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AB-230 Employment: flexible work schedules. (2021-2022)



Current Version: 01/12/21 - Introduced

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AB230:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 230

Introduced by Assembly Member Voepel

January 12, 2021

An act to amend Section 510 of, and to add Section 511.5 to, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 230, as introduced, Voepel. Employment: flexible work schedules.
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 enact the Workplace Flexibility Act of 2021. The bill would permit an individual nonexempt employee to request an employee-selected 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 bill would require that the flexible work schedule contain specified information and the employer’s and the employee’s original signature. The bill would also require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt regulations.
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 of 2021.

SEC. 2.

 The Legislature finds and declares all of the following: (PU 20150AB__103899INT S2 )
(a) Small businesses and their workers suffer from outdated and inefficient workplace and overtime rules that do not allow for sufficient flexibility for employers and workers to schedule their hours of work for mutual benefit. (PU 20150AB__103899INT S2 )
(b) California overtime laws, which are unique in the country, make it difficult for most employers to reach an agreement with an individual worker that would allow a flexible work schedule. (PU 20150AB__103899INT S2 )
(c) Existing law does not permit an employer to allow an individual worker to choose a flexible work schedule of four 10-hour days per week without overtime being paid. (PU 20150AB__103899INT S2 )
(d) As a consequence, millions of California workers do not have the opportunity to take advantage of a flexible work schedule that would benefit the workers and their families. (PU 20150AB__103899INT S2 )
(e) Permitting workers to elect to work four 10-hour days per week without the payment of overtime would allow them to spend much-needed time with their families, lessen traffic congestion on our crowded roads and highways, and would allow workers to spend one day a week on personal matters, such as volunteering at a child’s school, scheduling medical appointments, and attending to other important family matters that often are difficult to schedule with a five-day-per-week, eight-hour-per-day schedule. (PU 20150AB__103899INT S2 )
(f) It is the intent of the Legislature in enacting the Workplace Flexibility Act of 2021 to protect workers as follows: (PU 20150AB__103899INT S2 )
(1) A worker may not be forced to work more than eight hours in a day without receiving overtime, but, instead, they may request a flexible work schedule of up to four 10-hour days per week and an employer may agree to this schedule without having to pay overtime for the 9th and 10th hours worked per day in that schedule. (PU 20150AB__103899INT S2 )
(2) An employer will be required to pay overtime rates after 10 work hours in a day for workers who have chosen a flexible schedule pursuant to this act. (PU 20150AB__103899INT S2 )
(3) An employer will be required to pay double normal pay after 12 work hours in a day for a worker who has chosen a flexible schedule under this act. (PU 20150AB__103899INT S2 )
(4) Any worker, including one who chooses a flexible schedule under this act, will receive overtime for any hours worked over 40 hours in a single week. (PU 20150AB__103899INT S2 )
(g) Workplaces that are unionized already allow workers to choose to work four 10-hour days; however, it is virtually impossible for workers of nonunionized workplaces to enjoy this benefit. (PU 20150AB__103899INT S2 )
(h) No compelling public policy reason exists for this discrepancy in the flexibility of work schedules between unionized and nonunionized workers. (PU 20150AB__103899INT S2 )

SEC. 3.

 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. (PU 20150AB__103899INT S3 )

(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. 4.

 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 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 flexible work schedule. The flexible work schedule shall include all of the following: (PU 20150AB__103899INT S4 )
(1) A statement that the employer and employee participating in the 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. (PU 20150AB__103899INT S4 )
(2) A description of the flexible work hour plan. (PU 20150AB__103899INT S4 )
(3) A statement that the flexible work hour plan has not been made a condition of employment and that participation in the plan is voluntary. (PU 20150AB__103899INT S4 )
(4) The original signature of the employee and the employer or authorized representative. (PU 20150AB__103899INT S4 )
(b) If an employee-selected 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 eight hours on a fifth, sixth, or seventh day in the workweek shall be paid at double the employee’s regular rate of pay. (PU 20150AB__103899INT S4 )
(c) An employer may inform its employees that it is willing to consider employee requests to work an employee-selected flexible work schedule, but shall not induce a request by promising an employment benefit or threatening an employment detriment. (PU 20150AB__103899INT S4 )
(d) An employee or employer may discontinue an 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. (PU 20150AB__103899INT S4 )
(e) 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. (PU 20150AB__103899INT S4 )
(f) This section shall be liberally construed to accomplish its purposes. (PU 20150AB__103899INT S4 )
(g) (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. (PU 20150AB__103899INT S4 )
(2) This section shall prevail over any inconsistent provisions in any wage order of the Industrial Welfare Commission. (PU 20150AB__103899INT S4 )