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AB-1028 Telework Flexibility Act. (2021-2022)

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Date Published: 02/18/2021 09:00 PM
AB1028:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1028


Introduced by Assembly Members Seyarto and Bigelow

February 18, 2021


An act to amend Section 510 of, to add Sections 511.5 and 2699.7 to, and to add Part 4.6 (commencing with Section 1460) to Division 2 of, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1028, as introduced, Seyarto. Telework Flexibility Act.
Existing law, with various exceptions, generally establishes 8 hours as a day’s work and a 40-hour workweek and requires the payment of prescribed overtime compensation for additional hours worked.
This bill would permit an individual nonexempt employee to request an employee-selected remote work flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek and would allow an employer to implement this schedule without the obligation to pay overtime compensation for those additional hours in a workday, except as specified. The authorization would apply only if an employee is working remotely and not under the physical control of the employer. The bill would require that the flexible work schedule contain specified information and the employer’s and the employee’s original signatures. The bill would except split shift premiums from application to the work of employees who are working an employee-selected remote work flexible work schedule. The bill would require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt regulations.
Existing law regulates the wages, hours, and working conditions of any worker employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise, except as specified.
This bill would authorize any nonexempt employee working from home who is not under the physical control of the employer to choose when to take any meal or rest period during the workday, if the employer has not already scheduled a meal or rest period within the requirements of the law. The bill would require an employer to notify the employee of this right one time, when the employee begins working from home and if the employer fails to provide this notification, to pay only one additional hour of pay for each day that the employer fails to provide this notice.
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 Labor Code Private Attorneys General Act of 2004 for violations of provisions requiring the employer to provide meal and rest breaks if the employee engaged in remote work, as specified. Among other things, the bill would require that the alleged violations occurred in a period beginning with March 19, 2020, and lasting until January 1, 2022, or until the declared end of the COVID-19 state of emergency issued by the Governor, whichever is earlier.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 This act shall be known, and may be cited, as the Workplace Flexibility Act.

SEC. 2.

 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) An employee-selected flexible work schedule adopted pursuant to Section 511.5.

(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. 3.

 Section 511.5 is added to the Labor Code, to read:

511.5.
 (a) Notwithstanding Section 510 or any other law or order of the Industrial Welfare Commission, an individual nonexempt employee who is working remotely and who is not under the physical control of the employer 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 (b), if the employee requests this schedule in writing and the employer approves the request. This shall be referred to as an overtime exemption for an employee-selected remote work flexible work schedule. The remote work flexible work schedule shall include all of the following:
(1) A statement that the employer and employee participating in the remote work flexible work hour plan understand that work performed in excess of 10 hours in a day or in excess of 40 hours in a week is required to be compensated at the rate of one and one-half times the regular rate of pay.
(2) A description of the remote work flexible work hour plan.
(3) A statement that the remote work flexible work hour plan has not been made a condition of employment and that participation in the plan is voluntary.
(4) The original signature of the employee and the employer or authorized representative.
(b) If an employee-selected remote work flexible work schedule is adopted, 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 8 hours on a fifth, sixth, or seventh day in the workweek shall be paid at double the employee’s regular rate of pay.
(c) Split shift premiums that may otherwise be applicable to the work of employees who are working an employee-selected remote work flexible work schedule shall not apply.
(d) An employer may inform its employees that it is willing to consider employee requests to work an employee-selected remote work flexible work schedule, but shall not induce a request by promising an employment benefit or threatening an employment detriment.
(e) An employee or employer may discontinue an employee-selected remote work 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 to and implement this section.
(2) This section shall prevail over any inconsistent provisions in any wage order of the Industrial Welfare Commission.

SEC. 4.

 Part 4.6 (commencing with Section 1460) is added to Division 2 of the Labor Code, to read:

PART 4.6. Workplace Flexibility

1460.
 (a) Notwithstanding Section 512, any nonexempt employee who works from home and is not under the physical control of the employer may choose when to take any meal period or rest period during the workday, if the employer has not already scheduled a meal or rest period within the requirements of the law.
(b) An employer shall notify the employee of the employee’s right to take a meal or rest period consistently with other provisions of this code and wage orders of the Industrial Welfare Commission, except that an employer is required to do so only once, when the employee begins working from home. An employer shall pay one additional hour of pay for each day that the employer fails to provide the one-time notification to an employee working from home.
(c) An employer shall not retaliate against any employee who exercises any rights pursuant to this section.
(d) Except for the timing of when meal periods and rest periods occur as set forth in subdivision (a), this section does not supersede the responsibility of employers to relieve their employees of all duty, to relinquish control over their activities, to permit them a reasonable opportunity to take uninterrupted breaks, and to not impede or discourage them from doing so, as set forth in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.

SEC. 5.

 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 the remote work, or pursuant to an agreement with the employer.
(b) The alleged violations occurred in the period beginning with March 19, 2020, and lasting until January 1, 2022, or until the declared end of the COVID-19 state of emergency issued by the Governor, whichever is earlier.
(c) The alleged violations 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.
(d) The aggrieved employee does not reside on property owned by the employer or provided by the employer to the employee.