Assembly Policy Committee to Hear CalChamber-Supported Flexible Scheduling Bills

Two California Chamber of Commerce-supported bills that will provide much-needed scheduling flexibility for employers and employees will be considered in the Assembly Labor and Employment Committee.

  • AB 2482 (Voepel; R-Santee) allows for an employee-selected flexible work schedule and relieves employers of the administrative cost and burden of adopting an alternative workweek schedule on a per division basis. A hearing date has not been set yet.
  • AB 2509(Waldron; R-Escondido) is sponsored by CalChamber and provides non-exempt employees who work a traditional 8-hour day schedule the opportunity to request an on-duty meal period in order to leave work 30 minutes earlier. The bill is scheduled to be heard on April 18.

AB 2482: Flexible Workweek

California is one of only three states that requires employers to pay daily overtime after 8 hours of work and weekly overtime after 40 hours of work. Even the other two states that impose daily overtime requirements allow the employer and employee to essentially waive the daily 8-hour overtime requirement through a written agreement.

California, however, provides no such common-sense alternative. Rather, California requires employers to navigate through a multi-step process to have employees elect an alternative workweek schedule that, once adopted, must be “regularly” scheduled. This process is filled with potential traps that could lead to costly litigation, as one misstep may render the entire alternative workweek schedule invalid and leave the employer on the hook for claims of unpaid overtime wages.

Currently, there are 33,037 reported alternative workweek schedules with the Division of Labor Standards Enforcement. According to the Employment Development Department’s calculations for the fourth quarter of 2016, there are approximately 1,498,017 employers in California. At best, approximately 2.3% of California employers are utilizing the alternative workweek schedule option. More realistically, however, given that the information in the database is according to work unit instead of employer, it is likely that less than 1% of employers in California are utilizing this process.

AB 2482 would provide employees more flexibility because the employee could request an alternative workweek schedule on an individualized basis. It would also relieve employers of the administrative cost and burden of adopting an alternative workweek schedule per division. Pursuant to AB 2482, at the request of the employee, an employer would be able to implement a flexible work schedule that allows the employee to work up to 10 hours in a day or 40 hours in a week, without the payment of overtime. Employers should be able to provide their employees more flexibility and negotiate through a written agreement, revocable by either party, the daily/weekly schedule that satisfies the needs of both the employees and the employer.

AB 2509: Employee Flexibility

CalChamber-sponsored AB 2509 will provide more flexibility for non-exempt employees by allowing them to take an on-duty meal break in order to leave work earlier. AB 2509 also provides employees the same protections offered by the make-up time provision of the Labor Code—the on-duty meal period request would be employee initiated, in writing, and not encouraged or requested by the employer.

Employees are constantly requesting more flexibility at work in order to care for family members, accommodate class schedules, avoid commuter traffic, etc., but employers’ hands are tied because of strict labor laws. Section 11 of the California Wage Order requires employers to provide non-exempt employees with a paid 10-minute rest break for every 4 hours worked. Per Labor Code Section 512, employers also must provide non-exempt employees with an unpaid meal period of not less than 30 minutes for every 5 hours worked. The meal period must be uninterrupted, the employee must be relieved of all duties, and the employer must not impede or discourage the employee from taking the break.

However, there is a small carve-out for employees who work between 5 and 6 hours. These employees can choose to waive their meal periods by mutual consent of the employer and employee. There is no common-sense alternative for employees who work a traditional 8-hour day. Even if the employee and the employer mutually agree that the employee can take an on-duty meal period, the law does not normally allow an employer to legally make this exception.

An on-duty meal period is allowed only under very limited circumstances and must be counted as hours worked. Three express conditions must be satisfied for an “on-duty” meal period to be lawful:

  • the nature of the work prevents an employee from being relieved of all duties;
  • the employer and employee have agreed in writing to an on-the-job paid meal period; and
  • the written agreement states that the employee may, in writing, revoke the agreement at any time.

The most difficult element to satisfy is the “nature of the work” element because the employer is expected to find other capable employees who can perform the job duties during an individual’s 30-minute meal period. Thus, the on-duty meal period exception very rarely applies.

As seen, there is very little leniency with the labor laws, but one exception is the make-up time provision.

Per the California Labor Code and the Industrial Welfare Commission Wage Orders, employers can allow employees to take time off for personal obligations and then make up the missed time if certain conditions are met. The make-up time will not count as daily overtime so long as it occurs during the same workweek in which the time was missed and does not put the employee over 11 hours in one day or 40 hours in one workweek. The make-up time request must be made in writing and the employer is prohibited from encouraging or otherwise soliciting an employee to make the request. However, the employee still is required to take an unpaid 30-minute meal period under the make-up time provisions. Some employees do not want to be forced to take an unpaid 30-minute meal period if they can eat on duty and leave work 30 minutes earlier.

Thus, by requiring that the employee’s request be in writing and prohibiting the employer from encouraging or asking the employee to make such a request, AB 2509 provides the same protections as the make-up time provisions of the Labor Code. 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 8-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 employees’ already-hectic schedules while protecting employers who want to provide this type of flexibility.

Action Needed

AB 2509 will be heard on April 18 in Assembly Labor and Employment.  AB 2482 will be heard in the same committee, but a hearing date has not been set. CalChamber is urging members to contact their Assembly representatives and ask them to support AB 2482 and AB 2509.

Staff Contact: Laura Curtis

Laura Curtis
Laura E. Curtis served as a CalChamber policy advocate from December 2017 to March 4, 2020. She specialized in labor and employment, workers’ compensation, and regulatory reform issues. Before joining the CalChamber policy team, she was a labor and employment attorney counseling clients on subjects including wage-and-hour disputes, harassment, discrimination, retaliation, Private Attorneys General Act (PAGA) claims, and administrative agency compliance. Curtis holds a B.A. in communications with a minor in political science from the University of California, San Diego. She earned a J.D. from Santa Clara University School of Law, where she worked on the International Law Journal.