Existing law provides that a power of attorney is a written instrument that grants power to another person, however denominated, to act for the principal. Existing law requires a gratuitous employee, who accepts a written power of attorney, to act under it so long as it remains in force or until notice is given to the employer that the employee will no longer do so.

This bill would make nonsubstantive changes to these provisions.

Date of Hearing: April 18, 2018

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Tony Thurmond, Chair

ABPCA Bill Id:AB 2509 (

Author:Waldron) – As Amended Ver:March 15, 2018

SUBJECT: Employees: meal breaks

SUMMARY: Allows an employee to submit a written request to his or her employer to waive the employee’s off-duty meal period and instead take an on-duty meal period in order to reduce the employee’s work shift by not less than 30 minutes, subject to employer approval, and prohibits an employer from encouraging or soliciting an employee to make such a request.

EXISTING LAW:

1. Prohibits an employer from requiring an employee to work more than five hours per day without providing a meal period of no less than 30 minutes, unless the meal period is waived by mutual consent of both employer and employee. Meal periods cannot be waived if the total workday is more than six hours.
2. Prohibits an employer from requiring an employee to work more than ten hours per day without providing a second meal period of no less than 30 minutes, unless the meal period is waived by mutual consent of both employer and employee. Meal periods cannot be waived if the total work day is more than 12 hours.
3. Authorizes the Industrial Welfare Commission (IWC) to adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers that are consistent with the health and welfare of those workers, as specified.
4. Exempts specified employees covered by a valid collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of employees, as specified.

FISCAL EFFECT: Unknown

COMMENTS: The author argues in support of the bill that it will provide flexibility for employees who would like to leave their work early but cannot because existing law makes them ineligible for a waiver of a meal period within an eight hour workday.

Background on Meal Periods

California Labor Code Section 512 lays out the rights of employees to a meal period, depending on the total hours worked. The section requires the IWC to conduct reviews of wages, hours, and working conditions of industries and to, "adopt or modify regulations necessary to protect the health, safety, and welfare of workers in those industries.” While the IWC is no longer in operation, the Division of Labor Standards Enforcement has the authority to enforce the wage orders it promulgated.

Labor Code Section 512 also authorizes the waiver of meal periods under specified conditions. If an employee takes an on-duty meal period and is not relieved of their work duties, the meal period is considered time worked and he or she will be paid for that time at the employee's regular rate. Various wage orders provide that an on-duty meal period is permissible if the nature of the work prevents an employee from being relieved of "all duty." If that condition is satisfied, a written agreement between the employer and employee for an on-duty paid meal period can be made. The written agreement must state that the employee may, in writing, revoke the agreement at any time. However, employees cannot waive a meal period even if they would qualify for a waiver if: 1) the employee works more than six hours but no more than ten hours, 2) the employee works more than 12 hours. The only exception to this is healthcare workers who can voluntarily waive their right to one of their meal periods when they work more than 12 hours.

Is a Waiver Needed?

While this bill would provide flexibility to workers who wish to leave home early, it is unclear whether it will further the intent of existing statutory meal period requirements. Meal periods were established to ensure the protection of the employee and the public as they intersect. Committee Members may wish to consider whether this exemption would be in the best interest of the health and safety of the worker, as well as the public.

Further, while the bill provides that employers cannot encourage or solicit a meal period waiver from an employee, the possibility of employees being pressured to take an on-duty meal period is not negated. Those in fast-paced businesses may feel pressured to give up their meal periods in order to appease the culture of the workplace. Committee Members may wish to consider whether the prohibitions in the bill against employer coercion are enough to shield workers from pressures to waive their meal period.

Arguments in Support

The California Chamber of Commerce writes in support, “AB 2509 simply amends Labor Code Section 512(a) to provide employees with more flexibility by allowing them to take an on-duty meal period during the traditional eight-hour workday. Because 30-minute meal periods are unpaid, this bill will not reduce a non-exempt employee’s daily income. If a non-exempt employee wants to skip a 30-minute meal period and eat lunch on-duty in order to leave early, why should an employer be put in the awful position of telling the employee no? Employees are already juggling school, jobs, kids, and family obligations. AB 2509 would simply allow a little more leniency in their already hectic schedules while protecting employers who want to provide this type of flexibility.”

Arguments in Opposition

UNITE-HERE, and other labor organizations write in opposition, “We oppose any bill that seeks to undermine meal and rest break law. As it stands, employers far-too-often commit wage-and-hour and meal and rest break violations. AB 2509 operates under the guise of worker flexibility but really provides employers cover when they forget or pressure an employee to skip their regular scheduled meal break.”

REGISTERED SUPPORT / OPPOSITION:

Support

Acclamation Insurance Management Services

Allied Managed Care

Associated Builders and Contractors Association, Inc. – Central California Chapter

Associated Builders and Contractors Association, Inc. – San Diego Chapter

Associated Builders and Contractors Association, Inc. – Southern California

Brea Chamber of Commerce

California Apartment Association

California Building Industry Association

California Chamber of Commerce

California Construction and Industrial Materials Association

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

Camarillo Chamber of Commerce

Citizens Against Lawsuit Abuse

Flasher Barricade Association

Greater Coachella Valley Chamber of Commerce

Greater San Fernando Valley Chamber of Commerce

National Federation of Independent Business

North Orange County Chamber

Official Police Garages of Los Angeles

Plumbing-Heating-Cooling Contractors Association of California

Rancho Cordova Chamber of Commerce

San Gabriel Valley Economic Partnership

Santa Maria Valley Chamber of Commerce

Southwest California Legislative Council

Vista Chamber of Commerce

Opposition

CA Conference Board of the Amalgamated Transit Union

CA Conference of Machinists

California Labor Federation, AFL-CIO

California Teamsters Public Affairs Council

Engineers and Scientists of CA, Local 20

International Longshore & Warehouse Union

Professional and Technical Engineers, Local 21

UNITE-HERE

Utility Workers of America

Analysis Prepared by: Rodolfo Rivera Aquino/ Megan Lane / L. & E. /