Bill Text: CA SB380 | 2009-2010 | Regular Session | Introduced
Bill Title: Meal periods.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB380 Detail]
Download: California-2009-SB380-Introduced.html
BILL NUMBER: SB 380 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Dutton
FEBRUARY 26, 2009
An act to amend Sections 226.7 and 512 of the Labor Code, relating
to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 380, as introduced, Dutton. Meal periods.
(1) 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 second 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 (IAC) 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.
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 bill would require that orders of the IWC be interpreted in a
manner consistent with the specified provisions, 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.
The bill also would declare that all those provisions are
declaratory and not amendatory of existing law.
(2) Existing law requires an employer who fails to provide an
employee with a required meal or rest period to pay the employee one
hour's pay for each workday that the meal or rest period is not
provided.
This bill would specify that the penalty of one hour's pay is not
restitutionary in nature and does not constitute additional wages to
the employee. This bill would define "providing" a meal or rest
period to mean making one available to the employee without
interfering with its use.
Vote: majority. Appropriation: no. Fiscal committee: yes.
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 amended to read:
226.7. (a) No employer shall require any employee to work during
any meal or rest period mandated by 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 a penalty to
the employee in an amount equal to one additional
hour of pay at the employee's regular rate of compensation
, notwithstanding the duration of the meal or rest period,
for each work day workday that
the meal or rest period is not provided. This statutory penalty
is not restitutionary in nature and does not constitute additional
wages to the employee.
(c) For purposes of this section, an employer provides a meal or
rest period by making one available to the employee without
interfering with its use.
SEC. 2. Section 512 of the Labor Code is amended to read:
512. (a) 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 giving the employee an
opportunity to take.
(a)
(b) An employer may shall
not employ an employee for a work who is
subject to the meal period of
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
per workday before the employee is
completes six hours of work. If an employee works
no more than six hours , the meal period may be waived
by mutual consent of both 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 who is subject to the meal period
of provisions of an order of the 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 . Except as
authorized by an Industrial Welfare Commission wage order in effect
as of January 1, 2008, if an employee works no more than 12
hours in a workday , 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
may agree to waive the employer's duty of providing the employee with
either the first or the second meal period, but not both .
(c) Notwithstanding subdivision (b), an on-duty meal period shall
be permitted for an employee covered by an order of the Industrial
Welfare Commission that authorizes an on-duty meal period if the
employer and the employee have entered into a written agreement for
an on-duty meal period, the employee has an opportunity to eat while
on duty, the on-duty meal period is counted as time worked, and the
nature of the work prevents the employee from being relieved of all
duty based on at least one of the following conditions:
(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 or the relevant circumstances make it
unreasonable or unsafe for the employee to be relieved of all duty.
(4) The work product or process will be destroyed or damaged by
relieving the employee of all duty.
(5) The employee works with perishable products, including the
transportation and delivery of those products, and therefore cannot
reasonably be relieved of all duty.
(6) 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 an employee of a 24-hour residential care facility for
the elderly, blind, or developmentally disabled individuals.
(d) If an employee is entitled to two meal periods pursuant to
subdivision (b), both meal periods may be on-duty meal periods if the
requirements of subdivision (c) are met.
(e) All orders of the Industrial Welfare Commission shall be
interpreted in a manner consistent with this section, and 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)
(f) Notwithstanding subdivision (a)
(b) , 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)
(g) Subdivision (a) (b)
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)
(h) 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 (b) , Section
226.7, and Industrial Welfare Commission Wage Orders
Order Numbers 11 and 12.
SEC. 3. The amendment of Section 512 of the Labor Code made by
this act does not constitute a change in, but is declaratory of,
existing law.
