Democratic lawmakers again kill work flex bill

01.20.14

In what has become an annual tradition in Sacramento, Democratic legislators have killed a bill to provide more flexibility in the hours that employees work.

“Assembly Bill 907 would have allowed Californians to work more than eight hours in a day without overtime in exchange for additional time off,” said the bill’s author, Assembly Republican Leader Connie Conway of Tulare, in a statement.

State law requires employers to pay employees 1½ times their normal rate when they work more than eight hours in a day or 40 hours in a week.

The bill’s opponents, including more than a dozen labor unions, are concerned it would result in employees being forced to work longer days at regular pay. They say that adequate scheduling flexibility is already provided under current law.

AB907 joins SB1335, SB187, AB2127, AB510, AB2217, SB1254, AB640 and AB244 on the slag heap of similar Republican bills that met their demise in Democrat-controlled committees in the last decade.

Despite that morbid legislative history, Conway and several business groups gave it another try before the Assembly Labor and Employment Committee on Jan. 8. Conway recounted a tour that she took at the Kraft plant in her district.

‘I just want my four 10s’

“Some of the workers said, ‘I just want my four 10s back, Connie, I just want my four 10s. If I had that, I wouldn’t have to miss my son’s games. I’d go back to a schedule that I’m comfortable with,’” she said. “While nothing in life is perfect, I vowed to them that I would do what I could to try to help them with that goal.

“I think AB907 is also good for the environment. Less people commuting on a daily basis means fewer people on our roadways, which results in less traffic and less pollution. Members, we don’t live in a 9-to-5 world, we certainly know that. California workers need a work-life balance, and AB907 may help them achieve that goal.”

Jennifer Barrera, legislative director for the California Chamber of Commerce, said that California is one of only three states that require daily overtime pay, and California makes it much more cumbersome to waive the requirement than the other two states.

“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,” said the chamber in a statement. “This process is filled with potential traps for 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.”

As a result, no more than 2 percent of California’s 1.3 million businesses have alternate workweek schedules, according to Division of Labor Standards Enforcement data.

The other flex-time option allows employees to take time off only if the time is made up in the same workweek, which doesn’t always fit with employees’ plans, said Barrera.

“So those existing procedures that we have here in California aren’t effective,” she told the committee. “We believe that Assembly Member Conway’s bill provides the necessary flexibility and protection for employees as well. Because it’s only at the request of the employee that the employer can adopt these flexible work weeks.”

Barrera pointed out that the bill prohibits employers from forcing employees to adopt alternate work schedules. Employees can sue if they feel that they have been coerced, intimidated or discriminated against for refusing to adopt a new schedule.

“So I believe there’s enough protection in here for those employees, and it provides the necessary flexibility that we need here in the work place to create jobs in California,” she said.

No coercion in evidence in 47 states with work flex

Chris Micheli, representing the California Grocers Association, argued that the employer coercion hasn’t occurred in the 47 other states with no daily overtime requirement.

“Where are the examples of the abuses, of the favoritism, of the intimidation, of the retaliation threats in those 47 other states?” he asked.

The construction industry needs to have flexible work schedules due to the vagaries of the weather and other factors, said Julianne Broyles, representing the Associated Builders and Contractors of California.

“We think that providing flexibility when you can is an important benefit to the worker in every way that you can provide it,” she said. “Having artificial barriers to individual schedules, I think hurts the workers of California, hurts commerce in California, makes businesses less likely to want to site here as a result.”

Caitlin Vega, legislative advocate for the California Labor Federation, explained why this issue is so important to labor:

“The eight-hour day is one of the most fundamental rights for workers in this state. And it’s a right that was established more than 100 years ago. For us the eight-hour day actually is about work-family balance. The whole belief in fighting for an eight-hour day is for the worker to be able to go home to their family after eight hours work.

“And if they’re not going to be allowed to do that, that they be paid premium time for the loss of that time with their family. That’s one of the reasons that it’s so important to us, and that we fight for it year after year after year.”

Employees would have to approve change

Vega said that alternate workweek schedules can be adopted through elections. Two-thirds of employees in a work unit must approve before adopting a new schedule.

“We think that process has been designed to give the employer tons of control over the way that they implement this process,” she said. “But also to balance. Fundamentally taking away the eight-hour day or taking workers off the eight-hour day is a pay cut. It is something that saves a lot of money for employers. Which creates such a huge financial incentive for there to be pressure on individuals to waive the eight-hour day. We see it already under existing law.

“The election process is designed to keep individuals from feeling pressured, feeling obligated, from being told that it’s what they have to do to keep the company going and all the various subtle forms that employers can use to influence the decisions of workers. So we believe that existing law was carefully structured to provide flexibility, but also to protect the rights of workers.”

Chairman Roger Hernandez, D-West Covina, was the only committee member to weigh in on the issue: “Having the privilege and opportunity to sit in this chair, I’ve had the chance to visit folks in manufacturing factories, small and large. And today I believe that there is a system that allows for workers and employers to strike a balance. There should be a workplace balance in terms of making sure that there is a safe working environment for workers.”

After the five Democrats voted down the bill (two Republicans voted in favor), Conway invited Hernandez to visit her district and vowed, “We’ll continue to study this issue and make sure we get it right.”

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