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AB-1173 Employment: work hours: holiday season: overtime.(2017-2018)

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Date Published: 02/17/2017 09:00 PM
AB1173:v99#DOCUMENT

Revised  March 28, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1173


Introduced by Assembly Member Harper
(Coauthors: Assembly Members Travis Allen, Lackey, and Mathis)
(Coauthors: Senators Berryhill, Fuller, and Moorlach)

February 17, 2017


An act to amend Section 510 of, and to add Section 511.3 to, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1173, as introduced, Harper. Employment: work hours: holiday season: overtime.
Existing law, with certain exceptions, establishes 8 hours as a day’s work and a 40-hour workweek, and requires payment of prescribed overtime compensation for additional hours worked. Existing law authorizes the adoption by 2/3 of employees in a work unit of alternative workweek schedules providing for workdays no longer than 10 hours within a 40-hour workweek.
This bill would establish an overtime exemption for an employee-selected holiday season flexible work schedule. The exemption would allow during the holiday season, as defined, at the request of an individual nonexempt employee working in the retail industry, and upon employer approval, an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek. The employer would be obligated to pay overtime based on the employee’s regular rate of pay, as prescribed, for all hours worked over 40 hours in a workweek or over 10 hours in a workday, whichever is greater. The bill would establish requirements for the termination of an agreed-upon schedule. The bill would except from its provisions employees covered by collective bargaining and public employees, as specified. The bill would require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt or revise regulations as necessary.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 510 of the Labor Code is amended to read:

510.
 (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) A holiday season employee-selected flexible work schedule adopted pursuant to Section 511.3.

(2)

(3) An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514.

(3)

(4) 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.

SEC. 2.

 Section 511.3 is added to the Labor Code, to read:

511.3.
 (a) As used in this section:
(1) “Holiday season” means the months of November to January, inclusive.
(2) “Retail industry” means ____.
(b) Notwithstanding Section 511 or any other law or order of the Industrial Welfare Commission, during the holiday season, an individual nonexempt employee working in the retail industry may work up to 10 hours per workday without any obligation on the part of the employer to pay an overtime rate of compensation, except as provided in subdivision (c), if the employee requests this schedule in writing and the employer approves the request. This shall be referred to as an overtime exemption for a holiday season employee-selected flexible work schedule.
(c) If a holiday season employee-selected flexible work schedule is adopted pursuant to subdivision (a), the employer shall pay overtime at one and one-half times the employee’s regular rate of pay for all hours worked over 40 hours in a workweek or over 10 hours in a workday, whichever is the greater number of hours. All work performed in excess of 12 hours per workday and in excess of eight hours on a fifth, sixth, or seventh day in the workweek shall be paid at double the employee’s regular rate of pay.
(d) The employer may inform its employees that it is willing to consider an employee request to work a holiday season employee-selected flexible work schedule, but shall not induce a request by promising an employment benefit or threatening an employment detriment.
(e) The employee or employer may discontinue the holiday season employee-selected flexible work schedule at any time by giving written notice to the other party. The request will be effective the first day of the next pay period or the fifth day after notice is given if there are fewer than five days before the start of the next pay period, unless otherwise agreed to by the employer and the employee.
(f) This section does not apply to any employee covered by a valid collective bargaining agreement or employed by the state, a city, county, city and county, district, municipality, or other public, quasi-public, or municipal corporation, or any political subdivision of this state.
(g) This section shall be liberally construed to accomplish its purposes.
(h) (1) The Division of Labor Standards Enforcement shall enforce this section and shall adopt or revise regulations in a manner necessary to conform and implement this section.
(2) This section shall prevail over any inconsistent provisions in any wage order of the Industrial Welfare Commission.

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REVISIONS:
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