This is probably one of the most overlooked pieces of legislation of 2013 which has huge ramifications for every employer in the State of California. Gov. Brown signed into law SB435 which amended Labor Code Section 226.7 providing premium pay to workers who miss their recovery periods. The bill was misleading to most risk managers watching the legislative process this year, because every year we see bills on meals and rest periods. But this year, Cal-OSHA and the Legislation slipped one by us.
The Heat Illness Problem
This is a huge problem for California employers, including school districts and other public entities because the issue of a "recovery period" is based on employee subjectivity. I am not saying that employees shouldn't be safe, but this new law is wrought with potential for fraud. Under Title 8, Section 3395 employers are required to provide a heat illness program with a provision to allow employees to take a recovery period break anytime they feel they need to cool down. Providing those breaks is not the problem, most employers do that.
No Way To Monitor
Documenting the breaks is the problem. There is no way to monitor if someone felt that should have taken a break but didn't. Unlike meal and rest periods which are clearly defined in the Code, breaks for feeling like you are overheating are not. There is no standard number of breaks for cooling down which are to be provided and Section 3395 falls short as it relates to stating when too many breaks are considered cheating the system.
If you, as an employer, fail to provide these subjective breaks you can expect to pay one hour of premium pay to the employee who felt they didn't get their break. What we expect to see our many more class action suits against employers who overlooked making the premium payment penalties.
What To Do Now
Districts should review their heat illness plans and strengthen the sections that instruct employees to take their recovery periods. They should also train their supervisors to monitor the employees closely and demand that they take their recovery periods. In addition, adding a clause to the time-sheet asking employees to sign off that they have received their meals, breaks and recovery periods could prove beneficial in the face of a class action suit.
SB 435, Padilla. Compensation: meal and rest or recovery periods.
Existing law prohibits an employer from requiring an employee to work during any meal or rest period mandated by an order of the Industrial Welfare Commission (IWC) and establishes penalties for an employer’s failure to provide a mandated meal or rest period.
This bill would make that prohibition applicable to a meal or rest or recovery period mandated by applicable statute or applicable regulation, standard, or order of the IWC, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health. The bill would exempt specified employees from the prohibition. The bill would require an employer to pay an employee, for any meal or rest or recovery period mandated by law, one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided. The bill would define “recovery period” for those purposes.
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO
The people of the State of California do enact as follows:
Section 226.7 of the Labor Code is amended to read:
(a) As used in this section, “recovery period” means a cooldown period afforded an employee to prevent heat illness.
(b) An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.
(c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.
(d) This section shall not apply to an employee who is exempt from meal or rest or recovery period requirements pursuant to other state laws, including, but not limited to, a statute or regulation, standard, or order of the Industrial Welfare Commission.