California Labor Defense Lawyer & Attorney : Van Vleck Turner & Zaller Law Firm : Employment Litigators : Serving Los Angeles, San Diego, San Jose

The United States Senate voted 95-0 to pass the Genetic Information Nondiscrimination Act yesterday. That bill, which President Bush is expected to sign, would bar insurers from asking or using genetic information to make a decision about coverage or to set premiums. Under the bill, insurers would be prohibited from raising premiums for a group because one or more members have genes that would predispose them to an illness. That provision is important for small employers that offer health coverage because a sudden increase in rates can lead to the cancelation of coverage altogether.

Equally significant for employers is the fact that the bill prohibits employers, unions and employment agencies from requesting or using genetic information for hiring, promotions, assignments or firing. According to Sharon Terry, president of the Genetic Alliance, “genetics will be protected just like race, religion and gender.” Senator Snow (R-Maine) agreed stating that “we are on the threshold of a new era, because for the first time we act to prevent discrimination before it takes hold. We are taking a stand that, as we look to the future, genetic discrimination will not be allowed to flourish, to take root.” For more information on this bill click here.

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The Senate recently failed to break a Republican-led filibuster currently blocking the Fair Pay Restoration Act. The Fair Pay Act would make it easier for people to sue over pay discrimination and is in response to the 2007 Supreme Court ruling that limited such cases. In that case, the Supreme Court ruled that unequal pay claims must be filed within 180 days of the first discriminatory paycheck instead of when the employee discovers the discrepancy. The deadline is specified in Equal Opportunity Commission guidelines and it "protects employers from the burden of defending claims arising from employment decisions long past" Justice Samuel Alito wrote for the majority in the 5-4 decision.

The bill currently under consideration would have "reset the clock" with every paycheck. In support of this provision, advocates argue that each paycheck is a discriminatory act while opponents contend that the provision was unworkable. For example, the bill -- as currently drafted -- would arguably allow retirees drawing pensions to sue their old companies over allegations of discrimination that occurred several years ago.

Opponents further assert that allowing employees to assert claims going that far back will lead to evidentiary problems because evidence supporting decade-old claims will likely be difficult to obtain.

Although the bill is stalled now, supporters promise to continue their efforts even though President Bush is likely to veto the bill should it pass both the House and Senate. For more information on why the supporters of the Fair Pay Act believe it is necessary, click here. Click here for additional reasons opponents believe the bill is unnecessary.

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The Assembly Labor and Employment Committee passed the Healthy Families, Healthy Workplaces Act today by a vote of 6-2.

The bill, introduced by Assemblywoman Fiona Ma (D-San Francisco) in February, AB 2716, would allow workers to earn paid sick days that can be used to recover from illness, care for a sick family member, or recover from domestic violence or sexual assault.

The next step for the bill is the Assembly Judiciary Committee on Tuesday, April 15.  If passed by the legislature and signed into law, California would be the first state in the nation to require employers to provide paid sick days.  Click here for a prior post discussing the implications of AB 2716 on California employers. 

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Assemblywoman Fiona Ma (D-San Francisco) introduced bill AB 2716 last week.  If passed, would provide paid sick leave to any employee who works for seven or more days each year - the only such law in the United States.  Employees would accrue sick time at the rate of one hour for every 30 hours worked.  Sick time would carry over from year to year. 

There are no exemptions for small businesses, which are defined in the bill as an employer who employs 10 or fewer employees during 20 or more calendar workweeks in the current or preceding calendar year.  So this means if you have one employee - a housekeeper for example - you would need to provide sick leave. 

The bill proposes that an employee would be entitled to use accrued sick time beginning on the 90th calendar day of employment.   Also, medium-to-large employers could limit annual paid sick days to nine days and small employers to five days. 

The sick leave would be available for use to care for a sick family member or to recover from domestic violence or sexual assault. Employers violating the law could face fines of up to $250 per incident.

What is the penalty for violations?  The bill proposes:

 [T]he payment of an additional sum as liquidated damages in the amount of fifty dollars ($50) to each employee or person whose rights under this article were violated for each day or portion thereof that the violation occurred or continued, plus, if the employer has unlawfully withheld paid sick leave to an employee, the dollar amount of paid sick leave withheld from the employee multiplied by three; or two hundred fifty dollars ($250), whichever amount is greater; and reinstatement in employment or injunctive relief; and further shall be awarded reasonable attorney's fees and costs.

So let's assume you employ 100 people.  For whatever reason there is a mistake and for 30 days it goes unnoticed and your company does not provide accrue sick leave as required under the bill.  This means you are on the hook for $150,000 ($50 x 100 employees x 30 days) and if you are deemed to have "unlawfully withheld" paid sick leave you owe another minimum $25,000 ($250 x 100 employees) for a grand total of $175,000.  Don't forget you would also be required to pay the plaintiff's attorney's fees and costs for bringing the lawsuit too. 

I am often asked, "What is the biggest area of liability facing California employers?"  The answer has easily been meal and rest and related wage and hour class actions.  However, if this bill becomes law, plaintiff's lawyers will have their next lawsuit of choice. 

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Below is a brief summary of some of the more relevant employment laws taking effect in 2008 and a summary of the Supreme Court cases that will have great ramifications for employers in 2008.

Minimum Wage Increase
As written about previously here, the California minimum wage will be increased to $8 per hour starting January 1, 2008. Employers will also have to re-examine the pay rates for their exempt employees. One of the items California law requires for an employee to qualify as exempt (which means they are not entitled to overtime) the employee must earn at least two times minimum wage, base on a forty hour workweek. Therefore, the increase in the minimum wage means that the minimum salary for exempt employees will increase from to $31,200 in 2007 to $33,280 as of January 1, 2008.

In addition, employers should also review their pay rates for commissioned inside sales employees. For an employee to qualify as a commissioned inside sales employees who are exempt from overtime under Wage Order Nos. 4 and 7, the employee must earn at least 1.5 times the minimum wage for all hours of work to maintain the exemption. The employee must meet other requirements to qualify for this exemption, but the salary level is a bright-line rule that must be met in order for the exemption to apply.

IRS Mileage Rate Increase and Expense Reimbursement
The IRS announced the standard business mileage rate for 2008 is 50.5 cents per mile. California's DLSE has maintained that employers are required to reimburse employees for business miles driven at the IRS mileage rate in order to comply with California Labor Code section 2802. However, this year, the California Supreme Court ruled in Gattuso v. Harte-Hanks (as discussed here) that the reimbursement rate does not have to be the IRS mileage rate but can be negotiated by parties as long as it fully reimburses the employee. The Gattuso Court stated:

We agree that, as with other terms and conditions of employment, a mileage rate for automobile expense reimbursement may be a subject of negotiation and agreement between employer and employee. Under section 2804, however, any agreement made by the employee is null and void insofar as it waives the employee’s rights to full expense reimbursement under section 2802.

California Computer Professionals Hourly Rate Decreased
California Labor Code section 515.5 provides that computer programmers who perform specific computer-related duties are exempt from the overtime requirements in Labor Code section 510. In addition to meeting a duties test, computer professionals must earn a statutorily specified minimum pay rate to be considered exempt. The Division of Labor Statistics and Research revised the hourly rate downward for 2008 to $36.00 per hour or $74,880.00 per year.

Employee Social Security Numbers
California Labor Code section 226(a) was amended to provide greater security against identify theft. Beginning January 1, 2008, employers may ONLY list the employee’s last four digits of an employee’s Social Security Number (or alternatively use the employee’s identification number) on the wage statements provided to employees.

Unpaid Leave for Military Spouses
Governor Schwarzenegger signed California Assembly Bill (AB) 392 into law. The bill creates a new leave of absence right for spouses of military personnel while those personnel are on a leave of absence from deployment.
Specifically, the military spouse law provides that:

• Employers with 25 or more employees in the United States to allow eligible employees to take up to 10-days off from work, on an unpaid basis, when his/her spouse is on leave from deployment during a period of military conflict;
• Eligible employees are defined as employees who work at least an average of 20 hours per week and whose spouse is a member of the United States Armed Forces, National Guard, or Army Reserve on active duty in an area of military conflict;
• Employees must provide notice to the employer within 2 business days of receiving official notice that his/her spouse will be on a leave from deployment.

Hands Free Devices Required For Cell Phones While Driving
Bill SB 1613 makes it illegal as of  July 1, 2008, to drive a motor vehicle while using a wireless telephone, unless that telephone is designed and configured to allow hands-free listening and talking operation, and is used in that manner while driving. This offense would be punishable by a base fine of $20 for a first offense and $50 for each subsequent offense.

Supreme Court Cases to Watch in 2008:

AMALGAMATED TRANSIT UNION v. S.C. (FIRST TRANSIT, INC.)
This case presents the following issues: (1) Does a worker's assignment to the worker's union of a cause of action for meal and rest period violations carry with it the worker's right to sue in a representative capacity under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, sec. 2698 et seq.) or the Unfair Competition Law (Bus. & Prof. Code, sec. 17200 et seq.)? (2) Does Business and Professions Code section 17203, as amended by Proposition 64, which provides that representative claims may be brought only if the injured claimant "complies with Section 382 of the Code of Civil Procedure," require that private representative claims meet the procedural requirements applicable to class action lawsuits?

EDWARDS v. ARTHUR ANDERSEN, LLP
This case presents the following issues: (1) Is a non-competition agreement between an employer and an employee that prohibits the employee from performing services for former clients invalid under Business and Professions Code section 16600, unless it falls within the statutory or judicially-created trade secrets exceptions to the statute? (2) Does a contract provision releasing "any and all" claims the employee might have against the employer encompass non-waivable statutory protections, such as the employee indemnity protection of Labor Code section 2802?

HARRIS v. S.C. (LIBERTY MUTUAL INSURANCE)
Case Status: review granted/brief due Issues: Petition for review after the Court of Appeal granted and denied petitions for peremptory writ of mandate. This case presents the following issue: Do claims adjusters employed by insurance companies fall within the administrative exemption (Cal. Code Regs, tit. 8, section 11040) to the requirement that employees are entitled to overtime compensation?

JONES v. LODGE AT TORREY PINES PARTNERSHIP
Case Status: submitted/opinion due Issues: Petition for review after the Court of Appeal reversed a judgment notwithstanding the verdict and an order granting a new trial in a civil action.
The court limited review to the following issue: May an individual be held personally liable for retaliation under the California Fair Employment and Housing Act (Gov. Code section 12900 et seq.)?

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The Golden Gate Restaurant Association (GGRA) challenged certain provisions of the newly enacted San Francisco Health Care Security Ordinance, contending that they are preempted by the federal Employee Retirement Income Security Act of 1974 (“ERISA”). Part of the Ordinance was scheduled to go into effect on January 1, 2008. On December 26, 2007, the district court handed the GGRA a win by granting summary judgment in favor for the GGRA and placed a hold on the implementation and enforcement of the disputed provisions of the Ordinance.

However, Defendant City and County of San Francisco and Intervernor labor unions quickly appealed the judgment of the district court. They asked the appellate court to stay the judgment of the district court, thereby allowing the Ordinance to go into effect pending a final decision on the merits of the appeal. On January 9, 2008, in handing San Francisco’s businesses a serious blow, the appellate court agreed with the City and the labor unions and granted a stay of the district court’s judgment, therefore allowing the Ordinance to go into effect. The appellate court’s decision can be read here.

The court stated, “It is clear that otherwise avoidable human suffering, illness, and possibly death will result if a stay is denied.” In making this ruling, the court had to address whether the Golden Gate Restaurant Association would likely prevail on the merits of their case, and found that the city’s arguments in favor of implementing the Ordinate have a “strong likelihood of success on the merits.”

In conclusion, the court stated:

There may be better ways to provide health care than to require private employers to foot the bill. But our task is a narrow one, and it is beyond our province to evaluate the wisdom of the Ordinance now before us. We are asked only whether we should stay the judgment of the district court pending resolution of the appeal on the merits. We conclude that the City and Intervenors have a probability, even a strong likelihood, of success in their argument that the Ordinance is not preempted by ERISA. We further conclude that the balance of hardships tips sharply in favor of the City and the Intervenors. Finally, we conclude that the public interest will be served by a stay. We therefore order that the district court’s judgment be stayed pending resolution of the appeal.

Therefore, employers in San Francisco should ensure that they are taking steps to comply with the new law.   Employers should visit the website established by the City to learn about the requirements of the Ordinance: Healthy San Francisco. 

Also, the text of the Ordinance can be read here.

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The House of Representatives recently passed a $516 billion omnibus spending measure that addresses a number of issues, including the funding of various Cabinet departments and the funding of U.S. troops in Afghanistan. In passing the omnibus bill – which President Bush is expected to eventually sign – Democratic lawmakers were successful in blocking an amendment that would have barred the government from suing employers who try to enforce English only workplace rules.

Republican lawmakers proposed the amendment, in response to the EEOC’s recent decision to sue the Salvation Army for firing two Hispanic after they did not learn English within one-year. The EEOC’s suit claims that the terminated employees suffered “emotional pain, humiliation, and embarrassment” as a result of the Salvation Army’s English only policy.

In addition, a provision that would have barred the Labor Department from enforcing new financial reporting requirements on various unions was also jettisoned from the bill. Union members are currently required to fill out a two page form certifying their personal financial dealings with any company represented by their union. Under the new rules being promulgated by the Bush Administration, employees would be required to submit expanded information on their finances. Unions claim the new rules are invasive, while the Labor Department says they will “enhance union integrity” by strengthening conflict-of-interest reporting. Click here for a summary of omnibus bill.

Stay tuned for new developments as the spending bill works its way through the Senate and eventually to President Bush’s desk.

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The IRS announced the standard business mileage rate for 2008 is 50.5 cents per mile.  The IRS posted the following on its website yesterday:

The Internal Revenue Service today issued the 2008 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Beginning Jan. 1, 2008, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

* 50.5 cents per mile for business miles driven;
* 19 cents per mile driven for medical or moving purposes; and
* 14 cents per mile driven in service of charitable organizations.

The new rate for business miles compares to a rate of 48.5 cents per mile for 2007. The new rate for medical and moving purposes compares to 20 cents in 2007. The rate for miles driven in service of charitable organizations has remained the same.

California's DLSE has maintained that employers are required to reimburse employees for business miles driven at the IRS mileage rate in order to comply with California Labor Code section 2802.  However, this year, the California Supreme Court ruled in Gattuso v. Harte-Hanks (as discussed here) that the reimbursement rate does not have the be the IRS mileage rate but can be negotiated by parties as long as it fully reimburses the employee. The Court stated:

We agree that, as with other terms and conditions of employment, a mileage rate for automobile expense reimbursement may be a subject of negotiation and agreement between employer and employee. Under section 2804, however, any agreement made by the employee is null and void insofar as it waives the employee’s rights to full expense reimbursement under section 2802.

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The Department of Homeland Security (DHS) announced last Friday that it will not be issuing "no-match" letters for the remainder of the year.  The reasons for staying the process of sending out the letters is due to the recent court decision blocking new regulations proposed by the DHS.  The proposed regulations would have required employers to terminate employees who could not resolve a Social Security number mismatch within 90 days. 

We previously posted about the proposed regulations here. 

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The House of Representatives passed the Employment Non-Discrimination Act (ENDA) yesterday by a vote of 235 to 184. As stated in a previous post here, ENDA would ban employment discrimination based on an individual's sexual orientation although the version of the Bill passed by the House, H.R. 3685, does not include protections for transgendered individuals. The lead sponsor of ENDA, Representative Barney Frank (D-Mass), had originally introduced a Bill containing language explicitly including protections for transgendered individuals, however, later abandoned it due to bi-partisan opposition.

Below is the speech Rep. Frank gave in support of ENDA from the House floor yesterday:

Senator Edward Kennedy (D-Mass) announced he is planning to introduce ENDA in the Senate in the near future. Senator Kennedy has not indicated whether his version of ENDA will include the gender-identity provisions that causes so much controversy in the House.

Regardless of which version is introduced in the Senate, ENDA will almost certainly not become law as President Bush has indicated that he will veto either version of ENDA.

Even in the unlikely event that ENDA would become law, it would have little impact on California employers as discrimination based on an employee's sexual orientation is already prohibited. Click here for a DFEH publication briefly describing an employer's obligations under California law.

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Governor Schwarzenegger recently signed California Assembly Bill (AB) 392 into law. That bill creates a new leave of absence right for spouses of military personnel while those personnel are on a leave of absence from deployment.

Specifically, the military spouse law provides that:

• Employers with 25 or more employees in the United States to allow eligible employees to take up to 10-days off from work, on an unpaid basis, when his/her spouse is on leave from deployment during a period of military conflict;
  

• Eligible employees are defined as employees who work at least an average of 20 hours per week and whose spouse is a member of the United States Armed Forces, National Guard, or Army Reserve on active duty in an area of military conflict;
  

• Employees must provide notice to the employer within 2 business days of receiving official notice that his/her spouse will be on a leave from deployment.
  

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California employers should breath a sigh of relief as Governor Schwarzenegger vetoed three bills that provided for expanded leave rights under California law. 

Two of the bills vetoed by the Governor - AB537 and SB727 - proposed to expanded both the unpaid and paid leave programs to include care for a sibling, mother- or father-in-law, grandparent or grandchild.

The third bill vetoed, SB836 (previously discussed here), would have prohibited employment discrimination on the basis of family responsibilities such as caring for a sick relative.

Schwarzenegger said the bills would have increased confusion about leave requirements, confusion that already results in many lawsuits:

California has the strongest employment leave and workplace protection laws in the country...While these laws have been enacted with the best of intentions, they have also caused much confusion.... Instead of expanding the confusing network of laws that presently exist, employers and employees should be working together to eliminate confusion and create a system of workplace laws that ... offers both employers and employees flexibility to meet their respective needs.

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In April 2007, the "Employment Non-Discrimination Act" ("ENDA") was introduced in the House of Representatives. The ENDA will, among other things:

• extend federal employment discrimination protections currently provided based on race, religion, sex, national origin, age, and disability to sexual orientation and gender identity. (These terms are defined in the bill to include gay men, lesbians, bi-sexuals, and transgender persons);

• prohibit public and private employers, employment agencies and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions (i.e., hiring, firing, promotion, or compensation); and

• would apply to Congress and the federal government, as well as to employees of state and local governments.

Click here to read more on the ENDA from the proponents point of view, and here for the position of various groups opposing the bill.

Apparently, Congressional Democrats are "strongly considering" dropping anti-discrimination protections for transgendered persons from the bill due to stronger than expected opposition to that provision. Congressional observers claim that even if ENDA passes the House, it likely faces a filibuster in the Senate and it is unclear whether supporters have the required 60-votes to pass the bill.

While this bill is making a lot of news on the national level, it does not appear that California employers will be greatly effected if the bill is passed, as sexual orientation is already a protected category under California law.  See California Government Code § 12940 (defining sexual orientation as “heterosexuality, homosexuality, and bisexuality”). 

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SB 836, introduced by Senator Kuehl, would add “familial status” to the list of protected categories in the employment context. It has passed the California legislature, and now awaits the Governor’s signature or veto. 

The bill states:

In connection with unlawful employment practices, the meaning of "familial status" includes being an individual who is or who will be caring for or supporting a family member.
   For purposes of this section:
(A) "Caring for or supporting" means any of the following:
   (i) Providing supervision or transportation.
   (ii) Providing psychological or emotional comfort and support.
   (iii) Addressing medical, educational, nutritional, hygienic, or safety needs.
   (iv) Attending to an illness, injury, or mental or physical disability.
(B) "Family member" means any of the following:
   (i) A child as defined in Section 3302 of the Unemployment Insurance Code.
   (ii) A parent as defined in Section 3302 of the Unemployment Insurance Code.
   (iii) A spouse, which means the partner to a lawful marriage.
   (iv) A domestic partner as defined in Section 297 of the Family Code.
   (v) A parent-in-law which means the parent of a spouse or domestic partner.
   (vi) A sibling as defined in paragraph (c) of Section 362.1 of the Welfare and Institutions Code.
   (vii) A grandparent.
   (viii) A grandchild.

Surprisingly, there has not been much attention paid to this bill, which is the first of its type in the country. We have previously posted about AB 836 here and here.  I am sure the Governor would be interested in employers' perspectives about this bill.  He can be reached via email through his website here. 

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Assemblymember Sandré Swanson posted an article recently on the California Progress Report discussing a few new bills currently being considered by the state legislature.  These bills should be of particular importance to California employers, as Assemblymember Swanson notes:

My bill, AB 537, will directly impact the ability of family members to care for their loved ones. This bill will add seriously ill "grandparents," "grandchildren," "parents-in-law," "siblings," and “domestic partners” to the list of family members that an employee can take job-protected, unpaid leave to care for under the California Family Rights Act (CFRA). It will also ensure that employees can take leave to care for their seriously ill independent, adult children.

He also mentions related bills making their way through the California legislature:

I am also pleased to be supporting two of Senator Sheila Kuehl’s (D – Santa Monica) bills.

The first bill, SB 727, expands paid family leave to cover the same family ties as my bill, AB 537. SB 836 expands the Fair Employment and Housing Act (FEHA) to prohibit discrimination against employees who care for their families by adding “familial status” to the list of prohibited bases for employment discrimination. SB 836 will especially protect mothers from being discriminated against at work. For example, research shows that mothers are often paid less and are less likely to be hired than non-mothers with the same qualifications. The bill also protects fathers and male employees who are often penalized at work when they seek to take an active role in caring for their children or other family members. In addition, SB 836 recognizes the diverse families and family care giving arrangements of California’s workforce. Studies show that families of color are most likely to be caring for elder relatives.

You may contact Assemblymember Swanson via email by clicking here and Senator Sheila Kuehl via email by clicking here. 

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House Democrats are seriously considering legislation to overturn the recent Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber.  Forbes reports:

House Majority Leader Steny Hoyer, D-Md., and House Education and Labor Chairman George Miller, D-Calif., said House Democrats would pass legislation to ensure what happened to Ledbetter wouldn't happen to anyone else.

"A key provision of the legislation will make it clear that discrimination occurs not just when the decision to discriminate is made, but also when someone becomes subject to that discriminatory decision, and when they are affected by that discriminatory decision, including each time they are issued a discriminatory paycheck," Miller said.

We will continually update the progress of such a bill once/if it is introduced.

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Yesterday, the California state Senate passed a bill that would make it illegal for employers to deny promotions or raises to employees who miss time from work due to obligations with children, sick spouses, and aging parents. The bill (SB 836 sponsored by Sen. Sheila Kuehl (D-Santa Monica)) passed by a 25-14 vote along party lines and will now go onto the Assembly. If the bill passes the Assembly and is signed into law, it would be the first law of its type in the nation to make “familial status” a protected category under the law.

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The U. S. Department of Labor’s Wage and Hour Division website provides a self assessment tool for restaurants that employ minors. The assessment covers common violations of the Fair Labor Standards Act (FLSA ). Restaurant owners should note that this assessment does not cover California state law items. The assessment covers items that the DOL found in the past to be some of the most common problems encountered in restaurants, and therefore, are likely issues a DOL investigator will look for in a restaurant.

Here is a list of a few of the items covered in the assessment:

Do any workers under 18 years of age do the following:
1. Operate or clean power-driven meat slicers or other meat processing machines?

2. Operate or clean any power-driven dough mixer or other bakery machines?

3. Operate, load, or unload scrap papers baler or paper box compactors?

4. Drive a motor-vehicle on the job?

Do any workers under 16 years of age do the following:
5. Cook?

6. Bake?

7. Clean cooking equipment or handle hot oil or grease?

8. Load or unload goods from a truck or conveyor?

9. Work inside a freezer or meat cooler?

10. Operate power-driven bread slicers or bagel slicers?

11. Operate any power-driven equipment?

12. Work from ladders?

13. Work during school hours?

14. Work before 7:00 a.m. on any day?

15. Work past 7:00 p.m. between Labor Day and June 1?

16. Work past 9:00 p.m. between June 1 and Labor Day?

17. Work more than 3 hours on a school day, including Fridays?

18. Work more than 8 hours on any day?

19. Work more than 18 hours in any week when school was in session?

20. Work more than 40 hours in any week when school was not in session?

21. Do you employ any workers who are less than 14 years of age?

22. Do you fail to maintain in your records a date of birth for every employee under 19 years of age?

Click here to take the entire assessment. At the end of the assessment, there is a rules summary that explains an employer’s responsibility under the FLSA for the issues on the assessment.

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Assemblyman John J. Benoit proposed new legislation (AB 510) on March 15, 2007 to give more flexibility to California hourly employees to alter their workweek schedules. Under current California law, employers must pay non-exempt employees time-and-one-half for work beyond eight hours in one day and the first eight hours worked on the seventh consecutive day worked in a single workweek. Double-time is owed for all time worked over 12 hours in a single day, and all hours beyond eight hours worked on the seventh consecutive day in a single workweek. Currently, the law is very inflexible to allow employees and employers to agree to a different working arrangement.

Alternative workweek schedules are permitted under California law, but the process is so cumbersome, and the potential liability is large if done improperly, many employers do not offer their employees this option. For example, in order to establish an alternative workweek under the current law employers need to propose the alternative workweek schedule to employees, hold at least one meeting about the new schedule, hold a secret ballot election, file the election results with the Division of Labor Statistics and Research, and retain documentation of the entire process. Also, once the alternative workweek is established for a "work unit" every employee, with every few exceptions, in the "work unit" must work the alternative workweek schedule. If this detailed process is done improperly, it could invalidate the alternative workweek, exposing the employer to liability of three to four years of back overtime for the employees working the alternative workweek.

AB 510 is a proposed solution to allow more flexibility for employers and employees to develop an alternative workweek schedule to accommodate each individual's work and personal scheduling needs. The bill would allow an individual employee to adopt a schedule that provides for 10-hour workdays in a four-day workweek. If the employer agrees to the proposed four-day workweek schedule, the employee will be paid at straight time rates. Any work performed beyond the 10 hours per day or beyond the four days would remain subject to current California overtime requirements.

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