California
The state of California has many unique and rigorous employment laws. As a result Human Resource
professionals working in the state of California must be knowledgeable regarding the various employment
related laws impacting their workplace.
The chart below provides statue information for a variety of employment laws in California including:
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Bone Marrow/Organ Donor Leave
Child Labor: Hours of Work/Meal and Rest Periods
Child Labor: Prohibited/Permissible
Child Labor: Work Permit/Certificate Requirements
Criminal Background Checks
Days/Hours of Rest
Disaster Service/Volunteer Firefighting Leave
Domestic & Workplace Violence/Crime Victims/Concealed Weapons
Drug Free Workplace/Drug Testing
Family/Parental/Adoption Leave
Holiday Leave
Hours of Work
Immigration/Employment of Aliens
Jury/Witness Duty Leave
Mandatory Harassment Prevention Training
Meal/Rest Periods
Military FMLA Leave
Minimum/Prevailing Wages
On-Call/Call Back/Reporting Pay
Overtime Payment
Payment Upon Termination
Plant Closing/Mass Lay-offs
Recordkeeping/Access to Files
School Visitation Leave
Service Letters
Severance Pay
Sexual Orientation Discrimination
Tax Incentives/Credits
Temporary Insurance Benefits
Unemployment Compensation Benefits
Vacation/PTO
Voting Leave
Wage Deductions
Wage Payment/Direct Deposit
Wage Statements
Workplace Monitoring
Workplace Posting
For the complete text of California labor laws, see California Labor Laws. Additionally, the California
Employment Development Department is a valuable resource for information that can assist employers
in navigating California’s employment related laws.
Bone Marrow/Organ Donor
Leave
1509. For purposes of this part, the following terms have the following meanings:
(a) "Employee" and "employee benefits" have the same meanings set forth in
Section 1500. (b) "Employer" means any person, partnership, corporation,
association, or other business entity that employs 15 or more employees.
1510. (a) Subject to subdivision (b), an employer shall grant to an employee the
following paid leaves of absence: (1) A leave of absence not exceeding 30 business
days to an employee who is an organ donor in any one-year period, for the purpose
of donating his or her organ to another person. The one-year period is measured
from the date the employee’s leave begins and shall consist of 12 consecutive
months. (2) A leave of absence not exceeding five business days to an employee
who is a bone marrow donor in any one-year period, for the purpose of 95 donating
his or her bone marrow to another person. The one-year period is measured from
the date the employee’s leave begins and shall consist of 12 consecutive months.
(b) In order to receive a leave of absence pursuant to subdivision (a), an employee
shall provide written verification to his or her employer that he or she is an organ or
bone marrow donor and that there is a medical necessity for the donation of the
organ or bone marrow. (c) Any period of time during which an employee is required
to be absent from his or her position by reason of being an organ or bone marrow
donor is not a break in his or her continuous service for the purpose of his or her
right to salary adjustments, sick leave, vacation, paid time off, annual leave, or
seniority. During any period that an employee takes leave pursuant to subdivision
(a), the employer shall maintain and pay for coverage under a group health plan, as
defined in Section 5000(b) of the Internal Revenue Code of 1986, for the full
duration of the leave, in the same manner the coverage would have been
maintained if the employee had been actively at work during the leave period. (d)
This part does not affect the obligation of an employer to comply with a collective
bargaining agreement or employee benefit plan that provides greater leave rights to
employees than the rights provided under this part. (e) The rights provided under
this part shall not be diminished by a collective bargaining agreement or employee
benefit plan entered into on or after January 1, 2011. (f) An employer may require,
as a condition of an employee’s initial receipt of bone marrow or organ donation
leave, that an employee take up to five days of earned but unused sick leave,
vacation, or paid time off for bone marrow donation and up to two weeks of earned
but unused sick leave, vacation, or paid time off for organ donation, unless doing so
would violate the provisions of any applicable collective bargaining agreement. (g)
Notwithstanding existing law, bone marrow and organ donation leave shall not be
taken concurrently with any leave taken pursuant to the federal Family and Medical
Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.) or the Moore-Brown-Roberti
Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code). (h)
Leave provided for pursuant to this section may be taken in one or more periods,
but in no event shall exceed the amount of leave prescribed in subdivision (a). SEC.
2. The amendment of Section 1510 of the Labor Code made by this act does not
constitute a change in, but is declaratory of, existing law.
1511. An employer shall, upon expiration of a leave authorized by this part, restore
an employee to the position held by him or her when the leave began or to a
position with equivalent seniority status, employee benefits, pay, and other terms
and conditions of employment. An employer may decline to restore an employee as
required in this section because of conditions unrelated to the exercise of rights
under this part by the employee.
1512. (a) An employer shall not interfere with, restrain, or deny the exercise or the
attempt to exercise a right established by this part. (b) An employer shall not
discharge, fine, suspend, expel, discipline, or in any other manner discriminate
against an employee who does either of the following: (1) Exercises a right provided
under this part. (2) Opposes a practice made unlawful by this part.
1513. (a) An employee may bring a civil action in the superior court of the
appropriate county to enforce this part. (b) The court may enjoin any act or practice
that violates this part and may order any equitable relief necessary and appropriate
to redress the violation or to enforce this part.
Child Labor: Hours of
Work/Meal and Rest Periods
11760 The amount of time minors are permitted at the place of employment within a
twenty-four (24) hour period is limited according to age, as follows: (a) Babies who
have reached the age of fifteen (15) days but have not reached the age of six (6)
months may be permitted to remain at the place of employment for a maximum of
two (2) hours. (1) The day's work shall not exceed twenty (20) minutes and under
no conditions shall the baby be exposed to light of greater than one hundred (100)
foot candlelight intensity for more than thirty (30) seconds at a time. (2) When
babies between the age of fifteen (15) days and six (6) weeks of age are employed,
a nurse and a studio teacher must be provided for each three (3) or fewer babies.
When infants from age six (6) weeks to six (6) months are employed, one (1) nurse
and one (1) studio teacher must be provided for each ten (10) or fewer infants. (b)
Minors who have reached the age of six (6) months but who have not attained the
age of two (2) years may be permitted at the place of employment for a maximum of
four (4) hours. Such four (4)-hour period shall consist of not more than two (2) hours
of work; the balance of the four (4)-hour period shall be rest and recreation.
(c)Minors who have reached the age of two (2) years but who have not attained the
age of six (6) years may be permitted at the place of employment for a maximum of
six (6) hours. Such six (6)-hour period shall consist of not more than three (3) hours
of work; the balance of the six (6)-hour period shall be rest and recreation and/or
education. (d) Minors who have reached the age of six (6) years but have not
attained the age of nine (9) years may be permitted at the place of employment for
a maximum of eight (8) hours. Such eight (8)-hour period shall consist of not more
than four (4) hours of work and at least three (3) hours of schooling when the
minor's school is in session. The studio teacher shall assure that the minor receives
up to one (1) hour of rest and recreation. On days when the minor's school is not in
session, working hours may be increased to six (6) hours, with one (1) hour of rest
and recreation. (e) Minors who have reached the age of nine (9) years but who
have not attained the age of sixteen (16) years may be permitted at the place of
employment for a maximum of nine (9) hours. Such nine (9)-hour period shall
consist of not more than five (5) hours of work and at least three (3) hours of
schooling when the minor's school is in session. The studio teacher shall assure
that the minor receives at least one (1) hour of rest and recreation. On days when
the minor's school is not in session, working hours may be increased to seven (7)
hours, with one (1) hour of rest and recreation. (f) Minors who have reached the age
of sixteen (16) years but who have not attained the age of eighteen (18) years may
be permitted at the place of employment for a maximum of ten (10) hours. Such ten
(10)-hour period shall consist of not more than six (6) hours of work and at least
three (3) hours of schooling when the minor's school is in session, and one (1) hour
of rest and recreation. On days when school is not in session, working hours may
be increased to not more than eight (8) hours, with one (1) hour of rest and
recreation. (g) If emergency situations arise, for example, early morning or night
exteriors shot as exteriors, live television or theatrical productions presented after
the hours beyond which a minor may not work as prescribed by law, a request may
be made to the Labor Commissioner for permission for the minor to work earlier or
later than such hours. Each request shall be considered individually by the Division
and must be submitted in writing at least forty-eight (48) hours prior to the time
needed. (h) When any minor between ages fourteen (14) and eighteen (18) obtains
permission from school authorities to work during school hours for a period not to
exceed two (2) consecutive days, the working hours for such minor during either or
both of such days may be extended to but shall not exceed eight (8) hours in
twenty-four (24) hours. (i) Twelve (12) hours must elapse between the minor's time
of dismissal and time of call on the following day. If the minor's regular school starts
less than twelve (12) hours after his or her dismissal time, the minor must be
schooled the following day at the employer's place of business.
11761 All hours for the minor at the place of employment are exclusive of the meal
period. The working day may not be extended by a meal period longer than one half
(1/2) hour.
1295.5 (a) Notwithstanding Section 1391 of this code or Section 49116 of the
Education Code, minors 14 years of age and older may be employed during the
hours permitted by subdivision (b) to perform sports-attending services in
professional baseball as enumerated in subsection (b) of Section 570.35 of Title 29
of the Code of Federal Regulations. No employer may employ a minor 14 or 15
years of age to perform sports-attending services in professional baseball without
the prior written approval of either the school district of the school in which the
minor is enrolled or the county board of education of the county in which that school
district is located. (b) Any minor 14 or 15 years of age who performs sportsattending services in professional baseball pursuant to subdivision (a) may be
employed outside of school hours until 12:30 a.m. during any evening preceding a
non-school day and until 10 p.m. during any evening preceding a school day. No
employer may employ a minor 14 or 15 years of age to perform sports-attending
services in professional baseball pursuant to subdivision (a) for more than five
hours in any school day, for more than 18 hours in any week while school is in
session, for more than eight hours in any non-school day, or for more than 40 hours
in any week that school is not in session. An employer may employ a minor 16 or
17 years of age outside of school hours to perform sports-attending services in
professional baseball pursuant to subdivision (a) for up to five hours in any school
day. (c) The school authority issuing the permit to the minor to perform sportsattending services in professional baseball shall both (1) provide the local office of
the Division of Labor Standards Enforcement with a copy of the permit within five
business days after the date the permit is issued and (2) monitor the academic
achievement of the minor to ensure that the educational progress of the minor is
being maintained or improves during the period of employment.
1297 No minor under the age of 16 years shall be employed or permitted to work as
a messenger for any telegraph, telephone, or messenger company, or for the
United States government or any of its departments while operating a telegraph,
telephone, or messenger service, in the distribution, transmission, or delivery of
goods or messages in cities of more than 15,000 inhabitants; nor shall any minor
under the age of 18 years be employed, permitted, or suffered to engage in such
work before 6 o'clock in the morning or after 9 o'clock in the evening. Nothing in this
section shall apply to any minor employed to deliver newspapers to consumers.
1308.7 (a) No minor shall be employed in the entertainment industry more than
eight hours in one day of 24 hours, or more than 48 hours in one week, or before 5
a.m., or after 10 p.m. on any day preceding a school day. However, a minor may
work the hours authorized by this section during any evening preceding a nonschool day until 12:30 a.m. of the non-school day. (b) For purposes of this section,
"school day" means any day in which a minor is required to attend school for 240
minutes or more.
1391 (a) Except as provided in Sections 1297, 1298, and 1308.7: (1) No employer
shall employ a minor 15 years of age or younger for more than eight hours in one
day of 24 hours, or more than 40 hours in one week, or before 7 a.m. or after 7
p.m., except that from June 1 through Labor Day, a minor 15 years of age or
younger may be employed for the hours authorized by this section until 9 p.m. in the
evening. (2) Notwithstanding paragraph (1), while school is in session, no employer
shall employ a minor 14 or 15 years of age for more than three hours in any school
day, nor more than 18 hours in any week, nor during school hours, except that a
minor enrolled in and employed pursuant to a school-supervised and school
administered work experience and career exploration program may be employed for
no more than 23 hours, any portion of which may be during school hours. (3) No
employer shall employ a minor 16 or 17 years of age for more than eight hours in
one day of 24 hours or more than 48 hours in one week, or before 5 a.m., or after
10 p.m. on any day preceding a school day. However, a minor 16 or 17 years of
age may be employed for the hours authorized by this section during any evening
preceding a non-school day until 12:30 a.m. of the non-school day. (4)
Notwithstanding paragraph (3), while school is in session, no employer shall employ
a minor 16 or 17 years of age for more than four hours in any school day, except as
follows: (A) The minor is employed in personal attendant occupations, as defined in
the Industrial Welfare Commission Minimum Wage Order No. 15 (8 Cal. Code
Regs. Sec. 11150), school-approved work experience, or cooperative vocational
education programs. (B) The minor has been issued a permit to work pursuant to
subdivision (c) of Section 49112 and is employed in accordance with the provisions
of that permit. (b) For purposes of this section, "school day" means any day in
which a minor is required to attend school for 240 minutes or more. (d) Nothing in
this section shall apply to any minor employed to deliver newspapers to consumers.
1391.1 Minors 16 years of age or older and under the age of 18 years enrolled in
work experience or cooperative vocational education programs approved by the
State Department of Education or in work experience education programs
conducted by private schools may work after 10 p.m. but not later than 12:30 a.m.,
providing such employment is not detrimental to the health, education, or welfare of
the minor and the approval of the parent and the work experience coordinator has
been obtained. However, if any such minor works any time during the hours from 10
p.m. to 12:30 a.m., he or she shall be paid for work during that time at a rate which
is not less than the minimum wage paid to adults.
1391.2 (a) Notwithstanding Sections 1391 and 1391.1, any minor under 18 years of
age who has been graduated from a high school maintaining a four-year course
above the eighth grade of the elementary schools, or who has had an equal amount
of education in a private school or by private tuition, or who has been awarded a
certificate of proficiency pursuant to Section 48412 of the Education Code, may be
employed for the same hours as an adult may be employed in performing the same
work.
Child Labor:
Prohibited/Permissible
Occupations
1290 No minor under the age of 16 years shall be employed, permitted, or suffered
to work in or in connection with any manufacturing establishment or other place of
labor or employment at any time except as may be provided in this article or by the
provisions of Part 27 (commencing with Section 48000) of the Education Code.
1292 No minor under the age of sixteen years shall be employed or permitted to
work in any capacity in: (a) Adjusting any belt to any machinery. (b) Sewing or
lacing machine belts in any workshop or factory. (c) Oiling, wiping, or cleaning
machinery, or assisting therein.
1293 No minor under the age of sixteen years shall be employed, or permitted, to
work in any capacity in operating or assisting in operating any of the following
machines: (a) Circular or band saws; wood shapers; wood-jointers; planers;
sandpaper or wood-polishing machinery; wood turning or boring machinery. (b)
Picker machines or machines used in picking wool, cotton, hair, or other material;
carding machines; leather-burnishing machines; laundry machinery. (c) Printingpresses of all kinds; boring or drill presses; stamping machines used in sheet-metal
and tinware, in paper and leather manufacturing, or in washer and nut factories;
metal or paper-cutting machines; paper-lace machines. (d) Corner-staying
machines in paper-box factories; corrugating rolls, such as are used in corrugated
paper, roofing or washboard factories. (e) Dough brakes or cracker machinery of
any description. (f) Wire or iron straightening or drawing machinery; rolling-mill
machinery; power punches or shears; washing, grinding or mixing machinery;
calendar rolls in paper and rubber manufacturing; steam-boilers; in proximity to any
hazardous or unguarded belts, machinery or gearing.
1293.1 (a) Except as provided in subdivision (c) of Section 1394, no minor under
the age of 12 years may be employed or permitted to work, or accompany or be
permitted to accompany an employed parent or guardian, in an agricultural zone of
danger. As used in this section, "agricultural zone of danger" means any or all of the
following: (1) On or about moving equipment. (2) In or about unprotected chemicals.
(3) In or about any unprotected water hazard. The Department of Industrial
Relations may, after hearing, determine other hazards that constitute an agricultural
zone of danger. (b) Except for employment described in subdivision (a) of Section
1394, no minor under the age of 12 years may be employed or permitted to work, or
accompany an employed parent or guardian, in any of the occupations declared
hazardous for employment of minors below 16 years of age in Section 570.71 of
Title 29 of the Code of Federal Regulations, as that regulation may be amended
from time to time.
1294 No minor under the age of 16 years shall be employed or permitted to work in
any capacity: (a) Upon any railroad, whether steam, electric, or hydraulic. (b) Upon
any vessel or boat engaged in navigation or commerce within the jurisdiction of this
state. (c) In, about, or in connection with any processes in which dangerous or
poisonous acids are used, in the manufacture or packing of paints, colors, white or
red lead, or in soldering. (d) In occupations causing dust in injurious quantities, in
the manufacture or use of dangerous or poisonous dyes, in the manufacture or
preparation of compositions with dangerous or poisonous gases, or in the
manufacture or use of compositions of lye in which the quantity thereof is injurious
to health. (e) On scaffolding, in heavy work in the building trades, in any tunnel or
excavation, or in, about or in connection with any mine, coal breaker, coke oven or
quarry. (f) In assorting, manufacturing or packing tobacco. (g) Operating any
automobile, motorcar, or truck. (h) In any occupation dangerous to the life or limb,
or injurious to the health or morals of the minor.
1294.1 (a) No minor under the age of 16 years shall be employed or permitted
to work in either of the following: (1) Any occupation declared particularly hazardous
for the employment of minors below the age of 16 years in Section 570.71 of
Subpart E-1 of Part 570 of Title 29 of the Code of Federal Regulations, as that
regulation may be revised from time to time. (2) Any occupation excluded from the
application of Subpart C of Part 570 of Title 29 of the Code of Federal Regulations,
as set forth in Section 570.33 and paragraph (b) of Section 570.34 thereof, as those
regulations may be revised from time to time. (b) No minor shall be employed or
permitted to work in any occupation declared particularly hazardous for the
employment of minors between 16 and 18 years of age, or declared detrimental to
their health or well-being, in Subpart E of Part 570 of Title 29 of the Code of Federal
Regulations, as those regulations may be revised from time to time. (c) Nothing in
this section shall prohibit a minor engaged in the processing and delivery of
newspapers from entering areas of a newspaper plant, other than areas where
printing presses are located, for purposes related to the processing or delivery of
newspapers.
1294.3 Minors 14 and 15 years of age may be employed in occupations not
otherwise prohibited by this chapter, including, but not limited to, the following: (a)
Office and clerical work, including the operation of office machines. (b) Cashiering,
selling, modeling, art work, work in advertising departments, window trimming, and
comparative shopping. (c) Price marking and tagging by hand or by machine,
assembling orders, packing and shelving. (d) Bagging and carrying out customers'
orders. (e) Errand and delivery work by foot, bicycle, and public transportation. (f)
Cleanup work, including the use of vacuum cleaners and floor waxers, and
maintenance of grounds, but not including the use of power-driven mowers or
cutters. (g) Kitchen work and other work involved in preparing and serving food and
beverages, including the operation of machines and devices used in the
performance of this work, including, but not limited to, dishwashers, toasters,
dumbwaiters, popcorn poppers, milkshake blenders, and coffee grinders. (h)
Cleaning vegetables and fruits, and wrapping, sealing, labeling, weighing, pricing,
and stocking goods when performed in areas physically separate from areas where
meat is prepared for sale and outside freezers or meat coolers.
1294.4 Nothing in this chapter shall be construed to prohibit a minor engaged in the
delivery of newspapers to consumers from making deliveries by foot, bicycle, public
transportation, or by an automobile driven by a person 16 years of age or older.
1294.5 (a) Minors 16 and 17 years of age may work in gas service stations in the
following activities: (1) Dispensing gas or oil. (2) Courtesy service. (3) Car cleaning,
washing, and polishing. (4) Activities specified in Section 1294.3. (b) No minor 16 or
17 years of age may perform work in gas service stations that involves the use of
pits, racks, or lifting apparatus, or that involves the inflation of any tire mounted on a
rim equipped with a removable retaining ring. (c) Minors under the age of 16 years
may be employed in gas service stations to perform only those activities specified in
Section 1294.3.
1297 No minor under the age of 16 years shall be employed or permitted to work as
a messenger for any telegraph, telephone, or messenger company, or for the
United States government or any of its departments while operating a telegraph,
telephone, or messenger service, in the distribution, transmission, or delivery of
goods or messages in cities of more than 15,000 inhabitants.
1298 (a) Notwithstanding Section 1308.1, no minor under 12 years of age shall be
employed or permitted to work at any time in or in connection with the occupation of
selling or distributing newspapers, magazines, periodicals, or circulars. (b) This
section shall not apply to a minor who is at least 10 years of age and is engaged as
a newspaper carrier on the effective date of the act adding this subdivision.
1308.8 (a) No infant under the age of one month may be employed on any motion
picture set or location unless a licensed physician and surgeon who is boardcertified in pediatrics provides written certification that the infant is at least 15 days
old and, in his or her medical opinion, the infant was carried to full term, was of
normal birth weight, is physically capable of handling the stress of filmmaking, and
the infant's lungs, eyes, heart, and immune system are sufficiently developed to
withstand the potential risks.
CCR 8:11701 The following occupations are sufficiently dangerous to the lives and
limbs and injurious to the health and morals of children under 16 years of age to
justify their exclusion therefrom: (a) All occupations where such children come in
close proximity to moving machinery. (b) All building or construction work of any
kind. (c) Delivering goods, merchandise, commodities, papers or packages from
motor vehicles.
CCR 8:11703 The following occupations are sufficiently dangerous to the lives or
limbs or injurious to the health or morals of minors under 16 years of age to justify
their exclusion therefrom: All occupations in or about any plant manufacturing
explosives or articles containing explosive components, and all occupations in the
transportation and sale of explosives or articles containing explosive components.
CCR 8:11706 Dangerous activities and occupations for minors under the age of
sixteen (16) years are determined to be as follows: (a) Door-to-door selling of
newspaper or magazine subscriptions, or of candy, cookies, flowers or other
merchandise or commodities, unless the following conditions are met: (1) Minors so
engaged work in pairs, as a team, on the same or opposite side of the street; (2)
Minors so engaged shall be supervised by an adult supervisor for each crew of ten
(10) or fewer minors; (3) Such minors shall be within the sight or sound of the adult
supervisor at least once every fifteen (15) minutes; (4) Such minors shall be
returned to their respective homes or places of rendezvous daily after each day's
work. (b) Selling to passing motorists of newspapers, candy, flowers, or other
merchandise or commodities from a fixed location on a street, highway or freeway
island or divider, or freeway on or off ramp, or the side of a freeway or highway
entrance or exit shoulder.
Child Labor: Work
Permit/Certificate
Requirements
11753 (a) A minor desiring to be employed in the entertainment industry must
obtain an Entertainment Work Permit.
1308.5. (a) This section, with the exception of paragraph (4) of this subdivision,
shall apply to all minors under the age of 16 years. The written consent of the Labor
Commissioner in the form of a permit to employ a minor in the entertainment
industry is required for any minor, not otherwise exempted by this chapter, for any
of the following: (1) The employment of any minor, in the presentation of any drama,
legitimate play, or in any radio broadcasting or television studio. (2) The
employment of any minor 12 years of age or over in any other performance,
concert, or entertainment. (3) The appearance of any minor over the age of eight
years in any performance, concert, or entertainment during the public school
vacation. (4) Allowing any minor between the ages of 8 and 18 years, who is by any
law of this state permitted to be employed as an actor, actress, or performer in a
theater, motion picture studio, radio broadcasting studio, or television studio, before
10 p.m., in the presentation of a performance, play, or drama continuing from an
earlier hour until after 10 p.m., to continue his or her part in such presentation
between the hours of 10 p.m. and midnight. (5) The appearance of any minor in any
entertainment which is noncommercial in nature. (6) The employment of any minor
artist in the making of phonograph recordings. (7) The employment of any minor as
an advertising or photographic model. (8) The employment or appearance of any
minor pursuant to a contract approved by the superior court under Chapter 3
(commencing with Section 6750) of Part 3 of Division 11 of the Family Code. (b)
Any person, or the agent, manager, superintendent, or officer thereof, employing
either directly or indirectly through third persons, or any parent or guardian of a
minor who employs, or permits any minor to be employed in violation of any of the
provisions of this section is guilty of a misdemeanor. Failure to produce the written
consent from the Labor Commissioner is prima facie evidence of the illegal
employment of any minor whose written consent is not produced.
1308.10. (a) Prior to the employment of a minor under the age of 16 years in any of
the circumstances listed in subdivision (a) of Section 1308.5, the Labor
Commissioner may issue a temporary permit authorizing employment of the minor
to enable a parent or guardian of the minor to meet the requirement for a permit
under subdivision (a) of Section 1308.5 and to establish a trust account for the
minor or to produce the documentation required by the Labor Commissioner for the
issuance of a permit under Section 1308.5, subject to all of the following conditions:
(1) A temporary permit shall be valid for a period not to exceed 10 days from the
date of issuance. (2) A temporary permit shall not be issued for the employment of
a minor if the minor’s parent or guardian has previously applied for or been issued a
permit by the Labor Commissioner pursuant to Section 1308.5 or a temporary
permit pursuant to this section for employment of the minor. (3) For infants who are
subject to the requirements of Section 1308.8, a temporary permit shall not be
issued before the requirements of that section are met. (4) The Division of Labor
Standards Enforcement shall prepare and make available on its Internet Web site
the application form for a temporary permit. An applicant for a temporary permit
shall submit a completed application and application fee online to the division. Upon
receipt of the completed application and fee, the division shall immediately issue a
temporary permit. (b) The Labor Commissioner shall deposit all fees for temporary
permits received into the Entertainment Work Permit Fund, which is hereby created
in the State Treasury. The funds deposited in the Entertainment Work Permit Fund
shall be available to the Labor Commissioner, upon appropriation by the
Legislature, to pay for the costs of administration of the online temporary minor’s
entertainment work permit program and to repay any loan from the Labor
Enforcement and Compliance Fund made pursuant to subdivision (c). (c) The
Labor Commissioner may on a one-time basis borrow up to two hundred fifty
thousand dollars ($250,000) from the Labor Enforcement and Compliance Fund, as
established by subdivision (e) of Section 62.5, for deposit in the Entertainment Work
Permit Fund to cover the one-time startup costs related to the temporary permit
program. The loan shall be repaid to the Labor Enforcement and Compliance Fund
as soon as sufficient funds exist in the Entertainment Work Permit Fund to repay
the loan without compromising the operations of the temporary work permit
program. (d) The Labor Commissioner shall set forth the fee in an amount sufficient
to pay for these costs, but not to exceed fifty dollars ($50).
49111 A permit to work may be issued to any minor over the age of 12 years and
under the age of 18 years to be employed on a regular school holiday, during the
regular vacation of the public school, during such time as the minor is exempt from
compulsory school attendance pursuant to Section 48231, and during the period of
a specified occasional public school vacation in any of the establishments or
occupations not otherwise prohibited by law.
49112 (a) Except as provided in subdivisions (b) and (c), a permit to work may be
issued to a minor who has completed the equivalent of the 7th grade in a public
school course to work outside of school hours for a period of time not to exceed
three hours in any day while school is in session if the minor is 14 or 15 years of
age, or four hours in any day in which he or she is required by law to attend school
if the minor is 16 or 17 years of age. (b) Notwithstanding subdivision (a), a permit to
work may be issued, at the school district's discretion, to a minor 13 years of age if
he or she has completed grade 6, has been identified by the school district in which
he or she is enrolled as exhibiting the potential to drop out of school, and is a
participant in an employment program that is conducted on school premises and
sponsored by one or more school districts, provided the program serves to foster
the development of an appreciation by the pupil of the importance of education in
preparing a pupil for future education and employment. The permit shall limit the
period any minor age 13 may work pursuant to this subdivision to two hours on any
given day, up to a maximum of four hours each week. (c) A permit to work may also
be issued to a minor age 16 or older to work outside of school hours for a period of
time not to exceed eight hours in any day in which the minor is required by law to
attend school and which is immediately prior to a non school day. (d) Nothing in this
section shall apply to any minor employed to deliver newspapers to consumers.
49113 A permit to work may be issued to a minor who is under the age of 18 years
and over the age of 14 years who is regularly enrolled in a high school or
community college or who has been assigned to a vocational course in a place of
employment, and who will work part time as a properly enrolled pupil in a work
experience education course that meets all the requirements of such course as
provided in Sections 51760 to 51769, inclusive.
49118 Permits to work issued during the school year shall expire five days after the
opening of the next succeeding school year.
49130 A permit to work full time may be issued to a minor under the age of 16 years
and over the age of 14 years who holds a diploma of graduation from the prescribed
elementary school course under both of the following circumstances: (a) The permit
expires not later than the end of the current school year. (b) Any of the following
conditions: (1) The parent or guardian of the minor child presents a sworn
statement that the parent or guardian of the minor is incapacitated for labor through
illness or injury, or that through the death or desertion of the father or mother of the
minor, the family is in need of the earnings of the minor and that sufficient aid
cannot be secured in any other manner. (2) The minor is unable to reside with his or
her family and the earnings of the minor are necessary for the support of the minor.
(3) The minor is residing with a foster care provider, or guardian receiving foster
care funds for the minor, if the provider or guardian obtains written authorization
from the minor's social worker, probation officer, or child protective services worker
acting as an officer of the court. A permit may be issued to a minor who is subject to
this paragraph only if the child's case plan documents that the purpose of the
employment is to further the goal of emancipation pursuant to Part 6 (commencing
with Section 7000) of Division 11 of the Family Code, or to enable the minor to gain
knowledge of necessary work skills and work habits, and of the responsibilities
related to maintaining employment. The person issuing the permit shall sign a
statement that he or she, or a competent person designated by him or her, has
investigated the conditions under which the application for the permit has been
made and has found that, in his or her judgment, the earnings of the minor are
necessary for the family to support the minor or that the earnings of the minor are
necessary to support the minor and that sufficient aid cannot be secured in any
other manner. Before issuing a work permit to a minor who is subject to paragraph
(3) of subdivision (b), the person issuing the permit shall sign a statement that he or
she has received authorization from the minor's social worker, probation officer, or
child protective services worker. A minor who applies for a work permit pursuant to
this section shall be duly enrolled in a work experience education program.
49160 No person, firm or corporation shall employ, suffer, or permit any minor
under the age of 18 years to work in or in connection with any establishment or
occupation except as provided in Section 49151 without a permit to employ, issued
by the proper educational officers in accordance with law.
Criminal Background Checks
33190 Educ.-- Every person, firm, association, partnership, or corporation offering
or conducting private school instruction on the elementary or high school level shall
between the first and 15th day of October of each year, commencing on October 1,
1967, file with the Superintendent of Public Instruction an affidavit or statement,
under penalty of perjury, by the owner or other head setting forth the following
information for the current year: (a) All names, whether real or fictitious, of the
person, firm, association, partnership, or corporation under which it has done and is
doing business. (b) The address, including city and street, of every place of doing
business of the person, firm, association, partnership, or corporation within the
State of California. (c) The address, including city and street, of the location of the
records of the person, firm, association, partnership, or corporation, and the name
and address, including city and street, of the custodian of such records. (d) The
names and addresses, including city and street, of the directors, if any, and
principal officers of the person, firm, association, partnership, or corporation. (e)
The school enrollment, by grades, number of teachers, coeducational or enrollment
limited to boys or girls and boarding facilities. (f) That the following records are
maintained at the address stated, and are true and accurate: (1) The records
required to be kept by Section 48222. (2) The courses of study offered by the
institution. (3) The names and addresses, including city and street, of its faculty,
together with a record of the educational qualifications of each. (g) Criminal record
summary information has been obtained pursuant to Section 44237. Whenever two
or more private schools are under the effective control or supervision of a single
administrative unit, such administrative unit may comply with the provisions of this
section on behalf of each of the schools under its control or supervision by
submitting one report. Filing pursuant to this section shall not be interpreted to
mean, and it shall be unlawful for any school to expressly or impliedly represent by
any means whatsoever, that the State of California, the Superintendent of Public
Instruction, the State Board of Education, the State Department of Education, or
any division or bureau of the department, or any accrediting agency has made any
evaluation, recognition, approval, or endorsement of the school or course unless
this is an actual fact. The Superintendent of Public Instruction shall prepare and
publish a list of private elementary and high schools to include the name and
address of the school and the name of the school owner or administrator.
44830.1 Educ.--(a) In addition to any other prohibition or provision, no person who
has been convicted of a violent or serious felony shall be hired by a school district in
a position requiring certification qualifications or supervising positions requiring
certification qualifications. A school district shall not retain in employment a current
certificated employee who has been convicted of a violent or serious felony, and
who is a temporary employee, a substitute employee, or a probationary employee
serving before March 15 of the employee's second probationary year. If any
conviction is reversed and the formerly convicted person is acquitted of the offense
in a new trial, or the charges are dismissed, this section does not prohibit his or her
employment thereafter. (b) This section applies to any violent or serious offense
which, if committed in this state, would have been punishable as a violent or serious
felony. (c)(1) For purposes of this section, a violent felony is any felony listed in
subdivision (c) of Section 667.5 of the Penal Code and a serious felony is any
felony listed in subdivision (c) of Section 1192.7 of the Penal Code. (2) For
purposes of this section, a plea of nolo contendere to a serious or violent felony
constitutes a conviction. (3) For purposes of this section, the term "school district"
has the same meaning as defined in Section 41302.5 (d) When the governing
board of any school district requests a criminal record summary of a temporary,
substitute, or probationary certificated employee, two fingerprint cards, bearing the
legible rolled and flat impressions of the person's fingerprints together with a
personal description and the fee shall be submitted, by any means authorized by
the Department of Justice, to the Department of Justice. (e) When the Department
of Justice ascertains that an individual who is an applicant for employment by a
school district has been convicted of a violent or serious felony, or for purposes of
implementing the prohibitions set forth in Section 44836, any sex offense, as
defined in Section 44010, or any controlled substance offense, as defined in
Section 44011, the department shall notify the school district of the criminal
information pertaining to the applicant. The notification shall be delivered by
telephone or electronic mail to the school district. The notification to the school
district shall cease to be made once the statewide electronic fingerprinting network
is returning responses within three working days. The Department of Justice shall
send by first-class mail or electronic mail a copy of the criminal information to the
Commission on Teacher Credentialing. The Department of Justice may charge a
reasonable fee to cover the costs associated with processing, reviewing, and
supplying the criminal record summary required by this section. In no event shall
the fee exceed the actual costs incurred by the department. (f) Notwithstanding
subdivision (a), a person shall not be denied employment or terminated from
employment solely on the basis that the person has been convicted of a violent or
serious felony if the person has obtained a certificate of rehabilitation and pardon
pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of
the Penal Code. (g) Notwithstanding subdivision (f) a person shall not be denied
employment or terminated from employment solely on the basis that the person has
been convicted of a serious felony that is not also a violent felony if that person can
prove to the sentencing court of the offense in question, by clear and convincing
evidence, that he or she has been rehabilitated for the purposes of school
employment for at least one year. If the offense in question occurred outside this
state, then the person may seek a finding of rehabilitation from the court in the
school district in which he or she is a resident. (h) Notwithstanding any other
provision of law, when the Department of Justice notifies a school district by
telephone or electronic mail that a current temporary employee, substitute
employee, or probationary employee serving before March 15 of the employee's
second probationary year, has been convicted of a violent or serious felony, that
employee shall immediately be placed on leave without pay. When the school
district receives written electronic notification of the fact of conviction from the
Department of Justice, the employee shall be terminated automatically and without
regard to any other procedure for termination specified in this code or school district
procedures unless the employee challenges the record of the Department of Justice
and the Department of Justice withdraws in writing its notification to the school
district. Upon receipt of written withdrawal of notification from the Department of
Justice, the employee shall immediately be reinstated with full restoration of salary
and benefits for the period of time from the suspension without pay to the
reinstatement. (i) An employer shall request subsequent arrest service from the
Department of Justice as provided under Section 11105.2 of the Penal Code. (j)
Notwithstanding Section 47610, this section applies to a charter school. (k) This
section shall not apply to a certificated employee who applies to renew his or her
credential when both of the following conditions have been met: (1) The
employee's original application for credential was accompanied by that person's
fingerprints. (2) The employee has either been continuously employed in one or
more public school districts since the issuance or last renewal of his or her
credential or his or her credential has not expired between renewals. (l) Nothing in
this section shall prohibit a county superintendent of schools from issuing a
temporary certificate to any person described in paragraph (1) or (2) of subdivision
(k). (m) This section shall not prohibit a school district from hiring a certificated
employee who became a permanent employee of another school district as of
October 1, 1997. (n) All information obtained from the Department of Justice is
confidential. Every agency handling Department of Justice information shall ensure
the following: (1) No recipient may disclose its contents or provide copies of
information. (2) Information received shall be stored in a locked file separate from
other files, and shall only be accessible to the custodian of records. (3) Information
received shall be destroyed upon the hiring determination in accordance with
subdivision (a) of Section 708 of Title 11 of the California Code of Regulations. (4)
Compliance with destruction, storage, dissemination, auditing, backgrounding, and
training requirements as set forth in Sections 700 through 708 inclusive, of Title 11
of the California Code of Regulations and Section 11077 of the Penal Code
governing the use and security of criminal offender record information is the
responsibility of the entity receiving the information from the Department of Justice.
45125.5 Educ.-- A school district or county office of education may request that a
local law enforcement agency conduct an automated records check of a
prospective noncertificated employee in order to ascertain whether the prospective
noncertificated employee has a criminal record. If the local law enforcement agency
agrees to provide that automated records check, the results therefrom shall be
returned to the requesting district or county office of education within 72 hours of
the written request. A local law enforcement agency may charge a fee to the
requesting agency not to exceed the actual expense to the law enforcement
agency. For purposes of this section, "prospective noncertificated employee"
includes only those applicants whom the requesting school district intends to hire, at
the time the automated records check is requested.
33192 Educ.-- (a) Except as provided in subdivisions (b) and (e), if the employees
of any entity that has a contract with a private school to provide any of the following
services may have any contact with pupils, those employees shall submit or have
submitted their fingerprints in a manner authorized by the Department of Justice
together with a fee determined by the Department of Justice to be sufficient to
reimburse the department for its costs incurred in processing the application: (1)
School and classroom janitorial. (2) Schoolsite administrative. (3) Schoolsite
grounds and landscape maintenance. (4) Pupil transportation. (5) Schoolsite foodrelated. (b) This section shall not apply to an entity providing any of the services
listed in subdivision (a) to a private school in an emergency or exceptional situation,
such as when pupil health or safety is endangered or when repairs are needed to
make school facilities safe and habitable. (c) This section shall not apply to an
entity providing any of the services listed in subdivision (a) to a private school when
the private school determines that the employees of the entity will have limited
contact with pupils. In determining whether a contract employee has limited contact
with pupils, the private school shall consider the totality of the circumstances,
including factors such as the length of time the contractors will be on school
grounds, whether pupils will be in proximity with the site where the contractors will
be working, and whether the contractors will be working by themselves or with
others. If a private school has made this determination, the private school shall take
appropriate steps to protect the safety of any pupils that may come in contact with
these employees. (d) A private school may determine, on a case-by-case basis, to
require an entity providing schoolsite services other than those listed in subdivision
(a) or those described in Section 33193 and the entity's employees to comply with
the requirements of this section, unless the private school determines that the
employees of the entity will have limited contact with pupils. In determining whether
a contract employee will have limited contact with pupils, the private school shall
consider the totality of the circumstances, including factors such as the length of
time the contractors will be on school grounds, whether pupils will be in proximity
with the site where the contractors will be working, and whether the contractors will
be working by themselves or with others. If a private school makes this
determination, the private school shall take appropriate steps to protect the safety of
any pupils that may come in contact with these employees. If a private school
requires an entity providing services other than those listed in subdivision (a) and its
employees to comply with the requirements of this section, the Department of
Justice shall comply with subdivision (e). (e)(1) The Department of Justice shall
ascertain whether the individual whose fingerprints were submitted to it pursuant to
subdivision (a) has been arrested or convicted of any crime insofar as that fact can
be ascertained from information available to the department. Upon implementation
of an electronic fingerprinting system with terminals located statewide and managed
by the Department of Justice, the department shall ascertain the information
required pursuant to this section within three working days. When the Department
of Justice ascertains that an individual whose fingerprints were submitted to it
pursuant to subdivision (a) has a pending criminal proceeding for a felony as
defined in Section 45122.1 or has been convicted of a felony as defined in Section
45122.1, the department shall notify the employer designated by the individual of
that fact. The notification shall be delivered by telephone or electronic mail to the
employer. (2) The Department of Justice, at its discretion, may notify the private
school in instances when the employee is defined as having a pending criminal
proceeding described in Section 45122.1 or has been convicted of a felony as
defined in Section 45122.1. (3) The Department of Justice may forward one copy
of the fingerprints to the Federal Bureau of Investigation to verify any record of
previous arrests or convictions of the applicant. The Department of Justice shall
review the criminal record summary it obtains from the Federal Bureau of
Investigation and shall notify the employer only as to whether or not an applicant
has any convictions or arrests pending adjudication for offenses which, if committed
in California, would have been punishable as a violent or serious felony. The
Department of Justice shall not provide any specific offense information received
from the Federal Bureau of Investigation. The Department of Justice shall provide
written notification to the contract employer only concerning whether an applicant
for employment has any conviction or arrest pending final adjudication for any of
those crimes, as specified in Section 45122.1, but shall not provide any information
identifying any offense for which an existing employee was convicted or has an
arrest pending final adjudication. (f) An entity having a contract as specified in
subdivision (a) and an entity required to comply with this section pursuant to
subdivision (d) shall not permit an employee to come in contact with pupils until the
Department of Justice has ascertained that the employee has not been convicted of
a felony as defined in Section 45122.1. (1) This prohibition does not apply to an
employee solely on the basis that the employee has been convicted of a felony if
the employee has obtained a certificate of rehabilitation and pardon pursuant to
Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal
Code. (2) This prohibition does not apply to an employee solely on the basis that
the employee has been convicted of a serious felony that is not also a violent felony
if that employee can prove to the sentencing court of the offense in question, by
clear and convincing evidence, that he or she has been rehabilitated for the
purposes of schoolsite employment for at least one year. If the offense in question
occurred outside this state, then the person may seek a finding of rehabilitation from
the court having jurisdiction where he or she is resident. (g) An entity having a
contract as specified in subdivision (a) and an entity required to comply with this
section pursuant to subdivision (d) shall certify in writing to the private school that
neither the employer nor any of its employees who are required by this section to
submit or have their fingerprints submitted to the Department of Justice and who
may come in contact with pupils have been convicted of a felony as defined in
Section 45122.1. (h) An entity having a contract as specified in subdivision (a) on
the effective date of the act adding this section and an entity required to comply with
this section pursuant to subdivision (d) by a private school with which it has a
contract on the effective date of the act adding this section shall complete the
requirements of this section within 90 days of that date. (i) For purposes of this
section, "private school" means a person, firm, association, partnership, or
corporation offering or conducting private school instruction on the elementary or
high school level. (j) Where reasonable access to the statewide electronic
fingerprinting network is available, the Department of Justice may request electronic
submission of the fingerprint cards and other information required by this section.
44332.5 Educ.-- (a) A school district that may issue warrants pursuant to Section
42647 may, at its discretion, provide for the registration of a valid certification or
other document authorizing the holder to serve in a position requiring certification
qualifications as an employee of the school district. (b) During any period when
summary criminal history information is not available from the Federal Bureau of
Investigation, an applicant for an initial credential, certificate, or permit shall not be
employed in a position requiring certification qualifications until he or she has met
the minimum requirements for a temporary certificate of clearance. A temporary
certificate of clearance or a credential, certificate, or permit authorizing service in
the public schools shall be issued when the applicant has: (1) Made full disclosure
of all facts necessary to establish his or her true identity. (2) Made a statement
under penalty of perjury that he or she has not been convicted of a crime which
would constitute grounds for the denial of the credential, permit, or certificate
applied for. An applicant shall not be required to disclose, and the Committee of
Credentials shall not inquire into or consider, any acts or omissions not related to
the applicant's fitness to teach or to perform other duties for which he or she is
certificated, or that is related to his or her competence to perform the duties
authorized by his or her credential. (3) Paid to the Commission on Teacher
Credentialing the amount of twelve dollars ($12) or the fees or costs which have
been or will be assessed by the Federal Bureau of Investigation for the issuance of
its summary criminal history of the applicant when this information is once again
made available to the commission. The fees authorized by this paragraph shall be
applicable to all credentials, permits, and certificates which were applied for or
issued after October 1, 1981. (c) Upon receipt of a statement from the Federal
Bureau of Investigation that it has no summary criminal history information on the
applicant, or upon receipt of the summary criminal history information and clearance
by the Committee of Credentials, a temporary certificate of clearance shall be
converted to a regular certificate of clearance.
87013 Educ.-- Whenever a community college district employs a person in an
academic position and that person has not previously been employed by a school
or community college district in this state, the governing board may, within 10
working days of the person's date of employment, require the individual to have
duplicate personal identification cards upon which shall appear the legible
fingerprints and a personal description of the employee prepared by a local law
enforcement agency having jurisdiction in the area of the district. The law
enforcement agency shall transmit the cards, together with the fee hereinafter
specified, to the Department of Justice. At the earliest opportunity following its
receipt of the identification cards, the Department of Justice shall furnish the law
enforcement agency submitting the employee's fingerprints a complete criminal
history of the individual if one appears in the department's files. The local law
enforcement agency shall, in turn, excerpt from the history all information regarding
any convictions of the employee and shall forward that information to the governing
board of the district. A plea or verdict of guilty or a finding of guilt by a court in a
trial without a jury or forfeiture of bail is deemed to be a conviction within the
meaning of this section, irrespective of a subsequent order under the provisions of
Section 1203.4 of the Penal Code allowing the withdrawal of the plea of guilty and
entering of a plea of not guilty, or setting aside the verdict of guilty, or dismissing the
accusations or information. The governing board may provide the means whereby
the identification cards may be completed and may charge a fee determined by the
Department of Justice to be sufficient to reimburse the department for the costs
incurred in processing the application. The amount of the fee shall be forwarded to
the Department of Justice, with two copies of applicant's or employee's fingerprint
cards. The governing board may collect an additional fee not to exceed two dollars
($2) payable to the local public law enforcement agency taking the fingerprints and
completing the data on the fingerprint cards. Any provision of law to the contrary
notwithstanding, the Department of Justice, shall, as provided in this section,
furnish, upon application of a local public law enforcement agency all information
pertaining to any person required to submit personal identification cards pursuant to
this section if there is a record of the person in its office.
44830.2 Educ.-- (a) For situations in which a person is an applicant for
employment, or is employed on a part-time or substitute basis, in a position
requiring certification qualifications in multiple school districts within a county or
within contiguous counties, the districts may agree among themselves to designate
a single district, or a county superintendent may agree to act on behalf of
participating districts within the county or contiguous counties, for the purposes of
performing the following functions: (1) Sending fingerprints to the Department of
Justice. (2) Receiving reports of convictions of serious and violent felonies. (3)
Reviewing criminal history records and reports of subsequent arrests from the
Department of Justice. (4) Maintaining common lists of persons eligible for
employment. (b) The school district or county superintendent serving in the
capacity authorized in subdivision (a) shall be considered the employer for
purposes of subdivisions (a), (d), and (g) of Section 44830.1 (c) Upon receipt from
the Department of Justice of a report of conviction of a serious or violent felony, the
designated school district or county superintendent shall communicate that fact to
the participating districts and remove the affected employee from the common list of
persons eligible for employment. (d) Upon receipt from the Department of Justice
of a criminal history record or report of subsequent arrest for any person on a
common list of persons eligible for employment, the designated school district or
county superintendent shall give notice to the superintendent of any participating
district or a person designated in writing by that superintendent, that the report is
available for inspection on a confidential basis by the superintendent or authorized
designee, at the office of the designated school district or county superintendent, for
a period of 30 days following receipt of notice, to enable the employing school
district to determine whether the employee meets that district's criteria for continued
employment. The designated school district or county superintendent shall not
release a copy of that information to any participating district or any other person,
shall retain or dispose of the information in the manner required by law after all
participating districts have had an opportunity to inspect it in accordance with this
section, and shall maintain a record of all persons to whom the information has
been shown that shall be available to the Department of Justice to monitor
compliance with the requirements of confidentiality contained in this section. (e)
Any agency processing Department of Justice responses pursuant to this section
shall submit an interagency agreement to the Department of Justice to establish
authorization to submit and receive information pursuant to this section. (f) All
information obtained from the Department of Justice is confidential. Every agency
handling Department of Justice information shall ensure the following: (1) No
recipient may disclose its contents or provide copies of information. (2) Information
received shall be stored in a locked file separate from other files, and shall only be
accessible to the custodian of records. (3) Information received shall be destroyed
upon the hiring determination in accordance with subdivision (a) of Section 708 of
Title 11 of the California Code of Regulations. (4) Compliance with destruction,
storage, dissemination, auditing, backgrounding, and training requirements as set
forth in Sections 700 through 708, inclusive, of Title 11 of the California Code of
Regulations and Section 11077 of the Penal Code governing the use and security
of criminal offender record information is the responsibility of the entity receiving the
information from the Department of Justice.
1786.16. (a) Any person described in subdivision (d) of Section 1786.12 shall not
procure or cause to be prepared an investigative consumer report unless the
following applicable conditions are met: (1) If an investigative consumer report is
sought in connection with the underwriting of insurance, it shall be clearly and
accurately disclosed in writing at the time the application form, medical form, binder,
or similar document is signed by the consumer that an investigative consumer
report regarding the consumer's character, general reputation, personal
characteristics, and mode of living may be made. If no signed application form,
medical form, binder, or similar document is involved in the underwriting
transaction, the disclosure shall be made to the consumer in writing and mailed or
otherwise delivered to the consumer not later than three days after the report was
first requested. The disclosure shall include the name and address of any
investigative consumer reporting agency conducting an investigation, plus the
nature and scope of the investigation requested, and a summary of the provisions
of Section 1786.22. (2) If, at any time, an investigative consumer report is sought for
employment purposes other than suspicion of wrongdoing or misconduct by the
subject of the investigation, the person seeking the investigative consumer report
may procure the report, or cause the report to be made, only if all of the following
apply: (A) The person procuring or causing the report to be made has a permissible
purpose, as defined in Section 1786.12. (B) The person procuring or causing the
report to be made provides a clear and conspicuous disclosure in writing to the
consumer at any time before the report is procured or caused to be made in a
document that consists solely of the disclosure, that: (i) An investigative consumer
report may be obtained. (ii) The permissible purpose of the report is identified. (iii)
The disclosure may include information on the consumer's character, general
reputation, personal characteristics, and mode of living. (iv) Identifies the name,
address, and telephone number of the investigative consumer reporting agency
conducting the investigation. (v) Notifies the consumer in writing of the nature and
scope of the investigation requested, including a summary of the provisions of
Section 1786.22. (vi) Notifies the consumer of the Internet Web site address of the
investigative consumer reporting agency identified in clause (iv), or, if the agency
has no Internet Web site address, the telephone number of the agency, where the
consumer may find information about the investigative reporting agency's privacy
practices, including whether the consumer's personal information will be sent
outside the United States or its territories and information that complies with
subdivision (d) of Section 1786.20. This clause shall become operative on January
1, 2012. (C) The consumer has authorized in writing the procurement of the report.
(3) If an investigative consumer report is sought in connection with the hiring of a
dwelling unit, as defined in subdivision (c) of Section 1940, the person procuring or
causing the request to be made shall, not later than three days after the date on
which the report was first requested, notify the consumer in writing that an
investigative consumer report will be made regarding the consumer's character,
general reputation, personal characteristics, and mode of living. The notification
shall also include the name and address of the investigative consumer reporting
agency that will prepare the report and a summary of the provisions of Section
1786.22. (4) The person procuring or causing the request to be made shall certify to
the investigative consumer reporting agency that the person has made the
applicable disclosures to the consumer required by this subdivision and that the
person will comply with subdivision (b). (5) The person procuring the report or
causing it to be prepared agrees to provide a copy of the report to the subject of the
investigation, as provided in subdivision (b). (b) Any person described in subdivision
(d) of Section 1786.12 who requests an investigative consumer report, in
accordance with subdivision (a) regarding that consumer, shall do the following: (1)
Provide the consumer a means by which the consumer may indicate on a written
form, by means of a box to check, that the consumer wishes to receive a copy of
any report that is prepared. If the consumer wishes to receive a copy of the report,
the recipient of the report shall send a copy of the report to the consumer within
three business days of the date that the report is provided to the recipient, who may
contract with any other entity to send a copy to the consumer. The notice to request
the report may be contained on either the disclosure form, as required by
subdivision (a), or a separate consent form. The copy of the report shall contain the
name, address, and telephone number of the person who issued the report and
how to contact them. (2) Comply with Section 1786.40, if the taking of adverse
action is a consideration. (c) Subdivisions (a) and (b) do not apply to an
investigative consumer report procured or caused to be prepared by an employer, if
the report is sought for employment purposes due to suspicion held by an employer
of wrongdoing or misconduct by the subject of the investigation. (d) Those persons
described in subdivision (d) of Section 1786.12 constitute the sole and exclusive
class of persons who may cause an investigative consumer report to be prepared.
SEC. 2.
1786.20. (a) An investigative consumer reporting agency shall maintain reasonable
procedures designed to avoid violations of Section 1786.18 and to limit furnishing of
investigative consumer reports for the purposes listed under Section 1786.12.
These procedures shall require that prospective users of the information identify
themselves, certify the purposes for which the information is sought and that the
information will be used for no other purposes, and make the certifications
described in paragraph (4) of subdivision (a) of Section 1786.16. From the effective
date of this title, the investigative consumer reporting agency shall keep a record of
the purposes for which information is sought, as stated by the user. The
investigative consumer reporting agency may assume that the purpose for which a
user seeks information remains the same as that which a user has previously
stated. The investigative consumer reporting agency shall inform the user that the
user is obligated to notify the agency of any change in the purpose for which
information will be used. An investigative consumer reporting agency shall make a
reasonable effort to verify the identity of a new prospective user and the uses
certified by the prospective user prior to furnishing the user any investigative
consumer reports. An investigative consumer reporting agency may not furnish an
investigative consumer report to a person unless it has a written agreement that the
investigative consumer reports will be used by that person only for purposes listed
in Section 1786.12. (b) Whenever an investigative consumer reporting agency
prepares an investigative consumer report, it shall follow reasonable procedures to
assure maximum possible accuracy of the information concerning the individual
about whom the report relates. An investigative consumer reporting agency shall
retain the investigative consumer report for two years after the report is provided.
(c) An investigative consumer reporting agency may not make an inquiry for the
purpose of preparing an investigative consumer report on a consumer for
employment purposes if the making of the inquiry by an employer or prospective
employer of the consumer would violate applicable federal or state equal
employment opportunity law or regulation. (d) (1) An investigative consumer
reporting agency doing business in this state shall conspicuously post, as defined in
subdivision (b) of Section 22577 of the Business and Professions Code, on its
primary Internet Web site information describing its privacy practices with respect to
its preparation and processing of investigative consumer reports. If the investigative
consumer reporting agency does not have an Internet Web site, it shall, upon
request, mail a written copy of the privacy statement to consumers. The privacy
statement shall conspicuously include, but not be limited to, both of the following:
(A) A statement entitled "Personal Information Disclosure: United States or
Overseas," that indicates whether the personal information will be transferred to
third parties outside the United States or its territories. (B) A separate section that
includes the name, mailing address, e-mail address, and telephone number of the
investigative consumer reporting agency representatives who can assist a
consumer with additional information regarding the investigative consumer reporting
agency's privacy practices or policies in the event of a compromise of his or her
information. (2) For purposes of this subdivision, "third party" shall include, but not
be limited to, a contractor, foreign affiliate, wholly owned entity, or an employee of
the investigative consumer reporting agency. (e) An investigative consumer
reporting agency shall be liable to a consumer who is the subject of a report if the
consumer is harmed by any unauthorized access of the consumer's personally
identifiable information, act, or omission that occurs outside the United States or its
territories as a result of the investigative consumer reporting agency negligently
preparing or processing an investigative consumer report, or portion thereof,
outside of the United States or its territories. Liability shall be in an amount equal to
the sum of (1) any actual damages sustained by the consumer as a result of the
unauthorized access, and (2) in the case of any successful action to enforce any
liability under this section, the costs of the action together with reasonable
attorney's fees, as determined by the court.
1024.5. (a) An employer shall not use a consumer credit report for employment
purposes unless the following criteria are satisfied: (1) The information contained in
the report is substantially job-related, meaning that the position of the person for
whom the report is sought has access to money, other assets, or confidential
information. (2) The position of the person for whom the report is sought is any of
the following: (A) A managerial position. (B) A position in the state Department of
Justice. (C) That of a sworn peace officer or other law enforcement position. (D)
A position for which the information contained in the report is required to be
disclosed by law or to be obtained by the employer. (b) This section does not apply
to a person or business subject to Sections 6801 to 6809, inclusive, of Title 15 of
the United States Code and state and federal statutes or regulations implementing
those sections if the person or business is subject to compliance oversight by a
state or federal regulatory agency with respect to those laws.
11105. (a) (1) The Department of Justice shall maintain state summary criminal
history information. (2) As used in this section: (A) “State summary criminal history
information” means the master record of information compiled by the Attorney
General pertaining to the identification and criminal history of any person, such as
name, date of birth, physical description, fingerprints, photographs, dates of arrests,
arresting agencies and booking numbers, charges, dispositions, and similar data
about the person. (B) “State summary criminal history information” does not refer
to records and data compiled by criminal justice agencies other than the Attorney
General, nor does it refer to records of complaints to or investigations conducted by,
or records of intelligence information or security procedures of, the office of the
Attorney General and the Department of Justice. (b) The Attorney General shall
furnish state summary criminal history information to any of the following, if needed
in the course of their duties, provided that when information is furnished to assist an
agency, officer, or official of state or local government, a public utility, or any other
entity, in fulfilling employment, certification, or licensing duties, Chapter 1321 of the
Statutes of 1974 and Section 432.7 of the Labor Code shall apply: (1) The courts of
the state. (2) Peace officers of the state, as defined in Section 830.1, subdivisions
(a) and (e) of Section 830.2, subdivision (a) of Section 830.3, subdivisions (a) and
(b) of Section 830.5, and subdivision (a) of Section 830.31. (3) District attorneys of
the state. (4) Prosecuting city attorneys of any city within the state. (5) City
attorneys pursuing civil gang injunctions pursuant to Section 186.22a, or drug
abatement actions pursuant to Section 3479 or 3480 of the Civil Code, or Section
11571 of the Health and Safety Code. (6) Probation officers of the state. (7) Parole
officers of the state. (8) A public defender or attorney of record when representing
a person in proceedings upon a petition for a certificate of rehabilitation and pardon
pursuant to Section 4852.08. (9) A public defender or attorney of record when
representing a person in a criminal case, or a parole, mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170, or post-release
community supervision revocation or revocation extension proceeding, and if
authorized access by statutory or decisional law. (10) Any agency, officer, or official
of the state if the criminal history information is required to implement a statute or
regulation that expressly refers to specific criminal conduct applicable to the subject
person of the state summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon that specified criminal
conduct. The agency, officer, or official of the state authorized by this paragraph to
receive state summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation. (11) Any city or county, city and county, district, or
any officer or official thereof if access is needed in order to assist that agency,
officer, or official in fulfilling employment, certification, or licensing duties, and if the
access is specifically authorized by the city council, board of supervisors, or
governing board of the city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that expressly refers to
specific criminal conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or exclusions, or both,
expressly based upon that specified criminal conduct. The city or county, city and
county, district, or the officer or official thereof authorized by this paragraph may
also transmit fingerprint images and related information to the Department of
Justice to be transmitted to the Federal Bureau of Investigation. (12) The subject of
the state summary criminal history information under procedures established under
Article 5 (commencing with Section 11120). (13) Any person or entity when access
is expressly authorized by statute if the criminal history information is required to
implement a statute or regulation that expressly refers to specific criminal conduct
applicable to the subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based upon that
specified criminal conduct. (14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing Section 120175 of
the Health and Safety Code. (15) Any managing or supervising correctional officer
of a county jail or other county correctional facility. (16) Any humane society, or
society for the prevention of cruelty to animals, for the specific purpose of complying
with Section 14502 of the Corporations Code for the appointment of humane
officers. (17) Local child support agencies established by Section 17304 of the
Family Code. When a local child support agency closes a support enforcement
case containing summary criminal history information, the agency shall delete or
purge from the file and destroy any documents or information concerning or arising
from offenses for or of which the parent has been arrested, charged, or convicted,
other than for offenses related to the parent’s having failed to provide support for
minor children, consistent with the requirements of Section 17531 of the Family
Code. (18) County child welfare agency personnel who have been delegated the
authority of county probation officers to access state summary criminal history
information pursuant to Section 272 of the Welfare and Institutions Code for the
purposes specified in Section 16504.5 of the Welfare and Institutions Code.
Information from criminal history records provided pursuant to this subdivision shall
not be used for any purposes other than those specified in this section and Section
16504.5 of the Welfare and Institutions Code. When an agency obtains records
obtained both on the basis of name checks and fingerprint checks, final placement
decisions shall be based only on the records obtained pursuant to the fingerprint
check. (19) The court of a tribe, or court of a consortium of tribes, that has entered
into an agreement with the state pursuant to Section 10553.1 of the Welfare and
Institutions Code. This information may be used only for the purposes specified in
Section 16504.5 of the Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing with Section
11140) shall apply to officers, members, and employees of a tribal court receiving
criminal record offender information pursuant to this section. (20) Child welfare
agency personnel of a tribe or consortium of tribes that has entered into an
agreement with the state pursuant to Section 10553.1 of the Welfare and
Institutions Code and to whom the state has delegated duties under paragraph (2)
of subdivision (a) of Section 272 of the Welfare and Institutions Code. The
purposes for use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. When an agency obtains records on the
basis of name checks and fingerprint checks, final placement decisions shall be
based only on the records obtained pursuant to the fingerprint check. Article 6
(commencing with Section 11140) shall apply to child welfare agency personnel
receiving criminal record offender information pursuant to this section. (21) An
officer providing conservatorship investigations pursuant to Sections 5351, 5354,
and 5356 of the Welfare and Institutions Code. (22) A court investigator providing
investigations or reviews in conservatorships pursuant to Section 1826, 1850, 1851,
or 2250.6 of the Probate Code. (23) A person authorized to conduct a guardianship
investigation pursuant to Section 1513 of the Probate Code. (24) A humane officer
pursuant to Section 14502 of the Corporations Code for the purposes of performing
his or her duties. (c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this subdivision, federal
level criminal history information upon a showing of a compelling need to any of the
following, provided that when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other entity in fulfilling
employment, certification, or licensing duties, Chapter 1321 of the Statutes of 1974
and Section 432.7 of the Labor Code shall apply: (1) Any public utility, as defined in
Section 216 of the Public Utilities Code, that operates a nuclear energy facility when
access is needed in order to assist in employing persons to work at the facility,
provided that, if the Attorney General supplies the data, he or she shall furnish a
copy of the data to the person to whom the data relates. (2) To a peace officer of
the state other than those included in subdivision (b). (3) To an illegal dumping
enforcement officer as defined in subdivision (j) of Section 830.7. (4) To a peace
officer of another country. (5) To public officers, other than peace officers, of the
United States, other states, or possessions or territories of the United States,
provided that access to records similar to state summary criminal history
information is expressly authorized by a statute of the United States, other states, or
possessions or territories of the United States if the information is needed for the
performance of their official duties. (6) To any person when disclosure is requested
by a probation, parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering the
rehabilitation of the subject. (7) The courts of the United States, other states, or
territories or possessions of the United States. (8) Peace officers of the United
States, other states, or territories or possessions of the United States. (9) To any
individual who is the subject of the record requested if needed in conjunction with
an application to enter the United States or any foreign nation. (10) (A) (i) Any
public utility, as defined in Section 216 of the Public Utilities Code, or any cable
corporation as defined in subparagraph (B), if receipt of criminal history information
is needed in order to assist in employing current or prospective employees, contract
employees, or subcontract employees who, in the course of their employment may
be seeking entrance to private residences or adjacent grounds. The information
provided shall be limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending trial. (ii) If the
Attorney General supplies the data pursuant to this paragraph, the Attorney General
shall furnish a copy of the data to the current or prospective employee to whom the
data relates. (iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable corporation shall not
disclose its contents, other than for the purpose for which it was acquired. The state
summary criminal history information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not more than 30 days
after employment or promotion or transfer is denied or granted, except for those
cases where a current or prospective employee is out on bail or on his or her own
recognizance pending trial, in which case the state summary criminal history
information and all copies shall be destroyed not more than 30 days after the case
is resolved. (iv) A violation of this paragraph is a misdemeanor, and shall give the
current or prospective employee who is injured by the violation a cause of action
against the public utility or cable corporation to recover damages proximately
caused by the violations. Any public utility’s or cable corporation’s request for
state summary criminal history information for purposes of employing current or
prospective employees who may be seeking entrance to private residences or
adjacent grounds in the course of their employment shall be deemed a “compelling
need” as required to be shown in this subdivision. (v) Nothing in this section shall
be construed as imposing any duty upon public utilities or cable corporations to
request state summary criminal history information on any current or prospective
employees. (B) For purposes of this paragraph, “cable corporation” means any
corporation or firm that transmits or provides television, computer, or telephone
services by cable, digital, fiber optic, satellite, or comparable technology to
subscribers for a fee. (C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized pursuant to
subparagraph (A) shall be forwarded to the Federal Bureau of Investigation by the
Department of Justice. Federal level criminal history information received or
compiled by the Department of Justice may then be disseminated to the entities
referenced in subparagraph (A), as authorized by law. (D) (i) Authority for a cable
corporation to request state or federal level criminal history information under this
paragraph shall commence July 1, 2005. (ii) Authority for a public utility to request
federal level criminal history information under this paragraph shall commence July
1, 2005. (11) To any campus of the California State University or the University of
California, or any four year college or university accredited by a regional
accreditation organization approved by the United States Department of Education,
if needed in conjunction with an application for admission by a convicted felon to
any special education program for convicted felons, including, but not limited to,
university alternatives and halfway houses. Only conviction information shall be
furnished. The college or university may require the convicted felon to be
fingerprinted, and any inquiry to the department under this section shall include the
convicted felon’s fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the individual who is the subject of
the record requested, if needed in conjunction with the individual’s application to
adopt a minor child who is a citizen of that foreign nation. Requests for information
pursuant to this paragraph shall be in accordance with the process described in
Sections 11122 to 11124, inclusive. The response shall be provided to the foreign
government or its designee and to the individual who requested the information. (d)
Whenever an authorized request for state summary criminal history information
pertains to a person whose fingerprints are on file with the Department of Justice
and the department has no criminal history of that person, and the information is to
be used for employment, licensing, or certification purposes, the fingerprint card
accompanying the request for information, if any, may be stamped “no criminal
record” and returned to the person or entity making the request. (e) Whenever
state summary criminal history information is furnished as the result of an
application and is to be used for employment, licensing, or certification purposes,
the Department of Justice may charge the person or entity making the request a fee
that it determines to be sufficient to reimburse the department for the cost of
furnishing the information. In addition, the Department of Justice may add a
surcharge to the fee to fund maintenance and improvements to the systems from
which the information is obtained. Notwithstanding any other law, any person or
entity required to pay a fee to the department for information received under this
section may charge the applicant a fee sufficient to reimburse the person or entity
for this expense. All moneys received by the department pursuant to this section,
Sections 11105.3 and 26190, and former Section 13588 of the Education Code
shall be deposited in a special account in the General Fund to be available for
expenditure by the department to offset costs incurred pursuant to those sections
and for maintenance and improvements to the systems from which the information
is obtained upon appropriation by the Legislature. (f) Whenever there is a conflict,
the processing of criminal fingerprints and fingerprints of applicants for security
guard or alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the Business and
Professions Code shall take priority over the processing of other applicant
fingerprints. (g) It is not a violation of this section to disseminate statistical or
research information obtained from a record, provided that the identity of the subject
of the record is not disclosed. (h) It is not a violation of this section to include
information obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the inclusion of the
information in the public record is authorized by a court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or any state or local
law enforcement agency may require the submission of fingerprints for the purpose
of conducting summary criminal history information checks that are authorized by
law. (j) The state summary criminal history information shall include any finding of
mental incompetence pursuant to Chapter 6 (commencing with Section 1367) of
Title 10 of Part 2 arising out of a complaint charging a felony offense specified in
Section 290. (k) (1) This subdivision shall apply whenever state or federal summary
criminal history information is furnished by the Department of Justice as the result of
an application by an authorized agency or organization and the information is to be
used for peace officer employment or certification purposes. As used in this
subdivision, a peace officer is defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2. (2) Notwithstanding any other provision of law, whenever
state summary criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the following
information: (A) Every conviction rendered against the applicant. (B) Every arrest for
an offense for which the applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own recognizance
pending trial. (C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided however that where the records of the
Department of Justice do not contain a disposition for the arrest, the Department of
Justice first makes a genuine effort to determine the disposition of the arrest. (D)
Every successful diversion. (E) Every date and agency name associated with all
retained peace officer or non-sworn law enforcement agency employee preemployment criminal offender record information search requests. (l) (1) This
subdivision shall apply whenever state or federal summary criminal history
information is furnished by the Department of Justice as the result of an application
by a criminal justice agency or organization as defined in Section 13101, and the
information is to be used for criminal justice employment, licensing, or certification
purposes. (2) Notwithstanding any other provision of law, whenever state summary
criminal history information is initially furnished pursuant to paragraph (1), the
Department of Justice shall disseminate the following information: (A) Every
conviction rendered against the applicant. (B) Every arrest for an offense for which
the applicant is presently awaiting trial, whether the applicant is incarcerated or has
been released on bail or on his or her own recognizance pending trial. (C) Every
arrest for an offense for which the records of the Department of Justice do not
contain a disposition or did not result in a conviction, provided that the Department
of Justice first makes a genuine effort to determine the disposition of the arrest.
However, information concerning an arrest shall not be disclosed if the records of
the Department of Justice indicate or if the genuine effort reveals that the subject
was exonerated, successfully completed a diversion or deferred entry of judgment
program, or the arrest was deemed a detention. (D) Every date and agency name
associated with all retained peace officer or non-sworn law enforcement agency
employee pre-employment criminal offender record information search requests.
(m) (1) This subdivision shall apply whenever state or federal summary criminal
history information is furnished by the Department of Justice as the result of an
application by an authorized agency or organization pursuant to Section 1522,
1568.09, 1569.17, or 1596.871 of the Health and Safety Code, or any statute that
incorporates the criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or certification
purposes. (2) Notwithstanding any other provision of law, whenever state summary
criminal history information is initially furnished pursuant to paragraph (1), the
Department of Justice shall disseminate the following information: (A) Every
conviction of an offense rendered against the applicant. (B) Every arrest for an
offense for which the applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own recognizance
pending trial. (C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section 1522 of the
Health and Safety Code to determine if an applicant has been arrested. However, if
the records of the Department of Justice do not contain a disposition for an arrest,
the Department of Justice shall first make a genuine effort to determine the
disposition of the arrest. (3) Notwithstanding the requirements of the sections
referenced in paragraph (1) of this subdivision, the Department of Justice
shall not disseminate information about an arrest subsequently deemed a detention
or an arrest that resulted in either the successful completion of a diversion program
or exoneration. (n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment, licensing, or
certification purposes, is furnished by the Department of Justice as the result of an
application by an authorized agency, organization, or individual pursuant to any of
the following: (A) Paragraph (9) of subdivision (c), when the information is to be
used by a cable corporation. (B) Section 11105.3 or 11105.4. (C) Section 15660 of
the Welfare and Institutions Code. (D) Any statute that incorporates the criteria of
any of the statutory provisions listed in subparagraph (A), (B), or (C), or of this
subdivision, by reference. (2) With the exception of applications submitted by
transportation companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary criminal
history information is initially furnished pursuant to paragraph (1), the Department of
Justice shall disseminate the following information: (A) Every conviction rendered
against the applicant for a violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions Code. However,
with the exception of those offenses for which registration is required pursuant to
Section 290, the Department of Justice shall not disseminate information pursuant
to this subdivision unless the conviction occurred within 10 years of the date of the
agency’s request for information or the conviction is over 10 years old but the
subject of the request was incarcerated within 10 years of the agency’s request for
information. (B) Every arrest for a violation or attempted violation of an offense
specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code for
which the applicant is presently awaiting trial, whether the applicant is incarcerated
or has been released on bail or on his or her own recognizance pending trial. (o) (1)
This subdivision shall apply whenever state or federal summary criminal history
information is furnished by the Department of Justice as the result of an application
by an authorized agency or organization pursuant to Section 379 or 550 of the
Financial Code, or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to be used for
employment, licensing, or certification purposes. (2) Notwithstanding any other
provision of law, whenever state summary criminal history information is initially
furnished pursuant to paragraph (1), the Department of Justice shall disseminate
the following information: (A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section 550 of the
Financial Code. (B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or has been released
on bail or on his or her own recognizance pending trial. (p) (1) This subdivision
shall apply whenever state or federal criminal history information is furnished by the
Department of Justice as the result of an application by an agency, organization, or
individual not defined in subdivision (k), (l), (m), (n), or (o), or by a transportation
company authorized pursuant to Section 11105.3, or any statute that incorporates
the criteria of that section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes. (2) Notwithstanding
any other provisions of law, whenever state summary criminal history information is
initially furnished pursuant to paragraph (1), the Department of Justice shall
disseminate the following information: (A) Every conviction rendered against the
applicant. (B) Every arrest for an offense for which the applicant is presently
awaiting trial, whether the applicant is incarcerated or has been released on bail or
on his or her own recognizance pending trial. (q) All agencies, organizations, or
individuals defined in subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent notification pursuant to Section 11105.2. This
subdivision shall not supersede sections that mandate an agency, organization, or
individual to contract with the Department of Justice for subsequent notification
pursuant to Section 11105.2. (r) Nothing in this section shall be construed to mean
that the Department of Justice shall cease compliance with any other statutory
notification requirements. (s) The provisions of Section 50.12 of Title 28 of the
Code of Federal Regulations are to be followed in processing federal criminal
history information. (t) Whenever state or federal summary criminal history
information is furnished by the Department of Justice as the result of an application
by an authorized agency, organization, or individual defined in subdivisions (k) to
(p), inclusive, and the information is to be used for employment, licensing, or
certification purposes, the authorized agency, organization, or individual shall
expeditiously furnish a copy of the information to the person to whom the
information relates if the information is a basis for an adverse employment,
licensing, or certification decision. When furnished other than in person, the copy
shall be delivered to the last contact information provided by the applicant. SEC. 3.
Section 11105.2 of the Penal Code is amended to read: 11105.2. (a) The
Department of Justice may provide subsequent state or federal arrest or disposition
notification to any entity authorized by state or federal law to receive state or federal
summary criminal history information to assist in fulfilling employment, licensing,
certification duties, or the duties of approving relative caregivers and non-relative
extended family members, upon the arrest or disposition of any person whose
fingerprints are maintained on file at the Department of Justice or the Federal
Bureau of Investigation as the result of an application for licensing, employment,
certification, or approval. Nothing in this section shall authorize the notification of a
subsequent disposition pertaining to a disposition that does not result in a
conviction, unless the department has previously received notification of the arrest
and has previously lawfully notified a receiving entity of the pending status of that
arrest. When the department supplies subsequent arrest or disposition notification
to a receiving entity, the entity shall, at the same time, expeditiously furnish a copy
of the information to the person to whom it relates if the information is a basis for an
adverse employment, licensing, or certification decision. When furnished other than
in person, the copy shall be delivered to the last contact information provided by the
applicant. (b) For purposes of this section, “approval” means those duties described
in subdivision (d) of Section 309 of the Welfare and Institutions Code for approving
the home of a relative caregiver or of a non-relative extended family member for
placement of a child supervised by the juvenile court. (c) Any entity, other than a
law enforcement agency employing peace officers as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section 830.3,
subdivisions (a) and (b) of Section 830.5, and subdivision (a) of Section 830.31,
shall enter into a contract with the Department of Justice in order to receive
notification of subsequent state or federal arrests or dispositions for licensing,
employment, or certification purposes. (d) Any entity which submits the fingerprints
of applicants for licensing, employment, certification, or approval to the Department
of Justice for the purpose of establishing a record of the applicant to receive
notification of subsequent state or federal arrests or dispositions shall immediately
notify the department when the employment of the applicant is terminated, when the
applicant’s license or certificate is revoked, when the applicant may no longer
renew or reinstate the license or certificate, or when a relative caregiver’s or nonrelative extended family member’s approval is terminated. The Department of
Justice shall terminate state or federal subsequent notification on any applicant
upon the request of the licensing, employment, certifying, or approving authority. (e)
Any entity receiving a notification of a state or federal subsequent arrest or
disposition for a person unknown to the entity, or for a person no longer employed
by the entity, or no longer eligible to renew the certificate or license for which
subsequent notification service was established shall immediately return the
subsequent notification to the Department of Justice, informing the department that
the entity is no longer interested in the applicant. The entity shall not record or
otherwise retain any information received as a result of the subsequent notice. (f)
Any entity that submits the fingerprints of an applicant for employment, licensing,
certification, or approval to the Department of Justice for the purpose of establishing
a record at the department or the Federal Bureau of Investigation to receive
notification of subsequent arrest or disposition shall immediately notify the
department if the applicant is not subsequently employed, or if the applicant is
denied licensing certification, or approval. (g) An entity that fails to provide the
Department of Justice with notification as set forth in subdivisions (c), (d), and (e)
may be denied further subsequent notification service. (h) Notwithstanding
subdivisions (c), (d), and (f), subsequent notification by the Department of Justice
and retention by the employing agency shall continue as to retired peace officers
listed in subdivision (c) of Section 830.5.
Days/Hours of Rest
1030. Every employer, including the state and any political subdivision, shall
provide a reasonable amount of break time to accommodate an employee desiring
to express breast milk for the employee’s infant child. The break time shall, if
possible, run concurrently with any break time already provided to the employee.
Break time for an employee that does not run concurrently with the rest time
authorized for the employee by the applicable wage order of the Industrial Welfare
Commission shall be unpaid.
1031. The employer shall make reasonable efforts to provide the employee with the
use of a room or other location, other than a toilet stall, in close proximity to the
employee’s work area, for the employee to express milk in private. The room or
location may include the place where the employee normally works if it otherwise
meets the requirements of this section.
1032. An employer is not required to provide break time under this chapter if to do
so would seriously disrupt the operations of the employer. 550-554 As used in this
chapter "Workweek" and "week" mean any seven (7) consecutive days, starting
with the same calendar day each week. "Workweek" is a fixed and regularly
recurring period of 168 hours, seven (7) consecutive 24-hour periods. Any person
who violates this chapter is guilty of a misdemeanor. (a) Sections 551 and 552 shall
not apply to any cases of emergency nor to work performed in the protection of life
or property from loss or destruction, nor to any common carrier engaged in or
connected with the movement of trains. This chapter, shall not apply to any person
employed in an agricultural occupation, as defined in Order No. 14-80 (operative
January 1, 1998) of the Industrial Welfare Commission. Nothing in this chapter shall
be construed to prevent an accumulation of days of rest when the nature of the
employment reasonably requires that the employee work seven or more
consecutive days, if in each calendar month the employee receives days of rest
equivalent to one day's rest in seven. The requirement respecting the equivalent of
one day's rest in seven shall apply, notwithstanding the other provisions of this
chapter relating to collective bargaining agreements, where the employer and a
labor organization representing employees of the employer have entered into a
valid collective bargaining agreement respecting the hours of work of the
employees, unless the agreement expressly provides otherwise.
601 - 604 No railroad corporation or any officer, agent or representative of such
corporation shall require or knowingly permit any trainman to be on duty for a longer
period than 12 consecutive hours. Whenever any trainman has been continuously
on duty for 12hours he shall be relieved and not required or permitted again to go
on duty or perform any work for the railroad corporation until he has had at least 10
consecutive hours off duty. No trainman who has been on duty 12 hours in the
aggregate in any 24-hour period shall be required or permitted to continue or again
go on duty without having had at least 8 consecutive hours off duty. No person who
by the use of the telegraph or telephone, dispatches, reports, transmits, receives or
delivers orders pertaining to or affecting train movements shall be required or
permitted to be on duty for a longer period than nine hours in any twenty four hours,
in towers, offices, places and stations continuously operated night and day, nor for
a longer period than thirteen hours in towers, offices, places and stations operated
only during the daytime. In case of emergency, however, the persons referred to in
this section may be permitted to be on duty for four additional hours in a twenty-four
hour period. Such additional duty shall not be required or permitted on more than
three days in any week. 750 - 751.5 (a) Except as otherwise provided in this
chapter, no employee may be employed for a period that exceeds eight hours within
any 24-hour period and the hours of employment of any workday shall be
consecutive, excluding intermissions for meals, for all persons who are employed or
engaged in work in any of the following: (1) Underground mines. (2) Smelters and
plants for the reduction or refining of ores or metals. (b) No provision of this chapter
applies to quarries or other operations for the extraction of nonmetallic minerals,
including, but not limited to, sand, gravel, and rock. (c) No provision of this chapter
applies to an employee who is employed in an executive, administrative, or
professional capacity, or employed as an outside salesperson. Notwithstanding
Section 750, an employee may be employed for a period that exceeds eight hours
within a 24-hour period, under the circumstances specified in subdivision (a), (b), or
(c), as follows: (a) If the employer and a labor organization representing employees
of the employer have entered into a valid collective bargaining agreement that
expressly provides for the wages, hours of work, and working conditions of the
employees. (b) If a two-thirds majority of the affected employees of that employer
whose hours are regulated by this chapter have voted in an election to adopt a
policy that specifies periods of work that may exceed eight hours in a 24-hour
period, and the employer adopts that policy, subject to all of the following
conditions: (1) The agreement adopted with respect to that policy reflects the results
of the election. (2) The election is conducted, at the expense of the employer, with
the use of secret ballots, during regular working hours. Upon the written request of
an employee to his or her employer, or to the Labor Commissioner, made no later
than 10 days prior to the date set for the election, the employer shall cause the
election to be conducted by a neutral third party with experience in conducting
employee elections. If such a written request is made to the commissioner pursuant
to this paragraph, the commissioner shall not disclose the identity of the employee
and shall notify the employer, no later than five days prior to the date set for the
election, that the election is required to be conducted by a neutral third party. Such
an election may be conducted by utilizing mail ballots. (3) All employees of that
employer whose hours are regulated by this chapter and who have become
employed by that employer within 24 hours of the time the election is commenced
are eligible to vote in the election. (4) The policy shall be effective for the period
specified therein, not exceeding 12 months. (5) No later than 14 days prior to the
date set for an election, the employer shall do all of the following: (A) Provide a
written notice to the affected employees that describes the effects the proposed
work schedule would have on the employees' wages, hours, and benefits, and the
employees' rights under this chapter, including the right to request that the election
be conducted by a neutral third party pursuant to this section, and to file a complaint
against the employer pursuant to this chapter. (B) Provide a written statement to the
affected employees, prepared by a neutral source knowledgeable in health and
safety matters and unaffiliated with the employer, that explains any health and
safety considerations of extended work shifts. (C) Hold informational meetings for
the affected employees on each shift during the regular working hours of the
affected employees. At each of these meetings, the employer shall explain the
effect of the proposed policy on the hours and compensation of the employees.
Written notice of the time, date, place, and purpose of these informational meetings
shall be conspicuously posted in at least three locations throughout the mine site for
at least seven consecutive days before the date of the meetings. Written notice of
the time, date, place, and purpose of the election shall be posted in the same
manner and for the same period. Failure to comply with the procedural
requirements of this paragraph shall void the results of the election for purposes of
this section. (6) Any employer that establishes a regular scheduled workday
pursuant to this subdivision shall make a reasonable attempt to place an employee,
who was eligible to participate in the election that authorized an extended workday
schedule and who is unable or unwilling to work the extended schedule, in an
alternative work assignment that the employee is capable of performing. An
employer shall not be required to offer an alternative work assignment to an
employee if an alternative work assignment that the employee is capable of
performing is not available or if the employee commenced his or her employment
after the election. (c) On the day a scheduled change of shift takes effect. In the
case of an emergency where life or property is in imminent danger, the work shift
may be extended during the continuance of the emergency. Where emergency
repairs to, or maintenance or replacement of, machinery or equipment are
necessary for the continuous operation thereof, the hours that an employee may be
engaged in performing the emergency repairs, maintenance, or replacement, may,
during the pendency of the emergency, exceed the period specified in Section 750.
1212. (a) General. The rules in this section and Sections 1212.5 and 1213 apply to
all motor carriers and drivers, except as provided in paragraphs (b) through (l) of
this section. (b) Adverse driving conditions. (1) A driver who encounters adverse
driving conditions, as defined in Section 1201, and cannot, because of those
conditions, safely complete the run within the maximum driving time permitted by
Section 1212.5 may drive and be permitted or required to drive for not more than 2
additional hours in order to complete that run or to reach a place offering safety for
vehicle occupants and security for the vehicle and its cargo. However, that driver
may not drive or be permitted to drive: (A) Interstate drivers: for more than 12 hours
in the aggregate following eight consecutive hours off duty; or (B) Intrastate drivers:
for more than 14 hours in the aggregate following eight consecutive hours off duty;
or (C) After he/she has been on duty 15 hours following eight consecutive hours off
duty. (2) Emergency conditions. In the event of a traffic accident, medical
emergency, or disaster, a driver may complete his/her run without being in violation
of the provisions of these regulations, if such run reasonably could have been
completed absent the emergency. (3) Relief Point. Bus drivers (other than school
bus and school pupil activity bus drivers) in urban and suburban service may
exceed their regulated hours in order to reach a regularly scheduled relief point,
providing the additional time does not exceed one hour. (c) Driver-salesperson. The
provisions of Section 1212.5(b) shall not apply to any driver-salesperson whose
total driving time does not exceed 40 hours in any period of seven consecutive
days. (d) Oilfield operations. (1) In the instance of drivers of commercial motor
vehicles used exclusively in the transportation of oilfield equipment, including the
stringing and picking up of pipe used in pipelines, and servicing of the field
operations of the natural gas and oil industry, any period of eight consecutive days
may end with the beginning of any off-duty period of 24 or more successive hours.
(2) In the case of specially trained drivers of motor vehicles which are specially
constructed to service oil wells, on-duty time shall not include waiting time at a
natural gas or oil well site; provided, that all such time shall be fully and accurately
accounted for in records to be maintained by the motor carrier. Such records shall
be made available upon request of any authorized employee of the department. (e)
100 air-mile radius driver. A driver is exempt from the requirements of Section 1213
if: (1) The driver operates within a 100 air-mile radius of the normal work reporting
location; (2) The driver, except a driver salesperson, returns to the work reporting
location and is released from work within 12 consecutive hours; (3) The driver of a
school bus, school pupil activity bus, youth bus, or farm labor vehicle returns to the
work reporting location and is released from work within 16 consecutive hours;(4) At
least eight consecutive hours off duty separate each 12 hours on duty; (5) The
interstate driver does not exceed ten hours maximum driving time following eight
consecutive hours off duty; and (6) The motor carrier that employs the driver
maintains and retains for a period of six months accurate and true time records
showing: (A) The time the driver reports for duty each day; (B) The total number of
hours the driver is on duty each day; (C) The time the driver is released from duty
each day; and (D) The total time for the preceding seven days in accordance with
Section 1213(k)(2) for drivers used for the first time or intermittently. (7) The
permanent record produced by a time-recording device such as a "tachograph"
(Figure 1) may be used as a driver's record for any tour of duty for an intrastate
driver that does not exceed 15 consecutive hours or the 100 air-mile radius,
provided the intrastate bus driver does not exceed ten hours and the intrastate truck
driver does not exceed 12 hours maximum driving time following eight consecutive
hours off duty, and the driver enters: (A) The time the driver reports for duty each
day; (B) The previous day's time of going off duty; and (C) The data required by
Section 1213(e). (f) Retail store deliveries. The provisions of Section 1212.5(a) and
(b) shall not apply with respect to drivers of commercial motor vehicles engaged
solely in making local deliveries from retail stores and/or retail catalog businesses to
the ultimate consumer, when driving solely within a 100 air-mile radius of the
driver's work-reporting location, during the period from December 10 to December
25, both inclusive, of each year. (g) Sleeper berths. (1) Drivers using sleeper berth
equipment constructed and equipped in compliance with Section 1265 or who are
off duty at a natural gas or oil well location, may accumulate the required eight
consecutive hours off duty, as required by Section 1212.5, resting in a sleeper berth
in two separate periods totaling eight hours, neither period to be less than two
hours, or resting while off duty in other sleeping accommodations at a natural gas or
oil well location. (2) When two sleeper berth periods are used to accumulate the
required eight consecutive hours off duty as permitted in this section, all driving time
accumulated between the first and second sleeper berth periods shall be subtracted
from the ten or 12 hours, as applicable, of driving time that the driver may drive in
the new tour of duty that commences following the second sleeper berth period, and
all on-duty and driving time between the first and second sleeper berth periods shall
count toward the new 15-hour on-duty limit. (h) Travel time. When a driver at the
direction of the motor carrier is traveling, but not driving or assuming any other
responsibility to the carrier, such time shall be counted as on-duty time unless the
driver is afforded at least eight consecutive hours off duty when arriving at
destination, in which case he/she shall be considered off duty for the entire period.
(i) Utility service vehicles. An intrastate driver employed by an electrical corporation,
as defined in Section 218 of the Public Utilities Code, a gas corporation, as defined
in Section 222 of that code, a telephone corporation, as defined in Section 234 of
that code, a water corporation, as defined in Section 241 of that code, or a public
water district, as defined in Section 20200 of the Water Code: (1) May be permitted
or required to drive more than the number of hours specified in Section 1212.5
while operating a public utility or public water district vehicle during the emergency
restoration of service and related operations. (2) Upon termination of the
emergency and release of a driver from duty, the total on-duty hours accumulated
by the driver during the most recent eight consecutive days shall be considered
reset to zero upon the driver's completion of an off-duty period of 24 or more
consecutive hours. (j) Fire fighters. For drivers of vehicles owned and operated by
any forestry or fire department of any public agency or fire department organized as
provided in the Health and Safety Code: (1) Section 1212.5 does not apply while
involved in emergency and related operations. (2) Upon termination of the
emergency and release of a driver from duty, the total on duty hours accumulated
by the driver during the most recent eight consecutive days shall be considered
reset to zero upon the driver's completion of an off-duty period of 24 or more
consecutive hours. (k) Farm products. (1) A driver when transporting farm products
from the field to the first point of processing or packing, shall not drive for any period
after having been on duty 16 hours or more following eight consecutive hours off
duty and shall not drive for any period after having been on duty for 112 hours in
any consecutive eight-day period, except that a driver transporting special situation
farm products from the field to the first point of processing or packing, or
transporting livestock from pasture to pasture, may be permitted, during one period
of not more than 28 consecutive days or a combination of two periods totaling not
more than 28 days in a calendar year, to drive for not more than 12 hours during
any workday of not more than 16 hours. A driver who thereby exceeds the driving
time limits specified in Section 1212.5(b)(2) shall maintain a driver's record of duty
status, and shall keep a duplicate copy in his or her possession when driving a
vehicle subject to this chapter. These records shall be presented immediately upon
request by an authorized employee of the department, or any police officer or
deputy sheriff. (2) Upon the request of the Director of Food and Agriculture, the
commissioner may, for good cause, temporarily waive the maximum on-duty time
limits applicable to any eight-day period when an emergency exists due to
inclement weather, natural disaster, or an adverse economic condition that
threatens to disrupt the orderly movement of farm products during harvest for the
duration of the emergency. For purposes of this paragraph, an emergency does not
include a strike or labor dispute. 1212.5. (a) General. Except as provided in
Sections 1212(b)(1), 1212(f), 1212(i), 1212(j), and 1212(k), no motor carrier shall
permit or require any driver used by it to drive nor shall any such driver drive: (1)
Interstate drivers, intrastate bus drivers, and drivers of tank vehicles with a capacity
of more than 500 gallons transporting flammable liquid: (A) More than ten hours
following eight consecutive hours off duty; or (B) For any period after having been
on duty 15 hours following eight consecutive hours off duty. (2) Intrastate Truck
Drivers: (A) More than 12 hours following eight consecutive hours off duty; or (B)
For any period after having been on duty 15 hours following eight consecutive hours
off duty. 3) School Bus, School Pupil Activity Bus, Youth Bus and Farm Labor
Vehicle Drivers: (A) More than ten hours within a work period; or (B) After 16
consecutive hours have elapsed since first reporting for duty. (b) Maximum On-Duty
Time. No motor carrier shall permit or require a driver, regardless of the number of
motor carriers using the driver's services, to drive nor shall any driver drive for any
period after: (1) Interstate drivers: (A) Having been on duty 60 hours in any seven
consecutive days if the employing motor carrier does not operate motor vehicles
every day of the week; or (B) Having been on duty 70 hours in any period of eight
consecutive days if the employing motor carrier operates motor vehicles every day
of the week. (2) Intrastate drivers, except as provided in Section 1212(k), having
been on duty for 80 hours in any consecutive eight days.
Disaster Service/Volunteer
Firefighting Leave
230.3; 230.4 - Emergency Leave. (a)No employer shall discharge or in any
manner discriminate against an employee for taking time off to perform emergency
duty as a volunteer firefighter, a reserve peace officer, or emergency rescue
personnel. (b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in the terms and
conditions of employment by his or her employer because the employee has taken
time off to perform emergency duty as a volunteer firefighter, a reserve peace
officer, or emergency rescue personnel shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of the
employer. Any employer who willfully refuses to rehire, promote, or otherwise
restore an employee or former employee who has been determined to be eligible
for rehiring or promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor. (c) Subdivisions (a) and (b) of this
section shall not apply to any public safety agency or provider of emergency
medical services when, as determined by the employer, the employee's absence
would hinder the availability of public safety or emergency medical services. (d) (1)
For purposes of this section, "volunteer firefighter" shall have the same meaning as
the term "volunteer" in subdivision (m) of Section 50952 of the Government Code.
(2) For purposes of this section, "emergency rescue personnel" means any person
who is an officer, employee, or member of a fire department or fire protection or
firefighting agency of the federal government, the State of California, a city, county,
city and county, district, or other public or municipal corporation or political
subdivision of this state, or of a sheriff's department, police department, or a private
fire department, whether that person is a volunteer or partly paid or fully paid, while
he or she is actually engaged in providing emergency services as defined by
subdivision (e) of Section 1799.107 of the Health and Safety Code. (a) An
employee who is a volunteer firefighter, and works for an employer employing 50 or
more employees, shall be permitted to take temporary leaves of absence, not to
exceed an aggregate of 14 days per calendar year, for the purpose of engaging in
fire or law enforcement training. (b) An employee who works for an employer
employing 50 or more employees who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in the terms and
conditions of employment by his or her employer because the employee has taken
time off to engage in fire or law enforcement training as provided in subdivision (a),
is entitled to reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. (c) An employee seeking reinstatement and
reimbursement pursuant to this section may file a complaint with the Division of
Labor Standards Enforcement in accordance with Section 98.7, and upon receipt of
such a complaint, the Labor Commissioner shall proceed as provided in that
section.
Domestic & Workplace
Violence/Crime
Victims/Concealed Weapons
527.8 California Code of Civil Procedure--(a) Any employer, whose employee
has suffered unlawful violence or a credible threat of violence from any individual,
that can reasonably be construed to be carried out or to have been carried out at
the workplace, may seek a temporary restraining order and an injunction on behalf
of the employee and, at the discretion of the court, any number of other employees
at the workplace, and, if appropriate, other employees at other workplaces of the
employer. (b) For the purposes of this section: (1) "Unlawful violence" is any assault
or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not
include lawful acts of self-defense or defense of others. (2) "Credible threat of
violence" is a knowing and willful statement or course of conduct that would place a
reasonable person in fear for his or her safety, or the safety of his or her immediate
family, and that serves no legitimate purpose. (3) "Course of conduct" is a pattern of
conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose, including following or stalking an employee to or
from the place of work; entering the workplace; following an employee during hours
of employment; making telephone calls to an employee; or sending correspondence
to an employee by any means, including, but not limited to, the use of the public or
private mails, interoffice mail, fax, or computer e-mail. (c) This section does not
permit a court to issue a temporary restraining order or injunction prohibiting speech
or other activities that are constitutionally protected, or otherwise protected by
Section 527.3 or any other provision of law. (d) For purposes of this section, the
terms "employer" and "employee" mean persons defined in Section 350 of the
Labor Code. "Employer" also includes a federal agency, the state, a state agency, a
city, county, or district, and a private, public, or quasi-public corporation, or any
public agency thereof or therein. "Employee" also includes the members of boards
of directors of private, public, and quasi-public corporations and elected and
appointed public officers. For purposes of this section only, "employee" also
includes a volunteer or independent contractor who performs services for the
employer at the employer's worksite. (e) Upon filing a petition for an injunction
under this section, the plaintiff may obtain a temporary restraining order in
accordance with subdivision (a) of Section 527, if the plaintiff also files an affidavit
that, to the satisfaction of the court, shows reasonable proof that an employee has
suffered unlawful violence or a credible threat of violence by the defendant, and that
great or irreparable harm would result to an employee. In the discretion of the court,
and on a showing of good cause, a temporary restraining order or injunction issued
under this section may include other named family or household members who
reside with the employee, or other persons employed at his or her workplace or
workplaces. A temporary restraining order granted under this section shall remain in
effect, at the court's discretion, for a period not to exceed 15 days, unless otherwise
modified or terminated by the court. (f) Within 15 days of the filing of the petition, a
hearing shall be held on the petition for the injunction. The defendant may file a
response that explains, excuses, justifies, or denies the alleged unlawful violence or
credible threats of violence or may file a cross-complaint under this section. At the
hearing, the judge shall receive any testimony that is relevant and may make an
independent inquiry. Moreover, if the defendant is a current employee of the entity
requesting the injunction, the judge shall receive evidence concerning the
employer's decision to retain, terminate, or otherwise discipline the defendant. If the
judge finds by clear and convincing evidence that the defendant engaged in
unlawful violence or made a credible threat of violence, an injunction shall issue
prohibiting further unlawful violence or threats of violence. An injunction issued
pursuant to this section shall have a duration of not more than three years. At any
time within the three months before the expiration of the injunction, the plaintiff may
apply for a renewal of the injunction by filing a new petition for an injunction under
this section. (g) This section does not preclude either party from representation by
private counsel or from appearing on his or her own behalf. (h) Upon filing of a
petition for an injunction under this section, the defendant shall be personally
served with a copy of the petition, temporary restraining order, if any, and notice of
hearing of the petition. Service shall be made at least five days before the hearing.
The court may, for good cause, on motion of the plaintiff or on its own motion,
shorten the time for service on the defendant. (i) (1) The court shall order the
plaintiff or the attorney for the plaintiff to deliver a copy of each temporary
restraining order or injunction, or modification or termination thereof, granted under
this section, by the close of the business day on which the order was granted, to the
law enforcement agencies within the court's discretion as are requested by the
plaintiff. Each appropriate law enforcement agency shall make available information
as to the existence and current status of these orders to law enforcement officers
responding to the scene of reported unlawful violence or a credible threat of
violence. (2) At the request of the plaintiff, an order issued under this section shall
be served on the defendant, regardless of whether the defendant has been taken
into custody, by any law enforcement officer who is present at the scene of reported
unlawful violence or a credible threat of violence involving the parties to the
proceedings. The plaintiff shall provide the officer with an endorsed copy of the
order and proof of service that the officer shall complete and send to the issuing
court. (3) Upon receiving information at the scene of an incident of
unlawful violence or a credible threat of violence that a protective order has been
issued under this section, or that a person who has been taken into custody is the
subject of an order, if the plaintiff or the protected person cannot produce an
endorsed copy of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order. (4) If the law enforcement officer determines that a
protective order has been issued, but not served, the officer shall immediately notify
the defendant of the terms of the order and obtain the defendant's address. The law
enforcement officer shall at that time also enforce the order, but may not arrest or
take the defendant into custody for acts in violation of the order that were committed
prior to the verbal notice of the terms and conditions of the order. The law
enforcement officer's verbal notice of the terms of the order shall constitute service
of the order and constitutes sufficient notice for the purposes of this section and for
the purposes of Section 273.6 and subdivision (g) of Section 12021 of the Penal
Code. The plaintiff shall mail an endorsed copy of the order to the defendant's
mailing address provided to the law enforcement officer within one business day of
the reported incident of unlawful violence or a credible threat of violence at which a
verbal notice of the terms of the order was provided by a law enforcement officer. (j)
(1) A person subject to a protective order issued under this section shall not own,
possess, purchase, receive, or attempt to purchase or receive a firearm while the
protective order is in effect. (2) The court shall order a person subject to a protective
order issued under this section to relinquish any firearms he or she owns or
possesses pursuant to Section 527.9. (3) Every person who owns, possesses,
purchases or receives, or attempts to purchase or receive a firearm while the
protective order is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code. (k) Any intentional disobedience of any temporary
restraining order or injunction granted under this section is punishable pursuant to
Section 273.6 of the Penal Code. (l) Nothing in this section may be construed as
expanding, diminishing, altering, or modifying the duty, if any, of an employer to
provide a safe workplace for employees and other persons. (m) The Judicial
Council shall develop forms, instructions, and rules for scheduling of hearings and
other procedures established pursuant to this section. The forms for the petition and
response shall be simple and concise, and their use by parties in actions brought
pursuant to this section shall be mandatory. (n) A temporary restraining order or
injunction relating to harassment or domestic violence issued by a court pursuant to
this section shall be issued on forms adopted by the Judicial Council of California
and that have been approved by the Department of Justice pursuant to subdivision
(i) of Section 6380 of the Family Code. However, the fact that an order issued by a
court pursuant to this section was not issued on forms adopted by the Judicial
Council and approved by the Department of Justice shall not, in and of itself, make
the order unenforceable. (o) Information on any temporary restraining order or
injunction relating to harassment or domestic violence issued by a court pursuant to
this section shall be transmitted to the Department of Justice in accordance with
subdivision (b) of Section 6380 of the Family Code. (p) There is no filing fee for a
petition that alleges that a person has inflicted or threatened violence against an
employee of the petitioner, or stalked the employee, or acted or spoken in any other
manner that has placed the employee in reasonable fear of violence, and that seeks
a protective or restraining order or injunction restraining stalking or future violence
or threats of violence, in any action brought pursuant to this section. No fee shall be
paid for a subpoena filed in connection with a petition alleging these acts. No fee
shall be paid for filing a response to a petition alleging these acts. (q) (1) Subject to
paragraph (4) of subdivision (b) of Section 6103.2 of the Government Code, there
shall be no fee for the service of process of a temporary restraining order or
injunction to be issued pursuant to this section if either of the following conditions
apply: (A) The temporary restraining order or injunction issued pursuant to this
section is based upon stalking, as prohibited by Section 646.9 of the Penal Code.
(B) The temporary restraining order or injunction issued pursuant to this section is
based upon a credible threat of violence. (2) The Judicial Council shall prepare and
develop application forms for applicants who wish to avail themselves of the
services described in this subdivision.
California Penal Code Section 12026 -- (a) Section 12025 shall not apply to or
affect any citizen of the United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not within the excepted
classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or
8103 of the Welfare and Institutions Code, who carries, either openly or concealed,
anywhere within the citizen' s or legal resident's place of residence, place of
business, or on private property owned or lawfully possessed by the citizen or legal
resident any pistol, revolver, or other firearm capable of being concealed upon the
person. (b) No permit or license to purchase, own, possess, keep, or carry, either
openly or concealed, shall be required of any citizen of the United States or legal
resident over the age of 18 years who resides or is temporarily within this state, and
who is not within the excepted classes prescribed by Section 12021 or 12021.1 of
this code or Section 8100 or 8103 of the Welfare and Institutions Code, to
purchase, own, possess, keep, or carry, either openly or concealed, a pistol,
revolver, or other firearm capable of being concealed upon the person within the
citizen's or legal resident's place of residence, place of business, or on private
property owned or lawfully possessed by the citizen or legal resident. (c) Nothing in
this section shall be construed as affecting the application of Section 12031.
California Penal Code Section 12026.1—(a) Section 12025 shall not be construed
to prohibit any citizen of the United States over the age of 18 years who resides or
is temporarily within this state, and who is not prohibited by state or federal law from
possessing, receiving, owning, or purchasing a firearm, from transporting or
carrying any pistol, revolver, or other firearm capable of being concealed upon the
person, provided that the following applies to the firearm: (1) The firearm is within a
motor vehicle and it is locked in the vehicle's trunk or in a locked container in the
vehicle other than the utility or glove compartment. (2) The firearm is carried by the
person directly to or from any motor vehicle for any lawful purpose and, while
carrying the firearm, the firearm is contained within a locked container. (b) The
provisions of this section do not prohibit or limit the otherwise lawful carrying or
transportation of any pistol, revolver, or other firearm capable of being concealed
upon the person in accordance with this chapter. (c) As used in this section, "locked
container" means a secure container which is fully enclosed and locked by a
padlock, key lock, combination lock, or similar locking device.
California Penal Code Section 11411-- a) Any person who hangs a noose,
knowing it to be a symbol representing a threat to life, on the property of another,
without authorization, for the purpose of terrorizing the owner or occupant of that
private property or in reckless disregard of the risk of terrorizing the owner or
occupant of that private property, or who hangs a noose, knowing it to be a symbol
representing a threat to life, on the property of a primary school, junior high school,
high school, college campus, public park, or place of employment, for the purpose
of terrorizing any person who attends or works at the school, park, or place of
employment, or who is otherwise associated with the school, park, or place of
employment, shall be punished by imprisonment in a county jail not to exceed one
year, or by a fine not to exceed five thousand dollars ($5,000), or by both the fine
and imprisonment for the first conviction or by imprisonment in a county jail not to
exceed one year, or by a fine not to exceed fifteen thousand dollars ($15,000), or by
both the fine and imprisonment for any subsequent conviction. (b) Any person who
places or displays a sign, mark, symbol, emblem, or other physical impression,
including, but not limited to, a Nazi swastika on the private property of another,
without authorization, for the purpose of terrorizing the owner or occupant of that
private property or in reckless disregard of the risk of terrorizing the owner or
occupant of that private property shall be punished by imprisonment in a county jail
not to exceed one year, by a fine not to exceed five thousand dollars ($5,000), or by
both the fine and imprisonment for the first conviction and by imprisonment in a
county jail not to exceed one year, by a fine not to exceed fifteen thousand dollars
($15,000), or by both the fine and imprisonment for any subsequent conviction. (c)
Any person who engages in a pattern of conduct for the purpose of terrorizing the
owner or occupant of private property or in reckless disregard of terrorizing the
owner or occupant of that private property, by placing or displaying a sign, mark,
symbol, emblem, or other physical impression, including, but not limited to, a Nazi
swastika, on the private property of another on two or more occasions, shall be
punished by imprisonment in the state prison for 16 months or 2 or 3 years, by a
fine not to exceed ten thousand dollars ($10,000), or by both the fine and
imprisonment, or by imprisonment in a county jail not to exceed one year, by a fine
not to exceed five thousand dollars ($5,000), or by both the fine and imprisonment.
A violation of this subdivision shall not constitute felonious conduct for purposes of
Section 186.22. (d) Any person who burns or desecrates a cross or other religious
symbol, knowing it to be a religious symbol, on the private property of another
without authorization for the purpose of terrorizing the owner or occupant of that
private property or in reckless disregard of the risk of terrorizing the owner or
occupant of that private property, or who burns, desecrates, or destroys a cross or
other religious symbol, knowing it to be a religious symbol, on the property of a
primary school, junior high school, or high school for the purpose of terrorizing any
person who attends or works at the school or who is otherwise associated with the
school, shall be punished by imprisonment in the state prison for 16 months or 2 or
3 years, by a fine of not more than ten thousand dollars ($10,000), or by both the
fine and imprisonment, or by imprisonment in a county jail not to exceed one year,
by a fine not to exceed five thousand dollars ($5,000), or by both the fine and
imprisonment for the first conviction and by imprisonment in the state prison for 16
months or 2 or 3 years, by a fine of not more than ten thousand dollars ($10,000),
or by both the fine and imprisonment, or by imprisonment in a county jail not to
exceed one year, by a fine not to exceed fifteen thousand dollars ($15,000), or by
both the fine and imprisonment for any subsequent conviction. (e) As used in this
section, "terrorize" means to cause a person of ordinary emotions and sensibilities
to fear for personal safety. (f) The provisions of this section are severable. If any
provision of this section or its application is held invalid, that invalidity shall not
affect other provisions or applications that can be given effect without the invalid
provision or application.
230. (a) An employer may not discharge or in any manner discriminate against an
employee for taking time off to serve as required by law on an inquest jury or trial
jury, if the employee, prior to taking the time off, gives reasonable notice to the
employer that he or she is required to serve. (b) An employer may not discharge or
in any manner discriminate or retaliate against an employee, including, but not
limited to, an employee who is a victim of a crime, for taking time off to appear in
court to comply with a subpoena or other court order as a witness in any judicial
proceeding. (c) An employer may not discharge or in any manner discriminate or
retaliate against an employee who is a victim of domestic violence or a victim of
sexual assault for taking time off from work to obtain or attempt to obtain any relief,
including, but not limited to, a temporary restraining order, restraining order, or other
injunctive relief, to help ensure the health, safety, or welfare of the victim or his or
her child. (d) (1) As a condition of taking time off for a purpose set forth in
subdivision (c), the employee shall give the employer reasonable advance notice of
the employee's intention to take time off, unless the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not take any action
against the employee if the employee, within a reasonable time after the absence,
provides a certification to the employer. Certification shall be sufficient in the form of
any of the following: (A) A police report indicating that the employee was a victim of
domestic violence or sexual assault. (B) A court order protecting or separating the
employee from the perpetrator of an act of domestic violence or sexual assault, or
other evidence from the court or prosecuting attorney that the employee has
appeared in court. (C) Documentation from a medical professional, domestic
violence advocate or advocate for victims of sexual assault, health care provider, or
counselor that the employee was undergoing treatment for physical or mental
injuries or abuse resulting in victimization from an act of domestic violence or sexual
assault. (3) To the extent allowed by law, the employer shall maintain the
confidentiality of any employee requesting leave under subdivision (c). (e) Any
employee who is discharged, threatened with discharge, demoted, suspended, or in
any other manner discriminated or retaliated against in the terms and conditions of
employment by his or her employer because the employee has taken time off for a
purpose set forth in subdivision (a), (b), or (c) shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of the
employer. Any employer who willfully refuses to rehire, promote, or otherwise
restore an employee or former employee who has been determined to be eligible
for rehiring or promotion by a grievance procedure or hearing authorized by law is
guilty of a misdemeanor. (f) (1) Any employee who is discharged, threatened with
discharge, demoted, suspended, or in any other manner discriminated or retaliated
against in the terms and conditions of employment by his or her employer because
the employee has exercised his or her rights as set forth in subdivision (a), (b), or
(c) may file a complaint with the Division of Labor Standards Enforcement of the
Department of Industrial Relations pursuant to Section 98.7. (2) Notwithstanding
any time limitation in Section 98.7, an employee filing a complaint with the division
based upon a violation of subdivision (c) shall have one year from the date of
occurrence of the violation to file his or her complaint. (g) An employee may use
vacation, personal leave, or compensatory time off that is otherwise available to the
employee under the applicable terms of employment, unless otherwise provided by
a collective bargaining agreement, for time taken off for a purpose specified in
subdivision (a), (b), or (c). The entitlement of any employee under this section shall
not be diminished by any collective bargaining agreement term or condition. (h) For
purposes of this section: (1) "Domestic violence" means any of the types of abuse
set forth in Section 6211 of the Family Code, as amended. (2) "Sexual assault"
means any of the crimes set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b,
266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the
Penal Code, as amended.
230.1. (a) In addition to the requirements and prohibitions imposed on employees
pursuant to Section 230, an employer with 25 or more employees may not
discharge or in any manner discriminate or retaliate against an employee who is a
victim of domestic violence or a victim of sexual assault for taking time off from work
to attend to any of the following: (1) To seek medical attention for injuries caused by
domestic violence or sexual assault. (2) To obtain services from a domestic
violence shelter, program, or rape crisis center as a result of domestic violence or
sexual assault. (3) To obtain psychological counseling related to an experience of
domestic violence or sexual assault. (4) To participate in safety planning and take
other actions to increase safety from future domestic violence or sexual assault,
including temporary or permanent relocation. (b) (1) As a condition of taking time off
for a purpose set forth in subdivision (a), the employee shall give the employer
reasonable advance notice of the employee's intention to take time off, unless the
advance notice is not feasible. (2) When an unscheduled absence occurs, the
employer may not take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the employer.
Certification shall be sufficient in the form of any of the following: (A) A police report
indicating that the employee was a victim of domestic violence or sexual assault.
(B) A court order protecting or separating the employee from the perpetrator of an
act of domestic violence or sexual assault, or other evidence from the court or
prosecuting attorney that the employee appeared in court. (C) Documentation from
a medical professional, domestic violence advocate or advocate for victims of
sexual assault, health care provider, or counselor that the employee was
undergoing treatment for physical or mental injuries or abuse resulting in
victimization from an act of domestic violence or sexual assault. (3) To the extent
allowed by law, employers shall maintain the confidentiality of any employee
requesting leave under subdivision (a). (c) Any employee who is discharged,
threatened with discharge, demoted, suspended, or in any other manner
discriminated or retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose set forth in
subdivision (a) is entitled to reinstatement and reimbursement for lost wages and
work benefits caused by the acts of the employer. Any employer who willfully
refuses to rehire, promote, or otherwise restore an employee or former employee
who has been determined to be eligible for rehiring or promotion by a grievance
procedure or hearing authorized by law is guilty of a misdemeanor. (d) (1) Any
employee who is discharged, threatened with discharge, demoted, suspended, or in
any other manner discriminated or retaliated against in the terms and conditions of
employment by his or her employer because the employee has exercised his or her
rights as set forth in subdivision (a) may file a complaint with the Division of Labor
Standards Enforcement of the Department of Industrial Relations pursuant to
Section 98.7. (2) Notwithstanding any time limitation in Section 98.7, an employee
filing a complaint with the division based upon a violation of subdivision (a) has one
year from the date of occurrence of the violation to file his or her complaint. (e) An
employee may use vacation, personal leave, or compensatory time off that is
otherwise available to the employee under the applicable terms of employment,
unless otherwise provided by a collective bargaining agreement, for time taken off
for a purpose specified in subdivision (a). The entitlement of any employee under
this section may not be diminished by any collective bargaining agreement term or
condition. (f) This section does not create a right for an employee to take unpaid
leave that exceeds the unpaid leave time allowed under, or is in addition to the
unpaid leave time permitted by, the federal Family and Medical Leave Act of 1993
(29 U.S.C. Sec. 2601 et seq.). (g) For purposes of this section: (1) "Domestic
violence" means any of the types of abuse set forth in Section 6211 of the Family
Code, as amended. (2) "Sexual assault" means any of the crimes set forth in
Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4,
285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code, as amended.
230.2. Crime victim's leave; Terms defined; Leave for crime victims, family
members, domestic partners to attend judicial proceedings; Notice requirements;
Use of other types of leave; Confidentiality; Employee protection from discharge or
discrimination based on leave; Time limits for claims — (a) As used in this section:
(1) "Immediate family member" means spouse, child, stepchild, brother,
stepbrother, sister, stepsister, mother, stepmother, father, or stepfather. (2)
"Registered domestic partner" means a domestic partner, as defined in Section 297
of the Family Code, and registered pursuant to Part 2 (commencing with Section
298) of Division 2.5 of the Family Code. (3) "Victim" means a person against whom
one of the following crimes has been committed: (A) A violent felony, as defined in
subdivision (c) of Section 667.5 of the Penal Code. (B) A serious felony, as defined
in subdivision (c) of Section 1192.7 of the Penal Code. (C) A felony provision of law
proscribing theft or embezzlement. (b) An employer, and any agent of an employer,
shall allow an employee who is a victim of a crime, an immediate family member of
a victim, a registered domestic partner of a victim, or the child of a registered
domestic partner of a victim to be absent from work in order to attend judicial
proceedings related to that crime. (c) Before an employee may be absent from work
pursuant to subdivision (b), the employee shall give the employer a copy of the
notice of each scheduled proceeding that is provided to the victim by the agency
responsible for providing notice, unless advance notice is not feasible. When
advance notice is not feasible or an unscheduled absence occurs, the employer
shall not take any action against the employee if the employee, within a reasonable
time after the absence, provides the employer with documentation evidencing the
judicial proceeding from any of the following entities: (1) The court or government
agency setting the hearing. (2) The district attorney or prosecuting attorney's office.
(3) The victim/witness office that is advocating on behalf of the victim. (d) An
employee who is absent from work pursuant to subdivision (b) may elect to use the
employee's accrued paid vacation time, personal leave time, sick leave time,
compensatory time off that is otherwise available to the employee, or unpaid leave
time, unless otherwise provided by a collective bargaining agreement, for an
absence pursuant to subdivision (b). The entitlement of any employee under this
section shall not be diminished by any collective bargaining agreement term or
condition. (e) An employer shall keep confidential any records regarding the
employee's absence from work pursuant to subdivision (b). (f) An employer may not
discharge from employment or in any manner discriminate against an employee, in
compensation or other terms, conditions, or privileges of employment, including, but
not limited to the loss of seniority or precedence, because the employee is absent
from work pursuant to this section. (g) (1) Any employee who is discharged,
threatened with discharge, demoted, suspended, or in any other manner
discriminated or retaliated against in the terms and conditions of employment by his
or her employer because the employee has exercised his or her rights as set forth
in subdivision (b) may file a complaint with the Division of Labor Standards
Enforcement of the Department of Industrial Relations pursuant to Section 98.7. (2)
Notwithstanding any time limitation in Section 98.7, an employee filing a complaint
with the division based upon a violation of subdivision (b) shall have one year from
the date of occurrence of the violation to file his or her complaint. (h) District
attorney and victim/witness offices are encouraged to make information regarding
this section available for distribution at their offices.
7574.14. This chapter shall not apply to the following: (a) An officer or employee of
the United States of America, or of this state or a political subdivision thereof, while
the officer or employee is engaged in the performance of his or her official duties,
including uniformed peace officers employed part time by a public agency pursuant
to a written agreement between a chief of police or sheriff and the public agency,
provided the part-time employment does not exceed 50 hours in any calendar
month. (b) A person engaged exclusively in the business of obtaining and furnishing
information as to the financial rating of persons. (c) A charitable philanthropic
society or association incorporated under the laws of this state that is organized and
duly maintained for the public good and not for private profit. (d) Patrol special
police officers appointed by the police commission of any city, county, or city and
county under the express terms of its charter who also under the express terms of
the charter (1) are subject to suspension or dismissal after a hearing on charges
duly filed with the commission after a fair and impartial trial, (2) must be not less
than 18 years of age nor more than 40 years of age, (3) must possess physical
qualifications prescribed by the commission, and (4) are designated by the police
commission as the owners of a certain beat or territory as may be fixed from time to
time by the police commission. (e) An attorney at law in performing his or her duties
as an attorney at law. (f) A collection agency or an employee thereof while acting
within the scope of his or her employment, while making an investigation incidental
to the business of the agency, including an investigation of the location of a debtor
or his or her property where the contract with an assignor creditor is for the
collection of claims owed or due or asserted to be owed or due or the equivalent
thereof. (g) Admitted insurers and agents and insurance brokers licensed by the
state, performing duties in connection with insurance transacted by them. (h) Any
bank subject to the jurisdiction of the Commissioner of Financial Institutions of the
State of California under Division 1 (commencing with Section 99) of the Financial
Code or the Comptroller of Currency of the United States. (i) A person engaged
solely in the business of securing information about persons or property from public
records. (j) A peace officer of this state or a political subdivision thereof while the
peace officer is employed by a private employer to engage in off-duty employment
in accordance with Section 1126 of the Government Code. However, nothing herein
shall exempt such a peace officer who either contracts for his or her services or the
services of others as a private patrol operator or contracts for his or her services as
or is employed as an armed private security officer. For purposes of this
subdivision, "armed security officer" means an individual who carries or uses a
firearm in the course and scope of that contract or employment. (k) A retired peace
officer of the state or political subdivision thereof when the retired peace officer is
employed by a private employer in employment approved by the chief law
enforcement officer of the jurisdiction where the employment takes place, provided
that the retired officer is in a uniform of a public law enforcement agency, has
registered with the bureau on a form approved by the director, and has met any
training requirements or their equivalent as established for security personnel under
Section 7583.5. This officer may not carry an unloaded and exposed handgun
unless he or she is exempted under the provisions of Article 2 (commencing with
Section 26361) of Chapter 6 of Division 5 of Title 4 of Part 6 of the Penal Code, and
may not carry a loaded or concealed firearm unless he or she is exempted under
the provisions of Sections 25450 to 25475, inclusive, of the Penal Code or Sections
25900 to 25910, inclusive, of the Penal Code or has met the requirements set forth
in subdivision (d) of Section 26030 of the Penal Code. However, nothing herein
shall exempt the retired peace officer who contracts for his or her services or the
services of others as a private patrol operator. (l) A licensed insurance adjuster in
performing his or her duties within the scope of his or her license as an insurance
adjuster. (m) Any savings association subject to the jurisdiction of the
Commissioner of Financial Institutions or the Office of Thrift Supervision. (n) Any
secured creditor engaged in the repossession of the creditor's collateral and any
lessor engaged in the repossession of leased property in which it claims an interest.
(o) A peace officer in his or her official police uniform acting in accordance with
subdivisions (c) and (d) of Section 70 of the Penal Code. (p) An unarmed,
uniformed security person employed exclusively and regularly by a motion picture
studio facility employer who does not provide contract security services for other
entities or persons in connection with the affairs of that employer only and where
there exists an employer-employee relationship if that person at no time carries or
uses any deadly weapon, as defined in subdivision (a), in the performance of his or
her duties, which may include, but are not limited to, the following business
purposes: (1) The screening and monitoring access of employees of the same
employer. (2) The screening and monitoring access of prearranged and
preauthorized invited guests. (3) The screening and monitoring of vendors and
suppliers. (4) Patrolling the private property facilities for the safety and welfare of all
who have been legitimately authorized to have access to the facility. (q) An armored
contract carrier operating armored vehicles pursuant to the authority of the
Department of the California Highway Patrol or the Public Utilities Commission, or
an armored vehicle guard employed by an armored contract carrier.
7582.2. This chapter does not apply to the following: (a) A person who does not
meet the requirements to be a proprietary private security officer, as defined in
Section 7574.1, and is employed exclusively and regularly by any employer who
does not provide contract security services for other entities or persons, in
connection with the affairs of the employer only and where there exists an
employer-employee relationship if that person at no time carries or uses any deadly
weapon in the performance of his or her duties. For purposes of this subdivision,
"deadly weapon" is defined to include any instrument or weapon of the kind
commonly known as a blackjack, slung shot, billy, sand club, sandbag, metal
knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a
blade longer than five inches, any razor with an unguarded blade and any metal
pipe or bar used or intended to be used as a club. (b) An officer or employee of the
United States of America, or of this state or a political subdivision thereof, while the
officer or employee is engaged in the performance of his or her official duties,
including uniformed peace officers employed part time by a public agency pursuant
to a written agreement between a chief of police or sheriff and the public agency,
provided the part-time employment does not exceed 50 hours in any calendar
month. (c) A person engaged exclusively in the business of obtaining and furnishing
information as to the financial rating of persons. (d) A charitable philanthropic
society or association duly incorporated under the laws of this state that is
organized and maintained for the public good and not for private profit. (e) Patrol
special police officers appointed by the police commission of any city, county, or city
and county under the express terms of its charter who also under the express terms
of the charter (1) are subject to suspension or dismissal after a hearing on charges
duly filed with the commission after a fair and impartial trial, (2) must be not less
than 18 years of age nor more than 40 years of age, (3) must possess physical
qualifications prescribed by the commission, and (4) are designated by the police
commission as the owners of a certain beat or territory as may be fixed from time to
time by the police commission. (f) An attorney at law in performing his or her duties
as an attorney at law. (g) A collection agency or an employee thereof while acting
within the scope of his or her employment, while making an investigation incidental
to the business of the agency, including an investigation of the location of a debtor
or his or her property where the contract with an assignor creditor is for the
collection of claims owed or due or asserted to be owed or due or the equivalent
thereof. (h) Admitted insurers and agents and insurance brokers licensed by the
state, performing duties in connection with insurance transacted by them. (i) Any
bank subject to the jurisdiction of the Commissioner of Financial Institutions of the
State of California under Division 1 (commencing with Section 99) of the Financial
Code or the Comptroller of Currency of the United States. (j) A person engaged
solely in the business of securing information about persons or property from public
records. (k) A peace officer of this state or a political subdivision thereof while the
peace officer is employed by a private employer to engage in off-duty employment
in accordance with Section 1126 of the Government Code. However, nothing herein
shall exempt a peace officer who either contracts for his or her services or the
services of others as a private patrol operator or contracts for his or her services as
or is employed as an armed private security officer. For purposes of this
subdivision, "armed security officer" means an individual who carries or uses a
firearm in the course and scope of that contract or employment. (l) A retired peace
officer of the state or political subdivision thereof when the retired peace officer is
employed by a private employer in employment approved by the chief law
enforcement officer of the jurisdiction where the employment takes place, provided
that the retired officer is in a uniform of a public law enforcement agency, has
registered with the bureau on a form approved by the director, and has met any
training requirements or their equivalent as established for security personnel under
Section 7583.5. This officer may not carry an unloaded and exposed handgun
unless he or she is exempted under the provisions of Article 2 (commencing with
Section 26361) of Chapter 6 of Division 5 of Title 4 of Part 6 of the Penal Code, and
may not carry a loaded or concealed firearm unless he or she is exempted under
the provisions of Article 2 (commencing with Section 25450) of Chapter 2 of
Division 5 of Title 4 of Part 6 of the Penal Code or Sections 25900 to 25910,
inclusive, of the Penal Code or has met the requirements set forth in subdivision (d)
of Section 26030 of the Penal Code. However, nothing herein shall exempt the
retired peace officer who contracts for his or her services or the services of others
as a private patrol operator. (m) A licensed insurance adjuster in performing his or
her duties within the scope of his or her license as an insurance adjuster. (n) Any
savings association subject to the jurisdiction of the Commissioner of Financial
Institutions or the Office of Thrift Supervision. (o) Any secured creditor engaged in
the repossession of the creditor's collateral and any lessor engaged in the
repossession of leased property in which it claims an interest. (p) A peace officer in
his or her official police uniform acting in accordance with subdivisions (c) and (d) of
Section 70 of the Penal Code. (q) An unarmed, uniformed security person
employed exclusively and regularly by a motion picture studio facility employer who
does not provide contract security services for other entities or persons in
connection with the affairs of that employer only and where there exists an
employer-employee relationship if that person at no time carries or uses any deadly
weapon, as defined in subdivision (a), in the performance of his or her duties, which
may include, but are not limited to, the following business purposes: (1) The
screening and monitoring access of employees of the same employer. (2) The
screening and monitoring access of prearranged and preauthorized invited guests.
(3) The screening and monitoring of vendors and suppliers. (4) Patrolling the private
property facilities for the safety and welfare of all who have been legitimately
authorized to have access to the facility. (r) The changes made to this section by
the act adding this subdivision during the 2005-06 Regular Session of the
Legislature shall apply as follows: (1) On and after July 1, 2006, to a person hired
as a security officer on and after January 1, 2006. (2) On and after January 1, 2007,
to a person hired as a security officer before January 1, 2006.
626.9. (a) This section shall be known, and may be cited, as the Gun-Free School
Zone Act of 1995. (b) Any person who possesses a firearm in a place that the
person knows, or reasonably should know, is a school zone, as defined in
paragraph (1) of subdivision (e), unless it is with the written permission of the school
district superintendent, his or her designee, or equivalent school authority, shall be
punished as specified in subdivision (f). (c) Subdivision (b) does not apply to the
possession of a firearm under any of the following circumstances: (1) Within a place
of residence or place of business or on private property, if the place of residence,
place of business, or private property is not part of the school grounds and the
possession of the firearm is otherwise lawful. (2) When the firearm is an unloaded
pistol, revolver, or other firearm capable of being concealed on the person and is in
a locked container or within the locked trunk of a motor vehicle. This section does
not prohibit or limit the otherwise lawful transportation of any other firearm, other
than a pistol, revolver, or other firearm capable of being concealed on the person, in
accordance with state law. (3) When the person possessing the firearm reasonably
believes that he or she is in grave danger because of circumstances forming the
basis of a current restraining order issued by a court against another person or
persons who has or have been found to pose a threat to his or her life or safety.
This subdivision may not apply when the circumstances involve a mutual restraining
order issued pursuant to Division 10 (commencing with Section 6200) of the Family
Code absent a factual finding of a specific threat to the person's life or safety. Upon
a trial for violating subdivision (b), the trier of a fact shall determine whether the
defendant was acting out of a reasonable belief that he or she was in grave danger.
(4) When the person is exempt from the prohibition against carrying a concealed
firearm pursuant to Section 25615, 25625, 25630, or 25645. (d) Except as provided
in subdivision (b), it shall be unlawful for any person, with reckless disregard for the
safety of another, to discharge, or attempt to discharge, a firearm in a school zone,
as defined in paragraph (1) of subdivision (e). The prohibition contained in this
subdivision does not apply to the discharge of a firearm to the extent that the
conditions of paragraph (1) of subdivision (c) are satisfied. (e) As used in this
section, the following definitions shall apply: (1) "School zone" means an area in, or
on the grounds of, a public or private school providing instruction in kindergarten or
grades 1 to 12, inclusive, or within a distance of 1,000 feet from the grounds of the
public or private school. (2) "Firearm" has the same meaning as that term is given in
subdivisions (a) to (d), inclusive, of Section 16520. (3) "Locked container" has the
same meaning as that term is given in Section 16850. (4) "Concealed firearm" has
the same meaning as that term is given in Sections 25400 and 25610. (f) (1) Any
person who violates subdivision (b) by possessing a firearm in, or on the grounds
of, a public or private school providing instruction in kindergarten or grades 1 to 12,
inclusive, shall be punished by imprisonment in the state prison for two, three, or
five years. (2) Any person who violates subdivision (b) by possessing a firearm
within a distance of 1,000 feet from the grounds of a public or private school
providing instruction in kindergarten or grades 1 to 12, inclusive, shall be punished
as follows: (A) By imprisonment in the state prison for two, three, or five years, if
any of the following circumstances apply: (i) If the person previously has been
convicted of any felony, or of any crime made punishable by any provision listed in
Section 16580. (ii) If the person is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section
29800) or Chapter 3 (commencing with Section 29900) of Division 9 of Title 4 of
Part 6 of this code or Section 8100 or 8103 of the Welfare and Institutions Code. (iii)
If the firearm is any pistol, revolver, or other firearm capable of being concealed
upon the person and the offense is punished as a felony pursuant to Section 25400.
(B) By imprisonment in a county jail for not more than one year or by imprisonment
in the state prison for two, three, or five years, in all cases other than those
specified in subparagraph (A). (3) Any person who violates subdivision (d) shall be
punished by imprisonment in the state prison for three, five, or seven years. (g) (1)
Every person convicted under this section for a misdemeanor violation of
subdivision (b) who has been convicted previously of a misdemeanor offense
enumerated in Section 23515 shall be punished by imprisonment in a county jail for
not less than three months, or if probation is granted or if the execution or
imposition of sentence is suspended, it shall be a condition thereof that he or she
be imprisoned in a county jail for not less than three months. (2) Every person
convicted under this section of a felony violation of subdivision (b) or (d) who has
been convicted previously of a misdemeanor offense enumerated in Section 23515,
if probation is granted or if the execution of sentence is suspended, it shall be a
condition thereof that he or she be imprisoned in a county jail for not less than three
months. (3) Every person convicted under this section for a felony violation of
subdivision (b) or (d) who has been convicted previously of any felony, or of any
crime made punishable by any provision listed in Section 16580, if probation is
granted or if the execution or imposition of sentence is suspended, it shall be a
condition thereof that he or she be imprisoned in a county jail for not less than three
months. (4) The court shall apply the three-month minimum sentence specified in
this subdivision, except in unusual cases where the interests of justice would best
be served by granting probation or suspending the execution or imposition of
sentence without the minimum imprisonment required in this subdivision or by
granting probation or suspending the execution or imposition of sentence with
conditions other than those set forth in this subdivision, in which case the court shall
specify on the record and shall enter on the minutes the circumstances indicating
that the interests of justice would best be served by this disposition. (h)
Notwithstanding Section 25605, any person who brings or possesses a loaded
firearm upon the grounds of a campus of, or buildings owned or operated for
student housing, teaching, research, or administration by, a public or private
university or college, that are contiguous or are clearly marked university property,
unless it is with the written permission of the university or college president, his or
her designee, or equivalent university or college authority, shall be punished by
imprisonment in the state prison for two, three, or four years. Notwithstanding
subdivision (k), a university or college shall post a prominent notice at primary
entrances on noncontiguous property stating that firearms are prohibited on that
property pursuant to this subdivision. (i) Notwithstanding Section 25605, any person
who brings or possesses a firearm upon the grounds of a campus of, or buildings
owned or operated for student housing, teaching, research, or administration by, a
public or private university or college, that are contiguous or are clearly marked
university property, unless it is with the written permission of the university or
college president, his or her designee, or equivalent university or college authority,
shall be punished by imprisonment in the state prison for one, two, or three years.
Notwithstanding subdivision (k), a university or college shall post a prominent notice
at primary entrances on noncontiguous property stating that firearms are prohibited
on that property pursuant to this subdivision. (j) For purposes of this section, a
firearm shall be deemed to be loaded when there is an unexpended cartridge or
shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or
attached in any manner to, the firearm, including, but not limited to, in the firing
chamber, magazine, or clip thereof attached to the firearm. A muzzle-loader firearm
shall be deemed to be loaded when it is capped or primed and has a powder
charge and ball or shot in the barrel or cylinder. (k) This section does not require
that notice be posted regarding the proscribed conduct. (l) This section does not
apply to a duly appointed peace officer as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, a full-time paid peace officer of another state or the
federal government who is carrying out official duties while in California, any person
summoned by any of these officers to assist in making arrests or preserving the
peace while he or she is actually engaged in assisting the officer, a member of the
military forces of this state or of the United States who is engaged in the
performance of his or her duties, a person holding a valid license to carry the
firearm pursuant to Chapter 4 (commencing with Section 26150) of Division 5 of
Title 4 of Part 6, or an armored vehicle guard, engaged in the performance of his or
her duties, as defined in subdivision (e) of Section 7521 of the Business and
Professions Code. (m) (1) This section does not apply to a security guard
authorized to carry a loaded firearm pursuant to Article 4 (commencing with Section
26000) of Chapter 3 of Division 5 of Title 4 of Part 6. (2) This section does not apply
to a security guard authorized to openly carry an unloaded handgun pursuant to
Chapter 6 (commencing with Section 26350) of Division 5 of Title 4 of Part 6. (n)
This section does not apply to an existing shooting range at a public or private
school or university or college campus. (o) This section does not apply to an
honorably retired peace officer authorized to carry a concealed or loaded firearm
pursuant to any of the following: (1) Article 2 (commencing with Section 25450) of
Chapter 2 of Division 5 of Title 4 of Part 6. (2) Section 25650. (3) Sections 25900 to
25910, inclusive. (4) Section 26020. (p) This section does not apply to an honorably
retired peace officer authorized to openly carry an unloaded handgun pursuant to
Section 26361.
16520. (a) As used in this part, "firearm" means any device, designed to be used as
a weapon, from which is expelled through a barrel, a projectile by the force of any
explosion or other form of combustion. (b) As used in the following provisions,
"firearm" includes the frame or receiver of the weapon: (1) Section 16550. (2)
Section 16730. (3) Section 16960. (4) Section 16990. (5) Section 17070.
(6) Section 17310. (7) Sections 26500 to 26588, inclusive. (8) Sections 26600 to
27140, inclusive. (9) Sections 27400 to 28000, inclusive. (10) Section 28100. (11)
Sections 28400 to 28415, inclusive. (12) Sections 29010 to 29150, inclusive. (13)
Sections 29610 to 29750, inclusive. (14) Sections 29800 to 29905, inclusive. (15)
Sections 30150 to 30165, inclusive. (16) Section 31615. (17) Sections 31705 to
31830, inclusive. (18) Sections 34355 to 34370, inclusive. (19) Sections 8100,
8101, and 8103 of the Welfare and Institutions Code. (c) As used in the following
provisions, "firearm" also includes any rocket, rocket propelled projectile launcher,
or similar device containing any explosive or incendiary material whether or not the
device is designed for emergency or distress signaling purposes: (1) Section 16750.
(2) Subdivision (b) of Section 16840. (3) Section 25400. (4) Sections 25850 to
26025, inclusive. (5) Subdivisions (a), (b), and (c) of Section 26030. (6) Sections
26035 to 26055, inclusive. (d) As used in the following provisions, "firearm" does
not include an unloaded antique firearm: (1) Subdivisions (a) and (c) of Section
16730. (2) Section 16550. (3) Section 16960. (4) Section 17310. (5) Chapter 6
(commencing with Section 26350) of Division 5 of Title 4. (6) Sections 26500 to
26588, inclusive. (7) Sections 26700 to 26915, inclusive. (8) Section 27510. (9)
Section 27530. (10) Section 27540. (11) Section 27545. (12) Sections 27555 to
27570, inclusive. (13) Sections 29010 to 29150, inclusive. (e) As used in Sections
34005 and 34010, "firearm" does not include a destructive device. (f) As used in
Sections 17280 and 24680, "firearm" has the same meaning as in Section 922 of
Title 18 of the United States Code. (g) As used in Sections 29010 to 29150,
inclusive, "firearm" includes the unfinished frame or receiver of a weapon that can
be readily converted to the functional condition of a finished frame or receiver.
17040. As used in Chapter 6 (commencing with Section 26350) of Division 5 of Title
4, "public place" has the same meaning as in Section 25850. SEC. 6. Section
17295 is added to the Penal Code, to read: 17295. For purposes of Chapter 6
(commencing with Section 26350) of Division 5 of Title 4, a handgun shall be
deemed "unloaded" if it is not "loaded" within the meaning of subdivision (b) of
Section 16840.
17510. (a) Any person who does any of the following acts while engaged in
picketing, or other informational activities in a public place relating to a concerted
refusal to work, is guilty of a misdemeanor: (1) Carries concealed upon the person,
or within any vehicle which is under the person's control or direction, any pistol,
revolver, or other firearm capable of being concealed upon the person. (2) Carries a
loaded firearm upon the person or within any vehicle that is under the person's
control or direction. (3) Carries a deadly weapon. (4) Openly carries an unloaded
handgun upon the person outside of a vehicle. (b) This section shall not be
construed to authorize or ratify any picketing or other informational activities not
otherwise authorized by law. (c) The following provisions shall not be construed to
authorize any conduct described in paragraph (1) of subdivision (a): (1) Article 2
(commencing with Section 25450) of Chapter 2 of Division 5 of Title 4. (2) Sections
25615 to 25655, inclusive. (d) Sections 25900 to 26020, inclusive, shall not be
construed to authorize any conduct described in paragraph (2) of subdivision (a).
(e) Article 2 (commencing with Section 26361) of Chapter 6 of Division 5 of Title 4
shall not be construed to authorize any conduct described in paragraph (4) of
subdivision (a).
25590. Section 25400 does not apply to, or affect, the transportation of a firearm by
a person if done directly between any of the places set forth below: (a) A place
where the person may carry that firearm pursuant to an exemption from the
prohibition set forth in subdivision (a) of Section 25400. (b) A place where that
person may carry that firearm pursuant to an exemption from the prohibition set
forth in subdivision (a) of Section 25850, or a place where the prohibition set forth in
subdivision (a) of Section 25850 does not apply. (c) A place where that person may
carry a firearm pursuant to an exemption from the prohibition set forth in subdivision
(a) of Section 26350, or a place where the prohibition set forth in subdivision (a) of
Section 26350 does not apply.
25595. This article does not prohibit or limit the otherwise lawful carrying or
transportation of any handgun in accordance with the provisions listed in Section
16580.
25605. (a) Section 25400 and Chapter 6 (commencing with Section 26350) of
Division 5 shall not apply to or affect any citizen of the United States or legal
resident over the age of 18 years who resides or is temporarily within this state, and
who is not within the excepted classes prescribed by Chapter 2 (commencing with
Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this
title, or Section 8100 or 8103 of the Welfare and Institutions Code, who carries,
either openly or concealed, anywhere within the citizen's or legal resident's place of
residence, place of business, or on private property owned or lawfully possessed by
the citizen or legal resident, any handgun . (b) No permit or license to purchase,
own, possess, keep, or carry, either openly or concealed, shall be required of any
citizen of the United States or legal resident over the age of 18 years who resides or
is temporarily within this state, and who is not within the excepted classes
prescribed by Chapter 2 (commencing with Section 29800) or Chapter 3
(commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103
of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry,
either openly or concealed, a handgun within the citizen's or legal resident's place
of residence, place of business, or on private property owned or lawfully possessed
by the citizen or legal resident. (c) Nothing in this section shall be construed as
affecting the application of Sections 25850 to 26055, inclusive.
26350. (a) A person is guilty of openly carrying an unloaded handgun when that
person carries upon his or her person an exposed and unloaded handgun outside a
vehicle while in or on any of the following: (1) A public place or public street in an
incorporated city or city and county. (2) A public street in a prohibited area of an
unincorporated area of a county or city and county. (3) A public place in a prohibited
area of a county or city and county. (b) (1) Except as specified in paragraph (2), a
violation of this section is a misdemeanor. (2) A violation of paragraph (1) of
subdivision (a), if the handgun and unexpended ammunition capable of being
discharged from that firearm are in the immediate possession of the person, and the
person is not listed as the registered owner of the firearm with the Department of
Justice pursuant to Section 11106, is punishable by imprisonment in a county jail
not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or
by both that fine and imprisonment. (c) (1) Nothing in this section shall preclude
prosecution under Chapter 2 (commencing with Section 29800) or Chapter 3
(commencing with Section 29900) of Division 9, Section 8100 or 8103 of the
Welfare and Institutions Code, or any other law with a penalty greater than is set
forth in this section. (2) The provisions of this section are cumulative and shall not
be construed as restricting the application of any other law. However, an act or
omission punishable in different ways by different provisions of law shall not be
punished under more than one provision. (d) Notwithstanding the fact that the term
"an unloaded handgun" is used in this section, each handgun shall constitute a
distinct and separate offense under this section.
26361. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by any peace officer or any honorably retired peace officer if that officer
may carry a concealed firearm pursuant to Article 2 (commencing with Section
25450) of Chapter 2, or a loaded firearm pursuant to Article 3 (commencing with
Section 25900) of Chapter 3.
26362. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by any person to the extent that person may carry a loaded firearm
pursuant to Article 4 (commencing with Section 26000) of Chapter 3.
26363. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun as merchandise by a person who is engaged in the business of
manufacturing, importing, wholesaling, repairing, or dealing in firearms and who is
licensed to engage in that business, or the authorized representative or authorized
agent of that person, while engaged in the lawful course of the business.
26364. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by a duly authorized military or civil organization, or the members thereof,
while parading or while rehearsing or practicing parading, when at the meeting
place of the organization.
26365. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by a member of any club or organization organized for the purpose of
practicing shooting at targets upon established target ranges, whether public or
private, while the members are using handguns upon the target ranges or incident
to the use of a handgun at that target range.
26366. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by a licensed hunter while engaged in hunting or while transporting that
handgun when going to or returning from that hunting expedition.
26367. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to transportation of a handgun by a person operating a licensed
common carrier, or by an authorized agent or employee thereof, when transported
in conformance with applicable federal law.
26368. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by a member of an organization chartered by the Congress of the United
States or a nonprofit mutual or public benefit corporation organized and recognized
as a nonprofit tax-exempt organization by the Internal Revenue Service while on
official parade duty or ceremonial occasions of that organization or while rehearsing
or practicing for official parade duty or ceremonial occasions.
26369. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun within a gun show conducted pursuant to Article 1 (commencing with
Section 27200) and Article 2 (commencing with Section 27300) of Chapter 3 of
Division 6.
26370. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun within a school zone, as defined in Section 626.9, with the written
permission of the school district superintendent, the superintendent's designee, or
equivalent school authority.
26371. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun when in accordance with the provisions of Section 171b.
26372. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by any person while engaged in the act of making or attempting to make a
lawful arrest.
26373. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to loaning, selling, or transferring that handgun in accordance with
Article 1 (commencing with Section 27500) of Chapter 4 of Division 6, or in
accordance with any of the exemptions from Section 27545, so long as that
handgun is possessed within private property and the possession and carrying is
with the permission of the owner or lessee of that private property. 26374. Section
26350 does not apply to, or affect, the open carrying of an unloaded handgun by a
person engaged in firearms-related activities, while on the premises of a fixed place
of business that is licensed to conduct and conducts, as a regular course of its
business, activities related to the sale, making, repair, transfer, pawn, or the use of
firearms, or related to firearms training.
26375. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by an authorized participant in, or an authorized employee or agent of a
supplier of firearms for, a motion picture, television or video production, or
entertainment event, when the participant lawfully uses the handgun as part of that
production or event, as part of rehearsing or practicing for participation in that
production or event, or while the participant or authorized employee or agent is at
that production or event, or rehearsal or practice for that production or event.
26376. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to obtaining an identification number or mark assigned for that
handgun from the Department of Justice pursuant to Section 23910.
26377. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun at any established target range, whether public or private, while the
person is using the handgun upon the target range.
26378. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by a person when that person is summoned by a peace officer to assist in
making arrests or preserving the peace, while the person is actually engaged in
assisting that officer.
26379. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to any of the following: (a) Complying with Section 27560 or
27565, as it pertains to that handgun. (b) Section 28000, as it pertains to that
handgun. (c) Section 27850 or 31725, as it pertains to that handgun. (d) Complying
with Section 27870 or 27875, as it pertains to that handgun. (e) Complying with
Section 27915, 27920, or 27925, as it pertains to that handgun.
26380. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to, and in the course and scope of, training of or by an individual
to become a sworn peace officer as part of a course of study approved by the
Commission on Peace Officer Standards and Training.
26381. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to, and in the course and scope of, training of or by an individual
to become licensed pursuant to Chapter 4 (commencing with Section 26150) as
part of a course of study necessary or authorized by the person authorized to issue
the license pursuant to that chapter.
26382. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun incident to and at the request of a sheriff or chief or other head of a
municipal police department.
26383. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun by a person when done within a place of business, a place of residence,
or on private property, if done with the permission of a person who, by virtue of
subdivision (a) of Section 25605, may carry openly an unloaded handgun within that
place of business, place of residence, or on that private property owned or lawfully
possessed by that person.
26384. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun if all of the following conditions are satisfied: (a) The open carrying occurs
at an auction or similar event of a nonprofit public benefit or mutual benefit
corporation, at which firearms are auctioned or otherwise sold to fund the activities
of that corporation or the local chapters of that corporation. (b) The unloaded
handgun is to be auctioned or otherwise sold for that nonprofit public benefit or
mutual benefit corporation. (c) The unloaded handgun is to be delivered by a
person licensed pursuant to, and operating in accordance with, Sections 26700 to
26925, inclusive.
26385. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun pursuant to paragraph (3) of subdivision (b) of Section 171c.
26386. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun pursuant to Section 171d.
26387. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun pursuant to subparagraph (F) of paragraph (1) subdivision (c) of Section
171.7.
26388. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun on publicly owned land, if the possession and use of a handgun is
specifically permitted by the managing agency of the land and the person carrying
that handgun is listed as the registered owner of that handgun with the Department
of Justice pursuant to Section 11106.
26389. Section 26350 does not apply to, or affect, the open carrying of an unloaded
handgun if all of the following apply: (a) The handgun is carried on a public street or
in a public place in a prohibited area of an unincorporated area of a county or city
and county that is less than 200,000 persons according to the most recent federal
decennial census. (b) The person carrying that handgun is listed as the registered
owner of that handgun with the Department of Justice pursuant to Section 11106.
(c) The area where that person is carrying that handgun is not a public street or a
public place in a prohibited area of an unincorporated territory of a county where
that unincorporated territory is completely bordered by an incorporated city.
29805. Except as provided in Section 29855 or subdivision (a) of Section 29800,
any person who has been convicted of a misdemeanor violation of Section 71, 76,
136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d,
186.28, 240, 241, 242, 243, 243.4, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6,
417, 417.6, 422, 626.9, 646.9, or 830.95, subdivision (a) of former Section 12100,
as that section read at any time from when it was enacted by Section 3 of Chapter
1386 of the Statutes of 1988 to when it was repealed by Section 18 of Chapter 23 of
the Statutes of 1994, Section 17500, paragraph (1), (2) or (3) of subdivision (a) of
Section 17510, Section 25300, 25800, 30315, or 32625, subdivision (b) or (d) of
Section 26100, or Section 27510, or Section 8100, 8101, or 8103 of the Welfare
and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and
1001.5 of the Welfare and Institutions Code, or of the conduct punished in
subdivision (c) of Section 27590, and who, within 10 years of the conviction, owns,
purchases, receives, or has in possession or under custody or control, any firearm
is guilty of a public offense, which shall be punishable by imprisonment in a county
jail not exceeding one year or in the state prison, by a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine. The court, on
forms prescribed by the Department of Justice, shall notify the department of
persons subject to this section. However, the prohibition in this section may be
reduced, eliminated, or conditioned as provided in Section 29855 or 29860.
Drug Free Workplace/Drug
Testing
8355. Drug-Free Workplace; Certification.—Every person or organization
awarded a contract or a grant for the procurement of any property or services from
any state agency shall certify to the contracting or granting agency that it will
provide a drug-free workplace by doing all of the following: (a) Publishing a
statement notifying employees that the unlawful manufacture, distribution,
dispensation, possession, or use of a controlled substance is prohibited in the
person's or organization's workplace and specifying the actions that will be taken
against employees for violations of the prohibition. (b) Establishing a drug-free
awareness program to inform employees about all of the following: (1) The dangers
of drug abuse in the workplace. (2) The person's or organization's policy of
maintaining a drug-free workplace. (3) Any available drug counseling,
rehabilitation, and employee assistance programs. (4) The penalties that may be
imposed upon employees for drug abuse violations. (c) Requiring that each
employee engaged in the performance of the contract or grant be given a copy of
the statement required by subdivision (a) and that, as a condition of employment on
the contract or grant, the employee agrees to abide by the terms of the statement.
8356. False certification or violation of certification; Termination of
grant/contract and/or suspension of payments; Cancellation list. --(a) Each
contract or grant awarded by a state agency may be subject to suspension of
payments under the contract or grant or termination of the contract or grant, or both,
and the contractor or grantee thereunder may be subject to debarment, in
accordance with the requirements of this article, if the contracting or granting
agency determines that any of the following has occurred: (1) The contractor or
grantee has made a false certification under Section 8355. (2) The contractor or
grantee violates the certification by failing to carry out the requirements of
subdivisions (a) to (c), inclusive, of Section 8355. (b) The Department of General
Services shall establish and maintain a list of individuals and organizations whose
contracts or grants have been canceled due to failure to comply with this chapter.
This list shall be updated monthly and published each month. No state agency shall
award a contract or grant to a person or organization on the published list until that
person or organization has complied with this chapter. (c) Every state agency that
directly awards grants without review by the Department of General Services shall
immediately notify the department of any individual or organization that has an
award canceled on the basis of violation of this chapter.
34520. [Motor carriers and drivers to comply with federal regulations
regarding drug and alcohol use, transportation and testing requirements].—
(a) Motor carriers and drivers shall comply with the controlled substances and
alcohol use, transportation, and testing requirements of the United States Secretary
of Transportation as set forth in Part 382 (commencing with Section 382.101) of,
and Sections 392.5(a)(1) and 392.5(a)(3) of, Title 49 of the Code of Federal
Regulations. (b) (1) Every motor carrier shall make available for inspection, upon
the request of an authorized employee of the department, copies of all results and
other records pertaining to controlled substances and alcohol use and testing
conducted pursuant to federal law, as specified in subdivision (a), including those
records contained in individual driver qualification files. (2) For the purposes of
complying with the return-to-duty alcohol or controlled substances test
requirements, or both, of Section 382.309 of Title 49 of the Code of Federal
Regulations and the followup alcohol or controlled substances test requirements, or
both, of Section 382.311 of that title, the department may use those test results to
monitor drivers who are motor carriers. (3) No evidence derived from a positive test
result in the possession of a motor carrier shall be admissible in a criminal
prosecution concerning unlawful possession, sale, or distribution of controlled
substances. (c) Any drug or alcohol testing consortium, as defined in Section
382.107 of Title 49 of the Code of Federal Regulations, shall mail a copy of all drug
and alcohol positive test result summaries to the department within three days of
the test. This requirement applies only to drug and alcohol positive tests of those
drivers employed by motor carriers who operate terminals within this state. (d) A
transit agency receiving federal financial assistance under Section 3, 9, or 18 of the
Federal Transit Act, or under Section 103 (e)(4) of Title 23 of the United States
Code, shall comply with the controlled substances and alcohol use and testing
requirements of the United States Secretary of Transportation as set forth in Part
655 (commencing with Section 655.1) of Title 49 of the Code of Federal
Regulations. (e) The owner-operator shall notify all other motor carriers with whom
he or she is under contract when the owner-operator has met the requirements of
subdivision (c) of Section 15242. Notwithstanding subdivision (i), a violation of this
subdivision is an infraction. (f) Except as provided in Section 382.301 of Title 49 of
the Code of Federal Regulations, an applicant for employment as a commercial
driver or an owner-operator seeking to provide transportation services and meeting
the requirements of subdivision (b) of Section 34624, may not be placed on duty by
a motor carrier until a preemployment test for controlled substances and alcohol
use meeting the requirements of the federal regulations referenced in subdivision
(a) have been completed and a negative test result has been reported. (g) An
applicant for employment as a commercial driver or an owner-operator, seeking to
provide transportation services and meeting the requirements of subdivision (b) of
Section 34624, may not be placed on duty by a motor carrier until the motor carrier
has completed a full investigation of the driver's employment history meeting the
requirements of the federal regulations cited under subdivision (a). Every motor
carrier, whether making or receiving inquiries concerning a driver's history, shall
document all activities it has taken to comply with this subdivision. (h) A motor
carrier that utilizes a preemployment screening service to review applications is in
compliance with the employer duties under subdivisions (e) and (f) if the
preemployment screening services that are provided satisfy the requirements of
state and federal law and the motor carrier abides by any findings that would, under
federal law, disqualify an applicant from operating a commercial vehicle. (i) It is a
misdemeanor punishable by imprisonment in the county jail for six months and a
fine not to exceed five thousand dollars ($5,000), or by both the imprisonment and
fine, for any person to willfully violate this section. As used in this subdivision,
"willfully" has the same meaning as defined in Section 7 of the Penal Code. (j) This
section does not apply to a peace officer, as defined in Section 830.1 or 830.2 of
the Penal Code, who is authorized to drive vehicles described in Section 34500 if
that peace officer is participating in a substance abuse detection program within the
scope of his or her employment.
34520.3. School transportation vehicles (other than a school bus, school pupil
activity bus or youth bus); School districts, county offices of education, and
drivers; Application of federal drug and alcohol testing requirements that
apply to school bus drivers.—(a) For the purposes of this section, a "school
transportation vehicle" is a vehicle that is not a school bus, school pupil activity bus,
or youth bus, and is used by a school district or county office of education for the
primary purpose of transporting children. (b) A school district or county office of
education that employs drivers to drive a school transportation vehicle, and the
driver of those vehicles, who are not otherwise required to participate in a testing
program of the United States Secretary of Transportation, shall participate in a
program that is consistent with the controlled substances and alcohol use and
testing requirements of the United States Secretary of Transportation that apply to
school bus drivers and are set forth in Part 382 (commencing with Section 382.101)
of, and Sections 392.5(a)(1) and (3) of, Title 49 of the Code of Federal Regulations.
(c) It is the intent of the Legislature that this section be implemented in a manner
that does not require a school district or county office of education to administer a
program for drivers of school transportation vehicles that imposes controlled
substance and alcohol use and testing requirements greater than those applicable
to school bus drivers under existing law.
34520.5. Paratransit drivers, drug and alcohol testing program.—(a) All
employers of drivers who operate paratransit vehicles, and the drivers of those
vehicles, who are not otherwise required to participate in a testing program of the
United States Secretary of Transportation, shall participate in a program consistent
with the controlled substances and alcohol use and testing requirements of the
United States Secretary of Transportation as set forth in Part 382 (commencing with
Section 382.101), Part 653 (commencing with Section 653.1), or Part 654
(commencing with Section 654.1) of Title 49 of the Code of Federal Regulations.
(b) Section 34520 is applicable to any controlled substances or alcohol testing
program undertaken under this section. (c) The employer of a paratransit vehicle
driver shall participate in the pull notice system defined in Section 1808.1.
34501.18. Motor carriers employing more than 20 full-time drivers;
Replacement of over half of drivers in a 30-day period and inspections as to
drug testing; Exceptions; Terms defined .—(a) Every motor carrier regularly
employing more than 20 full-time drivers shall report to the department whenever it
replaces more than half of its drivers within a 30-day period. Within 21 days of
receipt of that report, the department shall inspect the motor carrier to ensure that
the motor carrier is complying with all safety of operations requirements, including,
but not limited to, controlled substances testing and hours-of-service regulations.
The reporting requirement of this subdivision does not apply to a motor carrier who,
through normal seasonal fluctuations in the business operations of the carrier, or
through termination of a contract for transportation services, other than a collective
bargaining agreement, replaces drivers in one geographical location with drivers in
another geographical location. (b) For the purposes of subdivision (a), "employing"
means having an employer-employee relationship with a driver or contracting with
an owner-operator, as described in Section 34624, to provide transportation
services for more than 30 days within the previous year. (c) For the purposes of
subdivision (a), "full-time" means that the driver is on-duty with the motor carrier for
an average of 30 hours or more per week during the course of his or her
employment or contract with the motor carrier.
34623. Motor carriers, Enforcement; California Highway Patrol has exclusive
jurisdiction for regulation of safety of operation of motor carriers of
property.—(a) The Department of the California Highway Patrol has exclusive
jurisdiction for the regulation of safety of operation of motor carriers of property. (b)
The motor carrier permit of a motor carrier of property may be suspended for failure
to do any of the following: (1) Maintain any vehicle of the carrier in a safe operating
condition or to comply with this code or with applicable regulations contained in Title
13 of the California Code of Regulations, if that failure is either a consistent failure
or presents an imminent danger to public safety. (2) Enroll all drivers in the pull
notice system as required by Section 1808.1. (3) Submit any application or pay any
fee required by subdivision (e) or (h) of Section 34501.12 within the timeframes set
forth in that section. (c) The motor carrier permit of a motor carrier of property shall
be suspended for failure to either (1) comply with the requirements of federal law
described in subdivision (a) of Section 34520 of the Vehicle Code, or (2) make
copies of results and other records available as required by subdivision (b) of that
section. The suspension shall be as follows: (1) For a serious violation, which is a
willful failure to perform substance abuse testing in accordance with state or federal
law: (A) For a first offense, a mandatory five-day suspension. (B) For a second
offense within three years of a first offense, a mandatory three-month suspension.
(C) For a third offense within three years of a first offense, a mandatory one year
suspension. (2) For a nonserious violation, the time recommended to the
department by the Department of the California Highway Patrol. (3) For the
purposes of this subdivision, "willful failure" means any of the following: (A) An
intentional and uncorrected failure to have a controlled substances and alcohol
testing program in place. (B) An intentional and uncorrected failure to enroll an
employed driver into the controlled substances and alcohol testing program. (C) A
knowing use of a medically disqualified driver, including the failure to remove the
driver from safety-sensitive duties upon notification of the medical disqualification.
(D) An attempt to conceal legal deficiencies in the motor carrier's controlled
substances and alcohol testing program. (d) The department, pending a hearing in
the matter pursuant to subdivision (f), may suspend a carrier's permit. (e) (1) A
motor carrier whose motor carrier permit is suspended pursuant to subdivision (b)
may obtain a reinspection of its terminal and vehicles by the Department of the
California Highway Patrol by submitting a written request for reinstatement to the
department and paying a reinstatement fee as required by Section 34623.5. (2) A
motor carrier whose motor carrier permit is suspended for failure to submit any
application or to pay any fee required by Section 34501.12 shall present proof of
having submitted that application or have paid that fee to the Department of the
California Highway Patrol before applying for reinstatement of its motor carrier
permit. (3) The department shall deposit all reinstatement fees collected from motor
carriers of property pursuant to this section in the fund. Upon receipt of the fee, the
department shall forward a request to the Department of the California Highway
Patrol, which shall perform a reinspection within a reasonable time, or shall verify
receipt of the application or fee or both the application and fee. Following the term
of a suspension imposed under Section 34670, the department shall reinstate a
carrier's motor carrier permit suspended under subdivision (b) upon notification by
the Department of the California Highway Patrol that the carrier's safety compliance
has improved to the satisfaction of the Department of the California Highway Patrol,
or that the required application or fees have been received by the Department of the
California Highway Patrol, unless the permit is suspended for another reason or has
been revoked. (f) Whenever the department suspends the permit of any carrier
pursuant to subdivision (b), (c), or paragraph (3) of subdivision (i), the department
shall furnish the carrier with written notice of the suspension and shall provide for a
hearing within a reasonable time, not to exceed 21 days, after a written request is
filed with the department. At the hearing, the carrier shall show cause why the
suspension should not be continued. Following the hearing, the department may
terminate the suspension, continue the suspension in effect, or revoke the permit.
The department may revoke the permit of any carrier suspended pursuant to
subdivision (b) at any time that is 90 days or more after its suspension if the carrier
has not filed a written request for a hearing with the department or has failed to
submit a request for reinstatement pursuant to subdivision (e). (g) Notwithstanding
any other provision of this code, no hearing shall be provided when the suspension
of the motor carrier permit is based solely upon the failure of the motor carrier to
maintain satisfactory proof of financial responsibility as required by this code, or
failure of the motor carrier to submit an application or to pay fees required by
Section 34501.12. (h) A motor carrier of property may not operate a commercial
motor vehicle on any public highway in this state during any period its motor carrier
of property permit is suspended pursuant to this division. (i) (1) A motor carrier of
property whose motor carrier permit is suspended pursuant to this section or
Section 34505.6, which suspension is based wholly or in part on the failure of the
motor carrier to maintain any vehicle in safe operating condition, may not lease, or
otherwise allow, another motor carrier to operate the vehicles of the carrier subject
to the suspension, during the period of the suspension. (2) A motor carrier of
property may not knowingly lease, operate, dispatch, or otherwise utilize any
vehicle from a motor carrier of property whose motor carrier permit is suspended,
which suspension is based wholly or in part on the failure of the motor carrier to
maintain any vehicle in safe operating condition. (3) The department may
immediately suspend the motor carrier permit of any motor carrier that the
department determines to be in violation of paragraph (2).
34623.5. Suspension of permit & fees.— Notwithstanding any other provision of
this code, before a permit may be reissued after a suspension has been terminated,
there shall, in addition to any other fees required by this code, be paid to the
department a fee of one hundred fifty dollars ($150).
34624. Motor carriers, Owner-operators.—(a) The department shall establish a
classification of motor carrier of property known as owner-operators. (b) As used in
this section and in Sections 1808.1 and 34501.12, an owner-operator is a person
who meets all of the following requirements: (1) Holds a class A or class B driver's
license or a class C license with a hazardous materials endorsement. (2) Owns,
leases, or otherwise operates not more than one power unit and not more than
three towed vehicles. (3) Is required to obtain a permit as a motor carrier of
property by the department under this division. (c) (1) As used in this section,
"power unit" is a motor vehicle described in subdivision (a), (b), (g), (f), or (k) of
Section 34500, or a motortruck of two or more axles that is more than 10,000
pounds gross vehicle weight rating, but does not include those vehicles operated by
household goods carriers, as defined in Section 5109 of the Public Utilities Code or
persons providing transportation of passengers. A "towed vehicle" is a
nonmotorized vehicle described in subdivision (d), (e), (f), (g), or (k) of that section.
(2) As used in this section, subdivision (f) of Section 34500 includes only those
combinations where the gross vehicle weight rating of the towing vehicle exceeds
11,500 pounds, and subdivision (g) of Section 34500 includes only those vehicles
transporting hazardous materials for which the display of placards is required
pursuant to Section 27903, a license is required pursuant to Section 32000.5, or for
which a hazardous waste transporter registration is required pursuant to Section
25163 of the Health and Safety Code. (d) The department, upon suspending or
revoking the driving privilege of an owner-operator shall also suspend the owneroperator's motor carrier permit, unless the owner-operator, within 15 days, shows
good cause why the permit should not be suspended. (e) Every motor carrier who
is within the classification established by this section is responsible for notifying all
other motor carriers with whom he or she is under contract when the status of the
motor carrier changes so that he or she is no longer within the classification
established by this section. (f) This section shall not be construed to change the
definition of "employer," "employee," or "independent contractor" for any other
purpose.
Family/Parental/Adoption Leave
233 (a) Any employer who provides sick leave for employees shall permit an
employee to use in any calendar year the employee's accrued and available sick
leave entitlement, in an amount not less than the sick leave that would be accrued
during six months at the employee's then current rate of entitlement, to attend to an
illness of a child, parent, spouse, or domestic partner of the employee. All
conditions and restrictions placed by the employer upon the use by an employee of
sick leave also shall apply to the use by an employee of sick leave to attend to an
illness of his or her child, parent, spouse, or domestic partner. This section does not
extend the maximum period of leave to which an employee is entitled under Section
12945.2 of the Government Code or under the federal Family and Medical Leave
Act of 1993 (29 U.S.C. Sec. 2606 et seq.), regardless of whether the employee
receives sick leave compensation during that leave. (b) As used in this section: (1)
"Child" means a biological, foster, or adopted child, a stepchild, a legal ward, a child
of a domestic partner, or a child of a person standing in loco parentis. (2)
"Employer" means any person employing another under any appointment or
contract of hire and includes the state, political subdivisions of the state, and
municipalities. (3) "Parent" means a biological, foster, or adoptive parent, a
stepparent, or a legal guardian. (4) "Sick leave" means accrued increments of
compensated leave provided by an employer to an employee as a benefit of the
employment for use by the employee during an absence from the employment for
any of the following reasons: (A) The employee is physically or mentally unable to
perform his or her duties due to illness, injury, or a medical condition of the
employee. (B) The absence is for the purpose of obtaining professional diagnosis or
treatment for a medical condition of the employee. (C) The absence is for other
medical reasons of the employee, such as pregnancy or obtaining a physical
examination. "Sick leave" does not include any benefit provided under an employee
welfare benefit plan subject to the federal Employee Retirement Income Security
Act of 1974 (Public Law 93-406, as amended) and does not include any insurance
benefit, workers' compensation benefit, unemployment compensation disability
benefit, or benefit not payable from the employer's general assets. (c) No employer
shall deny an employee the right to use sick leave or discharge, threaten to
discharge, demote, suspend, or in any manner discriminate against an employee
for using, or attempting to exercise the right to use, sick leave to attend to an illness
of a child, parent, spouse, or domestic partner of the employee.
234 An employer absence control policy that counts sick leave taken pursuant to
Section 233 as an absence that may lead to or result in discipline, discharge,
demotion, or suspension is a per se violation of Section 233. An employee working
under this policy is entitled to appropriate legal and equitable relief pursuant to
Section 233.
12945. In addition to the provisions that govern pregnancy, childbirth, or a related
medical condition in Sections 12926 and 12940, it shall be an unlawful employment
practice, unless based upon a bona fide occupational qualification: (a) (1) For an
employer to refuse to allow a female employee disabled by pregnancy, childbirth, or
a related medical condition to take a leave for a reasonable period of time not to
exceed four months and thereafter return to work, as set forth in the commission’s
regulations. The employee shall be entitled to utilize any accrued vacation leave
during this period of time. Reasonable period of time means that period during
which the female employee is disabled on account of pregnancy, childbirth, or a
related medical condition. An employer may require an employee who plans to take
a leave pursuant to this subdivision to give the employer reasonable notice of the
date the leave shall commence and the estimated duration of the leave. (2) (A) For
an employer to refuse to maintain and pay for coverage for an eligible female
employee who takes leave pursuant to paragraph (1) under a group health plan, as
defined in Section 5000(b)(1) of the Internal Revenue Code of 1986, for the duration
of the leave, not to exceed four months over the course of a 12-month period,
commencing on the date the leave taken under paragraph (1) begins, at the level
and under the conditions that coverage would have been provided if the employee
had continued in employment continuously for the duration of the leave. Nothing in
this paragraph shall preclude an employer from maintaining and paying for
coverage under a group health plan beyond four months. An employer may recover
from the employee the premium that the employer paid as required under this
subdivision for maintaining coverage for the employee under the group health plan
if both of the following conditions occur: (i) The employee fails to return from leave
after the period of leave to which the employee is entitled has expired. (ii) The
employee’s failure to return from leave is for a reason other than one of the
following: (I) The employee taking leave under the Moore-Brown-Roberti Family
Rights Act (Sections 12945.2 and 19702.3
of the Government Code). (II) The continuation, recurrence, or onset of a health
condition that entitles the employee to leave under paragraph (1) or other
circumstance beyond the control of the employee. (B) If the employer is a state
agency, the collective bargaining agreement shall govern with respect to the
continued receipt by an eligible female employee of the health care coverage
specified in subparagraph (A). (b) (1) For an employer to refuse to provide
reasonable accommodation for an employee for a condition related to pregnancy,
childbirth, or a related medical condition, if she so requests, with the advice of her
health care provider. (2) For an employer who has a policy, practice, or collective
bargaining agreement requiring or authorizing the transfer of temporarily disabled
employees to less strenuous or hazardous positions for the duration of the disability
to refuse to transfer a pregnant female employee who so requests.(3) For an
employer to refuse to temporarily transfer a pregnant female employee to a less
strenuous or hazardous position for the duration of her pregnancy if she so
requests, with the advice of her physician, where that transfer can be reasonably
accommodated. However, no employer shall be required by this section to create
additional employment that the employer would not otherwise have created, nor
shall the employer be required to discharge any employee, transfer any employee
with more seniority, or promote any employee who is not qualified to perform the
job. (c) This section shall not be construed to affect any other provision of law
relating to sex discrimination or pregnancy, or in any way to diminish the coverage
of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth
under any other provision of this part, including subdivision (a) of Section 12940.
12945.2 (a) In addition to the provisions that govern pregnancy, childbirth, or a
related medical condition in Sections 12926 and 12940, each of the following shall
be an unlawful employment practice, unless based upon a bona fide occupational
qualification: (1) For an employer to refuse to allow a female employee disabled by
pregnancy, childbirth, or a related medical condition to take a leave for a reasonable
period of time not to exceed four months and thereafter return to work, as set forth
in the commission’s regulations. The employee shall be entitled to utilize any
accrued vacation leave during this period of time. Reasonable period of time means
that period during which the female employee is disabled on account of pregnancy,
childbirth, or a related medical condition. An employer may require an employee
who plans to take a leave pursuant to this subdivision to give the employer
reasonable notice of the date the leave shall commence and the estimated duration
of the leave. (2) (A) For an employer to refuse to maintain and pay for coverage for
an eligible female employee who takes leave pursuant to paragraph (1) under a
group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code of
1986, for the duration of the leave, not to exceed four months over the course of a
12-month period, commencing on the date the leave taken under paragraph (1)
begins, at the level and under the conditions that coverage would have been
provided if the employee had continued in employment continuously for the duration
of the leave. Nothing in this paragraph shall preclude an employer from maintaining
and paying for coverage under a group health plan beyond four months. An
employer may recover from the employee the premium that the employer paid as
required under this subdivision for maintaining coverage for the employee under the
group health plan if both of the following conditions occur: (i) The employee fails to
return from leave after the period of leave to which the employee is entitled has
expired. (ii) The employee’s failure to return from leave is for a reason other than
one of the following: (I) The employee taking leave under the Moore-Brown-Roberti
Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code). (II)
The continuation, recurrence, or onset of a health condition that entitles the
employee to leave under paragraph (1) or other circumstance beyond the control of
the employee. (B) If the employer is a state agency, the collective bargaining
agreement shall govern with respect to the continued receipt by an eligible female
employee of the health care coverage specified in subparagraph (A). (3) (A) For an
employer to refuse to provide reasonable accommodation for an employee for a
condition related to pregnancy, childbirth, or a related medical condition, if she so
requests, with the advice of her health care provider. (B) For an employer who has
a policy, practice, or collective bargaining agreement requiring or authorizing the
transfer of temporarily disabled employees to less strenuous or hazardous positions
for the duration of the disability to refuse to transfer a pregnant female employee
who so requests. (C) For an employer to refuse to temporarily transfer a pregnant
female employee to a less strenuous or hazardous position for the duration of her
pregnancy if she so requests, with the advice of her physician, where that transfer
can be reasonably accommodated. However, no employer shall be required by this
section to create additional employment that the employer would not otherwise
have created, nor shall the employer be required to discharge any employee,
transfer any employee with more seniority, or promote any employee who is not
qualified to perform the job. (4) For an employer to interfere with, restrain, or deny
the exercise of, or the attempt to exercise, any right provided under this section. (b)
This section shall not be construed to affect any other provision of law relating to
sex discrimination or pregnancy, or in any way to diminish the coverage of
pregnancy, childbirth, or a medical condition related to pregnancy or childbirth
under any other provision of this part, including subdivision (a) of Section 12940.
SEC. 2. Section 1.5 of this bill incorporates amendments to Section 12945 of the
Government Code proposed by both this bill and Assembly Bill 592. It shall only
become operative if (1) both bills are enacted and become effective on or before
January 1, 2012, (2) each bill amends Section 12945 of the Government Code, and
(3) this bill is enacted after Assembly Bill 592, in which case Section 1 of this bill
shall not become operative.
[Note: California Family Rights Act is located in California's Government Code.]
Holiday Leave
6700 Gov't The holidays in this state are: (a) Every Sunday. (b) January 1st. (c)
The third Monday in January, known as "Dr. Martin Luther King, Jr. Day." (d)
February 12th, known as "Lincoln Day." (e) The third Monday in February. (f) March
31st known as "Cesar Chavez Day." (g) The last Monday in May. (h) July 4th. (i)
The first Monday in September. (j) September 9th, known as "Admission Day." (k)
The second Monday in October, known as "Columbus Day." (l) November 11th,
known as "Veterans Day." (m) December 25th. (n) Good Friday from 12 noon until 3
p.m. (o) Every day appointed by the President or Governor for a public fast,
thanksgiving, or holiday. Except for the Thursday in November appointed as
Thanksgiving Day, this subdivision and subdivisions (c) and (f) shall not apply to a
city, county, or district unless made applicable by charter, or by ordinance or
resolution of the governing body thereof. If the provisions of this section are in
conflict with the provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the
memorandum of understanding shall be controlling without further legislative action,
except that if those provisions of a memorandum of understanding require the
expenditure of funds, the provisions shall not become effective unless approved by
the Legislature in the annual Budget Act.
6702 Gov't Every Saturday from noon to midnight is a holiday as regards the
transaction of business in the public offices of the state and political divisions where
laws, ordinances, or charters provide that public offices shall be closed on holidays.
This section shall not be construed to prevent or invalidate the issuance, filing,
service, execution, or recording of any legal process or written instrument during
such period. Public offices of a city shall be closed on those holidays enumerated in
Section 6700 unless otherwise provided by charter, ordinance or resolution.
19854 Gov't (a) Every employee, upon completion of six months of his or her initial
probationary period in state service, shall be entitled to one personal holiday per
fiscal year. The personal holiday shall be credited to each full-time employee on the
first day of July. No employee shall lose a personal holiday credit because of the
change from calendar to fiscal year crediting. The department head or designee
may require the employee to provide five working days' advance notice before a
personal holiday is taken, and may deny use subject to operational needs. The
department may provide by rule for the granting of this holiday for employees. (b) If
the provisions of this section are in conflict with the provisions of a memorandum of
understanding reached pursuant to Section 3517.5, the memorandum of
understanding shall be controlling without further legislative action, except that if the
provisions of a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the Legislature in the
annual Budget Act.
19853 Gov't [EDITORS' NOTE: SEE BELOW FOR ADDITIONAL VERSION OF
SECTION ADDED BY STATS. 2009-2010, 3rd Ex. Sess. c. 4, § 7.] Section
operative until Feb. 20, 2009. See, also, section operative Feb. 20, 2009. (a) Except
as provided in subdivision (c), all employees shall be entitled to the following
holidays: January 1, the third Monday in January, February 12, the third Monday in
February, March 31, the last Monday in May, July 4, the first Monday in September,
the second Monday in October, November 11, the day after Thanksgiving,
December 25, the day chosen by an employee pursuant to Section 19854, and
every day appointed by the Governor of this state for a public fast, thanksgiving, or
holiday. If a day listed in this subdivision falls on a Sunday, the following Monday
shall be deemed to be the holiday in lieu of the day observed. If November 11th
falls upon a Saturday, the preceding Friday shall be deemed to be the holiday in
lieu of the day observed. Any employee who may be required to work on any of the
holidays included in this subdivision, and who does work on any of these holidays,
shall be entitled to be paid compensation or given compensating time off for that
work in accordance with their classification's assigned workweek group. For the
purpose of computing the number of hours worked, time when an employee is
excused from work because of holidays, sick leave, vacation, annual leave, or
compensating time off, shall be considered as time worked by the employee. (b) If
the provisions of subdivision (a) are in conflict with the provisions of a memorandum
of understanding reached pursuant to Section 3517.5, the memorandum of
understanding shall be controlling without further legislative action, except that if the
provisions of a memorandum of understanding require the expenditure of funds, the
provisions shall not become effective unless approved by the Legislature in the
annual Budget Act. (c) Any employee, who is either excluded from the definition of
state employee in subdivision (c) of Section 3513, or is a nonelected
officer or employee of the executive branch of government who is not a member of
the civil service, shall be entitled to the following holidays, with pay, in addition to
any official state holiday appointed by the Governor: (1) January 1, the third
Monday in January, February 12, the third Monday in February, March 31, the last
Monday in May, July 4, the first Monday in September, the second Monday in
October, November 11, Thanksgiving Day, the day after Thanksgiving, December
25, and any personal holiday chosen pursuant to Section 19854. The department
head or designee may require an employee to provide five working days' advance
notice before a personal holiday is taken, and may deny use subject to operational
needs. (2) When November 11 falls on a Saturday, employees shall be entitled to
the preceding Friday as a holiday with pay. (3) When a holiday, other than a
personal holiday or November 11, falls on a Saturday, an employee shall,
regardless of whether he or she works on the holiday, only accrue an additional
eight hours of personal holiday credit per fiscal year for the holiday. The holiday
credit shall be accrued on the actual date of the holiday and shall be used within the
same fiscal year. (4) When a holiday other than a personal holiday falls on Sunday,
employees shall be entitled to the following Monday as a holiday with pay. (5)
Employees who are required to work on a holiday shall be entitled to pay or
compensating time off for this work in accordance with their classification's assigned
workweek group. (6) Less than full-time employees shall receive holidays in
accordance with Department of Personnel Administration rules. (d)(1) Any
employee, as defined in subdivision (c) of Section 3513, may elect to receive eight
hours of holiday credit for the fourth Friday in September, known as "Native
American Day," in lieu of receiving eight hours of personal holiday credit in
accordance with Section 19854. (2) It is not the intent of the Legislature, by the
amendments to this subdivision that add this paragraph, to increase the personal
holiday credit that an employee receives pursuant to Section 19854. (e) This
section shall become effective with regard to the March 31 holiday only when the
Department of Personnel Administration notifies the Legislature that the language
contained in this section has been agreed to by all exclusive representatives, and
the Department of Personnel Administration authorizes this holiday to be applied to
employees designated as excluded from the Ralph C. Dills Act (Chapter 10.3
(commencing with Section 3512), Division 4, Title 1), and the necessary statutes
are amended to reflect this change. (f) This section shall become inoperative on
February 1, 2009, or the date that the act amending this section in the 2009-10
Third Extraordinary Session takes effect, whichever is later, and, as of January 1,
2010, is repealed, unless a later enacted statute, that becomes operative on or
before January 1, 2010, deletes or extends the dates on which it becomes
inoperative and is repealed.
19854 Personal Holidays.—(a) Every employee, upon completion of six months of
his or her initial probationary period in state service, shall be entitled to one
personal holiday per fiscal year. The personal holiday shall be credited to each fulltime employee on the first day of July. No employee shall lose a personal holiday
credit because of the change from calendar to fiscal year crediting. The department
head or designee may require the employee to provide five working days' advance
notice before a personal holiday is taken, and may deny use subject to operational
needs. The department may provide by rule for the granting of this holiday for
employees. (b) If the provisions of this section are in conflict with the provisions of
a memorandum of understanding reached pursuant to Section 3517.5, the
memorandum of understanding shall be controlling without further legislative action,
except that if the provisions of a memorandum of understanding require the
expenditure of funds, the provisions shall not become effective unless approved by
the Legislature in the annual Budget Act.
Editor’s Note: The following are legally observed holidays for public employers: (1)
every Sunday; (2) January 1st; (3) Dr. Martin Luther King, Jr. Day; (4) Lincoln Day;
(5) 3rd Monday in February; (6) Cesar Chavez Day; (7) last Monday in May; (8) July
4; (9) 1st Monday in September; (10) Admission Day; (11) Columbus Day; (12)
Veterans' Day; (13) December 25; (14) Good Friday from 12 noon until 3 p.m.; and
(15) every day appointed by the President or Governor for a public
fast/thanksgiving/holiday. Martin Luther King, Jr. Day, Cesar Chavez Day and days
appointed for public fast/thanksgiving/holiday (except for Thanksgiving Day in
November) do not apply to cities, counties or districts, unless made applicable by
charter, ordinance or resolution. City public offices are closed on the holidays
enumerated above unless otherwise provided by charter, ordinance or resolution.
Also, every Saturday from noon to midnight is a holiday for state and political
divisions with laws, ordinances or charters that provide that public offices are closed
on holidays. Upon completion of 6 months of initial state service, state employees
are entitled to 1 personal holiday per fiscal year.
Hours of Work
510 (b) Time spent commuting to and from the first place at which an employee's
presence is required by the employer shall not be considered to be a part of a day's
work, when the employee commutes in a vehicle that is owned, leased, or
subsidized by the employer and is used for the purpose of ridesharing, as defined in
Section 522 of the Vehicle Code.
513 If an employer approves a written request of an employee to make up work
time that is or would be lost as a result of a personal obligation of the employee, the
hours of that makeup work time, if performed in the same workweek in which the
work time was lost, may not be counted towards computing the total number of
hours worked in a day for purposes of the overtime requirements specified in
Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40
hours in one workweek. An employee shall provide a signed written request for
each occasion that the employee makes a request to make up work time pursuant
to this section. An employer is prohibited from encouraging or otherwise soliciting
an employee to request the employer's approval to take personal time off and make
up the work hours within the same week pursuant to this section.
Wage Order No. 14-2001 (A) Each workday an employee is required to report for
work and does report, but is not put to work or is furnished less than half said
employee's usual or scheduled day's work, the employee shall be paid for half the
usual or scheduled day's work, but in no event for less than two (2) hours nor more
than four (4) hours, at the employee's regular rate of pay, which shall not be less
than the minimum wage. (B) If an employee is required to report for work a second
time in any one workday and is furnished less than two hours of work on the second
reporting, said employee shall be paid for two (2) hours at the employee's regular
rate of pay, which shall not be less than the minimum wage. (C) The foregoing
reporting time pay provisions are not applicable when: (1) Operations cannot
commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time.
Immigration/Employment of
Aliens
9601.5. Verification of legal status; Authorization to work--Each state or local
government agency or community action agency, or any private organization
contracting with a state or local government agency, that provides employment
services, including, but not limited to, job training, retraining, or placement, shall
verify an individual's legal status or authorization to work prior to providing services
to that individual in accordance with procedures established under federal law. For
purposes of this section, proof of legal status or authorization to work includes, but
is not limited to, a social security card, immigration visa, birth certificate, passport,
or other valid document providing evidence of legal residence or authorization to
work in the United States. This section shall not apply to employment services
offered by school districts under secondary school and adult education programs.
9601.7. Posting of notices--(a) Each state or local government agency or
community action agency, or any private organization contracting with a state or
local government agency, that enters into an agreement with the Department to
provide employment services including, but not limited to, job training, retraining, or
placement, shall post in a prominent location in the workplace, a notice stating that
only citizens or those persons legally authorized to work in the United States will be
permitted to use the agency's or organization's employment services that are
funded by the federal or state government. (b) The notice shall read: NOTICE:
Attention All Job Seekers The Immigration and Reform Control Act of 1986 (IRCA)
requires that all employers verify the identity and employment authorization of all
individuals hired after November 6, 1986. An employer is required to examine
documents provided by the job seeker establishing identity and authorization for
employment in the United States. In addition, it is a violation of both state and
federal law to discriminate against job seekers on the basis of ancestry, race, or
national origin. This agency provides employment services funded by the federal or
state government that are available only to individuals who are United States
citizens or who are legally authorized to work in the United States.
2811. This article shall be known and may be cited as the Employment Acceleration
Act of 2011.
2812. Except as required by federal law, or as a condition of receiving federal
funds, neither the state nor a city, county, city and county, or special district shall
require an employer to use an electronic employment verification system, including
under the following circumstances: (a) As a condition of receiving a government
contract. (b) As a condition of applying for or maintaining a business license. (c) As
a penalty for violating licensing or other similar laws.
2813. For purposes of this article, the following terms have the following meanings:
(a) “Electronic employment verification system” means an employment verification
system that allows employers to electronically verify workers’ employment
authorization with the federal government. This includes the Basic Pilot Program,
enacted by Section 404 of Public Law 104-208 and renamed in 2007 as the EVerify Program, and other pilot programs for electronic employment eligibility
confirmation. The term “electronic employment verification system” does not include
the I-9 Employment Eligibility Verification form or any other employment eligibility
systems that are required by federal law. (b) “Employer” means an employer other
than the state, or a city, county, city and county, or special district.
Jury/Witness Duty Leave
230. Jury and Witness duty leave. (a) An employer may not discharge or in any
manner discriminate against an employee for taking time off to serve as required by
law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives
reasonable notice to the employer that he or she is required to serve. (b) An
employer may not discharge or in any manner discriminate or retaliate against an
employee, including, but not limited to, an employee who is a victim of a crime, for
taking time off to appear in court to comply with a subpoena or other court order as
a witness in any judicial proceeding. (c) An employer may not discharge or in any
manner discriminate or retaliate against an employee who is a victim of domestic
violence or a victim of sexual assault for taking time off from work to obtain or
attempt to obtain any relief, including, but not limited to, a temporary restraining
order, restraining order, or other injunctive relief, to help ensure the health, safety,
or welfare of the victim or his or her child. (d) (1) As a condition of taking time off for
a purpose set forth in subdivision (c), the employee shall give the employer
reasonable advance notice of the employee's intention to take time off, unless the
advance notice is not feasible. (2) When an unscheduled absence occurs, the
employer shall not take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the employer.
Certification shall be sufficient in the form of any of the following: (A) A police report
indicating that the employee was a victim of domestic violence or sexual assault.
(B) A court order protecting or separating the employee from the perpetrator of an
act of domestic violence or sexual assault, or other evidence from the court or
prosecuting attorney that the employee has appeared in court. (C) Documentation
from a medical professional, domestic violence advocate or advocate for victims of
sexual assault, health care provider, or counselor that the employee was
undergoing treatment for physical or mental injuries or abuse resulting in
victimization from an act of domestic violence or sexual assault.
Mandatory Harassment
Prevention Training
12950.1. Sexual harassment training and education (a) By January 1, 2006, an
employer having 50 or more employees shall provide at least two hours of
classroom or other effective interactive training and education regarding sexual
harassment to all supervisory employees in California who are employed as of July
1, 2005, and to all new supervisory employees within six months of their
assumption of a supervisory position. Any employer who has provided this training
and education to a supervisory employee after January 1, 2003, is not required to
provide training and education by the January 1, 2006, deadline. After January 1,
2006, each employer covered by this section shall provide sexual harassment
training and education to each supervisory employee in California once every two
years. The training and education required by this section shall include information
and practical guidance regarding the federal and state statutory provisions
concerning the prohibition against and the prevention and correction of sexual
harassment and the remedies available to victims of sexual harassment in
employment. The training and education shall also include practical examples
aimed at instructing supervisors in the prevention of harassment, discrimination,
and retaliation, and shall be presented by trainers or educators with knowledge and
expertise in the prevention of harassment, discrimination, and retaliation. (b) The
state shall incorporate the training required by subdivision (a) into the 80 hours of
training provided to all new supervisory employees pursuant to subdivision (b) of
Section 19995.4, using existing resources. (c) For purposes of this section only,
"employer" means any person regularly employing 50 or more persons or regularly
receiving the services of 50 or more persons providing services pursuant to a
contract, or any person acting as an agent of an employer, directly or indirectly, the
state, or any political or civil subdivision of the state, and cities. (d) Notwithstanding
subdivisions (j) and (k) of Section 12940, a claim that the training and education
required by this section did not reach a particular individual or individuals shall not
in and of itself result in the liability of any employer to any present or former
employee or applicant in any action alleging sexual harassment. Conversely, an
employer's compliance with this section does not insulate the employer from liability
for sexual harassment of any current or former employee or applicant. (e) If an
employer violates this section, the commission shall issue an order requiring the
employer to comply with these requirements. (f) The training and education required
by this section is intended to establish a minimum threshold and should not
discourage or relieve any employer from providing for longer, more frequent, or
more elaborate training and education regarding workplace harassment or other
forms of unlawful discrimination in order to meet its obligations to take all
reasonable steps necessary to prevent and correct harassment and discrimination.
7288.0. Sexual harassment education and training-- (a) Definitions. For
purposes of this section: (1) "Contractor" is a person performing services pursuant
to a contract to an employer, meeting the criteria specified by Government Code
section 12940, subdivision (j)(5), for each working day in 20 consecutive weeks in
the current calendar year or preceding calendar year. (2) "Effective interactive
training" includes any of the following: (A) "Classroom" training is in-person, trainerinstruction, whose content is created by a trainer and provided to a supervisor by a
trainer, in a setting removed from the supervisor's daily duties. (B) "E-learning"
training is individualized, interactive, computer-based training created by a trainer
and an instructional designer. An e-learning training shall provide a link or directions
on how to contact a trainer who shall be available to answer questions and to
provide guidance and assistance about the training within a reasonable period of
time after the supervisor asks the question, but no more than two business days
after the question is asked. (C) "Webinar" training is an internet-based seminar
whose content is created and taught by a trainer and transmitted over the internet
or intranet in real time. An employer utilizing a webinar for its supervisors must
document and demonstrate that each supervisor who was not physically present in
the same room as the trainer nonetheless attended the entire training and actively
participated with the training's interactive content, discussion questions,
hypothetical scenarios, quizzes or tests, and activities. The webinar must provide
the supervisors an opportunity to ask questions, to have them answered and
otherwise to seek guidance and assistance. (D) Other "effective interactive training"
and education includes the use of audio, video or computer technology in
conjunction with classroom, webinar and/or e-learning training. (E) For any of the
above training methods, the instruction shall include questions that assess learning,
skill-building activities that assess the supervisor's application and understanding of
content learned, and numerous hypothetical scenarios about harassment, each with
one or more discussion questions so that supervisors remain engaged in the
training. (3) "Employee" includes full time, part time, and temporary workers. (4)
"Employer" means any of the following: (A) any person engaged in any business or
enterprise in California, who employs 50 or more employees to perform services for
a wage or salary or contractors or any person acting as an agent of an employer,
directly or indirectly. (B) the state of California, counties, and any other political or
civil subdivision of the state and cities, regardless of the number of employees. For
the purposes of this section, governmental and quasi-governmental entities such as
boards, commissions, local agencies and special districts are considered "political
subdivisions of the state." (5) "Having 50 or more employees" means employing or
engaging fifty or more employees or contractors for each working day in any twenty
consecutive weeks in the current calendar year or preceding calendar year. There
is no requirement that the 50 employees or contractors work at the same location or
all work or reside in California. (6) "Instructional Designer" under this section is an
individual with expertise in current instructional best practices, and who develops
the training content based upon material provided by a trainer. (7) "New"
supervisory employees are employees promoted or hired to a supervisory position
after July 1, 2005. (8) "Supervisory employees" or "supervisors" under this section
are supervisors located in California, defined under Government Code section
12926 subdivision (r). Attending training does not create an inference that an
employee is a supervisor or that a contractor is an employee or a supervisor. (9)
"Trainers" or "Trainers or educators" qualified to provide training under this section
are individuals who, through a combination of training and experience have the
ability to train supervisors about the following: 1) what are unlawful harassment,
discrimination and retaliation under both California and federal law; 2) what steps to
take when harassing behavior occurs in the workplace; 3) how to report harassment
complaints; 4) how to respond to a harassment complaint; 5) the employer's
obligation to conduct a workplace investigation of a harassment complaint; 6) what
constitutes retaliation and how to prevent it; 7) essential components of an antiharassment policy; and 8) the effect of harassment on harassed employees, coworkers, harassers and employers. (A) A trainer shall be one or more of the
following: 1. "Attorneys" admitted for two or more years to the bar of any state in the
United States and whose practice includes employment law under the Fair
Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964,
or 2. "Human resource professionals" or "harassment prevention consultants"
working as employees or independent contractors with a minimum of two or more
years of practical experience in one or more of the following: a. designing or
conducting discrimination, retaliation and sexual harassment prevention training; b.
responding to sexual harassment complaints or other discrimination complaints; c.
conducting investigations of sexual harassment complaints; or d. advising
employers or employees regarding discrimination, retaliation and sexual
harassment prevention, or 3. "Professors or instructors" in law schools, colleges or
universities who have a post-graduate degree or California teaching credential and
either 20 instruction hours or two or more years of experience in a law school,
college or university teaching about employment law under the Fair Employment
and Housing Act and/or Title VII of the federal Civil Rights Act of 1964. (B)
Individuals who do not meet the qualifications of a trainer as an attorney, human
resource professional, harassment prevention consultant, professor or instructor
because they lack the requisite years of experience may team teach with a trainer
in classroom or webinar trainings provided that the trainer supervises these
individuals and the trainer is available throughout the training to answer questions
from training attendees. (10) "Training" as used in this section, is effective
interactive training as defined at section 7288.0, subdivision (a)(2). (11) "Two hours"
of training is two hours of classroom training or two hours of webinar training or, in
the case of an e-learning training, a program that takes the supervisor no less than
two hours to complete. (b) Training. (1) Frequency of Training. An employer shall
provide two hours of training, in the content specified in section 7288.0, subdivision
(c), once every two years, and may use either of the following methods or a
combination of the two methods to track compliance. (A) "Individual" Tracking. An
employer may track its training requirement for each supervisory employee,
measured two years from the date of completion of the last training of the individual
supervisor. (B) "Training year" tracking. An employer may designate a "training
year" in which it trains some or all of its supervisory employees and thereafter must
again retrain these supervisors by the end of the next "training year," two years
later. Thus, supervisors trained in training year 2005 shall be retrained in 2007. For
newly hired or promoted supervisors who receive training within six months of
assuming their supervisory positions and that training falls in a different training
year, the employer may include them in the next group training year, even if that
occurs sooner than two years. An employer shall not extend the training year for the
new supervisors beyond the initial two year training year. Thus, with this method,
assume that an employer trained all of its supervisors in 2005 and sets 2007 as the
next training year. If a new supervisor is trained in 2006 and the employer wants to
include the new supervisor in its training year, the new supervisor would need to be
trained in 2007 with the employer's other supervisors. (2) Documentation of
Training. An employer shall keep documentation of the training it has provided its
employees under this section to track compliance, including the name of the
supervisory employee trained, the date of training, the type of training, and the
name of the training provider and shall retain the records for a minimum of two
years. (3) Training at New Businesses. Businesses created after January 1, 2006,
must provide training to supervisors within six months of their establishment and
thereafter biennially. Businesses that expand to 50 employees and/or contractors
and thus become eligible under these regulations, must provide training to
supervisors within six months of their eligibility and thereafter biennially. (4) Training
for New Supervisors. New supervisors shall be trained within six months of
assuming their supervisory position and thereafter shall be trained once every two
years, measured either from the individual or training year tracking method. (5)
Duplicate Training. A supervisor who has received training in compliance with this
section within the prior two years either from a current, a prior, an alternate or a joint
employer need only be given, be required to read and to acknowledge receipt of,
the employer's anti-harassment policy within six months of assuming the
supervisor's new supervisory position or within six months of the employer's
eligibility. That supervisor shall otherwise be put on a two year tracking schedule
based on the supervisor's last training. The burden of establishing that the prior
training was legally compliant with this section shall be on the current employer. (6)
Duration of Training. The training required by this section does not need to be
completed in two consecutive hours. For classroom training or webinars, the
minimum duration of a training segment shall be no less than half an hour. Elearning courses may include bookmarking features which allow a supervisor to
pause their individual training so long as the actual e-learning program is two hours.
(c) Content. The learning objectives of the training mandated by California
Government Code section 12950.1 shall be: 1) to assist California employers in
changing or modifying workplace behaviors that create or contribute to "sexual
harassment" as that term is defined in California and federal law; and 2) to develop,
foster and encourage a set of values in supervisory employees who complete
mandated training that will assist them in preventing and effectively responding to
incidents of sexual harassment. Towards that end, the training mandated by
California Government Code section 12950.1, shall include but is not limited to: (1)
A definition of unlawful sexual harassment under the Fair Employment and Housing
Act and Title VII of the federal Civil Rights Act of 1964. In addition to a definition of
sexual harassment, an employer may provide a definition of and train about other
forms of harassment covered by the FEHA, as specified at Government Code
section 12940, subdivision (j), and discuss how harassment of an employee can
cover more than one basis. (2) FEHA and Title VII statutory provisions and case law
principles concerning the prohibition against and the prevention of unlawful sexual
harassment, discrimination and retaliation in employment. (3) The types of conduct
that constitutes sexual harassment. (4) Remedies available for sexual harassment.
(5) Strategies to prevent sexual harassment in the workplace. (6) "Practical
examples," such as factual scenarios taken from case law, news and media
accounts, hypotheticals based on workplace situations and other sources which
illustrate sexual harassment, discrimination and retaliation using training modalities
such as role plays, case studies and group discussions. (7) The limited
confidentiality of the complaint process. (8) Resources for victims of unlawful sexual
harassment, such as to whom they should report any alleged sexual harassment.
(9) The employer's obligation to conduct an effective workplace investigation of a
harassment complaint. (10) Training on what to do if the supervisor is personally
accused of harassment. (11) The essential elements of an anti-harassment policy
and how to utilize it if a harassment complaint is filed. Either the employer's policy
or a sample policy shall be provided to the supervisors. Regardless of whether the
employer's policy is used as part of the training, the employer shall give each
supervisor a copy of its anti-harassment policy and require each supervisor to read
and to acknowledge receipt of that policy. (d) Remedies. As part of an order in an
adjudicatory proceeding pursuant to California Code of Regulations, Title 2, section
7429, the Commission may issue an order finding an employer failed to comply with
Government Code section 12950.1 and order such compliance within 60 days of
the effective date of the Commission's order. (e) Compliance with section 12950.1
prior to effective date of Commission regulations. An employer who has made a
substantial, good faith effort to comply with section 12950.1 by completing training
of its supervisors prior to the effective date of these regulations shall be deemed to
be in compliance with section 12950.1 regarding training as though it had been
done under these regulations.
Military FMLA Leave
395.10. (a) Notwithstanding any other provision of law, a qualified employer shall
allow a qualified employee to take up to10 days of unpaid leave during a qualified
leave period. (b) For purposes of this section: (1) “Period of military conflict” means
either of the following: ( A) A period of war declared by the United States Congress.
(B) A period of deployment for which a member of a reserve component is ordered
to active duty pursuant to either of the following: (i) Sections 12301 and 12302 of
Title 10 of the United States Code. (ii) Title 32 of the United States Code. (2)
“Qualified employee” means a person who satisfies all of the following: (A) Is the
spouse of a qualified member. (B) Performs service for hire for an employer for an
average of 20 or more hours per week, but does not include an independent
contractor. (C) Provides the qualified employer with notice, within two business
days of receiving official notice that the qualified member will be on leave from
deployment, of his or her intention to take the leave provided for in subdivision (a).
(D) Submits written documentation to the qualified employer certifying that the
qualified member will be on leave from deployment during the time the leave
provided for in subdivision (a) is requested. (3) “Qualified employer” includes any
individual, corporation, company, firm, state, city, county, city and county, municipal
corporation, district, public authority, or any other governmental subdivision, that
employs 25 or more employees. (4) “Qualified member” means a person who is any
of the following: (A) A member of the Armed Forces of the United States who has
been deployed during a period of military conflict to an area designated as a combat
theater or combat zone by the President of the United States. (B) A member of the
National Guard who has been deployed during a period of military conflict. (C) A
member of the Reserves who has been deployed during a period of military conflict.
(5) “Qualified leave period” means the period during which the qualified member is
on leave from deployment during a period of military conflict. (c) A qualified
employer shall not retaliate against a qualified employee for requesting or taking the
leave provided for in this section. (d) The leave provided for in this section shall not
affect or prevent a qualified employer from allowing a qualified employee to take a
leave that the qualified employee is otherwise entitled to take. (e) This section shall
not affect a qualified employee’s rights with respect to any other employee benefit
provided for in other laws. SEC. 2. 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 serve the families of those troops currently
serving in military conflicts in Iraq and Afghanistan, and to assure that these families
are able to spend time together during the qualified member’s leave from
deployment, it is necessary that this act take effect immediately.
Meal/Rest Periods
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 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 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 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) 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. 2. Notwithstanding any other
provision of law, paragraphs (1) and (2) of subdivision (e) of Section 512 of the
Labor Code do not affect the nature or scope of the law related to meal periods,
including the timing of commencement of a meal period, for employees or
employers not specifically covered by paragraphs (1) and (2) of subdivision (e) of
Section 512 of the Labor Code. SEC. 3. Notwithstanding any other provision of law,
including applicable Industrial Welfare Commission orders, the addition of
paragraph (3) of subdivision (f) to Section 512 of the Labor Code made by this act
does not affect the nature or scope of the law relating to meal periods for security
officers who are not covered by a valid collective bargaining agreement. .
800. Every person operating a sawmill, shake mill, shingle mill, logging camp,
planing mill, veneer mill, plywood plant or any other type of plant or mill which
processes or manufactures any lumber, lumber products or allied wood products, in
this State shall allow his employees a period of not less than one-half hour for the
midday meal, between the third and fifth hours of each day's shift after the start
thereof.
IWC Wage order No. 1-2001 Sec. 11. (A) No employer shall employ any person for
a work period of more than five (5) hours without a meal period of not less than 30
minutes, except that when a work period of not more than six (6) hours will
complete the day's work the meal period may be waived by mutual consent of the
employer and employee. In the case of employees covered by a valid collective
bargaining agreement, the parties to the collective bargaining agreement may agree
to a meal period that commences after no more than six (6) hours of work. (B) An
employer may not employ an employee for a work period of more than ten (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. (C) Unless the employee is
relieved of all duty during a 30 minute meal period, the meal period shall be
considered an "on duty" meal period and counted as time worked. An "on duty"
meal period shall be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by written agreement between
the parties an on-the-job paid meal period is agreed to. The written agreement shall
state that the employee may, in writing, revoke the agreement at any time. (D) If an
employer fails to provide an employee a meal period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each work day that
the meal period is not provided. (E) In all places of employment where employees
are required to eat on the premises, a suitable place for that purpose shall be
designated. 12. Rest Periods (A) Every employer shall authorize and permit all
employees to take rest periods, which insofar as practicable shall be in the middle
of each work period. The authorized rest period time shall be based on the total
hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or
major fraction thereof. However, a rest period need not be authorized for employees
whose total daily work time is less than three and one- half (3 ½) hours. Authorized
rest period time shall be counted as hours worked for which there shall be no
deduction from wages. (B) If an employer fails to provide an employee a rest period
in accordance with the applicable provisions of this order, the employer shall pay
the employee one (1) hour of pay at the employee's regular rate of compensation
for each work day that the rest period is not provided.
3.8:1030. LACTATION ACCOMMODATION -- Every employer, including the state
and any political subdivision, shall provide a reasonable amount of break time to
accommodate an employee desiring to express breast milk for the employee’s
infant child. The break time shall, if possible, run concurrently with any break time
already provided to the employee. Break time for an employee that does not run
concurrently with the rest time authorized for the employee by the applicable wage
order of the Industrial Welfare Commission shall be unpaid.
3.8:1031. The employer shall make reasonable efforts to provide the employee with
the use of a room or other location, other than a toilet stall, in close proximity to the
employee’s work area, for the employee to express milk in private. The room or
location may include the place where the employee normally works if it otherwise
meets the requirements of this section.
3.8:1032. An employer is not required to provide break time under this chapter if to
do so would seriously disrupt the operations of the employer.
3.8:1033. (a) An employer who violates any provision of this chapter shall be
subject to civil penalty in the amount of one hundred dollars ($100) for each
violation. (b) If, upon inspection or investigation, the Labor Commissioner
determines that a violation of this chapter has occurred, the Labor Commissioner
may issue a citation. The procedures for issuing, contesting, and enforcing
judgments for citations or civil penalties issued by the Labor Commissioner for
violations of this chapter shall be the same as those set forth in Section 1197.1. (c)
Notwithstanding any other provision of this code, violations of this chapter shall not
be misdemeanors under this code. SEC. 2. No reimbursement shall be made from
the State Mandates Claims Fund pursuant to Part 7 (commending with Section
17500) of Division 4 of Title 2 of the Government Code for costs mandated by the
state pursuant to this act. It is recognized, however, that a local agency or school
district may pursue any remedies to obtain reimbursement available to it under Part
7 (commencing with Section 17500) and any other provisions of law.
Minimum/Prevailing Wages
1182.12. Notwithstanding any other provision of this part, on and after January 1,
2010, the minimum wage for all industries shall be not less than nine dollars and
seventy-nine cents ($9.79) per hour.
1182.13. (a) The Department of Industrial Relations shall adjust upwards the
permissible meals and lodging credits by the same percentage as the increase in
the minimum wage made pursuant to Section 1182.12.
351. No employer or agent shall collect, take, or receive any gratuity or a part
thereof that is paid, given to, or left for an employee by a patron, or deduct any
amount from wages due an employee on account of a gratuity, or require an
employee to credit the amount, or any part thereof, of a gratuity against and as a
part of the wages due the employee from the employer. Every gratuity is hereby
declared to be the sole property of the employee or employees to whom it was paid,
given, or left for. An employer that permits patrons to pay gratuities by credit card
shall pay the employees the full amount of the gratuity that the patron indicated on
the credit card slip, without any deductions for any credit card payment processing
fees or costs that may be charged to the employer by the credit card company.
Payment of gratuities made by patrons using credit cards shall be made to the
employees not later than the next regular payday following the date the patron
authorized the credit card payment.
1771. Except for public works projects of one thousand dollars ($1,000) or less, not
less than the general prevailing rate of per diem wages for work of a similar
character in the locality in which the public work is performed, and not less than the
general prevailing rate of per diem wages for holiday and overtime work fixed as
provided in this chapter, shall be paid to all workers employed on public works. This
section is applicable only to work performed under contract, and is not applicable to
work carried out by a public agency with its own forces. This section is applicable to
contracts let for maintenance work. (http://www.dir.ca.gov/t8/ch8sb3a4.html)
1776. (a) Each contractor and subcontractor shall keep accurate payroll records,
showing the name, address, social security number, work classification, straight
time and overtime hours worked each day and week, and the actual per diem
wages paid to each journeyman, apprentice, worker, or other employee employed
by him or her in connection with the public work. Each payroll record shall contain
or be verified by a written declaration that it is made under penalty of perjury, stating
both of the following: (1) The information contained in the payroll record is true and
correct. (2) The employer has complied with the requirements of Sections 1771,
1811, and 1815 for any work performed by his or her employees on the public
works project. (b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable hours at the principal
office of the contractor.
[Editors Note] Effective January 1, 2011, the prevailing wage rate for the city of
San Francisco is set at $9.92 per hour. All employers shall pay a minimum wage of
$9.92 per hour for work performed by adult and minor employees who work two or
more hours per week within the geographic boundaries of the city—this is known as
the San Francisco minimum wage.
San Francisco's Minimum Compensation Ordinance (MCO) requires that
commercial businesses that contract with the city or that lease property at SFO pay
a minimum compensation of $11.69 per hour to employees. Nonprofit organizations
must pay a minimum compensation rate of $11.03 per hour. These rates apply for
contracts entered into on or after October 14, 2007. The minimum compensation
rate may be adjusted annually each January 1. For contracts entered into prior to
October 14, 2007, the for-profit compensation rate is $10.77 per hour, and for
nonprofits, the compensation rate is the same as the San Francisco minimum
wage.
[Editor’s Note:] The City of Santa Fe's “living wage” is $9.85 per hour effective
January 1, 2009. The living wage will be adjusted upward each year, by an amount
corresponding to the previous year's increase, if any, in the consumer price index
for the western region for urban wage earners and clerical workers. For workers
who normally receive more than $100 per month in tips or commissions, any tips or
commissions received and retained by a worker shall be counted as wages and
credited towards satisfying the minimum wage provided that, for tipped workers, all
tips received by such workers are retained by the workers, except that the pooling
of tips among workers is permitted. The value of health care benefits and child care
shall be considered as an element of wages.
[Editors Note] A living wage ordinance was passed in the City of Richmond
requiring businesses awarded city contracts in excess of $25,000 and who are
recipients of at least $100,000 in public subsidies, or have leases with the city and
revenues over $350,000 must pay employees a living wage rate of $11.42 per hour
if benefits are provided and $12.92 an hour if benefits are not provided. The current
living wage rate for Berkeley is $11.04 per hour if benefits are provided and $12.87
per hour if benefits are not provided.
[Editors Note:] Effective June 30, 2007, the living wage rate for the city of Berkely
is set at $11.77 per hour if the employer contributes a minimum of $1.96 toward
employee medical benefit plan and $13.73 when the employer does not contribute
the required minimum to a medical benefit plan.
[Editors Note] Current living wage rates for Port Hueneme is $11.85 per hour if
health benefits are not provided by the employer, and $9.35 per hour if health
benefits are provided by the employer. The current living wage for Marin County is
$9.50 per hour if health benefits are provided, and $10.75 per hour if health benefits
are not provided.
[Editor's Note] The current living wage rates for the town of Fairfax is $13.47 per
hour if employer provides benefits and $15.28 per hour if the employer does not
provide benefits.
[Editors Note] Effective July 1, 2006, the new living wage rate for Santa Cruz and
Watsonville are set at $12.43 per hour if the employer provides benefits and $13.65
per hour if no benefits are provided. The new living wage rate set for Los Angeles is
$9.39 per hour with benefits and $10.64 if no benefits are provided.
[Editor's note:] The new living wage rate for the City of Petaluma is $11.70 per
hour if employer provides employees with health insurance benefits and $13.20 per
hour if no benefits are provided.
[Editor's note:] Effective July 1, 2008, the living wage rate for the City of Los
Angeles is $10.00 per hour with health benefits, or $11.25 per hour without benefits.
Effective June 30, 2008, if an employer pays at least $2.01 per hour per employee
towards an employee medical benefits plan, the employer must pay employees an
hourly wage of not less than $12.11. If the employer does not provide the
employees with such a medical benefit plan, the employer must pay employees an
hourly wage of not less than $14.12. Effective until July 1, 2009, employees of
private sector contractors/employers who enter into a service contract with the City
of Santa Cruz for $10,000 or more must be paid a living wage of $13.08 per hour
with benefits, and $14.26 per hour without benefits. Certain contractors and
subcontractors with the County of Marin must pay employees a living wage for
services financed by county funds for the time those employees are engaged in
providing services to the county. The rates, effective July 1, 2008, are $10.05 per
hour with health benefits of at least $1.50 per hour, and $11.55 per hour without
health benefits. Employees of contractors for specified private sector services, or
any employee of a subcontractor while employed in providing service to the City of
Watsonville pursuant to a contract for specified private sector services or related
subcontract must be paid a living wage of $13.08 per hour with benefits, or $14.26
per hour without benefits, effective July 1, 2008.
[Editor's note:] Effective February 1, 2009, Sacramento employers who provide
health benefits and whose contribution for such benefits is at least $1.60 for each
hour of work must pay a covered employee a minimum wage rate of $10.65 per
hour. If health benefits are not provided or are provided and the contribution is less
than $1.60 per hour of work, the minimum wage rate is $12.25 per hour.
On-Call/Call Back/Reporting
Pay
2:599.708. Call Back Time.--An employee in Work Week Group 1 or Work Week
Subgroup 4A who has completed a normal work shift, or an employee in Work
Week Subgroups 4B or 4D on an authorized day off, when ordered back to work,
shall be credited with a minimum of four hours' work time provided the call back to
work is without having been notified prior to completion of the work shift, or the
notification is prior to completion of the work shift and the work begins more than
three hours after the completion of the work shift. When such an employee is called
back under these conditions within four hours of the beginning of a previous call or
an additional call is received while still working on an earlier call back, the employee
shall not receive an additional four hours' credit for the new call back. When such
an employee is called back within four hours of the beginning of the employee's
next shift, call back credit shall be received only for the hours remaining before the
beginning of the employee's next shift. When staff meetings, training sessions, or
work assignments are regularly scheduled on an employee's authorized day off, the
employee shall receive call back compensation; when staff meetings and training
sessions are regularly scheduled on an employee's normal work day and outside
the employee's normal work shift, overtime compensation shall be received in
accordance with the regulations governing overtime.
2695.2. (a) (1) For a sheepherder employed on a regularly scheduled 24-hour shift
on a seven-day-a week "on-call" basis, an employer may, as an alternative to
paying the minimum wage for all hours worked, instead pay no less than the
monthly minimum wage adopted by the Industrial Welfare Commission on April 24,
2001. Any sheepherder who performs non sheepherding, nonagricultural work on
any workday shall be fully covered for that workweek by the provisions of any
applicable laws or regulations relating to that work. (2) After July 1, 2002, the
amount of the monthly minimum wage permitted under paragraph (1) shall be
increased each time that the state minimum wage is increased and shall become
effective on the same date as any increase in the state minimum wage. The amount
of the increase shall be determined by calculating the percentage increase of the
new rate over the previous rate, and then by applying the same percentage
increase to the minimum monthly wage rate. (b) (1) When tools or equipment are
required by the employer or are necessary to the performance of a job, the tools
and equipment shall be provided and maintained by the employer, except that a
sheepherder whose wages are at least two times the minimum wage provided
herein, or if paid on a monthly basis, at least two times the monthly minimum wage,
may be required to provide and maintain hand tools and equipment customarily
required by the trade or craft. (2) A reasonable deposit may be required as security
for the return of the items furnished by the employer under provisions of paragraph
(1) upon issuance of a receipt to the sheepherder for the deposit. The deposits shall
be made pursuant to Article 2 (commencing with Section 400) of Chapter 3.
Alternatively, with the prior written authorization of the sheepherder, an employer
may deduct from the sheepherder's last check the cost of any item furnished
pursuant to paragraph (1) when the item is not returned. No deduction shall be
made at any time for normal wear and tear. All items furnished by the employer
shall be returned by the sheepherder upon completion of the job. (c) No employer of
sheepherders shall employ a sheepherder for a work period of more than five hours
without a meal period of no less than 30 minutes, except that when a work period of
not more than six hours will complete a day's work, the meal period may be waived
by the mutual consent of the employer and the sheepherder. An employer may be
relieved of this obligation if a meal period of 30 minutes cannot reasonably be
provided because no one is available to relieve a sheepherder tending flock alone
on that day. Where a meal period of 30 minutes can be provided but not without
interruption, a sheepherder shall be allowed to complete the meal period during that
day. (d) To the extent practicable, every employer shall authorize and permit all
sheepherders to take rest periods. The rest period, insofar as is practicable, shall
be in the middle of each work period. The authorized rest times shall be based on
the total hours worked daily at the rate of 10 minutes net rest time per four hours, or
major fraction thereof, of work. However, a rest period need not be authorized for
sheepherders whose total daily work time is less than three and one-half hours. (e)
When the nature of the work reasonably permits the use of seats, suitable seats
shall be provided for sheepherders working on or at a machine. (f) After January 1,
2003, during times when a sheepherder is lodged in mobile housing units where it is
feasible to provide lodging that meets the minimum standards established by this
section because there is practicable access for mobile housing units, the lodging
provided shall include at a minimum all of the following: (1) Toilets and bathing
facilities, which may include portable toilets and portable shower facilities. (2)
Heating. (3) Inside lighting. (4) Potable hot and cold water. (5) Adequate cooking
facilities and utensils. (6) A working refrigerator, which may include a butane or
propane gas refrigerator, or for no more than a one-week period during which a
nonworking refrigerator is repaired or replaced, a means of refrigerating perishable
food items, which may include ice chests, provided that ice is delivered to the
sheepherder, as needed, to maintain a continuous temperature required to retard
spoilage and ensure food safety. (g) After January 1, 2003, all sheepherders shall
be provided with all of the following at each worksite: (1) Regular mail service. (2) A
means of communication through telephone or radio solely for use in a medical
emergency affecting the sheepherder or for an emergency relating to the herding
operation. If the means of communication is provided by telephone, the
sheepherder may be charged for the actual cost of nonemergency telephone use.
Nothing in this subdivision shall preclude an employer from providing additional
means of communication to the sheepherder which are appropriate because
telephones or radios are out of range or otherwise inoperable. (3) Visitor access to
the housing. (4) Upon request and to the extent practicable, access to
transportation to and from the nearest locale where shopping, medical, or cultural
facilities and services are available on a weekly basis. (h) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates or causes to be violated the provisions of this section
shall be subject to a civil penalty, as follows: (1) For the initial violation, fifty dollars
($50) for each underpaid employee for each pay period during which the employee
was underpaid, plus an amount sufficient to recover the unpaid wages. (2) For any
subsequent violation, one hundred dollars ($100) for each underpaid employee for
each pay period during which the employee was underpaid, plus an amount
sufficient to recover the unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (i) If the application of any provision of any
subdivision, sentence, clause, phrase, word, or portion of this legislation is held
invalid, unconstitutional, unauthorized, or prohibited by statute, the remaining
provisions thereof shall not be affected and shall continue to be given full force and
effect as if the part held invalid or unconstitutional had not been included. (j) Every
employer of sheepherders shall post a copy of this part in an area frequented by
sheepherders where it may be easily read during the workday. Where the location
of work or other conditions make posting impractical, every employer shall make a
copy of this part available to sheepherders upon request. Copies of this part shall
be posted and made available in a language understood by the sheepherder. An
employer is deemed to have complied with this subdivision if he or she posts where
practical, or makes available upon request where posting is impractical, a copy of
the Industrial Welfare Commission Order 14-2001, as adopted on April 24, 2001,
relating to sheepherders, provided that the posted material includes a sufficient
summary of each of the provisions of this part.
1101 Sec. 5 Reporting Time Pay. -- (A) Each workday an employee is required to
report for work and does report, but is not put to work or is furnished less than half
said employee's usual or scheduled day's work, the employee shall be paid for half
the usual or scheduled day's work, but in no event for less than two (2) hours nor
more than four (4) hours, at the employee's regular rate of pay, which shall not be
less than the minimum wage. (B) If an employee is required to report for work a
second time in any one workday and is furnished less than two (2) hours of work on
the second reporting, said employee shall be paid for two (2) hours at the
employee's regular rate of pay, which shall not be less than the minimum wage. (C)
The foregoing reporting time pay provisions are not applicable when: (1) Operations
cannot commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time.
Overtime Payment
Sec. 510. Eight-hour workday; Overtime over 8 hours a day, 40 hours a week,
and the first 8 hours on the 7th day at time and a half; Overtime in excess of
12 hours a day and time over 8 hours on the 7th day at double time;
Exceptions allowing for flexible work schedules — (a) Eight hours of labor
constitutes a day's work. Any work in excess of eight hours in one workday and any
work in excess of 40 hours in any one workweek and the first eight hours worked on
the seventh day of work in any one workweek shall be compensated at the rate of
no less than one and one-half times the regular rate of pay for an employee. Any
work in excess of 12 hours in one day shall be compensated at the rate of no less
than twice the regular rate of pay for an employee. In addition, any work in excess
of eight hours on any seventh day of a workweek shall be compensated at the rate
of no less than twice the regular rate of pay of an employee. 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. The requirements of this section do not apply to the payment of overtime
compensation to an employee working pursuant to any of the following: (1) An
alternative workweek schedule adopted pursuant to Section 511. (2) An alternative
workweek schedule adopted pursuant to a collective bargaining agreement
pursuant to Section 514. (3) An alternative workweek schedule to which this
chapter is inapplicable pursuant to Section 554. (b) Time spent commuting to and
from the first place at which an employee's presence is required by the employer
shall not be considered to be a part of a day's work, when the employee commutes
in a vehicle that is owned, leased, or subsidized by the employer and is used for the
purpose of ridesharing, as defined in Section 522 of the Vehicle Code. (c) This
section does not affect, change, or limit an employer's liability under the workers'
compensation law.
511 This section has been amended by Chapter 3 of 2009 (2nd Ex. Sess.) (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. 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.
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 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 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 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) 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.
512.5. (a) Notwithstanding any provision of this chapter, if the Industrial Welfare
Commission adopts or amends an order that applies to an employee of a public
agency who operates a commercial motor vehicle, it may exempt that employee
from the application of the provisions of that order which relate to meal periods or
rest periods, consistent with the health and welfare of that employee, if he or she is
covered by a valid collective bargaining agreement. (b) “Commercial motor vehicle”
for the purposes of this section has the same meaning as provided in subdivision
(b) of Section 15210 of the Vehicle Code. (c) “Public agency” for the purposes of
this section means the state and any political subdivision of the state, including any
city, county, city and county, or special district.
513. If an employer approves a written request of an employee to make up work
time that is or would be lost as a result of a personal obligation of the employee, the
hours of that makeup work time, if performed in the same workweek in which the
work time was lost, may not be counted towards computing the total number of
hours worked in a day for purposes of the overtime requirements specified in
Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40
hours in one workweek. An employee shall provide a signed written request for
each occasion that the employee makes a request to make up work time pursuant
to this section. An employer is prohibited from encouraging or otherwise soliciting
an employee to request the employer’s approval to take personal time off and make
up the work hours within the same week pursuant to this section.
514. Sections 510 and 511 do not apply to an employee covered by a valid
collective bargaining agreement if the agreement expressly provides for the wages,
hours of work, and working conditions of the employees, and if the agreement
provides premium wage rates for all overtime hours worked and a regular hourly
rate of pay for those employees of not less than 30 percent more than the state
minimum wage.
515. (a) The Industrial Welfare Commission may establish exemptions from the
requirement that an overtime rate of compensation be paid pursuant to Sections
510 and 511 for executive, administrative, and professional employees, provided
that the employee is primarily engaged in the duties that meet the test of the
exemption, customarily and regularly exercises discretion and independent
judgment in performing those duties, and earns a monthly salary equivalent to no
less than two times the state minimum wage for full-time employment. The
commission shall conduct a review of the duties that meet the test of the exemption.
The commission may, based upon this review, convene a public hearing to adopt or
modify regulations at that hearing pertaining to duties that meet the test of the
exemption without convening wage boards. Any hearing conducted pursuant to this
subdivision shall be concluded not later than July 1, 2000. (b) (1) The commission
may establish additional exemptions to hours of work requirements under this
division where it finds that hours or conditions of labor may be prejudicial to the
health or welfare of employees in any occupation, trade, or industry. This paragraph
shall become inoperative on January 1, 2005. (2) Except as otherwise provided in
this section and in subdivision (g) of Section 511, nothing in this section requires the
commission to alter any exemption from provisions regulating hours of work that
was contained in any valid wage order in effect in 1997. Except as otherwise
provided in this division, the commission may review, retain, or eliminate any
exemption from provisions regulating hours of work that was contained in any valid
wage order in effect in 1997. (c) For the purposes of this section, “full-time
employment” means employment in which an employee is employed for 40 hours
per week. (d) For the purpose of computing the overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee, the employee’s
regular hourly rate shall be 1/40th of the employee’s weekly salary. (e) For the
purposes of this section, “primarily” means more than one-half of the employee’s
worktime. (f) (1) In addition to the requirements of subdivision (a), registered nurses
employed to engage in the practice of nursing shall not be exempted from coverage
under any part of the orders of the Industrial Welfare Commission, unless they
individually meet the criteria for exemptions established for executive or
administrative employees. (2) This subdivision does not apply to any of the
following: (A) A certified nurse midwife who is primarily engaged in performing
duties for which certification is required pursuant to Article 2.5 (commencing with
Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code.
(B) A certified nurse anesthetist who is primarily engaged in performing duties for
which certification is required pursuant to Article 7 (commencing with Section 2825)
of Chapter 6 of Division 2 of the Business and Professions Code. (C) A certified
nurse practitioner who is primarily engaged in performing duties for which
certification is required pursuant to Article 8 (commencing with Section 2834) of
Chapter 6 of Division 2 of the Business and Professions Code. (D) Nothing in this
paragraph shall exempt the occupations set forth in subparagraphs (A), (B), and (C)
from meeting the requirements of subdivision (a).
515.5. (a) Except as provided in subdivision (b), an employee in the computer
software field shall be exempt from the requirement that an overtime rate of
compensation be paid pursuant to Section 510 if all of the following apply: (1) The
employee is primarily engaged in work that is intellectual or creative and that
requires the exercise of discretion and independent judgment. (2) The employee is
primarily engaged in duties that consist of one or more of the following: (A) The
application of systems analysis techniques and procedures, including consulting
with users, to determine hardware, software, or system functional specifications.
(B) The design, development, documentation, analysis, creation, testing, or
modification of computer systems or programs, including prototypes, based on and
related to user or system design specifications. (C) The documentation, testing,
creation, or modification of computer programs related to the design of software or
hardware for computer operating systems. (3) The employee is highly skilled and is
proficient in the theoretical and practical application of highly specialized information
to computer systems analysis, programming, or software engineering. A job title
shall not be determinative of the applicability of this exemption. (4) The employee’s
hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is
paid on a salaried basis, the employee earns an annual salary of not less than
seventy-five thousand dollars ($75,000) for full-time employment, which is paid at
least once a month and in a monthly amount of not less than six thousand two
hundred fifty dollars ($6,250). The Division of Labor Statistics and Research shall
adjust both the hourly pay rate and the salary level described in this paragraph on
October 1 of each year to be effective on January 1 of the following year by an
amount equal to the percentage increase in the California Consumer Price Index for
Urban Wage Earners and Clerical Workers. (b) The exemption provided in
subdivision (a) does not apply to an employee if any of the following apply: (1) The
employee is a trainee or employee in an entry-level position who is learning to
become proficient in the theoretical and practical application of highly specialized
information to computer systems analysis, programming, and software engineering.
(2) The employee is in a computer-related occupation but has not attained the level
of skill and expertise necessary to work independently and without close
supervision. (3) The employee is engaged in the operation of computers or in the
manufacture, repair, or maintenance of computer hardware and related equipment.
(4) The employee is an engineer, drafter, machinist, or other professional whose
work is highly dependent upon or facilitated by the use of computers and computer
software programs and who is skilled in computer-aided design software, including
CAD/CAM, but who is not engaged in computer systems analysis, programming, or
any other similarly skilled computer-related occupation. (5) The employee is a writer
engaged in writing material, including box labels, product descriptions,
documentation, promotional material, setup and installation instructions, and other
similar written information, either for print or for onscreen media or who writes or
provides content material intended to be read by customers, subscribers, or visitors
to computer-related media such as the World Wide Web or CD-ROMs. (6) The
employee is engaged in any of the activities set forth in subdivision (a) for the
purpose of creating imagery for effects used in the motion picture, television, or
theatrical industry.
515.6. (a) Section 510 shall not apply to any employee who is a licensed physician
or surgeon, who is primarily engaged in duties that require licensure pursuant to
Chapter 5 (commencing with Section 2000) of Division 2 of the Business and
Professions Code, and whose hourly rate of pay is equal to or greater than fifty-five
dollars ($55.00). The Division of Labor Statistics and Research shall adjust this
threshold rate of pay each October 1, to be effective the following January 1, by an
amount equal to the percentage increase in the California Consumer Price Index for
Urban Wage Earners and Clerical Workers. (b) The exemption provided in
subdivision (a) shall not apply to an employee employed in a medical internship or
resident program or to a physician employee covered by a valid collective
bargaining agreement pursuant to Section 514.
515.8. (a) Section 510 does not apply to an individual employed as a teacher at a
private elementary or secondary academic institution in which pupils are enrolled in
kindergarten or any of grades 1 to 12, inclusive. (b) For purposes of this section,
“employed as a teacher” means that the employee meets all of the following
requirements: (1) The employee is primarily engaged in the duty of imparting
knowledge to pupils by teaching, instructing, or lecturing. (2) The employee
customarily and regularly exercises discretion and independent judgment in
performing the duties of a teacher. (3) The employee earns a monthly salary
equivalent to no less than two times the state minimum wage for full-time
employment. (4) The employee has attained at least one of the following levels of
professional advancement: (A) A baccalaureate or higher degree from an
accredited institution of higher education. (B) Current compliance with the
requirements established by the California Commission on Teacher Credentialing,
or the equivalent certification authority in another state, for obtaining a preliminary
or alternative teaching credential. (c) This section does not apply to any tutor,
teaching assistant, instructional aide, student teacher, day care provider, vocational
instructor, or other similar employee. (d) The exemption established in subdivision
(a) is in addition to, and does not limit or supersede, any exemption from overtime
established by a Wage Order of the Industrial Welfare Commission for persons
employed in a professional capacity, and does not affect any exemption from
overtime established by that commission pursuant to subdivision (a) of Section 515
for persons employed in an executive or administrative capacity.
516. Except as provided in Section 512, the Industrial Welfare Commission may
adopt or amend working condition orders with respect to break periods, meal
periods, and days of rest for any workers in California consistent with the health and
welfare of those workers.
1182.6.-- (a) No employer who continuously operates a manufacturing facility 24
hours a day for seven days a week, and who has had in operation an established
preexisting workweek arrangement, as defined in subdivision (b), shall be in
violation of this code or any applicable wage order of the commission by instituting,
pursuant to an agreement voluntarily executed by the employer and at least twothirds of the affected employees before the performance of the work, a regularly
scheduled workweek that includes three working days of not more than 12 hours a
day, or regularly scheduled workweeks that include three working days of not more
than 12 hours a day one week and four working days of not more than 12 hours a
day in the following week for an average workweek of 42 hours over a two-week
period. (b) For purposes of this section only, a "preexisting workweek
arrangement" is defined as, and limited to, a workweek arrangement that existed
before November 1980, and had to be modified or abandoned by an employer
because the workweek arrangement did not qualify for any exemption provided by
the Industrial Welfare Commission from its daily overtime requirements for
collectively bargained arrangements, and did not otherwise comply with the daily
overtime requirements of an applicable commission order. (c) The agreement
described in subdivision (a) shall be confirmed by an affirmative vote by secret
ballot by at least two-thirds of the affected employees, and may be rescinded at any
time by a two-thirds vote of the affected employees. A new vote on whether the
agreement described in subdivision (a) shall be continued shall be held every three
years, and an affirmative vote by at least two-thirds of the affected employees shall
be necessary to continue the agreement. (d) The employer shall not be required to
pay premium wage rates to employees working a schedule described in subdivision
(a) unless the employee is required or permitted to work more than 12 hours in any
workday, more than the scheduled three or four days in any workweek, or more
than 40 hours in any workweek. (e) This section shall not apply to any employer
who is now, or in the future becomes, a party to a collective-bargaining agreement
covering employees who would otherwise be covered by this section. (f) No
employee working a schedule described in subdivision (a) shall be required to work
more than four consecutive days within seven consecutive days.
513 If an employer approves a written request of an employee to make up work
time that is or would be lost as a result of a personal obligation of the employee, the
hours of that makeup work time, if performed in the same workweek in which the
work time was lost, may not be counted towards computing the total number of
hours worked in a day for purposes of the overtime requirements specified in
Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40
hours in one workweek. An employee shall provide a signed written request for
each occasion that the employee makes a request to make up work time pursuant
to this section. An employer is prohibited from encouraging or otherwise soliciting
an employee to request the employer's approval to take personal time off and make
up the work hours within the same week pursuant to this section.
204.3 (a) An employee may receive, in lieu of overtime compensation,
compensating time off at a rate of not less than one and one-half hours for each
hour of employment for which overtime compensation is required by law. If an hour
of employment would otherwise be compensable at a rate of more than one and
one-half times the employee's regular rate of compensation, then the employee
may receive compensating time off commensurate with the higher rate. (b) An
employer may provide compensating time off under subdivision (a) if the following
four conditions are met: (1) The compensating time off is provided pursuant to
applicable provisions of a collective bargaining agreement, memorandum of
understanding, or other written agreement between the employer and the duly
authorized representative of the employer's employees; or, in the case of
employees not covered by the aforementioned agreement or memorandum of
understanding, pursuant to a written agreement entered into between the employer
and employee before the performance of the work. (2) The employee has not
accrued compensating time in excess of the limit prescribed by subdivision (c). (3)
The employee has requested, in writing, compensating time off in lieu of overtime
compensation. (4) The employee is regularly scheduled to work no less than 40
hours in a workweek. (c)(1) An employee may not accrue more than 240 hours of
compensating time off. Any employee who has accrued 240 hours of compensating
time off shall, for any additional overtime hours of work, be paid overtime
compensation. (2) If compensation is paid to an employee for accrued
compensating time off, the compensation shall be paid at the regular rate earned by
the employee at the time the employee receives payment. (d) An employee who
has accrued compensating time off authorized to be provided under subdivision (a)
shall, upon termination of employment, be paid for the unused compensating time
at a rate of compensation not less than the average regular rate received by the
employee during the last three years of the employee's employment, or the final
regular rate received by the employee, whichever is higher. (e)(1) An employee
who has accrued compensating time off authorized to be provided under
subdivision (a), and who has requested the use of that compensating time, shall be
permitted by the employee's employer to use the time within a reasonable period
after making the request, if the use of the compensating time does not unduly
disrupt the operations of the employer. (2) Upon the request of an employee, the
employer shall pay overtime compensation in cash in lieu of compensating time off
for any compensating time off that has accrued for at least two pay periods. (3) For
purposes of determining whether a request to use compensating time has been
granted within a reasonable period, the following factors shall be relevant: (A) The
normal schedule of work. (B) Anticipated peak workloads based on past
experience. (C) Emergency requirements for staff and services. (D) The
availability of qualified substitute staff. (f) Every employer shall keep records that
accurately reflect compensating time earned and used. (g) For purposes of this
section, the terms "compensating time" and "compensating time off" mean hours
during which an employee is not working, which are not counted as hours worked
during the applicable workweek or other work period for purposes of overtime
compensation, and for which the employee is compensated at the employee's
regular rate. (h) This section shall not apply to any employee exempt from the
overtime provisions of the California wage orders. (i) This section shall not apply to
any employee who is subject to the following wage orders of the Industrial Welfare
Commission: Orders No. 8-80, 13-80, and 14-80 (affecting industries handling
products after harvest, industries preparing agricultural products for market on the
farm, and agricultural occupations), Order No. 3-80 (affecting the canning, freezing,
and preserving industry), Orders No. 5-89 and 10-89 (affecting the public
housekeeping and amusement and recreation industries), and Order No. 1-89
(affecting the manufacturing industry).
8:11010. Order Regulating Wages, Hours, and Working Conditions in the
Manufacturing Industry. 1. Applicability of Order This order shall apply to all
persons employed in the manufacturing industry whether paid on a time, piece rate,
commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of
this order shall not apply to persons employed in administrative, executive, or
professional capacities. The following requirements shall apply in determining
whether an employee's duties meet the test to qualify for an exemption from those
sections: (1) Executive Exemption A person employed in an executive capacity
means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees herein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and
independent judgment; and (e) Who is primarily engaged in duties which meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 29 C.F.R. § 541.104- 29 C.F.R. § 111, and 29 C.F.R. §
541.115- 29 C.F.R. § 116. Exempt work shall include, for example, all work that is
directly and closely related to exempt work and work which is properly viewed as a
means for carrying out exempt functions. The work actually performed by the
employee during the course of the work week must, first and foremost, be examined
and the amount of time the employee spends on such work, together with the
employer's realistic expectations and the realistic requirements of the job, shall be
considered in determining whether the employee satisfies this requirement. (f)
Such an employee must also earn a monthly salary equivalent to no less than two
(2) times the state minimum wage for full-time employment. Full-time employment is
defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative
Exemption A person employed in an administrative capacity means any employee:
(a) Whose duties and responsibilities involve either: (i) The performance of office or
non-manual work directly related to management policies or general business
operations of his employer or his employer's customers, or (ii) The performance of
functions in the administration of a school system, or educational establishment or
institution, or of a department or subdivision thereof, in work directly related to the
academic instruction or training carried on therein; and (b) Who customarily and
regularly exercises discretion and independent judgment; and (c) Who regularly and
directly assists a proprietor, or an employee employed in a bona fide executive or
administrative capacity (as such terms are defined for purposes of this section); or
(d) Who performs under only general supervision work along specialized or
technical lines requiring special training, experience, or knowledge; or (e) Who
executes under only general supervision special assignments and tasks; and (f)
Who are primarily engaged in duties that meet the test of the exemption. The
activities constituting exempt work and non-exempt work shall be construed in the
same manner as such terms are construed in the following regulations under the
Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. § 541.201205, 29 C.F.R. § 541.207- 29 C.F.R. § 208, and 29 C.F.R. § 541.210, 29 C.F.R. §
541.215. Exempt work shall include, for example, all work that is directly and closely
related to exempt work and work which is properly viewed as a means for carrying
out exempt functions. The work actually performed by the employee during the
course of the work week must, first and foremost, be examined and the amount of
time the employee spends on such work, together with the employer's realistic
expectations and the realistic requirements of the job, shall be considered in
determining whether the employee satisfies this requirement. (g) Such employee
must also earn a monthly salary equivalent to no less than two times the state
minimum wage for full-time employment. Full-time employment is defined in Labor
Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person
employed in a professional capacity means any employee who meets all of the
following requirements: (a) Who is licensed or certified by the State of California
and is primarily engaged in the practice of one of the following recognized
professions: law, medicine, dentistry, optometry, architecture, engineering,
teaching, or accounting; or (b) Who is primarily engaged in an occupation
commonly recognized as a learned or artistic profession. For the purposes of this
subsection, "learned or artistic profession" means an employee who is primarily
engaged in the performance of: (i) Work requiring knowledge of an advanced type
in a field or science or learning customarily acquired by a prolonged course of
specialized intellectual instruction and study, as distinguished from a general
academic education and from an apprenticeship, and from training in the
performance of routine mental, manual, or physical processes, or work that is an
essential part of or necessarily incident to any of the above work; or (ii) Work that is
original and creative in character in a recognized field of artistic endeavor (as
opposed to work which can be produced by a person endowed with general manual
or intellectual ability and training), and the result of which depends primarily on the
invention, imagination, or talent of the employee or work that is an essential part of
or necessarily incident to any of the above work; and (iii) Whose work is
predominantly intellectual and varied in character (as opposed to routine mental,
manual, mechanical, or physical work) and is of such character that the output
produced or the result accomplished cannot be standardized in relation to a given
period of time. (c) Who customarily and regularly exercises discretion and
independent judgment in the performance of duties set forth in paragraphs (a) and
(b). (d) Who earns a monthly salary equivalent to no less than two (2) times the
state minimum wage for full-time employment. Full-time employment is defined in
Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is
intended to be construed in accordance with the following provisions of federal law
as they existed as of the date of this wage order 29 C.F.R. § 541.207, 29 C.F.R §
541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and 541.310. (f)
Notwithstanding the provisions of this subparagraph, pharmacists employed to
engage in the practice of pharmacy, and registered nurses employed to engage in
the practice of nursing, shall not be considered exempt professional employees, nor
shall they be considered exempt from coverage for the purposes of this
subparagraph unless they individually meet the criteria established for exemption as
executive or administrative employees. (g) Subparagraph (f) above, shall not apply
to the following advanced practice nurses: (i) Certified nurse midwives who are
primarily engaged in performing duties for which certification is required pursuant to
Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the
Business and Professions Code. (ii) Certified nurse anesthetists who are primarily
engaged in performing duties for which certification is required pursuant to Article 7
(commencing with Section 2825) of Chapter 6 of Division 2 of the Business and
Professions Code. (iii) Certified nurse practitioners who are primarily engaged in
performing duties for which certification is required pursuant to Article 8
(commencing with Section 2834) of Chapter 6 of Division 2 of the Business and
Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations
set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection
1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in
the computer software field who is paid on an hourly basis shall be exempt, if all of
the following apply: (i) The employee is primarily engaged in work that is
intellectual or creative and requires the exercise of discretion and independent
judgment. (i) The employee is primarily engaged in duties that consist of one or
more of the following:— The application of systems analysis techniques and
procedures, including consulting with users, to determine hardware, software, or
system functional specifications.— The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design
specifications.— The documentation, testing, creation, or modification of computer
programs related to the design of software or hardware for computer operating
systems. (iii) The employee is highly skilled and is proficient in the theoretical and
practical application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics
and Research shall adjust this pay rate on October 1 of each year to be effective on
January 1 of the following year by an amount equal to the percentage increase in
the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
(j) The exemption provided in subparagraph (h) does not apply to an employee if
any of the following apply: (i) The employee is a trainee or employee in an entrylevel position who is learning to become proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. (ii) The employee is in a computer-related
occupation but has not attained the level of skill and expertise necessary to work
independently and without close supervision. (iii) The employee is engaged in the
operation of computers or in the manufacture, repair, or maintenance of computer
hardware and related equipment. (iv) The employee is an engineer, drafter,
machinist, or other professional whose work is highly dependent upon or facilitated
by the use of computers and computer software programs and who is skilled in
computer-aided design software, including CAD/CAM, but who is not in a computer
systems analysis or programming occupation. (V) The employee is a writer
engaged in writing material, including box labels, product descriptions,
documentation, promotional material, setup and installation instructions, and other
similar written information, either for print or for on screen media or who writes or
provides content material intended to be read by customers, subscribers, or visitors
to computer-related media such as the World Wide Web or CD-ROMs. (vi) The
employee is engaged in any of the activities set forth in sub-paragraph (h) for the
purpose of creating imagery for effects used in the motion picture, television, or
theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the
provisions of this order shall not apply to any employees directly employed by the
State or any political subdivision thereof, including any city, county, or special
district. (C) The provisions of this order shall not apply to outside salespersons.
(D) Provisions of this order shall not apply to any individual who is the parent,
spouse, child, or legally adopted child of the employer. (E) The provisions of this
order shall not apply to any individual participating in a national service program,
such as AmeriCorps, carried out using assistance provided under Section 12571 of
Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending California
Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule"
means any regularly scheduled workweek requiring an employee to work more than
eight (8) hours in a 24-hour period (B) "Commission" means the Industrial Welfare
Commission of the State of California. (C) "Division" means the Division of Labor
Standards Enforcement of the State of California. (D) "Employ" means to engage,
suffer, or permit to work. (E) "Employee" means any person employed by an
employer. (F) "Employer" means any person as defined in Section 18 of the Labor
Code, who directly or indirectly, or through an agent or any other person, employs
or exercises control over the wages, hours, or working conditions of any person.
(G) "Hours worked" means the time during which an employee is subject to the
control of an employer, and includes all the time the employee is suffered or
permitted to work, whether or not required to do so. (H) "Manufacturing Industry"
means any industry, business, or establishment operated for the purpose of
preparing, producing, making, altering, repairing, finishing, processing, inspecting,
handling, assembling, wrapping, bottling, or packaging goods, articles, or
commodities, in whole or in part; EXCEPT when such activities are covered by
Orders in the: Canning, Preserving, and Freezing Industry; Industries Handling
Products After Harvest; Industries Preparing Agricultural Products for Market, on
the Farm; or Motion Picture Industry. (I) "Minor" means, for the purpose of this
Order, any person under the age of 18 years. (J) "Outside salesperson" means any
person, 18 years of age or over, who customarily and regularly works more than
half the working time away from the employer's place of business selling tangible or
intangible items or obtaining orders or contracts for products, services or use of
facilities. (K) "Primarily" as used in Section 1, Applicability, means more than onehalf the employee's work time. (L) "Shift" means designated hours of work by an
employee, with a designated beginning time and quitting time. (M) "Split shift"
means a work schedule, which is interrupted by non-paid non-working periods
established by the employer, other than bona fide rest or meal periods. (N)
"Teaching" means, for the purpose of Section 1 of this order, the profession of
teaching under a certificate from the Commission for Teacher Preparation and
Licensing or teaching in an accredited college or university. (O) "Wages" includes
all amounts for labor performed by employees of every description, whether the
amount is fixed or ascertained by the standard of time, task, piece, commission
basis, or other method of calculation. (P) "Workday" and "day" means any
consecutive 24-hour period beginning at the same time each calendar day. (Q)
"Workweek" and "week" means any seven (7) consecutive days, starting with the
same calendar day each week. "Workweek" is a fixed and regularly recurring period
of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work
(A) Daily Overtime-General Provisions (1) The following overtime provisions are
applicable to employees 18 years of age or over and to employees 16 or 17 years
of age who are not required by law to attend school and are not otherwise
prohibited by law from engaging in the subject work. Such employees shall not be
employed more than eight (8) hours in any workday or more than 40 in a workweek
unless the employee receives one and one half (1 1/2) times such employee's
regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8)
hours of labor constitutes a day's work. Employment beyond eight (8) hours in any
workday or more than six (6) days in any workweek is permissible provided the
employee is compensated for such overtime at not less than: (a) One and one-half
(1 1/2) times the employee's regular rate of pay for all hours worked in excess of
eight (8) hours up to and including twelve (12) hours in any workday, and for the
first eight (8) hours worked on the seventh (7th) consecutive day of work in a
workweek; and (b) Double the employee's regular rate of pay for all hours worked in
excess of 12 hours in any workday and for all hours worked in excess of eight (8)
hours on the seventh (7th) consecutive day of work in a workweek. (c) The
overtime rate of compensation required to be paid to a non-exempt full-time salaried
employee shall be computed by using the employee's regular hourly salary as one
fortieth (1/40) of the employee's weekly salary. (2) The provisions of this section
are not applicable to employees whose hours of service: (a) The United States
Department of Transportation Code of Federal Regulations, Title 49, Sections 49
C.F.R. § 395.1 to 49 C.F.R. § 395.13, Hours of Service of Drivers; or (b) Title 13 of
the California Code of Regulations, subchapter 6.5, Section 13:1200 and the
following sections, regulating hours of drivers. (B) Alternative Workweeks (1) No
employer shall be deemed to have violated the daily overtime provisions by
instituting, pursuant to the election procedures set forth in this wage order, a
regularly scheduled alternative workweek schedule of not more than ten (10) hours
per day within a 40 hour workweek without the payment of an overtime rate of
compensation. All work performed in any workday beyond the schedule established
by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid
at one and one-half (1 1/2) times the employee's regular rate of pay. All work
performed in excess of 12 hours per day and any work in excess of eight (8) hours
on those days worked beyond the regularly scheduled number of workdays
established by the alternative workweek agreement shall be paid at double the
employee's regular rate of pay. Any alternative workweek agreement adopted
pursuant to this section shall provide for not less than four (4) hours of work in any
shift. Nothing in this section shall prohibit an employer, at the request of the
employee, to substitute one day of work for another day of the same length in the
shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two (2) consecutive days off within a workweek.
(3) If an employer, whose employees have adopted an alternative workweek
agreement permitted by this order requires an employee to work fewer hours than
those that are regularly scheduled by the agreement, the employer shall pay the
employee overtime compensation at a rate of one and one-half (1 1/2) times the
employee's regular rate of pay for all hours worked in excess of eight (8) hours, and
double the employee's regular rate of pay for all hours worked in excess of 12 hours
for the day the employee is required to work the reduced hours. (4) 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. (5) 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. (6) An employer shall
make a reasonable effort to find a work schedule not to exceed eight (8) 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
workweek schedule established as the result of that election. (7) An employer shall
be permitted, but not required, to provide a work schedule not to exceed eight (8)
hours in a workday to accommodate any employee who is hired after the date of the
election and who is unable to work the alternative workweek schedule established
by the election. (8) Arrangements adopted in a secret ballot election held pursuant
to this order prior to 1998, or under the rules in effect prior to 1998, and before the
performance of the work, shall remain valid after July 1, 2000 provided that the
results of the election are reported by the employer to the Division of Labor
Statistics and Research by January 1, 2001, in accordance with the requirements of
subsection (C) below (Election Procedures). If an employee was voluntarily working
an alternative workweek schedule of not more than ten (10) hours a day as of July
1, 1000, that alternative workweek schedule was based on an individual agreement
made after January 1, 1998 between the employee and employer, and the
employee submitted, and the employer approved, a written request on or before
May 30, 2000 to continue the agreement, the employee may continue to work that
alternative workweek schedule without payment of an overtime rate of
compensation for the hours provided in the agreement. The employee may revoke
his or her voluntary authorization to continue such a schedule with 30 days written
notice to the employer. New arrangements can only be entered into pursuant to the
provisions of this section. (C) Election Procedures Election procedures for the
adoption and repeal of alternative workweek schedules require the following: (1)
Each proposal for an alternative workweek schedule shall be in the form of a written
agreement proposed by the employer. The proposed agreement must designate a
regularly scheduled alternative workweek in which the specified number of work
days and work hours are regularly recurring. The actual days worked within that
alternative workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection is met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the Labor Commissioner, the Labor Commissioner
may require the employer to select a neutral third party to conduct the election. (5)
Any type of alternative workweek schedule that is authorized by the Labor Code
may be repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, a new secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either
in support of or in opposition to a proposed alternative workweek. No employees
shall be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and
one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40
hours in any workweek except minors 16 or 17 years old who are not required by
law to attend school and may there-fore be employed for the same hours as an
adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (E) An employee may be
employed on seven (7) workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) The provisions of
Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not
be construed to prevent an accumulation of days of rest when the nature of the
employment reasonably requires the employee to work seven (7) or more
consecutive days; provided, however, that in each calendar month, the employee
shall receive the equivalent of one (1) day's rest in seven (7). (G) If a meal period
occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m.,
facilities shall be available for securing hot food and drink or for heating food or
drink, and a suitable sheltered place shall be provided in which to consume such
food or drink. (H) Except as provided in subsections (D) and (F), this section shall
not apply to any employee covered by a valid collective bargaining agreement if the
agreement expressly provides for the wages, hours of work, and working conditions
of the employees, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those employees of not
less than 30 percent more than the state minimum wage. (I) Notwithstanding
subsection (H) above, where the employer and a labor organization representing
employees of the employer have entered into a valid collective bargaining
agreement pertaining to the hours of work of the employees, the requirement
regarding the equivalent of one (1) day's rest in seven (7) (see section (F) above)
shall apply, unless the agreement expressly provides otherwise. (J) If an employer
approves a written request of an employee to make up work time that is or would be
lost as a result of a personal obligation of the employee, the hours of that makeup
work time, if performed in the same workweek in which the work time was lost, may
not be counted toward computing the total number of hours worked in a day for
purposes of the overtime requirements, except for hours in excess of 11 hours of
work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows
in advance that he or she will be requesting makeup time for a personal obligation
that will recur at a fixed time over a succession of weeks, the employee may
request to make up work time for up to four (4) weeks in advance; provided,
however, that the make up work must be performed in the same week that the work
time was lost. An employee shall provide a signed written request for each occasion
that the employee makes a request to make up work time pursuant to this
subsection. While an employer may inform an employee of this makeup time option,
the employer is prohibited from encouraging or otherwise soliciting an employee to
request the employer's approval to take personal time off and make up the work
hours within the same workweek pursuant to this subsection. 4. Minimum Wages
(A) Every employer shall pay to each employee wages not less than six dollars and
twenty-five cents ($6.25) per hour for all hours worked effective January 1, 2001,
and not less than six dollars and seventy-five cents ($6.75) per hour for all hours
worked effective January 1, 2002, except: LEARNERS: Employees during their first
160 hours of employment in occupations in which they have no previous similar or
related experience, may be paid not less than 85% percent of the minimum wage
rounded to the nearest nickel. (B) Every employer shall pay to each employee, on
the established payday for the period involved, not less than the applicable
minimum wage for all hours worked in the payroll period, whether the remuneration
is measured by time, piece, commission, or otherwise. (C) When an employee
works a split shift, one hour's pay at the minimum wage shall be paid in addition to
the minimum wage for that workday, except when the employee resides at the
place of employment. (D) The provisions of this section shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. 5. Reporting Time Pay (A) Each workday an employee is required to
report for work and does report, but is not put to work or is furnished less than half
said employee's usual or scheduled day's work, the employee shall be paid for half
the usual or scheduled day's work, but in no event for less than two (2) hours nor
more than four (4) hours, at the employee's regular rate of pay, which shall not be
less than the minimum wage. (B) If an employee is required to report for work a
second time in any one workday and is furnished less than two hours of work on the
second reporting, said employee shall be paid for two (2) hours at the employee's
regular rate of pay, which shall not be less than the minimum wage. (C) The
foregoing reporting time pay provisions are not applicable when: (1) Operations
cannot commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be
issued by the Division authorizing employment of a person whose earning capacity
is impaired by physical disability or mental deficiency at less than the minimum
wage. Such licenses shall be granted only upon joint application of employer and
employee and employee's representative if any. (B) A special license may be
issued to a nonprofit organization such as a sheltered workshop or rehabilitation
facility fixing special minimum rates to enable the employment of such persons
without requiring individual licenses of such employees. (C) All such licenses and
special licenses shall be renewed on a yearly basis or more frequently at the
discretion of the Division. (See California Labor Code, Sections 1191 and 1191.5)
7. Records (A) Every employer shall keep accurate information with respect to
each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6)
When a piece rate or incentive plan is in operation, piece rates or an explanation of
the incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day,
and year and shall be kept on file by the employer for at least three (3) years at the
place of employment or at a central location within the State of California. An
employee's records shall be available for inspection by the employee upon
reasonable request. (D) Clocks shall be provided in all major work areas or within
reasonable distance thereto insofar as practicable. 8. Cash Shortage and
Breakage No employer shall make any deduction from the wage or require any
reimbursement from an employee for any cash shortage, breakage, or loss of
equipment, unless it can be shown that the shortage, breakage, or loss is caused
by a dishonest or willful act, or by the gross negligence of the employee. 9.
Uniforms and Equipment (A) When uniforms are required by the employer to be
worn by the employee as a condition of employment, such uniforms shall be
provided and maintained by the employer. The term "uniform" includes wearing
apparel and accessories of distinctive design or color. NOTE: This section shall not
apply to protective apparel regulated by the Occupational Safety and Health
Standards Board. (B) When tools or equipment are required by the employer or are
necessary to the performance of a job, such tools and equipment shall be provided
and maintained by the employer, except that an employee whose wages are at
least two (2) times the minimum wage provided herein may be required to provide
and maintain hand tools and equipment customarily required by the trade or craft.
This subsection (B) shall not apply to apprentices regularly indentured under the
State Division of Apprenticeship Standards. NOTE: This section shall not apply to
protective equipment and safety devices on tools regulated by the Occupational
Safety and Health Standards Board. (C) A reasonable deposit may be required as
security for the return of the items furnished by the employer under provisions of
subsection (A) and (B) of this section upon issuance of a receipt to the employee for
such deposit. Such deposits shall be made pursuant to Section 400 and following of
the Labor Code or an employer with the prior written authorization of the employee
may deduct from the employee's last check the cost of an item furnished pursuant
to subsections (A) and (B) above in the event said item is not returned. No
deduction shall be made at any time for normal wear and tear. The employee upon
completion of the job shall return all items furnished by the employer. 10. Meals
and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of
wholesome, nutritious foods. (B) "Lodging" means living accommodations
available to the employee for full-time occupancy, which are adequate, decent, and
sanitary according to usual and customary standards. Employees shall not be
required to share a bed. (C) Meals or lodging may not be credited against the
minimum wage without a voluntary written agreement between the employer and
the employee. When credit for meals or lodging is used to meet part of the
employer's minimum wage obligation, the amounts so credited may not be more
than the following:
Effective Dates:
Lodging: Room occupied alone
Room shared
January 1, 2001
January 1, 2002
$29.40 per week
$31.75 per week
$24.25 per week
Apartment — two-thirds
$352.95 per month
(2/3)
of the ordinary rental value, and in no event more than
$26.20 per week
$381.20 per month
Where a couple are
$522.10 per month
$563.90 per month
both employed by the employer, two-thirds (2/3) of the ordinary rental
value, and in no event more than
Meals —
Breakfast
$2.25
$2.45
Lunch
$3.10
$3.35
Dinner
$4.15
$4.50
(D) Meals evaluated, as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the
employee must live at the place of employment or occupy quarters owned or under
the control of the employer, then the employer may not charge rent in excess of the
values listed herein. 11. Meal Periods (A) No employer shall employ any person
for a work period of more than five (5) hours without a meal period of not less than
30 minutes, except that when a work period of not more than six (6) hours will
complete the day's work the meal period may be waived by mutual consent of the
employer and employee. (B) An employer may not employ an employee for a work
period of more than ten (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. (C) Unless the employee is relieved of all duty during a 30 minute meal
period, the meal period shall be considered an "on duty" meal period and counted
as time worked. An "on duty" meal period shall be permitted only when the nature of
the work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each work day that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each work day that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The
temperature maintained in each work area shall provide reasonable comfort
consistent with industry-wide standards for the nature of the process and the work
performed. (B) If excessive heat or humidity is created by the work process, the
employer shall take all feasible means to reduce such excessive heat or humidity to
a degree providing reasonable comfort. Where the nature of the employment
requires a temperature of less than 60° F., a heated room shall be provided to
which employees may retire for warmth, and such room shall be maintained at not
less than 68°. (C) A temperature of not less than 68° shall be maintained in the
toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and
State energy guidelines shall prevail over any conflicting provision of this section.
16. Elevators Adequate elevator, escalator or similar service consistent with
industry-wide standards for the nature of the process and the work performed shall
be provided when employees are employed four floors or more above or below
ground level. 17. Exemptions If, in the opinion of the Division after due
investigation, it is found that the enforcement of any provision contained in Section
7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting
Facilities; Section 14. Seats; Section 15, Temperature; or Section 16, Elevators,
would not materially affect the welfare or comfort of employees and would work an
undue hardship on the employer, exemption may be made at the discretion of the
Division. Such exemptions shall be in writing to be effective and may be revoked
after reasonable notice is given in writing. Application for exemption shall be made
by the employer or by the employee and/or the employee's representative to the
Division in writing. A copy of the application shall be posted at the place of
employment at the time the application is filed with the Division. 18. Filing Reports
(See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor
Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A)
In addition to any other civil penalties provided by law, any employer or any other
person acting on behalf of the employer who violates, or causes to be violated, the
provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation
— $50.00 for each underpaid employee for each pay period during which the
employee was underpaid in addition to the amount which is sufficient to recover
unpaid wages. (2) Subsequent Violations — $100.00 for each underpaid
employee for each pay period during which the employee was underpaid in addition
to an amount which is sufficient to recover unpaid wages. (3) The affected
employee shall receive payment of all wages recovered. (B) The Labor
Commissioner may also issue citations pursuant to California Labor Code Section
1197.1 for non-payment of wages for overtime work in violation of this order. 21.
Separability If the application of any provision of this order, or any section,
subsection, subdivision, sentence, clause, phrase, word, or portion of this order
should be held invalid or unconstitutional or unauthorized or prohibited by statute,
the remaining provisions thereof shall not be affected thereby, but shall continue to
be given full force and effect as if the part so held invalid or unconstitutional had not
been included herein. 22. Posting of Order Every employer shall keep a copy of
this order posted in an area frequented by employees where it may be easily read
during the workday. Where the location of work or other conditions make this
impractical, every employer shall keep a copy of this order and make it available to
every employee upon request.
8:11020. Order Regulating Wages, Hours, and Working Conditions in
the Personal Service Industry. 1. Applicability of Order This order shall apply
to all persons
employed in the personal service industry whether paid on a time, piece rate,
commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of
this order shall not apply to persons employed in administrative, executive, or
professional capacities. The following requirements shall apply in determining
whether an employee's duties meet the test to qualify for an exemption from those
sections: (1) Executive Exemption A person employed in an executive capacity
means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees therein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and
independent judgment; and (e) Who is primarily engaged in duties which meet the
test of the exemption. shall be construed in the same manner as such items are
construed in the following regulations under the Fair Labor Standards Act effective
as of the date of this order 29 C.F.R. § 541.102, 541.104-111, and 541.115-116.
Exempt work shall include, for example, all work that is directly and closely related
to exempt work and work which is properly viewed as a means for carrying out
exempt functions. The work actually performed by the employee during the course
of the workweek must, first and foremost, be examined and the amount of time the
employee spends on such work, together with the employer's realistic expectations
and the realistic requirements of the job, shall be considered in determining whether
the employee satisfies this requirement. (1) Such an employee must also earn a
monthly salary equivalent to no less than two (2) times the state minimum wage for
full-time employment. Full-time employment is defined in Labor Code Section
515(c) as 40 hours per week. (2) Administrative Exemption A person employed in
an administrative capacity means any employee: (a) Whose duties and
responsibilities involve either: (i) The performance of office or non-manual work
directly related to
management policies or general business operations of his/her employer or his/her
employer's customers; or (ii) The performance of functions in the administration of a
school system, or educational establishment or institution, or of a department or
subdivision thereof, in work directly related to the academic instruction or training
carried on therein; and (b) Who customarily and regularly exercises discretion and
independent judgment; and (c) Who regularly and directly assists a proprietor, or
an employee employed in a bona fide executive or administrative capacity (as such
terms are defined for purposes of this section); or (d) Who performs under only
general supervision work along specialized
or technical lines requiring special training, experience, or knowledge; or (e) Who
executes under only general supervision special assignments and tasks; and (f)
Who is primarily engaged in duties that meet the test of the exemption. The
activities constituting exempt work and non-exempt work shall be construed in the
same manner as such terms are construed in the following regulations under the
Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. § 541.201205, 541.207-208,
541.210, and 541.215. Exempt work shall include, for example, all work that is
directly and closely related to exempt work and work which is properly viewed as a
means for carrying out exempt functions. The work actually performed by the
employee during the course of the workweek
must, first and foremost, be examined and the amount of time the employee spends
on such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in California Labor Code Section
515(c) as 40 hours per week. (3) Professional Exemption A person employed in a
professional capacity means any employee who meets all of the following
requirements: (a) Who is licensed or certified by the State of California and is
primarily engaged in the practice of one of the following recognized professions:
law, medicine, dentistry, optometry, architecture, engineering, teaching, or
accounting; or (b) Who is primarily engaged in an occupation commonly recognized
as a learned or artistic profession. For the purposes of this subsection, "learned or
artistic profession" means an employee who is primarily engaged in the
performance of: (i) Work requiring knowledge of an advanced type in a field or
science
or learning customarily acquired by a prolonged course of specialized intellectual
instruction and study, as distinguished from a general academic education and from
an apprenticeship, and from training in the
performance of routine mental, manual, or physical processes, or work that is an
essential part of or necessarily incident to any of the above work; or (ii) Work that is
original and creative in character in a recognized field of artistic endeavor (as
opposed to work which can be produced by a person endowed with general manual
or intellectual ability and training), and the result of which depends primarily on the
invention, imagination, or talent of the employee or work that is an essential part of
or necessarily incident to any of the above work; and (iii) Whose work is
predominantly intellectual and varied in character (as opposed to routine mental,
manual, mechanical, or physical work) and is of such character that the output
produced or the result accomplished cannot be standardized in relation to a given
period of time. (c) Who customarily and regularly exercises discretion and
independent judgment in the performance of duties set forth in subparagraphs (a)
and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times
the state minimum wage for full-time employment. Full-time employment is defined
in California Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph
(b) above is intended to be construed in accordance with the following provisions of
federal law as they existed as of the date of this wage order: 29 C.F.R. § 541.207,
541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and 541.310. (f)
Notwithstanding the provisions of this subparagraph, pharmacists employed to
engage in the practice of pharmacy, and registered nurses employed to engage in
the practice of nursing, shall not be considered exempt professional employees, nor
shall they be considered exempt from coverage for the purposes of this
subparagraph unless they individually meet the criteria established for exemption as
executive or administrative employees. (g) Subparagraph (1) above shall not apply
to the following advanced practice nurses: (i) Certified nurse midwives who are
primarily engaged in performing duties for which certification is required pursuant to
Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the
Business and Professions Code. (ii) Certified nurse anesthetists who are primarily
engaged in performing duties for which certification is required pursuant to Article 7
(commencing with Section 2825) of Chapter 6 of Division 2 of the Business and
Professions Code. (iii) Certified nurse practitioners who are primarily engaged in
performing duties for which certification is required pursuant to Article 8
(commencing with Section 2834) of Chapter 6 of Division 2 of the Business and
Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations
set
forth in clause (i), (ii), and (iii) from meeting the requirements of subsection
1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in
the computer software field who is paid on an hourly basis shall be exempt, if all of
the following apply: (i) The employee is primarily engaged in work that is intellectual
or creative and requires the exercise of discretion and independent judgment (ii)
The employee is primarily engaged in duties that consist of one or more of the
following: — The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software, or system
functional specifications. — The design, development, documentation, analysis,
creation, testing, or modification of computer systems or programs, including
prototypes, based on and related to user or system design specifications. — The
documentation, testing, creation, or modification of computer programs related to
the design of software or hardware for computer operating systems. (iii) The
employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics
and Research shall adjust this pay rate on October 1 of each year to be
effective on January 1 of the following year by an amount equal to the percentage
increase in the California Consumer Price Index for Urban Wage Earners and
Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to
an employee if any of the following apply: (i) The employee is a trainee or employee
in an entry-level position who is learning to become proficient in the theoretical and
practical application of highly specialized information to computer systems analysis,
programming, and software engineering. (ii) The employee is in a computer-related
occupation but has not attained the level of skill and expertise necessary to work
independently and without close supervision. (iii) The employee is engaged in the
operation of computers or in the manufacture, repair, or maintenance of computer
hardware and related equipment. (iv) The employee is an engineer, drafter,
machinist, or other professional whose work is highly dependent upon or facilitated
by the use
of computers and computer software programs and who is skilled in computer-aided
design software, including CAD/CAM, but who is not in a computer systems
analysis or programming occupation. (v) The employee is a writer engaged in
writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) The
provisions of this order shall not apply to outside salespersons. (D) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child of the employer. (E) The provisions of this order shall not
apply to any individual
participating in a national service program, such as AmeriCorps, carried out using
assistance provided under Section 12571 of Title 42 of the United States Code.
(See Stats. 2000, ch. 365, amending Labor
Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means
any regularly scheduled workweek requiring an employee to work more than eight
(8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare
Commission of the State of California. (C) "Division" means the Division of Labor
Standards Enforcement of the State of California. (D) "Employ" means to engage,
suffer, or permit to work. (E) "Employee" means any person employed by an
employer, and includes any lessee who is charged rent, or who pays rent for a
chair, booth, or space and (1) Who does not use his/her own funds to purchase
requisite supplies; and (2) Who does not maintain an appointment book separate
and distinct from that of the establishment in which the space is located; and (3)
Who does not have a business license where applicable. (F) "Employer" means
any person as defined in Section 18 of the Labor Code, who directly or indirectly, or
through an agent or any other person, employs or exercises control over the wages,
hours, or working conditions of any person. (G) "Hours worked" means the time
during which an employee is subject to the control of an employer, and includes all
the time the employee is suffered or permitted to work, whether or not required to
do so. (H) "Minor" means, for the purpose of this order, any person under the age
of 18 years. (I) "Outside salesperson" means any person, 18 years of age or over,
who customarily and regularly works more than half the working time away from the
employer's place of business selling tangible or intangible items or obtaining orders
or contracts for products, services or use of facilities. (J) "Personal Service
Industry" means any industry, business, or establishment operated for the purpose
of rendering, directly or indirectly, any service, operation, or process used or useful
in the care, cleansing, or beautification of the body, skin, nails, or hair, nor in the
enhancement of personal appearance or health, including but not
limited to beauty salons, schools of beauty culture offering beauty care to the public
for a fee, barber shops, bath and massage parlors, physical conditioning, weight
control salons, health clubs, and mortuaries. (K) "Primarily" as used in Section 1,
Applicability, means more than one-half the employee's work time. (L) "Shift"
means designated hours of work by an employee, with a designated beginning time
and ending time. (M) "Split shift" means a work schedule, which is interrupted by
non-paid non-working periods established by the employer, other than bona fide
rest or meal periods (N) "Teaching" means, for the purpose of Section 1 of this
order, the profession of teaching under a certificate from the Commission for
Teacher Preparation and Licensing or teaching in an accredited college or
university. (O) "Wages" includes all amounts for labor performed by employees
of every description, whether the amount is fixed or ascertained by the standard of
time, task, piece, commission basis, or other method of calculation. (P) "Workday"
and "day" mean any consecutive 24-hour period beginning at the same time each
calendar day. Q) "Workweek" and "week" mean any seven (7) consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed and regularly
recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours
and Days of Work (A) Daily Overtime — General Provisions (1) The following
overtime provisions are applicable to employees 18 years of age or over and to
employees 16 or 17 years of age who are not
required by law to attend school and are not otherwise prohibited by law from
engaging in the subject work. Such employees shall not be employed more than
eight (8) hours in any workday or more than 40 hours in any workweek unless the
employee receives one and one-half (1 1/2) times such employee's regular rate of
pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor
constitutes a day's work. Employment beyond eight (8) hours in any workday or
more than six (6) days in any workweek is permissible provided the employee is
compensated for such overtime at not less than: (a) One and one-half (1 1/2) times
the employee's regular rate of pay for all hours worked in excess of eight (8) hours
up to and including 12 hours in any workday, and for the first eight (8) hours worked
on the seventh (7th) consecutive day of work in a workweek; and (b) Double the
employee's regular rate of pay for all hours worked in excess of 12 hours in any
workday and for all hours worked in excess of 8 hours on the seventh (7th)
consecutive day of work in a workweek. (2) The overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee shall be computed
by using the employee's regular hourly salary as one-fortieth (1/40) of the
employee's weekly salary. (B) Alternative Workweek (1) No employer shall be
deemed to have violated the daily overtime
provisions by instituting, pursuant to the election procedures set forth in this wage
order, a regularly scheduled alternative workweek schedule of not more than ten
(10) hours per day within a 40 hour workweek without the payment of an overtime
rate of compensation. All work performed in any workday beyond the schedule
established by the agreement up to 12 hours a day or beyond 40 hours per week
shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay.
All work performed in excess of 12 hours per day and any work in excess of eight
(8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than 4 hours of work in
any shift. Nothing in this section shall prohibit an employer, at the request of the
employee, to substitute one day of work
for another day of the same length in the shift provided by the alternative workweek
agreement on an occasional basis to meet the personal needs of the employee
without the payment of overtime. No hours
paid at either one and one-half (1 1/2) or double the regular rate of pay shall be
included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed 8 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 workweek schedule established as the
result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed 8 hours in a workday to accommodate any
employee who is hired after the date of the election and who is unable to work the
alternative workweek schedule established by the election. (8) Arrangements
adopted in a secret ballot election held pursuant to this order prior to 1998, or under
the rules in effect prior to 1998, and before the performance of the work, shall
remain valid after July 1, 2000 provided that the results of the election are reported
by the employer to the Division of Labor Statistics and Research by January 1,
2001, in accordance with the requirements of subsection (C) below (Election
Procedures). If an employee was voluntarily working an alternative workweek
schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative
workweek schedule was based on an individual agreement made after January 1,
1998 between the employee and employer, and the employee submitted, and the
employer approved, a written request on or before May 30, 2000 to continue the
agreement, the employee may continue to work that alternative workweek schedule
without payment of an overtime rate of compensation for the hours provided in the
agreement. The employee may revoke his/her voluntary authorization to continue
such a schedule with 30 days written notice to the employer. New arrangements
can only be entered into pursuant to the provisions of this section. (C) Election
Procedures Election procedures for the adoption and repeal of alternative
workweek schedules require the following: (1) Each proposal for an alternative
workweek schedule shall be in the form of a written agreement proposed by the
employer. The proposed agreement must designate a regularly scheduled
alternative workweek in which the specified number of work days and work hours
are regularly recurring. The actual days worked within that alternative workweek
schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule options, the employee
may, with the approval of the employer, move from one menu option to another.
(2) In order to be valid, the proposed alternative workweek schedule must be
adopted in a secret ballot election, before the performance of work, by at least a
two-thirds (2/3) vote of the affected employees in the work unit. The election shall
be held during regular working hours at the employees' work site. For purposes of
this subsection, "affected employees in the work unit" may include all employees in
a readily identifiable work unit, such as a division, a department, a job classification,
a shift, a separate physical location, or a recognized subdivision of any such work
unit. A work unit may consist of an individual employee as long as the criteria for an
identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote,
any employer who proposed to institute an alternative workweek schedule shall
have made a disclosure in writing to the affected employees, including the effects of
the proposed arrangement on the employees' wages, hours, and benefits. Such a
disclosure shall include meeting(s), duly noticed, held at least 14 days prior to
voting, for the specific purpose of discussing the effects of the alternative workweek
schedule. An employer shall provide that disclosure in a non-English language, as
well as in English, if at least five (5) percent of the affected employees primarily
speak that non-English language. The employer shall mail the written disclosure to
employees who do not attend the meeting. Failure to comply with this paragraph
shall make the election null and void. (4) Any election to establish or repeal an
alternative workweek schedule shall be held at the work site of the affected
employees. The employer shall bear the costs of conducting any election held
pursuant to this section. Upon a complaint by an affected employee, and after an
investigation by the labor commissioner, the labor commissioner may require the
employer to select a neutral third party to conduct the election. (5) Any type of
alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either
in support of or in opposition to a proposed alternative workweek. No employees
shall be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and
one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40
hours in any workweek except minors 16 or 17 years old who are not required by
law to attend school and may therefore be employed for the same hours as an adult
are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (E) An employee may be
employed on seven (7) workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) The provisions
of Labor Code Sections 551 and 552 regarding 1 day's rest in 7 shall not be
construed to prevent an accumulation of days of rest when the nature of the
employment reasonably requires the employee to work 7 or more consecutive days;
provided, however, that in each calendar month, the employee shall receive the
equivalent of one (1) day's rest in 7. (G) If a meal period occurs on a shift beginning
or ending at or between the hours of 10 p.m. and 6 am., facilities shall be available
for securing hot food and drink or for heating food or drink, and a suitable sheltered
place shall be provided in which to consume such food or drink. (H) Except as
provided in subsections (D) and (F), this section shall not apply to any employee
covered by a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of the employees,
and if the agreement provides premium wage rates for all overtime hours worked
and a regular hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage. (I) Notwithstanding subsection (H) above,
where the employer and a labor organization representing employees of the
employer have entered into a valid collective bargaining agreement pertaining to the
hours of work of the employees, the requirement regarding the equivalent of 1 day's
rest in 7 (see subsection (F) above) shall apply, unless the agreement expressly
provides otherwise. (J) The provisions of this section are not applicable to
employees whose hours of service are regulated by: (1) The United States
Department of Transportation Code of Federal Regulations, Title 49, Sections 49
C.F.R. § 395.1 to 49 C.F.R. § 395.13, Hours of Service of Drivers; or (2) Title 13 of
the California Code of Regulations, subchapter 6.5, Section 13 C.F.R. § 395.13 and
the following sections, regulating hours of drivers. (K) If an employer approves a
written request of an employee to make up work time that is or would be lost as a
result of a personal obligation of the employee, the hours of that makeup work time,
if performed in the same workweek in which the work time was lost, may not be
counted toward computing the total number of hours worked in a day for purposes
of the overtime requirements, except for hours in excess of 11 hours of work in one
(1) day or 40 hours of work in one (1) workweek. If an employee knows in advance
that he/she will be requesting makeup time for a personal obligation that will recur
at a fixed time over a succession of weeks, the employee may request to make up
work time for up to four (4) weeks in advance; provided, however, that the makeup
work must be performed in the same week that the work time was lost. An
employee shall provide a signed written request for each occasion that the
employee makes a request to make up work time pursuant to this subsection. While
an employer may inform an employee of this makeup time option, the employer is
prohibited from encouraging or otherwise soliciting an employee to request the
employer's approval to take personal time off and make up the work hours within
the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every
employer shall pay to each employee wages not less than six dollars and twentyfive cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not
less than six dollars and seventy-five cents ($6.75) per hour for all hours worked,
effective January 1, 2002, except: LEARNERS. Employees during their first 160
hours of employment in occupations in which they have no previous similar or
related experience, may be paid not less than 85 percent of the minimum wage
rounded to the nearest nickel. (B) Every employer shall pay to each employee, on
the established payday for the period involved, not less than the applicable
minimum wage for all hours worked in the payroll period, whether the remuneration
is measured by time, piece, commission, or otherwise. (C) When an employee
works a split shift, one hour's (1) pay at the minimum wage shall be paid in addition
to the minimum wage for that workday, except when the employee resides at the
place of employment. (C) The provisions of this section shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. 5. Reporting Time Pay (A) Each workday an employee is required to
report for work and does report, but is not put to work or is furnished less than half
said employee's usual or scheduled day's work, the employee shall be paid for half
the usual or scheduled day's work, but in no event for less than two (2) hours nor
more than four (4) hours, at the employee's regular rate of pay, which shall not be
less than the minimum wage. (B) If an employee is required to report for work a
second time in any one workday and is furnished less than two (2) hours of work on
the second reporting, said employee shall be paid for two (2) hours at the
employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1)
Operations cannot commence or continue due to threats to employees or property;
or when recommended by civil authorities; or (2) Public utilities fail to supply
electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
or (3) An Act of God or other cause not within the employer's control causes the
interruption of work. (D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time other than the
employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special
license may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with
respect to each employee including the following: (1) Full name, home address,
occupation and social security number. (2) Birth date, if under 18 years, and
designation as a minor. (1) Time records showing when the employee begins and
ends each work period. Meal periods, split shift intervals and total daily hours
worked shall also be recorded. Meal periods during which operations cease and
authorized rest periods need not be recorded. (4) Total wages paid each payroll
period, including value of board, lodging, or other compensation actually furnished
to the employee. (5) Total hours worked in the payroll period and applicable rates
of pay. This information shall be made readily available to the employee upon
reasonable request. (6) When a piece rate or incentive plan is in operation, piece
rates or an explanation of the incentive plan formula shall be provided to
employees. The employer shall maintain an accurate production record. (B) Every
employer shall semimonthly or at the time of each payment of wages furnish each
employee, either as a detachable part of the check, draft, or voucher paying the
employee's wages, or separately, an itemized statement in writing showing: (1) all
deductions; (2) the inclusive dates of the period for which the employee is paid; (3)
the name of the employee or the employee's social security number; and (4) the
name of the employer, provided all deductions made on written orders of the
employee may be aggregated and shown as one item. (C) All required records
shall be in the English language and in ink or other indelible form, properly dated,
showing month, day and year, and shall be kept on file by the employer for at least
three years at the place of employment or at a central location within the State of
California. An employee's records shall be available for inspection by the employee
upon reasonable request. (D) Clocks shall be provided in all major work areas or
within reasonable distance thereto insofar as practicable. 8. Cash Shortage and
Breakage No employer shall make any deduction from the wage or require any
reimbursement from an employee for any cash shortage, breakage, or loss of
equipment, unless it can be shown that the shortage, breakage, or loss is caused
by a dishonest or willful act, or by the gross negligence of the employee. 9.
Uniforms and Equipment (A) When uniforms are required by the employer to be
worn by the employee as a condition of employment, such uniforms shall be
provided and maintained by the employer. The term "uniform" includes wearing
apparel and accessories of distinctive design or color. NOTE: This section shall not
apply to protective apparel regulated by the Occupational Safety and Health
Standards Board. (B) When tools or equipment are required by the employer or
are necessary to the performance of a job, such tools and equipment shall be
provided and maintained by the employer, except that an employee whose wages
are at least two (2) times the minimum wage provided herein may be required to
provide and maintain hand tools and equipment customarily required by the trade or
craft. This subsection (B) shall not apply to apprentices regularly indentured under
the State Division of Apprenticeship Standards. NOTE: This section shall not apply
to protective equipment and safety devices on tools regulated by the Occupational
Safety and Health Standards Board. (C) A reasonable deposit may be required as
security for the return of the items furnished by the employer under provisions of
subsections (A) and (B) of this section upon issuance of a receipt to the employee
for such deposit. Such deposits shall be made pursuant to Section 400 and
following of the Labor Code or an employer with the prior written authorization of the
employee may deduct from the employee's last check the cost of an item furnished
pursuant to (A) and (B) above in the event said item is not returned. No deduction
shall be made at any time for normal wear and tear. The employee upon completion
of the job shall return all items furnished by the employer. 10. Meals and Lodging
(A) "Meal" means an adequate, well-balanced serving of a variety of wholesome,
nutritious foods. (B) "Lodging" means living accommodations available to the
employee for full-time occupancy which are adequate, decent, and sanitary
according to usual and customary standards. Employees shall not be required to
share a bed. (C) Meals or lodging may not be credited against the minimum wage
without a voluntary written agreement between the employer and the employee.
When credit for meals or lodging is used to meet part of the employer's minimum
wage obligation, the amounts so credited may not be more than the following:
Effective Dates:
January 1, 2001
January 1, 2002
Lodging:
Room occupied alone
$29.40 per week
$31.75 per week
Room shared
$24.25 per week
$26.20 per week
Apartment-two thirds
$352.95 per month $381.20 per month
(2/3) of the ordinary rental value, and in no event more than
Effective Dates:
January 1, 2001
January 1, 2002
Where a couple are both
$522.10 per month
$563.90 per month
employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no
event more than
Meals:
Breakfast
$2.25
$2.45
Lunch
$3.10
$3.35
Dinner
$4.15
$4.50
(D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the
employee must live at the place of employment or occupy quarters owned or under
the control of the employer, then the employer may not charge rent in excess of the
values listed herein. 11. Meal Periods (A) No employer shall employ any person
for a work period of more than five (5) hours without a meal period of not less than
30 minutes, except that when a work period of not more than six (6) hours will
complete the day's work the meal period may be waived by mutual consent of the
employer and the employee. (B) An employer may not employ an employee for a
work period of more than ten (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. (C) Unless the employee is relieved of all duty during a 30 minute meal
period, the meal period shall be considered an "on duty" meal period and counted
as time worked. An "on duty" meal period shall be permitted only when the nature of
the work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged
in the active duties of their employment and the nature of the work requires
standing, an adequate number of suitable seats shall be placed in reasonable
proximity to the work area and employees shall be permitted to use such seats
when it does not interfere with the performance of their duties. 15. Temperature
(A) The temperature maintained in each work area shall provide reasonable comfort
consistent with industry-wide standards for the nature of the process and the work
performed. (B) If excessive heat or humidity is created by the work process, the
employer shall take all feasible means to reduce such excessive heat or humidity to
a degree providing reasonable comfort. Where the nature of the employment
requires a temperature of less than 60° F., a heated room shall be provided to
which employees may retire for warmth, and such room shall be maintained at not
less than 68°. (C) A temperature of not less than 68° shall be maintained in the
toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal
and State energy guidelines shall prevail over any conflicting provision of this
section. 16. Elevators Adequate elevator, escalator or similar service consistent
with industry-wide standards for the nature of the process and the work performed
shall be provided when employees are employed four floors or more above or
below ground level. 17. Exemptions If, in the opinion of the Division after due
investigation, it is found that the enforcement of any provision contained in Section
7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting
Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators,
would not materially affect the welfare or comfort of employees and would work an
undue hardship on the employer, exemption may be made at the discretion of the
Division. Such exemptions shall be in writing to be effective and may be revoked
after reasonable notice is given in writing. Application for exemption shall be made
by the employer or by the employee and/or the employee's representative to the
Division in writing. A copy of the application shall be posted at the place of
employment at the time the application is filed with the Division. 18. Filing Reports
(See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor
Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In
addition to any other civil penalties provided by law, any employer or any other
person acting on behalf of the employer who violates, or causes to be violated, the
provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation —
$50.00 for each underpaid employee for each pay period during which the
employee was underpaid in addition to the amount which is sufficient to recover
unpaid wages. (2) Subsequent Violations — $100.00 for each underpaid employee
for each pay period during which the employee was underpaid in addition to an
amount which is sufficient to recover unpaid wages. (2) The affected employee
shall receive payment of all wages recovered. (B) The labor commissioner may
also issue citations pursuant to California Labor Code Section 1197.1 for nonpayment of wages for overtime work in violation of this order. 21. Separability If
the application of any provision of this order, or any section, subsection,
subdivision, sentence, clause, phrase, word, or portion of this order should be held
invalid or unconstitutional or unauthorized or prohibited by statute, the remaining
provisions thereof shall not be affected thereby, but shall continue to be given full
force and effect as if the part so held invalid or unconstitutional had not been
included herein. 22. Posting of Order Every employer shall keep a copy of this
order posted in an area frequented by employees where it may be easily read
during the workday. Where the location of work or other conditions make this
impractical, every employer shall keep a copy of this order and make it available to
every employee upon request.
8:11030. Order Regulating Wages, Hours, and Working Conditions in the
Canning, Freezing, and Preserving Industry. 1. Applicability of Order This order
shall apply to all persons employed in the canning, freezing, and preserving industry
whether paid on a time, piece rate, commission, or other basis, except that: (A)
Provisions of sections 3 through 12 of this order shall not apply to persons
employed in administrative, executive, or professional capacities. The following
requirements shall apply in determining whether an employee's duties meet the test
to qualify for an exemption from those sections: (1) Executive Exemption A person
employed in an executive capacity means any employee: (a) Whose duties and
responsibilities involve the management of the enterprise in which he/she is
employed or of a customarily recognized department or subdivision thereof; and (b)
Who customarily and regularly directs the work of two or more other employees
therein; and (c) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other employees will
be given particular weight; and (d) Who customarily and regularly exercises
discretion and independent judgment; and (e) Who is primarily engaged in duties
which meet the test of the exemption. The activities constituting exempt work and
non-exempt work shall be construed in the same manner as such items are
construed in the following regulations under the Fair Labor Standards Act effective
as of the date of this order: 29 C.F.R. § 541.102, 541.104-111, and 541.115-116.
Exempt work shall include, for example, all work that is directly and closely related
to exempt work and work which is properly viewed as a means for carrying out
exempt functions. The work actually performed by the employee during the course
of the workweek must, first and foremost, be examined and the amount of time the
employee spends on such work, together with the employer's realistic expectations
and the realistic requirements of the job, shall be considered in determining whether
the employee satisfies this requirement. (f) Such an employee must also earn a
monthly salary equivalent to no less than two (2) times the state minimum wage for
full-time employment. Full-time employment is defined in California Labor Code
Section 515(c) as 40 hours per week. (2) Administrative Exemption A person
employed in an administrative capacity means any employee: (a) Whose duties and
responsibilities involve either: (i) The performance of office or non-manual work
directly related to management policies or general business operations of his/her
employer or his/her employer's customers; or (ii) The performance of functions in
the administration of a school system, or educational establishment or institution, or
of a department or subdivision thereof, in work directly related to the academic
instruction or training carried on therein; and (b) Who customarily and regularly
exercises discretion and independent judgment; and (c) Who regularly and directly
assists a proprietor, or an employee employed in a bona fide executive or
administrative capacity (as such terms are defined for purposes of this section); or
(d) Who performs under only general supervision work along specialized or
technical lines requiring special training, experience, or knowledge; or (e) Who
executes under only general supervision special assignments and tasks; and (f)
Who is primarily engaged in duties that meet the test of the exemption. The
activities constituting exempt work and non-exempt work shall be construed in the
same manner as such terms are construed in the following regulations under the
Fair Labor Standards Act effective as of the date of this wage order: 29 C.F.R. §
541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (g) Such employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in California Labor Code Section 515(c) as 40 hours per
week. (3) Professional Exemption A person employed in a professional capacity
means any employee who meets all of the following requirements: (a) Who is
licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraphs (a) and(b). (d) Who earns a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in California Labor Code Section 515(c) as 40 hours per
week. (e) Subparagraph (b) above is intended to be construed in accordance with
the following provisions of federal law as they existed as of the date of this wage
order: 29 C.F.R. § 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308,
and 541.310. (f) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (f) above
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of
subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics
and Research shall adjust this pay rate on October 1 of each year to be effective on
January 1 of the following year by an amount equal to the percentage increase in
the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
(i) The exemption provided in subparagraph (h) does not apply to an employee if
any of the following apply: (i) The employee is a trainee or employee in an entrylevel position who is learning to become proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. (ii) The employee is in a computer-related
occupation but has not attained the level of skill and expertise necessary to work
independently and without close supervision. (iii) The employee is engaged in the
operation of computers or in the manufacture, repair, or maintenance of computer
hardware and related equipment. (iv) The employee is an engineer, drafter,
machinist, or other professional whose work is highly dependent upon or facilitated
by the use of computers and computer software programs and who is skilled in
computer-aided design software, including CAD/CAM, but who is not in a computer
systems analysis or programming occupation. (v) The employee is a writer engaged
in writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) The
provisions of this order shall not apply to outside salespersons. (D) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child of the employer. (E) The provisions of this order shall not apply
to any individual participating in a national service program, such as AmeriCorps,
carried out using assistance provided under Section 12571 of Title 42 of the United
States Code. (See Stats. 2000, Chap. 365, amending California Labor Code
Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any
regularly scheduled workweek requiring an employee to work more than eight (8)
hours in a 24-hour period. (B) "Canning, Freezing, and Preserving Industry" means
any industry, business, or establishment operated for the purpose of canning soups,
or of cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or
otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit
product, when the purpose of such processing is the preservation of the product
and includes all operations incidental thereto. (C) "Commission" means the
Industrial Welfare Commission of the State of California. (D) "Division" means the
Division of Labor Standards Enforcement of the State of California. (E) "Employ"
means to engage, suffer, or permit to work. (F) "Employee" means any person
employed by an employer. (C) "Employer" means any person as defined in Section
18 of the Labor Code, who directly or indirectly, or through an agent or any other
person, employs or exercises control over the wages, hours, or working conditions
of any person. (H) "Hours worked" means the time during which an employee is
subject to the control of an employer, and includes all the time the employee is
suffered or permitted to work, whether or not required to do so. (I) "Minor" means,
for the purpose of this order, any person under the age of 18 years. (J) "Outside
salesperson" means any person, 18 years of age or over, who customarily and
regularly works more than half the working time away from the employer's place of
business selling tangible or intangible items or obtaining orders or contracts for
products, services or use of facilities. (K) "Primarily" as used in Section 1,
Applicability, means more than one-half the employee's work time. (L) "Shift" means
designated hours of work by an employee, with a designated beginning time and
ending time. (M) "Split shift" means a work schedule, which is interrupted by nonpaid non-working periods established by the employer, other than bona fide rest or
meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the
profession of teaching under a certificate from the Commission for Teacher
Preparation and Licensing or teaching in an accredited college or university. (O)
"Wages" includes all amounts for labor performed by employees of every
description, whether the amount is fixed or ascertained by the standard of time,
task, piece, commission basis, or other method of calculation. (P) "Workday" and
"day" mean any consecutive 24-hour period beginning at the same time each
calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed and regularly
recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and
Days of Work (A) Daily Overtime-General Provisions (1) The following overtime
provisions are applicable to employees 18 years of age or over and to employees
16 or 17 years of age who are not required by law to attend school and are not
otherwise prohibited by law from engaging in the subject work. Such employees
shall not be employed more than eight (8) hours in any workday or more than 40
hours in any workweek unless the employee receives one and one-half (1 1/2)
times such employee's regular rate of pay for all hours worked over 40 hours in the
workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond
eight (8) hours in any workday or more than six (6) days in any workweek is
permissible under the following conditions: (2) An employee may work up to a
maximum of 72 in seven (7) consecutive days after which the employee shall have
a 24 hour period off duty. Overtime hours shall be compensated at: (a) One and
one-half (1 1/2) times the employee's regular rate of pay for all hours worked in
excess of eight (8) hours up to and including 12 hours in any workday, and for the
first eight (8) hours worked on the seventh (7th) consecutive day of work in a
workweek; and (b) Double the employee's regular rate of pay for all hours worked in
excess of 12 hours in any workday and for all hours worked in excess of eight (8)
hours on the seventh (7th) consecutive day of work in a workweek. (3) The overtime
rate of compensation required to be paid to a non-exempt full-time salaried
employee shall be computed by using the employee's regular hourly salary as onefortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek (1) No
employer shall be deemed to have violated the daily overtime provisions by
instituting, pursuant to the election procedures set forth in this wage order, a
regularly scheduled alternative workweek schedule of not more than ten (10) hours
per day within a 40 hour workweek without the payment of an overtime rate of
compensation. All work performed in any workday beyond the schedule established
by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid
at one and one-half (1 1/2) times the employee's regular rate of pay. All work
performed in excess of 12 hours per day and any work in excess of eight (8) hours
on those days worked beyond the regularly scheduled number of workdays
established by the alternative workweek agreement shall be paid at double the
employee's regular rate of pay. Any alternative workweek agreement adopted
pursuant to this section shall provide for not less than four (4) hours of work in any
shift. Nothing in this section shall prohibit an employer, at the request of the
employee, to substitute one day of work for another day of the same length in the
shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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 (I) of Section 12940 of
the Government Code. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of work days and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, a new secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to California Labor Code Section 98 et seq.. (D)
One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all
work over 40 hours in any workweek except minors 16 and 17 years old who are
not required by law to attend school and may therefore be employed for the same
hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS
OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as
well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312
and 1390 to 1399 for additional restrictions on the employment of minors and for
descriptions of criminal and civil penalties for violation of the child labor laws.
Employers should ask school districts about any required work permits.) (E) An
employee may be employed on seven (7) workdays in one workweek when the total
hours of employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) If during any
workday, an employer declares a work recess of one-half (1/2) hour or more, other
than a meal period, and the employer notifies the employees of the time to report
back for work and permits them to leave the premises, such recess need not be
treated as hours worked provided that there shall not be more than two (2) such
recess periods within one shift and the total duration does not exceed two (2) hours.
Work stoppages of less than one-half (1/2) hour may not be deducted from hours
worked. (G) If a meal period occurs on a shift beginning or ending at or between the
hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and
drink or for heating food or drink, and a suitable sheltered place shall be provided in
which to consume such food or drink. (H) The provisions of Labor Code Sections
551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to
prevent an accumulation of days of rest when the nature of the employment
reasonably requires the employee to work seven (7) or more consecutive days;
provided, however, that in each calendar month, the employee shall receive the
equivalent of one (1) day's rest in seven (7). (I) The provisions of this section are
not applicable to employees whose hours of service are regulated by: (1) The
United States Department of Transportation Code of Federal Regulations, Title 49,
Sections 49 C.F.R. § 395.1 to 49 C.F.R. § 395.13, Hours of Service of Drivers; or
(2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13 C.F.R.
§ 395.13 and the following sections, regulating hours of drivers. (J) Except as
provided in subsections (D) and (H), this section shall not apply to any employee
covered by a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of the employees,
and if the agreement provides premium wage rates for all overtime hours worked
and a regular hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage. (K) Notwithstanding subsection (J) above,
where the employer and a labor organization representing employees of the
employer have entered into a valid collective bargaining agreement pertaining to the
hours of work of the employees, the requirement regarding the equivalent of one (1)
day's rest in seven (7) (see subsection (H) above) shall apply, unless the
agreement expressly provides otherwise. (L) If an employer approves a written
request of an employee to make up work time that is or would be lost as a result of
a personal obligation of the employee, the hours of that makeup work time, if
performed in the same workweek in which the work time was lost, may not be
counted toward computing the total number of hours worked in a day for purposes
of the overtime requirements, except for hours in excess of 11 hours of work in one
(1) day or 40 hours of work in one (1) workweek. If an employee knows in advance
that he/she will be requesting makeup time for a personal obligation that will recur
at a fixed time over a succession of weeks, the employee may request to make up
work time for up to four (4) weeks in advance; provided, however, that the makeup
work must be performed in the same week that the work time was lost. An
employee shall provide a signed written request for each occasion that the
employee makes a request to make up work time pursuant to this subsection. While
an employer may inform an employee of this makeup time option, the employer is
prohibited from encouraging or otherwise soliciting an employee to request the
employer's approval to take personal time off and make up the work hours within
the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every
employer shall pay to each employee wages not less than six dollars and twentyfive cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not
less than six dollars and seventy-five cents ($6.75) per hour for all hours worked,
effective January 1, 2002, except: LEARNERS: Employees during their first 160
hours of employment in occupations in which they have no previous similar or
related experience, may be paid not less than 85 percent of the minimum wage
rounded to the nearest nickel. (B) Every employer shall pay to each employee, on
the established payday for the period involved, not less than the applicable
minimum wage for all hours worked in the payroll period, whether the remuneration
is measured by time, piece, commission, or otherwise. (C) When an employee
works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition
to the minimum wage for that workday, except when the employee resides at the
place of employment. (D) The provisions of this section shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. 5. Reporting Time Pay (A) Each workday an employee is required to
report for work and does report, but is not put to work or is furnished less than half
said employee's usual or scheduled day's work, the employee shall be paid for half
the usual or scheduled day's work, but in no event for less than two (2) hours nor
more than four (4) hours, at the employee's regular rate of pay, which shall not be
less than the minimum wage. (B) If an employee is required to report for work a
second time in any one workday and is furnished less than two (2) hours of work on
the second reporting, said employee shall be paid for two (2) hours at the
employee's regular rate of pay, which shall not be less than the minimum wage. (C)
The foregoing reporting time pay provisions are not applicable when: (1) Operations
cannot commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be
issued by the Division authorizing employment of a person whose earning capacity
is impaired by physical disability or mental deficiency at less than the minimum
wage. Such licenses shall be granted only upon joint application of employer and
employee and employee's representative if any. (B) A special license may be
issued to a nonprofit organization such as a sheltered workshop or rehabilitation
facility fixing special minimum rates to enable the employment of such persons
without requiring individual licenses of such employees. (C) All such licenses and
special licenses shall be renewed on a yearly basis or more frequently at the
discretion of the Division. (See California Labor Code, Sections 1191 and 1191.5) 7.
Records (A) Every employer shall keep accurate information with respect to each
employee including the following: (1) Full name, home address, occupation and
social security number. (2) Birth date, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period.
Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion e the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two thirds
$352.95 per month $381.20 per month (2/3) of the ordinary rental value, and in no
event more than Effective Dates: January 1, 2001 January 1, 2002 Where a couple
are both $522.10 per month $563.90 per month employed by the employer, twothirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast
$2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of
the minimum wage must be bona fide meals consistent with the employee's work
shift. Deductions shall not be made for meals not received or lodging not used. (E)
If, as a condition of employment, the employee must live at the place of
employment or occupy quarters owned or under the control of the employer, then
the employer may not charge rent in excess of the values listed herein. 11. Meal
Periods (A) No employer shall employ any person for a work period of more than
five (5) hours without a meal period of not less than 30 minutes, except that when a
work period of not more than six (6) hours will complete the day's work the meal
period may be waived by mutual consent of the employer and the employee. (B) An
employer may not employ an employee for a work period of more than ten (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. (C) Unless the employee is
relieved of all duty during a 30 minute meal period, the meal period shall be
considered an "on duty" meal period and counted as time worked. An "on duty"
meal period shall be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by written agreement between
the parties an on-the-job paid meal period is agreed to. The written agreement shall
state that the employee may, in writing, revoke the agreement at any time. (D) If an
employer fails to provide an employee a meal period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the meal period is not provided. (E) In all places of employment where employees
are required to eat on the premises, a suitable place for that purpose shall be
designated. 12. Rest Periods (A) Every employer shall authorize and permit all
employees to take rest periods, which insofar as practicable shall be in the middle
of each work period. The authorized rest period time shall be based on the total
hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or
major fraction thereof. However, a rest period need not be authorized for employees
whose total daily work time is less than three and one-half (3 1/2) hours. Authorized
rest period time shall be counted as hours worked for which there shall be no
deduction from wages. (B) If an employer fails to provide an employee a rest period
in accordance with the applicable provisions of this order, the employer shall pay
the employee one (1) hour of pay at the employee's regular rate of compensation
for each workday that the rest period is not provided. 13. Change Rooms and
Resting Facilities (A) Employers shall provide suitable lockers, closets, or
equivalent for the safekeeping of employees' outer clothing during working hours,
and when required, for their work clothing during non-working hours. When the
occupation requires a change of clothing, change rooms or equivalent space shall
be provided in order that employees may change their clothing in reasonable
privacy and comfort. These rooms or spaces may be adjacent to but shall be
separate from toilet rooms and shall be kept clean. NOTE: This section shall not
apply to change rooms and storage facilities regulated by the Occupational Safety
and Health Standards Board. (B) Suitable resting facilities shall be provided in an
area separate from the toilet rooms and shall be available to employees during work
hours. 14. Seats (A) All working employees shall be provided with suitable seats
when the nature of the work reasonably permits the use of seats. (B) When
employees are not engaged in the active duties of their employment and the nature
of the work requires standing, an adequate number of suitable seats shall be placed
in reasonable proximity to the work area and employees shall be permitted to use
such seats when it does not interfere with the performance of their duties. 15.
Temperature (A) The temperature maintained in each work area shall provide
reasonable comfort consistent with industry-wide standards for the nature of the
process and the work performed. (B) If excessive heat or humidity is created by the
work process, the employer shall take all feasible means to reduce such excessive
heat or humidity to a degree providing reasonable comfort. Where the nature of the
employment requires a temperature of less than 60° F., a heated room shall be
provided to which employees may retire for warmth, and such room shall be
maintained at not less than 68°. (C) A temperature of not less than 68° shall be
maintained in the toilet rooms, resting rooms, and change rooms during hours of
use. (D) Federal and State energy guidelines shall prevail over any conflicting
provision of this section. 16. Elevators Adequate elevator, escalator or similar
service consistent with industry-wide standards for the nature of the process and
the work performed shall be provided when employees are employed four floors or
more above or below ground level. 17. Exemptions If, in the opinion of the Division
after due investigation, it is found that the enforcement of any provision contained in
Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and
Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16,
Elevators, would not materially affect the welfare or comfort of employees and
would work an undue hardship on the employer, exemption may be made at the
discretion of the Division. Such exemptions shall be in writing to be effective and
may be revoked after reasonable notice is given in writing. Application for
exemption shall be made by the employer or by the employee and/or the
employee's representative to the Division in writing. A copy of the application shall
be posted at the place of employment at the time the application is filed with the
Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19.
Inspection (See California Labor Code, Section 1174) 20. Penalties (See California
Labor Code, section 1199) (A) In addition to any other civil penalties provided by
law, any employer or any other person acting on behalf of the employer who
violates, or causes to be violated, the provisions of this order, shall be subject to the
civil penalty of: (1) Initial Violation — $50.00 for each underpaid employee for each
pay period during which the employee was underpaid in addition to the amount
which is sufficient to recover unpaid wages. (2) Subsequent Violations — $100.00
for each underpaid employee for each pay period during which the employee was
underpaid in addition to an amount which is sufficient to recover unpaid wages. (3)
The affected employee shall receive payment of all wages recovered. (B) The labor
commissioner may also issue citations pursuant to California Labor Code Section
1197.1 for non-payment of wages for overtime work in violation of this order. 21.
Separability If the application of any provision of this order, or any section,
subsection, subdivision, sentence, clause, phrase, word, or portion of this order
should be held invalid or unconstitutional or unauthorized or prohibited by statute,
the remaining provisions thereof shall not be affected thereby, but shall continue to
be given full force and effect as if the part so held invalid or unconstitutional had not
been included herein. 22. Posting of Order Every employer shall keep a copy of
this order posted in an area frequented by employees where it may be easily read
during the workday. Where the location of work or other conditions make this
impractical, every employer shall keep a copy of this order and make it available to
every employee upon request.
8:11040. Order Regulating Wages, Hours, and Working Conditions in
Professional, Technical, Clerical, Mechanical, and Similar Occupations. 1.
Applicability of Order This order shall apply to all persons employed in professional,
technical, clerical, mechanical, and similar occupations whether paid on a time,
piece rate, commission, or other basis, except that: (A) Provisions of sections 3
through 12 shall not apply to persons employed in administrative, executive, or
professional capacities. The following requirements shall apply in determining
whether an employee's duties meet the test to qualify for an exemption from those
sections: (1) Executive Exemption A person employed in an executive capacity
means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees therein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 541.104-111, and 541.115-16. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (I) The
performance of office or non-manual work directly related to management policies
or general business operations of his/her employer or his employer's customers; or
(II) The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision thereof, in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties that meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in California Labor Code Section
515(c) as 40 hours per week. (3) Professional Exemption A person employed in a
professional capacity means any employee who meets all of the following
requirements: (a) Who is licensed or certified by the State of California and is
primarily engaged in the practice of one of the following recognized professions:
law, medicine, dentistry, optometry, architecture, engineering, teaching, or
accounting; or (b) Who is primarily engaged in an occupation commonly recognized
as a learned or artistic profession. For the purposes of this subsection, "learned or
artistic profession" means an employee who is primarily engaged in the
performance of: (i) Work requiring knowledge of an advanced type in a field or
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study, as distinguished from a general academic
education and from an apprenticeship, and from training in the performance of
routine mental, manual, or physical processes, or work that is an essential part of or
necessarily incident to any of the above work; or (ii) Work that is original and
creative in character in a recognized field of artistic endeavor (as opposed to work
which can be produced by a person endowed with general manual or intellectual
ability and training), and the result of which depends primarily on the invention,
imagination, or talent of the employee or work that is an essential part of or
necessarily incident to any of the above work; and (iii) Whose work is predominantly
intellectual and varied in character (as opposed to routine mental, manual,
mechanical, or physical work) and is of such character that the output produced or
the result accomplished cannot be standardized in relation to a given period of time.
(c) Who customarily and regularly exercises discretion and independent judgment in
the performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a
monthly salary equivalent to no less than two (2) times the state minimum wage for
full-time employment. Full-time employment is defined in Labor Code Section
515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be
construed in accordance with the following provisions of federal law as they existed
as of the date of this wage order: 29 C.F.R. § 541.207, 541.301(a)-(d), 541.302,
541.306, 541.307. 541.308, and 541.310. (f) Notwithstanding the provisions of this
subparagraph, pharmacists employed to engage in the practice of pharmacy, and
registered nurses employed to engage in the practice of nursing, shall not be
considered exempt professional employees, nor shall they be considered exempt
from coverage for the purposes of this subparagraph unless they individually meet
the criteria established for exemption as executive or administrative employees. (g)
Subparagraph (f) above shall not apply to the following advanced practice nurses:
(i) Certified nurse midwives who are primarily engaged in performing duties for
which certification is required pursuant to Article 2.5 (commencing with Section
2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified
nurse anesthetists who are primarily engaged in performing duties for which
certification is required pursuant to Article 7 (commencing with Section 2825) of
Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse
practitioners who are primarily engaged in performing duties for which certification
is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of
Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph
shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the
requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in
subparagraph (i), an employee in the computer software field who is paid on an
hourly basis shall be exempt, if all of the following apply: (i) The employee is
primarily engaged in work that is intellectual or creative and that requires the
exercise of discretion and independent judgment. (ii) The employee is primarily
engaged in duties that consist of one or more of the following: — The application of
systems analysis techniques and procedures, including consulting with users, to
determine hardware, software, or system functional specifications. — The design,
development, documentation, analysis, creation, testing, or modification of
computer systems or programs, including prototypes, based on and related to user
or system design specifications. — The documentation, testing, creation, or
modification of computer programs related to the design of software or hardware for
computer operating systems. (iii) The employee is highly skilled and is proficient in
the theoretical and practical application of highly specialized information to
computer systems analysis, programming, and software engineering. A job title
shall not be determinative of the applicability of this exemption. (iv) The employee's
hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64).
The Division of Labor Statistics and Research shall adjust this pay rate on October
1 of each year to be effective on January 1 of the following year by an amount equal
to the percentage increase in the California Consumer Price Index for Urban Wage
Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does
not apply to an employee if any of the following apply: (i) The employee is a trainee
or employee in an entry-level position who is learning to become proficient in the
theoretical and practical application of highly specialized information to computer
systems analysis, programming, and software engineering. (ii) The employee is in a
computer-related occupation but has not attained the level of skill and expertise
necessary to work independently and without close supervision. (iii) The employee
is engaged in the operation of computers or in the manufacture, repair, or
maintenance of computer hardware and related equipment. (iv) The employee is an
engineer, drafter, machinist, or other professional whose work is highly dependent
upon or facilitated by the use of computers and computer software programs and
who is skilled in computer-aided design software, including CAD/CAM, but who is
not in a computer systems analysis or programming occupation. (v) The employee
is a writer engaged in writing material, including box labels, product descriptions,
documentation, promotional material, setup and installation instructions, and other
similar written information, either for print or for on screen media or who writes or
provides content material intended to be read by customers, subscribers, or visitors
to computer-related media such as the World Wide Web or CD-ROMs. (vi) The
employee is engaged in any of the activities set forth in subparagraph (h) for the
purpose of creating imagery for effects used in the motion picture, television, or
theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the
provisions of this order shall not apply to any employees directly employed by the
State or any political subdivision thereof, including any city, county, or special
district. (C) The provisions of this order shall not apply to outside salespersons. (D)
The provisions of this order shall not apply to any individual who is the parent,
spouse, child, or legally adopted child of the employer. (E) The provisions of this
order shall not apply to any individual participating in a national service program,
such as AmeriCorps, carried out using assistance provided under Section 12571 of
Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor
Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means
any regularly scheduled workweek requiring an employee to work more than eight
(8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare
Commission of the State of California. (C) "Division" means the Division of Labor
Standards Enforcement of the State of California. (D) "Emergency" means an
unpredictable or unavoidable occurrence at unscheduled intervals requiring
immediate action. (E) "Employ" means to engage, suffer, or permit to work. (F)
"Employee" means any person employed by an employer. (G) "Employees in the
health care industry" means any of the following: (1) Employees in the health care
industry providing patient care; or (2) Employees in the health care industry working
in a clinical or medical department, including pharmacists dispensing prescriptions
in any practice setting; or (3) Employees in the health care industry working
primarily or regularly as a member of a patient care delivery team; or (4) Licensed
veterinarians, registered veterinary technicians and unregistered animal health
technicians providing patient care. (H) "Employer" means any person as defined in
Section 18 of the Labor Code, who directly or indirectly, or through an agent or any
other person, employs or exercises control over the wages, hours, or working
conditions of any person. (I) "Health care emergency" consists of an unpredictable
or unavoidable occurrence at unscheduled intervals relating to healthcare delivery,
requiring immediate action. (J) "Health care industry" is defined as hospitals, skilled
nursing facilities, intermediate care and residential care facilities, convalescent care
institutions, home health agencies, clinics operating 24 hours per day, and clinics
performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or
dialysis. (K) "Hours worked" means the time during which an employee is subject to
the control of an employer, and includes all the time the employee is suffered or
permitted to work, whether or not required to do so. Within the health care industry,
the term "hours worked" means the time during which an employee is suffered or
permitted to work for the employer, whether or not required to do so, as interpreted
in accordance with the provisions of the Fair Labor Standards Act. (L) "Minor"
means, for the purpose of this order, any person under the age of 18 years. (M)
"Outside salesperson" means any person, 18 years of age or over, who customarily
and regularly works more than half the working time away from the employer's
place of business selling tangible or intangible items or obtaining orders or contracts
for products, services or use of facilities. (N) "Primarily" as used in Section 1,
Applicability, means more than one-half the employee's work time. (O)
"Professional, Technical, Clerical, Mechanical, and Similar Occupations" includes
professional, semiprofessional, managerial, supervisorial, laboratory, research,
technical, clerical, office work, and mechanical occupations. Said occupations shall
include, but not be limited to, the following: accountants; agents; appraisers; artists;
attendants; audio-visual technicians; bookkeepers; bundlers; billposters;
canvassers; carriers; cashiers; checkers; clerks; collectors; communications and
sound technicians; compilers; copy holders; copy readers; copy writers; computer
programmers and operators; demonstrators and display representatives;
dispatchers; distributors; door-keepers; drafters; elevator operators; estimators;
editors; graphic arts technicians; guards; guides; hosts; inspectors; installers;
instructors; interviewers; investigators; librarians; laboratory workers; machine
operators; mechanics; mailers; messengers; medical and dental technicians and
technologists; models; nurses; packagers; photographers; porters and cleaners;
process servers; printers; proof readers; salespersons and sales agents;
secretaries; sign erectors; sign painters; social workers; solicitors; statisticians;
stenographers; teachers; telephone, radio-telephone, telegraph and call-out
operators; tellers; ticket agents; tracers; typists; vehicle operators; x-ray technicians;
their assistants and other related occupations listed as professional,
semiprofessional, technical, clerical, mechanical, and kindred occupations. (P)
"Shift" means designated hours of work by an employee, with a designated
beginning time and quitting time. (Q) "Split shift" means a work schedule, which is
interrupted by non-paid non-working periods established by the employer, other
than bona fide rest or meal periods. (R) "Teaching" means, for the purpose of
Section 1 of this order, the profession of teaching under a certificate from the
Commission for Teacher Preparation and Licensing or teaching in an accredited
college or university. (S) "Wages" includes all amounts for labor performed by
employees of every description, whether the amount is fixed or ascertained by the
standard of time, task, piece, commission basis, or other method of calculation. (T)
"Workday" and "day" mean any consecutive 24-hour period beginning at the same
time each calendar day. (U) "Workweek" and "week" mean any seven (7)
consecutive days, starting with the same calendar day each week. "Workweek" is a
fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour
periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The
following overtime provisions are applicable to employees 18 years of age or over
and to employees 16 or 17 years of age who are not required by law to attend
school and are not otherwise prohibited by law from engaging in the subject work.
Such employees shall not be employed more than eight (8) hours in any workday or
more than 40 hours in any workweek unless the employee receives one and onehalf (1 1/2) times such employee's regular rate of pay for all hours worked over 40
hours in the workweek. Eight (8) hours of labor constitutes a day's work.
Employment beyond eight (8) hours in any workday or more than six (6) days in any
workweek is permissible provided the employee is compensated for such overtime
at not less than: (a) One and one-half (1 1/2) times the employee's regular rate of
pay for all hours worked in excess of eight (8) hours up to and including 12 hours in
any workday, and for the first eight (8) hours worked on the seventh (7th)
consecutive day of work in a workweek; and (b) Double the employee's regular rate
of pay for all hours worked in excess of 12 hours in any workday and for all hours
worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in
a workweek. (c) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using the employee's
regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B)
Alternative Workweek Schedules (1) No employer shall be deemed to have violated
the daily overtime provisions by instituting, pursuant to the election procedures set
forth in this wage order, a regularly scheduled alternative workweek schedule of not
more than ten (10) hours per day within a 40 hour workweek without the payment of
an overtime rate of compensation. All work performed in any workday beyond the
schedule established by the agreement up to 12 hours a day or beyond 40 hours
per week shall be paid at one and one-half (1 1/2) times the employee's regular rate
of pay. All work performed in excess of 12 hours per day and any work in excess of
eight (8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than four (4) hours of
work in any shift. Nothing in this section shall prohibit an employer, at the request of
the employee, to substitute one day of work for another day of the same length in
the shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) If an employer, whose employees have
adopted an alternative workweek agreement permitted by this order requires an
employee to work fewer hours than those that are regularly scheduled by the
agreement, the employer shall pay the employee overtime compensation at a rate
of one and one-half (11/2) times the employee's regular rate of pay for all hours
worked in excess of eight (8) hours, and double the employee's regular rate of pay
for all hours worked in excess of 12 hours for the day the employee is required to
work the reduced hours. (3) 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. (4) 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 (I) of Section 12940 of the Government Code.
(5) An employer shall make a reasonable effort to find a work schedule not to
exceed eight (8) 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 workweek schedule established as the result of
that election. (6) An employer shall be permitted, but not required, to provide a work
schedule not to exceed eight (8) hours in a workday to accommodate any employee
who is hired after the date of the election and who is unable to work the alternative
workweek schedule established by the election. (7) Arrangements adopted in a
secret ballot election held pursuant to this order prior to 1998, or under the rules in
effect prior to 1998, and before the performance of the work, shall remain valid after
July 1, 2000 provided that the results of the election are reported by the employer to
the Division of Labor Statistics and Research by January 1, 2001, in accordance
with the requirements of section (C) below (Election Procedures). If an employee
was voluntarily working an alternative workweek schedule of not more than ten (10)
hours a day as of July 1, 1999, that alternative workweek schedule was based on
an individual agreement made after January 1, 1998 between the employee and
employer, and the employee submitted, and the employer approved, a written
request on or before May 30, 2000 to continue the agreement, the employee may
continue to work that alternative workweek schedule without payment of an
overtime rate of compensation for the hours provided in the agreement. The
employee may revoke his/her voluntary authorization to continue such a schedule
with 30 days written notice to the employer. New arrangements can only be entered
into pursuant to the provisions of this section. Notwithstanding the foregoing, if a
health care industry employer implemented a reduced rate for 12-hour shift
employees in the last quarter of 1999 and desires to re-implement a flexible work
arrangement that includes 12-hour shifts at straight time for the same work unit, the
employer must pay a base rate to each affected employee in the work unit that is no
less than that employee's base rate in 1999 immediately prior to the date of the rate
reduction. (8) Notwithstanding the above provisions regarding alternative workweek
schedules, no employer of employees in the health care industry shall be deemed
to have violated the daily overtime provisions by instituting, pursuant to the election
procedures set forth in this wage order a regularly scheduled alternative workweek
schedule that includes work days exceeding ten (10) hours but not more than 12
hours within a 40 hour workweek without the payment of overtime compensation,
provided that: (a) An employee who works beyond 12 hours in a workday shall be
compensated at double the employee's regular rate of pay for all hours in excess of
12; (b) An employee who works in excess of 40 hours in a workweek shall be
compensated at one and one-half (1 1/2) times the employee's regular rate of pay
for all hours over 40 hours in the workweek; (c) Any alternative workweek
agreement adopted pursuant to this section shall provide for not less than four (4)
hours of work in any shift; (d) The same overtime standards shall apply to
employees who are temporarily assigned to a work unit covered by this subsection;
(e) Any employer who instituted an alternative workweek schedule pursuant to this
subsection shall make a reasonable effort to find another work assignment for any
employee who participated in a valid election prior to 1998 pursuant to the
provisions of Wage Orders 4 and S and who is unable to work the alternative
workweek schedule established; (f) An employer engaged in the operation of a
licensed hospital or in providing personnel for the operation of a licensed hospital
who institutes, pursuant to a valid order of the Commission, a regularly scheduled
alternative workweek that includes no more than three (3) 12-hour workdays, shall
make a reasonable effort to find another work assignment for any employee who
participated in the vote which authorized the schedule and is unable to work the 12hour shifts. An employer shall not be required to offer a different work assignment to
an employee if such a work assignment is not available or if the employee was
hired after the adoption of the 12 hour, three (3) day alternative workweek schedule.
(9) No employee assigned to work a 12-hour shift established pursuant to this order
shall be required to work more than 12-hours in any 24-hour period unless the Chief
Nursing Officer or authorized executive declares that: (a) A "health care
emergency", as defined above, exists in this order; and (b) All reasonable steps
have been taken to provide required staffing; and (c) Considering overall
operational status needs, continued overtime is necessary to provide required
staffing. (10) Provided further that no employee shall be required to work more than
16 hours in a 24 hour period unless by voluntary mutual agreement of the employee
and the employer, and no employee shall work more than 24 consecutive hours
until said employee receives not less than eight (8) consecutive hours off duty
immediately following the twenty-four consecutive hours of work. (11)
Notwithstanding subsection (B)(9) above, an employee may be required to work up
to 13 hours in any 24 hour period if the employee scheduled to relieve the subject
employee does not report for duty as scheduled and does not inform the employer
more than two (2) hours in advance of that scheduled shift that he/she will not be
appearing for duty as scheduled. (C) Election Procedures Election procedures for
the adoption and repeal of alternative workweek schedules require the following: (1)
Each proposal for an alternative workweek schedule shall be in the form of a written
agreement proposed by the employer. The proposed agreement must designate a
regularly scheduled alternative workweek in which the specified number of work
days and work hours are regularly recurring. The actual days worked within that
alternative workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. However, where an alternative workweek schedule was
adopted between October 1, 1999 and October 1, 2000, a new secret ballot election
to repeal the alternative workweek schedule shall not be subject to the 12 month
interval between elections. The election shall take place during regular working
hours at the employees' work site. If the alternative workweek schedule is revoked,
the employer shall comply within 60 days. Upon proper showing of undue hardship,
the Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 et seq. (D) The
provisions of subsections (A), (B) and (C) above shall not apply to any employee
whose earnings exceed one and one-half (1 1/2) times the minimum wage if more
than half of that employee's compensation represents commissions. (E) One and
one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40
hours in any workweek except minors 16 or 17 years old who are not required by
law to attend school and may therefore be employed for the same hours as an adult
are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (F) An employee may be
employed on seven (7) workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (G) If a meal period
occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am.,
facilities shall be available for securing hot food and drink or for heating food or
drink, and a suitable sheltered place shall be provided in which to consume such
food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding
one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of
days of rest when the nature of the employment reasonably requires the employee
to work seven (7) or more consecutive days; provided, however, that in each
calendar month, the employee shall receive the equivalent of one (1) day's rest in
seven (7). (I) Except as provided in subsections (E), (H) and (L), this section shall
not apply to any employee covered by a valid collective bargaining agreement if the
agreement expressly provides for the wages, hours of work, and working conditions
of the employees, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those employees of not
less than 30 percent more than the state minimum wage. (J) Notwithstanding
subsection (I) above, where the employer and a labor organization representing
employees of the employer have entered into a valid collective bargaining
agreement pertaining to the hours of work of the employees, the requirement
regarding the equivalent of one (1) day's rest in seven (7) (see subsection (H)
above) shall apply, unless the agreement expressly provides otherwise. (K) The
provisions of this section are not applicable to employees whose hours of service
are regulated by: (1) The United States Department of Transportation Code of
Federal Regulations, Title 49, Sections 49 C.F.R. § 395.1 to 49 C.F.R. § 395.13,
Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations,
subchapter 6.5, Section 13:1200 and following sections, regulating hours of drivers.
(L) No employee shall be terminated or otherwise disciplined for refusing to work
more than 72 hours in any workweek, except in an emergency as defined in Section
2(D). (M) If an employer approves a written request of an employee to make up
work time that is or would be lost as a result of a personal obligation of the
employee, the hours of that makeup work time, if performed in the same workweek
in which the work time was lost, may not be counted toward computing the total
number of hours worked in a day for purposes of the overtime requirements, except
for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1)
workweek. If an employee knows in advance that he/she will be requesting makeup
time for a personal obligation that will recur at a fixed time over a succession of
weeks, the employee may request to make up work time for up to four (4) weeks in
advance; provided, however, that the makeup work must be performed in the same
week that the work time was lost. An employee shall provide a signed written
request for each occasion that the employee makes a request to make up work time
pursuant to this subsection. While an employer may inform an employee of this
makeup time option, the employer is prohibited from encouraging or otherwise
soliciting an employee to request the employer's approval to take personal time off
and make up the work hours within the same workweek pursuant to this subsection.
4. Minimum Wages (A) Every employer shall pay to each employee wages not less
than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective
January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per
hour for all hours worked, effective January 1, 2002, except: LEARNERS:
Employees during their first one 160 hours of employment in occupations in which
they have no previous similar or related experience, may be paid not less than 85
percent of the minimum wage. rounded to the nearest nickel. (B) Every employer
shall pay to each employee, on the established payday for the period involved, not
less than the applicable minimum wage for all hours worked in the payroll period,
whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one (1) hour's pay at the minimum wage
shall be paid in addition to the minimum wage for that workday, except when the
employee resides at the place of employment. (D) The provisions of this section
shall not apply to apprentices regularly indentured under the State Division of
Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is
required to report for work and does report, but is not put to work or is furnished
less than half said employee's usual or scheduled day's work, the employee shall
be paid for half the usual or scheduled day's work, but in no event for less than two
(2) hours nor more than four (4) hours, at the employee's regular rate of pay, which
shall not be less than the minimum wage. (B) If an employee is required to report
for work a second time in any one workday and is furnished less than two (2) hours
of work on the second reporting, said employee shall be paid for two (2) hours at
the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1)
Operations cannot commence or continue due to threats to employees or property;
or when recommended by civil authorities; or (2) Public utilities fail to supply
electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
or (3) The interruption of work is caused by an Act of God or other cause not within
the employer's control. (D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time other than the
employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special license
may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with respect
to each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two thirds
(2/3) $352.90 per month $381.20 per month of the ordinary rental value, and in no
event more than Where a couple are both $522.10 per month $563.90 per month
employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no
event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the
employee must live at the place of employment or occupy quarters owned or under
the control of the employer, then the employer may not charge rent in excess of the
values listed herein. 11. Meal Periods (A) No employer shall employ any person for
a work period of more than five (5) hours without a meal period of not less than 30
minutes, except that when a work period of not more than six (6) hours will
complete the day's work the meal period may be waived by mutual consent of the
employer and the employee. Unless the employee is relieved of all duty during a 30
minute meal period, the meal period shall be considered an "on duty" meal period
and counted as time worked. An "on duty" meal period shall be permitted only when
the nature of the work prevents an employee from being relieved of all duty and
when by written agreement between the parties an on-the-job paid meal period is
agreed to. The written agreement shall state that the employee may, in writing,
revoke the agreement at any time. (B) If an employer fails to provide an employee a
meal period in accordance with the applicable provisions of this order, the employer
shall pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (C) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. (D) Notwithstanding any other
provision of this order, employees in the health care industry who work shifts in
excess of eight (8) total hours in a workday may voluntarily waive their right to one
of their two meal periods. In order to be valid, any such waiver must be documented
in a written agreement that is voluntarily signed by both the employee and the
employer. The employee may revoke the waiver at any time by providing the
employer at least one (1) day's written notice. The employee shall be fully
compensated for all working time, including any on-the-job meal period, while such
a waiver is in effect. 12. Rest Periods (A) Every employer shall authorize and permit
all employees to take rest periods, which insofar as practicable shall be in the
middle of each work period. The authorized rest period time shall be based on the
total hours worked daily at the rate of ten (10) minutes net rest time per four (4)
hours or major fraction thereof. However, a rest period need not be authorized for
employees whose total daily work time is less than three and one-half (3 1/2) hours.
Authorized rest period time shall be counted as hours worked for which there shall
be no deduction from wages. (B) If an employer fails to provide an employee a rest
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the rest period is not provided. 13. Change
Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets,
or equivalent for the safekeeping of employees' outer clothing during working hours,
and when required, for their work clothing during non-working hours. When the
occupation requires a change of clothing, change rooms or equivalent space shall
be provided in order that employees may change their clothing in reasonable
privacy and comfort. These rooms or spaces may be adjacent to but shall be
separate from toilet rooms and shall be kept clean. NOTE: This section shall not
apply to change rooms and storage facilities regulated by the Occupational Safety
and Health Standards Board. (B) Suitable resting facilities shall be provided in an
area separate from the toilet rooms and shall be available to employees during work
hours. 14. Seats (A) All working employees shall be provided with suitable seats
when the nature of the work reasonably permits the use of seats. (B) When
employees are not engaged in the active duties of their employment and the nature
of the work requires standing, an adequate number of suitable seats shall be placed
in reasonable proximity to the work area and employees shall be permitted to use
such seats when it does not interfere with the performance of their duties. 15.
Temperature (A) The temperature maintained in each work area shall provide
reasonable comfort consistent with industry-wide standards for the nature of the
process and the work performed. (B) If excessive heat or humidity is created by the
work process, the employer shall take all feasible means to reduce such excessive
heat or humidity to a degree providing reasonable comfort. Where the nature of the
employment requires a temperature of less than 60° F., a heated room shall be
provided to which employees may retire for warmth, and such room shall be
maintained at not less than 68°. (C) A temperature of not less than 68° shall be
maintained in the toilet rooms, resting rooms, and change rooms during hours of
use. (D) Federal and State energy guidelines shall prevail over any conflicting
provision of this section. 16. Elevators Adequate elevator, escalator or similar
service consistent with industry-wide standards for the nature of the process and
the work performed shall be provided when employees are employed four floors or
more above or below ground level. 17. Exemptions If, in the opinion of the Division
after due investigation, it is found that the enforcement of any provision contained in
Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and
Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16,
Elevators, would not materially affect the welfare or comfort of employees and
would work an undue hardship on the employer, exemption may be made at the
discretion of the Division. Such exemptions shall be in writing to be effective and
may be revoked after reasonable notice is given in writing. Application for
exemption shall be made by the employer or by the employee and/or the
employee's representative to the Division in writing. A copy of the application shall
be posted at the place of employment at the time the application is filed with the
Division. 18. Filing Reports (See California Labor Code, Section 1174 (a)) 19.
Inspection (See California Labor Code, Section 1174) 20. Penalties (See California
Labor Code, Section 1199) (A) In addition to any other civil penalties provided by
law, any employer or any other person acting on behalf of the employer who
violates, or causes to be violated, the provisions of this order, shall be subject to the
civil penalty of: (1) Initial Violation — $50.00 for each underpaid employee for each
pay period during which the employee was underpaid in addition to the amount
which is sufficient to recover unpaid wages. (2) Subsequent Violations — $100.00
for each underpaid employee for each pay period during which the employee was
underpaid in addition to an amount which is sufficient to recover unpaid wages. (3)
The affected employee shall receive payment of all wages recovered. (B) The labor
commissioner may also issue citations pursuant to California Labor Code Section
1197.1 for non-payment of wages for overtime work in violation of this order. 21.
Separability If the application of any provision of this order, or any section,
subsection, subdivision, sentence, clause, phrase, word, or portion of this order
should be held invalid or unconstitutional or unauthorized or prohibited by statute,
the remaining provisions thereof shall not be affected thereby, but shall continue to
be given full force and effect as if the part so held invalid or unconstitutional had not
been included herein. 22. Posting of Order Every employer shall keep a copy of this
order posted in an area frequented by employees where it may be easily read
during the workday. Where the location of work or other conditions make this
impractical, every employer shall keep a copy of this order and make it available to
every employee upon request.
8:11050. Order Regulating Wages, Hours, and Working Conditions in the
Public Housekeeping Industry. 1. Applicability of Order This order shall apply to
all persons employed in the public housekeeping industry whether paid on a time,
piece rate, commission, or other basis, except that: (A) Except as provided in
Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to student
nurses in a school accredited by the California Board of Registered Nursing or by
the Board of Vocational Nurse and Psychiatric Technician Examiners or exempted
by the provisions of Sections 2789 or 2884 of the Business and Professions Code;
(B) Provisions of Sections 3 through 12 shall not apply to persons employed in
administrative, executive, or professional capacities. The following requirements
shall apply in determining whether an employee's duties meet the test to qualify for
an exemption from those sections: (1) Executive Exemption A person employed in
an executive capacity means any employee: (a) Whose duties and responsibilities
involve the management of the enterprise in which he/she is employed or of a
customarily recognized department or subdivision thereof; and (b) Who customarily
and regularly directs the work of two or more other employees therein; and (c) Who
has the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 541.104-111, and 541.115-116. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (i) The
performance of office or non-manual work directly related to management policies
or general business operations of his/her employer or his/her employer's customers;
or (ii) The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision thereof, in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties that meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement; and (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code Section 515(c) as 40
hours per week. (3) Professional Exemption A person employed in a professional
capacity means any employee who meets all of the following requirements: (a) Who
is licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraph (a). (d) Who earns a monthly salary equivalent to no less than
two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (e)
Subparagraph (b) above is intended to be construed in accordance with the
following provisions of federal law as they existed as of the date of this Wage Order:
29 C.F.R. § 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and
541.310. (f) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (f) above
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of
subsection 1(B)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and that requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics
and Research shall adjust this pay rate on October 1 of each year to be effective on
January 1 of the following year by an amount equal to the percentage increase in
the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
(i) The exemption provided in subparagraph (h) does not apply to an employee if
any of the following apply: (I) The employee is a trainee or employee in an entrylevel position who is learning to become proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. (II) The employee is in a computer-related
occupation but has not attained the level of skill and expertise necessary to work
independently and without close supervision. (iii) The employee is engaged in the
operation of computers or in the manufacture, repair, or maintenance of computer
hardware and related equipment. (iv) The employee is an engineer, drafter,
machinist, or other professional whose work is highly dependent upon or facilitated
by the use of computers and computer software programs and who is skilled in
computer-aided design software, including CAD/CAM, but who is not in a computer
systems analysis or programming occupation. (v) The employee is a writer engaged
in writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (C) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (D) The
provisions of this order shall not apply to outside salespersons. (E) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child of the employer. (F) The provisions of this order shall not apply
to any individual participating in a national service program, such as AmeriCorps,
carried out using assistance provided under Section 12571 of Title 42 of the United
States Code. (See Stats. 2000, ch. 365, amending Labor Code § 1171) 2.
Definitions (A) An "alternative workweek schedule" means any regularly scheduled
workweek requiring an employee to work more than eight (8) hours in a 24-hour
period. (B) "Commission" means the Industrial Welfare Commission of the State of
California. (C) "Division" means the Division of Labor Standards Enforcement of the
State of California. (D) "Emergency" means an unpredictable or unavoidable
occurrence at unscheduled intervals requiring immediate action. (E) "Employ"
means to engage, suffer, or permit to work. (F) "Employee" means any person
employed by an employer, and includes any lessee who is charged rent, or who
pays rent for a chair, booth, or space; and (1) Who does not use his or her own
funds to purchase requisite supplies; and (2) Who does not maintain an
appointment book separate and distinct from that of the establishment in which the
space is located; and (3) Who does not have a business license where applicable.
(G) "Employees in the health care industry" means any of the following: (1)
Employees in the health care industry providing patient care; or (2) Employees in
the health care industry working in a clinical or medical department, including
pharmacists dispensing prescriptions in any practice setting; or (3) Employees in
the health care industry working primarily or regularly as a member of a patient care
delivery team; or (4) Licensed veterinarians, registered veterinary technicians and
unregistered animal health technicians providing patient care. (H) "Employer"
means any person as defined in Section 18 of the Labor Code, who directly or
indirectly, or through an agent or any other person, employs or exercises control
over the wages, hours, or working conditions of any person. (I) "Health care
emergency" consists of an unpredictable or unavoidable occurrence at unscheduled
intervals relating to healthcare delivery, requiring immediate action. (J) "Health care
industry" is defined as hospitals, skilled nursing facilities, intermediate care and
residential care facilities, convalescent care institutions, home health agencies,
clinics operating 24 hours per day, and clinics performing surgery, urgent care,
radiology, anesthesiology, pathology, neurology or dialysis. (K) "Hours worked"
means the time during which an employee is subject to the control of an employer,
and includes all the time the employee is suffered or permitted to work, whether or
not required to do so, and in the case of an employee who is required to reside on
the employment premises, that time spent carrying out assigned duties shall be
counted as hours worked. Within the health care industry, the term "hours worked"
means the time during which an employee is suffered or permitted to work for the
employer, whether or not required to do so, as interpreted in accordance with the
provisions of the Fair Labor Standards Act. (L) "Minor" means, for the purpose of
this order, any person under the age of 18 years. (M) "Outside salesperson" means
any person, 18 years of age or over, who customarily and regularly works more
than half the working time away from the employer's place of business selling
tangible or intangible items or obtaining orders or contracts for products, services or
use of facilities. (N) "Personal attendant" includes baby sitters and means any
person employed by a non-profit organization covered by this order to supervise,
feed or dress a child or person who by reason of advanced age, physical disability
or mental deficiency needs supervision. The status of "personal attendant" shall
apply when no significant amount of work other than the foregoing is required. (O)
"Primarily" as used in Section 1, Applicability, means more than one-half the
employee's work time. (P) "Public Housekeeping Industry" means any industry,
business, or establishment which provides meals, housing, or maintenance services
whether operated as a primary business or when incidental to other operations in
an establishment not covered by an industry order of the Commission, and
includes, but is not limited to the following: (1) Restaurants, night clubs, taverns,
bars, cocktail lounges, lunch counters, cafeterias, boarding houses, clubs, and all
similar establishments where food in either solid or liquid form is prepared and
served to be consumed on the premises; (2) Catering, banquet, box lunch service,
and similar establishments which prepare food for consumption on or off the
premises; (3) Hotels, motels, apartment houses, rooming houses, camps, clubs,
trailer parks, office or loft buildings, and similar establishments offering rental of
living, business, or commercial quarters; (4) Hospitals, sanitariums, rest homes,
child nurseries, child care institutions, homes for the aged, and similar
establishments offering board or lodging in addition to medical, surgical, nursing,
convalescent, aged, or child care; (5) Private schools, colleges, or universities, and
similar establishments which provide board or lodging in addition to educational
facilities; (6) Establishments contracting for development, maintenance or cleaning
of grounds; maintenance or cleaning of facilities and/or quarters of commercial units
and living units; and (7) Establishments providing veterinary or other animal care
services. (Q) "Shift" means designated hours of work by an employee, with a
designated beginning time and quitting time. (R) "Split shift" means a work
schedule, which is interrupted by non-paid non-working periods established by the
employer, other than bona fide rest or meal periods. (5) "Teaching" means, for the
purpose of Section 1 of this order, the profession of teaching under a certificate
from the Commission for Teacher Preparation and Licensing or teaching in an
accredited college or university. (T) "Wages" includes all amounts for labor
performed by employees of every description, whether the amount is fixed or
ascertained by the standard of time, task, piece, commission basis, or other method
of calculation. (U) "Workday" and "day" mean any consecutive 24-hour period
beginning at the same time each calendar day. (V) "Workweek" and "week" mean
any seven (7) consecutive days, starting with the same calendar day each week.
"Workweek" is a fixed and regularly recurring period of 168 hours, seven (7)
consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily OvertimeGeneral Provisions (1) The following overtime provisions are applicable to
employees 18 years of age or over and to employees 16 or 17 years of age who are
not required by law to attend school and are not otherwise prohibited by law from
engaging in the subject work. Such employees shall not be employed more than
eight (8) hours in any workday or more than 40 hours in any workweek unless the
employee receives one and one-half (1 1/2) times such employee's regular rate of
pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor
constitutes a day's work. Employment beyond eight (8) hours in any workday or
more than six (6) days in any workweek is permissible provided the employee is
compensated for such overtime at not less than: (a) One and one-half (1 1/2) times
the employee's regular rate of pay for all hours worked in excess of eight (8) hours
up to and including 12 hours in any workday, and for the first eight (8) hours worked
on the seventh (7th) consecutive day of work in a workweek; and (b) Double the
employee's regular rate of pay for all hours worked in excess of 12 hours in any
workday and for all hours worked in excess of eight (8) hours on the seventh (7th)
consecutive day of work in a workweek. (c) The overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee shall be computed
by using the employee's regular hourly salary as one-fortieth (1/40) of the
employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer
shall be deemed to have violated the daily overtime provisions by instituting,
pursuant to the election procedures set forth in this wage order, a regularly
scheduled alternative workweek schedule of not more than ten (10) hours per day
within a 40 hour workweek without the payment of an overtime rate of
compensation. All work performed in any workday beyond the schedule established
by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid
at one and one-half (1 1/2) times the employee's regular rate of pay. All work
performed in excess of 12 hours per day and any work in excess of eight (8) hours
on those days worked beyond the regularly scheduled number of workdays
established by the alternative workweek agreement shall be paid at double the
employee's regular rate of pay. Any alternative workweek agreement adopted
pursuant to this section shall provide for not less than four (4) hours of work in any
shift. Nothing in this section shall prohibit an employer, at the request of the
employee, to substitute one day of work for another day of the same length in the
shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) If an employer whose employees have
adopted an alternative workweek agreement permitted by this order requires an
employee to work fewer hours than those that are regularly scheduled by the
agreement, the employer shall pay the employee overtime compensation at a rate
of one and one-half (1 1/2) times the employee's regular rate of pay for all hours
worked in excess of eight (8) hours, and double the employee's regular rate of pay
for all hours worked in excess of 12 hours for the day the employee is required to
work the reduced hours. (3) 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. (4) 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.
(5) An employer shall make a reasonable effort to find a work schedule not to
exceed eight (8) 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 workweek schedule established as the result of
that election. (6) An employer shall be permitted, but not required, to provide a work
schedule not to exceed eight (8) hours in a workday to accommodate any employee
who is hired after the date of the election and who is unable to work the alternative
workweek schedule established by the election. (7) Arrangements adopted in a
secret ballot election held pursuant to this order prior to 1998, or under the rules in
effect prior to 1998, and before the performance of the work, shall remain valid after
July 1, 2000 provided that the results of the election are reported by the employer to
the Division of Labor Statistics and Research by January 1, 2001, in accordance
with the requirements of subsection (C) below (Election Procedures). If an
employee was voluntarily working an alternative workweek schedule of not more
than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule
was based on an individual agreement made after January 1, 1998 between the
employee and employer, and the employee submitted, and the employer approved,
a written request on or before May 30, 2000 to continue the agreement, the
employee may continue to work that alternative workweek schedule without
payment of an overtime rate of compensation for the hours provided in the
agreement. The employee may revoke his/her voluntary authorization to continue
such a schedule with 30 days written notice to the employer. New arrangements
can only be entered into pursuant to the provisions of this section. Notwithstanding
the foregoing, if a health care industry employer implemented a reduced rate for 12hour shift employees in the last quarter of 1999 and desires to re-implement a
flexible work arrangement that includes 12-hour shifts at straight time for the same
work unit, the employer must pay a base rate to each affected employee in the work
unit that is no less than that employee's base rate in 1999 immediately prior to the
date of the rate reduction. (8) Notwithstanding the above provisions regarding
alternative workweek schedules, no employer of employees in the health care
industry shall be deemed to have violated the daily overtime provisions by
instituting, pursuant to the election procedures set forth in this wage order a
regularly scheduled alternative workweek schedule that includes work days
exceeding ten (10) hours but not more than 12 hours within a 40 hour workweek
without the payment of overtime compensation, provided that: (a) An employee who
works beyond 12 hours in a workday shall be compensated at double the
employee's regular rate of pay for all hours in excess of (12); (b) An employee who
works in excess of 40 hours in a workweek shall be compensated at one and onehalf (11/2) times the employee's regular rate of pay for all hours over 40 hours in the
workweek; (c) Any alternative workweek agreement adopted pursuant to this
section shall provide for not less than four (4) hours of work in any shift; (d) The
same overtime standards shall apply to employees who are temporarily assigned to
a work unit covered by this subsection; (e) Any employer who instituted an
alternative workweek schedule pursuant to this subsection shall make a reasonable
effort to find another work assignment for any employee who participated in a valid
election prior to 1998 pursuant to the provisions of Wage Orders 4 and 5 and who is
unable to work the alternative workweek schedule established; (f) An employer
engaged in the operation of a licensed hospital or in providing personnel for the
operation of a licensed hospital who institutes, pursuant to a valid order of the
Commission, a regularly scheduled alternative workweek that includes no more
than three (3) 12-hour workdays, shall make a reasonable effort to find another
work assignment for any employee who participated in the vote which authorized
the schedule and is unable to work the 12-hour shifts. An employer shall not be
required to offer a different work assignment to an employee if such a work
assignment is not available or if the employee was hired after the adoption of the 12
hour, three (3) day alternative workweek schedule. (9) No employee assigned to
work a 12-hour shift established pursuant to this order shall be required to work
more than 12 hours in any 24-hour period unless the Chief Nursing Officer or
authorized executive declares that: (a) A "healthcare emergency", as defined above
exists in this order; and (b) All reasonable steps have been taken to provide
required staffing; and (c) Considering overall operational status needs, continued
overtime is necessary to provide required staffing. (10) Provided further that no
employee shall be required to work more than 16 hours in a 24-hour period unless
by voluntary mutual agreement of the employee and the employer, and no
employee shall work more than 24 consecutive hours until said employee receives
not less than eight (8) consecutive hours off duty immediately following the 24
consecutive hours of work. (11) Notwithstanding subsection (B)(9) above, an
employee may be required to work up to 13 hours in any 24-hour period if the
employee scheduled to relieve the subject employee does not report for duty as
scheduled and does not inform the employer more than two (2) hours in advance of
that scheduled shift that he/she will not be appearing for duty as scheduled. (C)
Election Procedures Election procedures for the adoption and repeal of alternative
workweek schedules require the following: (1) Each proposal for an alternative
workweek schedule shall be in the form of a written agreement proposed by the
employer. The proposed agreement must designate a regularly scheduled
alternative workweek in which the specified number of workdays and work hours
are regularly recurring. The actual days worked within that alternative workweek
schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule options, the employee
may, with the approval of the employer, move from one menu option to another. (2)
In order to be valid, the proposed alternative workweek schedule must be adopted
in a secret ballot election, before the performance of work, by at least a two-thirds
(2/3) vote of the affected employees in the work unit. The election shall be held
during regular working hours at the employees' work site. For purposes of this
subsection, "affected employees in the work unit" may include all employees in a
readily identifiable work unit, such as a division, a department, a job classification, a
shift, a separate physical location, or a recognized subdivision of any such work
unit. A work unit may consist of an individual employee as long as the criteria for an
identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote,
any employer who proposed to institute an alternative workweek schedule shall
have made a disclosure in writing to the affected employees, including the effects of
the proposed arrangement on the employees' wages, hours, and benefits. Such a
disclosure shall include meeting(s), duly noticed, held at least 14 days prior to
voting, for the specific purpose of discussing the effects of the alternative workweek
schedule. An employer shall provide that disclosure in a non-English language, as
well as in English, if at least five (5) percent of the affected employees primarily
speak that non-English language. The employer shall mail the written disclosure to
employees who do not attend the meeting. Failure to comply with this paragraph
shall make the election null and void. (4) Any election to establish or repeal an
alternative workweek schedule shall be held at the work site of the affected
employees. The employer shall bear the costs of conducting any election held
pursuant to this section. Upon a complaint by an affected employee, and after an
investigation by the labor commissioner, the labor commissioner may require the
employer to select a neutral third party to conduct the election. (5) Any type of
alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. However, where an alternative workweek schedule was
adopted between October 1, 1999 and October 1, 2000. a new secret ballot election
to repeal the alternative workweek schedule shall not be subject to the 12-month
interval between elections. The election shall take place during regular working
hours at the employees' work site. If the alternative workweek schedule is revoked,
the employer shall comply within 60 days. Upon proper showing of undue hardship,
the Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this subparagraph shall be subject to Labor Code Section 98 et seq. (D) No
employer engaged in the operation of a hospital or an establishment which is an
institution primarily engaged in the care of the sick, the aged, or the mentally ill or
defective who reside on the premises shall be deemed to have violated any
provision of this section if, pursuant to an agreement or understanding arrived at
between the employer and employee before performance of work, a work period of
14 consecutive days is accepted in lieu of the workweek of seven (7) consecutive
days for purposes of overtime computation and if, for any employment in excess of
80 hours in such 14 day period, the employee receives compensation at a rate not
less than one and one-half (1 1/2) times the regular rate at which the employee is
employed. (E)(1) This section does not apply to organized camp counselors who
are not employed more than 54 hours and not more than six (6) days in any
workweek except under the conditions set forth below. This section shall also not
apply to personal attendants as defined in Section 2(N), nor to resident managers of
homes for the aged having less than eight (8) beds; provided that persons
employed in such occupations shall not be employed more than 40 hours nor more
than six (6) days in any workweek, except under the following conditions: In the
case of emergency, employees may be employed in excess of 40 hours or six (6)
days in any workweek provided the employee is compensated for all hours in
excess of 40 hours and days in excess of six (6) days in the workweek at not less
than one and one-half (1 1/2) times the employee's regular rate of pay. However,
regarding organized camp counselors, in case of emergency they may be employed
in excess of 54 hours or six (6) days, provided that they are compensated at not
less than one and one-half (1 1/2) times the employee's regular rate of pay for all
hours worked in excess of 54 hours and six (6) days in the workweek. (2)
Employees with 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, may, without violating any provision of this
section, be compensated as follows: (a) An employee who works in excess of 40
hours in a workweek shall be compensated at one and one-half (11/2) times the
employee's regular rate of pay for all hours over 40 hours in the workweek. (b) An
employee shall be compensated at two (2) times the employee's regular rate of pay
for all hours in excess of 48 hours in the workweek. (c) An employee shall be
compensated at two (2) times the employee's regular rate of pay for all hours in
excess of 16 in a workday. (d) No employee shall work more than 24 consecutive
hours until said employee receives not less than eight (8) consecutive hours offduty immediately following the 24 consecutive hours of work. Time spent sleeping
shall not be included as hours worked. (F) One and one-half (1 1/2) times a minor's
regular rate of pay shall be paid for all work over 40 hours in any workweek except
minors sixteen (16) or 17 years old who are not required by law to attend school
and may therefore be employed for the same hours as an adult are subject to
subsection (A), (B), (C), or (D) above. (VIOLATIONS OF CHILD LABOR LAWS are
subject to civil penalties of from $500 to $10,000 as well as to criminal penalties.
Refer to California Labor Code sections 1285 to 1312 and 1390 to 1399 for
additional restrictions on the employment of minors and for descriptions of criminal
and civil penalties for violation of the child labor laws. Employers should ask school
districts about any required work permits.) (G) An employee may be employed on
seven (7) workdays in one workweek when the total hours of employment during
such workweek do not exceed 30 and the total hours of employment in any one
workday thereof do not exceed six (6). (H) If a meal period occurs on a shift
beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be
available for securing hot food and drink or for heating food or drink, and a suitable
sheltered place shall be provided in which to consume such food or drink. (I) The
provisions of this section are not applicable to employees whose hours of service
are regulated by: (1) The United States Department of Transportation Code of
Federal Regulations, Title 49, Sections 49 C.F.R. § 395.1 to 49 C.F.R. § 395.13,
Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations,
subchapter 6.5, Section 13:1200 and following sections, regulating hours of drivers.
(J) The daily overtime provisions of subsection (A) above shall not apply to
ambulance drivers and attendants scheduled for 24-hours shifts of duty who have
agreed in writing to exclude from daily time worked not more than three (3) meal
periods of not more than one (1) hour each and a regularly scheduled uninterrupted
sleeping period of not more than eight (8) hours. The employer shall provide
adequate dormitory and kitchen facilities for employees on such a schedule. (K)
The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in
seven (7) shall not be construed to prevent an accumulation of days of rest when
the nature of the employment reasonably requires the employee to work seven (7)
or more consecutive days; provided, however, that in each calendar month, the
employee shall receive the equivalent of one (1) day's rest in seven (7). (L) Except
as provided in subsections (F) and (K), this section shall not apply to any employee
covered by a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of the employees,
and if the agreement provides premium wage rates for all overtime hours worked
and a regular hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage. (M) Notwithstanding subsection (L) above,
where the employer and a labor organization representing employees of the
employer have entered into a valid collective bargaining agreement pertaining to the
hours of work of the employees, the requirement regarding the equivalent of one (1)
day's rest in seven (7) (see subsection (K) above) shall apply, unless the agreement
expressly provides otherwise. (N) If an employer approves a written request of an
employee to make up work time that is or would be lost as a result of a personal
obligation of the employee, the hours of that makeup work time, if performed in the
same workweek in which the work time was lost, may not be counted toward
computing the total number of hours worked in a day for purposes of the overtime
requirements, except for hours in excess of 11 hours of work in one (1) day or 40
hours of work in one (1) workweek. If an employee knows in advance that he/she
will be requesting makeup time for a personal obligation that will recur at a fixed
time over a succession of weeks, the employee may request to make up work time
for up to four (4) weeks in advance; provided, however, that the makeup work must
be performed in the same week that the work time was lost. An employee shall
provide a signed written request for each occasion that the employee makes a
request to make up work time pursuant to this subsection. While an employer may
inform an employee of this makeup time option, the employer is prohibited from
encouraging or otherwise soliciting an employee to request the employer's approval
to take personal time off and make up the work hours within the same workweek
pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to
each employee wages not less than six dollars and twenty-five cents ($6.25) per
hour for all hours worked, effective January 1, 2001, and not less than six dollars
and seventy-five cents ($6.75) per hour for all hours worked, effective January 1,
2002, except: LEARNERS: Employees during their 160 hours of employment in
occupations in which they have no previous similar or related experience, may be
paid not less than 85 per cent of the minimum wage rounded to the nearest nickel.
(B) Every employer shall pay to each employee, on the established payday for the
period involved, not less than the applicable minimum wage for all hours worked in
the payroll period, whether the remuneration is measured by time, piece,
commission, or otherwise. (C) When an employee works a split shift, one (1) hour's
pay at the minimum wage shall be paid in addition to the minimum wage for that
workday, except when the employee resides at the place of employment. (D) The
provisions of this section shall not apply to apprentices regularly indentured under
the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each
workday an employee is required to report for work and does report, but is not put
to work or is furnished less than half said employee's usual or scheduled day's
work, the employee shall be paid for half the usual or scheduled day's work, but in
no event for less than two (2) hours nor more than four (4) hours, at the employee's
regular rate of pay, which shall not be less than the minimum wage. (B) If an
employee is required to report for work a second time in any one workday and is
furnished less than two (2) hours of work on the second reporting, said employee
shall be paid for two (2) hours at the employee's regular rate of pay, which shall not
be less than the minimum wage. (C) The foregoing reporting time pay provisions
are not applicable when: (1) Operations cannot commence or continue due to
threats to employees or property; or when recommended by civil authorities; or (2)
Public utilities fail to supply electricity, water, or gas, or there is a failure in the public
utilities, or sewer system; or (3) The interruption of work is caused by an Act of God
or other cause not within the employer's control. (D) This section shall not apply to
an employee on paid standby status who is called to perform assigned work at a
time other than the employee's scheduled reporting time. 6. Licenses for Disabled
Workers (A) A license may be issued by the Division authorizing employment of a
person whose earning capacity is impaired by physical disability or mental
deficiency at less than the minimum wage. Such licenses shall be granted only
upon joint application of employer and employee and employee's representative if
any. (B) A special license may be issued to a nonprofit organization such as a
sheltered workshop or rehabilitation facility fixing special minimum rates to enable
the employment of such persons without requiring individual licenses of such
employees. (C) All such licenses and special licenses shall be renewed on a yearly
basis or more frequently at the discretion of the Division. (See California Labor
Code, Sections 1191 and 1191.5) 7. Records (A) Every employer shall keep
accurate information with respect to each employee including the following: (1) Full
name, home address, occupation and social security number. (2) Birth date, if
under 18 years, and designation as a minor. (3) Time records showing when the
employee begins and ends each work period. Meal periods, split shift intervals and
total daily hours worked shall also be recorded. Meal periods during which
operations cease and authorized rest periods need not be recorded. (4) Total
wages paid each payroll period, including value of board, lodging, or other
compensation actually furnished to the employee. (5) Total hours worked in the
payroll period and applicable rates of pay. This information shall be made readily
available to the employee upon reasonable request. (6) When a piece rate or
incentive plan is in operation, piece rates or an explanation of the incentive plan
formula shall be provided to employees. An accurate production record shall be
maintained by the employer. (B) Every employer shall semimonthly or at the time of
each payment of wages furnish each employee, either as a detachable part of the
check, draft, or voucher paying the employee's wages, or separately, an itemized
statement in writing showing: (1) all deductions; (2) the inclusive dates of the period
for which the employee is paid; (3) the name of the employee or the employee's
social security number; and (4) the name of the employer, provided all deductions
made on written orders of the employee may be aggregated and shown as one
item. (C) All required records shall be in the English language and in ink or other
indelible form, properly dated, showing month, day and year, and shall be kept on
file by the employer for at least three years at the place of employment or at a
central location within the State of California. An employee's records shall be
available for inspection by the employee upon reasonable request. (D) Clocks shall
be provided in all major work areas or within reasonable distance thereto insofar as
practicable. 8. Cash Shortage and Breakage No employer shall make any
deduction from the wage or require any reimbursement from an employee for any
cash shortage, breakage, or loss of equipment, unless it can be shown that the
shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross
negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are
required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two thirds
(2/3) $352.90 per month $381.20 per month of the ordinary rental value, and in no
event more than Where a couple are both $522.10 per month $563.90 per month
employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no
event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period may be waived by mutual consent of the employer and
the employee. Unless the employee is relieved of all duty during a 30 minute meal
period, the meal period shall be considered an "on duty" meal period and counted
as time worked. An "on duty" meal period shall be permitted only when the nature of
the work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (B) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (C) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. (D) Notwithstanding any other
provision of this order, employees in the health care industry who work shifts in
excess of eight (8) total hours in a workday may voluntarily waive their right to one
of their two meal periods. In order to be valid, any such waiver must be documented
in a written agreement that is voluntarily signed by both the employee and the
employer. The employee may revoke the waiver at any time by providing the
employer at least one (1) day's written notice. The employee shall be fully
compensated for all working time, including any on-the-job meal period, while such
a waiver is in effect. (E) Employees with 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, and employees of 24
hour residential care facilities for the elderly, blind or developmentally disabled
individuals may be required to work on-duty meal periods without penalty when
necessary to meet regulatory or approved program standards and one of the
following two conditions is met: (1)(a) The residential care employees eats with
residents during residents' meals and the employer provides the same meal at no
charge to the employee; or (b) The employee is in sole charge of the resident(s)
and, on the day shift, the employer provides a meal at no charge to the employee.
(2) An employee, except for the night shift, may exercise the right to have an offduty meal period upon 30 days' notice to the employer for each instance where an
off-duty meal is desired, provided that, there shall be no more than one off-duty
meal period every two weeks. 12. Rest Periods (A) Every employer shall authorize
and permit all employees to take rest periods, which insofar as practicable shall be
in the middle of each work period. The authorized rest period time shall be based
on the total hours worked daily at the rate of ten (10) minutes net rest time per four
(4) hours or major fraction thereof. However, a rest period need not be authorized
for employees whose total daily work time is less than three and one-half (3 1/2)
hours. Authorized rest period time shall be counted, as hours worked, for which
there shall be no deduction from wages. (B) If an employer fails to provide an
employee a rest period in accordance with the applicable provisions of this order,
the employer shall pay the employee one (1) hour of pay at the employee's regular
rate of compensation for each workday that the rest period is not provided. (C)
However, employees with 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 and employees of 24 hour residential
care facilities for elderly, blind or developmentally disabled individuals may, without
penalty, require an employee to remain on the premises and maintain general
supervision of residents during rest periods if the employee is in sole charge of
residents. Another rest period shall be authorized and permitted by the employer
when an employee is affirmatively required to interrupt his/her break to respond to
the needs of residents. 13. Change Rooms and Resting Facilities (A) Employers
shall provide suitable lockers, closets, or equivalent for the safekeeping of
employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (C) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174 (a)) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (B) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for payment of wages
for overtime work in violation of this order. 21. Separability If the application of any
provision of this order, or any section, subsection, subdivision, sentence, clause,
phrase, word, or portion of this order should be held invalid or unconstitutional or
unauthorized or prohibited by statute, the remaining provisions thereof shall not be
affected thereby, but shall continue to be given full force and effect as if the part so
held invalid or unconstitutional had not been included herein. 22. Posting of Order
Every employer shall keep a copy of this order posted in an area frequented by
employees where it may be easily read during the workday. Where the location of
work or other conditions make this impractical, every employer shall keep a copy of
this order and make it available to every employee upon request.
8:11060. Order Regulating Wages, Hours, and Working Conditions in the
Laundry, Linen Supply, Dry Cleaning, and Dyeing Industry. 1. Applicability of
Order This order shall apply to all persons employed in the laundry, linen supply,
dry cleaning and dyeing industry whether paid on a time, piece rate, commission, or
other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall
not apply to persons employed in administrative, executive, or professional
capacities. The following requirements shall apply in determining whether an
employee's duties meet the test to qualify for an exemption from those sections: (1)
Executive Exemption. A person employed in an executive capacity means any
employee: (a) Whose duties and responsibilities involve the management of the
enterprise in which he/she is employed or of a customarily recognized department
or subdivision thereof; and (b) Who customarily and regularly directs the work of
two or more other employees therein; and (c) Who has the authority to hire or fire
other employees or whose suggestions and recommendations as to the hiring or
firing and as to the advancement and promotion or any other change of status of
other employees will be given particular weight; and (d) Who customarily and
regularly exercises discretion and independent judgment; and (e) Who is primarily
engaged in duties which meet the test of the exemption. The activities constituting
exempt work and non-exempt work shall be construed in the same manner as such
items are construed in the following regulations under the Fair Labor Standards Act
effective as of the date of this order: 29 C.F.R. § 541.102, 541.104-111, and
541.115-116. Exempt work shall include, for example, all work that is directly and
closely related to exempt work and work which is properly viewed as a means for
carrying out exempt functions. The work actually performed by the employee during
the course of the workweek must, first and foremost, be examined and the amount
of time the employee spends on such work, together with the employer's realistic
expectations and the realistic requirements of the job, shall be considered in
determining whether the employee satisfies this requirement. (f) Such an employee
must also earn a monthly salary equivalent to no less than two (2) times the state
minimum wage for full-time employment. Full-time employment is defined in
California Labor Code Section 515(c) as 40 hours per week. (2) Administrative
Exemption. A person employed in an administrative capacity means any employee:
(a) Whose duties and responsibilities involve either: (i) The performance of office or
non-manual work directly related to management policies or general business
operations of his/her employer or his/her employer's customers; or (ii) The
performance of functions in the administration of a school system, or educational
establishment or institution, or of a department or subdivision thereof, in work
directly related to the academic instruction or training carried on therein; and (b)
Who customarily and regularly exercises discretion and independent judgment; and
(c) Who regularly and directly assists a proprietor, or an employee employed in a
bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties which meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in California Labor Code Section
515(c) as 40 hours per week. (3) Professional Exemption. A person employed in a
professional capacity means any employee who meets all of the following
requirements: (a) Who is licensed or certified by the State of California and is
primarily engaged in the practice of one of the following recognized professions:
law, medicine, dentistry, optometry, architecture, engineering, teaching, or
accounting; or (b) Who is primarily engaged in an occupation commonly recognized
as a learned or artistic profession. For the purposes of this subsection, "learned or
artistic profession" means an employee who is primarily engaged in the
performance of: (i) Work requiring knowledge of an advanced type in a field or
science or learning customarily acquired by a prolonged course of specialized
intellectual instruction and study, as distinguished from a general academic
education and from an apprenticeship, and from training in the performance of
routine mental, manual, or physical processes, or work that is an essential part of or
necessarily incident to any of the above work; or (ii) Work that is original and
creative in character in a recognized field of artistic endeavor (as opposed to work
which can be produced by a person endowed with general manual or intellectual
ability and training), and the result of which depends primarily on the invention,
imagination, or talent of the employee or work that is an essential part of or
necessarily incident to any of the above work; and (iii) Whose work is predominantly
intellectual and varied in character (as opposed to routine mental, manual,
mechanical, or physical work) and is of such character that the output produced or
the result accomplished cannot be standardized in relation to a given period of time.
(c) Who customarily and regularly exercises discretion and independent judgment in
the performance of duties set forth in subparagraphs (a) and (b). (d) Who cams a
monthly salary equivalent to no less than two (2) times the state minimum wage for
full-time employment. Full-time employment is defined in California Labor Code
Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be
construed in accordance with the following provisions of federal law as they existed
as of the date of this wage order: 29 C.F.R. § 541.207, 541.301(a)-(d), 541.302,
541.306, 541.307, 541.308, and 541.310. (f) Notwithstanding the provisions of this
subparagraph, pharmacists employed to engage in the practice of pharmacy, and
registered nurses employed to engage in the practice of nursing, shall not be
considered exempt professional employees, nor shall they be considered exempt
from coverage for the purposes of this subparagraph unless they individually meet
the criteria established for exemption as executive or administrative employees. (g)
Subparagraph (f) above shall not apply to the following advanced practice nurses:
(i) Certified nurse midwives who are primarily engaged in performing duties for
which certification is required pursuant to Article 2.5 (commencing with Section
2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified
nurse anesthetists who are primarily engaged in performing duties for which
certification is required pursuant to Article 7 (commencing with Section 2825) of
Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse
practitioners who are primarily engaged in performing duties for which certification
is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of
Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph
shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the
requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in
subparagraph (i), an employee in the computer software field who is paid on an
hourly basis shall be exempt, if all of the following apply: (i) The employee is
primarily engaged in work that is intellectual or creative and requires the exercise of
discretion and independent judgment. (ii) The employee is primarily engaged in
duties that consist of one or more of the following: — The application of systems
analysis techniques and procedures, including consulting with users, to determine
hardware, software, or system functional specifications. — The design,
development, documentation, analysis, creation, testing, or modification of
computer systems or programs, including prototypes based on and related to user
or system design specifications. — The documentation, testing, creation, or
modification of computer programs related to the design of software or hardware for
computer operating systems. (iii) The employee is highly skilled and is proficient in
the theoretical and practical application of highly specialized information to
computer systems analysis, programming, and software engineering. A job title
shall not be determinative of the applicability of this exemption. (iv) The employee's
hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64).
The Division of Labor Statistics and Research shall adjust this pay rate on October
1 of each year to be effective on January 1 of the following year by an amount equal
to the percentage increase in the California Consumer Price Index for Urban Wage
Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does
not apply to an employee if any of the following apply: (i) The employee is a trainee
or employee in an entry-level position who is learning to become proficient in the
theoretical and practical application of highly specialized information to computer
systems analysis, programming, and software engineering. (ii) The employee is in a
computer-related occupation but has not attained the level of skill and expertise
necessary to work independently and without close supervision. (iii) The employee
is engaged in the operation of computers or in the manufacture, repair, or
maintenance of computer hardware and related equipment. (iv) The employee is an
engineer, drafter, machinist, or other professional whose work is highly dependent
upon or facilitated by the use of computers and computer software programs and
who is skilled in computer-aided design software, including CAD/CAM, but who is
not in a computer systems analysis or programming occupation. (v) The employee
is a writer engaged in writing material, including box labels, product descriptions,
documentation, promotional material, setup and installation instructions, and other
similar written information, either for print or for on screen media or who writes or
provides content material intended to be read by customers, subscribers, or visitors
to computer-related media such as the World Wide Web or CD-ROMs. (vi) The
employee is engaged in any of the activities set forth in subparagraph (h) for the
purpose of creating imagery for effects used in the motion picture, television, or
theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the
provisions of this order shall not apply to any employees directly employed by the
State or any political subdivision thereof, including any city, county, or special
district. (C) The provisions of this order shall not apply to outside salespersons. (D)
The provisions of this order shall not apply to any individual who is the parent,
spouse, child, or legally adopted child of the employer. (E) The provisions of this
order shall not apply to any individual participating in a national service program,
such as AmeriCorps, carried out using assistance provided under Section 12571 of
Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending California
Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule"
means any regularly scheduled workweek requiring an employee to work more than
eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare
Commission of the State of California. (C) "Division" means the Division of Labor
Standards Enforcement of the State of California. (D) "Employ" means to engage,
suffer, or permit to work. (E) "Employee" means any person employed by an
employer. (F) "Employer" means any person as defined in Section 18 of the Labor
Code, who directly or indirectly, or through an agent or any other person, employs
or exercises control over the wages, hours, or working conditions of any person. (G)
"Hours worked" means the time during which an employee is subject to the control
of an employer, and includes all the time the employee is suffered or permitted to
work, whether or not required to do so. (H) "Laundry, Linen Supply, Dry Cleaning
and Dyeing Industry" means any industry, business, or establishment operated for
the purpose of washing, ironing, cleaning, refreshing, restoring, pressing, dyeing,
storing, fumigating, mothproofing, waterproofing, or other processes incidental
thereto, on articles or fabrics of any kind, including but not limited to clothing, hats.
drapery, rugs, curtains, linens, household furnishings, textiles, furs, or leather
goods; and includes self-service laundries, self-service dry cleaning establishments,
and the collection, distribution, storage, sale, or resale at retail or wholesale of the
foregoing services. (I) "Minor" means, for the purpose of this order, any person
under the age of 18 years. (J) "Outside salesperson" means any person, 18 years
of age or over, who customarily and regularly works more than half the working time
away from the employer's place of business selling tangible or intangible items or
obtaining orders or contracts for products, services or use of facilities. (K)
"Primarily" as used in Section 1, Applicability, means more than one-half the
employee's work time. (L) "Shift" means designated hours of work by an employee,
with a designated beginning time and quitting time. (M) "Split shift" means a work
schedule, which is interrupted by non-paid non-working periods established by the
employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the
purpose of Section 1 of this order, the profession of teaching under a certificate
from the Commission for Teacher Preparation and Licensing. (O) "Wages" includes
all amounts for labor performed by employees of every description, whether the
amount is fixed or ascertained by the standard of time, task, piece, commission
basis, or other method of calculation. (P) "Workday" and "day" mean any
consecutive 24-hour period beginning at the same time each calendar day. (Q)
"Workweek" and "week" mean any seven (7) consecutive days, starting with the
same calendar day each week. "Workweek" is a fixed and regularly recurring period
of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work
(A) Daily Overtime-General Provisions (1) The following overtime provisions are
applicable to employees 18 years of age or over and to employees 16 or 17 years
of age who are not required by law to attend school and are not otherwise
prohibited by law from engaging in the subject work. Such employees shall not be
employed more than eight (8) hours in any workday or more than 40 hours in any
workweek unless the employee receives one and one-half (1 1/2) times such
employee's regular rate of pay for all hours worked over 40 hours in the workweek.
Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8)
hours in any workday or more than six (6) days in any workweek is permissible
provided the employee is compensated for such overtime at not less than: (a) One
and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in
excess of eight (8) hours up to and including 12 hours in any workday, and for the
first eight (8) hours worked on the seventh (7th) consecutive day of work in a
workweek; and (b) Double the employee's regular rate of pay for all hours worked in
excess of 12 hours in any workday and for all hours worked in excess of eight (8)
hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime
rate of compensation required to be paid to a nonexempt full-time salaried
employee shall be computed by using the employee's regular hourly salary as onefortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek (1) No
employer shall be deemed to have violated the daily overtime provisions by
instituting, pursuant to the election procedures set forth in this wage order, a
regularly scheduled alternative workweek schedule of not more than ten (10) hours
per day within a 40 hour workweek without the payment of an overtime rate of
compensation. All work performed in any workday beyond the schedule established
by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid
at one and one-half (1 1/2) times the employee's regular rate of pay. All work
performed in excess of 12 hours per day and any work in excess of eight (8) hours
on those days worked beyond the regularly scheduled number of workdays
established by the alternative workweek agreement shall be paid at double the
employee's regular rate of pay. Any alternative workweek agreement adopted
pursuant to this section shall provide for not less than four (4) hours of work in any
shift. Nothing in this section shall prohibit an employer, at the request of the
employee, to substitute one day of work for another day of the same length in the
shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of work days and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, a new secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and
one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40
hours in any workweek except that minors 16 and 17 years old who are not required
by law to attend school and may therefore be employed for the same hours as an
adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (E) An employee may be
employed on seven (7) workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) The provisions of
California Labor Code Sections 551 and 552 regarding one (1) day's rest in seven
(7) shall not be construed to prevent an accumulation of days of rest when the
nature of the employment reasonably requires the employee to work seven (7) or
more consecutive days; provided, however, that in each calendar month, the
employee shall receive the equivalent of one (1) day's rest in seven (7). (G) If a
meal period occurs on a shift beginning or ending at or between the hours of 10
p.m. and 6 am., facilities shall be available for securing hot food and drink or for
heating food or drink, and a suitable sheltered place shall be provided in which to
consume such food or drink. (H) Except as provided in subsections (D) and (F), this
section shall not apply to any employee covered by a valid collective bargaining
agreement if the agreement expressly provides for the wages, hours of work, and
working conditions of the employees, and if the agreement provides premium wage
rates for all overtime hours worked and a regular hourly rate of pay for those
employees of not less than 30 percent more than the state minimum wage. (I)
Notwithstanding subsection (H) above, where the employer and a labor
organization representing employees of the employer have entered into a valid
collective bargaining agreement pertaining to the hours of work of the employees,
the requirement regarding the equivalent of one (1) day's rest in seven (7) (see
subsection (F) above) shall apply, unless the agreement expressly provides
otherwise. (J) The provisions of this section are not applicable to employees whose
hours of service are regulated by: (1) The United States Department of
Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R. § 395.1 to
49 C.F.R. § 395.13, Hours of Service of Drivers; or (2) Title 13 of the California
Code of Regulations, subchapter 6.5, Section 13:1200 and the following sections,
regulating hours of drivers. (K) If an employer approves a written request of an
employee to make up work time that is or would be lost as a result of a personal
obligation of the employee, the hours of that makeup work time, if performed in the
same workweek in which the work time was lost, may not be counted toward
computing the total number of hours worked in a day for purposes of the overtime
requirements, except for hours in excess of 11 hours of work in one (1) day or 40
hours of work in one (1) workweek. If an employee knows in advance that he/she
will be requesting makeup time for a personal obligation that will recur at a fixed
time over a succession of weeks, the employee may request to make up work time
for up to four (4) weeks in advance; provided, however, that the makeup work must
be performed in the same week that the work time was lost. An employee shall
provide a signed written request for each occasion that the employee makes a
request to make up work time pursuant to this subparagraph. While an employer
may inform an employee of this makeup time option, the employer is prohibited
from encouraging or otherwise soliciting an employee to request the employer's
approval to take personal time off and make up the work hours within the same
workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall
pay to each employee wages not less than six dollars and twenty-five cents ($6.25)
per hour for all hours worked, effective January 1, 2001, and not less than six
dollars and seventy-five cents ($6.75) per hour for all hours worked, effective
January 1, 2002, except: LEARNERS: Employees during their first 160 hours of
employment in occupations in which they have no previous similar or related
experience, may be paid not less than 85 percent of the minimum wage rounded to
the nearest nickel. (B) Every employer shall pay to each employee, on the
established payday for the period involved, not less than the applicable minimum
wage for all hours worked in the payroll period, whether the remuneration is
measured by time, piece, commission, or otherwise. (C) When an employee works
a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the
minimum wage for that workday, except when the employee resides at the place of
employment. (D) The provisions of this section shall not apply to apprentices
regularly indentured under the State Division of Apprenticeship Standards. 5.
Reporting Time Pay (A) Each workday an employee is required to report for work
and does report, but is not put to work or is furnished less than half said employee's
usual or scheduled day's work, the employee shall be paid for half the usual or
scheduled day's work, but in no event for less than two (2) hours nor more than four
(4) hours, at the employee's regular rate of pay, which shall not be less than the
minimum wage. (B) If an employee is required to report for work a second time in
any one workday and is furnished less than two (2) hours of work on the second
reporting, said employee shall be paid for two (2) hours at the employee's regular
rate of pay, which shall not be less than the minimum wage. (C) The foregoing
reporting time pay provisions are not applicable when: (1) Operations cannot
commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be
issued by the Division authorizing employment of a person whose earning capacity
is impaired by physical disability or mental deficiency at less than the minimum
wage. Such licenses shall be granted only upon joint application of employer and
employee and employee's representative if any. (B) A special license may be
issued to a nonprofit organization such as a sheltered workshop or rehabilitation
facility fixing special minimum rates to enable the employment of such persons
without requiring individual licenses of such employees. (C) All such licenses and
special licenses shall be renewed on a yearly basis or more frequently at the
discretion of the Division. (See California Labor Code, Sections 1191 and 1191.5) 7.
Records (A) Every employer shall keep accurate information with respect to each
employee including the following: (1) Full name, home address, occupation and
social security number. (2) Birth date, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period.
Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two thirds
(2/3) $352.90 per month $381.20 per month of the ordinary rental value, and in no
event more than Where a couple are both $522.10 per month $563.90 per month
employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no
event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period may be waived by mutual consent of the employer and
the employee. (B) An employer may not employ an employee for a work period of
more than ten (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. (C)
Unless the employee is relieved of all duty during a 30-minute meal period, the
meal period shall be considered an "on duty" meal period and counted as time
worked. An "on duty" meal period shall be permitted only when the nature of the
work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (D) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (B) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for non-payment of
wages for overtime work in violation of this order. 21. Separability If the application
of any provision of this order, or any section, subsection, subdivision, sentence,
clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11070. Order Regulating Wages, Hours, and Working Conditions in the
Mercantile Industry. 1. Applicability of Order This order shall apply to all persons
employed in the mercantile industry whether paid on a time, piece rate,
commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of
this order shall not apply to persons employed in administrative, executive, or
professional capacities. The following requirements shall apply in determining
whether an employee's duties meet the test to qualify for an exemption from those
sections: (1) Executive Exemption A person employed in an executive capacity
means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees therein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 541.104-111, and 541.115-116. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (i) The
performance of office or non-manual work directly related to management policies
or general business operations of his/her employer or their employer's customers;
or (ii) The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision thereof, in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties that meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code Section 515(c) as 40
hours per week. (3) Professional Exemption A person employed in a professional
capacity means any employee who meets all of the following requirements: (a) Who
is licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraph (a) and (b). (d) Who earns a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment as defined in Labor Code Section 515(c) as 40 hours per week. (e)
Subparagraph (b) above is intended to be construed in accordance with the
following provisions of federal law as they existed as of the date of this wage order:
29 C.F.R. § 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and
541.310. (f) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (f) above
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clause (i), (ii), and (iii) from meeting the requirements of
subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and that requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics
and Research shall adjust this pay rate on October 1 of each year to be effective on
January 1 of the following year by an amount equal to the percentage increase in
the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
(i) The exemption provided in subparagraph (h) does not apply to an employee if
any of the following apply: (i) The employee is a trainee or employee in an entrylevel position who is learning to become proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. (ii) The employee is in a computer-related
occupation but has not attained the level of skill and expertise necessary to work
independently and without close supervision. (iii) The employee is engaged in the
operation of computers or in the manufacture, repair, or maintenance of computer
hardware and related equipment. (iv) The employee is an engineer, drafter,
machinist, or other professional whose work is highly dependent upon or facilitated
by the use of computers and computer software programs and who is skilled in
computer-aided design software, including CAD/CAM, but who is not in a computer
systems analysis or programming occupation. (v) The employee is a writer engaged
in writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) The
provisions of this order shall not apply to outside salespersons. (D) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child of the employer. (E) The provisions of this order shall not apply
to any individual participating in a national service program, such as AmeriCorps,
carried out using assistance provided under Section 12571 of Title 42 of the United
States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2.
Definitions (A) An "alternative workweek schedule" means any regularly scheduled
workweek requiring an employee to work more than eight (8) hours in a 24-hour
period. (B) "Commission" means the Industrial Welfare Commission of the State of
California. (C) "Division" means the Division of Labor Standards Enforcement of the
State of California. (D) "Employ" means to engage, suffer, or permit to work. (E)
"Employee" means any person employed by an employer, and includes any lessee
who is charged rent, or who pays rent for a chair, booth, or space; and (1) Who
does not use his/her own funds to purchase requisite supplies; and (2) Who does
not maintain an appointment book separate and distinct from that of the
establishment in which the space is located; and (3) Who does not have a business
license where applicable. (F) "Employer" means any person as defined in Section
18 of the Labor Code, who directly or indirectly, or through an agent or any other
person, employs or exercises control over the wages, hours, or working conditions
of any person. (G) "Hours worked" means the time during which an employee is
subject to the control of an employer, and includes all the time the employee is
suffered or permitted to work, whether or not required to do so. (H) "Mercantile
Industry" means any industry, business, or establishment operated for the purpose
of purchasing, selling, or distributing goods or commodities at wholesale or retail; or
for the purpose of renting goods or commodities. (I) "Minor" means, for the purpose
of this Order, any person under the age of eighteen (18) years. (J) "Outside
salesperson" means any person, 18 years of age or over, who customarily and
regularly works more than half the working time away from the employer's place of
business selling tangible or intangible items or obtaining orders or contracts for
products, services or use of facilities. (K) "Primarily" as used in Section 1,
Applicability, means more than one-half the employee's work time. (L) "Shift" means
designated hours of work by an employee, with a designated beginning time and
quitting time. (M) "Split shift" means a work schedule which, is interrupted by nonpaid non-working periods established by the employer, other than bona fide rest or
meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the
profession of teaching under a certificate from the Commission for Teacher
Preparation and Licensing or teaching in an accredited college or university. (O)
"Wages" includes all amounts for labor performed by employees of every
description, whether the amount is fixed or ascertained by the standard of time,
task, piece, commission basis, or other method of calculation. (P) "Workday" and
"day" mean any consecutive 24-hour period beginning at the same time each
calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed and regularly
recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and
Days of Work (A) Daily Overtime-General Provisions (1) The following overtime
provisions are applicable to employees 18 years of age or over and to employees
16 or 17 years of age who are not required by law to attend school and are not
otherwise prohibited by law from engaging in the subject work. Such employees
shall not be employed more than eight (8) hours in any workday or more than 40
hours in any workweek unless the employee receives one and one-half (1 1/2)
times such employee's regular rate of pay for all hours worked over 40 hours in the
workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond
eight (8) hours in any workday or more than six (6) days in any workweek is
permissible provided the employee is compensated for such overtime at not less
than: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all
hours worked in excess of eight (8) hours up to and including 12 hours in any
workday, and for the first eight (8) hours worked on the seventh (7th) consecutive
day of work in a workweek; and (b) Double the employee's regular rate of pay for all
hours worked in excess of 12 hours in any workday and for all hours worked in
excess of eight (8) hours on the seventh (7th) consecutive day of work in a
workweek. (c) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using the employee's
regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B)
Alternative Workweek (1) No employer shall be deemed to have violated the daily
overtime provisions by instituting, pursuant to the election procedures set forth in
this wage order, a regularly scheduled alternative workweek schedule of not more
than ten (10) hours per day within a 40 hour workweek without the payment of an
overtime rate of compensation. All work performed in any workday beyond the
schedule established by the agreement up to 12 hours a day or beyond 40 hours
per week shall be paid at one and one-half (1 1/2) times the employee's regular rate
of pay. All work performed in excess of 12 hours per day and any work in excess of
eight (8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than four (4) hours of
work in any shift. Nothing in this section shall prohibit an employer, at the request of
the employee, to substitute one day of work for another day of the same length in
the shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of work days and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 a seq. (D) Provisions of
subsections (A), (B), and (C) above shall not apply to any employee whose
earnings exceed one and one-half (1 1/2) times the minimum wage if more than half
of that employee's compensation represents commissions. (E) One and one-half (1
1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in
any workweek except minors 16 and 17 years old who are not required by law to
attend school and may therefore be employed for the same hours as an adult are
subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR
LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal
penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399
for additional restrictions on the employment of minors and for descriptions of
criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (F) An employee may be
employed on seven (7) workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (G) If a meal period
occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am.,
facilities shall be available for securing hot food and drink or for heating food or
drink, and a suitable sheltered place shall be provided in which to consume such
food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding
one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of
days of rest when the nature of the employment reasonably requires the employee
to work seven (7) or more consecutive days; provided, however, that in each
calendar month, the employee shall receive the equivalent of one (1) day's rest in
seven (7). (I) Except as provided in subsections (E) and (H), this section shall not
apply to any employee covered by a valid collective bargaining agreement if the
agreement expressly provides for the wages, hours of work, and working conditions
of the employees, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those employees of not
less than 30 percent more than the state minimum wage. (J) Notwithstanding
subsection (I) above, where the employer and a labor organization representing
employees of the employer have entered into a valid collective bargaining
agreement pertaining to the hours of work of the employees, the requirement
regarding the equivalent of one (1) day's rest in seven (7) (see subsection (H)
above) shall apply, unless the agreement expressly provides otherwise. (K) The
provisions of this section are not applicable to employees whose hours of service
are regulated by: (1) The United States Department of Transportation Code of
Federal Regulations, Title 49, Sections 49 C.F.R. § 395.1 to 49 C.F.R. § 395.13,
Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations,
subchapter 6.5, Section 13:1200 and the following sections, regulating hours of
drivers. (L) If an employer approves a written request of an employee to make up
work time that is or would be lost as a result of a personal obligation of the
employee, the hours of that makeup work time, if performed in the same workweek
in which the work time was lost, may not be counted toward computing the total
number of hours worked in a day for purposes of the overtime requirements, except
for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1)
workweek. If an employee knows in advance that he/she will be requesting makeup
time for a personal obligation that will recur at a fixed time over a succession of
weeks, the employee may request to make up work time for up to four (4) weeks in
advance; provided, however, that the makeup work must be performed in the same
week that the work time was lost. An employee shall provide a signed written
request for each occasion that the employee makes a request to make up work time
pursuant to this subsection. While an employer may inform an employee of this
makeup time option, the employer is prohibited from encouraging or otherwise
soliciting an employee to request the employer's approval to take personal time off
and make up the work hours within the same workweek pursuant to this section. 4.
Minimum Wages (A) Every employer shall pay to each employee wages not less
than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective
January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per
hour for all hours worked, effective January 1, 2002, except: LEARNERS:
Employees during their first one 160 hours of employment in occupations in which
they have no previous similar or related experience, may be paid not less than 85
percent of the minimum wage rounded to the nearest nickel. (B) Every employer
shall pay to each employee, on the established payday for the period involved, not
less than the applicable minimum wage for all hours worked in the payroll period,
whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one (1) hour's pay at the minimum wage
shall be paid in addition to the minimum wage for that workday, except when the
employee resides at the place of employment. (D) The provisions of this section
shall not apply to apprentices regularly indentured under the State Division of
Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is
required to report for work and does report, but is not put to work or is furnished
less than half said employee's usual or scheduled day's work, the employee shall
be paid for half the usual or scheduled day's work, but in no event for less than two
(2) hours nor more than four (4) hours, at the employee's regular rate of pay, which
shall not be less than the minimum wage. (B) If an employee is required to report
for work a second time in any one workday and is furnished less than two (2) hours
of work on the second reporting, said employee shall be paid for two (2) hours at
the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1)
Operations cannot commence or continue due to threats to employees or property;
or when recommended by civil authorities; or (2) Public utilities fail to supply
electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
or (3) The interruption of work is caused by an Act of God or other cause not within
the employer's control. (D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time other than the
employee's scheduled reporting time. 6. Licenses For Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special license
may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with respect
to each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two thirds
(2/3) $352.90 per month $381.20 per month of the ordinary rental value, and in no
event more than Where a couple are both $522.10 per month $563.90 per month
employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no
event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period may be waived by mutual consent of the employer and
the employee. (B) An employer may not employ an employee for a work period of
more than ten (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. (C)
Unless the employee is relieved of all duty during a 30 minute meal period, the meal
period shall be considered an "on duty" meal period and counted as time worked.
An "on duty" meal period shall be permitted only when the nature of the work
prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each work day that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (D) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (C) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for non-payment of
wages for overtime work in violation of this order. 21. Separability If the application
of any provision of this order, or any section, subsection, subdivision, sentence,
clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11080. Order Regulating Wages, Hours, and Working Conditions in the
Industries Handling Products After Harvest. 1. Applicability of Order This order
shall apply to all persons employed in the industries handling products after harvest
whether paid on a time, piece rate, commission, or other basis, except that: (A)
Provisions of Sections 3 through 12 of this order shall not apply to persons
employed in administrative, executive, or professional capacities. The following
requirements shall apply in determining whether an employee's duties meet the test
to qualify for an exemption from those sections: (1) Executive Exemption A person
employed in an executive capacity means any employee: (a) Whose duties and
responsibilities involve the management of the enterprise in which he/she is
employed or of a customarily recognized department or subdivision thereof; and (b)
Who customarily and regularly directs the work of two or more other employees
therein; and (c) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other employees will
be given particular weight; and (d) Who customarily and regularly exercises
discretion and independent judgment; and (e) Who is primarily engaged in duties
which meet the test of the exemption. The activities constituting exempt work and
non-exempt work shall be construed in the same manner as such items are
construed in the following regulations under the Fair Labor Standards Act effective
as of the date of this order: 29 C.F.R. § 541.102, 541.104-111, and 541.115-116.
Exempt work shall include, for example, all work that is directly and closely related
to exempt work and work which is properly viewed as a means for carrying out
exempt functions. The work actually performed by the employee during the course
of the workweek must, first and foremost, be examined and the amount of time the
employee spends on such work, together with the employer's realistic expectations
and the realistic requirements of the job, shall be considered in determining whether
the employee satisfies this requirement. (f) Such an employee must also earn a
monthly salary equivalent to no less than two (2) times the state minimum wage for
full-time employment. Full-time employment is defined in Labor Code Section
515(c) as 40 hours per week. (2) Administrative Exemption A person employed in
an administrative capacity means any employee: (a) Whose duties and
responsibilities involve either: (i) The performance of office or non-manual work
directly related to management policies or general business operations of his/her
employer or his/her employer's customers; or (ii) The performance of functions in
the administration of a school system, or educational establishment or institution, or
of a department or subdivision thereof, in work directly related to the academic
instruction or training carried on therein; and (b) Who customarily and regularly
exercises discretion and independent judgment; and (c) Who regularly and directly
assists a proprietor, or an employee employed in a bona fide executive or
administrative capacity (as such terms are defined for purposes of this section); or
(d) Who performs under only general supervision work along specialized or
technical lines requiring special training, experience, or knowledge; or (e) Who
executes under only general supervision special assignments and tasks; and (f)
Who is primarily engaged in duties which meet the test of the exemption. The
activities constituting exempt work and non-exempt work shall be construed in the
same manner as such terms are construed in the following regulations under the
Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. § 541.201205, 541.207-208, 541.210, and 541.215. Exempt work shall include, for example,
all work that is directly and closely related to exempt work and work which is
properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (g) Such employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (3)
Professional Exemption A person employed in a professional capacity means any
employee who meets all of the following requirements: (a) Who is licensed or
certified by the State of California and is primarily engaged in the practice of one of
the following recognized professions: law, medicine, dentistry, optometry,
architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged
in an occupation commonly recognized as a learned or artistic profession. For the
purposes of this subsection, "learned or artistic profession" means an employee
who is primarily engaged in the performance of: (i) Work requiring knowledge of an
advanced type in a field or science or learning customarily acquired by a prolonged
course of specialized intellectual instruction and study, as distinguished from a
general academic education and from an apprenticeship, and from training in the
performance of routine mental, manual, or physical processes, or work that is an
essential part of or necessarily incident to any of the above work; or (ii) Work that is
original and creative in character in a recognized field of artistic endeavor (as
opposed to work which can be produced by a person endowed with general manual
or intellectual ability and training), and the result of which depends primarily on the
invention, imagination, or talent of the employee or work that is an essential part of
or necessarily incident to any of the above work; and (iii) Whose work is
predominantly intellectual and varied in character (as opposed to routine mental,
manual, mechanical, or physical work) and is of such character that the output
produced or the result accomplished cannot be standardized in relation to a given
period of time. (c) Who customarily and regularly exercises discretion and
independent judgment in the performance of duties set forth in subparagraphs (a)
and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the
state minimum wage for full-time employment. Full-time employment is defined in
Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is
intended to be construed in accordance with the following provisions of federal law
as they existed as of the date of this wage order: 29 C.F.R. § 541.207, 541.301(a)(d), 541.302, 541.306, 541.307, 541.308, and 541.310. (f) Notwithstanding the
provisions of this subparagraph, pharmacists employed to engage in the practice of
pharmacy, and registered nurses employed to engage in the practice of nursing,
shall not be considered exempt professional employees, nor shall they be
considered exempt from coverage for the purposes of this subparagraph unless
they individually meet the criteria established for exemption as executive or
administrative employees. (g) Subparagraph (f) above shall not apply to the
following advanced practice nurses: (i) Certified nurse midwives who are primarily
engaged in performing duties for which certification is required pursuant to Article
2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and
Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in
performing duties for which certification is required pursuant to Article 7
(commencing with Section 2825) of Chapter 6 of Division 2 of the Business and
Professions Code. (iii) Certified nurse practitioners who are primarily engaged in
performing duties for which certification is required pursuant to Article 8
(commencing with Section 2834) of Chapter 6 of Division 2 of the Business and
Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations
set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection
1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in
the computer software field who is paid on an hourly basis shall be exempt from the
daily overtime pay provisions of Labor Code Section 510, if all of the following
apply: (i) The employee is primarily engaged in work that is intellectual or creative
that requires the exercise of discretion and independent judgment. (ii) The
employee is primarily engaged in duties that consist of one or more of the following:
— The application of systems analysis techniques and procedures, including
consulting with users, to determine hardware, software, or system functional
specifications. — The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including prototypes,
based on and related to user or system design specifications. — The
documentation, testing, creation, or modification of computer programs related to
the design of software or hardware for computer operating systems. (iii) The
employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics
and Research shall adjust this pay rate on October 1 of each year to be effective on
January 1 of the following year by an amount equal to the percentage increase in
the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
(i) The exemption provided in subparagraph (h) does not apply to an employee if
any of the following apply: (i) The employee is a trainee or employee in an entrylevel position who is learning to become proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. (ii) The employee is in a computer-related
occupation but has not attained the level of skill and expertise necessary to work
independently and without close supervision. (iii) The employee is engaged in the
operation of computers or in the manufacture, repair, or maintenance of computer
hardware and related equipment. (iv) The employee is an engineer, drafter,
machinist, or other professional whose work is highly dependent upon or facilitated
by the use of computers and computer software programs and who is skilled in
computer-aided design software, including CAD/CAM, but who is not in a computer
systems analysis or programming occupation. (v) The employee is a writer engaged
in writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) The
provisions of this order shall not apply to outside salespersons. (D) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child or the employer. (E) The provisions of this order shall not
apply to any individual participating in a national service program, such as
AmeriCorps, carried out using assistance provided under Section 12571 of Title 42
of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code
Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any
regularly scheduled workweek requiring an employee to work more than eight (8)
hours in a 24-hour period. (B) "Commission" means the Industrial Welfare
Commission of the State of California. (C) "Division" means the Division of Labor
Standards Enforcement of the State of California. (D) "Employ" means to engage,
suffer, or permit to work. (E) "Employee" means any person employed by an
employer. (F) "Employer" means any person as defined in Section 18 of the Labor
Code, who directly or indirectly, or through an agent or any other person, employs
or exercises control over the wages, hours, or working conditions of any person. (G)
"Hours worked" means the time during which an employee is subject to the control
of an employer, and includes all the time the employee is suffered or permitted to
work, whether or not required to do so. (H) "Industries Handling Products After
Harvest" means any industry, business, or establishment operated for the purpose
of grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking,
shelling, candling, separating, slaughtering, picking, plucking, shucking,
pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural,
horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution,
and includes all the operations incidental thereto. (I) "Minor" means, for the purpose
of this order, any person under the age of 18 years. (J) "Outside salesperson"
means any person, 18 years of age or over, who customarily and regularly works
more than half the working time away from the employer's place of business selling
tangible or intangible items or obtaining orders or contracts for products, services or
use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than
one-half the employee's work time. (L) "Shift" means designated hours of work by
an employee, with a designated beginning time and quitting time. (M) "Split shift"
means a work schedule, which is interrupted by non-paid non-working periods
established by the employer, other than bona fide rest or meal periods. (N)
"Teaching" means, for the purpose of Section 1 of this order, the profession of
teaching under a certificate from the Commission for Teacher Preparation and
Licensing or teaching in an accredited college or university. (O) "Wages" includes
all amounts for labor performed by employees of every description, whether the
amount is fixed or ascertained by the standard of time, task, piece, commission
basis, or other method of calculation. (P) "Workday" and "day" mean any
consecutive 24-hour period beginning at the same time each calendar day. (Q)
"Workweek" and "week" mean any seven (7) consecutive days, starting with the
same calendar day each week. "Workweek" is a fixed and regularly recurring period
of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work
(A) Daily Overtime — General Provisions (1) The following overtime provisions are
applicable to employees 18 years of age or over and to employees 16 or 17 years
of age who are not required by law to attend school and are not otherwise
prohibited by law from engaging in the subject work. Such employees shall not be
employed more than eight (8) hours in any workday or more than 40 hours in any
workweek unless the employee receives one and one-half (1 1/2) times such
employee's regular rate of pay for all hours worked over 40 hours in the workweek.
Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8)
hours in any workday or more than six (6) days in any workweek is permissible
under the following conditions: (2) MANDATORY DAY OFF REQUIREMENT: An
employee may work up to a maximum of 72 hours in any workweek after which the
employee shall have a 24-hour period off duty, except that: (a) In the grape and tree
fruit industry the following key personnel: receivers, loaders, fork lift operators,
shipping clerks, and maintenance workers, may be exempt from the mandatory day
off requirement; and (b) In the cotton ginning industry and in the tree nut hulling and
shelling industry, all employees shall have the voluntary right to be exempt from the
mandatory day off provision in this order. Any employee desiring to exempt
himself/herself from the mandatory day off provision may exercise that exemption
by notifying the employee's employer in writing. Any employee who wishes to
withdraw that exemption may do so by notifying the employer in writing at least five
(5) days in advance of the desired day off. (This notice provision is not intended to
be applicable to instances of illness or emergencies); and (c) In the exercise of any
exemption from the mandatory day off provided above or by action of the state labor
commissioner, (administrative exemptions from the mandatory day off are permitted
by Labor Code Section 1198.3 under certain conditions) no employer shall
discriminate against any employee who desires to take 24 hours off after 72 hours
worked in a workweek; and (d) All employers who permit any employees to work
more than 72 hours in a workweek must give each employee a copy of the
applicable provision for exemption, including subparagraph (c) above in English and
in Spanish, and post it at all times in a prominently visible place; and (3) Overtime
hours shall be compensated at: (a) One and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours up to and
including 12 hours in any workday, and for the first eight (8) hours worked on the
seventh (7th) consecutive day of work in a workweek; and (b) Double the
employee's regular rate of pay for all hours worked in excess of 12 hours in any
workday and for all hours worked in excess of eight (8) hours on the seventh (7th)
consecutive day of work in a workweek. (c) The overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee shall be computed
by using the employee's regular hourly salary as one-fortieth (1/40) of the
employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer
shall be deemed to have violated the daily overtime provisions by instituting,
pursuant to the election procedures set forth in this wage order, a regularly
scheduled alternative workweek schedule of not more than ten (10) hours per day
within a 40 hour workweek without the payment of an overtime rate of
compensation. All work performed in any workday beyond the schedule established
by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid
at one and one-half (1 1/2) times the employee's regular rate of pay. All work
performed in excess of 12 hours per day and any work in excess of eight (8) hours
on those days worked beyond the regularly scheduled number of workdays
established by the alternative workweek agreement shall be paid at double the
employee's regular rate of pay. Any alternative workweek agreement adopted
pursuant to this section shall provide for not less than four (4) hours of work in any
shift. Nothing in this section shall prohibit an employer, at the request of the
employee, to substitute one day of work for another day of the same length in the
shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of workdays and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this paragraph shall prohibit an employer from expressing
his/her position concerning that alternative workweek to the affected employees. A
violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D)
One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all
work over 40 hours in any workweek except minors 16 or 17 years old who are not
required by law to attend school and may therefore be employed for the same hours
as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF
CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well
as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and
1390 to 1399 for additional restrictions on the employment of minors and for
descriptions of criminal and civil penalties for violation of the child labor laws.
Employers should ask school districts about any required work permits.) (E) An
employee may be employed on seven (7) workdays in one workweek when the total
hours of employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) If during any
workday an employer declares a work recess of one-half (1/2) hour or more, other
than a meal period, and the employer notifies the employees of the time to report
back for work and permits them to leave the premises, such recess need not be
treated as hours worked provided that there shall not be more than two (2) such
recess periods within one shift and the total duration does not exceed two (2) hours.
Work stoppages of less than one-half (1/2) hour may not be deducted from hours
worked. (G) If a meal period occurs on a shift beginning or ending at or between the
hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and
drink or for heating food or drink, and a suitable sheltered place shall be provided in
which to consume such food or drink. (H) The provisions of Labor Code Sections
551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to
prevent an accumulation of days of rest when the nature of the employment
reasonably requires the employee to work seven (7) or more consecutive days;
provided, however, that in each calendar month, the employee shall receive the
equivalent of one (1) day's rest in seven (7). (I) Except as provided in subsection
(A)(1) and subsections (D) and (H), this section shall not apply to any employee
covered by a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of the employees,
and if the agreement provides premium wage rates for all overtime hours worked
and a regular hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage. (J) Notwithstanding subsection (I) above,
where the employer and a labor organization representing employees of the
employer have entered into a valid collective bargaining agreement pertaining to the
hours of work of the employees, the requirement regarding the equivalent of one (1)
day's rest in seven (7) (see subsection (H) above) shall apply, unless the
agreement expressly provides otherwise. (K) The provisions of this section are not
applicable to employees whose hours of service are regulated by: (1) The United
States Department of Transportation Code of Federal Regulations, Title 49,
Sections 49 C.F.R. § 395.1 to 49 C.F.R. § 395.13, Hours of Service of Drivers; or
(2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200
and the following sections, regulating hours of drivers. (L) If an employer approves
a written request of an employee to make up work time that is or would be lost as a
result of a personal obligation of the employee, the hours of that makeup work time,
if performed in the same workweek in which the work time was lost, may not be
counted toward computing the total number of hours worked in a day for purposes
of the overtime requirements, except for hours in excess of 11 hours of work in one
(1) day or 40 hours of work in one (1) workweek. If an employee knows in advance
that he/she will be requesting makeup time for a personal obligation that will recur
at a fixed time over a succession of weeks, the employee may request to make up
work time for up to four (4) weeks in advance; provided, however, that the makeup
work must be performed in the same week that the work time was lost. An
employee shall provide a signed written request for each occasion that the
employee makes a request to make up work time pursuant to this subsection. While
an employer may inform an employee of this makeup time option, the employer is
prohibited from encouraging or otherwise soliciting an employee to request the
employer's approval to take personal time off and make up the work hours within
the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every
employer shall pay to each employee wages not less six dollars and twenty-five
cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less
than six dollars and seventy-five cents ($6.75) per hour for all hours worked,
effective January 1, 2002, except: LEARNERS: Employees during their first 160
hours of employment in occupations in which they have no previous similar or
related experience, may be paid not less than 85 percent of the minimum wage
rounded to the nearest nickel. (B) Every employer shall pay to each employee, on
the established payday for the period involved, not less than the applicable
minimum wage for all hours worked in the payroll period, whether the remuneration
is measured by time, piece, commission, or otherwise. (C) When an employee
works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition
to the minimum wage for that workday, except when the employee resides at the
place of employment. (D) The provisions of this section shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. 5. Reporting Time Pay (A) Each workday an employee is required to
report for work and does report, but is not put to work or is furnished less than half
said employee's usual or scheduled day's work, the employee shall be paid for half
the usual or scheduled day's work, but in no event for less than two (2) hours nor
more than four (4) hours, at the employee's regular rate of pay, which shall not be
less than the minimum wage. (B) If an employee is required to report for work a
second time in any one workday and is furnished less than two (2) hours of work on
the second reporting, said employee shall be paid for two (2) hours at the
employee's regular rate of pay, which shall not be less than the minimum wage. (C)
The foregoing reporting time pay provisions are not applicable when: (1) Operations
cannot commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be
issued by the Division authorizing employment of a person whose earning capacity
is impaired by physical disability or mental deficiency at less than the minimum
wage. Such licenses shall be granted only upon joint application of employer and
employee and employee's representative if any. (B) A special license may be
issued to a nonprofit organization such as a sheltered workshop or rehabilitation
facility fixing special minimum rates to enable the employment of such persons
without requiring individual licenses of such employees. (C) All such licenses and
special licenses shall be renewed on a yearly basis or more frequently at the
discretion of the Division. (See California Labor Code, Sections 1191 and 1191.5) 7.
Records (A) Every employer shall keep accurate information with respect to each
employee including the following: (1) Full name, home address, occupation and
social security number. (2) Birth date, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period.
Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two thirds
(2/3) $352.90 per month $381.20 per month of the ordinary rental value, and in no
event more than Where a couple are both $522.10 per month $563.90 per month
employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no
event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period may be waived by mutual consent of the employer and
the employee. (B) An employer may not employ an employee for a work period of
more than ten (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. (C)
Unless the employee is relieved of all duty during a 30 minute meal period, the meal
period shall be considered an "on duty" meal period and counted as time worked.
An "on duty" meal period shall be permitted only when the nature of the work
prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (D) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (B) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for non-payment of
wages for overtime work in violation of this order. 21. Separability If the application
of any provision of this order, or any section, subsection, subdivision, sentence,
clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11090. Order Regulating Wages, Hours, and Working Conditions in the
Transportation Industry. 1. Applicability of Order This order shall apply to all
persons employed in the transportation industry whether paid on a time, piece rate,
commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of
this order shall not apply to persons employed in administrative, executive, or
professional capacities. The following requirements shall apply in determining
whether an employee's duties meet the test to qualify for an exemption from those
sections: (1) Executive Exemption A person employed in an executive capacity
means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees therein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 541.104-111, and 541.115-116. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (i) The
performance of office or non-manual work directly related to management policies
or general business operations of his employer or his/her employer's customers; or
(ii) The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision thereof, in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties that meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code Section 515(c) as 40
hours per week. (3) Professional Exemption A person employed in a professional
capacity means any employee who meets all of the following requirements: (a) Who
is licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (e)
Subparagraph (b) above is intended to be construed in accordance with the
following provisions of federal law as they existed as of the date of this wage order:
29 C.F.R. § 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and
541.310. (17) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (17) above
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of
subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and that requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall
adjust this pay rate on October 1 of each year to be effective on January 1 of the
following year by an amount equal to the percentage increase in the California
Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The
exemption provided in subparagraph (h) does not apply to an employee if any of the
following apply: (i) The employee is a trainee or employee in an entry-level position
who is learning to become proficient in the theoretical and practical application of
highly specialized information to computer systems analysis, programming, and
software engineering. (ii) The employee is in a computer-related occupation but has
not attained the level of skill and expertise necessary to work independently and
without close supervision. (iii) The employee is engaged in the operation of
computers or in the manufacture, repair, or maintenance of computer hardware and
related equipment. (iv) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by the use of
computers and computer software programs and who is skilled in computer-aided
design software, including CAD/CAM, but who is not in a computer systems
analysis or programming occupation. (v) The employee is a writer engaged in
writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) The
provisions of this order shall not apply to outside salespersons. (D) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child of the employer. (E) Except as provided in Sections 4, 10, 11,
12, and 20 through 22, this order shall not be deemed to cover those employees
who have entered into a collective bargaining agreement under and in accordance
with the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. (F) The
provisions of this Order shall not apply to any individual participating in a national
service program, such as AmeriCorps, carried out using assistance provided under
Section 12571 of Title 42 of the United States Code. (See Stats. 2000, ch. 365,
amending Labor Code § 1171) 2. Definitions (A) An "alternative workweek
schedule" means any regularly scheduled workweek requiring an employee to work
more than eight (8) hours in a 24-hour period. (B) "Commission" means the
Industrial Welfare Commission of the State of California. (C) "Division" means the
Division of Labor Standards Enforcement of the State of California. (D) "Employ"
means to engage, suffer, or permit to work. (E) "Employee" means any person
employed by an employer. (F) "Employer" means any person as defined in Section
18 of the Labor Code, who directly or indirectly, or through an agent or any other
person, employs or exercises control over the wages, hours, or working conditions
of any person. (C) "Hours worked" means the time during which an employee is
subject to the control of an employer, and includes all the time the employee is
suffered or permitted to work, whether or not required to do so. (H) "Minor" means,
for the purpose of this order, any person under the age of 18 years. (I) "Outside
salesperson" means any person, 18 years of age or over, who customarily and
regularly works more than half the working time away from the employer's place of
business selling tangible or intangible items or obtaining orders or contracts for
products, services or use of facilities. (J) "Primarily" as used in Section 1,
Applicability, means more than one-half the employee's work time. (K) "Shift"
means designated hours of work by an employee, with a designated beginning time
and quitting time. (L) "Split shift" means a work schedule, which is interrupted by
non-paid non-working periods established by the employer, other than bona fide
rest or meal periods. (M) "Teaching" means, for the purpose of Section 1 of this
order, the profession of teaching under a certificate from the Commission for
Teacher Preparation and Licensing or teaching in an accredited college or
university. (N) "Transportation Industry" means any industry, business, or
establishment operated for the purpose of conveying persons or property from one
place to another whether by rail, highway, air, or water, and all operations and
services in connection therewith; and also includes storing or warehousing of goods
or property, and the repairing, parking, rental, maintenance, or cleaning of vehicles.
(0) "Wages" includes all amounts for labor performed by employees of every
description, whether the amount is fixed or ascertained by the standard of time,
task, piece, commission basis, or other method of calculation. (P) "Workday" and
"day" mean any consecutive 24-hour period beginning at the same time each
calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed and regularly
recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and
Days of Work (A) Daily Overtime-General Provisions (1) The following overtime
provisions are applicable to employees 18 years of age or over and to employees
16 or 17 years of age who are not required by law to attend school and are not
otherwise prohibited by law from engaging in the subject work. Such employees
shall not be employed more than eight (8) hours in any workday or more than 40
hours in any workweek unless the employee receives one and one-half (1 1/2)
times such employee's regular rate of pay for all hours worked over 40 hours in the
workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond
eight (8) hours in any workday or more than six (6) days in any workweek is
permissible provided the employee is compensated for such overtime at not less
than: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all
hours worked in excess of eight (8) hours up to and including 12 hours in any
workday, and for the first eight (8) hours worked on the seventh (7th) consecutive
day of work in a workweek; and (b) Double the employee's regular rate of pay for all
hours worked in excess of 12 hours in any workday and for all hours worked in
excess of eight (8) hours on the seventh (7th) consecutive day of work in a
workweek. (c) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using the employee's
regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B)
Alternative Workweek Schedules (1) No employer shall be deemed to have violated
the daily overtime provisions by instituting, pursuant to the election procedures set
forth in this wage order, a regularly scheduled alternative workweek schedule of not
more than ten (10) hours per day within a 40 hour workweek without the payment of
an overtime rate of compensation. All work performed in any workday beyond the
schedule established by the agreement up to 12 hours a day or beyond 40 hours
per week shall be paid at one and one-half (1 1/2) times the employee's regular rate
of pay. All work performed in excess of 12 hours per day and any work in excess of
eight (8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than four (4) hours of
work in any shift. Nothing in this section shall prohibit an employer, at the request of
the employee, to substitute one day of work for another day of the same length in
the shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) If an employer whose employees have
adopted an alternative workweek agreement permitted by this order requires an
employee to work fewer hours than those that are regularly scheduled by the
agreement, the employer shall pay the employee overtime compensation at a rate
of one and one-half (1 1/2) times the employee's regular rate of pay for all hours
worked in excess of eight (8) hours, and double the employee' s regular rate of pay
for all hours worked in excess of 12 hours for the day the employee is required to
work the reduced hours. (3) 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. (4) 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 (I) of Section 12940 of the Government Code.
(5) An employer shall make a reasonable effort to find a work schedule not to
exceed eight (8) 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 workweek schedule established as the result of
that election. (6) An employer shall be permitted, but not required, to provide a work
schedule not to exceed eight (8) hours in a workday to accommodate any employee
who is hired after the date of the election and who is unable to work the alternative
workweek schedule established by the election. (7) Arrangements adopted in a
secret ballot election held pursuant to this order prior to 1998, or under the rules in
effect prior to 1998, and before the performance of the work, shall remain valid after
July 1, 2000 provided that the results of the election are reported by the employer to
the Division of Labor Statistics and Research by January 1, 2001, in accordance
with the requirements of subsection (C) below (Election Procedures). If an
employee was voluntarily working an alternative workweek schedule of not more
than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule
was based on an individual agreement made after January 1, 1998 between the
employee and employer, and the employee submitted, and the employer approved,
a written request on or before May 30, 2000 to continue the agreement, the
employee may continue to work that alternative workweek schedule without
payment of an overtime rate of compensation for the hours provided in the
agreement. The employee may revoke his/her voluntary authorization to continue
such a schedule with 30 days written notice to the employer. New arrangements
can only be entered into pursuant to the provisions of this section. (C) Election
Procedures Election procedures for the adoption and repeal of alternative
workweek schedules require the following: (1) Each proposal for an alternative
workweek schedule shall be in the form of a written agreement proposed by the
employer. The proposed agreement must designate a regularly scheduled
alternative workweek in which the specified number of work days and work hours
are regularly recurring. The actual days worked within that alternative workweek
schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule options, the employee
may, with the approval of the employer, move from one menu option to another. (2)
In order to be valid, the proposed alternative workweek schedule must be adopted
in a secret ballot election, before the performance of work, by at least a two-thirds
(2/3) vote of the affected employees in the work unit. The election shall be held
during regular working hours at the employees' work site. For purposes of this
subsection, "affected employees in the work unit" may include all employees in a
readily identifiable work unit, such as a division, a department, a job classification, a
shift, a separate physical location, or a recognized subdivision of any such work
unit. A work unit may consist of an individual employee as long as the criteria for an
identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote,
any employer who proposed to institute an alternative workweek schedule shall
have made a disclosure in writing to the affected employees, including the effects of
the proposed arrangement on the employees' wages, hours, and benefits. Such a
disclosure shall include meeting(s), duly noticed, held at least 14 days prior to
voting, for the specific purpose of discussing the effects of the alternative workweek
schedule. An employer shall provide that disclosure in a non-English language, as
well as in English, if at least five (5) percent of the affected employees primarily
speak that non-English language. The employer shall mail the written disclosure to
employees who do not attend the meeting. Failure to comply with this paragraph
shall make the election null and void. (4) Any election to establish or repeal an
alternative workweek schedule shall be held at the work site of the affected
employees. The employer shall bear the costs of conducting any election held
pursuant to this section. Upon a complaint by an affected employee, and after an
investigation by the labor commissioner, the labor commissioner may require the
employer to select a neutral third party to conduct the election. (v) Any type of
alternative workweek schedule that is authorized by the California Labor Code may
be repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to California Labor Code Section 98 et seq. (D)
One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all
work over 40 hours in any workweek except minors 16 or 17 years old who are not
required by law to attend school and may therefore by employed for the same hours
as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF
CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well
as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and
1390 to 1399 for additional restrictions on the employment of minors and for
descriptions of criminal and civil penalties for violation of the child labor laws.
Employers should ask school districts about any required work permits.) (E) An
employee may be employed on seven (7) workdays in one workweek when the total
hours of employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) If a meal period
occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am.,
facilities shall be available for securing hot food and drink or for heating food or
drink, and a suitable sheltered place shall be provided in which to consume such
food or drink. (G) The provisions of Labor Code Sections 551 and 552 regarding
one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of
days of rest when the nature of the employment reasonably requires the employee
to work seven (7) or more consecutive days; provided, however, that in each
calendar month, the employee shall receive the equivalent of one (1) day's rest in
seven (7). (H) Except as provided in subsections (E) and (G), this section shall not
apply to any employee covered by a valid collective bargaining agreement if the
agreement expressly provides for the wages, hours of work, and working conditions
of the employees, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those employees of not
less than 30 percent more than the state minimum wage. (I) Notwithstanding
subsection (H) above, where the employer and a labor organization representing
employees of the employer have entered into a valid collective bargaining
agreement pertaining to the hours of work of the employees, the requirement
regarding the equivalent of one (1) day's rest in seven (7) (see subsection (G)
above) shall apply, unless the agreement expressly provides otherwise. (J) If an
employer approves a written request of an employee to make up work time that is
or would be lost as a result of a personal obligation of the employee, the hours of
that makeup work time, if performed in the same workweek in which the work time
was lost, may not be counted toward computing the total number of hours worked in
a day for purposes of the overtime requirements, except for hours in excess of 11
hours of work in one (1) day or 40 hours of work in one (1) workweek. If an
employee knows in advance that he/she will be requesting makeup time for a
personal obligation that will recur at a fixed time over a succession of weeks, the
employee may request to make up work time for up to four (4) weeks in advance;
provided, however, that the makeup work must be performed in the same week that
the work time was lost. An employee shall provide a signed written request for each
occasion that the employee makes a request to make up work time pursuant to this
subsection. While an employer may inform an employee of this makeup time option,
the employer is prohibited from encouraging or otherwise soliciting an employee to
request the employer's approval to take personal time off and make up the work
hours within the same workweek pursuant to this subsection. (K) The daily overtime
provision of subsection (A) above shall not apply to ambulance drivers and
attendants scheduled for 24-hour shifts of duty who have agreed in writing to
exclude from daily time worked not more than three (3) meal periods of not more
than one (1) hour each and a regularly scheduled uninterrupted sleeping period of
not more than eight (8) hours. The employer shall provide adequate dormitory and
kitchen facilities for employees on such a schedule. (L) The provisions of this
section are not applicable to employees whose hours of service are regulated by:
(1) The United States Department of Transportation Code of Federal Regulations,
Title 49, Sections 395.1 to 395.13, Hours of Service of Drivers, or; (2) Title 13 of the
California Code of Regulations, subchapter 6.5, Section 13:1200 and the following
sections, regulating hours of drivers. (M) The provisions of this section shall not
apply to taxicab drivers. (N) The provisions of this section shall not apply where any
employee of an airline certified by the federal or state government works over 40
hours but not more than 60 hours in a workweek due to a temporary modification in
the employee's normal work schedule not required by the employer but arranged at
the request of the employee, including but not limited to situations where the
employee requests a change in days off or trades days off with another employee.
4. Minimum Wages (A) Every employer shall pay to each employee wages not less
than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective
January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per
hour for all hours worked, effective January 1, 2002, except: LEARNERS:
Employees during their first 160 hours of employment in occupations in which they
have no previous similar or related experience, may be paid not less than 85
percent of the minimum wage rounded to the nearest nickel. (B) Every employer
shall pay to each employee, on the established payday for the period involved, not
less than the applicable minimum wage for all hours worked in the payroll period,
whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one (1) hour's pay at the minimum wage
shall be paid in addition to the minimum wage for that workday, except when the
employee resides at the place of employment. (D) The provisions of this section
shall not apply to apprentices regularly indentured under the State Division of
Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is
required to report for work and does report, but is not put to work or is furnished
less than half said employee's usual or scheduled day's work, the employee shall
be paid for half the usual or scheduled day's work, but in no event for less than two
(2) hours nor more than four (4) hours, at the employee's regular rate of pay, which
shall not be less than the minimum wage. (B) If an employee is required to report
for work a second time in any one workday and is furnished less than two (2) hours
of work on the second reporting, said employee shall be paid for two (2) hours at
the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1)
Operations cannot commence or continue due to threats to employees or property;
or when recommended by civil authorities; or (2) Public utilities fail to supply
electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
or (3) The interruption of work is caused by an Act of God or other cause not within
the employer's control. (D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time other than the
employee' s scheduled reporting time. 6. Licenses for Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special license
may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with respect
to each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within a reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds
(2/3) of the ordinary rental value, and in no event more than $352.95 per month
$381.20 per week Where a couple are both employed by the employer, two-thirds
(2/3) of the ordinary rental value, and in no event more than $522.10 per month
$563.90 per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period may be waived by mutual consent of the employer and
the employee. (B) An employer may not employ an employee for a work period of
more than ten (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. (C)
Unless the employee is relieved of all duty during a 30 minute meal period, the meal
period shall be considered an "on duty" meal period and counted as time worked.
An "on duty" meal period shall be permitted only when the nature of the work
prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer falls to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (D) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (B) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for non-payment of
wages for overtime work in violation of this order. 21. Separability If the application
of any provision of this order, or any section, subsection, subdivision, sentence,
clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11110. Order Regulating Wages, Hours, and Working Conditions in the
Broadcasting Industry. 1. Applicability of Order This order shall apply to all
persons employed in the broadcasting industry whether paid on a time, piece rate,
commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of
this order shall not apply to persons employed in administrative, executive, or
professional capacities. The following requirements shall apply in determining
whether an employee's duties meet the test to qualify for an exemption from those
sections: (1) Executive Exemption A person employed in an executive capacity
means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees therein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 541.104-111, and 541.115-116. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (i) The
performance of office or non-manual work directly related to management policies
or general business operations of his/her employer or his/her employer's customers;
or (ii) The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision thereof, in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties which meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also earn a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code Section 515(c) as 40
hours per week. (3) Professional Exemption A person employed in a professional
capacity means any employee who meets all of the following requirements: (a) Who
is licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraphs (a) and(b). (d) Who earns a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (e)
Subparagraph (b) above is intended to be construed in accordance with the
following provisions of federal law as they existed as of the date of this wage order:
29 C.F.R. § 541.207, 541.301 (a)-(d), 541.302, 541.306, 541.307, 541.308, and
541.310. (f) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (f) above
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of
subsection 1 (A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall
adjust this pay rate on October 1 of each year to be effective on January 1 of the
following year by an amount equal to the percentage increase in the California
Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The
exemption provided in subparagraph (h) does not apply to an employee if any of the
following apply: (i) The employee is a trainee or employee in an entry-level position
who is learning to become proficient in the theoretical and practical application of
highly specialized information to computer systems analysis, programming, and
software engineering. (ii) The employee is in a computer-related occupation but has
not attained the level of skill and expertise necessary to work independently and
without close supervision. (iii) The employee is engaged in the operation of
computers or in the manufacture, repair, or maintenance of computer hardware and
related equipment. (iv) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by the use of
computers and computer software programs and who is skilled in computer-aided
design software, including CAD/CAM, but who is not in a computer systems
analysis or programming occupation. (v) The employee is a writer engaged in
writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) Except
as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not
apply to professional actors. (D) The provisions of this order shall not apply to
outside salespersons. (E) The provisions of this order shall not apply to any
individual who is the parent, spouse, child, or legally adopted child of the employer.
(F) The provisions of this order shall not apply to any individual participating in a
national service program, such as AmeriCorps, carried out using assistance
provided under Section 12571 of Title 42 of the United States Code. (See Stats.
2000, ch. 365, amending California Labor Code Section 1171) 2. Definitions (A) An
"alternative workweek schedule" means any regularly scheduled workweek
requiring an employee to work more than eight (8) hours in a 24-hour period. (B)
"Broadcasting Industry" means any industry, business, or establishment operated
for the purpose of broadcasting or taping and broadcasting programs through the
medium of radio or television. (C) "Commission" means the Industrial Welfare
Commission of the State of California. (D) "Division" means the Division of Labor
Standards Enforcement of the State of California. (E) "Employ" means to engage,
suffer, or permit to work. (F) "Employee" means any person employed by an
employer. (G) "Employer" means any person as defined in Section 18 of the Labor
Code, who directly or indirectly, or through an agent or any other person, employs
or exercises control over the wages, hours, or working conditions of any person. (H)
"Hours worked" means the time during which an employee is subject to the control
of an employer, and includes all the time the employee is suffered or permitted to
work, whether or not required to do so. (I) "Location" means any place other than
the studio premises of the employer, at which the employer broadcasts or tapes for
broadcast all or a portion of a radio or television program. (J) "Minor" means, for the
purpose of this order, any person under the age of 18 years. (K) "Outside
salesperson" means any person, 18 years of age or over, who customarily and
regularly works more than half the working time away from the employer's place of
business selling tangible or intangible items or obtaining orders or contracts for
products, services or use of facilities. (L) "Primarily" as used in Section 1,
"Applicability", means more than one-half the employee's work time. (M) "Shift"
means designated hours of work by an employee, with a designated beginning time
and ending time. (N) "Split shift" means a work schedule, which is interrupted by
non-paid non-working periods established by the employer, other than bona fide
rest or meal periods. (O) "Teaching" means, for the purpose of Section 1 of this
order, the profession of teaching under a certificate from the Commission for
Teacher Preparation and Licensing or teaching in an accredited college or
university. (P) "Wages" includes all amounts for labor performed by employees of
every description, whether the amount is fixed or ascertained by the standard of
time, task, piece, commission basis, or other method of calculation. (Q) "Workday"
and "day" mean any consecutive 24-hour period beginning at the same time each
calendar day. (R) "Workweek" and "week" mean any seven (7) consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed and regularly
recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and
Days of Work (A) Daily Overtime-General Provisions (1) The following overtime
provisions are applicable to employees 18 years of age or over and to employees
16 or 17 years of age who are not required by law to attend school and are not
otherwise prohibited by law from engaging in the subject work. Such employees
shall not be employed more than eight (8) hours in any workday or more than 40
hours in any workweek unless the employee receives one and one-half (1 1/2)
times such employee's regular rate of pay for all hours worked over 40 hours in the
workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond
eight (8) hours in any workday or more than six (6) days in any workweek is
permissible provided the employee is compensated for such overtime at not less
than: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all
hours worked in excess of eight (8) hours up to and including 12 hours in any
workday, and for the first eight (8) hours worked on the seventh (7th) consecutive
day of work in a workweek; and (b) Double the employee's regular rate of pay for all
hours worked in excess of 12 hours in any workday and for all hours worked in
excess of eight (8) hours on the seventh (7th) consecutive day of work in a
workweek. (c) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using the employee's
regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B)
Alternative Workweek Schedules (1) No employer shall be deemed to have violated
the daily overtime provisions by instituting, pursuant to the election procedures set
forth in this wage order, a regularly scheduled alternative workweek schedule of not
more than ten (10) hours per day within a 40 hour workweek without the payment of
an overtime rate of compensation. All work performed in any workday beyond the
schedule established by the agreement up to 12 hours a day or beyond 40 hours
per week shall be paid at one and one-half (1 1/2) times the employee's regular rate
of pay. All work performed in excess of 12 hours per day and any work in excess of
eight (8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than four (4) hours of
work in any shift. Nothing in this section shall prohibit an employer, at the request of
the employee, to substitute one day of work for another day of the same length in
the shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of work days and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, a new secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and
one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40
hours in any workweek except minors 16 and 17 years old who are not required by
law to attend school and may therefore be employed for the same hours as an adult
are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (E) An employee may be
employed for seven (7) days in one workweek when the total hours of employment
during such workweek do not exceed 30 and the total hours of employment in any
one workday thereof do not exceed six (6). (F) If a meal period occurs on a shift
beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be
available for securing hot food and drink or for heating food or drink, and a suitable
sheltered place shall be provided in which to consume such food or drink. (G) The
provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in
seven (7) shall not be construed to prevent an accumulation of days of rest when
the nature of the employment reasonably requires the employee to work seven (7)
or more consecutive days; provided, however, that in each calendar month, the
employee shall receive the equivalent of one (1) day's rest in seven (7). (H) Except
as provided in subsections (D) and (G), this section shall not apply to any employee
covered by a valid collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of the employees,
and if the agreement provides premium wage rates for all overtime hours worked
and a regular hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage. (I) Notwithstanding subsection (H) above,
where the employer and a labor organization representing employees of the
employer have entered into a valid collective bargaining agreement pertaining to the
hours of work of the employees, the requirement regarding the equivalent of one (I)
day's rest in seven (7) (see subsection (G) above) shall apply, unless the
agreement expressly provides otherwise. (J) If an employer approves a written
request of an employee to make up work time that is or would be lost as a result of
a personal obligation of the employee, the hours of that makeup work time, if
performed in the same workweek in which the work time was lost, may not be
counted toward computing the total number of hours worked in a day for purposes
of the overtime requirements, except for hours in excess of 11 hours of work in one
(1) day or 40 hours of work in one (1) workweek. If an employee knows in advance
that he/she will be requesting makeup time for a personal obligation that will recur
at a fixed time over a succession of weeks, the employee may request to make up
work time for up to four (4) weeks in advance; provided, however, that the makeup
work must be performed in the same week that the work time was lost. An
employee shall provide a signed written request for each occasion that the
employee makes a request to make up work time pursuant to this subsection. While
an employer may inform an employee of this makeup time option, the employer is
prohibited from encouraging or otherwise soliciting an employee to request the
employer's approval to take personal time off and make up the work hours within
the same workweek pursuant to this subsection. (K) The provisions of this section
shall not apply to any person employed as an announcer, news editor, or chief
engineer, by a radio or television station in a city or town which has a population of
25,000 or less. 4. Minimum Wages (A) Every employer shall pay to each employee
wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours
worked, effective January 1, 2001, and not less than six dollars and seventy-five
cents ($6.75) per hour for all hours worked, effective January 1, 2002 except:
LEARNERS: Employees during their first 160 hours of employment in occupations
in which they have no previous similar or related experience, may be paid not less
than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every
employer shall pay to each employee, on the established payday for the period
involved, not less than the applicable minimum wage for all hours worked in the
payroll period, whether the remuneration is measured by time, piece, commission,
or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the
minimum wage shall be paid in addition to the minimum wage for that workday,
except when the employee resides at the place of employment. (D) The provisions
of this section shall not apply to apprentices regularly indentured under the State
Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an
employee is required to report for work and does report, but is not put to work or is
furnished less than half said employee's usual or scheduled day's work, the
employee shall be paid for half the usual or scheduled day's work, but in no event
for less than two (2) hours nor more than four (4) hours, at the employee's regular
rate of pay, which shall not be less than the minimum wage. (B) If an employee is
required to report for work a second time in any one workday and is furnished less
than two (2) hours of work on the second reporting, said employee shall be paid for
two (2) hours at the employee's regular rate of pay, which shall not be less than the
minimum wage. (C) The foregoing reporting time pay provisions are not applicable
when: (1) Operations cannot commence or continue due to threats to employees or
property; or when recommended by civil authorities; or (2) Public utilities fail to
supply electricity, water, or gas, or there is a failure in the public utilities, or sewer
system; or (3) The interruption of work is caused by an Act of God or other cause
not within the employer's control. (D) This section shall not apply to an employee on
paid standby status who is called to perform assigned work at a time other than the
employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special license
may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with respect
to each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds
(2/3) of the ordinary rental value, and in no event more than $352.95 per month
$381.20 per week Where a couple are both employed by the employer, two-thirds
(2/3) of the ordinary rental value, and in no event more than $522.10 per month
$563.90 per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period maybe waived by mutual consent of the employer and
the employee. (B) An employer may not employ an employee for a work period of
more than ten (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. (C)
Unless the employee is relieved of all duty during a 30-minute meal period, the
meal period shall be considered an "on duty" meal period and counted as time
worked. An "on duty" meal period shall be permitted only when the nature of the
work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (D) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a)) 19. inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (B) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for non-payment of
wages for overtime work in violation of this order. 21. Separability If the application
of any provision of this order, or any section, subsection, subdivision, sentence,
clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11120. Order Regulating Wages, Hours, and Working Conditions in the
Motion Picture Industry. 1. Applicability of Order This order shall apply to all
persons employed in the motion picture industry, including extra players, teachers,
and welfare workers, whether paid on a time, piece rate, commission, or other
basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not
apply to persons employed in administrative, executive, or professional capacities.
The following requirements shall apply in determining whether an employee's duties
meet the test to qualify for an exemption from those sections: (1) Executive
Exemption A person employed in an executive capacity means any employee: (a)
Whose duties and responsibilities involve the management of the enterprise in
which he/she is employed or of a customarily recognized department or subdivision
thereof; and (b) Who customarily and regularly directs the work of two or more other
employees therein; and (c) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring or firing and as to the
advancement and promotion or any other change of status of other employees will
be given particular weight; and (d) Who customarily and regularly exercises
discretion and independent judgment; and (e) Who is primarily engaged in duties
which meet the test of the exemption. The activities constituting exempt work and
non-exempt work shall be construed in the same manner as such items are
construed in the following regulations under the Fair Labor Standards Act effective
as of the date of this order: 29 C.F.R. § 541.102, 541.104-111, and 541.115-116).
Exempt work shall include, for example, all work that is directly and closely related
to exempt work and work which is properly viewed as a means for carrying out
exempt functions. The work actually performed by the employee during the course
of the workweek must, first and foremost, be examined and the amount of time the
employee spends on such work, together with the employer's realistic expectations
and the realistic requirements of the job, shall be considered in determining whether
the employee satisfies this requirement. (f) Such an employee must also earn a
monthly salary equivalent to no less than two (2) times the state minimum wage for
full-time employment. Full-time employment is defined in Labor Code Section
515(c) as 40 hours per week. (2) Administrative Exemption A person employed in
an administrative capacity means any employee: (a) Whose duties and
responsibilities involve either: (i) The performance of office or non-manual work
directly related to management policies or general business operations of his/her
employer or his/her employer's customers; or (ii) The performance of functions in
the administration of a school system, or educational establishment or institution, or
of a department or subdivision thereof, in work directly related to the academic
instruction or training carried on therein; and (b) Who customarily and regularly
exercises discretion and independent judgment; and (c) Who regularly and directly
assists a proprietor, or an employee employed in a bona fide executive or
administrative capacity (as such terms are defined for purposes of this section); or
(d) Who performs under only general supervision work along specialized or
technical lines requiring special training, experience, or knowledge; or (e) Who
executes under only general supervision special assignments and tasks; and (f)
Who is primarily engaged in duties that meet the test of the exemption. The
activities constituting exempt work and non-exempt work shall be construed in the
same manner as such terms are construed in the following regulations under the
Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. § 541.201205, 541.207-208, 541.210, and 541.215. Exempt work shall include, for example,
all work that is directly and closely related to exempt work and work which is
properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (g) Such employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (3)
Professional Exemption A person employed in a professional capacity means any
employee who meets all of the following requirements: (a) Who is licensed or
certified by the State of California and is primarily engaged in the practice of one of
the following recognized professions: law, medicine, dentistry, optometry,
architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged
in an occupation commonly recognized as a learned or artistic profession. For the
purposes of this subsection, "learned or artistic profession" means an employee
who is primarily engaged in the performance of: (i) Work requiring knowledge of an
advanced type in a field or science or learning customarily acquired by a prolonged
course of specialized intellectual instruction and study, as distinguished from a
general academic education and from an apprenticeship, and from training in the
performance of routine mental, manual, or physical processes, or work that is an
essential part of or necessarily incident to any of the above work; or (ii) Work that is
original and creative in character in a recognized field of artistic endeavor (as
opposed to work which can be produced by a person endowed with general manual
or intellectual ability and training), and the result of which depends primarily on the
invention, imagination, or talent of the employee or work that is an essential part of
or necessarily incident to any of the above work; and (iii) Whose work is
predominantly intellectual and varied in character (as opposed to routine mental,
manual, mechanical, or physical work) and is of such character that the output
produced or the result accomplished cannot be standardized in relation to a given
period of time. (c) Who customarily and regularly exercises discretion and
independent judgment in the performance of duties set forth in subparagraphs (a)
and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the
state minimum wage for full-time employment. Full-time employment is defined in
Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is
intended to be construed in accordance with the following provisions of federal law
as they existed as of the date of this wage order: 29 C.F.R. § 541.207, 541.301(a)(d), 541.302, 541.306, 541.307, 541.308, and 541.310. (f) Notwithstanding the
provisions of this subparagraph, pharmacists employed to engage in the practice of
pharmacy, and registered nurses employed to engage in the practice of nursing,
shall not be considered exempt professional employees, nor shall they be
considered exempt from coverage for the purposes of this subparagraph unless
they individually meet the criteria established for exemption as executive or
administrative employees. (g) Notwithstanding subparagraph (f), the following
advanced practice nurses shall be exempt from provisions of this subsection: (i)
Certified nurse midwives who are primarily engaged in performing duties for which
certification is required pursuant to Article 2.5 (commencing with Section 2746) of
Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse
anesthetists who are primarily engaged in performing duties for which certification is
required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of
Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners
who are primarily engaged in performing duties for which certification is required
pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of
the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt
the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements
of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and that requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to, user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall
adjust this pay rate on October 1 of each year to be effective on January 1 of the
following year by an amount equal to the percentage increase in the California
Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The
exemption provided in subparagraph (h) does not apply to an employee if any of the
following apply: (i) The employee is a trainee or employee in an entry-level position
who is learning to become proficient in the theoretical and practical application of
highly specialized information to computer systems analysis, programming, and
software engineering. (ii) The employee is in a computer-related occupation but has
not attained the level of skill and expertise necessary to work independently and
without close supervision. (iii) The employee is engaged in the operation of
computers or in the manufacture, repair, or maintenance of computer hardware and
related equipment. (iv) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by the use of
computers and computer software programs and who is skilled in computer-aided
design software, including CAD/CAM, but who is not in a computer systems
analysis or programming occupation. (v) The employee is a writer engaged in
writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) Except
as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not
apply to professional actors. (D) The provisions of this order shall not apply to
outside salespersons. (E) The provisions of this order shall not apply to any
individual who is the parent, spouse, child, or legally adopted child of the employer.
(F) The provisions of this order shall not apply to any individual participating in a
national service program, such as AmeriCorps, carried out using assistance
provided under Section 12571 of Title 42 of the United States Code. (See Stats.
2000, ch. 365, amending California Labor Code Section 1171) 2. Definitions (A) An
"alternative workweek schedule" means any regularly scheduled workweek
requiring an employee to work more than eight (8) hours in a 24-hour period. (B)
"Commission" means the Industrial Welfare Commission of the State of California.
(C) "Division" means the Division of Labor Standards Enforcement of the State of
California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee"
means any person employed by an employer. (F) "Employer" means any person as
defined in Section 18 of the Labor Code, who directly or indirectly, or through an
agent or any other person, employs or exercises control over the wages, hours, or
working conditions of any person. (G) "Extra player" means any person employed
by an employer in the production of motion pictures to perform any work, including
but not limited to that of a general extra, stand-in, photographic double, sports
player, silent bit, or dress extra; or as extras employed in dancing, skating,
swimming, diving, riding, driving, or singing; or as extras employed to perform any
other actions, gestures, facial expressions, or pantomime. (H) "Hours worked"
means the time during which an employee is subject to the control of an employer,
and includes all the time the employee is suffered or permitted to work, whether or
not required to do so. (I) "Location" means any place other than the studio premises
of the employer, at which the employer shoots all or a portion of a motion picture.
(J) "Minor" means, for the purpose of this order, any person under the age of 18
years. (K) "Motion Picture Industry" means any industry, business, or establishment
operated for the purpose of motion picture or television film production, or primarily
allied with theatrical or television, motion picture productions, including but not
limited to motion pictures for entertainment, commercial, religious, or educational
purposes, whether made by film, tape, or otherwise. (L) "Outside salesperson"
means any person, 18 years of age or over, who customarily and regularly works
more than half the working time away from the employer's place of business selling
tangible or intangible items or obtaining orders or contracts for products, services or
use of facilities. (M) "Primarily" as used in Section 1, Applicability, means more than
one-half the employee's work time. (N) "Shift" means designated hours of work by
an employee, with a designated beginning time and ending time. (O) "Split shift"
means a work schedule, which is interrupted by non-paid non-working periods
established by the employer, other than bona fide rest or meal periods. (P) "Wages"
includes all amounts for labor performed by employees of every description,
whether the amount is fixed or ascertained by the standard of time, task, piece,
commission basis, or other method of calculation. (Q) "Workday" and "day" mean
any consecutive 24-hour period beginning at the same time each calendar day. (R)
"Workweek" and "week" mean any seven (7) consecutive days, starting with the
same calendar day each week. "Workweek" is a fixed and regularly recurring period
of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work
(A) Daily Overtime — General Provisions (1) The following overtime provisions are
applicable to employees 18 years of age or over and to employees 16 or 17 years
of age who are not required by law to attend school and are not otherwise
prohibited by law from engaging in the subject work. Such employees shall not be
employed more than eight (8) hours in any workday or more than 40 hours in any
workweek unless the employee receives one and one-half (1 1/2) times such
employee's regular rate of pay for all hours worked over 40 hours in the work week.
Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8)
hours in any workday or more than six (6) days in any workweek is permissible
provided the employee is compensated for such overtime as follows: (a) Employees
may be employed up to a maximum of 16 hours including meal periods in any one
day from the time they are required and do report until dismissed, provided the
employee is compensated for such overtime at not less than: (i) For daily
employees and weekly employees, excluding weekly employees guaranteed more
than 40 hours a workweek and "on call" employees, one and one-half (1 1/2) times
the employee's regular rate of pay for all hours worked in excess of eight (8) hours
up to and including 12 hours in any one workday, and for the first eight (8) hours
worked on the seventh (7th) consecutive day of work in a workweek; and (ii) Double
the employee's regular rate of pay for all hours worked in excess of 12 hours in any
workday and for all hours worked in excess of eight (8) hours on the seventh (7th)
consecutive day of work in a workweek. (iii) Overtime payments shall not be
compounded and all payments made by the employer for daily overtime on the
basis herein above specified shall be applied toward any sum for weekly overtime.
(iv) The overtime rate of compensation required to be paid to a nonexempt full-time
salaried employee shall be computed by using the employee's regular hourly salary
as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek
Schedules (1) No employer shall be deemed to have violated the daily overtime
provisions by instituting, pursuant to the election procedures set forth in this wage
order, a regularly scheduled alternative workweek schedule of not more than ten
(10) hours per day within a 40 hour workweek without the payment of an overtime
rate of compensation. All work performed in any workday beyond the schedule
established by the agreement up to 12 hours a day or beyond 40 hours per week
shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay.
All work performed in excess of 12 hours per day and any work in excess of eight
(8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than four (4) hours of
work in any shift. Nothing in this section shall prohibit an employer, at the request of
the employee, to substitute one day of work for another day of the same length in
the shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (11/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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 (I) of Section 12940 of
the Government Code. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of work days and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to California Labor Code Section 98 et seq. (D)
Extra players employed in excess of eight (8) hours in any workday from the time
the extra player is required and does report until dismissed, shall be paid daily
overtime compensation as follows: (1) One and one-half (1 1/2) times the extra
player's rate of pay for the ninth (9th) and tenth (10th) work hours of employment
and not less than double the extra player's rate of pay for all hours worked
thereafter, computed in units of one-tenth (1/10) hours. (2) Weekly overtime. The
total sum paid to an extra player who works more than 40 hours in such workweek
for a particular employer shall be the extra player's regular hourly rate of pay times
40, plus one and one-half (1 1/2) times such regular hourly rate of pay for all hours
worked in excess of 40 during such workweek. The regular hourly rate shall be
determined by dividing the amount of the weekly salary by the number of regular
hours in a workweek. (3) An extra player employed by the week shall receive
payment of daily overtime for all hours or fractions thereof worked beyond eight (8)
hours in any workday on which such daily overtime occurs as provided above,
provided that overtime payments shall not be compounded and all payments made
by the employer for daily overtime on the basis herein above specified shall be
applied toward any sum due for weekly overtime. (E) One and one-half (1 1/2) times
a minor's regular rate of pay shall be paid for all hours worked on the sixth (6th)
consecutive workday except that minors 16 and 17 years old who are not required
by law to attend school and may therefore be employed for the same hours as an
adult are subject to subsections (A), (B), (C) or (D) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (F) No employee shall be
required to report to work unless ten (10) hours have elapsed since the termination
of the previous day's employment. (G) Hot meals and hot drinks shall be provided
for employees who are required to work after 12 o'clock midnight, except offproduction employees regularly scheduled to work after midnight. (H) When
employees are required to work at night and are not dismissed in time to permit
their return to their homes by public service transportation, transportation shall be
provided by the employer. (I) The provisions of California Labor Code Sections 551
and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent
an accumulation of days of rest when the nature of the employment reasonably
requires the employee to work seven (7) or more consecutive days; provided,
however, that in each calendar month, the employee shall receive the equivalent of
one (1) day's rest in seven (7). (J) Except as provided in subsections (E) and (I),
this section shall not apply to any employee covered by a valid collective bargaining
agreement if the agreement expressly provides for the wages, hours of work, and
working conditions of the employees, and if the agreement provides premium wage
rates for all overtime hours worked and a regular hourly rate of pay for those
employees of not less than 30 percent more than the state minimum wage. (K)
Notwithstanding subsection (J) above, where the employer and a labor organization
representing employees of the employer have entered into a valid collective
bargaining agreement pertaining to the hours of work of the employees, the
requirement regarding the equivalent of one (1) day's rest in seven (7) (see
subsection (I) above) shall apply, unless the agreement expressly provides
otherwise. (L) If an employer approves a written request of an employee to make up
work time that is or would be lost as a result of a personal obligation of the
employee, the hours of that makeup work time, if performed in the same workweek
in which the work time was lost, may not be counted toward computing the total
number of hours worked in a day for purposes of the overtime requirements, except
for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1)
workweek. If an employee knows in advance that he/she will be requesting makeup
time for a personal obligation that will recur at a fixed time over a succession of
weeks, the employee may request to make up work time for up to four (4) weeks in
advance; provided, however, that the makeup work must be performed in the same
week that the work time was lost. An employee shall provide a signed written
request for each occasion that the employee makes a request to make up work time
pursuant to this subsection. While an employer may inform an employee of this
makeup time option, the employer is prohibited from encouraging or otherwise
soliciting an employee to request the employer's approval to take personal time off
and make up the work hours within the same workweek pursuant to this subsection.
4. Minimum Wages (A) Every employer shall pay to each employee wages not less
than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective
January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per
hour for all hours worked, effective January 1, 2002, except: LEARNERS:
Employees, during their first 160 hours of employment in occupations in which they
have no previous similar or related experience, may be paid not less than 85
percent of the minimum wage rounded to the nearest nickel. (B) Every employer
shall pay to each employee, on the established payday for the period involved, not
less than the applicable minimum wage for all hours worked in the payroll period,
whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one (1) hour's pay at the minimum wage
shall be paid in addition to the minimum wage for that workday, except when the
employee resides at the place of employment. (D) The provisions of this section
shall not apply to apprentices regularly indentured under the State Division of
Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is
required to report for work and does report, but is not put to work or is furnished
less than half said employee's usual or scheduled day's work, the employee shall
be paid for half the usual or scheduled day's work, but in no event for less than two
(2) hours nor more than four (4) hours, at the employee's regular rate of pay, which
shall not be less than the minimum wage. (B) If an employee is required to report
for work a second time in any one workday and is furnished less than two (2) hours
of work on the second reporting, said employee shall be paid for two (2) hours at
the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1)
Operations cannot commence or continue due to threats to employees or property;
or when recommended by civil authorities; or (2) Public utilities fail to supply
electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
or (3) The interruption of work is caused by an Act of God or other cause not within
the employer's control. (D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time other than the
employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special license
may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with respect
to each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds
(2/3) of the ordinary rental value, and in no event more than $352.95 per month
$381.20 per week Where a couple are both employed by the employer, two-thirds
(2/3) of the ordinary rental value, and in no event more than $522.10 per month
$563.90 per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than six (6) hours without a meal period of not less than 30 minutes,
nor more than one (1) hour. Subsequent meal period for all employees shall be
called not later than six (6) hours after the termination of the preceding meal period.
(B) Unless the employee is relieved of all duty during a 30-minute meal period, the
meal period shall be considered an "on duty" meal period and counted as time
worked. An "on duty" meal period shall be permitted only when the nature of the
work prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (C) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (D) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. (C) Swimmers, dancers, skaters, and other
performers engaged in strenuous physical activities shall have additional interim
rest periods during periods of actual rehearsal or shooting. 13. Change Rooms and
Resting Facilities (A) Employers shall provide suitable lockers, closets, or
equivalent for the safekeeping of employees' outer clothing during working hours,
and when required, for their work clothing during non-working hours. When the
occupation requires a change of clothing, change rooms or equivalent space shall
be provided in order that employees may change their clothing in reasonable
privacy and comfort. These rooms or spaces may be adjacent to but shall be
separate from toilet rooms and shall be kept clean. NOTE: This section shall not
apply to change rooms and storage facilities regulated by the Occupational Safety
and Health Standards Board. (B) Suitable resting facilities shall be provided in an
area separate from the toilet rooms and shall be available to employees during work
hours. 14. Seats (A) All working employees shall be provided with suitable seats
when the nature of the work reasonably permits the use of seats. (B) When
employees are not engaged in the active duties of their employment and the nature
of the work requires standing, an adequate number of suitable seats shall be placed
in reasonable proximity to the work area and employees shall be permitted to use
such seats when it does not interfere with the performance of their duties. 15.
Temperature (A) The temperature maintained in each work area shall provide
reasonable comfort consistent with industry-wide standards for the nature of the
process and the work performed. (B) If excessive heat or humidity is created by the
work process, the employer shall take all feasible means to reduce such excessive
heat or humidity to a degree providing reasonable comfort. Where the nature of the
employment requires a temperature of less than 60° F., a heated room shall be
provided to which employees may retire for warmth, and such room shall be
maintained at not less than 68° (C) A temperature of not less than 68° shall be
maintained in the toilet rooms, resting rooms, and change rooms during hours of
use. (D) Federal and State energy guidelines shall prevail over any conflicting
provision of this section. 16. Elevators Adequate elevator, escalator or similar
service consistent with industry-wide standards for the nature of the process and
the work performed shall be provided when employees are employed four floors or
more above or below ground level. 17. Exemptions If, in the opinion of the Division
after due investigation, it is found that the enforcement of any provision contained in
Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and
Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16,
Elevators, would not materially affect the welfare or comfort of employees and
would work an undue hardship on the employer, exemption may be made at the
discretion of the Division. Such exemptions shall be in writing to be effective and
may be revoked after reasonable notice is given in writing. Application for
exemption shall be made by the employer or by the employee and/or the
employee's representative to the Division in writing. A copy of the application shall
be posted at the place of employment at the time the application is filed with the
Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19.
Inspection (See California Labor Code, Section 1174) 20. Penalties (See California
Labor Code, Section 1199) (A) In addition to any other civil penalties provided by
law, any employer or any other person acting on behalf of the employer who
violates, or causes to be violated, the provisions of this order, shall be subject to the
civil penalty of: (1) Initial Violation — $50.00 for each underpaid employee for each
pay period during which the employee was underpaid in addition to the amount
which is sufficient to recover unpaid wages. (2) Subsequent Violations — $100.00
for each underpaid employee for each pay period during which the employee was
underpaid in addition to an amount which is sufficient to recover unpaid wages. (3)
The affected employee shall receive payment of all wages recovered. (B) The labor
commissioner may also issue citations pursuant to California Labor Code Section
1197.1 for non-payment of wages for overtime work in violation of this order. 21.
Separability If the application of any provision of this order, or any section,
subsection, subdivision, sentence, clause, phrase, word, or portion of this order
should be held invalid or unconstitutional or unauthorized or prohibited by statute,
the remaining provisions thereof shall not be affected thereby, but shall continue to
be given full force and effect as if the part so held invalid or unconstitutional had not
been included herein. 22. Posting of Order Every employer shall keep a copy of this
order posted in an area frequented by employees where it may be easily read
during the workday. Where the location of work or other conditions make this
impractical, every employer shall keep a copy of this order and make it available to
every employee upon request.
8:11130. Order Regulating Wages, Hours, and Working Conditions in the
Industries Preparing Agricultural Products for Market, on the Farm. 1.
Applicability of Order This order shall apply to all persons employed in industries
preparing agricultural products for market, on the farm, whether paid on a time,
piece rate, commission, or other basis, except that: (A) Provisions of Sections 3
through 12 of this order shall not apply to persons employed in administrative,
executive, or professional capacities. The following requirements shall apply in
determining whether an employee's duties meet the test to qualify for an exemption
from those sections: (1) Executive Exemption A person employed in an executive
capacity means any employee: (a) Whose duties and responsibilities involve the
management of the enterprise in which he/she is employed or of a customarily
recognized department or subdivision thereof; and (b) Who customarily and
regularly directs the work of two or more other employees therein; and (c) Who has
the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.102, 541.104-111, and 541.115-116. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the workweek must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (i) The
performance of office or non-manual work directly related to management policies
or general business operations of his/her employer or his/her employer's customers;
or (ii) The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department or subdivision thereof, in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section); or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge; or (e) Who executes under only general supervision special
assignments and tasks; and (f) Who is primarily engaged in duties which meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order:
29 C.F.R. § 541.201-205, 541.207-208, 541.210, and 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the workweek must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (g) Such employee must also cam a monthly salary
equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code Section 515(c) as 40
hours per week. (3) Professional Exemption A person employed in a professional
capacity means any employee who meets all of the following requirements: (a) Who
is licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraphs (a) and(b). (d) Who earns a monthly salary equivalent to no
less than two (2) times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code Section 515(c) as 40 hours per week. (e)
Subparagraph (b) above is intended to be construed in accordance with the
following provisions of federal law as they existed as of the date of this wage order:
29 C.F.R. § 541.207, 541.301 (a)-(d), 541.302, 541.306, 541.307, 541.308, and
541.310. (f) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (f) above
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of
subsection 1 (A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and that requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall
adjust this pay rate on October I of each year to be effective on January 1 of the
following year by an amount equal to the percentage increase in the California
Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The
exemption provided in subparagrah (h) does not apply to an employee if any of the
following apply: (i) The employee is a trainee or employee in an entry-level position
who is learning to become proficient in the theoretical and practical application of
highly specialized information to computer systems analysis, programming, and
software engineering. (ii) The employee is in a computer-related occupation but has
not attained the level of skill and expertise necessary to work independently and
without close supervision. (iii) The employee is engaged in the operation of
computers or in the manufacture, repair, or maintenance of computer hardware and
related equipment. (iv) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by the use of
computers and computer software programs and who is skilled in computer-aided
design software, including CAD/CAM, but who is not in a computer systems
analysis or programming occupation. (v) The employee is a writer engaged in
writing material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of
this order shall not apply to any employees directly employed by the State or any
political subdivision thereof, including any city, county, or special district. (C) The
provisions of this order shall not apply to outside salespersons. (D) The provisions
of this order shall not apply to any individual who is the parent, spouse, child, or
legally adopted child of the employer. (E) The provisions of this order shall not apply
to any individual participating in a national service program, such as AmeriCorps,
carried out using assistance provided under Section 12571 of Title 42 of the United
States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2.
Definitions (A) An "alternative workweek schedule" means any regularly scheduled
workweek requiring an employee to work more than eight (8) hours in a 24-hour
period. (B) "Commission" means the Industrial Welfare Commission of the State of
California. (C) "Division" means the Division of Labor Standards Enforcement of the
State of California. (D) "Employ" means to engage, suffer, or permit to work. (E)
"Employee" means any person employed by an employer. (F) "Employer" means
any person as defined in Section 18 of the Labor Code, who directly or indirectly, or
through an agent or any other person, employs or exercises control over the wages,
hours, or working conditions of any person. (G) "Hours worked" means the time
during which an employee is subject to the control of an employer, and includes all
the time the employee is suffered or permitted to work, whether or not required to
do so. (H) "Industries Preparing Agricultural Products for Market, on the Farm"
means any operation performed in a permanently fixed structure or establishment
on the farm or on a moving packing plant on the farm for the purpose of preparing
agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for
market when such operations are done on the premises owned or operated by the
same employer who produced the products referred to herein and includes all
operations incidental thereto. (I) "Minor" means, for the purpose of this order, any
person under the age of 18 years. (J) "Outside salesperson" means any person, 18
years of age or over, who customarily and regularly works more than half the
working time away from the employer's place of business selling tangible or
intangible items or obtaining orders or contracts for products, services or use of
facilities. (K) "Primarily" as used in Section 1, Applicability, means more than onehalf the employee's work time. (L) "Shift" means designated hours of work by an
employee, with a designated beginning time and ending time. (M) "Split shift"
means a work schedule, which is interrupted by non-paid non-working periods
established by the employer, other than bona fide rest or meal periods. (N)
"Teaching" means, for the purpose of Section 1 of this order, the profession of
teaching under a certificate from the Commission for Teacher Preparation and
Licensing or teaching in an accredited college or university. (O) "Wages" includes
all amounts for labor performed by employees of every description, whether the
amount is fixed or ascertained by the standard of time, task, piece, commission
basis, or other method of calculation. (P) "Workday" and "day" mean any
consecutive 24-hour period beginning at the same time each calendar day. (Q)
"Workweek" and "week" mean any seven (7) consecutive days, starting with the
same calendar day each week. "Workweek" is a fixed and regularly recurring period
of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work
(A) Daily Overtime — General Provisions (1) The following overtime provisions are
applicable to employees 18 years of age or over and to employees 16 or 17 years
of age who are not required by law to attend school and are not otherwise
prohibited by law from engaging in the subject work. Such employees shall not be
employed more than eight (8) hours in any workday or more than 40 hours in any
workweek unless the employee receives one and one-half (1 1/2) times such
employee's regular rate of pay for all hours worked over 40 hours in the workweek.
Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8)
hours in any workday or more than six (6) days in any workweek is permissible
under the following conditions: (a) Any work by an employee in excess of 72 hours
in any one workweek shall be on a voluntary basis. No employee shall be
discharged or in any other manner discriminated against for refusing to work in
excess of 72 hours in any one workweek; and (2) Overtime hours shall be
compensated at: (a) One and one-half (1 1/2) times the employee's regular rate of
pay for all hours worked in excess of eight (8) hours up to and including 12 hours in
any workday, and for the first eight (8) hours worked on the seventh (7th)
consecutive day of work in a workweek; and (b) Double the employee's regular rate
of pay for all hours worked in excess of 12 hours in any workday and for all hours
worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in
a workweek. (c) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using the employee's
regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B)
Alternative Workweek Schedules (1) No employer shall be deemed to have violated
the daily overtime provisions by instituting, pursuant to the election procedures set
forth in this wage order, a regularly scheduled alternative workweek schedule of not
more than ten (10) hours per day within a 40 hour workweek without the payment of
an overtime rate of compensation. All work performed in any workday beyond the
schedule established by the agreement up to 12 hours a day or beyond 40 hours
per week shall be paid at one and one-half (1 1/2) times the employee's regular rate
of pay. All work performed in excess of 12 hours per day and any work in excess of
eight (8) hours on those days worked beyond the regularly scheduled number of
workdays established by the alternative workweek agreement shall be paid at
double the employee's regular rate of pay. Any alternative workweek agreement
adopted pursuant to this section shall provide for not less than four (4) hours of
work in any shift. Nothing in this section shall prohibit an employer, at the request of
the employee, to substitute one day of work for another day of the same length in
the shift provided by the alternative workweek agreement on an occasional basis to
meet the personal needs of the employee without the payment of overtime. No
hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall
be included in determining when 40 hours have been worked for the purpose of
computing overtime compensation. (2) Any agreement adopted pursuant to this
section shall provide not less than two consecutive days off within a workweek. (3)
If an employer whose employees have adopted an alternative workweek agreement
permitted by this order requires an employee to work fewer hours than those that
are regularly scheduled by the agreement, the employer shall pay the employee
overtime compensation at a rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all hours worked in excess of eight (8) hours, and double the
employee's regular rate of pay for all hours worked in excess of 12 hours for the day
the employee is required to work the reduced hours. (4) 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. (5) 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 (I) of Section 12940 of
the Government Code. (6) An employer shall make a reasonable effort to find a
work schedule not to exceed eight (8) 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 workweek schedule established
as the result of that election. (7) An employer shall be permitted, but not required, to
provide a work schedule not to exceed eight (8) hours in a workday to
accommodate any employee who is hired after the date of the election and who is
unable to work the alternative workweek schedule established by the election. (8)
Arrangements adopted in a secret ballot election held pursuant to this order prior to
1998, or under the rules in effect prior to 1998, and before the performance of the
work, shall remain valid after July 1, 2000 provided that the results of the election
are reported by the employer to the Division of Labor Statistics and Research by
January 1, 2001, in accordance with the requirements of subsection (C) below
(Election Procedures). If an employee was voluntarily working an alternative
workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that
alternative workweek schedule was based on an individual agreement made after
January 1, 1998 between the employee and employer, and the employee
submitted, and the employer approved, a written request on or before May 30, 2000
to continue the agreement, the employee may continue to work that alternative
workweek schedule without payment of an overtime rate of compensation for the
hours provided in the agreement. The employee may revoke his/her voluntary
authorization to continue such a schedule with 30 days written notice to the
employer. New arrangements can only be entered into pursuant to the provisions of
this section. (C) Election Procedures Election procedures for the adoption and
repeal of alternative workweek schedules require the following: (1) Each proposal
for an alternative workweek schedule shall be in the form of a written agreement
proposed by the employer. The proposed agreement must designate a regularly
scheduled alternative workweek in which the specified number of workdays and
work hours are regularly recurring. The actual days worked within that alternative
workweek schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule
options, the employee may, with the approval of the employer, move from one
menu option to another. (2) In order to be valid, the proposed alternative workweek
schedule must be adopted in a secret ballot election, before the performance of
work, by at least a two-thirds (2/3) vote of the affected employees in the work unit.
The election shall be held during regular working hours at the employees' work site.
For purposes of this subsection, "affected employees in the work unit" may include
all employees in a readily identifiable work unit, such as a division, a department, a
job classification, a shift, a separate physical location, or a recognized subdivision
of any such work unit. A work unit may consist of an individual employee as long as
the criteria for an identifiable work unit in this subsection are met. (3) Prior to the
secret ballot vote, any employer who proposed to institute an alternative workweek
schedule shall have made a disclosure in writing to the affected employees,
including the effects of the proposed arrangement on the employees' wages, hours,
and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least
14 days prior to voting, for the specific purpose of discussing the effects of the
alternative workweek schedule. An employer shall provide that disclosure in a nonEnglish language, as well as in English, if at least five (5) percent of the affected
employees primarily speak that non-English language. The employer shall mail the
written disclosure to employees who do not attend the meeting. Failure to comply
with this paragraph shall make the election null and void. (4) Any election to
establish or repeal an alternative workweek schedule shall be held at the work site
of the affected employees. The employer shall bear the costs of conducting any
election held pursuant to this section. Upon a complaint by an affected employee,
and after an investigation by the labor commissioner, the labor commissioner may
require the employer to select a neutral third party to conduct the election. (5) Any
type of alternative workweek schedule that is authorized by the Labor Code may be
repealed by the affected employees. Upon a petition of one-third (1/3) of the
affected employees, anew secret ballot election shall be held and a two-thirds (2/3)
vote of the affected employees shall be required to reverse the alternative
workweek schedule. The election to repeal the alternative workweek schedule shall
be held not more than 30 days after the petition is submitted to the employer,
except that the election shall be held not less than 12 months after the date that the
same group of employees voted in an election held to adopt or repeal an alternative
workweek schedule. The election shall take place during regular working hours at
the employees' work site. If the alternative workweek schedule is revoked, the
employer shall comply within 60 days. Upon proper showing of undue hardship, the
Division of Labor Standards Enforcement may grant an extension of time for
compliance. (6) Only secret ballots may be cast by affected employees in the work
unit at any election held pursuant to this section. The results of any election
conducted pursuant to this section shall be reported by the employer to the Division
of Labor Statistics and Research within 30 days after the results are final, and the
report of election results shall be a public document. The report shall include the
final tally of the vote, the size of the unit, and the nature of the business of the
employer. (7) Employees affected by a change in the work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (8) Employers shall not intimidate or coerce employees to vote either in
support of or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and
one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40
hours in any workweek except minors 16 and 17 years old who are not required by
law to attend school and may therefore be employed for the same hours as an adult
are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD
LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to
criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390
to 1399 for additional restrictions on the employment of minors and for descriptions
of criminal and civil penalties for violation of the child labor laws. Employers should
ask school districts about any required work permits.) (E) An employee may be
employed on seven (7) workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the total hours of
employment in any one workday thereof do not exceed six (6). (F) If, during any
workday an employer declares a work recess of one-half (1/2) hour or more, other
than a meal period, and the employer notifies the employees of the time to report
back for work and permits them to leave the premises, such recess need not be
treated as hours worked provided that there shall not be more than two (2) such
recess periods within one shift and the total duration does not exceed two (2) hours.
Work stoppages of less than one-half (1/2) hour may not be deducted from hours
worked. (G) If a meal period occurs on a shift beginning or ending at or between the
hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and
drink or for heating food or drink, and a suitable sheltered place shall be provided in
which to consume such food or drink. (H) The provisions of Labor Code Sections
551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to
prevent an accumulation of days of rest when the nature of the employment
reasonably requires the employee to work seven (7) or more consecutive days;
provided, however, that in each calendar month, the employee shall receive the
equivalent of one (1) day's rest in seven (7). (I) The provisions of this section are
not applicable to employees whose hours of service are regulated by: (1) The
United States Department of Transportation Code of Federal Regulations, Title 49,
Sections 395.1 to 395.13, Hours of Service of Drivers; or (2) Title 13 of the
California Code of Regulations, subchapter 6.5, Section 1200 and the following
sections, regulating hours of drivers. (J) Except as provided in subsection (A)(1)
and subsections (D) and (H), this section shall not apply to any employee covered
by a valid collective bargaining agreement if the agreement expressly provides for
the wages, hours of work, and working conditions of the employees, and if the
agreement provides premium wage rates for all overtime hours worked and a
regular hourly rate of pay for those employees of not less than 30 percent more
than the state minimum wage. (K) Notwithstanding subsection (J) above, where the
employer and a labor organization representing employees of the employer have
entered into a valid collective bargaining agreement pertaining to the hours of work
of the employees, the requirement regarding the equivalent of one (1) day's rest in
seven (7) (see subsection (II) above) shall apply, unless the agreement expressly
provides otherwise. (L) If an employer approves a written request of an employee to
make up work time that is or would be lost as a result of a personal obligation of the
employee, the hours of that makeup work time, if performed in the same workweek
in which the work time was lost, may not be counted toward computing the total
number of hours worked in a day for purposes of the overtime requirements, except
for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1)
workweek. If an employee knows in advance that he/she will be requesting makeup
time for a personal obligation that will recur at a fixed time over a succession of
weeks, the employee may request to make up work time for up to four (4) weeks in
advance; provided, however, that the makeup work must be performed in the same
week that the work time was lost. An employee shall provide a signed written
request for each occasion that the employee makes a request to make up work time
pursuant to this subsection. While an employer may inform an employee of this
makeup time option, the employer is prohibited from encouraging or otherwise
soliciting an employee to request the employer's approval to take personal time off
and make up the work hours within the same workweek pursuant to this subsection.
4. Minimum Wages (A) Every employer shall pay to each employee wages not less
than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective
January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per
hour for all hours worked, effective January 1, 2002, except: LEARNERS:
Employees during their first 160 hours of employment in occupations in which they
have no previous similar or related experience, may be paid not less than 85
percent of the minimum wage rounded to the nearest nickel. (B) Every employer
shall pay to each employee, on the established payday for the period involved, not
less than the applicable minimum wage for all hours worked in the payroll period,
whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one (1) hour's pay at the minimum wage
shall be paid in addition to the minimum wage for that workday, except when the
employee resides at the place of employment. (D) The provisions of this section
shall not apply to apprentices regularly indentured under the State Division of
Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is
required to report for work and does report, but is not put to work or is furnished
less than half said employee's usual or scheduled day's work, the employee shall
be paid for half the usual or scheduled day's work, but in no event for less than two
(2) hours nor more than four (4) hours, at the employee's regular rate of pay, which
shall not be less than the minimum wage. (B) If an employee is required to report
for work a second time in any one workday and is furnished less than two (2) hours
of work on the second reporting, said employee shall be paid for two (2) hours at
the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1)
Operations cannot commence or continue due to threats to employees or property;
or when recommended by civil authorities; or (2) Public utilities fail to supply
electricity, water, or gas, or there is a failure in the public utilities, or sewer system;
or (3) The interruption of work is caused by an Act of God or other cause not within
the employer's control. (D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time other than the
employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A
license may be issued by the Division authorizing employment of a person whose
earning capacity is impaired by physical disability or mental deficiency at less than
the minimum wage. Such licenses shall be granted only upon joint application of
employer and employee and employee's representative if any. (B) A special license
may be issued to a nonprofit organization such as a sheltered workshop or
rehabilitation facility fixing special minimum rates to enable the employment of such
persons without requiring individual licenses of such employees. (C) All such
licenses and special licenses shall be renewed on a yearly basis or more frequently
at the discretion of the Division. (See California Labor Code, Sections 1191 and
1191.5) 7. Records (A) Every employer shall keep accurate information with respect
to each employee including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds
(2/3) of the ordinary rental value, and in no event more than $352.95 per month
$381.20 per week Where a couple are both employed by the employer, two-thirds
(2/3) of the ordinary rental value, and in no event more than $522.10 per month
$563.90 per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received or lodging not used. (E) If, as a condition of employment, the employee
must live at the place of employment or occupy quarters owned or under the control
of the employer, then the employer may not charge rent in excess of the values
listed herein. 11. Meal Periods (A) No employer shall employ any person for a work
period of more than five (5) hours without a meal period of not less than 30 minutes,
except that when a work period of not more than six (6) hours will complete the
day's work the meal period may be waived by mutual consent of the employer and
the employee. (B) An employer may not employ an employee for a work period of
more than ten (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. (C)
Unless the employee is relieved of all duty during a 30 minute meal period, the meal
period shall be considered an "on duty" meal period and counted as time worked.
An "on duty" meal period shall be permitted only when the nature of the work
prevents an employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is agreed to. The
written agreement shall state that the employee may, in writing, revoke the
agreement at any time. (D) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each workday that the meal period is not provided. (E) In all
places of employment where employees are required to eat on the premises, a
suitable place for that purpose shall be designated. 12. Rest Periods (A) Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate of ten (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted
as hours worked for which there shall be no deduction from wages. (B) If an
employer fails to provide an employee a rest period in accordance with the
applicable provisions of this order, the employer shall pay the employee one (1)
hour of pay at the employee's regular rate of compensation for each workday that
the rest period is not provided. 13. Change Rooms and Resting Facilities (A)
Employers shall provide suitable lockers, closets, or equivalent for the safekeeping
of employees' outer clothing during working hours, and when required, for their work
clothing during non-working hours. When the occupation requires a change of
clothing, change rooms or equivalent space shall be provided in order that
employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Temperature (A) The temperature
maintained in each work area shall provide reasonable comfort consistent with
industry-wide standards for the nature of the process and the work performed. (B) If
excessive heat or humidity is created by the work process, the employer shall take
all feasible means to reduce such excessive heat or humidity to a degree providing
reasonable comfort. Where the nature of the employment requires a temperature of
less than 60° F., a heated room shall be provided to which employees may retire for
warmth, and such room shall be maintained at not less than 68°. (C) A temperature
of not less than 68° shall be maintained in the toilet rooms, resting rooms, and
change rooms during hours of use. (D) Federal and State energy guidelines shall
prevail over any conflicting provision of this section. 16. Elevators Adequate
elevator, escalator or similar service consistent with industry-wide standards for the
nature of the process and the work performed shall be provided when employees
are employed four floors or more above or below ground level. 17. Exemptions If, in
the opinion of the Division after due investigation, it is found that the enforcement of
any provision contained in Section 7, Records; Section 12, Rest Periods; Section
13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,
Temperature; or Section 16, Elevators, would not materially affect the welfare or
comfort of employees and would work an undue hardship on the employer,
exemption may be made at the discretion of the Division. Such exemptions shall be
in writing to be effective and may be revoked after reasonable notice is given in
writing. Application for exemption shall be made by the employer or by the
employee and/or the employee's representative to the Division in writing. A copy of
the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) (A) In addition to any other
civil penalties provided by law, any employer or any other person acting on behalf of
the employer who violates, or causes to be violated, the provisions of this order,
shall be subject to the civil penalty of: (1) Initial Violation — $50.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to the amount which is sufficient to recover unpaid wages. (2)
Subsequent Violations — $100.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (3) The affected employee shall receive
payment of all wages recovered. (B) The labor commissioner may also issue
citations pursuant to California Labor Code Section 1197.1 for non-payment of
wages for overtime work in violation of this order. 21. Separability If the application
of any provision of this order, or any section, subsection, subdivision, sentence,
clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11140. Order Regulating Wages, Hours, and Working Conditions in
Agricultural Occupations. 1. Applicability of Order. This order shall apply to all
persons employed in an agricultural occupation whether paid on a time, piece rate,
commission, or other basis, except that: (A) No provision of this order shall apply to
any employee who is engaged in work which is primarily intellectual, managerial, or
creative, and which requires exercise of discretion and independent judgment, and
for which the remuneration is not less than two times the monthly State minimum
wage for full-time employment. (B) No provision of this order shall apply to any
individual who is the parent, spouse, child, or legally adopted child of the employer;
(C) Section 5 of this order shall not apply to any employer who employs fewer than
five (5) persons covered by this order. If at any one time during a calendar year an
employer has five (5) or more employees covered by this Order, every provision of
this Order, including Section 5, Reporting Time Pay, shall apply to that employer
throughout that calendar year. (D) No provision of this order shall apply to any
employee covered by order No. 8-80 or Order No. 13-80, relating to industries
handling products after harvest. (E) The provisions of this order shall not apply to
any individual participating in a national service program, such as AmeriCorps,
carried out using assistance provided under Section 12571 of Title 42 of the United
States Code. (See Stats. 2000, chap. 365, amending Labor Code § 1171) (F)
Sections 3, 4(A)-(D), 5, 6, 9, 11, 12, and 13 of this Order shall not apply to an
employee engaged to work as a "sheepherder", as that occupation is defined in
Section 2(N). Otherwise, this order, including Section 4(A), shall apply to any
workweek during which a sheepherder employee is engaged in any nonsheepherding agricultural or other work. (G) Section 3 of this order shall not apply to
an employee licensed pursuant to Article 3 (commencing with § 7850) of Chapter 1
of Part 3 of Division 6 of the Fish and Game Code who serves as a crew member
on a commercial fishing vessel. 2. Definitions. (A) "Commission" means the
Industrial Welfare Commission of the State of California. (B) "Division" means the
Division of Labor Standards Enforcement of the State of California. (C) "Employ"
means to engage, suffer, or permit to work. (D) "Employed in an agricultural
occupation," means any of the following described occupations: (1) The
preparation, care, and treatment of farm land, pipeline, or ditches, including leveling
for agricultural purposes, plowing, discing, and fertilizing the soil; (2) The sowing
and planting of any agricultural or horticultural commodity; (3) The care of any
agricultural or horticultural commodity, as used in this subdivision, "care" includes,
but is not limited to, cultivation, irrigation, weed control, thinning, heating, pruning,
or tying, fumigating, spraying, and dusting; (4) The harvesting of any agricultural or
horticultural commodity, including but not limited to, picking, cutting, threshing,
mowing, knocking off, field chopping, bunching, baling, balling, field packing, and
placing in field containers or in the vehicle in which the commodity will be hauled,
and transportation on the farm or to a place of first processing or distribution; (5)
The assembly and storage of any agricultural or horticultural commodity, including
but not limited to, loading, road siding, banking, stacking, binding, and piling; (6)
The raising, feeding and management of livestock, fur bearing animals, poultry, fish,
mollusks, and insects, including but not limited to herding, housing, hatching,
milking, shearing, handling eggs, and extracting honey; (7) The harvesting of fish,
as defined by Section 45 of the Fish and Game Code, for commercial sale; (8) The
conservation, improvement or maintenance of such farm and its tools and
equipment. (F) "Employee" means any person employed by an employer. (G)
"Employer" means any person as defined in Section 18 of the Labor Code, who
directly or indirectly, or through an agent or any other person, employs or exercises
control over the wages, hours, or working conditions of any person. (G) "Hours
worked" means the time during which an employee is subject to the control of an
employer, and includes all the time the employee is suffered or permitted to work,
whether or not required to do so. (H) "Minor" means, for the purpose of this Order,
any person under the age of eighteen (18) years. (I) "Non-sheepherding work"
means any work except the work defined in section 2(N) below. (J) "Open range
sheepherding" means, generally, sheepherding on land that is not cultivated, but
produces native forage ("browse" or herbaceous food that is available to livestock
or game ammals) for animal consumption, and includes land that is re-vegetated
naturally or artificially to provide forage cover that is managed like range vegetation.
The range may be on private, federal, or state land. Typically, the land is not only
non-cultivated, but not suitable for cultivation because it is rocky, thin, semiarid, or
otherwise poor. Also, many acres of range land are required to graze one animal
unit (five sheep) for one month. By its very nature, open range sheepherding is
conducted over wide expanses of land, such as thousands of acres. (K) "Outside
Salesperson" means any person, 18 years of age or over, who customarily and
regularly works more than half the working time away from the employer's place of
business selling tangible or intangible items or obtaining orders or contracts for
products, services or use of facilities. (L) "Piece rate basis" is a method of payment
based on units of production or a fraction thereof. (M) "Primarily" as used in Section
1, Applicability, means more than one-half the employee's work time. (N)
"Sheepherder" means any individual, who is employed to do any of the following:
tend flocks of sheep grazing on range or pasture; move sheep to and about an area
assigned for grazing; prevent sheep from wandering or becoming lost, or using
trained dogs to round up strays and protect sheep against predators and the eating
of poisonous plants; assist in the lambing, docking, and shearing of sheep; provide
water or feed supplementary rations to sheep; or perform the work of a sheepherder
pursuant to an approved job order filed under the provisions of Section
101(a)(15)(H)(ii)(a) of the federal Immigration and Nationality Act (commonly
referred to as the "H-2A" program (see 8 U.S.C. § 1101 et seq.), or any successor
provisions. (O) "Shift" means designated hours of work by an employee, with a
designated beginning time and quitting time. (P) "Split shift" means a work schedule
which is interrupted by non-paid non-working periods established by the employer,
other than bona fide rest or meal periods. (Q) "Wages" includes all amounts for
labor performed by employees of every description, whether the amount is fixed or
ascertained by the standard of time, task, piece, commission basis, or other method
of calculation. (R) "Workday" means any consecutive 24 hours beginning at the
same time each calendar day. (S) "Workweek" means any seven (7) consecutive
days, starting with the same calendar day each week. "Workweek" is a fixed and
regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3.
Hours and Days of Work. (A) The following overtime provisions are applicable to
employees eighteen (18) years of age or over and to employees sixteen (16) or
seventeen (17) years of age who are not required by law to attend school: such
employees shall not be employed more than ten (10) hours in any one workday or
more than six (6) days in any workweek unless the employee receives one and
one-half (1 1/2) times such employee's regular rate of pay for all hours worked over
ten (10) hours in any workday and for the first eight (8) hours on the seventh (7th)
day of work and double the employee' s regular rate of pay for all hours worked
over eight (8) on the seventh (7th) day of work in the workweek. (See California
Labor Code, sections 1391 and 1394) (VIOLATIONS OF CHILD LABOR LAWS
are subject to civil penalties of from $100 to $5,000 as well as to criminal
penalties provided herein. Refer to California Labor Code Sections 1285 to
1311 and 1390 to 1398 for additional restrictions on the employment of
minors. Employers should ask school districts about required work permits.)
(B) An employee may be employed on seven (7) workdays in one workweek with no
overtime pay required when the total hours of employment during such workweek
do not exceed 30 and the total hours of employment in any one workday thereof do
not exceed six (6). (C) The provisions of subsection (A) above shall not apply to an
employee covered by this order during any week in which more than half of such
employee's working time is devoted to performing the duties of an irrigator. (D) The
provisions of this section are not applicable to employees whose hours of service
are regulated by: (1) The United States Department of Transportation Code of
Federal Regulations, title 49, Sections 395.1 to 395.13, Hours of Service of Drivers;
or (2) Title 13 of the California Code of Regulations, subchapter 6.5, sec. 13:1200
and following sections, regulating hours of drivers. (E) This section shall not apply
to any employee covered by a collective bargaining agreement if said agreement
provides premium wage rates for overtime work and a cash wage rate for such
employee of not less than one dollar ($1.00) per hour more than the minimum wage
4. Minimum Wages. (A) Every employer shall pay to each employee wages not less
than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective
January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per
hour for all hours worked effective January 1, 2002, except: LEARNERS:
Employees during their first 160 hours of employment in occupations in which they
have no previous similar or related experience, may be paid not less than 85 per
cent of the minimum wage rounded to the nearest nickel. (B) Every employer shall
pay to each employee, on the established payday for the period involved, not less
than the applicable minimum wage for all hours worked in the payroll period,
whether the remuneration is measured by time, piece, commission, or otherwise.
(C) When an employee works a split shift, one hour's pay at the minimum wage
shall be paid in addition to the minimum wage for that workday, except when the
employee resides at the place of employment. (D) The provisions of this section
shall not apply to apprentices regularly indentured under the State Division of
Apprenticeship Standards. (E) Effective July 1, 2001, the minimum wage for all
sheepherders shall be $1,050.00 per month; effective July 1, 2002 the minimum
wage for all sheepherders shall be $1,200.00 per month. Wages paid to
sheepherders shall not be offset by meals or lodging provided by the employer. 5.
Reporting Time Pay. (A) Each workday an employee is required to report for work
and does report, but is not put to work or is furnished less than half said employee's
usual or scheduled day's work, the employee shall be paid for half the usual or
scheduled day's work, but in no event for less than two (2) hours nor more than four
(4) hours, at the employee's regular rate of pay, which shall not be less than the
minimum wage. (B) If an employee is required to report for work a second time in
any one workday and is furnished less than two (2) hours of work on the second
reporting, said employee shall be paid for two (2) hours at the employee' s regular
rate of pay, which shall not be less than the minimum wage. (C) The foregoing
reporting time pay provisions are not applicable when: (1) Operations cannot
commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (D) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee' s
scheduled reporting time. 6. Licenses for Disabled Workers. (A) A license may be
issued by the Division authorizing employment of a person whose earning capacity
is impaired by physical disability or mental deficiency at less than the minimum
wage. Such licenses shall be granted only upon joint application of employer and
employee and employee' s representative if any. (C) A special license may be
issued to a nonprofit organization such as a sheltered workshop or rehabilitation
facility fixing special minimum rates to enable the employment of such persons
without requiring individual licenses of such employees. (D) All such licenses and
special licenses shall be renewed on a yearly basis or more frequently at the
discretion of the Division. (See California Labor Code, Sections 1191 and 1191.5.)
7. Records. (A) Every employer shall keep accurate information with respect to
each employee I including the following: (1) Full name, home address, occupation
and social security number. (2) Birth date, if under 18 years, and designation as a
minor. (3) Time records showing when the employee begins and ends each work
period. Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which, operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Employers of sheepherders shall
keep accurate information with respect to sheepherder employees, including an
itemized statement showing applicable rates of pay for sheepherding and any
applicable non-sheepherding agricultural or other work, all deductions, dates of
period for which paid, name and social security number (if any) of employee, and
name of employer. (C) Every employer shall semi-monthly or at the time of each
payment of wages furnish each employee, either as a detachable part of the check,
draft, or voucher paying the employee's wages, or separately, an itemized
statement in writing showing: (1) all deductions; (2) the inclusive dates of the period
for which the employee is paid; (3) the name of the employee or the employee's
social security number; and (4) the name of the employer, provided all deductions
made on written orders of the employee may be aggregated and shown as one
item. (D) Every employer of a sheepherder shall annually notify the sheepherder of
his or hers rights and obligations under state and federal law. (E) All required
records shall be in the English language and in ink or other indelible form, properly
dated, showing month, day and year, and shall be kept on file by the employer for at
least three years (3) at the place of employment or at a central location within the
State of California. An employee's records shall be available for inspection by the
employee upon reasonable request. 8. Cash Shortage and Breakage. No employer
shall make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment. (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging. (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy, which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates January 1,
2001 January 1, 2002 Room occupied alone ............... $29.40 per week $31.75 per
week Room shared ....................... $24.25 per week $26.20 per week Apartment —
two-thirds (2/3) of the ordinary rental value, and in no event more than ...................
$352.95 per month $381.20 per month Where a couple are both employed by the
employer, two-thirds (2/3) of the ordinary rental value, and in no event more than
.................. $522.10 per month $563.90 per month Meals: Breakfast
.......................... $2.25 $2.45 Lunch .............................. $3.10 $3.35 Dinner
............................. $4.15 $4.50 (D) Meals, evaluated as part of the minimum wage,
must be bona fide meals consistent with the employee's work shift. Deductions shall
not be made for meals not received nor lodging not used. (E) If, as a condition of
employment, the employee must live at the place of employment or occupy quarters
owned or under the control of the employer, then the employer may not charge rent
in excess of the values listed herein. (F) Paragraphs (C), (D), and (E) above shall
not apply to sheepherders. Every employer shall provide to each sheepherder not
less than the minimum monthly meal and lodging benefits required to be provided
by employers of sheepherders employed under the provisions of the H-2A program
of the federal Immigration and Nationality Act [8 U.S.C. § 1101 et seq.], or any
successor provisions. (G) Fixed Site Housing: A sheepherder not engaged in open
range sheepherding, shall be provided with fixed site housing that complies with all
the following standards and requirements (1) Toilets (which may include portable
toilets) and bathing facilities (which may include a portable facility). (2) Heating
(which may include a camp stove or other sources of heat). (3) In-door Lighting. (4)
Potable hot and cold water. (5) Cooking facilities and utensils. (6) Refrigeration for
perishable foodstuffs (which may include ice chests, provided that ice is delivered to
the sheepherder, as needed, to maintain a continuous temperature required to
retard spoilage and assure food safety). (7) Fixed Site Housing Inspections:
housing that is erected for sheepherders at fixed locations shall be annually
inspected by the State of California Employment Development Department for
compliance with Paragraph (F) of this section, unless the employer receives a
statement in writing from the Employment Development Department that there are
no such inspectors available. (H) Mobile Housing: When a sheepherder is engaged
in open range sheepherding, the employer shall provide mobile housing that
complies with all standards and inspection requirements prescribed for mobile
sheepherder housing by the United States Department of Labor then in effect. Such
housing shall be inspected and approved annually by an inspector from the
Employment Development Department unless the employer receives a statement in
writing from the Employment Development Department that there are no such
inspectors available. 11. Meal Periods. Every employer shall authorize and permit
all employees after a work period of not more than five (5) hours to take a meal
period of not less than thirty (30) minutes, except that when a work period of not
more than six (6) hours will complete the day's work, the meal period may be
waived by mutual consent of employer and employee. Unless the employee is
relieved of all duty during a thirty (30) minute meal period, the meal period shall be
considered an "on duty" meal period and counted as time worked. An "on duty"
meal period shall be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by written agreement between
the parties an on-the-job paid meal period is agreed to. 12. Rest Periods. Every
employer shall authorize and permit all employees to take rest periods, which
insofar as practicable shall be in the middle of each work period. The authorized
rest period time shall be based on the total hours worked daily at the rate often (10)
minutes net rest time per four (4) hours or major fraction thereof. However, a rest
period need not be authorized for employees whose total daily work time is less
than three and one-half (3 1/2) hours. Authorized rest period time shall be counted,
as hours worked for which there shall be no deduction from wages. 13. Seats.
When the nature of the work reasonably permits the use of seats, suitable seats
shall be provided for employees working on or at a machine. 14. Other Working
Conditions Applicable To Sheepherders Sheepherders shall be provided with all of
the following at each work site: (A) Regular mail service, which, in the case of open
range locations, shall mean mail delivery not less frequently than once every seven
days. (B) An appropriate form of communication, including but not limited to a radio
and/or telephone, which will allow sheepherders to communicate with employers,
health care providers, and government regulators. Employers may charge
sheepherders for all others uses. (C) Visitor access to fixed site housing and, when
practicable, to mobile housing. 15. Exemptions. If, in the opinion of the Division after
due investigation, it is found that the enforcement of any provisions in Section 7,
Records; Section 11, Meal Periods; Section 12, Rest Periods; or Section 13, Seats,
would not materially affect the welfare or comfort of employees and would work an
undue hardship on the employer, exemption may be made at the discretion of the
Division. Such exemptions shall be in writing to be effective any may be revoked
after reasonable notice is given in writing. Application for exemption shall be made
by the employer or by the employee and/or the employee's representative to the
Division in writing. A copy of the application is filed with the Division. 16. Filing
Reports. (See California Labor Code, Section 1174(a)) 17. Inspection. (See
California Labor Code, Section 1174) 18. Penalties. (See California Labor Code,
Section 1199) (A) In addition to any other civil penalties provided by law, any
employer or any other person acting on behalf of the employer who violates, or
causes to be violated, the provisions of this order, shall be subject to the civil
penalty of: (1) Initial Violation — $50.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to an amount which is
sufficient to recover unpaid wages. (2) Subsequent Violations — $100.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to an amount which is sufficient to recover unpaid wages. (B) Any
employer or any other person acting on behalf of the employer who employs
sheepherders and who requires them to engage in non-sheepherding duties shall
be subject to the following penalties: (1) Initial violations-a civil penalty of one
week's pay computed on a basis of a 60-hour workweek and a wage of no less than
the current minimum wage in effect. (2) Second violation-a civil penalty of one
month's pay computed on a basis of a 252-hour month and a wage of no less than
the current minimum wage in effect. (3) Third and subsequent violation-a civil
penalty equal to the cost of the contract of the approved "H-2A" job order. (C) The
affected employee shall receive payment of all wages recovered. (D) The Labor
Commissioner may also issue citations pursuant to Labor Code Section 1197.1 for
payment of wages for overtime work in violation of this order. 19. Separability. If the
application of any provision of this order, or any section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
20. Posting of Order. Every employer shall keep a copy of this order posted in an
area frequented by employees where it may be easily read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request.
8:11150. Order Regulating Wages, Hours, and Working Conditions in
Household Occupations. 1. Applicability of Order This order shall apply to all
persons employed in household occupations, whether paid on a time, piece rate,
commission, or other basis unless such occupation is performed for an industry
covered by an industry Order of this Commission, except that: (A) Provisions of
Sections 3 through 12 of this Order shall not apply to persons employed in
administrative, executive, or professional capacities The following requirements
shall apply in determining whether an employee's duties meet the test to qualify for
an exemption from those sections: (1) Executive Exemption A person employed in
an executive capacity means any employee: (a) Whose duties and responsibilities
involve the management of the enterprise in which he is employed or of a
customarily recognized department or subdivision thereof; and (b) Who customarily
and regularly directs the work of two or more other employees therein; and (c) Who
has the authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement and
promotion or any other change of status of other employees will be given particular
weight; and (d) Who customarily and regularly exercises discretion and independent
judgment; and (e) Who is primarily engaged in duties which meet the test of the
exemption. The activities constituting exempt work and non-exempt work shall be
construed in the same manner as such items are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order
29 C.F.R. § 541.102, 541.104-111, 541.115-116. Exempt work shall include, for
example, all work that is directly and closely related to exempt work and work which
is properly viewed as a means for carrying out exempt functions. The work actually
performed by the employee during the course of the work week must, first and
foremost, be examined and the amount of time the employee spends on such work,
together with the employer's realistic expectations and the realistic requirements of
the job, shall be considered in determining whether the employee satisfies this
requirement. (f) Such an employee must also earn a monthly salary equivalent to no
less than two times the state minimum wage for full-time employment. Full-time
employment is defined in Labor Code § 515(c) as 40 hours per week. (2)
Administrative Exemption A person employed in an administrative capacity means
any employee: (a) Whose duties and responsibilities involve either: (1) The
performance of office or non-manual work directly related to management policies
or general business operations of his employer or his employer's customers, or (2)
The performance of functions in the administration of a school system, or
educational establishment or institution, or of a department of subdivision thereof; in
work directly related to the academic instruction or training carried on therein; and
(b) Who customarily and regularly exercises discretion and independent judgment;
and (c) Who regularly and directly assists a proprietor, or an employee employed in
a bona fide executive or administrative capacity (as such terms are defined for
purposes of this section), or (d) Who performs under only general supervision work
along specialized or technical lines requiring special training, experience, or
knowledge, or (e) Who executes under only general supervision special
assignments and tasks, and (f) Who is primarily engaged in duties which meet the
test of the exemption. The activities constituting exempt work and non-exempt work
shall be construed in the same manner as such terms are construed in the following
regulations under the Fair Labor Standards Act effective as of the date of this order
29 C.F.R. § 541.201-205, 541.207-208, 541.210, 541.215. Exempt work shall
include, for example, all work that is directly and closely related to exempt work and
work which is properly viewed as a means for carrying out exempt functions. The
work actually performed by the employee during the course of the work week must,
first and foremost, be examined and the amount of time the employee spends on
such work, together with the employer's realistic expectations and the realistic
requirements of the job, shall be considered in determining whether the employee
satisfies this requirement. (e) Such employee must also earn a monthly salary
equivalent to no less than two times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code § 515(c) as 40 hours
per week. (3) Professional Exemption A person employed in a professional capacity
means any employee who meets all of the following requirements: (a) Who is
licensed or certified by the State of California and is primarily engaged in the
practice of one of the following recognized professions: law, medicine, dentistry,
optometry, architecture, engineering, teaching, or accounting; or (b) Who is
primarily engaged in an occupation commonly recognized as a learned or artistic
profession. For the purposes of this subsection, "learned or artistic profession"
means an employee who is primarily engaged in the performance of: (i) Work
requiring knowledge of an advanced type in a field or science or learning
customarily acquired by a prolonged course of specialized intellectual instruction
and study, as distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine mental, manual, or
physical processes, or work that is an essential part of or necessarily incident to any
of the above work; or (ii) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which can be produced by
a person endowed with general manual or intellectual ability and training), and the
result of which depends primarily on the invention, imagination, or talent of the
employee, or work that is an essential part of or necessarily incident to any of the
above work; and (iii) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or physical work) and
is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time. (c) Who customarily and regularly
exercises discretion and independent judgment in the performance of duties set
forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no
less than two times the state minimum wage for full-time employment. (e)
Subparagraph (b) above is intended to be construed in accordance with the
following provisions of federal law as they existed as of the date of this Order: 29
C.F.R. § 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307, 541.308, and
541.310. (f) Notwithstanding the provisions of this subparagraph, pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subparagraph unless they individually meet the criteria established for
exemption as executive or administrative employees. (g) Subparagraph (f) above,
shall not apply to the following advanced practice nurses: (i) Certified nurse
midwives who are primarily engaged in performing duties for which certification is
required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of
Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists
who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of
the Business and Professions Code. (iii) Certified nurse practitioners who are
primarily engaged in performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business
and Professions Code. (iv) Nothing in this subparagraph shall exempt the
occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of
subsection 1(A)(3)(a)-(d), above. (h) Except as provided in subparagraph (i), an
employee in the computer software field who is paid on an hourly basis shall be
exempt, if all of the following apply: (i) The employee is primarily engaged in work
that is intellectual or creative and that requires the exercise of discretion and
independent judgment. (ii) The employee is primarily engaged in duties that consist
of one or more of the following: — The application of systems analysis techniques
and procedures, including consulting with users, to determine hardware, software,
or system functional specifications. — The design, development, documentation,
analysis, creation, testing, or modification of computer systems or programs,
including prototypes, based on and related to, user or system design specifications.
— The documentation, testing, creation, or modification of computer programs
related to the design of software or hardware for computer operating systems. (iii)
The employee is highly skilled and is proficient in the theoretical and practical
application of highly specialized information to computer systems analysis,
programming, and software engineering. A job title shall not be determinative of the
applicability of this exemption. (iv) The employee's hourly rate of pay is not less
than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall
adjust this pay rate on October 1 of each year to be effective on January 1 of the
following year by an amount equal to the percentage increase in the California
Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The
exemption provided in subparagraph (h) does not apply to an employee if any of the
following apply: (i) The employee is a trainee or employee in an entry-level position
who is learning to become proficient in the theoretical and practical application of
highly specialized information to computer systems analysis, programming, and
software engineering. (ii) The employee is in a computer-related occupation but has
not attained the level of skill and expertise necessary to work independently and
without close supervision. (iii) The employee is engaged in the operation of
computers or in the manufacture, repair, or maintenance of computer hardware and
related equipment. (iv) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by the use of
computers and computer software programs and who is skilled in computer-aided
design software, including CAD/CAM, but who is not in a computer systems
analysis or programming occupation. (v) The employee is a writer engaged in
writing material, including box labels, product descriptions, documentation,
promotional material setup and installation instructions, and other similar written
information, either for print or for on screen media or who writes or provides content
material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is
engaged in any of the activities set forth in subparagraph (h) for the purpose of
creating imagery for effects used in the motion picture, television, or theatrical
industry. (B) Except as provided in sections 1, 2, 4, 10, and 15, the provisions of
this Order shall not apply to personal attendants. The provisions of the Order shall
not apply to any person under the age of eighteen who is employed as a baby sitter
for a minor child of the employer in the employer's home. (C) Provisions of this
Order shall not apply to any individual who is the parent, spouse, child, or legally
adopted child of the employer. (D) The provisions of this Order shall not apply to
any individual participating in a national service program, such as AmeriCorps,
carried out using assistance provided under Section 12571 of Title 42 of the United
States Code. (See Stats. 2000, ch. 365, amending Labor Code § 1171) 2.
Definitions (A) An "alternative workweek schedule" means any regularly scheduled
workweek requiring an employee to work more than eight (8) hours in a 24-hour
period. (B) "Commission" means the Industrial Welfare Commission of the State of
California. (C) "Division" means the Division of Labor Standards Enforcement of the
State of California. (D) "Emergency" means an unpredictable or unavoidable
occurrence at unscheduled intervals requiring immediate action. (E) "Employ"
means to engage, suffer, or permit to work. (F) "Employee" means any person
employed by an employer. (G) "Employer" means any person as defined in Section
18 of the Labor Code, who directly or indirectly, or through an agent or any other
person, employs or exercises control over the wages, hours, or working conditions
of any person. (H) "Hours worked" means the time during which an employee is
subject to the control of an employer, and includes all the time the employee is
suffered or permitted to work, whether or not required to do so. (I) "Household
Occupations" means all services related to the care of persons or maintenance of a
private household or its premises by an employee of a private householder. Said
occupations shall include, but not be limited to, the following: butlers, chauffeurs,
companions, cooks, day workers, gardeners, graduate nurses, grooms, house
cleaners, housekeepers, maids, practical nurses, tutors, valets, and other similar
occupations. (J) "Personal attendant" includes baby sitters and means any person
employed by a private householder or by any third party employer recognized in the
health care industry to work in a private household, to supervise, feed, or dress a
child or person who by reason of advanced age, physical disability, or mental
deficiency needs supervision. The status of "personal attendant" shall apply when
no significant amount of work other than the foregoing is required. (K) "Minor"
means, for the purpose of this Order, any person under the age of eighteen (18)
years. (L) "Primarily" as used in Section 1, Applicability, means more than one-half
the employee's work time. (M) "Shift" means designated hours of work by an
employee, with a designated beginning time and quitting time. (N) "Split shift"
means a work schedule which is interrupted by non-paid non-working periods
established by the employer, other than bona fide rest or meal periods. (O)
"Teaching" means, for the purpose of Section 1 of this Order, the profession of
teaching under a certificate from the Commission for Teacher Preparation and
Licensing or teaching in an accredited college or university. (P) "Wages" includes all
amounts for labor performed by employees of every description, whether the
amount is fixed or ascertained by the standard of time, task, piece, commission
basis, or other method of calculation. (Q) "Workday" and "day" mean any
consecutive 24-hour period beginning at the same time each calendar day. (R)
"Workweek" and "week" mean any seven (7) consecutive days, starting with the
same calendar day each week. "Workweek" is a fixed and regularly recurring period
of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work
(A) A LIVE-IN employee shall have at least twelve (12) consecutive hours free of
duty during each workday of twenty-four (24) hours, and the total span of hours for
a day of work shall be no more than twelve (12) hours, except under the following
conditions: (1) The employee shall have at least three (3) hours free of duty during
the twelve (12) hours span of work. Such off-duty hours need not be consecutive,
and the schedule for same shall be set by mutual agreement of employer and
employee, provided that (2) An employee who is required or permitted to work
during scheduled off-duty hours or during the twelve (12) consecutive off-duty hours
shall be compensated at the rate of one and one-half (1 1/2) times the employee's
regular rate of pay for all such hours worked. (B) No LIVE-IN employee shall be
required to work more than five (5) days in any one workweek without a day off of
not less than twenty-four (24) consecutive hours except in an emergency as defined
in subsection 2 (D), provided that the employee is compensated for time worked in
excess of five (5) workdays in any workweek at one and one-half (1 1/2) times the
employee's regular rate of pay for hours worked up to and including nine (9) hours.
Time worked in excess of nine (9) hours on the sixth (6th) and seventh (7th)
workdays shall compensated at double the employee's regular rate of pay. (C) The
following overtime provisions are applicable to non-LIVE-IN employees eighteen
(18) years of age or over and to employees sixteen (16) or seventeen (17) years of
age who are not required by law to attend school and are not otherwise prohibited
by law from engaging in the subject work. Such employees shall not be employed
more than eight (8) hours in any workday or more than forty (40) hours in any
workweek unless the employee receives one and one-half (1 1/2) times such
employee's regular rate of pay for all hours worked over forty (40) hours in the
workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond
eight (8) hours in any workday or more than six (6) days in any workweek is
permissible provided the employee is compensated for such overtime at not less
than: (1) One and one-half (1 1/2) times the employee's regular rate of pay for all
hours worked in excess of eight (8) hours up to and including twelve (12) hours in
any workday, and for the first eight (8) hours worked on the seventh (7th)
consecutive day of work in a workweek; and (2) Double the employee's regular rate
of pay for all hours worked in excess of twelve (12) hours in any workday and for all
hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of
work in a workweek. (3) The overtime rate of compensation required to be paid to a
nonexempt full-time salaried employee shall be computed by using the employee's
regular hourly salary as 1/40th of the employee's weekly salary. (D) One and onehalf (1 1/2) times a minor's regular rate of pay shall be paid for all work over forty
(40) hours in any workweek except that minors sixteen (16) and seventeen (17)
years old who are not required by law to attend school and may therefore be
employed for the same hours as an adult are subject to subsections (A) and (B), or
(C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of
from $500 to $10,000 as well as to criminal penalties. Refer to California Labor
Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the
employment of minors and for descriptions of criminal and civil penalties for
violation of the child labor laws. Employers should ask school districts about any
required work permits.) (E) An employee may be employed on seven (7) workdays
in one workweek with no overtime pay required when the total hours of employment
during such workweek do not exceed thirty (30) and the total hours of employment
in any one workday thereof do not exceed six (6). (F) The provisions of Labor Code
§§ 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to
prevent an accumulation of days of rest when the nature of the employment
reasonably requires the employee to work seven (7) or more consecutive days;
provided, however, that in each calendar month, the employee shall receive the
equivalent of one (1) day's rest in seven (7). (G) Except, as provided in subsection
(D) and (F), this section shall not apply to any employee covered by a valid
collective bargaining agreement if the agreement expressly provides for the wages,
hours of work, and working conditions of the employees, and if the agreement
provides premium wage rates for all overtime hours worked and a regular hourly
rate of pay for those employees of not less than thirty (30) percent more than the
state minimum wage. (H) Notwithstanding subsection (G) above, where the
employer and a labor organization representing employees of the employer have
entered into a valid collective bargaining agreement pertaining to the hours of work
of the employees, the requirement regarding the equivalent of one (1) day's rest in
seven (7) (see section (F) above) shall apply, unless the agreement expressly
provides otherwise. (I) If an employer approves a written request of an employee to
make-up work time that is or would be lost as a result of a personal obligation of the
employee, the hours of that make-up work time, if performed in the same workweek
in which the work time was lost, may not be counted toward computing the total
number of hours worked in a day for purposes of the overtime requirements, except
for hours in excess of eleven (11) hours of work in one (1) day or forty (40) hours of
work in one (1) workweek. If an employee knows in advance that he or she will be
requesting make-up time for a personal obligation that will recur at a fixed time over
a succession of weeks, the employee may request to make-up work time for up to
four (4) weeks in advance; provided, however, that the make-up work must be
performed in the same week that the work time was lost. An employee shall provide
a signed written request for each occasion that the employee makes a request to
make-up work time pursuant to this subsection. While an employer may inform an
employee of this make-up time option, the employer is prohibited from encouraging
or otherwise soliciting an employee to request the employer's approval to take
personal time off and make-up the work hours within the same workweek pursuant
to this subsection. 4. Minimum Wages (A) Every employer shall pay to each
employee wages not less than six dollars and twenty five cents ($6.25) per hour for
all hours worked, effective January 1, 2001, and not less than six dollars and
seventy five cents ($6.75) per hour for all hours worked effective January 1, 2002,
except: LEARNERS. Employees during their first one hundred and sixty (160) hours
of employment in occupations in which they have no previous similar or related
experience, may be paid not less than eighty-five percent (85%) of the minimum
wage rounded to the nearest nickel. (B) Every employer shall pay to each
employee, on the established payday for the period involved, not less than the
applicable minimum wage for all hours worked in the payroll period, whether the
remuneration is measured by time, piece, commission, or otherwise. (C) When an
employee works a split shift, one hour's pay at the minimum wage shall be paid in
addition to the minimum wage for that workday, except when the employee resides
at the place of employment. (D) The provisions of this section shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. 5. Reporting Time Pay (A) Each workday an employee is required to
report for work and does report, but is not put to work or is furnished less than half
said employee's usual or scheduled day's work, the employee shall be paid for half
the usual or scheduled day's work, but in no event for less than two (2) hours nor
more than four (4) hours, at the employee's regular rate of pay, which shall not be
less than the minimum wage. (B) If an employee is required to report for work a
second time in any one workday and is furnished less than two hours of work on the
second reporting, said employee shall be paid for two hours at the employee's
regular rate of pay, which shall not be less than the minimum wage. (C) The
foregoing reporting time pay provisions are not applicable when: (1) Operations
cannot commence or continue due to threats to employees or property; or when
recommended by civil authorities; or (2) Public utilities fail to supply electricity,
water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The
interruption of work is caused by an Act of God or other cause not within the
employer's control. (C) This section shall not apply to an employee on paid standby
status who is called to perform assigned work at a time other than the employee's
scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be
issued by the Division authorizing employment of a person whose earning capacity
is impaired by physical disability or mental deficiency at less than the minimum
wage. Such licenses shall be granted only upon joint application of employer and
employee and employee's representative if any. (B) A special license may be
issued to a nonprofit organization such as a sheltered workshop or rehabilitation
facility fixing special minimum rates to enable the employment of such persons
without requiring individual licenses of such employees. (C) All such licenses and
special licenses shall be renewed on a yearly basis or more frequently at the
discretion of the Division. (See California Labor Code, Sections 1191 and 1191.5.)
7. Records (A) Every employer shall keep accurate information with respect to each
employee including the following: (1) Full name, home address, occupation and
social security number. (2) Birth date, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period.
Meal periods, split shift intervals and total daily hours worked shall also be
recorded. Meal periods during which operations cease and authorized rest periods
need not be recorded. (4) Total wages paid each payroll period, including value of
board, lodging, or other compensation actually furnished to the employee. (5) Total
hours worked in the payroll period and applicable rates of pay. This information
shall be made readily available to the employee upon reasonable request. (6) When
a piece rate or incentive plan is in operation, piece rates or an explanation of the
incentive plan formula shall be provided to employees. An accurate production
record shall be maintained by the employer. (B) Every employer shall semimonthly
or at the time of each payment of wages furnish each employee, either as a
detachable part of the check, draft, or voucher paying the employee's wages, or
separately, an itemized statement in writing showing: (1) all deductions; (2) the
inclusive dates of the period for which the employee is paid; (3) the name of the
employee or the employee's social security number; and (4) the name of the
employer, provided all deductions made on written orders of the employee may be
aggregated and shown as one item. (C) All required records shall be in the English
language and in ink or other indelible form, properly dated, showing month, day and
year, and shall be kept on file by the employer for at least three years at the place
of employment or at a central location within the State of California. An employee's
records shall be available for inspection by the employee upon reasonable request.
(D) Clocks shall be provided in all major work areas or within reasonable distance
thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall
make any deduction from the wage or require any reimbursement from an
employee for any cash shortage, breakage, or loss of equipment, unless it can be
shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee. 9. Uniforms and Equipment (A) When
uniforms are required by the employer to be worn by the employee as a condition of
employment, such uniforms shall be provided and maintained by the employer. The
term "uniform" includes wearing apparel and accessories of distinctive design or
color. NOTE: This section shall not apply to protective apparel regulated by the
Occupational Safety and Health Standards Board. (B) When tools or equipment are
required by the employer or are necessary to the performance of a job, such tools
and equipment shall be provided and maintained by the employer, except that an
employee whose wages are at least two (2) times the minimum wage provided
herein may be required to provide and maintain hand tools and equipment
customarily required by the trade or craft. This subsection (B) shall not apply to
apprentices regularly indentured under the State Division of Apprenticeship
Standards. NOTE: This section shall not apply to protective equipment and safety
devices on tools regulated by the Occupational Safety and Health Standards Board.
(C) A reasonable deposit may be required as security for the return of the items
furnished by the employer under provisions of subsections (A) and (B) of this
section upon issuance of a receipt to the employee for such deposit. Such deposits
shall be made pursuant to Section 400 and following of the Labor Code or an
employer with the prior written authorization of the employee may deduct from the
employee's last check the cost of an item furnished pursuant to (A) and (B) above in
the event said item is not returned. No deduction shall be made at any time for
normal wear and tear. All items furnished by the employer shall be returned by the
employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an
adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B)
"Lodging" means living accommodations available to the employee for full-time
occupancy which are adequate, decent, and sanitary according to usual and
customary standards. Employees shall not be required to share a bed. (C) Meals or
lodging may not be credited against the minimum wage without a voluntary written
agreement between the employer and the employee. When credit for meals or
lodging is used to meet part of the employer's minimum wage obligation, the
amounts so credited may not be more than the following: Effective Dates: January
1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75
per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds
(2/3) of the ordinary rental value, and in no event more than $352.95 per month
$381.20 per week Where a couple are both employed by the employer, two-thirds
(2/3) of the ordinary rental value, and in no event more than $522.10 per month
$563.90 per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15
$4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals
consistent with the employee's work shift. Deductions shall not be made for meals
not received nor lodging not used. (E) If, as a condition of employment, the
employee must live at the place of employment or occupy quarters owned or under
the control of the employer, then the employer may not charge rent in excess of the
values listed herein. 11. Meal Periods (A) No employer shall employ any person for
a work period of more than five (5) hours without a meal period of not less than
thirty (30) minutes, except that when a work period of not more than six (6) hours
will complete the day's work the meal period may be waived by mutual consent of
the employer and employee. (B) An employer may not employ an employee for a
work period of more than ten (10) hours per day without providing the employee
with a second meal period of not less than thirty (30) minutes, except that if the total
hours worked is no more than twelve (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. (C) Unless the employee is relieved of all duty during a thirty
(30) minute meal period, the meal period shall be considered an "on duty" meal
period and counted as time worked. An "on duty" meal period shall be permitted
only when the nature of the work prevents an employee from being relieved of all
duty and when by written agreement between the parties an on-the-job paid meal
period is agreed to. The written agreement shall state that the employee may, in
writing, revoke the agreement at any time. (D) If an employer fails to provide an
employee with a meal period in accordance with the applicable provisions of this
Order, the employer shall pay the employee one (1) hour of pay at the employee's
regular rate of compensation for each work day that the meal period is not provided.
12. Rest Periods (A) Every employer shall authorize and permit all employees to
take rest periods, which insofar as practicable shall be in the middle of each work
period. The authorized rest period time shall be based on the total hours worked
daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction
thereof. However, a rest period need not be authorized for employees whose total
daily work time is less than three and one-half (3 1/2) hours. Authorized rest period
time shall be counted, as hours worked for which there shall be no deduction from
wages. (B) If an employer fails to provide an employee a rest period in accordance
with the applicable provisions of this Order, the employer shall pay the employee
one (1) hour of pay at the employee's regular rate of compensation for each work
day that the rest period is not provided. 13. Change Rooms and Resting Facilities
(A) Employers shall provide suitable lockers, closets, or equivalent for the
safekeeping of employees' outer clothing during working hours, and when required,
for their work clothing during non-working hours. When the occupation requires a
change of clothing, change rooms or equivalent space shall be provided in order
that employees may change their clothing in reasonable privacy and comfort. These
rooms or spaces may be adjacent to but shall be separate from toilet rooms and
shall be kept clean. NOTE: This section shall not apply to change rooms and
storage facilities regulated by the Occupational Safety and Health Standards Board.
(B) Suitable resting facilities shall be provided in an area separate from the toilet
rooms and shall be available to employees during work hours. 14. Seats (A) All
working employees shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats. (B) When employees are not engaged in
the active duties of their employment and the nature of the work requires standing,
an adequate number of suitable seats shall be placed in reasonable proximity to the
work area and employees shall be permitted to use such seats when it does not
interfere with the performance of their duties. 15. Penalties (See Labor Code,
section 1199) (A) In addition to any other civil penalties provided by law, any
employer or any other person acting on behalf of the employer who violates, or
causes to be violated, the provisions of this order, shall be subject to the civil
penalty of: (1) Initial Violation — $50.00 for each underpaid employee for each pay
period during which the employee was underpaid in addition to the amount which is
sufficient to recover unpaid wages. (2) Subsequent Violations — $100.00 for each
underpaid employee for each pay period during which the employee was underpaid
in addition to an amount which is sufficient to recover unpaid wages. (3) The
affected employee shall receive payment of all wages recovered. (B) The Labor
Commissioner may also issue citations pursuant to Labor Code § 1197.1 for
payment of wages for overtime work in violation of this order. 16. Elevators
Adequate elevator, escalator or similar service consistent with industry-wide
standards for the nature of the process and the work performed shall be provided
when employees are employed four floors or more above or below ground level. 17.
Exemptions If, in the opinion of the Division after due investigation, it is found that
the enforcement of any provision contained in Section 7, Records; Section 12, Rest
Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats;
Section 15, Temperature; or Section 16, Elevators, would not materially affect the
welfare or comfort of employees and would work an undue hardship on the
employer, exemption may be made at the discretion of the Division. Such
exemptions shall be in writing to be effective and may be revoked after reasonable
notice is given in writing. Application for exemption shall be made by the employer
or by the employee and/or the employee's representative to the Division in writing.
A copy of the application shall be posted at the place of employment at the time the
application is filed with the Division. 18. Filing Reports (See California Labor Code,
Section 1174(a).) 19. Inspection (See California Labor Code, Section 1174) 20.
Penalties (See California Labor Code, Section 1199) 21. Separability If the
application of any provision of this Order, or any section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this Order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
22. Posting of Order Every employer shall keep a copy of this Order posted in an
area frequented by employees where it may be easily read during the work day.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this Order and make it available to every employee
upon request.
8:11170. Miscellaneous Employees. 1. Applicability of Order This wage order
implements changes in the law as a result of the Legislature's enactment of the
"Eight-Hour-Day Restoration and Workplace Flexibility Act," Stats. 1999, ch. 134
(commonly referred to as AB 60). (A) Any industry or occupation not previously
covered by, and all employees not specifically exempted in, the Commission's wage
orders in effect in 1997, or otherwise exempted by law, are covered by this order.
(B) Except as provided in subsection (C), an employee in the computer software
field who is paid on an hourly basis shall be exempt from the daily overtime pay
provisions of California Labor Code Section 510, if all of the following apply: (1) The
employee is primarily engaged in work that is intellectual or creative and that
requires the exercise of discretion and independent judgment, and the employee is
primarily engaged in duties that consist of one or more of the following: (a) The
application of systems analysis techniques and procedures, including consulting
with users, to determine hardware, software, or system functional specifications. (b)
The design, development, documentation, analysis, creation, testing, or
modification of computer systems or programs, including prototypes, based on and
related to, user or system design specifications. (c) The documentation, testing,
creation, or modification of computer programs related to the design of software or
hardware for computer operating systems. (2) The employee is highly skilled and is
proficient in the theoretical and practical application of highly specialized information
to computer systems analysis, programming, and software engineering. A job title
shall not be determinative of the applicability of this exemption. (3) The employee's
hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor
Statistics and Research shall adjust this pay rate on October 1 of each year to be
effective on January 1 of the following year by an amount equal to the percentage
increase in the California Consumer Price Index for Urban Wage Earners and
Clerical Workers. (C) The exemption provided in subsection (B) does not apply to
an employee if any of the following apply: (1) The employee is a trainee or
employee in an entry-level position who is learning to become proficient in the
theoretical and practical application of highly specialized information to computer
systems analysis, programming, and software engineering. (2) The employee is in a
computer-related occupation but has not attained the level of skill and expertise
necessary to work independently and without close supervision. (3) The employee
is engaged in the operation of computers or in the manufacture, repair, or
maintenance of computer hardware and related equipment. (4) The employee is an
engineer, drafter, machinist, or other professional whose work is highly dependent
upon or facilitated by the use of computers and computer software programs and
who is skilled in computer-aided design software, including CAD/CAM, but who is
not in a computer systems analysis or programming occupation. (5) The employee
is a writer engaged in writing material, including box labels, product descriptions,
documentation, promotional material, setup and installation instructions, and other
similar written information, either for print or for on screen media or who writes or
provides content material intended to be read by customers, subscribers, or visitors
to computer-related media such as the World Wide Web or CD-ROMS. (6) The
employee is engaged in any of the activities set forth in subsection (B) for the
purpose of creating imagery for effects used in the motion picture, television, or
theatrical industry. (D) The provisions of this order shall not apply to any individual
participating in a national service program, such as AmeriCorps, carried out using
assistance provided under Section 12571 of Title 42 of the United States Code.
(See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A)
An "Alternative workweek schedule" means any regularly scheduled workweek
requiring an employee to work more than eight hours in a 24-hour period. (B) "Shift"
means designated hours of work by an employee, with a designated beginning time
and quitting time. (C) "Workday" and "day" mean any consecutive 24-hour period
beginning at the same time each calendar day. (D) "Workweek" and "week" mean
any seven (7) consecutive days, starting with the same calendar day each week.
"Workweek" is a fixed and regularly recurring period of 168 hours, seven (7)
consecutive 24-hour periods. 3. Administrative, Executive, and Professional
Employees The following provisions shall not apply to persons employed in
administrative, executive, or professional capacities. No person shall be considered
to be employed in an administrative, executive, or professional capacity unless the
person is primarily engaged in the duties which meet the test of the exemption and
earns a monthly salary equivalent to no less than two times the state minimum
wage for full time employment. The duties that meet the tests of the exemption are
one of the following set of conditions: (A) The employee is engaged in work which is
primarily intellectual, managerial, or creative, and which requires exercise of
discretion and independent judgment, or (B) The employee is licensed or certified
by the State of California and is engaged in the practice of one of the following
recognized professions: law, medicine, dentistry, optometry, architecture,
engineering, teaching, or accounting, or is engaged in an occupation commonly
recognized as a learned or artistic profession; provided, however, that pharmacists
employed to engage in the practice of pharmacy, and registered nurses employed
to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of
this subsection unless they individually meet the criteria established for exemption
as executive or administrative employees. (C) For the purposes of this section,
"Full-time employment" means employment in which an employee is employed for
40 hours per week. (D) For the purposes of this section, "primarily" means more
than one-half (1/2) of the employee's work time. 4. Daily Overtime — General
Provisions The following overtime provisions are applicable to employees eighteen
(18) years of age or over and to employees 16 or 17 years of age who are not
required by law to attend school, and are not otherwise prohibited by law from
engaging in the subject work. Such employees shall not be employed more than
eight (8) hours in any workday or more than 40 hours in any workweek unless the
employee receives one and one-half (1 1/2) times such employee's regular rate of
pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor
constitutes a day's work. Employment beyond eight (8) hours in any workday or
more than six (6) days in any workweek is permissible provided the employee is
compensated for such overtime at not less than: (A) One and one-half (1 1/2) times
the employee's regular rate of pay for all hours worked in excess of eight (8) hours
up to and including 12 hours in any workday, and for the first eight (8) hours worked
on the seventh (7th) consecutive day of work in a workweek; and (B) Double the
employee's regular rate of pay for all hours worked in excess of 12 hours in any
workday and for all hours worked in excess of eight (8) hours on the seventh (7th)
consecutive day of work in a workweek. (C) The overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee shall be computed
by using the employee's regular hourly salary as one-fortieth (1/40) of the
employee's weekly salary. 5. Alternative Workweek (A) No employer shall be
deemed to have violated the daily overtime provisions by instituting, pursuant to the
election procedures set forth in this wage order, a regularly scheduled alternative
workweek schedule of not more than ten (10) hours per day within a 40 hour
workweek without the payment of an overtime rate of compensation. All work
performed in any workday beyond the schedule established by the agreement up to
12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1
1/2) times the employee's regular rate of pay. All work performed in excess of 12
hours per day and any work in excess of eight (8) hours on those days worked
beyond the regularly scheduled number of workdays established by the alternative
workweek agreement shall be paid at double the employee's regular rate of pay.
Any alternative workweek agreement adopted pursuant to this section shall provide
for not less than four (4) hours of work in any shift. Nothing in this section shall
prohibit an employer, at the request of the employee, to substitute one (1) day of
work for another day of the same length in the shift provided by the alternative
workweek agreement on an occasional basis to meet the personal needs of the
employee without the payment of overtime. No hours paid at either one and onehalf (1 1/2) or double the regular rate of pay shall be included in determining when
40 hours have been worked for the purpose of computing overtime compensation.
(B) If an employer, whose employees have adopted an alternative workweek
agreement permitted by this order requires an employee to work fewer hours than
those that are regularly scheduled by the agreement, the employer shall pay the
employee overtime compensation at a rate of one and one-half (1 1/2) times the
employee's regular rate of pay for all hours worked in excess of eight (8) hours, and
double the employee's regular rate of pay for all hours worked in excess of 12 hours
for the day the employee is required to work the reduced hours. (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 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) An employer shall
make a reasonable effort to find a work schedule not to exceed eight (8) 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
workweek schedule established as the result of that election. (F) An employer shall
be permitted, but not required, to provide a work schedule not to exceed eight (8)
hours in a workday to accommodate any employee who is hired after the date of the
election and who is unable to work the alternative workweek schedule established
by the election. (G) The provisions of Labor Code Sections 551 and 552 regarding
one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of
days of rest when the nature of the employment reasonably requires the employee
to work seven (7) or more consecutive days; provided, however, that in each
calendar month, the employee shall receive the equivalent of one (1) day's rest in
seven (7). (H) Arrangements adopted in a secret ballot election held pursuant to this
order prior to 1998, or under the rules in effect prior to 1998, and before the
performance of the work, shall remain valid after July 1, 2000, provided that the
results of the election are reported by the employer to the Division of Labor
Statistics and Research by January 1, 2001, in accordance with the requirements of
Election Procedures Section F. New arrangements can be entered into pursuant to
the provisions of this section. Election Procedures (A) Each proposal for an
alternative workweek schedule shall be in the form of a written agreement proposed
by the employer. The proposed agreement must designate a regularly scheduled
alternative workweek in which the specified number of work days and work hours
are regularly recurring. The actual days worked within that alternative workweek
schedule need not be specified. The employer may propose 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. If the employer proposes a menu of work schedule options, the employee
may, with the approval of the employer, move from one menu option to another. (B)
In order to be valid, the proposed alternative workweek schedule must be adopted
in a secret ballot election, before the performance of work, by at least a two-thirds
(213) vote of the affected employees in the work unit The election shall be held
during regular working hours at the employees' work site. For purposes of this
subsection, "affected employees in the work unit" may include all employees in a
readily identifiable work unit, such as a division, a department, a job classification, a
shift, a separate physical location, or a recognized subdivision of any such work unit
A work unit may consist of an individual employee as long as the criteria for an
identifiable work unit in this subsection is met. (C) Prior to the secret ballot vote, any
employer who proposed to institute an alternative workweek schedule shall have
made a disclosure in writing to the affected employees, including the effects of the
proposed arrangement on the employees' wages, hours, and benefits. Such a
disclosure shall include meeting(s), duly noticed, held at least fourteen (14) days
prior to voting, for the specific purpose of discussing the effects of the alternative
workweek schedule. An employer shall provide that disclosure in a non-English
language, as well as in English, if at least five (5) percent of the affected employees
primarily speak that non-English language. The employer shall mail the written
disclosure to employees who do not attend the meeting. Failure to comply with this
section shall make the election null and void; (D) Any election to establish or repeal
an alternative workweek schedule shall be held during regular working hours at the
work site of the affected employees. The employer shall bear the costs of
conducting any election held pursuant to this section. Upon a complaint by an
affected employee, and after an investigation by the labor commissioner, the labor
commissioner may require the employer to select a neutral third party to conduct
the election. (E) Any type of alternative workweek schedule that is authorized by the
Labor Code may be repealed by the affected employees. Upon a petition of onethird (1/3) of the affected employees, anew secret ballot election shall be held and a
two-thirds (213) vote of the affected employees shall be required to reverse the
alternative workweek schedule. The election to repeal the alternative workweek
schedule shall be held not more than 30 days after the petition is submitted to the
employer, except that the election shall be held not less that 12 months after the
date that the same group of employees voted in an election held to adopt or repeal
an alternative workweek schedule. The election shall take place during regular
working hours at the employees' work site. If the alternative workweek schedule is
revoked, the employer shall comply within 60 days. Upon proper showing of undue
hardship, the Division of Labor Standards Enforcement may grant an extension of
time for compliance. (F) Only secret ballots may be cast by affected employees in
the work unit at any election held pursuant to this section. The results of any
election conducted pursuant to this section shall be reported by the employer to the
Division of Labor Statistics and Research within 30 days after the results are final,
and the report of election results shall be a public document The report shall include
the final tally of the vote, the size of the unit, and the nature of the business of the
employer. (G) Employees affected by a change in work hours resulting from the
adoption of an alternative workweek schedule may not be required to work those
new work hours for at least 30 days after the announcement of the final results of
the election. (H) Employers shall not intimidate or coerce employees to vote either
in support or in opposition to a proposed alternative workweek. No employees shall
be discharged or discriminated against for expressing opinions concerning the
alternative workweek election or for opposing or supporting its adoption or repeal.
However, nothing in this section shall prohibit an employer from expressing his/her
position concerning that alternative workweek to the affected employees. A violation
of subsection shall be subject to Labor Code Section 98 et seq. 6. Minors
VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500
to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections
1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of
minors and for descriptions of criminal and civil penalties for violation of the child
labor laws. Employers should ask school districts about any required work permits.
7. Collective Bargaining Agreements (A) Sections 4 and 5, of this order shall not
apply to any employee covered by a valid collective bargaining agreement if the
agreement expressly provides for the wages, hours of work, and working conditions
of the employees, and if the agreement provides premium wage rates for all
overtime hours worked and a regular hourly rate of pay for those employees of not
less than 30 percent more than the state minimum wage. (B) Notwithstanding
Section 7 (A), where the employer and a labor organization representing employees
of the employer have entered into a valid collective bargaining agreement pertaining
to the hours of work of the employees, the requirement regarding the equivalent of
one day's rest in seven (7) (see Section 5 (I) above) shall apply, unless the
agreement expressly provides otherwise. 8. Make Up Time (A) If an employer
approves a written request of an employee to make up work time that is or would be
lost as a result of a personal obligation of the employee, the hours of that makeup
work time, if performed in the same workweek in which the work time was lost, may
not be counted toward computing the total number of hours worked in a day for
purposes of the overtime requirements, except for hours in excess of 11 hours of
work in one day or 40 hours of work in one workweek. If an employee knows in
advance that he or she will be requesting makeup time for a personal obligation that
will recur at a fixed time over a succession of weeks, the employee may request to
make up work time for up to four (4) weeks in advance; provided, however, that the
makeup work must be performed in the same week that the work time was lost An
employee shall provide a signed written request for each occasion that the
employee makes a request to make up work time pursuant to this section. While an
employer may inform an employee of this makeup time option, the employer is
prohibited from encouraging or otherwise soliciting an employee to request the
employer's approval to take personal time off and make up the work hours within
the same workweek pursuant to this section. 9. Meal Periods (A) No employer shall
employ any person for a work period of more than five (5) hours without a meal
period of not less than 30 minutes, except that when a work period of not more than
six (6) hours will complete the day's work the meal period may be waived by mutual
consent of employer and employee. (B) An employer may not employ an employee
for a work period of more than ten (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) If an employer fails to provide an employee a meal
period in accordance with the applicable provisions of this order, the employer shall
pay the employee one (1) hour of pay at the employee's regular rate of
compensation for each work day that the meal period is not provided. 10. Penalties
In addition to any other civil or criminal penalty provided by law, any employer or
any other person acting on behalf of the employer who violates, or causes to be
violated, the provisions of this order, shall be subject to a civil penalty of: (A) Initial
Violation — $50.00 for each underpaid employee for each pay period during which
the employee was underpaid in addition to an amount which is sufficient to recover
underpaid wages. (B) Subsequent Violations — $100.00 for each underpaid
employee for each pay period during which the employee was underpaid in addition
to an amount which is sufficient recover underpaid wages. (C) The affected
employee shall receive payment of all wages recovered. The Labor Commissioner
may also issue citations pursuant to California Labor Code Section 1197.1 for nonpayment of wages for overtime work in violation of this order. 11. Separability If the
application of any provision of this order, or any section, subsection, subdivision,
sentence, clause, phrase, word, or portion of this order should be held invalid or
unconstitutional or unauthorized or prohibited by statute, the remaining provisions
thereof shall not be affected thereby, but shall continue to be given full force and
effect as if the part so held invalid or unconstitutional had not been included herein.
12. Posting of Order Every employer shall keep a copy of this order posted in an
area frequented by employees where it may easily be read during the workday.
Where the location of work or other conditions make this impractical, every
employer shall keep a copy of this order and make it available to every employee
upon request
Sec. 19851.State employees, Forty-hour workweek; Overtime .—(a) It is the
policy of the state that the workweek of the state employee shall be 40 hours, and
the workday of state employees eight hours, except that workweeks and workdays
ofa different number of hours may be established in order to meet the varying
needs of the different state agencies. It is the policy of the state to avoid the
necessity for overtime work whenever possible. This policy does not restrict the
extension of regular working-hour schedules on an overtime basis in those activities
and agencies where it is necessary to carry on the state business properly during a
manpower shortage. (b) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to Section 3517.5,
the memorandum of understanding shall be controlling without further legislative
action, except that if the provisions of a memorandum of understanding require the
expenditure of funds, the provisions shall not become effective unless approved by
the Legislature in the annual Budget Act.
Sec. 45127.School employees, Maximum hours; Workday and workweek;
Exemptions.—The workweek of a classified employee, as defined in Section
45103 or Section 45256, shall be 40 hours. The workday shall be eight hours.
These provisions do not restrict the extension of a regular workday or workweek on
an overtime basis when such is necessary to carry on the business of the district.
Nothing in this section shall be deemed to bar the district from establishing a
workday of less than eight hours or a workweek of less than 40 hours for all or any
of its classified positions. Notwithstanding the provisions of this section and Section
45128, a governing board may, with the approval of the personnel commission,
where applicable, exempt specific classes of positions from compensation for
overtime in excess of eight hours in one day, provided that hours worked in excess
of 40 in a calendar week shall be compensated on an overtime basis. Such
exemption shall be applied only to those classes which the governing board and
personnel commission, where applicable, specifically find to be a subject to
fluctuations in daily working hours not susceptible to administrative control, such as
security patrol and recreation classes, but shall not include food service and
transportation classes. This section shall apply to districts that have adopted the
merit system in the same manner and effect as if it were a part of Article 6
(commencing with Section 45240) of this chapter.
Sec. 88026. Community colleges; Workweek and workday —The workweek of
a classified employee, as defined in Section 88033 or Section 88076, shall be 40
hours. The workday shall be eight hours. These provisions do not restrict the
extension of a regular workday or workweek on an overtime basis when such is
necessary to carry on the business of the district. Nothing in this section shall be
deemed to bar the district from establishing a workday of less than eight hours or a
workweek of less than 40 hours for all or any of its classified positions.
Notwithstanding the provisions of this section and Section 88027, a governing
board may, with the approval of the personnel commission, where applicable,
exempt specific classes of positions from compensation for overtime in excess of
eight hours in one day, provided that hours worked in excess of 40 in a calendar
week shall be compensated on an overtime basis. Such exemption shall be applied
only to those classes which the governing board and personnel commission, where
applicable, specifically find to be subject to fluctuations in daily working hours not
susceptible to administrative control, such as security patrol and recreation classes,
but shall not include food-service and transportation classes.
This section shall apply to districts that have adopted the merit system in the same
manner and effect as if it were a part of Article 3 (commencing with Section 88060)
of this chapter.
Sec. 45128. School employees, Overtime compensation.—The governing
board of each district shall provide the extent to which, and establish the method by
which ordered overtime is compensated. The board shall provide for such
compensation or compensatory time off at a rate at least equal to time and one-half
the regular rate of pay of the employee designated and authorized to perform the
overtime. Overtime is defined to include any time required to be worked in excess
of eight hours in any one day and in excess of 40 hours in any calendar week. If a
governing board establishes a workday of less than eight hours but seven hours or
more and a workweek of less than 40 hours but 35 hours or more for all of its
classified positions or for certain classes of classified positions, all time worked in
excess of the established workday and workweek shall be deemed to be overtime.
The foregoing provisions do not apply to classified positions for which a workday of
fewer than seven hours and a workweek of fewer than 35 hours has been
established, nor to positions for which a workday of eight hours and a workweek of
40 hours has been established, but in which positions employees are temporarily
assigned to work fewer than eight hours per day or 40 hours per week when such
reduction in hours is necessary to avoid layoffs for lack of work or lack of funds and
the consent of the majority of affected employees to such reduction in hours has
been first obtained. For the purpose of computing the number of hours worked,
time during which an employee is excused from work because of holidays, sick
leave, vacation, compensating time off, or other paid leave of absence shall be
considered as time worked by the employee. This section shall apply to districts
that have adopted the merit system in the same manner and effect as if it were a
part of Article 6 (commencing with Section 45240) of this chapter.
Sec. 88027. Community colleges; Overtime —The governing board of each
community college district shall provide the extent to which, and establish the
method by which ordered overtime is compensated. The board shall provide for
such compensation or compensatory time off at a rate at least equal to time and
one-half the regular rate of pay of the employee designated and authorized to
perform the overtime. Overtime is defined to include any time required to be
worked in excess of eight hours in any one day and in excess of 40 hours in any
calendar week. If a governing board establishes a workday of less than eight hours
but seven hours or more and a workweek of less than 40 hours but 35 hours or
more for all of its classified positions or for certain classes of classified positions, all
time worked in excess of the established workday and workweek shall be deemed
to be overtime. The foregoing provisions do not apply to classified positions for
which a workday of fewer than seven hours and a workweek of fewer than 35 hours
has been established, nor to positions for which a workday of eight hours and a
workweek of 40 hours has been established, but in which positions employees are
temporarily assigned to work fewer than eight hours per day or 40 hours per week
when such reduction in hours is necessary to avoid layoffs for lack of work or lack of
funds and the consent of the majority of affected employees to such reduction in
hours has been first obtained. For the purpose of computing the number of hours
worked, time during which an employee is excused from work because of holidays,
sick leave, vacation, compensating time off, or other paid leave of absence shall be
considered as time worked by the employee. This section shall apply to districts
that have adopted the merit system in the same manner and effect as if it were a
part of Article 3 (commencing with Section 88060) of this chapter.
Sec. 45129. School employees, Overtime; Compensatory time off.—When
compensatory time off is authorized in lieu of cash compensation, such
compensatory time off shall be granted within 12 calendar months following the
month in which the overtime was worked and without impairing the services
rendered by the employing district. This section shall apply to districts that have
adopted the merit system in the same manner and effect as if it were a part of
Article 6 (commencing with Section 45240) of this chapter.
Sec. 88028. Community colleges, Overtime; Compensatory time off.— When
compensatory time off is authorized in lieu of cash compensation, such
compensatory time off shall be granted within 12 calendar months following the
month in which the overtime was worked and without impairing the services
rendered by the employing district. This section shall apply to districts that have
adopted the merit system in the same manner and effect as if it were a part of
Article 3 (commencing with Section 88060) of this chapter.
Sec. 45131. School employees, Overtime, Workday.—Notwithstanding the
provisions of Section 45127, the workweek shall consist of not more than five
consecutive working days for any employee having an average workday of four
hours or more during the workweek. Such an employee shall be compensated for
any work required to be performed on the sixth or seventh day following the
commencement of the workweek at the rate equal to 1 1/2 times the regular rate of
pay of the employee designated and authorized to perform the work. An employee
having an average workday of less than four hours during a workweek shall, for any
work required to be performed on the seventh day following the commencement of
his workweek, be compensated for at a rate equal to 1 1/2 times the regular rate of
pay of the employee designated and authorized to perform the work. Positions and
employees excluded from overtime compensation pursuant to Section 45130 shall
likewise be excluded from the provisions of this section. This section shall apply to
districts that have adopted the merit system in the same manner and effect as if it
were a part of Article 6 (commencing with Section 45240) of this chapter.
Sec. 88030. Community colleges, Overtime; Workday.— Notwithstanding
Section 88026, the workweek shall consist of not more than five consecutive
working days for any employee having an average workday of four hours or more
during the workweek. Such an employee shall be compensated for any work
required to be performed on the sixth or seventh day following the commencement
of the workweek at a rate equal to 11/2 times the regular rate of pay of the
employee designated and authorized to perform the work. An employee having an
average workday of less than four hours during a workweek shall, for any work
required to be performed on the seventh day following the commencement of his or
her workweek, be compensated for at a rate equal to 11/2 times the regular rate of
pay of the employee designated and authorized to perform the work. Positions and
employees excluded from overtime compensation pursuant to Section 88029 shall
likewise be excluded from this section. This section shall apply to districts that have
adopted the merit system in the same manner and effect as if it were a part of
Article 3 (commencing with Section 88060).
Sec. 1815. Public works; Exception to maximum hours where overtime paid—
Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code,
and notwithstanding any stipulation inserted in any contract pursuant to the
requirements of said sections, work performed by employees of contractors in
excess of 8 hours per day, and 40 hours during any one week, shall be permitted
upon public work upon compensation for all hours worked in excess of 8 hours per
day at not less than 1½ times the basic rate of pay.
Sec. 19851.1. Correctional officers, Overtime cap .—(a) (1) Notwithstanding
Section 19851, the Department of Corrections shall establish a standardized
overtime cap for correctional officers not to exceed 80 hours per month. (2) This
subdivision shall not relieve the state of any obligation under a memorandum of
understanding for State Bargaining Unit 6 in effect on January 1, 2004, and
approved pursuant to Section 3517.6, relating to hours of work, overtime, or
alternative work schedules. (b) Notwithstanding any other provision of law, the
Department of Corrections shall not reduce the total number of filled educational
positions as of June 30, 2003, if the director of the department determines that the
reduction would result in a loss of day for day credits for eligible inmates.
Sec. 751.8. Underground mines, smelters and plants; Exception to maximum
hours; Overtime pay — (a) Notwithstanding Section 750, the period of
employment may exceed eight hours in any 24-hour period if the employee is paid
at the overtime rate of pay for hours worked in excess of that employee's regularly
scheduled shift and for hours worked in excess of 40 hours in a seven-day period.
Unless regularly scheduled shifts are established pursuant to Section 750.5,
overtime rates of pay shall be paid for all hours worked in excess of those hours
prescribed by Section 750 as the maximum allowable hours of employment. (b) All
work performed in any workday in excess of the scheduled hours established by an
agreement pursuant to subdivision (b) of Section 750.5 up to and including 12
hours, or in excess of 40 hours in a workweek, shall be compensated at one and
one-half times the employee's regular rate of compensation. All work performed in
any workday in excess of 12 hours shall be compensated at double the employee's
regular rate of compensation. No hours that are compensated at either one and
one-half times, or double, the regular rate of compensation shall be included in
determining the number of hours an employee has worked in a workweek for
purposes of computing premium compensation.
Payment Upon Termination
201. (a) If an employer discharges an employee, the wages earned and unpaid at
the time of discharge are due and payable immediately. An employer who lays off a
group of employees by reason of the termination of seasonal employment in the
curing, canning, or drying of any variety of perishable fruit, fish or vegetables, shall
be deemed to have made immediate payment when the wages of said employees
are paid within a reasonable time as necessary for computation and payment
thereof; provided, however, that the reasonable time shall not exceed 72 hours, and
further provided that payment shall be made by mail to any employee who so
requests and designates a mailing address therefore.
201.5. An employer who lays off an employee engaged in the production of motion
pictures, whose unusual or uncertain terms of employment require special
computation in order to ascertain the amount due, shall be deemed to have made
immediate payment of wages within the meaning of Section 201 if the wages of the
employee are paid by the next regular payday, as prescribed by Section 204,
following the layoff. For purposes of this section, "layoff" means the termination of
employment of an employee where the employee retains eligibility for
reemployment with the employer. However, if an employee is discharged, payment
of wages shall be made within 24 hours after discharge, excluding Saturdays,
Sundays, and holidays. The Legislature finds and determines that special provision
must be made for the payment of wages on layoff and discharge of persons
engaged in the production of motion pictures because their employment at various
locations is often far removed from the employer's principal administrative offices
and the unusual hours of their employment in this industry is often geared to the
completion of a portion of a picture, which time of completion may have no relation
to normal working hours.
201.7. An employer who lays off an employee or a group of employees engaged in
the business of oil drilling shall be deemed to have made immediate payment within
the meaning of Section 201 if the wages of such employees are paid within such
reasonable time as may be necessary for computation or payment thereof;
provided, however, that such reasonable time shall not exceed 24 hours after
discharge excluding Saturdays, Sundays, and holidays; and provided further, such
payment may be mailed and the date of mailing is the date of payment. The
Legislature finds and determines that special provision must be made for the
payment of wages on discharge of employees engaged in oil drilling because their
employment at various locations is often far removed from the employer's principal
administrative offices, which makes the computation and payment of wages on an
immediate basis unduly burdensome.
202. 202. (a) If an employee not having a written contract for a definite period quits
his or her employment, his or her wages shall become due and payable not later
than 72 hours thereafter, unless the employee has given 72 hours previous notice
of his or her intention to quit, in which case the employee is entitled to his or her
wages at the time of quitting. Notwithstanding any other provision of law, an
employee who quits without providing a 72-hour notice shall be entitled to receive
payment by mail if he or she so requests and designates a mailing address. The
date of the mailing shall constitute the date of payment for purposes of the
requirement to provide payment within 72 hours of the notice of quitting.
There are situations where wages (i.e., some commissions) are not calculable until
after termination and, thus, are not due until that time. The employer has an
obligation to pay those wages as soon as the amount is ascertainable and failure to
pay those wages at that time will result in imposition of waiting time penalties.
(DLSE Enforcement Policies and Interpretations Manual, Sec. 4.6)
204.3. An employee who has accrued compensating time off authorized to be
provided under subdivision (a) shall, upon termination of employment, be paid for
the unused compensating time at a rate of compensation not less than the average
regular rate received by the employee during the last three years of the employee's
employment, or the final regular rate received by the employee, whichever is higher.
209. In the event of any strike, the unpaid wages earned by striking employees shall
become due and payable on the next regular pay day, and the payment or
settlement thereof shall include all amounts due the striking employees without
abatement or reduction. The employer shall return to each striking employee any
deposit, money, or other guaranty required by him from the employee for the faithful
performance of the duties of the employment.
227.3. 227.3. Unless otherwise provided by a collective-bargaining agreement,
whenever a contract of employment or employer policy provides for paid vacations,
and an employee is terminated without having taken off his vested vacation time, all
vested vacation shall be paid to him as wages at his final rate in accordance with
such contract of employment or employer policy respecting eligibility or time served;
provided, however, that an employment contract or employer policy shall not
provide for forfeiture of vested vacation time upon termination. The Labor
Commissioner or a designated representative, in the resolution of any dispute with
regard to vested vacation time, shall apply the principles of equity and fairness.
Plant Closing/Mass Lay-offs
Sec. 1400. Mass layoff, relocation or termination; Definitions .— The definitions
set forth in this section shall govern the construction and meaning of the terms used
in this chapter: (a) "Covered establishment" means any industrial or commercial
facility or part thereof that employs, or has employed within the preceding 12
months, 75 or more persons. (b) "Employer" means any person, as defined by
Section 18, who directly or indirectly owns and operates a covered establishment. A
parent corporation is an employer as to any covered establishment directly owned
and operated by its corporate subsidiary. (c) "Layoff" means a separation from a
position for lack of funds or lack of work. (d) "Mass layoff" means a layoff during any
30-day period of 50 or more employees at a covered establishment. (e)
"Relocation" means the removal of all or substantially all of the industrial or
commercial operations in a covered establishment to a different location 100 miles
or more away. (f) "Termination" means the cessation or substantial cessation of
industrial or commercial operations in a covered establishment. (g) (1) This chapter
does not apply where the closing or layoff is the result of the completion of a
particular project or undertaking of an employer subject to Wage Order 11,
regulating the Broadcasting Industry, Wage Order 12, regulating the Motion Picture
Industry, or Wage Order 16, regulating Certain On-Site Occupations in the
Construction, Drilling, Logging and Mining Industries, of the Industrial Welfare
Commission, and the employees were hired with the understanding that their
employment was limited to the duration of that project or undertaking. (2) This
chapter does not apply to employees who are employed in seasonal employment
where the employees were hired with the understanding that their employment was
seasonal and temporary. (h) "Employee" means a person employed by an employer
for at least 6 months of the 12 months preceding the date on which notice is
required.
1401. Mass layoff, relocation or termination; Employer notice requirements;
Exception; Application of federal WARN Act — (a) An employer may not order a
mass layoff, relocation, or termination at a covered establishment unless, 60 days
before the order takes effect, the employer gives written notice of the order to the
following: (1) The employees of the covered establishment affected by the order. (2)
The Employment Development Department, the local workforce investment board,
and the chief elected official of each city and county government within which the
termination, relocation, or mass layoff occurs. (b) An employer required to give
notice of any mass layoff, relocation, or termination under this chapter shall include
in its notice the elements required by the federal Worker Adjustment and Retraining
Notification Act (29 U.S.C. Sec. 2101 et seq.). (c) Notwithstanding the requirements
of subdivision (a), an employer is not required to provide notice if a mass layoff,
relocation, or termination is necessitated by a physical calamity or act of war.
1402. Mass layoff, relocation or termination; Failure to give notice; Employer
liability —(a) An employer who fails to give notice as required by paragraph (1) of
subdivision (a) of Section 1401 before ordering a mass layoff, relocation, or
termination is liable to each employee entitled to notice who lost his or her
employment for: (1) Back pay at the average regular rate of compensation received
by the employee during the last three years of his or her employment, or the
employee's final rate of compensation, whichever is higher. (2) The value of the
cost of any benefits to which the employee would have been entitled had his or her
employment not been lost, including the cost of any medical expenses incurred by
the employee that would have been covered under an employee benefit plan. (b)
Liability under this section is calculated for the period of the employer's violation, up
to a maximum of 60 days, or one-half the number of days that the employee was
employed by the employer, whichever period is smaller. (c) The amount of an
employer's liability under subdivision (a) is reduced by the following: (1) Any wages,
except vacation moneys accrued prior to the period of the employer's violation, paid
by the employer to the employee during the period of the employer's violation. (2)
Any voluntary and unconditional payments made by the employer to the employee
that were not required to satisfy any legal obligation. (3) Any payments by the
employer to a third party or trustee, such as premiums for health benefits or
payments to a defined contribution pension plan, on behalf of and attributable to the
employee for the period of the violation.
1402.5. Mass layoff, relocation or termination; Notice requirements,
Conditions where compliance not required; Limitations — (a) An employer is
not required to comply with the notice requirement contained in subdivision (a) of
Section 1401 if the department determines that all of the following conditions exist:
(1) As of the time that notice would have been required, the employer was actively
seeking capital or business. (2) The capital or business sought, if obtained, would
have enabled the employer to avoid or postpone the relocation or termination. (3)
The employer reasonably and in good faith believed that giving the notice required
by subdivision (a) of Section 1401 would have precluded the employer from
obtaining the needed capital or business. (b) The department may not determine
that the employer was actively seeking capital or business under subdivision (a)
unless the employer provides the department with both of the following: (1) A
written record consisting of all documents relevant to the determination of whether
the employer was actively seeking capital or business, as specified by the
department. (2) An affidavit verifying the contents of the documents contained in the
record. (c) The affidavit provided to the department pursuant to paragraph (2) of
subdivision (b) shall contain a declaration signed under penalty of perjury stating
that the affidavit and the contents of the documents contained in the record
submitted pursuant to paragraph (1) of subdivision (b) are true and correct. (d) This
section does not apply to notice of a mass layoff as defined by subdivision (d) of
Section 1400.
1403. Mass layoff, relocation or termination; Failure to give notice; Civil
penalty — An employer who fails to give notice as required by paragraph (2) of
subdivision (a) of Section 1401 is subject to a civil penalty of not more than five
hundred dollars ($500) for each day of the employer's violation. The employer is not
subject to a civil penalty under this section, however, if the employer pays to all
applicable employees the amounts for which the employer is liable under Section
1402 within three weeks from the date the employer orders the mass layoff,
relocation, or termination.
1404. Mass layoff, relocation or termination; Civil action to determine
employer liability.— A person, including a local government or an employee
representative, seeking to establish liability against an employer may bring a civil
action on behalf of the person, other persons similarly situated, or both, in any court
of competent jurisdiction. The court may award reasonable attorney's fees as part of
costs to any plaintiff who prevails in a civil action brought under this chapter.
1405. Mass layoff, relocation or termination; Reduced penalty where employer
acted in good faith.— If the court determines that an employer conducted a
reasonable investigation in good faith, and had reasonable grounds to believe that
its conduct was not a violation of this chapter, the court may reduce the amount of
any penalty imposed against the employer under this chapter.
1406. Mass layoff, relocation or termination; Investigations and proceedings;
Authority of Labor Commissioner to examine books and records.— In any
investigation or proceeding under this chapter, the Labor Commissioner has, in
addition to all other powers granted by law, the authority to examine the books and
records of an employer.
1407. Mass layoff, relocation or termination; Failure to provide advance
notice; Payments to affected parties not wages; Impact on unemployment —
(a) Payments to a person under subdivision (a) of Section 1402 by an employer
who has failed to provide the advance notice of facility closure required by this
chapter or the federal Worker Adjustment and Retraining Notification Act (29 U.S.C.
Sec. 2101 et seq.) may not be construed as wages or compensation for personal
services under Article 2 (commencing with Section 926) of Chapter 4 of Part 1 of
Division 1 of the Unemployment Insurance Code. (b) Benefits payable under
Chapter 5 (commencing with Section 1251) of Part 1 of Division 1 of the
Unemployment Insurance Code may not be denied or reduced because of the
receipt of payments related to an employer's violation of this chapter or the federal
Worker Adjustment and Retraining Notification Act (29 U.S.C. Sec. 2101 et seq.).
1408. Mass layoff, relocation or termination; Severability of chapter .— The
provisions of this chapter are severable. If any provision of this chapter or its
application is held invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid provision or application.
Recordkeeping/Access to Files
1198.5 Access to Personnel Files. (a) Every employee has the right to inspect the
personnel records that the employer maintains relating to the employee's
performance or to any grievance concerning the employee. (b) The employer shall
make the contents of those personnel records available to the employee at
reasonable intervals and at reasonable times. Except as provided in paragraph (3)
of subdivision (c), the employer shall not be required to make those personnel
records available at a time when the employee is actually required to render service
to the employer. (c) The employer shall do one of the following: (1) Keep a copy of
each employee's personnel records at the place where the employee reports to
work. (2) Make the employee's personnel records available at the place where the
employee reports to work within a reasonable period of time following an
employee's request. (3) Permit the employee to inspect the personnel records at the
location where the employer stores the personnel records, with no loss of
compensation to the employee. (d) The requirements of this section shall not apply
to: (1) Records relating to the investigation of a possible criminal offense. (2) Letters
of reference. (3) Ratings, reports, or records that were: (A) Obtained prior to the
employee's employment. (B) Prepared by identifiable examination committee
members. (C) Obtained in connection with a promotional examination. (4)
Employees who are subject to the Public Safety Officers Procedural Bill of Rights,
Chapter 9.7 (commencing with Section 3300) of Division 4 of Title 1 of the
Government Code. (5) Employees of agencies subject to the Information Practices
Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the
Civil Code). (e) The Labor Commissioner may adopt regulations that determine the
reasonable times and reasonable intervals for the inspection of records maintained
by an employer that is not a public agency. (f) If a public agency has established an
independent employee relations board or commission, an employee shall first seek
relief regarding any matter or dispute relating to this section from that board or
commission before pursuing any available judicial remedy. (g) In enacting this
section, it is the intent of the Legislature to establish minimum standards for the
inspection of personnel records by employees. Nothing in this section shall be
construed to prevent the establishment of additional rules for the inspection of
personnel records that are established as the result of agreements between an
employer and a recognized employee organization. (6) The employer shall make
the contents of those personnel records available for inspection to the current or
former employee, or his or her representative, at reasonable intervals and at
reasonable times, but not later than 21 calendar days from the date of a written or
oral request, as specified, for these records. Upon a written request from a current
or former employee, or his or her representative, the employer shall also provide
copies of the personnel records, at