Current through Register 2024 Notice Reg. No. 12, March 22, 2024
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 (
½ ) 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 ½ ) 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 ½
) 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 (
11/2 ) 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 one-half (
11/2 ) 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 (
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.
(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 (
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.
(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 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 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
non-payment 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.
This Order, as revised becomes effective on January 1,
2001.
1. New
article 17 (section
11170) and section filed 1-4-2002;
operative 1-1-2001. Submitted to OAL for printing only pursuant to Labor Code
section
517 (Register
2002, No. 1).
Note: Authority cited: Section
1173, Labor
Code; and California Constitution Article XIV, Section
1. Reference: Sections
1182 and
1184, Labor
Code