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AB-2758 Alternative workweek schedule: agricultural employees.(2019-2020)

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Date Published: 04/28/2020 09:00 PM
AB2758:v98#DOCUMENT

Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2758


Introduced by Assembly Member Cooper

February 20, 2020


An act to amend Section 511 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 2758, as amended, Cooper. Alternative workweek schedule. schedule: agricultural employees.
Existing law authorizes an employer to propose a regularly scheduled alternative workweek, as specified, 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 and that will be adopted if it receives approval in a secret ballot election by at least 2/3 of affected employees in a work unit. Existing law establishes a time and 1/2 overtime rate for affected employees 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. Existing law establishes a minimum double-time rate for work in excess of 12 hours per day and for any work in excess of 8 hours on those days worked beyond the regularly scheduled workdays established by the alternative workweek agreement.

This bill would make nonsubstantive changes to those provisions.

Other existing law relating only to agricultural employees phases in overtime requirements according to a prescribed schedule over the course of 4 years, from 2019 to 2022, inclusive. Beginning January 1, 2022, existing law prohibits any person employed in an agricultural occupation from being employed more than 8 hours in any one workday or working in excess of 40 hours in any one workweek, unless the employee receives one and 1/2 times that employee’s regular rate of pay for all hours worked over 8 hours in any workday or over 40 hours in any workweek. Beginning January 1, 2022, existing law requires any work performed by a person employed in an agricultural occupation in excess of 12 hours in one day to be compensated at a minimum double-time rate. Under existing law, employers who employ 25 or fewer employees have an additional 3 years to comply with the phasing in of these overtime requirements.
This bill would require, for purposes of those alternative workweek provisions, that an affected employee employed in an agricultural occupation working longer than 8 hours, but not more than 12 hours in a day, pursuant to an alternative workweek schedule, be paid an overtime rate of compensation according to the agricultural employee overtime phase-in provisions, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 511 of the Labor Code is amended to read:

511.
 (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) (1) An affected employee working longer than eight 8 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 8 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.
(2) Notwithstanding paragraph (1), an affected employee employed in an agricultural occupation working longer than 8 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 according to Section 860 for any work in excess of the regularly scheduled hours 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 is unable to work the alternative schedule hours established as the result of that election. An employer may 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 (l) of Section 12940 of the Government Code.
(e) The employer shall report the results of any election conducted pursuant to this section to the Division of Labor Standards Enforcement 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 Number 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.