The following was supplied by the law firm Sweeney, Mason, Wilson &
Bosomworth (written by Roger M. Mason, Esq.)
On January 1, 2000, Assembly Bill
60 will go into effect reinstating daily overtime for all nonexempt employees.
All employers will be required to pay time and one-half for any hours worked
beyond eight in one day. Consistent with the Federal Fair Labor Standards Act,
any hours worked beyond 40 hours in a workweek must also be paid at time and
one-half. All hours worked beyond 12 in one day must be paid at double time. If
an employee works seven consecutive days, the first eight hours of the seventh
day shall be paid at time and one-half. Any hours beyond eight on the seventh
day must be paid at double time.
As of January 1, 2000, executive, administrative, professional and outside sales employees will temporarily be considered exempt. No later than July I, 2000, the Industrial Welfare Commission must convene a public hearing to adopt or modify regulations establishing the duties which will meet the tests to be exempt from overtime. In the meantime, Wage Orders 1-89 (Manufacturing Industry), 4-89 (Professional, Technical, Clerical, Mechanical, and Similar Occupations), 5-89 (Public Housekeeping Industry), 7-80 (Mercantile Industry), and 9-90 (Transportation Industry) will be reinstated until the effective date of new wage orders issued by the Industrial Welfare Commission on or before July 1, 2000.
In the past, onsite construction,
drilling, logging and mining workers were exempt from California overtime law.
Effective January 1,2000, these exemptions will cease to exist. All onsite
construction workers will be entitled to daily overtime as set forth above. In
addition, the following jobs, previously exempt from overtime, will be entitled
to daily overtime as of January 1, 2000: babysitting performed on a casual
basis, parents, spouse and children of employers, companionship services for
elderly and very ill persons, drivers of trucks with more than two axles and
all trailers used in combinations with them or when coupled with vehicles
exceeding 40 feet in length, drivers of farm labor vehicles, drivers of school
buses and school pupil activity buses, and agricultural employees not covered
by Wage Order 14-80.
The new legislation does not apply
if a collective bargaining agreement meets three qualifications. First, the
agreement must expressly provide for the wages, hours of work, and working
conditions of the employees. Second, the agreement must provide premium wage
rates for all overtime hours worked. Finally, the pay scale for those employees
who would be covered by this bill cannot be less than 130% of the state minimum
wage.
Make-up time can be excepted from
overtime pay under certain circumstances. The employer need not pay the
overtime rate if the employee makes up the time during the same work week.
Also, the employee must not work more than 11 hours on a work day to make up
for any missed time. Further, the employee must sign a written make-up request
for each instance of make-up time. It is important for employers to know that
they may not coerce, solicit, or encourage employees to submit make-up time
requests.
Another exception to this
legislation occurs when the employees propose and vote for an alternative work
week schedule. If two-thirds of the affected employees vote for an alternative
work schedule, then they may work up to 10 hours in a day and 40 hours in a
week without the employer being obligated to pay overtime rates. This vote must
be done by secret ballot. There may be one alternative or a menu of alternative
schedules from which employees may pick. Employees should know that using the
alternative work schedule precludes them from using the make-up time provision
discussed above. If the vote passes, the employer must report this result to
the labor commission within 30 days. Once on the alternative schedule,
employees shall be entitled to overtime for any hours worked beyond the
schedule. Finally, an employer is required to reasonably accommodate employees
who cannot or do not wish to work the alternative work week schedule.
The information provided in this issue of "Legal Notice" is
general in nature and is not intended to answer every question that may arise
under different fact situations and should not be relied on in the place of
professional advice in a given case. If you have specific questions please
contact Roger M. Mason. Copyright 1999
Sweeney, Mason, Wilson & Bosomworth.