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AB-2236 School employees: employment. (2011-2012)

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CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 2236


Introduced  by  Assembly Member Hueso

February 24, 2012


An act to amend Sections 45127, 45128, 45132, 45180, 88026, 88027, 88040, and 88180 of the Education Code, relating to school employees.


LEGISLATIVE COUNSEL'S DIGEST


AB 2236, as introduced, Hueso. School employees: employment.
(1) Existing law requires the governing board of a school district or community college district to establish the workday and workweek schedules of a classified employee, as defined. Existing law requires the regular workweek of a classified employee to be 40 hours and the regular workday of a classified employee to be 8 hours. Existing law authorizes a governing board of a school district or community college district to establish alternate workweek schedules of classified employees provided the establishment of such a workweek has the concurrence of the concerned employee or employee organization, as specified.
This bill would require the regular workweek schedule of a school district employee in a position not requiring certification qualifications, as specified, and a community college employee in a nonacademic position, as specified, to be 40 hours a week and the regular workday schedule to be 8 hours a day. The bill would authorize a governing board of a school district or community college district to establish alternate workday and workweek schedules of school district employees, as specified, and community college district employees in nonacademic positions provided the establishment of such a workweek has the concurrence of the concerned employee or employee organization, as specified.
(2) Existing law requires the governing board of a school district or community college district to provide the extent to which, and establish the method by which, ordered overtime is compensated for all classified positions or for certain classes of classified positions, as specified.
This bill would require the governing board of a school district to provide the extent to which, and establish the method by which, ordered overtime is compensated for all positions not requiring certification or for certain classes of positions not requiring certification. The bill also would require the governing board of a community college district to provide the extent to which, and establish the method by which, ordered overtime is compensated for all nonacademic positions or for certain classes of nonacademic positions.
(3) Existing law requires the governing board of every school district and community college district, or the personnel commission in any merit system school district or community college district, to determine the practices relating to morning and night shift salary differentials in the private employment fields in which it must compete for employees for its classified staff and to consider the advisability of providing comparable salary differentials for its classified staff. Existing law defines “shift” as the number of hours worked and includes a duty-free meal period, as specified.
This bill would revise the definition of “shift” to also include a duty-free rest period, as specified, and would provide that an employee who is not provided a meal period or rest period would be required to receive one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period or rest period is not provided.
The bill also would make technical, nonsubstantive changes to these provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 45127 of the Education Code is amended to read:

45127.
 (a) The workweek of a classified employee, as defined in Section 45103 or 45256, and an employee in a position not requiring certification qualifications who is excluded from classified service pursuant to subdivision (b) of Section 45103 or subdivision (b) of 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 if it is necessary to carry on the business of the district. This section does not 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 not requiring certification.
(b) Notwithstanding 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. This exemption applies only to those classes that 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.
(c) This section applies to school 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).

SEC. 2.

 Section 45128 of the Education Code is amended to read:

45128.
 (a) The governing board of each school district shall provide the extent to which, and establish the method by which, ordered overtime is compensated. The governing 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

(b) For purposes of this section, 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 not requiring certification or for certain classes of classified positions not requiring certification, 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 not requiring certification 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

(c) 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

(d) This section shall apply to school 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. 3.

 Section 45132 of the Education Code is amended to read:

45132.
 (a) Notwithstanding the provisions of Section 45131, a governing board of a school district may establish a 10-hour-per-day, 40-hour, four-consecutive-day workweek for all, or certain classes of its employees, or for employees within a class when, by reason of the work location and duties actually performed by such employees, their services are not required for a workweek of five consecutive days, provided the establishment of such a workweek has the concurrence of the concerned employee, class of employees, or classes of employees as ascertained through the employee organization representing a majority of the concerned employees or class or classes, of employees, as determined by the payroll deduction authorizations for dues in classified employee organizations on file with the district on the last day of the month next preceding the date the governing board action was taken.

Where

(b) Where a governing board has previously established the workweek of not less than 35 hours, it may require the established workweek to be performed in four consecutive days by any class or classes of employees or by employees within a class, when by reason of the work location and duties actually performed by such employees their services are not required for a workweek of five consecutive days, with the concurrence of employee personnel as provided herein in this section.

When

(c) When a four-day workweek is established, the overtime rate shall be paid for all hours worked in excess of the required workday, which shall not exceed 10 hours. Work performed on the fifth, sixth, and seventh days shall 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.

An

(d) An employee working an average workday of five hours or less during a workweek shall, for any work required to be performed on the sixth or seventh day following the commencement of his 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.

This

(e) This section shall apply to school 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. 4.

 Section 45180 of the Education Code is amended to read:

45180.
 For purposes of this article, the following definitions shall apply unless the context indicates otherwise:
(a) “Differential compensation” means either a reduction in the number of hours required to be actually worked or an increase in salary.
(b) (1) “Shift” means the number of hours worked and shall include a the following:
(A) A duty-free meal period of not less than one-half hour for employees working more than six hours, which, in the case of a seven- or eight-hour shift, shall occur approximately at the midpoint of the shift. This subdivision shall not apply to employees working six hours or less, or assigned to a split shift.
(B) A duty-free rest period of 10 minutes for every four hours of work or major fraction thereof for employees working three and one-half hours or more, which shall occur approximately at the midpoint of each four-hour period.
(2) An employee who is not provided a meal period or rest period in accordance with this subdivision shall receive one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period or rest period is not provided.

SEC. 5.

 Section 88026 of the Education Code is amended to read:

88026.
 (a) The workweek of a classified employee, as defined in Section 88033 88003 or Section 88076, and an employee in a nonacademic position who is excluded from the classified service pursuant to Section 88003 or subdivision (b) of Section 88076 shall be 40 hours. The workday shall be eight hours. These provisions do not restrict the extention extension of a regular workday or workweek on an overtime basis when such if it 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 nonacademic positions.

Notwithstanding

(b) 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 that 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

(c) 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. 6.

 Section 88027 of the Education Code is amended to read:

88027.
 (a) 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 governing 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

(b) For purposes of this section, 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 nonacademic positions or for certain classes of classified nonacademic 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 nonacademic 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

(c) 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

(d) 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. 7.

 Section 88040 of the Education Code is amended to read:

88040.
 (a) (1) Notwithstanding Section 88026, the governing board of a community college district may establish the workday and workweek schedules of classified nonacademic employees with the concurrence of the employee organization, or in the absence of an employee organization, the concurrence of the affected employee.
(2) Notwithstanding Section 88027, if the governing board of a community college district establishes a workday or workweek schedule, or both, pursuant to this section, the overtime rate shall be paid for all hours worked in excess of the required workday or a workweek of 40 hours.
(b) This section applies 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. 8.

 Section 88180 of the Education Code is amended to read:

88180.
 For purposes of this article, the following definitions shall apply unless the context indicates otherwise:
(a) “Differential compensation” means either a reduction in the number of hours required to be actually worked or an increase in salary.
(b) (1) “Shift” means the number of hours worked and shall include a the following:
(A) A duty-free meal period of not less than one-half hour for employees working more than six hours, which, in the case of a seven- or eight-hour shift, shall occur approximately at the midpoint of the shift. This subdivision shall not apply to employees working six hours or less, or assigned to a split shift.
(B) A duty-free rest period of 10 minutes for every four hours of work or major fraction thereof for employees working three and one-half hours or more, which shall occur approximately at the midpoint of each four-hour period.
(2) An employee who is not provided a meal period or rest period in accordance with this subdivision shall receive one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal period or rest period is not provided.