The Association has just received a draft copy of the revisions to Industrial Welfare Commission Wage Order 14-2001 that were required by AB 1066. These changes become effective January 1, 2019, except as otherwise noted in the revised Wage Order for smaller employers of 25 employees or less. The proposed revisions were submitted to the Office of Administrative Law (“OAL”) on November 9, 2018, for legal review prior to implementation.
Generally speaking, the OAL will undertake a thirty-day review period of the proposed revisions to Order 14-2001. According to industry observers, it is highly unlikely that the OAL will make substantive changes, if any, to the draft of Order 14-2001. [A copy of the draft revised Order 14-2001 is attached to this E-Memo for your review. Please note that these revisions have not yet received final approval from the OAL, but in all likelihood, they are expected to be implemented by the DLSE effective on January 1, 2019, pursuant to AB 1066.]
One of the significant provisions that affects your agricultural operation is found in Section 3(A)(2) dealing with Hours and Days of Work. These proposed changes were previously explained in a chart provided to VCAA members on October 19, 2018. These changes involve the new requirements for daily and weekly overtime for agricultural employees starting January 1, 2019.
Another significant provision that deals with irrigation employees appears at Section 3(C). The revised provisions will eliminate the pre-existing exemption from overtime for irrigators who spend a majority of their working time each week preforming the duties of an irrigator. Therefore, effective January 1, 2019, pursuant to Section 3(A)(2), the new overtime previsions will apply to large employers more than 25 employees. Those employers with 25 or less employees may continue to apply the existing irrigation exemption from overtime until January 1, 2022. At that time, small employers will lose the exemption from overtime for irrigation workers who will become subject to daily and weekly overtime, the same as all other agricultural employees.
Section 4 (Minimum Wages) sets forth all of the applicable minimum wages for both large employers of 26 or more employees and for small employers of 25 or fewer employees.
The next significant change to Order 14-2001 appears in Section 11 (Meal Periods). The Division has deleted the requirement that employers “shall authorize and permit all employees after a work period of not more than five hours”, to now require that “An employer may not employ an employee for a work period of more than five hours without providing the employee with a meal period of not less than 30 minutes…”. This language is the same as all other Wage Orders, including employees in your on-the-farm packing houses and commercial packing houses.
Most importantly, however, for the first time the DLSE has stated that employees may not work for a work period of not more than ten (10) hours per day without being provided with a second meal period of not less than thirty minutes, except that if the total hours worked is no more than twelve (12) hours, the second meal period may be waived by mutual consent of the employer and the employee, only if the first meal period was not waived.
The foregoing, clarification for a second meal period makes the meal period provision for agricultural workers the same as for all other industries. More importantly, it clarifies that in work days in excess of ten (10) but less than twelve (12) hours, there can be a mutual waiver of the meal period. VCAA members are advised to use appropriate waiver forms for such waivers. [Waiver forms are attached in English and Spanish] According to an opinion letter issued to the Association in 2003, such waivers should be executed on a daily basis, not on a crew-basis. In other words, blanket waivers of a second meal period should not be utilized.
It is hoped that the final version of the revised Wage Order 14-2001 will be issued by the DLSE prior January 1, 2019. Copies of the revised Wage Order must be posted in conspicuous places at your field and office locations.
VCAA members who have any questions concerning the proposed revised Wage Order 14-2001 should contact the Association’s General Counsel.