving 24-hour residential
care, or is employed at a 24-hour residential care facility for the
elderly, blind, or developmentally disabled individuals.  
   (e) If an employee is entitled to two meal periods pursuant to
subdivision (a), both meal periods may be on-duty meal periods if the
requirements of subdivision (c) are met.  
   (f) This section does not apply to an employee covered by a valid
collective bargaining agreement that includes provisions pertaining
to meal periods. The terms, conditions, and remedies of the
collective bargaining agreement pertaining to meal periods apply
instead.  
   (g) All orders of the Industrial Welfare Commission shall be
interpreted in a manner consistent with this section. The Department
of Industrial Relations shall amend and republish Industrial Welfare
Commission Wage Order Numbers 1 to 13, inclusive, and 15 to 17,
inclusive, to be consistent with this section, but shall make no
other changes to the wage orders.  
   (b) 
    (h)  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) 
    (i) 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  seven-hour   7-hour  days, payment
of  1 and   1/2   one and
one-half times  the regular rate of pay for time worked in
excess of seven hours per day, and a rest period of not less than 10
minutes every two hours. 
   (d) 
    (j)  If an employee in the motion picture industry or
the broadcasting industry, as those industries are defined in
Industrial Welfare Commission Wage  Orders  
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 226.7, and Industrial Welfare Commission
Wage  Orders   Order Numbers  11 and 12.

  SEC. 2.    No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution. 
   SEC. 3.    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:
 
   There is significant confusion over how the existing meal and rest
law should be implemented. This confusion leads to unnecessary
lawsuits and forces employees to take meal or rest breaks while in
the middle of tasks. Workers risk being reprimanded, and even fired,
if they do not take a break. Given that this is a significant issue
for employers and employees alike, clarification is needed
immediately.  
  SECTION 1.    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 five 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 six 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, but
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 the regular rate of pay for
time worked in excess of seven hours per day, and a rest period of
not less than 10 minutes every two hours.
   (d) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Orders 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, 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 226.7, and Industrial Welfare Commission
Wage Orders 11 and 12.