Bill Text: CA SB389 | 2011-2012 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Employment: meal periods.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB389 Detail]

Download: California-2011-SB389-Introduced.html

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BILL NUMBER: SB 389	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Dutton

                        FEBRUARY 15, 2011

   An act to amend Section 512 of the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 389, as introduced, 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 specified IWC wage orders, 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. 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.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: 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   who is subject
to the meal  period  pr   ovisions  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 meal period of not less than 30
minutes,  before the employee completes six hours of work, 
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 
 shall  not employ an employee for a work period of more
than 10 hours  per   in a work  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,   . Except as authorized by Industrial
Welfare Commission Wage Order Numbers 4 and 5   , if the
total hours worked is no more than 12 hours in a work day,  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) An on-duty meal period qualifies 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.  
   (c) 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 (b), if one or more 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.  
   (d) 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 (b) are met.  
   (e) 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.  
   (f) 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) 
    (g)  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) 
    (h)  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 seven hours per day, and a
rest period of not less than 10 minutes every two hours. 
    (d) 
    (i)  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 226.7, and Industrial
Welfare Commission Wage Order Numbers 11 and 12. 
   (e) 
    (j)  Subdivisions (a) and (b) do not apply to an
employee specified in subdivision  (f)   (k)
 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) 
    (k)  Subdivision  (e)   (j) 
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) 
    (l)  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. 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.