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SB-729 Meal and rest breaks: remote work. (2019-2020)

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Date Published: 08/25/2020 09:00 PM
SB729:v95#DOCUMENT

Amended  IN  Assembly  August 25, 2020
Amended  IN  Assembly  August 24, 2020
Amended  IN  Assembly  June 25, 2020
Amended  IN  Senate  March 27, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 729


Introduced by Senator Portantino
(Coauthors: Assembly Members Carrillo and Gonzalez)

February 22, 2019


An act to add Section 113963 to the Health and Safety Code, and to add Section 248 to the Labor Code, relating to food sector workers. An act to add Section 2699.7 to the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


SB 729, as amended, Portantino. Food sector workers: COVID-19 supplemental paid sick leave: handwashing. Meal and rest breaks: remote work.
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee on behalf of the employee and other current or former employees to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency for the violation of certain provisions affecting employees.
This bill would prohibit an employee from recovering civil penalties from an employer under the act for violations of provisions requiring the employer to provide meal and rest breaks, if the employee engaged in remote work as specified.

Existing law, the California Retail Food Code, establishes uniform health and sanitation standards for retail food facilities and delegates the enforcement of those standards to the State Department of Public Health and local health agencies. Existing law requires food employees to keep their hands and exposed portions of their arms clean, washing as specified, and regulates the provision of handwashing facilities. A violation of these provisions is a misdemeanor, punishable as prescribed.

This bill would require a food employee working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed. By revising the standards enforced by local health agencies and changing the scope of an existing crime, the bill would impose a state-mandated local program.

Existing law, the Healthy Workplaces, Healthy Families Act of 2014, entitles an employee who works in California for the same employer for 30 or more days within a year from the commencement of employment to paid sick days. Under existing law, an employee accrues paid sick days at a rate of not less than one hour per every 30 hours worked, subject to certain use, accrual, and yearly carryover limitations. Existing law authorizes an employer to use a different accrual method from that described above, provided that the accrual is on a regular basis so that the employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year or in each 12-month period. Under existing law, an employer is not required to provide additional paid sick leave if the employer has a paid leave policy or paid time off policy and makes available an amount of leave to employees under the same conditions and the policy satisfies the accrual, carryover, and use requirements described above. Existing law requires an employer, in each workplace of the employer, to display a poster in a conspicuous place containing specified information on paid sick days. Existing law requires the Labor Commissioner to create a poster containing this information and make it available to employers. Existing law requires the Labor Commissioner to enforce the act and provides for procedures, including investigation and hearing, and for remedies and penalties.

This bill would establish COVID-19 supplemental paid sick leave for food sector workers for the duration of any stay-at-home order, as defined, instituted either by the state government or a local government. The bill would require a hiring entity to provide a number of hours of COVID-19 supplemental paid sick leave, determined as prescribed, to each food sector worker who performs work for or through the hiring entity if that food sector worker is unable to work due to any of specified reasons relating to COVID-19. The bill would authorize a food sector worker to determine how many hours of this leave to use, up to the total number of hours to which the worker is entitled. Under the bill, the rate of compensation would be the highest of the worker’s regular rate of pay in the last pay period, the state minimum wage, or an applicable local minimum wage, up to daily and aggregate total maximum payments. The bill would exempt a hiring entity from being required to provide the COVID-19 supplemental paid sick leave if the hiring entity provides the relevant food sector worker, as of the effective date of the bill’s provisions, with a specified other supplemental benefit. The bill would define terms for these purposes.

The bill would require the Labor Commissioner to enforce the bill provisions as if its leave provisions were paid sick days under specific provisions of existing law and would authorize a food sector worker to file a complaint with the Labor Commissioner. For purposes of enforcement, the bill would deem all food sector workers to be employees and any hiring entity to be an employer.

The bill would require the Labor Commissioner, by February 1, 2021, to make publicly available a model notice for purposes of the posting requirements under existing law. The bill would permit notice by electronic means in lieu of posting, for purposes of COVID-19 supplemental paid sick leave only, if a hiring entity's food sector workers do not frequent a workplace.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

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


SECTION 1.

 Section 2699.7 is added to the Labor Code, to read:

2699.7.
 An employee shall not recover civil penalties from an employer under Section 2699 for violations of any provision of either this code or a wage order of the Industrial Welfare Commission requiring the employer to provide meal and rest breaks, if all of the following conditions are satisfied:
(a) On or after March 19, 2020, for reasons related to the COVID-19 pandemic, the employee began to work from the employee’s home or other place of residence at the employer’s direction, under an employer policy permitting such remote work, or pursuant to an agreement with the employer.
(b) The alleged violations occurred in the period beginning with March 19, 2020, and ending December 31, 2022, and are for meal or rest breaks the employer failed to provide to an employee while that employee was working for the employer from home or other place of residence.
(c) The aggrieved employee does not reside on property owned by the employer or provided by the employer to the employee.

SECTION 1.Section 113963 is added to the Health and Safety Code, to read:
113963.

Consistent with Section 113952, a food employee working in any food facility shall be permitted to wash their hands every 30 minutes and additionally as needed.

SEC. 2.Section 248 is added to the Labor Code, to read:
248.

(a)As used in this section:

(1)“COVID-19 supplemental paid sick leave” means supplemental paid sick leave provided pursuant to this section.

(2)“Food sector worker” means any person who satisfies all of the following criteria:

(A)The person satisfies one or more of the following criteria:

(i)The person works in an industry or occupation defined in paragraph (B) of Section 2 of IWC Wage Order 3-2001, paragraph (H) of Section 2 of IWC Wage Order 8-2001, paragraph (H) of Section 2 of IWC Wage Order 13-2001, or paragraph (D) of Section 2 of IWC Wage Order 14-2001.

(ii)The person works for a hiring entity that operates a food facility, as defined in Section 113789 of the Health and Safety Code.

(iii)The person delivers food from a food facility, as defined in Section 113789 of the Health and Safety Code, for or through a hiring entity.

(B)The person is exempt, as an essential critical infrastructure worker, from the requirements imposed by Executive Order N-33-20 or any other statewide stay-at-home order.

(C)The person leaves the person’s home or other place of residence to perform work for or through the person’s hiring entity.

(3)“Hiring entity” means a private sole proprietorship or any kind of private entity whatsoever, including, but not limited to, any kind of corporation, partnership, limited liability company, limited liability partnership, or any other kind of business enterprise, and specifically including, but not limited to, any delivery network company, as defined in Section 6041.5 of the Revenue and Taxation Code, and any transportation network company, as defined in Section 5431 of the Public Utilities Code, that has 500 or more employees in the United States. For purposes of this paragraph, Section 826.40(a)(1) and (2) of Title 29 of the Code of Federal Regulations shall be used to determine the number of employees that the hiring entity employs.

(4)“IWC Wage Order” means a wage order of the Industrial Wage Commission.

(5)“Stay-at-home order” means an order instituted either by the state government or a local government that is both of the following:

(A)Issued as part of the state government or a local government’s Pandemic Roadmap and restricts the operation of businesses or public entities in response to the COVID-19 pandemic.

(B)Issued prior to the completion of stage four of the Pandemic Roadmap, which is the end of the stay-at-home order.

(b)A food sector worker shall be entitled to COVID-19 supplemental paid sick leave as follows:

(1)A hiring entity shall provide COVID-19 supplemental paid sick leave to each food sector worker who performs work for or through the hiring entity if that food sector worker is unable to work due to any of the following reasons:

(A)The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.

(B)The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.

(C)The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

(2)A food sector worker shall be entitled to the following number of hours of COVID-19 supplemental paid sick leave:

(A)A food sector worker is entitled to 80 hours of COVID-19 supplemental paid sick leave, if the food sector worker satisfies either of the following criteria:

(i)The hiring entity considers the food sector worker to work “full-time.”

(ii)The food sector worker worked or was scheduled to work, on average, at least 40 hours per week for the hiring entity in the two weeks preceding the date the food sector worker took COVID-19 supplemental paid sick leave.

(B)A food sector worker who does not satisfy either of the criteria in subparagraph (A) is entitled to an amount of COVID-19 supplemental paid sick leave as follows:

(i)If the food sector worker has a normal weekly schedule, the total number of hours the food sector worker is normally scheduled to work for or through a hiring entity over two weeks.

(ii)If the food sector worker works a variable number of hours, 14 times the average number of hours the food sector worker worked each day for or through the hiring entity in the six months preceding the date the food sector worker took COVID-19 supplemental paid sick leave. If the food sector worker has worked for the hiring entity fewer than six months, this calculation shall instead be made over the entire period the food sector worker has worked for the hiring entity.

(C)The total number of hours of COVID-19 supplemental paid sick leave to which a food sector worker is entitled pursuant to subparagraph (A) or (B) shall be in addition to any paid sick leave that may be available to the food sector worker under Section 246.

(D)A food sector worker may determine how many hours of COVID-19 supplemental paid sick leave to use, up to the total number of hours to which the food sector worker is entitled pursuant to subparagraph (A) or (B). The hiring entity shall make COVID-19 supplemental paid sick leave available for immediate use by the food sector worker, upon the oral or written request of the worker to the hiring entity.

(E)A hiring entity is not required to provide a food sector worker more than the total number of hours of COVID-19 supplemental paid sick leave to which the food sector worker is entitled pursuant to subparagraph (A) or (B) above.

(3)(A)Each hour of COVID-19 supplemental paid sick leave shall be compensated at a rate equal to the highest of the following:

(i)The food sector worker’s regular rate of pay for the food sector worker’s last pay period.

(ii)The state minimum wage.

(iii)The local minimum wage to which the food sector worker is entitled.

(B)Notwithstanding subparagraph (A), a hiring entity shall not be required to pay more than five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate to a food sector worker for COVID-19 supplemental paid sick leave taken by the worker.

(4)A hiring entity shall not require a food sector worker to use any other paid or unpaid leave, paid time off, or vacation time provided by the hiring entity to the food sector worker before the food sector worker uses COVID-19 supplemental paid sick leave or in lieu of COVID-19 supplemental paid sick leave.

(c)Notwithstanding subdivision (b), a hiring entity shall not be required to provide a food sector worker with COVID-19 supplemental paid sick leave if the hiring entity provides the relevant food sector worker, as of the effective date of the act adding this section, with a supplemental benefit, such as paid leave, that is payable for the reasons listed in subdivision (b) and that would compensate the food sector worker in an amount equal to or greater than the amount the food sector worker would be compensated through taking COVID-19 supplemental paid sick leave to which the food sector worker would otherwise be entitled under this section.

(d)(1)In addition to other remedies as may be provided by the laws of this state or its subdivisions, including, but not limited to, the remedies available to redress any unlawful business practice under Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code, the Labor Commissioner shall enforce this section. For purposes of such enforcement and to implement COVID-19 supplemental paid sick leave, this article shall apply as follows:

(A)The Labor Commissioner shall enforce this section as if COVID-19 supplemental paid sick leave constitutes “paid sick days” under subdivision (n) of Section 246, subdivisions (b) and (c) of Section 246.5, Section 247, Section 247.5, and Section 248.5.

(B)A food sector worker may file a complaint with the Labor Commissioner pursuant to Section 98 or 98.7.

(C)Section 249 applies to COVID-19 supplemental paid sick leave.

(D)By February 1, 2021, the Labor Commissioner shall make publicly available a model notice for purposes of Section 247. Only for purposes of COVID-19 supplemental paid sick leave, if a hiring entity’s food sector workers do not frequent a workplace, the hiring entity may satisfy the notice requirement of subdivision (a) of Section 247 by disseminating notice through electronic means, such as by electronic mail.

(2)For purposes of sections of this code cited in subparagraphs (A) to (C), inclusive, of paragraph (1), in construing this section all food sector workers shall be considered employees and any hiring entity shall be considered an employer.

(e)The eligibility, leave hours, and compensation of a food sector worker under this section shall be determined without regard to any leave benefit obtained by the worker pursuant to an order under the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code) relating to the COVID-19 pandemic.

(f)The requirement to provide COVID-19 supplemental paid sick leave as set forth in this section shall be effective for the duration of any stay-at-home order instituted either by the state government or a local government relating to COVID-19, except that a food sector worker taking COVID-19 supplemental paid sick leave at the time of the expiration of any such proclamation shall be permitted to take the full amount of COVID-19 supplemental paid sick leave to which that food sector worker otherwise would have been entitled under this section.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.