Overtime Laws. Revised June 2013

Transcription

1 Overtime Laws Revised June 2013 An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work. Employees covered by the Fair Labor Standards Act (FLSA) must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay. The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, unless overtime hours are worked on such days. Additionally, many states have their own laws pertaining to overtime payments. If a state s law is more inclusive or generous to the employee than federal law, the state law will apply. If however the state law is less inclusive then employers are required to follow federal law. To check whether there is pending legislative issues or recently enacted legislative changes for your state(s) please click here. To access additional SHRM State Law & Regulation Resources click here. Please note: This material is for personal use only and is protected by U.S. Copyright Law (Title 17 USC). It is provided as general information only and does not constitute and is not a substitute for legal or other professional advice. Reliance upon this material is solely at your own risk. Click the letter corresponding to the state name below. A C D F G H I K L M N O P R S T U V W State Alabama Statute State law enforcement officers; Overtime compensation Each state law enforcement officer in the service of the state who is assigned to duty for more than 40 hours during the calendar week shall be paid time and one half for such excess hours worked or he shall be given time and onehalf compensatory leave as herein provided, except as hereinafter limited. Such officers shall normally work a 40-hour work week. Hours worked in excess of 40 hours in any calendar week shall be compensated at the rate of one and one-half times his regular rate of pay up to a maximum of eight hours per week; however, compensatory time at the rate of one and one-half times regular time may be paid for overtime worked. The decision of whether to accept overtime pay or compensatory time shall be at the sole option of the officer. For the time worked, when required by employee's department, through September 30, 1977, hours worked in excess of 48 up to 54 hours, the officer shall be given straight compensatory time off. Time worked in excess of 54 hours per week shall be compensated at a

2 rate of one and one-half times the regular pay or one and one-half times compensatory time at the discretion of the department. For the period October 1, 1977, and thereafter, all hours over 48 shall be one and one-half compensatory time or pay at the discretion of the department. Alaska Nonelected county law enforcement officers; Overtime; Payment or compensatory leave at time and a half; Monthly statement as to election of overtime. (a) Any nonelected law enforcement officer in the service of a county who has worked a number of hours in excess of the established and recurring work period, shall be compensated according to the standards and guidelines established by the Fair Labor Standards Act (29 C.F.R , et seq.). The officer shall be compensated at a rate of not less than one and one-half hours for each hour of employment for which overtime is required. Nonelected law enforcement officers may receive, in lieu of overtime pay, compensatory time off at a rate of not less than one and one-half hours for each hour of employment for which overtime is required. (b) Any law enforcement officer covered by this section who works overtime during any calendar month shall on the last day of the month file in writing a statement indicating the number of hours of overtime worked. The decision as to whether a nonelected law enforcement officer shall receive overtime pay or compensatory leave shall be at the option of the officer as prescribed in this subsection. In the event the law enforcement officer receives overtime pay, the pay shall be included with his or her compensation for the next succeeding pay period. If he or she receives compensatory leave, the leave shall be taken at any time during the calendar year in which it is earned, except during times of emergency Payment for overtime. (a) An employer who employs employees engaged in commerce or other business, or in the production of goods or materials in the state, may not employ an employee for a workweek longer than 40 hours or for more than eight hours a day. (b) If an employer finds it necessary to employ an employee for hours in excess of the limits set in this subsection, overtime compensation for the overtime at the rate of one and one-half times the regular rate of pay shall be paid. An employee is entitled to overtime compensation for hours worked in excess of eight hours a day. An employee is also entitled to overtime compensation for hours worked in excess of 40 hours a week; in determining whether an employee has worked more than 40 hours a week, the number of hours worked shall be determined without including hours that are worked in excess of eight hours in a day because the employee has or will be separately awarded overtime compensation based on those hours. (c) This section is considered included in all contracts of employment. (d) This section does not apply with respect to (1) an employee employed by an employer employing less than four employees in the regular course of business, as "regular course of business" is defined by regulations of the commissioner; (2) an employee employed in handling, packing, storing, pasteurizing, drying, preparing in their raw or natural state, or canning agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products; (3) an employee of an employer engaged in small mining operations where not more than 12 employees are employed if the employee is employed not in excess of 12 hours a day or 56 hours a week during a period or periods of not more than 14 workweeks in the aggregate in a calendar year during the mining season, as the season is defined by the commissioner; (4) an employee engaged in agriculture; (5) an employee employed in connection with the publication of a weekly, semiweekly, or daily newspaper with a circulation of less than 1,000; (6) a switchboard operator employed in a public telephone exchange that has fewer than 750 stations; (7) an employee in an otherwise exempted employment or proprietor in a retail or service establishment engaged in handling telegraphic, telephone, or radio messages for the public under an agency or contract arrangement with a telegraph or communications company where the telegraph message or communications revenue of the agency does not exceed $500 a month; (8) an employee employed as a seaman; (9) an employee employed in planting or tending trees, cruising, or surveying, or bucking, or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other transportation terminal if the number of employees employed by the employer in the forestry or lumbering operations does not exceed 12; (10) an individual employed as an outside buyer of poultry, eggs, cream, or milk in their raw or natural state; (11) casual employees as may be liberally defined by regulations of the commissioner; (12) an employee of a hospital whose employment includes the provision of medical services; (13) work performed by an employee under a flexible work hour plan if the plan is included as part of a collective bargaining agreement; (14) work performed by an employee under a voluntary flexible work hour plan if (A) the employee and the employer have signed a written agreement and the written agreement has been filed with the department; and (B) the department has

3 issued a certificate approving the plan that states the work is for 40 hours a week and not more than 10 hours a day; for work over 40 hours a week or 10 hours a day under a flexible work hour plan not included as part of a collective bargaining agreement, compensation at the rate of one and one-half times the regular rate of pay shall be paid for the overtime; (15) an individual employed as a line haul truck driver for a trip that exceeds 100 road miles one way if the compensation system under which the truck driver is paid includes overtime pay for work in excess of 40 hours a week or for more than eight hours a day and the compensation system requires a rate of pay comparable to the rate of pay required by this section; (16) an individual employed as a community health aide by a local or regional health organization as those terms are defined in AS ; (17) work performed by a mechanic primarily engaged in the servicing of automobiles, light trucks, and motor homes if the mechanic (A) is employed as a flat-rate mechanic by a nonmanufacturing establishment primarily engaged in the business of selling or servicing motor vehicles; (B) has signed a written agreement with the employer that specifies the mechanic's flat hourly rate of pay and the automotive manual or manuals on which the flat rate is to be based; (C) is compensated for all hours worked in any capacity for that employer up to and including eight hours a day and 40 hours a week at an hourly rate that is not less than the greater of (i) 75 percent of the flat hourly rate of pay agreed upon by the employer and employee under (B) of this paragraph; or (ii) twice the state minimum wage; and (D) is compensated for all hours worked in any capacity for that employer in excess of eight hours a day or 40 hours a week at one and one-half times the rate described in (C) of this paragraph; (18) work performed by an employee under a voluntary written agreement addressing the trading of work shifts among employees if (A) the employee is employed by an air carrier subject to subchapter II of the Railway Labor Act (45 U.S.C ), including employment as a customer service representative; (B) the trading agreement is not a flexible work hour plan entered into under (13) or (14) of this subsection; (C) the trading agreement is filed with the employee's employer; and (D) the trading agreement states that the employee is not entitled to receive overtime for any hours worked by the employee when the employee voluntarily works those hours under a shift trading practice under which the employee has the opportunity, in the same or other work weeks, to reduce hours worked by voluntarily offering a shift for trade or reassignment; (19) work performed by a flight crew member employed by an air carrier subject to 45 U.S.C (subchapter II of the Railway Labor Act); in this paragraph, "flight crew" means the pilot, co-pilot, flight engineer, and flight attendants. (e) The minimum amount due an employee under (d)(17)(c) and (D) of this section shall be figured on a weekly basis. AAC Payment for overtime. (a) An employee's regular rate is the basis for computing overtime. The regular rate is an hourly rate figured on a weekly basis. An employee need not actually be hired at an hourly rate. The employee may be paid by piece-rate, salary, commission, or any other basis agreeable to the employer and employee. However, the applicable compensation basis must be converted to an hourly rate when determining the regular rate for computing overtime compensation. Payment on a salary basis does not eliminate overtime pay requirements. The following provisions apply for an employee whose work is not exempt by law from overtime pay requirements, but is paid on a salary basis: (1) the employment contract must be in writing and must set out the specific number of straight time and overtime hours the employee is expected to work each day and each week; the contract must establish a regular straight time hourly rate of pay and the appropriate overtime rate with respect to the salary to be paid and the number of hours to be worked; changes to the pay schedule of a salaried employee must conform to the provisions of AS ; (2) if a contract fails to establish a fixed number of daily and weekly hours that the salary is intended to compensate, or if the actual hours of work deviate from the hours specified in the contract without a corresponding adjustment in hourly pay, the salary will be considered to be compensation for an eight-hour work day and 40-hour workweek, and overtime will be computed on that basis. (b) In order to compute a regular hourly rate for the purpose of determining the overtime rate for an employee who is paid other than hourly or by salary, or if the employee's rate of pay includes bonuses, the following provisions of 29 C.F.R. Part 778 apply: (1) for a pieceworker, 29 C.F.R ; (2) for an employee who works at two or more hourly rates, 29 C.F.R ; (3) for an employee who receives wages in a form other than cash, 29 C.F.R ; (4) for an employee who receives a commission, 29 C.F.R ; or (5) for an employee who receives a bonus, 28 C.F.R (c) When computing an employee's hours for the purpose of determining overtime, the employer shall count all hours the employee worked during that week including periods of "on call" and "standby or waiting time" required for the convenience of

4 the employer which were a necessary part of the employee's performance of the employment. However, if the employee is completely relieved from all duties for 20 minutes or more during which the employee may use the time effectively for the employee's own purposes, then those periods need not be counted. (d) The following are not acceptable methods of complying with the payment of overtime provisions of AS : (1) guaranteed weekly pay for variable hours plan ("Belo" contracts) established under sec. 7(f) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 207(f) as implemented in 29 C.F.R ); (2) compensatory time (comp time) off in place of payment for overtime; and (3) flex-time or flexitime plans established under 29 C.F.R providing a fixed salary for fluctuating hours up to a predetermined maximum number of hours in a workweek. (e) Except for an employee described in 8 AAC (c), an employee paid on a daily rate whose work is not otherwise exempted from overtime pay requirements under AS or (d) must be compensated for overtime based on a written employment contract. The following provisions apply for an employee paid on a daily rate: (1) if the daily rate is compensation for a set number of hours in a day, the written employment contract must set out the applicable straight time and overtime rates; (2) if the employee works overtime hours not covered by the daily rate established in the employment contract, the employer must provide for an adjustment to the employee's pay at the overtime rate for (A) hours worked in excess of the established daily number of hours; and (B) all hours worked on days worked after 40 straight time hours in a week; (3) to maintain the hourly rates, the employer must reduce the employee's pay when the employee works less than the prescribed number of hours in a day; if the wages are not reduced, the daily rate is considered to compensate an employee for a variable number of hours worked and the overtime must be calculated and paid in accordance with (4) of this subsection; (4) if there is not a written employment contract or if the daily rate provides compensation for a variable number of hours worked, the overtime must be calculated as follows: (A) each week, the employer must calculate the straight time rate of pay by dividing the total amount paid at the daily rate by the total number of hours worked in the week; and (B) the employer must pay one-half of the straight time rate established under (1) of this subsection for each overtime hour worked in the week to bring the employee's wages up to one and one-half times the regular rate for hours worked over eight hours in a day and over 40 straight time hours in a week; this calculation must be performed separately each week. 8 AAC Overtime for line haul truck drivers. (a) If an employer of a line haul truck driver elects not to use the overtime rate established in AS (b), the employer shall establish alternate rates of overtime pay that meet the requirements of AS (d)(15) and this section. (b) An alternative rate of overtime pay may be calculated as a mileage rate, a fuel usage rate, or on some other reasonable basis; however, any formula used to calculate an alternate rate of overtime pay must take into consideration the time spent performing all of the duties of a line haul truck driver on the route for which the rate was established, including the time spent (1) driving; (2) hooking up; (3) fueling; (4) tying down; (5) chaining up and unchaining; (6) performing pre-trip and in-transit equipment and load checks; (7) during breakdowns; (8) making tire repairs; (9) offloading; and (10) completing required paperwork. (c) If an employer averages the time spent performing the duties identified in (b) of this section over time, those averages are subject to review by the department to determine if they are accurate and reasonable. The department will, in its discretion, require the employer to validate an average used by having the employer record the actual hours currently worked by drivers operating over the route in which the average is being applied. If a department's audit of the actual hours currently worked reveals a substantial difference from the average used by the employer, and the result is that the employer's rate of overtime pay is less than the minimum rate that would be payable under AS (b), the department will, in its discretion, (1) consider the employer's previous audits or annual adjustments and then reevaluate the employer's rate of overtime pay for compliance with this section; (2) order the employer to make whatever adjustments are necessary to make the employer's rate of overtime pay comparable to the minimum rate required in AS (b); or (3) void the employer's exemption under AS (d)(15). (d) Before implementing an alternate rate of overtime pay, an employer shall, in accordance with AS , notify each employee affected by the alternate rate of overtime pay on the payday before the new rate is implemented. (e) Upon the request of a driver, the employer shall provide the driver with a copy of the formula and substantiating records used to determine the rate of overtime pay for a specific route. (f) Except as provided in (g) of this section, an employer shall (1) annually certify that the rate of overtime pay for each route has been reviewed and

5 found to be appropriate; and (2) post a copy of the annual certification and the rate of overtime pay for each route in a conspicuous place where each driver may review them. (g) If the formula for determining the rate of overtime pay has been negotiated with a collective bargaining representative, possession of the formula by that representative satisfies the posting requirements of (f)(2) of this section as long as the representative makes the formula available to all drivers. An employer who has entered into a collective bargaining agreement is exempt from the certification requirements of (f)(1) of this section as long as the employer is subject to a collective bargaining relationship which includes a negotiated formula for overtime pay. Arizona 8 AAC DETERMINING THE NUMBER OF EMPLOYEES FOR PURPOSES OF AS (d)(1). In determining the number of employees that an employer employs for purposes of AS (d)(1), all officers of a corporation who actively engage in the business and all part-time employees will be counted regardless of the number of days or hours worked Overtime pay; work week--a. Subject to availability of appropriated funds, an employee of the state or any political subdivision, serving in a position determined by the law enforcement merit system council, the director of the department of administration, the Arizona board of regents, the board of directors for the Arizona state schools for the deaf and the blind or the governing body of a political subdivision, in the discretion of such board or body, to be eligible for overtime compensation who is required to work in excess of such person's normal work week, shall be compensated for such excess time at the following rates: 1. One and one-half times the regular rate at which such person is employed or one and one-half hours of compensatory time off for each hour worked if overtime compensation is mandated by federal law. 2. If federal law does not mandate overtime compensation, the person shall receive the regular rate of pay or compensatory leave on an hour for hour basis at the discretion of the board or governing body. B. Notwithstanding subsection A, the state or a political subdivision may provide, by action of the law enforcement merit system council, the board of regents, the board of directors for the Arizona state schools for the deaf and the blind or the director of the department of administration in the case of the state or of the governing body of the political subdivision, for a work week of forty hours in less than five days for certain classes of employees employed by the state or the political subdivision Overtime compensation for certain law enforcement or probation officer activities; option; definitions--a. Any person engaged in law enforcement activities shall be compensated for each hour worked in excess of forty hours in one work week at the option of such employer at the following rates: 1. One and one-half times the regular rate at which such person is employed or one and one-half hours of compensatory time off for each hour worked if by the person's job classification overtime compensation is mandated by federal law. 2. If by the person's job classification federal law does not mandate overtime compensation, the person shall receive the regular rate of pay or compensatory leave on an hour for hour basis. B. Any person engaged in probation officer activities shall be compensated for each hour worked in excess of eighty hours in a two week work period at the option of such employer at the following rates: 1. One and one-half times the regular rate at which such person is employed or one and one-half hours of compensatory time off for each hour worked if by the person's job classification overtime compensation is mandated by federal law. 2. If by the person's job classification federal law does not mandate overtime compensation, the person shall receive the regular rate of pay or compensatory leave on an hour for hour basis. C. Paid leave may be considered hours worked for the purpose of calculating overtime. D. The director of the department of public safety may establish alternate work periods, in accordance with federal law, for the purpose of determining overtime compensation for those employees of the air rescue section of the department of public safety. E. Notwithstanding subsection C of this section, an alternate work period established by the director of the department of public safety for the purpose of determining overtime compensation shall not exceed twenty-eight days or one hundred sixty hours. F. For the purposes of this section: 1. "Person engaged in law enforcement activities": (a) Means: (i) A law enforcement officer as defined by section (ii) A peace officer as defined by section (iii) Any security personnel responsible for controlling or maintaining custody of inmates in correctional institutions maintained by this state or a county, city or town. (iv) A capitol police officer employed pursuant to section , subsection A. (b) Does not include any such person employed in a bona fide executive or administrative capacity as defined by the employer. 2. "Person engaged in probation officer activities": (a) Means a probation

6 officer or surveillance officer who is appointed pursuant to section 8-203, or (b) Does not include any such person employed in a bona fide executive or administrative capacity as defined by the employer. Arkansas Overtime. (a) Except as otherwise provided in this section and and , no employer shall employ any of his or her employees for a work week longer than forty (40) hours unless the employee receives compensation for his or her employment in excess of the hours above specified at a rate not less than one and one-half (1 ½) times the regular rate of pay at which he or she is employed. (b) The provisions regarding the payment of wages at one and one-half (1 ½) times the regular rate of pay for overtime services shall not be applicable with respect to agricultural employees. (c) Neither the provisions of this section nor the provisions of any other law of this state shall be construed to require the payment of compensation at a greater rate than the normal rate for services performed by agricultural employees in excess of forty (40) hours per week. (d) This section shall not apply to any employee exempt from the overtime requirements of the federal Fair Labor Standards Act pursuant to the provisions of 29 U.S.C. 213(b)(1)-(24) and (b)(28)-(30), as they existed on March 1, (e) No public agency shall be deemed to have violated this section with respect to the employment of any employee in fire protection activities or law enforcement activities, including security personnel in correctional institutions, provided that the public agency pays overtime pay in compliance with 29 U.S.C. 207(k), as it existed on March 1, (f) In lieu of overtime compensation, the State of Arkansas and any political subdivision of the state may award compensatory time off at a rate of not less than one and one-half (1 ½) hours for each hour of employment for which overtime compensation is required. The compensatory time off may be provided only: (1)(A) Pursuant to applicable provisions of a collective bargaining agreement, memorandum of understanding, or other agreement between the public agency and representatives of such employees. (B) In the case of employees not covered by subdivision (f)(1)(a) of this section, an agreement or understanding arrived at between the employer and employee before the performance of the work; and (2) If the employee has not terminated employment and has not accrued compensatory time in excess of the following: (A) Four hundred eighty (480) hours for police, firefighters, emergency response personnel, and employees engaged in seasonal activities; or (B) Two hundred forty (240) hours for any public employee not otherwise exempt or covered by subdivision (f)(2)(a) of this section. (g) By rule or regulation, the Director of the Department of Labor may authorize employment in excess of the standard set by subsection (a) of this section or may authorize the calculation of overtime on a basis other than the regular rate of pay required by subsection (a) of this section for employment: (1) Necessitating irregular hours of work; (2) At a piece rate; (3) Paying on a commission basis in a retail or service establishment; (4) In a hospital or enterprise engaged in the care of the sick, the aged, or individuals with mental illness; (5) By an independently-owned-and-controlled local enterprise engaged in the wholesale or bulk distribution of petroleum products; and (6) Under a collective bargaining agreement. California Sec Eight-hour workday; Overtime over 8 hours a day, 40 hours a week, and the first 8 hours on the 7th day at time and a half; Overtime in excess of 12 hours a day and time over 8 hours on the 7th day at double time; Exceptions allowing for flexible work schedules (a) Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work. The requirements of this section do not apply to the payment of overtime compensation to an employee working pursuant to any of the following: (1) An alternative workweek schedule adopted pursuant to Section 511. (2) An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to Section 514. (3) An alternative workweek schedule to which this chapter is inapplicable pursuant to Section 554. (b) Time spent commuting to and from the first place at which an employee's presence is required by the employer shall not be considered to be a part of a day's work, when the employee commutes in a vehicle that is owned, leased, or subsidized by the employer and is used for the purpose of ridesharing, as defined in Section 522 of the Vehicle Code. (c) This section does not affect, change, or limit an employer's liability under the workers' compensation

7 law. 511 This section has been amended by Chapter 3 of 2009 (2nd Ex. Sess.) (a) Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant to this section. A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. Notwithstanding subdivision (c) of Section 500, the menu of work schedule options may include a regular schedule of eight-hour days that are compensated in accordance with subdivision (a) of Section 510. Employees who adopt a menu of work schedule options may, with employer consent, move from one schedule option to another on a weekly basis. (b) An affected employee working longer than eight hours but not more than 12 hours in a day pursuant to an alternative workweek schedule adopted pursuant to this section shall be paid an overtime rate of compensation of no less than one and one-half times the regular rate of pay of the employee for any work in excess of the regularly scheduled hours established by the alternative workweek agreement and for any work in excess of 40 hours per week. An overtime rate of compensation of no less than double the regular rate of pay of the employee shall be paid for any work in excess of 12 hours per day and for any work in excess of eight hours on those days worked beyond the regularly scheduled workdays established by the alternative workweek agreement. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work. (c) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal, or nullification of an alternative workweek schedule. (d) An employer shall make a reasonable effort to find a work schedule not to exceed eight hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative schedule hours established as the result of that election. An employer shall be permitted to provide a work schedule not to exceed eight hours in a workday to accommodate any employee who was hired after the date of the election and who is unable to work the alternative schedule established as the result of that election. An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (e) The results of any election conducted pursuant to this section shall be reported by an employer to the Division of Labor Statistics and Research within 30 days after the results are final. (f) Any type of alternative workweek schedule that is authorized by this code and that was in effect on January 1, 2000, may be repealed by the affected employees pursuant to this section. Any alternative workweek schedule that was adopted pursuant to Wage Order Numbers 1, 4, 5, 7, or 9 of the Industrial Welfare Commission is null and void, except for an alternative workweek providing for a regular schedule of no more than 10 hours' work in a workday that was adopted by a two-thirds vote of affected employees in a secret ballot election pursuant to wage orders of the Industrial Welfare Commission in effect prior to This subdivision does not apply to exemptions authorized pursuant to Section 515. (g) Notwithstanding subdivision (f), an alternative workweek schedule in the health care industry adopted by a two-thirds vote of affected employees in a secret ballot election pursuant to Wage Order Numbers 4 and 5 in effect prior to 1998 that provided for workdays exceeding 10 hours but not exceeding 12 hours in a day without the payment of overtime compensation shall be valid until July 1, An employer in the health care industry shall make a reasonable effort to accommodate any employee in the health care industry who is unable to work the alternative schedule established as the result of a valid election held in accordance with provisions of Wage Order Number 4 or 5 that were in effect prior to (h) Notwithstanding subdivision (f), if an employee is voluntarily working an alternative workweek schedule providing for a regular work schedule of not more than 10 hours' work in a workday as of July 1, 1999, an employee may continue to work that alternative workweek schedule without the entitlement of the payment of daily overtime compensation for the hours provided in that schedule if the employer approves a written request of the employee to work that schedule. (i) For purposes of this section, "work unit" includes a division, a

8 department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this section is met (a) An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (b) Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees. (c) Subdivision (a) does not apply to an employee in the wholesale baking industry who is subject to an Industrial Welfare Commission wage order and who is covered by a valid collective bargaining agreement that provides for a 35-hour workweek consisting of five 7-hour days, payment of one and one-half times the regular rate of pay for time worked in excess of seven hours per day, and a rest period of not less than 10 minutes every two hours. (d) If an employee in the motion picture industry or the broadcasting industry, as those industries are defined in Industrial Welfare Commission Wage Order Numbers 11 and 12, is covered by a valid collective bargaining agreement that provides for meal periods and includes a monetary remedy if the employee does not receive a meal period required by the agreement, then the terms, conditions, and remedies of the agreement pertaining to meal periods apply in lieu of the applicable provisions pertaining to meal periods of subdivision (a) of this section, Section 226.7, and Industrial Welfare Commission Wage Order Numbers 11 and 12. (e) Subdivisions (a) and (b) do not apply to an employee specified in subdivision (f) if both of the following conditions are satisfied: (1) The employee is covered by a valid collective bargaining agreement. (2) The valid collective bargaining agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate. (f) Subdivision (e) applies to each of the following employees: (1) An employee employed in a construction occupation. (2) An employee employed as a commercial driver. (3) An employee employed in the security services industry as a security officer who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, and who is employed by a private patrol operator registered pursuant to that chapter. (4) An employee employed by an electrical corporation, a gas corporation, or a local publicly owned electric utility. (g) The following definitions apply for the purposes of this section: (1) Commercial driver means an employee who operates a vehicle described in Section 260 or 462 of, or subdivision (b) of Section of, the Vehicle Code. (2) Construction occupation means all job classifications associated with construction by Article 2 (commencing with Section 7025) of Chapter 9 of Division 3 of the Business and Professions Code, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, and repair, and any other similar or related occupation or trade. (3) Electrical corporation has the same meaning as provided in Section 218 of the Public Utilities Code. (4) Gas corporation has the same meaning as provided in Section 222 of the Public Utilities Code. (5) Local publicly owned electric utility has the same meaning as provided in Section of the Public Utilities Code (a) Notwithstanding any provision of this chapter, if the Industrial Welfare Commission adopts or amends an order that applies to an employee of a public agency who operates a commercial motor vehicle, it may exempt that employee from the application of the provisions of that order which relate to meal periods or rest periods, consistent with the health and welfare of that employee, if he or she is covered by a valid collective bargaining agreement. (b) Commercial motor vehicle for the purposes of this section has the same meaning as provided in subdivision (b) of Section of the Vehicle Code. (c) Public agency for the purposes of this section means the state and any political subdivision of the state, including any city, county, city and county, or special district.

9 513 If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted towards computing the total number of hours worked in a day for purposes of the overtime requirements specified in Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40 hours in one workweek. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section. An employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same week pursuant to this section Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage Industrial Welfare Commission may establish overtime exemptions for executive, administrative, professional employees; Review and hearings; Additional exemptions; Wage orders; Overtime for nonexempt, salaried employees; Registered nurses; Certain certified nurses (a) The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. The commission shall conduct a review of the duties that meet the test of the exemption. The commission may, based upon this review, convene a public hearing to adopt or modify regulations at that hearing pertaining to duties that meet the test of the exemption without convening wage boards. Any hearing conducted pursuant to this subdivision shall be concluded not later than July 1, (b) Except as otherwise provided in this section and in subdivision (g) of Section 511, nothing in this section requires the commission to alter an exemption from provisions regulating hours of work that was contained in a valid wage order in effect in Except as otherwise provided in this division, the commission may review, retain, or eliminate an exemption from provisions regulating hours of work that was contained in a valid wage order in effect in (c) For the purposes of subdivision (a), fulltime employment means employment in which an employee is employed for 40 hours per week. (d) (1) For the purpose of computing the overtime rate of compensation required to be paid to a nonexempt full-time salaried employee, the employee's regular hourly rate shall be 1/40th of the employee's weekly salary. (2) Payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee's regular, nonovertime hours, notwithstanding any private agreement to the contrary. (e) For the purposes of this section, primarily means more than one-half of the employee's worktime. (f) (1) In addition to the requirements of subdivision (a), a registered nurse employed to engage in the practice of nursing shall not be exempted from coverage under the orders of the Industrial Welfare Commission, unless he or she individually meets the criteria for exemptions established for executive or administrative employees. (2) This subdivision does not apply to any of the following: (A) A certified nurse midwife who is primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (B) A certified nurse anesthetist who is primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (C) A certified nurse practitioner who is primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (D) Nothing in this paragraph shall exempt the occupations set forth in subparagraphs (A), (B), and (C) from meeting the requirements of subdivision (a). ** (a) Except as provided in subdivision (b), an employee in the computer software field shall be exempt from the requirement that an overtime rate of compensation be paid pursuant to Section 510 if

10 all of the following apply: (1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (2) The employee is primarily engaged in duties that consist of one or more of the following: (A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. (B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. (C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (3) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering. A job title shall not be determinative of the applicability of this exemption. (4) The employee s hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than seventy-five thousand dollars ($75,000) for full-time employment, which is paid at least once a month and in a monthly amount of not less than six thousand two hundred fifty dollars ($6,250). The Division of Labor Statistics and Research shall adjust both the hourly pay rate and the salary level described in this paragraph on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (b) The exemption provided in subdivision (a) does not apply to an employee if any of the following apply: (1) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (2) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (3) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (4) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not engaged in computer systems analysis, programming, or any other similarly skilled computer-related occupation. (5) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs. (6) The employee is engaged in any of the activities set forth in subdivision (a) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. ** [Editors Note: In accordance with Labor Code Section 515.5(a)(4), the department has adjusted the computer software employee's minimum hourly rate of pay exemption from $38.89 to $39.90, the minimum monthly salary exemption from $6, to $6,927.75, and the minimum annual salary exemption from $81, t.o $83, effective January 1, 2013, reflecting the 2.6% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.] ** (a) Section 510 shall not apply to any employee who is a licensed physician or surgeon, who is primarily engaged in duties that require licensure pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and whose hourly rate of pay is equal to or greater than fifty-five dollars ($55.00). The Division of Labor Statistics and Research shall adjust this threshold rate of pay each October 1, to be effective the following January 1, by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (b) The exemption provided in subdivision (a) shall not apply to an employee employed in a medical internship or resident program or to a physician employee covered by a valid collective bargaining agreement pursuant to Section 514. **[Editors Note: In accordance with California Labor Code Section 515.6(a), the California Department of Industrial Relations has adjusted the licensed physicians and surgeons employee's minimum hourly rate of pay exemption from $70.86 to $72.70 effective January 1, 2013, reflecting the 2.6% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers] (a) Section 510 does not apply to an individual employed as a teacher at a private elementary or

11 secondary academic institution in which pupils are enrolled in kindergarten or any of grades 1 to 12, inclusive. (b) For purposes of this section, employed as a teacher means that the employee meets all of the following requirements: (1) The employee is primarily engaged in the duty of imparting knowledge to pupils by teaching, instructing, or lecturing. (2) The employee customarily and regularly exercises discretion and independent judgment in performing the duties of a teacher. (3) The employee earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. (4) The employee has attained at least one of the following levels of professional advancement: (A) A baccalaureate or higher degree from an accredited institution of higher education. (B) Current compliance with the requirements established by the California Commission on Teacher Credentialing, or the equivalent certification authority in another state, for obtaining a preliminary or alternative teaching credential. (c) This section does not apply to any tutor, teaching assistant, instructional aide, student teacher, day care provider, vocational instructor, or other similar employee. (d) The exemption established in subdivision (a) is in addition to, and does not limit or supersede, any exemption from overtime established by a Wage Order of the Industrial Welfare Commission for persons employed in a professional capacity, and does not affect any exemption from overtime established by that commission pursuant to subdivision (a) of Section 515 for persons employed in an executive or administrative capacity Except as provided in Section 512, the Industrial Welfare Commission may adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers in California consistent with the health and welfare of those workers (a) No employer who continuously operates a manufacturing facility 24 hours a day for seven days a week, and who has had in operation an established preexisting workweek arrangement, as defined in subdivision (b), shall be in violation of this code or any applicable wage order of the commission by instituting, pursuant to an agreement voluntarily executed by the employer and at least two-thirds of the affected employees before the performance of the work, a regularly scheduled workweek that includes three working days of not more than 12 hours a day, or regularly scheduled workweeks that include three working days of not more than 12 hours a day one week and four working days of not more than 12 hours a day in the following week for an average workweek of 42 hours over a two-week period. (b) For purposes of this section only, a "preexisting workweek arrangement" is defined as, and limited to, a workweek arrangement that existed before November 1980, and had to be modified or abandoned by an employer because the workweek arrangement did not qualify for any exemption provided by the Industrial Welfare Commission from its daily overtime requirements for collectively bargained arrangements, and did not otherwise comply with the daily overtime requirements of an applicable commission order. (c) The agreement described in subdivision (a) shall be confirmed by an affirmative vote by secret ballot by at least two-thirds of the affected employees, and may be rescinded at any time by a two-thirds vote of the affected employees. A new vote on whether the agreement described in subdivision (a) shall be continued shall be held every three years, and an affirmative vote by at least two-thirds of the affected employees shall be necessary to continue the agreement. (d) The employer shall not be required to pay premium wage rates to employees working a schedule described in subdivision (a) unless the employee is required or permitted to work more than 12 hours in any workday, more than the scheduled three or four days in any workweek, or more than 40 hours in any workweek. (e) This section shall not apply to any employer who is now, or in the future becomes, a party to a collective-bargaining agreement covering employees who would otherwise be covered by this section. (f) No employee working a schedule described in subdivision (a) shall be required to work more than four consecutive days within seven consecutive days (a) An employee may receive, in lieu of overtime compensation, compensating time off at a rate of not less than one and one-half hours for each hour of employment for which overtime compensation is required by law. If an hour of employment would otherwise be compensable at a rate of more than one and one-half times the employee's regular rate of compensation, then the employee may receive compensating time off commensurate with the higher rate. (b) An employer may provide compensating time off under subdivision (a) if the following four conditions are met: (1) The compensating time off is provided pursuant to applicable provisions of a collective bargaining agreement, memorandum of understanding, or other written agreement between the employer and the duly authorized representative

12 of the employer's employees; or, in the case of employees not covered by the aforementioned agreement or memorandum of understanding, pursuant to a written agreement entered into between the employer and employee before the performance of the work. (2) The employee has not accrued compensating time in excess of the limit prescribed by subdivision (c). (3) The employee has requested, in writing, compensating time off in lieu of overtime compensation. (4) The employee is regularly scheduled to work no less than 40 hours in a workweek. (c)(1) An employee may not accrue more than 240 hours of compensating time off. Any employee who has accrued 240 hours of compensating time off shall, for any additional overtime hours of work, be paid overtime compensation. (2) If compensation is paid to an employee for accrued compensating time off, the compensation shall be paid at the regular rate earned by the employee at the time the employee receives payment. (d) An employee who has accrued compensating time off authorized to be provided under subdivision (a) shall, upon termination of employment, be paid for the unused compensating time at a rate of compensation not less than the average regular rate received by the employee during the last three years of the employee's employment, or the final regular rate received by the employee, whichever is higher. (e)(1) An employee who has accrued compensating time off authorized to be provided under subdivision (a), and who has requested the use of that compensating time, shall be permitted by the employee's employer to use the time within a reasonable period after making the request, if the use of the compensating time does not unduly disrupt the operations of the employer. (2) Upon the request of an employee, the employer shall pay overtime compensation in cash in lieu of compensating time off for any compensating time off that has accrued for at least two pay periods. (3) For purposes of determining whether a request to use compensating time has been granted within a reasonable period, the following factors shall be relevant: (A) The normal schedule of work. (B) Anticipated peak workloads based on past experience. (C) Emergency requirements for staff and services. (D) The availability of qualified substitute staff. (f) Every employer shall keep records that accurately reflect compensating time earned and used. (g) For purposes of this section, the terms "compensating time" and "compensating time off" mean hours during which an employee is not working, which are not counted as hours worked during the applicable workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the employee's regular rate. (h) This section shall not apply to any employee exempt from the overtime provisions of the California wage orders. (i) This section shall not apply to any employee who is subject to the following wage orders of the Industrial Welfare Commission: Orders No. 8-80, 13-80, and (affecting industries handling products after harvest, industries preparing agricultural products for market on the farm, and agricultural occupations), Order No (affecting the canning, freezing, and preserving industry), Orders No and (affecting the public housekeeping and amusement and recreation industries), and Order No (affecting the manufacturing industry) Overtime wages: agricultural workers (a) Sections 551 and 552 do not apply to cases of emergency or to work performed in the protection of life or property from loss or destruction,or to any common carrier engaged in or connected with the movement of trains.. Nothing in this chapter shall be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day s rest in seven. The requirement respecting the equivalent of one day s rest in seven shall apply, notwithstanding the other provisions of this chapter relating to collective bargaining agreements, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement respecting the hours of work of the employees, unless the agreement expressly provides otherwise. (b) In addition to the exceptions specified in subdivision (a), the Chief of the Division of Labor Standards Enforcement may, when in his or her judgment hardship will result, exempt any employer or employees from the provisions of Sections 551 and 552. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. 8: Order Regulating Wages, Hours, and Working Conditions in the Manufacturing

13 Industry. 1. Applicability of Order This order shall apply to all persons employed in the manufacturing industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees herein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , 29 C.F.R C.F.R. 111, and 29 C.F.R C.F.R Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers, or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who are primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and nonexempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , 29 C.F.R C.F.R. 208, and 29 C.F.R , 29 C.F.R Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii)

14 Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in paragraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order 29 C.F.R , 29 C.F.R (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above, shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment. (i) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (j) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (V) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to

15 computer-related media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in sub-paragraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) Provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending California Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Manufacturing Industry" means any industry, business, or establishment operated for the purpose of preparing, producing, making, altering, repairing, finishing, processing, inspecting, handling, assembling, wrapping, bottling, or packaging goods, articles, or commodities, in whole or in part; EXCEPT when such activities are covered by Orders in the: Canning, Preserving, and Freezing Industry; Industries Handling Products After Harvest; Industries Preparing Agricultural Products for Market, on the Farm; or Motion Picture Industry. (I) "Minor" means, for the purpose of this Order, any person under the age of 18 years. (J) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (M) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" means any consecutive 24-hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" means any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 in a workweek unless the employee receives one and one half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and onehalf (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including twelve (12) hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a non-exempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one fortieth (1/40) of the employee's weekly salary. (2) The provisions of this section are not applicable to employees whose hours of service: (a) The United

16 States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (b) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and the following sections, regulating hours of drivers. (B) Alternative Workweeks (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two (2) consecutive days off within a workweek. (3) If an employer, whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1000, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his or her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to

17 another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection is met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non- English language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the Labor Commissioner, the Labor Commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 or 17 years old who are not required by law to attend school and may there-fore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (G) If a meal period occurs on a shift

18 beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) Except as provided in subsections (D) and (F), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (I) Notwithstanding subsection (H) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see section (F) above) shall apply, unless the agreement expressly provides otherwise. (J) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he or she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the make up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked effective January 1, 2002, except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85% percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep

19 accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day, and year and shall be kept on file by the employer for at least three (3) years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsection (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to subsections (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. The employee upon completion of the job shall return all items furnished by the employer. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy, which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment two-thirds $ per month $ per month (2/3)

20 of the ordinary rental value, and in no event more than Where a couple are $ per month $ per month both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated, as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The

21 temperature maintained in each work area shall provide reasonable comfort consistent with industrywide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14. Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The Labor Commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Personal Service Industry. 1. Applicability of Order This order shall apply to all persons employed in the personal service industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The

22 work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (1) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (1) above shall not apply to the

23 following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clause (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer, and includes any lessee who is charged rent, or who pays rent for a chair, booth, or space and (1) Who does not use his/her own funds to purchase requisite supplies; and (2) Who does not maintain an appointment book separate and distinct from that of the establishment in which the space is located; and

24 (3) Who does not have a business license where applicable. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Minor" means, for the purpose of this order, any person under the age of 18 years. (I) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (J) "Personal Service Industry" means any industry, business, or establishment operated for the purpose of rendering, directly or indirectly, any service, operation, or process used or useful in the care, cleansing, or beautification of the body, skin, nails, or hair, nor in the enhancement of personal appearance or health, including but not limited to beauty salons, schools of beauty culture offering beauty care to the public for a fee, barber shops, bath and massage parlors, physical conditioning, weight control salons, health clubs, and mortuaries. (K) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and ending time. (M) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24- hour period beginning at the same time each calendar day. Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 8 hours on the seventh (7th) consecutive day of work in a workweek. (2) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than 4 hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any

25 agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed 8 hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed 8 hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the

26 labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 or 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) The provisions of Labor Code Sections 551 and 552 regarding 1 day's rest in 7 shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work 7 or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in 7. (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) Except as provided in subsections (D) and (F), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (I) Notwithstanding subsection (H) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of 1 day's rest in 7 (see subsection (F) above) shall apply, unless the agreement expressly provides otherwise. (J) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13 C.F.R and the following sections, regulating hours of drivers. (K) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of

27 hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS. Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one hour's (1) pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (C) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) An Act of God or other cause not within the employer's control causes the interruption of work. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (1) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. The employer shall maintain an accurate production record. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the

28 name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. The employee upon completion of the job shall return all items furnished by the employer. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds $ per month $ per month (2/3) of the ordinary rental value, and in no event more than Effective Dates: January 1, 2001 January 1, 2002 Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50

29 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industrywide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15,

30 Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (2) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Canning, Freezing, and Preserving Industry. 1. Applicability of Order This order shall apply to all persons employed in the canning, freezing, and preserving industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who

31 regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this wage order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and(b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment. (ii) The employee is

32 primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, Chap. 365, amending California Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Canning, Freezing, and Preserving Industry" means any industry, business, or establishment operated for the purpose of canning soups, or of cooking, canning, curing, freezing, pickling, salting, bottling, preserving, or otherwise processing any fruits or vegetables, seafood, meat, poultry or rabbit product, when the purpose of such processing is the preservation of the product and includes all operations incidental thereto. (C) "Commission" means the Industrial Welfare Commission of the State of California. (D) "Division" means the Division of Labor Standards Enforcement of the State of California. (E) "Employ" means to engage, suffer, or permit to work. (F) "Employee" means any person employed by an employer. (C) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (H) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (I) "Minor" means, for the purpose of this order, any person under the age of 18 years. (J) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and ending time. (M) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the

33 employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible under the following conditions: (2) An employee may work up to a maximum of 72 in seven (7) consecutive days after which the employee shall have a 24 hour period off duty. Overtime hours shall be compensated at: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (3) The overtime rate of compensation required to be paid to a non-exempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (I) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee

34 who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7)

35 Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to California Labor Code Section 98 et seq.. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 and 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) If during any workday, an employer declares a work recess of one-half (1/2) hour or more, other than a meal period, and the employer notifies the employees of the time to report back for work and permits them to leave the premises, such recess need not be treated as hours worked provided that there shall not be more than two (2) such recess periods within one shift and the total duration does not exceed two (2) hours. Work stoppages of less than one-half (1/2) hour may not be deducted from hours worked. (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (I) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13 C.F.R and the following sections, regulating hours of drivers. (J) Except as provided in subsections (D) and (H), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (K) Notwithstanding subsection (J) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (H) above) shall apply, unless the agreement expressly provides otherwise. (L) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six

36 dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by

37 the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion e the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds $ per month $ per month (2/3) of the ordinary rental value, and in no event more than Effective Dates: January 1, 2001 January 1, 2002 Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and onehalf (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance

38 with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in Professional, Technical, Clerical, Mechanical, and Similar Occupations. 1. Applicability of Order This order shall apply to all

39 persons employed in professional, technical, clerical, mechanical, and similar occupations whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (I) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his employer's customers; or (II) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic

40 endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the

41 activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Emergency" means an unpredictable or unavoidable occurrence at unscheduled intervals requiring immediate action. (E) "Employ" means to engage, suffer, or permit to work. (F) "Employee" means any person employed by an employer. (G) "Employees in the health care industry" means any of the following: (1) Employees in the health care industry providing patient care; or (2) Employees in the health care industry working in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting; or (3) Employees in the health care industry working primarily or regularly as a member of a patient care delivery team; or (4) Licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care. (H) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (I) "Health care emergency" consists of an unpredictable or unavoidable occurrence at unscheduled intervals relating to healthcare delivery, requiring immediate action. (J) "Health care industry" is defined as hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, clinics operating 24 hours per day, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis. (K) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. Within the health care industry, the term "hours worked" means the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act. (L) "Minor" means, for the purpose of this order, any person under the age of 18 years. (M) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (N) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (O) "Professional, Technical, Clerical, Mechanical, and Similar Occupations" includes professional, semiprofessional, managerial, supervisorial, laboratory, research, technical, clerical, office work, and mechanical occupations. Said occupations shall include, but not be limited to, the following: accountants; agents; appraisers; artists; attendants; audio-visual technicians; bookkeepers; bundlers; billposters; canvassers; carriers; cashiers; checkers; clerks; collectors; communications and sound technicians; compilers; copy holders; copy readers; copy writers; computer programmers and operators; demonstrators and display representatives; dispatchers; distributors; door-keepers; drafters; elevator operators; estimators; editors; graphic arts technicians; guards; guides; hosts; inspectors; installers; instructors; interviewers; investigators; librarians; laboratory workers; machine operators; mechanics; mailers; messengers; medical and dental technicians and technologists; models; nurses; packagers; photographers; porters and cleaners; process servers; printers; proof readers; salespersons and sales agents; secretaries; sign erectors; sign painters; social workers; solicitors; statisticians; stenographers; teachers; telephone, radio-telephone, telegraph and call-out operators; tellers; ticket agents; tracers; typists; vehicle operators; x-ray technicians; their assistants and other related occupations listed as professional, semiprofessional, technical, clerical, mechanical, and kindred occupations. (P) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (Q) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (R) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in

42 an accredited college or university. (S) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (T) "Workday" and "day" mean any consecutive 24- hour period beginning at the same time each calendar day. (U) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and onehalf (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) If an employer, whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (11/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (3) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (4) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (I) of Section of the Government Code. (5) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (6) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (7) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of section (C)

43 below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. Notwithstanding the foregoing, if a health care industry employer implemented a reduced rate for 12- hour shift employees in the last quarter of 1999 and desires to re-implement a flexible work arrangement that includes 12-hour shifts at straight time for the same work unit, the employer must pay a base rate to each affected employee in the work unit that is no less than that employee's base rate in 1999 immediately prior to the date of the rate reduction. (8) Notwithstanding the above provisions regarding alternative workweek schedules, no employer of employees in the health care industry shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order a regularly scheduled alternative workweek schedule that includes work days exceeding ten (10) hours but not more than 12 hours within a 40 hour workweek without the payment of overtime compensation, provided that: (a) An employee who works beyond 12 hours in a workday shall be compensated at double the employee's regular rate of pay for all hours in excess of 12; (b) An employee who works in excess of 40 hours in a workweek shall be compensated at one and one-half (1 1/2) times the employee's regular rate of pay for all hours over 40 hours in the workweek; (c) Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift; (d) The same overtime standards shall apply to employees who are temporarily assigned to a work unit covered by this subsection; (e) Any employer who instituted an alternative workweek schedule pursuant to this subsection shall make a reasonable effort to find another work assignment for any employee who participated in a valid election prior to 1998 pursuant to the provisions of Wage Orders 4 and S and who is unable to work the alternative workweek schedule established; (f) An employer engaged in the operation of a licensed hospital or in providing personnel for the operation of a licensed hospital who institutes, pursuant to a valid order of the Commission, a regularly scheduled alternative workweek that includes no more than three (3) 12-hour workdays, shall make a reasonable effort to find another work assignment for any employee who participated in the vote which authorized the schedule and is unable to work the 12-hour shifts. An employer shall not be required to offer a different work assignment to an employee if such a work assignment is not available or if the employee was hired after the adoption of the 12 hour, three (3) day alternative workweek schedule. (9) No employee assigned to work a 12-hour shift established pursuant to this order shall be required to work more than 12-hours in any 24-hour period unless the Chief Nursing Officer or authorized executive declares that: (a) A "health care emergency", as defined above, exists in this order; and (b) All reasonable steps have been taken to provide required staffing; and (c) Considering overall operational status needs, continued overtime is necessary to provide required staffing. (10) Provided further that no employee shall be required to work more than 16 hours in a 24 hour period unless by voluntary mutual agreement of the employee and the employer, and no employee shall work more than 24 consecutive hours until said employee receives not less than eight (8) consecutive hours off duty immediately following the twenty-four consecutive hours of work. (11) Notwithstanding subsection (B)(9) above, an employee may be required to work up to 13 hours in any 24 hour period if the employee scheduled to relieve the subject employee does not report for duty as scheduled and does not inform the employer more than two (2) hours in advance of that scheduled shift that he/she will not be appearing for duty as scheduled. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted

44 in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. However, where an alternative workweek schedule was adopted between October 1, 1999 and October 1, 2000, a new secret ballot election to repeal the alternative workweek schedule shall not be subject to the 12 month interval between elections. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) The provisions of subsections (A), (B) and (C) above shall not apply to any employee whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions. (E) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 or 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (F) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10

45 p.m. and 6 am., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (I) Except as provided in subsections (E), (H) and (L), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (J) Notwithstanding subsection (I) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (H) above) shall apply, unless the agreement expressly provides otherwise. (K) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and following sections, regulating hours of drivers. (L) No employee shall be terminated or otherwise disciplined for refusing to work more than 72 hours in any workweek, except in an emergency as defined in Section 2(D). (M) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees during their first one 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage. rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an

46 employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's

47 minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds (2/3) $ per month $ per month of the ordinary rental value, and in no event more than Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-thejob paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (C) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. (D) Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day's written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and onehalf (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A

48 temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174 (a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Public Housekeeping Industry. 1. Applicability of Order This order shall apply to all persons employed in the public housekeeping industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to student nurses in a school accredited by the California Board of Registered Nursing or by the Board of Vocational Nurse and Psychiatric Technician Examiners or exempted by the provisions of Sections 2789 or 2884 of the Business and Professions Code; (B) Provisions of Sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of

49 time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement; and (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraph (a). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this Wage Order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6

50 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(B)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (I) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (II) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (C) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (D) The provisions of this order shall not apply to outside salespersons. (E) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (F) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Emergency" means an unpredictable or unavoidable occurrence at unscheduled intervals requiring immediate action. (E) "Employ" means to engage, suffer, or permit to work. (F) "Employee" means any person employed by an employer, and includes any lessee who is charged rent, or who pays rent for a chair, booth, or space; and (1) Who does not use his or her own funds to purchase requisite supplies; and (2) Who does not maintain an appointment book separate and distinct from that of the establishment in which the space is located; and (3) Who does not have a business license where applicable. (G) "Employees in the health care industry" means any of the following: (1) Employees in

51 the health care industry providing patient care; or (2) Employees in the health care industry working in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting; or (3) Employees in the health care industry working primarily or regularly as a member of a patient care delivery team; or (4) Licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care. (H) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (I) "Health care emergency" consists of an unpredictable or unavoidable occurrence at unscheduled intervals relating to healthcare delivery, requiring immediate action. (J) "Health care industry" is defined as hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, clinics operating 24 hours per day, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis. (K) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so, and in the case of an employee who is required to reside on the employment premises, that time spent carrying out assigned duties shall be counted as hours worked. Within the health care industry, the term "hours worked" means the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, as interpreted in accordance with the provisions of the Fair Labor Standards Act. (L) "Minor" means, for the purpose of this order, any person under the age of 18 years. (M) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (N) "Personal attendant" includes baby sitters and means any person employed by a non-profit organization covered by this order to supervise, feed or dress a child or person who by reason of advanced age, physical disability or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required. (O) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (P) "Public Housekeeping Industry" means any industry, business, or establishment which provides meals, housing, or maintenance services whether operated as a primary business or when incidental to other operations in an establishment not covered by an industry order of the Commission, and includes, but is not limited to the following: (1) Restaurants, night clubs, taverns, bars, cocktail lounges, lunch counters, cafeterias, boarding houses, clubs, and all similar establishments where food in either solid or liquid form is prepared and served to be consumed on the premises; (2) Catering, banquet, box lunch service, and similar establishments which prepare food for consumption on or off the premises; (3) Hotels, motels, apartment houses, rooming houses, camps, clubs, trailer parks, office or loft buildings, and similar establishments offering rental of living, business, or commercial quarters; (4) Hospitals, sanitariums, rest homes, child nurseries, child care institutions, homes for the aged, and similar establishments offering board or lodging in addition to medical, surgical, nursing, convalescent, aged, or child care; (5) Private schools, colleges, or universities, and similar establishments which provide board or lodging in addition to educational facilities; (6) Establishments contracting for development, maintenance or cleaning of grounds; maintenance or cleaning of facilities and/or quarters of commercial units and living units; and (7) Establishments providing veterinary or other animal care services. (Q) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (R) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (5) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (T) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (U) "Workday" and "day" mean any consecutive 24- hour period beginning at the same time each calendar day. (V) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in

52 any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and onehalf (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (3) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (4) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (5) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (6) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (7) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. Notwithstanding the foregoing, if a health care industry employer implemented a reduced rate for 12- hour shift employees in the last quarter of 1999 and desires to re-implement a flexible work arrangement

53 that includes 12-hour shifts at straight time for the same work unit, the employer must pay a base rate to each affected employee in the work unit that is no less than that employee's base rate in 1999 immediately prior to the date of the rate reduction. (8) Notwithstanding the above provisions regarding alternative workweek schedules, no employer of employees in the health care industry shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order a regularly scheduled alternative workweek schedule that includes work days exceeding ten (10) hours but not more than 12 hours within a 40 hour workweek without the payment of overtime compensation, provided that: (a) An employee who works beyond 12 hours in a workday shall be compensated at double the employee's regular rate of pay for all hours in excess of (12); (b) An employee who works in excess of 40 hours in a workweek shall be compensated at one and one-half (11/2) times the employee's regular rate of pay for all hours over 40 hours in the workweek; (c) Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift; (d) The same overtime standards shall apply to employees who are temporarily assigned to a work unit covered by this subsection; (e) Any employer who instituted an alternative workweek schedule pursuant to this subsection shall make a reasonable effort to find another work assignment for any employee who participated in a valid election prior to 1998 pursuant to the provisions of Wage Orders 4 and 5 and who is unable to work the alternative workweek schedule established; (f) An employer engaged in the operation of a licensed hospital or in providing personnel for the operation of a licensed hospital who institutes, pursuant to a valid order of the Commission, a regularly scheduled alternative workweek that includes no more than three (3) 12-hour workdays, shall make a reasonable effort to find another work assignment for any employee who participated in the vote which authorized the schedule and is unable to work the 12-hour shifts. An employer shall not be required to offer a different work assignment to an employee if such a work assignment is not available or if the employee was hired after the adoption of the 12 hour, three (3) day alternative workweek schedule. (9) No employee assigned to work a 12-hour shift established pursuant to this order shall be required to work more than 12 hours in any 24-hour period unless the Chief Nursing Officer or authorized executive declares that: (a) A "healthcare emergency", as defined above exists in this order; and (b) All reasonable steps have been taken to provide required staffing; and (c) Considering overall operational status needs, continued overtime is necessary to provide required staffing. (10) Provided further that no employee shall be required to work more than 16 hours in a 24-hour period unless by voluntary mutual agreement of the employee and the employer, and no employee shall work more than 24 consecutive hours until said employee receives not less than eight (8) consecutive hours off duty immediately following the 24 consecutive hours of work. (11) Notwithstanding subsection (B)(9) above, an employee may be required to work up to 13 hours in any 24-hour period if the employee scheduled to relieve the subject employee does not report for duty as scheduled and does not inform the employer more than two (2) hours in advance of that scheduled shift that he/she will not be appearing for duty as scheduled. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of workdays and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of

54 the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. However, where an alternative workweek schedule was adopted between October 1, 1999 and October 1, a new secret ballot election to repeal the alternative workweek schedule shall not be subject to the 12-month interval between elections. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this subparagraph shall be subject to Labor Code Section 98 et seq. (D) No employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises shall be deemed to have violated any provision of this section if, pursuant to an agreement or understanding arrived at between the employer and employee before performance of work, a work period of 14 consecutive days is accepted in lieu of the workweek of seven (7) consecutive days for purposes of overtime computation and if, for any employment in excess of 80 hours in such 14 day period, the employee receives compensation at a rate not less than one and one-half (1 1/2) times the regular rate at which the employee is employed. (E)(1) This section does not apply to organized camp counselors who are not employed more than 54 hours and not more than six (6) days in any workweek except under the conditions set forth below. This section shall also not apply to personal attendants as defined in Section 2(N), nor to resident managers of homes for the aged having less than eight (8) beds; provided that persons employed in such occupations shall not be employed more than 40 hours nor more than six (6) days in any workweek, except under the following conditions: In the case of emergency, employees may be employed in excess of 40 hours or six (6) days in any workweek provided the employee is compensated for all hours in excess of 40 hours and days in excess of six (6) days in the workweek at not less than one and one-half (1 1/2) times the employee's regular rate of pay. However, regarding organized camp counselors, in case of emergency they may be employed in excess of 54 hours or six (6) days, provided that they are compensated at not less than one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of 54 hours and six (6) days in the workweek. (2) Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24 hour residential care, may, without violating any provision of this section, be compensated as follows: (a) An employee who works in excess of 40 hours in a workweek shall be compensated at one and one-half

55 (11/2) times the employee's regular rate of pay for all hours over 40 hours in the workweek. (b) An employee shall be compensated at two (2) times the employee's regular rate of pay for all hours in excess of 48 hours in the workweek. (c) An employee shall be compensated at two (2) times the employee's regular rate of pay for all hours in excess of 16 in a workday. (d) No employee shall work more than 24 consecutive hours until said employee receives not less than eight (8) consecutive hours off-duty immediately following the 24 consecutive hours of work. Time spent sleeping shall not be included as hours worked. (F) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors sixteen (16) or 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A), (B), (C), or (D) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (G) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (H) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (I) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and following sections, regulating hours of drivers. (J) The daily overtime provisions of subsection (A) above shall not apply to ambulance drivers and attendants scheduled for 24-hours shifts of duty who have agreed in writing to exclude from daily time worked not more than three (3) meal periods of not more than one (1) hour each and a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours. The employer shall provide adequate dormitory and kitchen facilities for employees on such a schedule. (K) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (L) Except as provided in subsections (F) and (K), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (M) Notwithstanding subsection (L) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (K) above) shall apply, unless the agreement expressly provides otherwise. (N) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except:

56 LEARNERS: Employees during their 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 per cent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective

57 apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds (2/3) $ per month $ per month of the ordinary rental value, and in no event more than Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-thejob paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (C) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. (D) Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one (1) day's written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect. (E) Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24 hour residential care, and employees of 24 hour residential care facilities for the elderly, blind or developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met: (1)(a) The residential care employees eats with residents during residents' meals and the employer provides the same meal at no charge to the employee; or (b) The employee is in sole charge of the resident(s) and, on the day shift, the employer provides a meal at no

58 charge to the employee. (2) An employee, except for the night shift, may exercise the right to have an off-duty meal period upon 30 days' notice to the employer for each instance where an off-duty meal is desired, provided that, there shall be no more than one off-duty meal period every two weeks. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted, as hours worked, for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. (C) However, employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24 hour residential care and employees of 24 hour residential care facilities for elderly, blind or developmentally disabled individuals may, without penalty, require an employee to remain on the premises and maintain general supervision of residents during rest periods if the employee is in sole charge of residents. Another rest period shall be authorized and permitted by the employer when an employee is affirmatively required to interrupt his/her break to respond to the needs of residents. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (C) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174 (a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount

59 which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Laundry, Linen Supply, Dry Cleaning, and Dyeing Industry. 1. Applicability of Order This order shall apply to all persons employed in the laundry, linen supply, dry cleaning and dyeing industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption. A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption. A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek

60 must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption. A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). (d) Who cams a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in California Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be

61 effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending California Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Laundry, Linen Supply, Dry Cleaning and Dyeing Industry" means any industry, business, or establishment operated for the purpose of washing, ironing, cleaning, refreshing, restoring, pressing, dyeing, storing, fumigating, mothproofing, waterproofing, or other processes incidental thereto, on articles or fabrics of any kind, including but not limited to clothing, hats. drapery, rugs, curtains, linens, household furnishings, textiles, furs, or leather goods; and includes self-service laundries, self-service dry cleaning establishments, and the collection, distribution, storage, sale, or resale at retail or wholesale of the foregoing services. (I) "Minor" means, for the purpose of this order, any person under the age of 18 years. (J) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (M) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1)

62 The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as onefortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule in the manner provided by subdivision (j) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime

63 rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except that minors 16 and 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are

64 subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) The provisions of California Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) Except as provided in subsections (D) and (F), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (I) Notwithstanding subsection (H) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (F) above) shall apply, unless the agreement expressly provides otherwise. (J) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and the following sections, regulating hours of drivers. (K) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subparagraph. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two

65 (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All

66 items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds (2/3) $ per month $ per month of the ordinary rental value, and in no event more than Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during nonworking hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature

67 of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Mercantile Industry. 1. Applicability of Order This order shall apply to all persons employed in the mercantile industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost,

68 be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or their employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraph (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment as defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties

69 for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clause (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer, and includes any lessee who is charged rent, or who pays rent for a chair, booth, or space; and (1) Who does not use his/her own funds to purchase requisite supplies; and (2) Who does not maintain an appointment book separate and distinct from that of the establishment in which the space is located; and (3) Who does not have a business license where applicable. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or

70 any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Mercantile Industry" means any industry, business, or establishment operated for the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities. (I) "Minor" means, for the purpose of this Order, any person under the age of eighteen (18) years. (J) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than onehalf the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (M) "Split shift" means a work schedule which, is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24- hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and onehalf (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight

71 (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the

72 alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 a seq. (D) Provisions of subsections (A), (B), and (C) above shall not apply to any employee whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions. (E) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 and 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (F) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (I) Except as provided in subsections (E) and (H), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (J) Notwithstanding subsection (I) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (H) above) shall apply, unless the agreement expressly provides otherwise. (K) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and the following sections, regulating hours of drivers. (L) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup

73 time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this section. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees during their first one 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses For Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other

74 indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds (2/3) $ per month $ per month of the ordinary rental value, and in no event more than Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment

75 where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during nonworking hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (C) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or

76 unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Industries Handling Products After Harvest. 1. Applicability of Order This order shall apply to all persons employed in the industries handling products after harvest whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or nonmanual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this

77 subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt from the daily overtime pay provisions of Labor Code Section 510, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computerrelated occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated

78 by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child or the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24- hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Industries Handling Products After Harvest" means any industry, business, or establishment operated for the purpose of grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution, and includes all the operations incidental thereto. (I) "Minor" means, for the purpose of this order, any person under the age of 18 years. (J) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (M) "Split shift" means a work schedule, which is interrupted by nonpaid non-working periods established by the employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible under the following conditions: (2) MANDATORY DAY OFF REQUIREMENT: An employee may work up to a maximum of 72 hours in any workweek after which the employee shall have a 24-hour period off duty, except that: (a) In the grape and tree fruit industry the following key personnel: receivers, loaders, fork lift operators, shipping clerks, and maintenance workers, may be

79 exempt from the mandatory day off requirement; and (b) In the cotton ginning industry and in the tree nut hulling and shelling industry, all employees shall have the voluntary right to be exempt from the mandatory day off provision in this order. Any employee desiring to exempt himself/herself from the mandatory day off provision may exercise that exemption by notifying the employee's employer in writing. Any employee who wishes to withdraw that exemption may do so by notifying the employer in writing at least five (5) days in advance of the desired day off. (This notice provision is not intended to be applicable to instances of illness or emergencies); and (c) In the exercise of any exemption from the mandatory day off provided above or by action of the state labor commissioner, (administrative exemptions from the mandatory day off are permitted by Labor Code Section under certain conditions) no employer shall discriminate against any employee who desires to take 24 hours off after 72 hours worked in a workweek; and (d) All employers who permit any employees to work more than 72 hours in a workweek must give each employee a copy of the applicable provision for exemption, including subparagraph (c) above in English and in Spanish, and post it at all times in a prominently visible place; and (3) Overtime hours shall be compensated at: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1,

80 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of workdays and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions

81 concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this paragraph shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 or 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) If during any workday an employer declares a work recess of one-half (1/2) hour or more, other than a meal period, and the employer notifies the employees of the time to report back for work and permits them to leave the premises, such recess need not be treated as hours worked provided that there shall not be more than two (2) such recess periods within one shift and the total duration does not exceed two (2) hours. Work stoppages of less than one-half (1/2) hour may not be deducted from hours worked. (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (I) Except as provided in subsection (A)(1) and subsections (D) and (H), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (J) Notwithstanding subsection (I) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (H) above) shall apply, unless the agreement expressly provides otherwise. (K) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 49 C.F.R to 49 C.F.R , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and the following sections, regulating hours of drivers. (L) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each

82 employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and

83 maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.10 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two thirds (2/3) $ per month $ per month of the ordinary rental value, and in no event more than Where a couple are both $ per month $ per month employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than Meals: Breakfast $2.25 $2.45 Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their

84 clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Transportation Industry. 1. Applicability of Order This order shall apply to all persons employed in the transportation industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized

85 department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the

86 performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (17) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (17) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) Except as provided in Sections 4, 10, 11, 12, and 20 through 22, this order shall not be deemed to cover those employees who have

87 entered into a collective bargaining agreement under and in accordance with the provisions of the Railway Labor Act, 45 U.S.C. 151 et seq. (F) The provisions of this Order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (C) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Minor" means, for the purpose of this order, any person under the age of 18 years. (I) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (J) "Primarily" as used in Section 1, Applicability, means more than onehalf the employee's work time. (K) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (L) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (M) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (N) "Transportation Industry" means any industry, business, or establishment operated for the purpose of conveying persons or property from one place to another whether by rail, highway, air, or water, and all operations and services in connection therewith; and also includes storing or warehousing of goods or property, and the repairing, parking, rental, maintenance, or cleaning of vehicles. (0) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and onehalf (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be

88 paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee' s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (3) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (4) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (I) of Section of the Government Code. (5) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (6) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (7) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in

89 English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (v) Any type of alternative workweek schedule that is authorized by the California Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to California Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 or 17 years old who are not required by law to attend school and may therefore by employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 am., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (G) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (H) Except as provided in subsections (E) and (G), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (I) Notwithstanding subsection (H) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (G) above) shall apply, unless the agreement expressly provides otherwise. (J) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time,

90 if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. (K) The daily overtime provision of subsection (A) above shall not apply to ambulance drivers and attendants scheduled for 24-hour shifts of duty who have agreed in writing to exclude from daily time worked not more than three (3) meal periods of not more than one (1) hour each and a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours. The employer shall provide adequate dormitory and kitchen facilities for employees on such a schedule. (L) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections to , Hours of Service of Drivers, or; (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 13:1200 and the following sections, regulating hours of drivers. (M) The provisions of this section shall not apply to taxicab drivers. (N) The provisions of this section shall not apply where any employee of an airline certified by the federal or state government works over 40 hours but not more than 60 hours in a workweek due to a temporary modification in the employee's normal work schedule not required by the employer but arranged at the request of the employee, including but not limited to situations where the employee requests a change in days off or trades days off with another employee. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee' s scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more

91 frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within a reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per week Where a couple are both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If,

92 as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer falls to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industrywide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice

93 is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Broadcasting Industry. 1. Applicability of Order This order shall apply to all persons employed in the broadcasting industry whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes

94 under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and(b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1 (A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to

95 user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to professional actors. (D) The provisions of this order shall not apply to outside salespersons. (E) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (F) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending California Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Broadcasting Industry" means any industry, business, or establishment operated for the purpose of broadcasting or taping and broadcasting programs through the medium of radio or television. (C) "Commission" means the Industrial Welfare Commission of the State of California. (D) "Division" means the Division of Labor Standards Enforcement of the State of California. (E) "Employ" means to engage, suffer, or permit to work. (F) "Employee" means any person employed by an employer. (G) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (H) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (I) "Location" means any place other than the studio premises of the employer, at which the employer broadcasts or tapes for broadcast all or a portion of a radio or television program. (J) "Minor" means, for the purpose of this order, any person under the age of 18 years. (K) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (L) "Primarily" as used in Section 1, "Applicability", means more than one-half the employee's work time. (M) "Shift" means designated hours of work by an employee, with a designated beginning time and ending time. (N) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (O) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (P) "Wages" includes all amounts for labor performed by employees

96 of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (Q) "Workday" and "day" mean any consecutive 24- hour period beginning at the same time each calendar day. (R) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime-General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (a) One and onehalf (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the

97 requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, a new secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the

98 alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 and 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed for seven (7) days in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (G) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (H) Except as provided in subsections (D) and (G), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (I) Notwithstanding subsection (H) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (I) day's rest in seven (7) (see subsection (G) above) shall apply, unless the agreement expressly provides otherwise. (J) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. (K) The provisions of this section shall not apply to any person employed as an announcer, news editor, or chief engineer, by a radio or television station in a city or town which has a population of 25,000 or less. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002 except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's

99 work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and

100 following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per week Where a couple are both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period maybe waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and

101 employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Motion Picture Industry. 1. Applicability of Order This order shall apply to all persons employed in the motion picture industry, including extra players, teachers, and welfare workers, whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act

102 effective as of the date of this order: 29 C.F.R , , and ). Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties that meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the

103 purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Notwithstanding subparagraph (f), the following advanced practice nurses shall be exempt from provisions of this subsection: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computerrelated occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to professional actors. (D) The provisions of this order shall not apply to outside salespersons. (E) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (F) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending California Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person

104 employed by an employer. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Extra player" means any person employed by an employer in the production of motion pictures to perform any work, including but not limited to that of a general extra, stand-in, photographic double, sports player, silent bit, or dress extra; or as extras employed in dancing, skating, swimming, diving, riding, driving, or singing; or as extras employed to perform any other actions, gestures, facial expressions, or pantomime. (H) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (I) "Location" means any place other than the studio premises of the employer, at which the employer shoots all or a portion of a motion picture. (J) "Minor" means, for the purpose of this order, any person under the age of 18 years. (K) "Motion Picture Industry" means any industry, business, or establishment operated for the purpose of motion picture or television film production, or primarily allied with theatrical or television, motion picture productions, including but not limited to motion pictures for entertainment, commercial, religious, or educational purposes, whether made by film, tape, or otherwise. (L) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (M) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (N) "Shift" means designated hours of work by an employee, with a designated beginning time and ending time. (O) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (P) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (Q) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (R) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the work week. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime as follows: (a) Employees may be employed up to a maximum of 16 hours including meal periods in any one day from the time they are required and do report until dismissed, provided the employee is compensated for such overtime at not less than: (i) For daily employees and weekly employees, excluding weekly employees guaranteed more than 40 hours a workweek and "on call" employees, one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any one workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (ii) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (iii) Overtime payments shall not be compounded and all payments made by the employer for daily overtime on the basis herein above specified shall be applied toward any sum for weekly overtime. (iv) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative

105 workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (11/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (I) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at

106 least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to California Labor Code Section 98 et seq. (D) Extra players employed in excess of eight (8) hours in any workday from the time the extra player is required and does report until dismissed, shall be paid daily overtime compensation as follows: (1) One and one-half (1 1/2) times the extra player's rate of pay for the ninth (9th) and tenth (10th) work hours of employment and not less than double the extra player's rate of pay for all hours worked thereafter, computed in units of one-tenth (1/10) hours. (2) Weekly overtime. The total sum paid to an extra player who works more than 40 hours in such workweek for a particular employer shall be the extra player's regular hourly rate of pay times 40, plus one and one-half (1 1/2) times such regular hourly rate of pay for all hours worked in excess of 40 during such workweek. The regular hourly rate shall be determined by dividing the amount of the weekly salary by the number of regular hours in a workweek. (3) An extra player employed by the week shall receive payment of daily overtime for all hours or fractions thereof worked beyond eight (8) hours in any workday on which such daily overtime occurs as provided above, provided that overtime payments shall not be compounded and all payments made by the employer for daily overtime on the basis herein above specified shall be applied toward any sum due for weekly overtime. (E) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all hours worked on the sixth (6th) consecutive workday except that minors 16 and 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsections (A), (B), (C) or (D) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (F) No employee shall be required to report to work unless ten (10) hours have elapsed since the termination of the previous day's employment. (G) Hot meals and hot drinks shall be provided for employees who are required to work after 12 o'clock midnight, except off-production employees regularly scheduled to work after midnight. (H) When employees are required to work at night and are

107 not dismissed in time to permit their return to their homes by public service transportation, transportation shall be provided by the employer. (I) The provisions of California Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (J) Except as provided in subsections (E) and (I), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (K) Notwithstanding subsection (J) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (I) above) shall apply, unless the agreement expressly provides otherwise. (L) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except: LEARNERS: Employees, during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the

108 employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per week Where a couple are both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the

109 minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than six (6) hours without a meal period of not less than 30 minutes, nor more than one (1) hour. Subsequent meal period for all employees shall be called not later than six (6) hours after the termination of the preceding meal period. (B) Unless the employee is relieved of all duty during a 30-minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (C) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (D) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. (C) Swimmers, dancers, skaters, and other performers engaged in strenuous physical activities shall have additional interim rest periods during periods of actual rehearsal or shooting. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68 (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for

110 exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in the Industries Preparing Agricultural Products for Market, on the Farm. 1. Applicability of Order This order shall apply to all persons employed in industries preparing agricultural products for market, on the farm, whether paid on a time, piece rate, commission, or other basis, except that: (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professional capacities. The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (i) The performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his/her employer's customers; or (ii) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section); or (d) Who performs under only general supervision work along specialized or

111 technical lines requiring special training, experience, or knowledge; or (e) Who executes under only general supervision special assignments and tasks; and (f) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R , , , and Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (g) Such employee must also cam a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and(b). (d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this wage order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1 (A)(3)(a)-(d) above. (h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation,

112 testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall adjust this pay rate on October I of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagrah (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in Sections 1, 2, 4, 10, and 20, the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city, county, or special district. (C) The provisions of this order shall not apply to outside salespersons. (D) The provisions of this order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Employ" means to engage, suffer, or permit to work. (E) "Employee" means any person employed by an employer. (F) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Industries Preparing Agricultural Products for Market, on the Farm" means any operation performed in a permanently fixed structure or establishment on the farm or on a moving packing plant on the farm for the purpose of preparing agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced the products referred to herein and includes all operations incidental thereto. (I) "Minor" means, for the purpose of this order, any person under the age of 18 years. (J) "Outside salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (K) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (L) "Shift" means designated hours of work by an employee, with a designated beginning time and ending time. (M) "Split shift" means a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (N) "Teaching" means, for the purpose of Section 1 of this order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in

113 an accredited college or university. (O) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (P) "Workday" and "day" mean any consecutive 24- hour period beginning at the same time each calendar day. (Q) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) Daily Overtime General Provisions (1) The following overtime provisions are applicable to employees 18 years of age or over and to employees 16 or 17 years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible under the following conditions: (a) Any work by an employee in excess of 72 hours in any one workweek shall be on a voluntary basis. No employee shall be discharged or in any other manner discriminated against for refusing to work in excess of 72 hours in any one workweek; and (2) Overtime hours shall be compensated at: (a) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (b) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (c) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as one-fortieth (1/40) of the employee's weekly salary. (B) Alternative Workweek Schedules (1) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the purpose of computing overtime compensation. (2) Any agreement adopted pursuant to this section shall provide not less than two consecutive days off within a workweek. (3) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (4) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (5) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (I) of Section of the Government Code. (6) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (7) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (8) Arrangements adopted in a

114 secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000 provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of subsection (C) below (Election Procedures). If an employee was voluntarily working an alternative workweek schedule of not more than ten (10) hours a day as of July 1, 1999, that alternative workweek schedule was based on an individual agreement made after January 1, 1998 between the employee and employer, and the employee submitted, and the employer approved, a written request on or before May 30, 2000 to continue the agreement, the employee may continue to work that alternative workweek schedule without payment of an overtime rate of compensation for the hours provided in the agreement. The employee may revoke his/her voluntary authorization to continue such a schedule with 30 days written notice to the employer. New arrangements can only be entered into pursuant to the provisions of this section. (C) Election Procedures Election procedures for the adoption and repeal of alternative workweek schedules require the following: (1) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of workdays and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (2) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection are met. (3) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void. (4) Any election to establish or repeal an alternative workweek schedule shall be held at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (5) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (2/3) vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (6) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (7) Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at

115 least 30 days after the announcement of the final results of the election. (8) Employers shall not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of this paragraph shall be subject to Labor Code Section 98 et seq. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over 40 hours in any workweek except minors 16 and 17 years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsection (A) or (B) and (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (F) If, during any workday an employer declares a work recess of one-half (1/2) hour or more, other than a meal period, and the employer notifies the employees of the time to report back for work and permits them to leave the premises, such recess need not be treated as hours worked provided that there shall not be more than two (2) such recess periods within one shift and the total duration does not exceed two (2) hours. Work stoppages of less than one-half (1/2) hour may not be deducted from hours worked. (G) If a meal period occurs on a shift beginning or ending at or between the hours of 10 p.m. and 6 a.m., facilities shall be available for securing hot food and drink or for heating food or drink, and a suitable sheltered place shall be provided in which to consume such food or drink. (H) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (I) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections to , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200 and the following sections, regulating hours of drivers. (J) Except as provided in subsection (A)(1) and subsections (D) and (H), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (K) Notwithstanding subsection (J) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see subsection (II) above) shall apply, unless the agreement expressly provides otherwise. (L) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one (1) workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this subsection. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked, effective January 1, 2002, except:

116 LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective

117 apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week $26.20 per week Apartment-two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per week Where a couple are both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received or lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and the employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided. (E) In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the

118 safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Temperature (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industrywide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60 F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68. (C) A temperature of not less than 68 shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a)) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The labor commissioner may also issue citations pursuant to California Labor Code Section for non-payment of wages for overtime work in violation of this order. 21. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in Agricultural Occupations. 1. Applicability of Order. This order shall apply to all persons employed in an agricultural occupation whether paid on a time, piece rate, commission, or other basis, except that: (A) No provision of this order shall apply to any employee who is engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment, and for which the remuneration is not less than two times the monthly State minimum wage for full-time employment. (B)

119 No provision of this order shall apply to any individual who is the parent, spouse, child, or legally adopted child of the employer; (C) Section 5 of this order shall not apply to any employer who employs fewer than five (5) persons covered by this order. If at any one time during a calendar year an employer has five (5) or more employees covered by this Order, every provision of this Order, including Section 5, Reporting Time Pay, shall apply to that employer throughout that calendar year. (D) No provision of this order shall apply to any employee covered by order No or Order No , relating to industries handling products after harvest. (E) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, chap. 365, amending Labor Code 1171) (F) Sections 3, 4(A)-(D), 5, 6, 9, 11, 12, and 13 of this Order shall not apply to an employee engaged to work as a "sheepherder", as that occupation is defined in Section 2(N). Otherwise, this order, including Section 4(A), shall apply to any workweek during which a sheepherder employee is engaged in any non-sheepherding agricultural or other work. (G) Section 3 of this order shall not apply to an employee licensed pursuant to Article 3 (commencing with 7850) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code who serves as a crew member on a commercial fishing vessel. 2. Definitions. (A) "Commission" means the Industrial Welfare Commission of the State of California. (B) "Division" means the Division of Labor Standards Enforcement of the State of California. (C) "Employ" means to engage, suffer, or permit to work. (D) "Employed in an agricultural occupation," means any of the following described occupations: (1) The preparation, care, and treatment of farm land, pipeline, or ditches, including leveling for agricultural purposes, plowing, discing, and fertilizing the soil; (2) The sowing and planting of any agricultural or horticultural commodity; (3) The care of any agricultural or horticultural commodity, as used in this subdivision, "care" includes, but is not limited to, cultivation, irrigation, weed control, thinning, heating, pruning, or tying, fumigating, spraying, and dusting; (4) The harvesting of any agricultural or horticultural commodity, including but not limited to, picking, cutting, threshing, mowing, knocking off, field chopping, bunching, baling, balling, field packing, and placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to a place of first processing or distribution; (5) The assembly and storage of any agricultural or horticultural commodity, including but not limited to, loading, road siding, banking, stacking, binding, and piling; (6) The raising, feeding and management of livestock, fur bearing animals, poultry, fish, mollusks, and insects, including but not limited to herding, housing, hatching, milking, shearing, handling eggs, and extracting honey; (7) The harvesting of fish, as defined by Section 45 of the Fish and Game Code, for commercial sale; (8) The conservation, improvement or maintenance of such farm and its tools and equipment. (F) "Employee" means any person employed by an employer. (G) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (G) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (H) "Minor" means, for the purpose of this Order, any person under the age of eighteen (18) years. (I) "Non-sheepherding work" means any work except the work defined in section 2(N) below. (J) "Open range sheepherding" means, generally, sheepherding on land that is not cultivated, but produces native forage ("browse" or herbaceous food that is available to livestock or game ammals) for animal consumption, and includes land that is revegetated naturally or artificially to provide forage cover that is managed like range vegetation. The range may be on private, federal, or state land. Typically, the land is not only non-cultivated, but not suitable for cultivation because it is rocky, thin, semiarid, or otherwise poor. Also, many acres of range land are required to graze one animal unit (five sheep) for one month. By its very nature, open range sheepherding is conducted over wide expanses of land, such as thousands of acres. (K) "Outside Salesperson" means any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities. (L) "Piece rate basis" is a method of payment based on units of production or a fraction thereof. (M) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (N) "Sheepherder" means any individual, who is employed to do any of the following: tend flocks of sheep grazing on range or pasture; move sheep to and about an area assigned for grazing; prevent sheep from wandering or becoming lost, or using trained dogs to round up strays and protect sheep against predators and the eating of poisonous plants; assist in the lambing, docking, and shearing of sheep; provide water or feed

120 supplementary rations to sheep; or perform the work of a sheepherder pursuant to an approved job order filed under the provisions of Section 101(a)(15)(H)(ii)(a) of the federal Immigration and Nationality Act (commonly referred to as the "H-2A" program (see 8 U.S.C et seq.), or any successor provisions. (O) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (P) "Split shift" means a work schedule which is interrupted by non-paid nonworking periods established by the employer, other than bona fide rest or meal periods. (Q) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (R) "Workday" means any consecutive 24 hours beginning at the same time each calendar day. (S) "Workweek" means any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work. (A) The following overtime provisions are applicable to employees eighteen (18) years of age or over and to employees sixteen (16) or seventeen (17) years of age who are not required by law to attend school: such employees shall not be employed more than ten (10) hours in any one workday or more than six (6) days in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over ten (10) hours in any workday and for the first eight (8) hours on the seventh (7th) day of work and double the employee' s regular rate of pay for all hours worked over eight (8) on the seventh (7th) day of work in the workweek. (See California Labor Code, sections 1391 and 1394) (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $100 to $5,000 as well as to criminal penalties provided herein. Refer to California Labor Code Sections 1285 to 1311 and 1390 to 1398 for additional restrictions on the employment of minors. Employers should ask school districts about required work permits.) (B) An employee may be employed on seven (7) workdays in one workweek with no overtime pay required when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6). (C) The provisions of subsection (A) above shall not apply to an employee covered by this order during any week in which more than half of such employee's working time is devoted to performing the duties of an irrigator. (D) The provisions of this section are not applicable to employees whose hours of service are regulated by: (1) The United States Department of Transportation Code of Federal Regulations, title 49, Sections to , Hours of Service of Drivers; or (2) Title 13 of the California Code of Regulations, subchapter 6.5, sec. 13:1200 and following sections, regulating hours of drivers. (E) This section shall not apply to any employee covered by a collective bargaining agreement if said agreement provides premium wage rates for overtime work and a cash wage rate for such employee of not less than one dollar ($1.00) per hour more than the minimum wage 4. Minimum Wages. (A) Every employer shall pay to each employee wages not less than six dollars and twenty-five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy-five cents ($6.75) per hour for all hours worked effective January 1, 2002, except: LEARNERS: Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than 85 per cent of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. (E) Effective July 1, 2001, the minimum wage for all sheepherders shall be $1, per month; effective July 1, 2002 the minimum wage for all sheepherders shall be $1, per month. Wages paid to sheepherders shall not be offset by meals or lodging provided by the employer. 5. Reporting Time Pay. (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee' s regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due

121 to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee' s scheduled reporting time. 6. Licenses for Disabled Workers. (A) A license may be issued by the Division authorizing employment of a person whose earning capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee' s representative if any. (C) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (D) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records. (A) Every employer shall keep accurate information with respect to each employee I including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which, operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Employers of sheepherders shall keep accurate information with respect to sheepherder employees, including an itemized statement showing applicable rates of pay for sheepherding and any applicable non-sheepherding agricultural or other work, all deductions, dates of period for which paid, name and social security number (if any) of employee, and name of employer. (C) Every employer shall semi-monthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (D) Every employer of a sheepherder shall annually notify the sheepherder of his or hers rights and obligations under state and federal law. (E) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years (3) at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. 8. Cash Shortage and Breakage. No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment. (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the

122 event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging. (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy, which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates January 1, 2001 January 1, 2002 Room occupied alone... $29.40 per week $31.75 per week Room shared... $24.25 per week $26.20 per week Apartment two-thirds (2/3) of the ordinary rental value, and in no event more than... $ per month $ per month Where a couple are both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than... $ per month $ per month Meals: Breakfast... $2.25 $2.45 Lunch... $3.10 $3.35 Dinner... $4.15 $4.50 (D) Meals, evaluated as part of the minimum wage, must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received nor lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. (F) Paragraphs (C), (D), and (E) above shall not apply to sheepherders. Every employer shall provide to each sheepherder not less than the minimum monthly meal and lodging benefits required to be provided by employers of sheepherders employed under the provisions of the H-2A program of the federal Immigration and Nationality Act [8 U.S.C et seq.], or any successor provisions. (G) Fixed Site Housing: A sheepherder not engaged in open range sheepherding, shall be provided with fixed site housing that complies with all the following standards and requirements (1) Toilets (which may include portable toilets) and bathing facilities (which may include a portable facility). (2) Heating (which may include a camp stove or other sources of heat). (3) In-door Lighting. (4) Potable hot and cold water. (5) Cooking facilities and utensils. (6) Refrigeration for perishable foodstuffs (which may include ice chests, provided that ice is delivered to the sheepherder, as needed, to maintain a continuous temperature required to retard spoilage and assure food safety). (7) Fixed Site Housing Inspections: housing that is erected for sheepherders at fixed locations shall be annually inspected by the State of California Employment Development Department for compliance with Paragraph (F) of this section, unless the employer receives a statement in writing from the Employment Development Department that there are no such inspectors available. (H) Mobile Housing: When a sheepherder is engaged in open range sheepherding, the employer shall provide mobile housing that complies with all standards and inspection requirements prescribed for mobile sheepherder housing by the United States Department of Labor then in effect. Such housing shall be inspected and approved annually by an inspector from the Employment Development Department unless the employer receives a statement in writing from the Employment Development Department that there are no such inspectors available. 11. Meal Periods. Every employer shall authorize and permit all employees after a work period of not more than five (5) hours to take a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day's work, the meal period may be waived by mutual consent of employer and employee. Unless the employee is relieved of all duty during a thirty (30) minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. 12. Rest Periods. Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate often (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted, as hours worked for which there shall be no deduction from wages. 13. Seats. When the nature of the work reasonably permits the use of seats, suitable seats shall be provided for employees working on or at a machine. 14. Other Working Conditions Applicable To Sheepherders Sheepherders shall be provided with all of the following at each work site: (A) Regular mail service, which, in the case of open range locations, shall mean mail delivery not less frequently than once every seven days.

123 (B) An appropriate form of communication, including but not limited to a radio and/or telephone, which will allow sheepherders to communicate with employers, health care providers, and government regulators. Employers may charge sheepherders for all others uses. (C) Visitor access to fixed site housing and, when practicable, to mobile housing. 15. Exemptions. If, in the opinion of the Division after due investigation, it is found that the enforcement of any provisions in Section 7, Records; Section 11, Meal Periods; Section 12, Rest Periods; or Section 13, Seats, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective any may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application is filed with the Division. 16. Filing Reports. (See California Labor Code, Section 1174(a)) 17. Inspection. (See California Labor Code, Section 1174) 18. Penalties. (See California Labor Code, Section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (B) Any employer or any other person acting on behalf of the employer who employs sheepherders and who requires them to engage in non-sheepherding duties shall be subject to the following penalties: (1) Initial violations-a civil penalty of one week's pay computed on a basis of a 60-hour workweek and a wage of no less than the current minimum wage in effect. (2) Second violation-a civil penalty of one month's pay computed on a basis of a 252-hour month and a wage of no less than the current minimum wage in effect. (3) Third and subsequent violation-a civil penalty equal to the cost of the contract of the approved "H-2A" job order. (C) The affected employee shall receive payment of all wages recovered. (D) The Labor Commissioner may also issue citations pursuant to Labor Code Section for payment of wages for overtime work in violation of this order. 19. Separability. If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 20. Posting of Order. Every employer shall keep a copy of this order posted in an area frequented by employees where it may be easily read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request. 8: Order Regulating Wages, Hours, and Working Conditions in Household Occupations. 1. Applicability of Order This order shall apply to all persons employed in household occupations, whether paid on a time, piece rate, commission, or other basis unless such occupation is performed for an industry covered by an industry Order of this Commission, except that: (A) Provisions of Sections 3 through 12 of this Order shall not apply to persons employed in administrative, executive, or professional capacities The following requirements shall apply in determining whether an employee's duties meet the test to qualify for an exemption from those sections: (1) Executive Exemption A person employed in an executive capacity means any employee: (a) Whose duties and responsibilities involve the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretion and independent judgment; and (e) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order 29 C.F.R , , Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost,

124 be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (f) Such an employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code 515(c) as 40 hours per week. (2) Administrative Exemption A person employed in an administrative capacity means any employee: (a) Whose duties and responsibilities involve either: (1) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers, or (2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department of subdivision thereof; in work directly related to the academic instruction or training carried on therein; and (b) Who customarily and regularly exercises discretion and independent judgment; and (c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined for purposes of this section), or (d) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or (e) Who executes under only general supervision special assignments and tasks, and (f) Who is primarily engaged in duties which meet the test of the exemption. The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order 29 C.F.R , , , Exempt work shall include, for example, all work that is directly and closely related to exempt work and work which is properly viewed as a means for carrying out exempt functions. The work actually performed by the employee during the course of the work week must, first and foremost, be examined and the amount of time the employee spends on such work, together with the employer's realistic expectations and the realistic requirements of the job, shall be considered in determining whether the employee satisfies this requirement. (e) Such employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment is defined in Labor Code 515(c) as 40 hours per week. (3) Professional Exemption A person employed in a professional capacity means any employee who meets all of the following requirements: (a) Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or (b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the purposes of this subsection, "learned or artistic profession" means an employee who is primarily engaged in the performance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or (ii) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee, or work that is an essential part of or necessarily incident to any of the above work; and (iii) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. (c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set forth in subparagraphs (a) and (b). (d) Who earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. (e) Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal law as they existed as of the date of this Order: 29 C.F.R , (a)-(d), , , , , and (f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually meet the criteria established for exemption as executive or administrative employees. (g) Subparagraph (f) above, shall not apply to the following advanced practice nurses: (i) Certified nurse midwives who are primarily engaged in performing duties for which certification is required pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of

125 Division 2 of the Business and Professions Code. (ii) Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code. (iii) Certified nurse practitioners who are primarily engaged in performing duties for which certification is required pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code. (iv) Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from meeting the requirements of subsection 1(A)(3)(a)-(d), above. (h) Except as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply: (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. (ii) The employee is primarily engaged in duties that consist of one or more of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (iii) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (iv) The employee's hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: (i) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (ii) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (iv) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (v) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMs. (vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry. (B) Except as provided in sections 1, 2, 4, 10, and 15, the provisions of this Order shall not apply to personal attendants. The provisions of the Order shall not apply to any person under the age of eighteen who is employed as a baby sitter for a minor child of the employer in the employer's home. (C) Provisions of this Order shall not apply to any individual who is the parent, spouse, child, or legally adopted child of the employer. (D) The provisions of this Order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code 1171) 2. Definitions (A) An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24- hour period. (B) "Commission" means the Industrial Welfare Commission of the State of California. (C) "Division" means the Division of Labor Standards Enforcement of the State of California. (D) "Emergency" means an unpredictable or unavoidable occurrence at unscheduled intervals requiring immediate action. (E) "Employ" means to engage, suffer, or permit to work. (F) "Employee" means any person employed by an employer. (G) "Employer" means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (H) "Hours worked" means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. (I) "Household

126 Occupations" means all services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder. Said occupations shall include, but not be limited to, the following: butlers, chauffeurs, companions, cooks, day workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets, and other similar occupations. (J) "Personal attendant" includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required. (K) "Minor" means, for the purpose of this Order, any person under the age of eighteen (18) years. (L) "Primarily" as used in Section 1, Applicability, means more than one-half the employee's work time. (M) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (N) "Split shift" means a work schedule which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods. (O) "Teaching" means, for the purpose of Section 1 of this Order, the profession of teaching under a certificate from the Commission for Teacher Preparation and Licensing or teaching in an accredited college or university. (P) "Wages" includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. (Q) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (R) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Hours and Days of Work (A) A LIVE-IN employee shall have at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work shall be no more than twelve (12) hours, except under the following conditions: (1) The employee shall have at least three (3) hours free of duty during the twelve (12) hours span of work. Such off-duty hours need not be consecutive, and the schedule for same shall be set by mutual agreement of employer and employee, provided that (2) An employee who is required or permitted to work during scheduled off-duty hours or during the twelve (12) consecutive off-duty hours shall be compensated at the rate of one and one-half (1 1/2) times the employee's regular rate of pay for all such hours worked. (B) No LIVE-IN employee shall be required to work more than five (5) days in any one workweek without a day off of not less than twenty-four (24) consecutive hours except in an emergency as defined in subsection 2 (D), provided that the employee is compensated for time worked in excess of five (5) workdays in any workweek at one and one-half (1 1/2) times the employee's regular rate of pay for hours worked up to and including nine (9) hours. Time worked in excess of nine (9) hours on the sixth (6th) and seventh (7th) workdays shall compensated at double the employee's regular rate of pay. (C) The following overtime provisions are applicable to non-live-in employees eighteen (18) years of age or over and to employees sixteen (16) or seventeen (17) years of age who are not required by law to attend school and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than forty (40) hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over forty (40) hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (1) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including twelve (12) hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (2) Double the employee's regular rate of pay for all hours worked in excess of twelve (12) hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (3) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as 1/40th of the employee's weekly salary. (D) One and one-half (1 1/2) times a minor's regular rate of pay shall be paid for all work over forty (40) hours in any workweek except that minors sixteen (16) and seventeen (17) years old who are not required by law to attend school and may therefore be employed for the same hours as an adult are subject to subsections (A) and (B), or (C) above. (VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of

127 minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits.) (E) An employee may be employed on seven (7) workdays in one workweek with no overtime pay required when the total hours of employment during such workweek do not exceed thirty (30) and the total hours of employment in any one workday thereof do not exceed six (6). (F) The provisions of Labor Code 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (G) Except, as provided in subsection (D) and (F), this section shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than thirty (30) percent more than the state minimum wage. (H) Notwithstanding subsection (G) above, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one (1) day's rest in seven (7) (see section (F) above) shall apply, unless the agreement expressly provides otherwise. (I) If an employer approves a written request of an employee to make-up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that make-up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of eleven (11) hours of work in one (1) day or forty (40) hours of work in one (1) workweek. If an employee knows in advance that he or she will be requesting make-up time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make-up work time for up to four (4) weeks in advance; provided, however, that the make-up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make-up work time pursuant to this subsection. While an employer may inform an employee of this make-up time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make-up the work hours within the same workweek pursuant to this subsection. 4. Minimum Wages (A) Every employer shall pay to each employee wages not less than six dollars and twenty five cents ($6.25) per hour for all hours worked, effective January 1, 2001, and not less than six dollars and seventy five cents ($6.75) per hour for all hours worked effective January 1, 2002, except: LEARNERS. Employees during their first one hundred and sixty (160) hours of employment in occupations in which they have no previous similar or related experience, may be paid not less than eighty-five percent (85%) of the minimum wage rounded to the nearest nickel. (B) Every employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period, whether the remuneration is measured by time, piece, commission, or otherwise. (C) When an employee works a split shift, one hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. (D) The provisions of this section shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. 5. Reporting Time Pay (A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage. (B) If an employee is required to report for work a second time in any one workday and is furnished less than two hours of work on the second reporting, said employee shall be paid for two hours at the employee's regular rate of pay, which shall not be less than the minimum wage. (C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) The interruption of work is caused by an Act of God or other cause not within the employer's control. (C) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee's scheduled reporting time. 6. Licenses for Disabled Workers (A) A license may be issued by the Division authorizing employment of a person whose earning

128 capacity is impaired by physical disability or mental deficiency at less than the minimum wage. Such licenses shall be granted only upon joint application of employer and employee and employee's representative if any. (B) A special license may be issued to a nonprofit organization such as a sheltered workshop or rehabilitation facility fixing special minimum rates to enable the employment of such persons without requiring individual licenses of such employees. (C) All such licenses and special licenses shall be renewed on a yearly basis or more frequently at the discretion of the Division. (See California Labor Code, Sections 1191 and ) 7. Records (A) Every employer shall keep accurate information with respect to each employee including the following: (1) Full name, home address, occupation and social security number. (2) Birth date, if under 18 years, and designation as a minor. (3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded. (4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee. (5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request. (6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. (B) Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing showing: (1) all deductions; (2) the inclusive dates of the period for which the employee is paid; (3) the name of the employee or the employee's social security number; and (4) the name of the employer, provided all deductions made on written orders of the employee may be aggregated and shown as one item. (C) All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request. (D) Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable. 8. Cash Shortage and Breakage No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 9. Uniforms and Equipment (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color. NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board. (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards. NOTE: This section shall not apply to protective equipment and safety devices on tools regulated by the Occupational Safety and Health Standards Board. (C) A reasonable deposit may be required as security for the return of the items furnished by the employer under provisions of subsections (A) and (B) of this section upon issuance of a receipt to the employee for such deposit. Such deposits shall be made pursuant to Section 400 and following of the Labor Code or an employer with the prior written authorization of the employee may deduct from the employee's last check the cost of an item furnished pursuant to (A) and (B) above in the event said item is not returned. No deduction shall be made at any time for normal wear and tear. All items furnished by the employer shall be returned by the employee upon completion of the job. 10. Meals and Lodging (A) "Meal" means an adequate, well-balanced serving of a variety of wholesome, nutritious foods. (B) "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, and sanitary according to usual and customary standards. Employees shall not be required to share a bed. (C) Meals or lodging may not be credited against the minimum wage without a voluntary written agreement between the employer and the employee. When credit for meals or lodging is used to meet part of the employer's minimum wage obligation, the amounts so credited may not be more than the following: Effective Dates: January 1, 2001 January 1, 2002 Lodging: Room occupied alone $29.40 per week $31.75 per week Room shared $24.25 per week

129 $26.20 per week Apartment-two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per week Where a couple are both employed by the employer, two-thirds (2/3) of the ordinary rental value, and in no event more than $ per month $ per month Meals: $2.25 $2.45 Breakfast Lunch $3.10 $3.35 Dinner $4.15 $4.50 (D) Meals evaluated as part of the minimum wage must be bona fide meals consistent with the employee's work shift. Deductions shall not be made for meals not received nor lodging not used. (E) If, as a condition of employment, the employee must live at the place of employment or occupy quarters owned or under the control of the employer, then the employer may not charge rent in excess of the values listed herein. 11. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the employer and employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than thirty (30) 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. (C) Unless the employee is relieved of all duty during a thirty (30) minute meal period, the meal period shall be considered an "on duty" meal period and counted as time worked. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. (D) If an employer fails to provide an employee with a meal period in accordance with the applicable provisions of this Order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the meal period is not provided. 12. Rest Periods (A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted, as hours worked for which there shall be no deduction from wages. (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this Order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the rest period is not provided. 13. Change Rooms and Resting Facilities (A) Employers shall provide suitable lockers, closets, or equivalent for the safekeeping of employees' outer clothing during working hours, and when required, for their work clothing during non-working hours. When the occupation requires a change of clothing, change rooms or equivalent space shall be provided in order that employees may change their clothing in reasonable privacy and comfort. These rooms or spaces may be adjacent to but shall be separate from toilet rooms and shall be kept clean. NOTE: This section shall not apply to change rooms and storage facilities regulated by the Occupational Safety and Health Standards Board. (B) Suitable resting facilities shall be provided in an area separate from the toilet rooms and shall be available to employees during work hours. 14. Seats (A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties. 15. Penalties (See Labor Code, section 1199) (A) In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of: (1) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to the amount which is sufficient to recover unpaid wages. (2) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover unpaid wages. (3) The affected employee shall receive payment of all wages recovered. (B) The Labor Commissioner may also issue citations pursuant to Labor Code for payment of wages for overtime work in violation of this order. 16. Elevators Adequate elevator, escalator or similar service consistent with industry-wide standards for the nature of the process and the work performed shall be provided when employees are employed four floors or more above or below ground level. 17. Exemptions If, in the opinion of the

130 Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee's representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division. 18. Filing Reports (See California Labor Code, Section 1174(a).) 19. Inspection (See California Labor Code, Section 1174) 20. Penalties (See California Labor Code, Section 1199) 21. Separability If the application of any provision of this Order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this Order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 22. Posting of Order Every employer shall keep a copy of this Order posted in an area frequented by employees where it may be easily read during the work day. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this Order and make it available to every employee upon request. 8: Miscellaneous Employees. 1. Applicability of Order This wage order implements changes in the law as a result of the Legislature's enactment of the "Eight-Hour-Day Restoration and Workplace Flexibility Act," Stats. 1999, ch. 134 (commonly referred to as AB 60). (A) Any industry or occupation not previously covered by, and all employees not specifically exempted in, the Commission's wage orders in effect in 1997, or otherwise exempted by law, are covered by this order. (B) Except as provided in subsection (C), an employee in the computer software field who is paid on an hourly basis shall be exempt from the daily overtime pay provisions of California Labor Code Section 510, if all of the following apply: (1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following: (a) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications. (b) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications. (c) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. (2) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of this exemption. (3) The employee's hourly rate of pay is not less than forty-one dollars ($41.00). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. (C) The exemption provided in subsection (B) does not apply to an employee if any of the following apply: (1) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. (2) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision. (3) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment. (4) The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation. (5) The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for on screen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computerrelated media such as the World Wide Web or CD-ROMS. (6) The employee is engaged in any of the activities set forth in subsection (B) for the purpose of creating imagery for effects used in the motion

131 picture, television, or theatrical industry. (D) The provisions of this order shall not apply to any individual participating in a national service program, such as AmeriCorps, carried out using assistance provided under Section of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171) 2. Definitions (A) An "Alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period. (B) "Shift" means designated hours of work by an employee, with a designated beginning time and quitting time. (C) "Workday" and "day" mean any consecutive 24-hour period beginning at the same time each calendar day. (D) "Workweek" and "week" mean any seven (7) consecutive days, starting with the same calendar day each week. "Workweek" is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods. 3. Administrative, Executive, and Professional Employees The following provisions shall not apply to persons employed in administrative, executive, or professional capacities. No person shall be considered to be employed in an administrative, executive, or professional capacity unless the person is primarily engaged in the duties which meet the test of the exemption and earns a monthly salary equivalent to no less than two times the state minimum wage for full time employment. The duties that meet the tests of the exemption are one of the following set of conditions: (A) The employee is engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment, or (B) The employee is licensed or certified by the State of California and is engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or is engaged in an occupation commonly recognized as a learned or artistic profession; provided, however, that pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subsection unless they individually meet the criteria established for exemption as executive or administrative employees. (C) For the purposes of this section, "Full-time employment" means employment in which an employee is employed for 40 hours per week. (D) For the purposes of this section, "primarily" means more than one-half (1/2) of the employee's work time. 4. Daily Overtime General Provisions The following overtime provisions are applicable to employees eighteen (18) years of age or over and to employees 16 or 17 years of age who are not required by law to attend school, and are not otherwise prohibited by law from engaging in the subject work. Such employees shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (1 1/2) times such employee's regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day's work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than: (A) One and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and (B) Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek. (C) The overtime rate of compensation required to be paid to a nonexempt full-time salaried employee shall be computed by using the employee's regular hourly salary as onefortieth (1/40) of the employee's weekly salary. 5. Alternative Workweek (A) No employer shall be deemed to have violated the daily overtime provisions by instituting, pursuant to the election procedures set forth in this wage order, a regularly scheduled alternative workweek schedule of not more than ten (10) hours per day within a 40 hour workweek without the payment of an overtime rate of compensation. All work performed in any workday beyond the schedule established by the agreement up to 12 hours a day or beyond 40 hours per week shall be paid at one and one-half (1 1/2) times the employee's regular rate of pay. All work performed in excess of 12 hours per day and any work in excess of eight (8) hours on those days worked beyond the regularly scheduled number of workdays established by the alternative workweek agreement shall be paid at double the employee's regular rate of pay. Any alternative workweek agreement adopted pursuant to this section shall provide for not less than four (4) hours of work in any shift. Nothing in this section shall prohibit an employer, at the request of the employee, to substitute one (1) day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without the payment of overtime. No hours paid at either one and one-half (1 1/2) or double the regular rate of pay shall be included in determining when 40 hours have been worked for the

132 purpose of computing overtime compensation. (B) If an employer, whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1 1/2) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee's regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours. (C) An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. (D) An employer shall explore any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section of the Government Code. (E) An employer shall make a reasonable effort to find a work schedule not to exceed eight (8) hours in a workday, in order to accommodate any affected employee who was eligible to vote in an election authorized by this section and who is unable to work the alternative workweek schedule established as the result of that election. (F) An employer shall be permitted, but not required, to provide a work schedule not to exceed eight (8) hours in a workday to accommodate any employee who is hired after the date of the election and who is unable to work the alternative workweek schedule established by the election. (G) The provisions of Labor Code Sections 551 and 552 regarding one (1) day's rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day's rest in seven (7). (H) Arrangements adopted in a secret ballot election held pursuant to this order prior to 1998, or under the rules in effect prior to 1998, and before the performance of the work, shall remain valid after July 1, 2000, provided that the results of the election are reported by the employer to the Division of Labor Statistics and Research by January 1, 2001, in accordance with the requirements of Election Procedures Section F. New arrangements can be entered into pursuant to the provisions of this section. Election Procedures (A) Each proposal for an alternative workweek schedule shall be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. The employer may propose a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. If the employer proposes a menu of work schedule options, the employee may, with the approval of the employer, move from one menu option to another. (B) In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (213) vote of the affected employees in the work unit The election shall be held during regular working hours at the employees' work site. For purposes of this subsection, "affected employees in the work unit" may include all employees in a readily identifiable work unit, such as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this subsection is met. (C) Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees' wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least fourteen (14) days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. An employer shall provide that disclosure in a non-english language, as well as in English, if at least five (5) percent of the affected employees primarily speak that non-english language. The employer shall mail the written disclosure to employees who do not attend the meeting. Failure to comply with this section shall make the election null and void; (D) Any election to establish or repeal an alternative workweek schedule shall be held during regular working hours at the work site of the affected employees. The employer shall bear the costs of conducting any election held pursuant to this section. Upon a complaint by an affected employee, and after an investigation by the labor commissioner, the labor commissioner may require the employer to select a neutral third party to conduct the election. (E) Any type of alternative workweek schedule that is authorized by the Labor Code may be repealed by the affected employees. Upon a petition of one-third (1/3) of the affected employees, anew secret ballot election shall be held and a two-thirds (213) vote of the affected employees shall be required to reverse the alternative

133 workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less that 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. The election shall take place during regular working hours at the employees' work site. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance. (F) Only secret ballots may be cast by affected employees in the work unit at any election held pursuant to this section. The results of any election conducted pursuant to this section shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final, and the report of election results shall be a public document The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. (G) Employees affected by a change in work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. (H) Employers shall not intimidate or coerce employees to vote either in support or in opposition to a proposed alternative workweek. No employees shall be discharged or discriminated against for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal. However, nothing in this section shall prohibit an employer from expressing his/her position concerning that alternative workweek to the affected employees. A violation of subsection shall be subject to Labor Code Section 98 et seq. 6. Minors VIOLATIONS OF CHILD LABOR LAWS are subject to civil penalties of from $500 to $10,000 as well as to criminal penalties. Refer to California Labor Code Sections 1285 to 1312 and 1390 to 1399 for additional restrictions on the employment of minors and for descriptions of criminal and civil penalties for violation of the child labor laws. Employers should ask school districts about any required work permits. 7. Collective Bargaining Agreements (A) Sections 4 and 5, of this order shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. (B) Notwithstanding Section 7 (A), where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement pertaining to the hours of work of the employees, the requirement regarding the equivalent of one day's rest in seven (7) (see Section 5 (I) above) shall apply, unless the agreement expressly provides otherwise. 8. Make Up Time (A) If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one day or 40 hours of work in one workweek. If an employee knows in advance that he or she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer's approval to take personal time off and make up the work hours within the same workweek pursuant to this section. 9. Meal Periods (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of employer and employee. (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 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. (B) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each work day that the meal period is not provided. 10. Penalties In addition to any other civil or criminal penalty provided by law, any employer or any other person acting on behalf of the

134 employer who violates, or causes to be violated, the provisions of this order, shall be subject to a civil penalty of: (A) Initial Violation $50.00 for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient to recover underpaid wages. (B) Subsequent Violations $ for each underpaid employee for each pay period during which the employee was underpaid in addition to an amount which is sufficient recover underpaid wages. (C) The affected employee shall receive payment of all wages recovered. The Labor Commissioner may also issue citations pursuant to California Labor Code Section for nonpayment of wages for overtime work in violation of this order. 11. Separability If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this order should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 12. Posting of Order Every employer shall keep a copy of this order posted in an area frequented by employees where it may easily be read during the workday. Where the location of work or other conditions make this impractical, every employer shall keep a copy of this order and make it available to every employee upon request Sec State employees, Forty-hour workweek; Overtime. (a) It is the policy of the state that the workweek of the state employee shall be 40 hours, and the workday of state employees eight hours, except that workweeks and workdays ofa different number of hours may be established in order to meet the varying needs of the different state agencies. It is the policy of the state to avoid the necessity for overtime work whenever possible. This policy does not restrict the extension of regular working-hour schedules on an overtime basis in those activities and agencies where it is necessary to carry on the state business properly during a manpower shortage. (b) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Section , the memorandum of understanding shall be controlling without further legislative action, except that if the provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act. Sec School employees, Maximum hours; Workday and workweek; Exemptions. The workweek of a classified employee, as defined in Section or Section 45256, shall be 40 hours. The workday shall be eight hours. These provisions do not restrict the extension of a regular workday or workweek on an overtime basis when such is necessary to carry on the business of the district. Nothing in this section shall be deemed to bar the district from establishing a workday of less than eight hours or a workweek of less than 40 hours for all or any of its classified positions. Notwithstanding the provisions of this section and Section 45128, a governing board may, with the approval of the personnel commission, where applicable, exempt specific classes of positions from compensation for overtime in excess of eight hours in one day, provided that hours worked in excess of 40 in a calendar week shall be compensated on an overtime basis. Such exemption shall be applied only to those classes which the governing board and personnel commission, where applicable, specifically find to be a subject to fluctuations in daily working hours not susceptible to administrative control, such as security patrol and recreation classes, but shall not include food service and transportation classes. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 6 (commencing with Section 45240) of this chapter. Sec Community colleges; Workweek and workday The workweek of a classified employee, as defined in Section or Section 88076, shall be 40 hours. The workday shall be eight hours. These provisions do not restrict the extension of a regular workday or workweek on an overtime basis when such is necessary to carry on the business of the district. Nothing in this section shall be deemed to bar the district from establishing a workday of less than eight hours or a workweek of less than 40 hours for all or any of its classified positions. Notwithstanding the provisions of this section and Section 88027, a governing board may, with the approval of the personnel commission, where applicable, exempt specific classes of positions from compensation for overtime in excess of eight hours in one day, provided that hours worked in excess of 40 in a calendar week shall be compensated on an overtime basis. Such exemption shall be applied only to those classes which the governing board and personnel commission, where applicable, specifically find to be subject to fluctuations in daily working hours not susceptible to administrative control, such as security patrol and recreation classes, but shall

135 not include food-service and transportation classes. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 3 (commencing with Section 88060) of this chapter. Sec School employees, Overtime compensation. The governing board of each district shall provide the extent to which, and establish the method by which ordered overtime is compensated. The board shall provide for such compensation or compensatory time off at a rate at least equal to time and one-half the regular rate of pay of the employee designated and authorized to perform the overtime. Overtime is defined to include any time required to be worked in excess of eight hours in any one day and in excess of 40 hours in any calendar week. If a governing board establishes a workday of less than eight hours but seven hours or more and a workweek of less than 40 hours but 35 hours or more for all of its classified positions or for certain classes of classified positions, all time worked in excess of the established workday and workweek shall be deemed to be overtime. The foregoing provisions do not apply to classified positions for which a workday of fewer than seven hours and a workweek of fewer than 35 hours has been established, nor to positions for which a workday of eight hours and a workweek of 40 hours has been established, but in which positions employees are temporarily assigned to work fewer than eight hours per day or 40 hours per week when such reduction in hours is necessary to avoid layoffs for lack of work or lack of funds and the consent of the majority of affected employees to such reduction in hours has been first obtained. For the purpose of computing the number of hours worked, time during which an employee is excused from work because of holidays, sick leave, vacation, compensating time off, or other paid leave of absence shall be considered as time worked by the employee. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 6 (commencing with Section 45240) of this chapter. Sec Community colleges; Overtime The governing board of each community college district shall provide the extent to which, and establish the method by which ordered overtime is compensated. The board shall provide for such compensation or compensatory time off at a rate at least equal to time and one-half the regular rate of pay of the employee designated and authorized to perform the overtime. Overtime is defined to include any time required to be worked in excess of eight hours in any one day and in excess of 40 hours in any calendar week. If a governing board establishes a workday of less than eight hours but seven hours or more and a workweek of less than 40 hours but 35 hours or more for all of its classified positions or for certain classes of classified positions, all time worked in excess of the established workday and workweek shall be deemed to be overtime. The foregoing provisions do not apply to classified positions for which a workday of fewer than seven hours and a workweek of fewer than 35 hours has been established, nor to positions for which a workday of eight hours and a workweek of 40 hours has been established, but in which positions employees are temporarily assigned to work fewer than eight hours per day or 40 hours per week when such reduction in hours is necessary to avoid layoffs for lack of work or lack of funds and the consent of the majority of affected employees to such reduction in hours has been first obtained. For the purpose of computing the number of hours worked, time during which an employee is excused from work because of holidays, sick leave, vacation, compensating time off, or other paid leave of absence shall be considered as time worked by the employee. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 3 (commencing with Section 88060) of this chapter. Sec School employees, Overtime; Compensatory time off. When compensatory time off is authorized in lieu of cash compensation, such compensatory time off shall be granted within 12 calendar months following the month in which the overtime was worked and without impairing the services rendered by the employing district. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 6 (commencing with Section 45240) of this chapter. Sec Community colleges, Overtime; Compensatory time off. When compensatory time off is authorized in lieu of cash compensation, such compensatory time off shall be granted within 12 calendar months following the month in which the overtime was worked and without impairing the services rendered by the employing district. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 3 (commencing with Section

136 88060) of this chapter. Sec School employees, Overtime, Workday. Notwithstanding the provisions of Section 45127, the workweek shall consist of not more than five consecutive working days for any employee having an average workday of four hours or more during the workweek. Such an employee shall be compensated for any work required to be performed on the sixth or seventh day following the commencement of the workweek at the rate equal to 1 1/2 times the regular rate of pay of the employee designated and authorized to perform the work. An employee having an average workday of less than four hours during a workweek shall, for any work required to be performed on the seventh day following the commencement of his workweek, be compensated for at a rate equal to 1 1/2 times the regular rate of pay of the employee designated and authorized to perform the work. Positions and employees excluded from overtime compensation pursuant to Section shall likewise be excluded from the provisions of this section. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 6 (commencing with Section 45240) of this chapter. Sec Community colleges, Overtime; Workday. Notwithstanding Section 88026, the workweek shall consist of not more than five consecutive working days for any employee having an average workday of four hours or more during the workweek. Such an employee shall be compensated for any work required to be performed on the sixth or seventh day following the commencement of the workweek at a rate equal to 11/2 times the regular rate of pay of the employee designated and authorized to perform the work. An employee having an average workday of less than four hours during a workweek shall, for any work required to be performed on the seventh day following the commencement of his or her workweek, be compensated for at a rate equal to 11/2 times the regular rate of pay of the employee designated and authorized to perform the work. Positions and employees excluded from overtime compensation pursuant to Section shall likewise be excluded from this section. This section shall apply to districts that have adopted the merit system in the same manner and effect as if it were a part of Article 3 (commencing with Section 88060). Sec Public works; Exception to maximum hours where overtime paid Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1½ times the basic rate of pay. Sec Correctional officers, Overtime cap. (a) (1) Notwithstanding Section 19851, the Department of Corrections shall establish a standardized overtime cap for correctional officers not to exceed 80 hours per month. (2) This subdivision shall not relieve the state of any obligation under a memorandum of understanding for State Bargaining Unit 6 in effect on January 1, 2004, and approved pursuant to Section , relating to hours of work, overtime, or alternative work schedules. (b) Notwithstanding any other provision of law, the Department of Corrections shall not reduce the total number of filled educational positions as of June 30, 2003, if the director of the department determines that the reduction would result in a loss of day for day credits for eligible inmates. Sec Underground mines, smelters and plants; Exception to maximum hours; Overtime pay (a) Notwithstanding Section 750, the period of employment may exceed eight hours in any 24- hour period if the employee is paid at the overtime rate of pay for hours worked in excess of that employee's regularly scheduled shift and for hours worked in excess of 40 hours in a seven-day period. Unless regularly scheduled shifts are established pursuant to Section 750.5, overtime rates of pay shall be paid for all hours worked in excess of those hours prescribed by Section 750 as the maximum allowable hours of employment. (b) All work performed in any workday in excess of the scheduled hours established by an agreement pursuant to subdivision (b) of Section up to and including 12 hours, or in excess of 40 hours in a workweek, shall be compensated at one and one-half times the employee's regular rate of compensation. All work performed in any workday in excess of 12 hours shall be compensated at double the employee's regular rate of compensation. No hours that are compensated at either one and one-half times, or double, the regular rate of compensation shall be included in determining the number of hours an employee has worked in a workweek for purposes of

137 Colorado computing premium compensation Director to review report. (1) Upon the receipt of a report from a wage board, the director shall review the same and may approve or disapprove any determination or recommit the subject to the same or a new wage board. If the director approves any of the determinations of the wage board, said director shall publish notice not less than once a week for two successive weeks in a newspaper of general circulation published in the county in which any business directly affected thereby is located, that he will, on a date and at a place named in said notice, hold a public meeting, at which all persons in favor of or opposed to said recommendations will be given a hearing. (2) After publication of notice and the meeting, the director, if so desired, may make and render such an order as may be proper or necessary to adopt the recommendations and carry the same into effect and require all employees in the occupation directly affected thereby to preserve and comply with such recommendations and order. Such order is effective thirty days after it is made and rendered and shall be in full force and effect on and after that day. After the order is effective, it is unlawful for any employer to violate or disregard any of the terms of the order or to employ any worker in any occupation covered by the order at lower wages or under other conditions than authorized or permitted by the order. The director shall, as far as is practicable, mail a copy of any such order to every employer affected thereby; and every employer affected by the order shall keep a copy thereof posted in a conspicuous place in such employer's establishment. Such order shall include a notice of the contents of sections (3), (4)(b) (II), and (2). (3) In case of an emergency the director may authorize or permit the employment of any person for more hours per day or per week than the maximum now fixed by law. (4) Overtime, at a rate of one and one-half times the regular rate of pay, may be permitted by the director under conditions and rules and for increased minimum wages which the director, after investigation, determines and prescribes by order and which shall apply equally to all employers in such industry or occupation. Sec. 4. Overtime Hours. Overtime Rate: employees shall be paid time and one-half of the regular rate of pay for any work in excess of: (1) forty (40) hours per workweek; (2) twelve (12) hours per workday, or (3) twelve (12) consecutive hours without regard to the starting and ending time of the workday (excluding duty free meal periods), whichever calculation results in the greater payment of wages. Hours worked in two or more workweeks shall not be averaged for computation of overtime. Performance of work in two or more positions at different pay rates for the same employer shall be computed at the overtime rate based on the regular rate of pay for the position in which the overtime occurs, or at a weighted average of the rates for each position, as provided in the Fair Labor Standards Act. Note: the requirement to pay overtime for work in excess of twelve (12) consecutive hours will not alter the employee's established workday or workweek, as previously defined. Exception: in the event of a bonafide emergency situation, an employer may require minors, subject to the Colorado youth employment opportunity act, to work in excess of eight (8) hours in a twenty-four (24) hour period or in excess of forty (40) hours per week. Said minors shall be compensated at time and one-half the regular rate of pay for all hours worked in excess of eight (8) hours in any twenty-four (24) hour period, or for all work in excess of forty (40) hours per week, whichever calculation results in the greater payment of wages. The employer shall keep specific records to substantiate the existence of a bonafide emergency. Note: a person under eighteen (18) years of age who has received a high school diploma or a passing grade on a General Education Development (GED) examination, is not considered a minor. Sec. 6. Exemptions from Overtime. The following employees are exempt from the overtime provisions of Minimum Wage Order No. 26: a) Salespersons, parts-persons, and mechanics employed by automobile, truck, or farm implement (retail) dealers; salespersons employed by trailer, aircraft and boat (retail) dealers. b) Commission Sales Exemption: sales employees of retail or service industries paid on a commission basis, provided that 50% of their total earnings in a pay period are derived from commission sales, and their regular rate of pay is at least one and one-half times the minimum wage. This exemption is only applicable for employees of retail or service employers who receive in excess of 75% of their annual dollar volume from retail or service sales. c) Ski Industry Exemption: employees of the ski industry performing duties directly related to ski area operations for downhill skiing or snow boarding, and those employees engaged in providing food and beverage services at on-mountain locations, are exempt from the forty (40) hour overtime requirement of this wage order. The daily overtime requirement of one and one-half the regular rate of pay for all hours worked in excess of twelve (12) in a workday shall apply. This partial overtime exemption does not apply to ski area employees performing duties related to lodging. d) Medical Transportation Exemption: employees of

138 Connecticut the medical transportation industry who are scheduled to work twenty-four (24) hour shifts, are exempt from the twelve (12) hour overtime requirement provided they receive overtime wages for hours worked in excess of forty (40) hours per work week. Note: a hospital or nursing home may seek an agreement with individual employees to pay overtime pursuant to the provisions of the Federal Fair Labor Standards Act "8 and 80 rule", whereby employees are paid time and one-half their regular rate of pay for any work performed in excess of eighty (80) hours in a fourteen (14) consecutive day period and for any work in excess of eight (8) hours per day. Sec b. Overtime pay: Definitions. As used in sections 31-76b to 31-76j, inclusive: (1) The "regular rate" at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include (A) sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency; (B) payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of the employer's interests and properly reimbursable by the employer; and other similar payments to an employee that are not made as compensation for the employee's hours of employment; (C) sums paid in recognition of services performed during a given period if either, (i) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly; (ii) the payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan, meeting the approval of the Labor Commissioner who shall give due regard, among other relevant factors, to the extent to which the amounts paid to the employee are determined with regard to hours of work, production or efficiency; (D) contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident or health insurance or similar benefits for employees; (E) extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee under section 31-76c, or in excess of the employee's normal working hours or regular working hours, as the case may be; (F) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days; or (G) extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal or regular workday, not exceeding the maximum workweek applicable to such employee under section 31-76c, where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek. For the purpose of calculating the overtime rate of compensation required to be paid to an employee who is (i) employed as a delivery driver or sales merchandiser, (ii) paid on a base salary and commission basis, and (iii) not exempt from the overtime requirements of this chapter, the employee's regular rate shall be one-fortieth of the employee's weekly remuneration; (2)(A) "Hours worked" include all time during which an employee is required by the employer to be on the employer's premises or to be on duty, or to be at the prescribed work place, and all time during which an employee is employed or permitted to work, whether or not required to do so, provided time allowed for meals shall be excluded unless the employee is required or permitted to work. Such time includes, but shall not be limited to, the time when an employee is required to wait on the premises while no work is provided by the employer. (B) All time during which an employee is required to be on call for emergency service at a location designated by the employer shall be considered to be working time and shall be paid for as such, whether or not the employee is actually called upon to work. (C) When an employee is subject to call for emergency service but is not required to be at a location designated by the employer but is simply required to keep the employer informed as to the location at which he may be contacted, or when an employee is not specifically required by his employer to be subject to call but is contacted by his employer or on the employer's authorization directly or indirectly and assigned to duty, working time shall begin when the employee is notified of his assignment and shall end when the employee has completed his assignment; (3) "Employee" means employee as defined

139 in section Sec c. Length of workweek. No employer, except as otherwise provided herein, shall employ any of his employees for a workweek longer than forty hours, unless such employee receives remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. Sec f. Piece rates; two or more kinds of work. No employer shall be deemed to have violated section 31-76c by employing any employee for a workweek in excess of the maximum workweek applicable to such employee if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of work, the amount paid to the employee for the number of hours worked by him in such workweek in excess of the maximum workweek applicable to such employee under section 31-76c: (A) In the case of an employee employed at piece rates, is computed at piece rates not less than one and one-half times the bona fide piece rates applicable to the same work when performed during non-overtime hours; or (B) in the case of an employee performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half times such bona fide rates applicable to the same work when performed during non-overtime hours; and if (i) the employee's average hourly earnings for the workweek exclusive of payments described in subparagraphs (A) to (G), inclusive, of subdivision (1) of section 31-76b are not less than the minimum hourly rate required by applicable law, and (ii) extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate. Sec g. Crediting of certain extra compensation. Extra compensation paid as described in subparagraphs (E), (F) and (G) of subdivision (1) of section 31-76b shall be creditable toward overtime compensation payable pursuant to sections 31-76b to 31-76j, inclusive. Sec Payment of less than minimum or overtime wage. Regulations. (a) Any employer who pays or agrees to pay to an employee less than the minimum fair wage or overtime wage shall be deemed in violation of the provisions of this part. (b) The Labor Commissioner shall adopt such regulations, in accordance with the provisions of chapter 54, as may be appropriate to carry out the purposes of this part. Such regulations may include, but are not limited to, regulations defining and governing an executive, administrative or professional employee and outside salesperson; learners and apprentices, their number, proportion and length of service; and piece rates in relation to time rates; and shall recognize, as part of the minimum fair wage, gratuities in an amount (1) equal to twenty-nine and three-tenths per cent, and effective January 1, 2009, equal to thirty-one per cent of the minimum fair wage per hour for persons, other than bartenders, who are employed in the hotel and restaurant industry, including a hotel restaurant, who customarily and regularly receive gratuities, (2) equal to eight and twotenths per cent, and effective January 1, 2009, equal to eleven per cent of the minimum fair wage per hour for persons employed as bartenders who customarily and regularly receive gratuities, and (3) not to exceed thirty-five cents per hour in any other industry, and shall also recognize deductions and allowances for the value of board, in the amount of eighty-five cents for a full meal and forty-five cents for a light meal, lodging, apparel or other items or services supplied by the employer; and other special conditions or circumstances which may be usual in a particular employer-employee relationship. The commissioner may provide, in such regulations, modifications of the minimum fair wage herein established for learners and apprentices; persons under the age of eighteen years; and for such special cases or classes of cases as the commissioner finds appropriate to prevent curtailment of employment opportunities, avoid undue hardship and safeguard the minimum fair wage herein established. Regulations in effect on July 1, 1973, providing for a board deduction and allowance in an amount differing from that provided in this section shall be construed to be amended consistent with this section without the necessity of convening a wage board or amending such regulations. (c) Regulations adopted by the commissioner pursuant to subsection (b) of this section which define executive, administrative and professional employees shall be updated not later than October 1, 2000, and every four years thereafter, to specify that such persons shall be compensated on a salary basis at a rate determined by the

140 Labor Commissioner. Sec. 19a-490l. Mandatory limits on overtime for nurses working in hospitals. Exceptions. (a) As used in this section: (1) "Nurse" means a registered nurse or a practical nurse licensed pursuant to chapter 378, or a nurse's aide registered pursuant to chapter 378a; and (2) "Hospital" shall have the same meaning as set forth in section 19a-490. (b) No hospital may require a nurse to work in excess of a predetermined scheduled work shift, provided such scheduled work shift is determined and promulgated not less than forty-eight hours prior to the commencement of such scheduled work shift. Any nurse may volunteer or agree to work hours in addition to such scheduled work shift but the refusal by a nurse to accept such additional hours shall not be grounds for discrimination, dismissal, discharge or any other penalty or employment decision adverse to the nurse. (c) The provisions of this section shall not apply: (1) To any nurse participating in a surgical procedure until such procedure is completed; (2) to any nurse working in a critical care unit until such nurse is relieved by another nurse who is commencing a scheduled work shift; (3) in the case of a public health emergency; (4) in the case of an institutional emergency, including, but not limited to, adverse weather conditions, catastrophe or widespread illness, that in the opinion of the hospital administrator will significantly reduce the number of nurses available for a scheduled work shift, provided the hospital administrator has made a good faith effort to mitigate the impact of such institutional emergency on the availability of nurses; or (5) to any nurse who is covered by a collective bargaining agreement that contains provisions addressing the issue of mandatory overtime. Sec A2. Wage order (a) Rate. The minimum wage rate shall be the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour except that for minor learner clerks for the first two hundred hours of employment the minimum wage shall be not less than eighty-five percent of the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour. (b) Minimum daily earnings guaranteed. An employee who, by request or permission of the employer, reports for duty on any day whether or not assigned to actual work shall be compensated for a minimum of four hours' earnings at his regular rate. (c) Overtime. All employees shall be paid at one and one-half times their regular rate for all time worked in excess of forty hours. Sec B2. Wage order (a) Rate. The minimum wage rate shall be the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour up to and including forty hours of work a week. (b) Overtime. Time and a half the regular rate shall be paid for all hours worked in excess of forty per week. (c) Minimum daily earnings guaranteed. Any female or minor employee employed in the laundry occupation and any adult male employee engaged in production work in the laundry occupation, including piece workers, regularly reporting for work, unless given adequate notice the day before to the contrary, or called for work in any day, shall be assured a minimum of four hours' earnings and shall be paid the minimum rate or his regular rate, whichever is higher, if the employee is able and willing to work for that length of time. Payments shall be made even though no work is provided by the employer, except when the plant's regular working day on Saturday is less than four hours, in which case payment shall be made as above for a minimum of three hours. (d) Piece work. No employee who is paid on piece work, commission or other basis shall be paid less for the hours worked than the minimum rates. (e) Deductions. No deductions shall be made from the minimum wage rates, except those required or authorized by law; and except deductions made by the employer for the purpose of paying the employee's premium in an individual or group life or group accident or group healthy insurance policy. Deductions for such premiums shall not be made without the written consent of the employee. Such written consent shall be kept on file and subject to review by the labor department. Deductions or allowances may also be made for meals and lodging when they constitute a condition of employment but only in accordance with rates which shall be set by the labor commissioner from time to time; provided no deductions of any kind shall be made for lodging, meals and travel expenses supplied an employee by the employer during the period such employee is receiving training or new experience at a place other than the regular place of work, or is traveling to or from such a place in connection with such program.

141 Sec C2. Wage order for women and minors (a) Rate. The minimum wage rate shall be the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour. (b) Overtime. Time and one-half the regular rate shall be paid for all hours worked in excess of forty weekly. (c) Minimum daily earnings guaranteed. Any employee regularly reporting or called for work in any day shall be assured a minimum of four hours' earnings and shall be paid the minimum rate or his regular rate, whichever is higher, if the employee is able and willing to work for that length of time. Payment shall be made even though no work is provided by the employer, except when there is a suspension of operations due to breakdown or an act of God. (d) Divided employment. Where a person is engaged in operations incidental to cleaning and dyeing and is also engaged in duties other than cleaning and dyeing and when the work time records are not separated, the higher rate shall prevail. (e) Deductions. No deductions shall be made from the minimum wage rates except those required or authorized by law, and except deductions made by the employer for the purpose of paying the employee's premium in an individual or group life insurance policy or a hospitalization policy. Deductions for such premiums shall not be made without the written consent of the employee. Such written consent shall be kept on file and subject to review by the labor department. (f) Piece work and commissions. Each employee who is paid on a piece work, commission or other basis shall receive not less than the minimum fair wage for the first forty hours worked each week and not less than one and one-half the minimum rate or one and one-half the regular hourly rate, whichever is higher for all hours worked in excess of forty per week. Regular hourly rate is computed by adding together the employee's total weekly earnings from piece rates or commissions and all other incentive wage allowances and any sums paid for waiting time or other hours worked and then dividing this sum by the number of hours in the week for which compensation was paid to yield the pieceworkers' or commission workers' "regular rate" for that week. Sec D2. Wage order (a) Rate. The following minimum wage is ordered: Not less than the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour. (b) Beginners. There shall be paid for the first two hundred hours in the trade not less than eighty-five percent of the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour. (c) Overtime. Not less than one and one-half times the employee's regular hourly rate shall be paid for all hours in excess of forty in any work week. (d) Minimum daily earnings guaranteed. An employee who, by request or permission of the employer, reports for duty on any day whether or not assigned to actual work shall be compensated for a minimum of four hours' earnings at his regular rate. In instances of regularly scheduled employment of less than four hours, as mutually agreed in writing between employer and employee, and approved by the labor department, this provision may be waived, provided the minimum daily pay in every instance shall be at least twice the applicable minimum hourly rate. District of Columbia Sec E1. Wage order (a) Rate. The following minimum wage is ordered: Not less than the minimum fair wage established by subsection (j) of section of the Connecticut General Statutes per hour, except during the period commencing January 1, 2001, and ending December 31, 2002, the minimum wage for persons employed in the hotel and restaurant industry, including a hotel restaurant, who customarily and regularly receive gratuities shall be four dollars and seventy-four cents per hour, except during said period the minimum wage for bartenders who customarily and regularly receive gratuities shall be six dollars and fifteen cents per hour. (b) Minimum daily earnings guaranteed. Any employee regularly reporting for work, unless given adequate notice the day before to the contrary, or any employee called for work in any day shall be assured a minimum of two hours' earnings at not less than the minimum rate if the employee is able and willing to work for the length of time. If the employee is either unwilling or unable to work the number of hours necessary to insure the two-hour guarantee, a statement signed by the employee in support of this situation must be on file as part of the employer's records. (c) Work on seventh consecutive day. Not less than one and one-half times the minimum rate for all time worked on the seventh consecutive day. (d) Overtime. Not less than one and one-half times the regular rate for all hours worked in excess of forty in any work week Requirements. (a)(1) Except as provided in subsection (h) of this section, as of January 1, 2005, the minimum wage required to be paid to any employee by any employer in the District of Columbia shall be $6.60 an hour, or the minimum wage set by the United States government pursuant to the Fair Labor Standards Act (29 U.S.C. 206 et seq.) ("Fair Labor Standards Act"), plus $1, whichever

142 is greater. (2) Except as provided in subsection (h) of this section, as of January 1, 2006, the minimum wage required to be paid to any employee by any employer in the District of Columbia shall be $7 an hour, or the minimum wage set by the United States government pursuant to the Fair Labor Standards Act, plus $1, whichever is greater. (b) A person shall be employed in the District of Columbia when: (1) The person regularly spends more than 50% of their working time in the District of Columbia; or (2) The person's employment is based in the District of Columbia and the person regularly spends a substantial amount of their working time in the District of Columbia and not more than 50% of their working time in any particular state. (c) No employer shall employ any employee for a workweek that is longer than 40 hours, unless the employee receives compensation for employment in excess of 40 hours at a rate not less than 1 1/2 times the regular rate at which the employee is employed. (d) All workers with disabilities shall be paid at a rate not less than the minimum wage, except in those instances where a certificate has been issued by the United States Department of Labor that authorizes the payment of less to workers with disabilities under 214(c) of the Fair Labor Standards Act. (e) No employer shall be deemed to have violated subsection (c) of this section if the employee works for a retail or service establishment and: (1) The regular rate of pay of the employee is in excess of 1 1/2 times the minimum hourly rate applicable to the employee under this subchapter; and (2) More than 1/2 of the employee's compensation for a representative period (not less than 1 month) represents commissions on goods or services. (f) As of January 1, 2005, the minimum wage required to be paid by any employer in the District of Columbia to any employee who receives gratuities shall be $2.77 an hour, provided that the employee actually receives gratuities in an amount at least equal to the difference between the hourly wage paid and the minimum wage as set by subsection (a) of this section. (g) Subsection (f) of this section shall not apply to an employee who receives gratuities unless: (1) The employee has been informed by the employer of the provisions of subsection (f) of this section; and (2) All gratuities received by the employee have been retained by the employee, except that this provision shall not be construed to prohibit the pooling of gratuities among employees who customarily receive gratuities. (h) An employer shall pay a security officer working in a office building in the District of Columbia wages, or any combination of wages and benefits, that are not less than the combined amount of the minimum wage and fringe benefit rate for the guard 1 classification established by the United States Secretary of Labor pursuant to the Service Contract Act of 1965, approved October 22, 1965 (79 Stat. 1034; 41 U.S.C. 351), as amended. Florida Collective bargaining. Nothing in this subchapter shall be deemed to interfere with, impede, or any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the standards applicable under the provisions of this subchapter Legal day's work; extra pay. (1) Ten hours of labor shall be a legal day's work, and when any person employed to perform manual labor of any kind by the day, week, month or year renders 10 hours of labor, he or she shall be considered to have performed a legal day's work, unless a written contract has been signed by the person so employed and the employer, requiring a less or greater number of hours of labor to be performed daily. (2) Unless such written contract has been made, the person employed shall be entitled to extra pay for all work performed by the requirement of his or her employer in excess of 10 hours' labor daily Attendance and leave; general policies. (1) The workday for each full-time state employee shall be 8 hours or as otherwise justified by the agency head. (2) Overtime may be required for any employee. (3) The granting of any leave of absence, with or without pay, shall be in writing and shall be approved by the agency head. An employee who is granted leave of absence with or without pay shall be an employee of the state while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence. The agency head and the employee may agree in writing to other conditions and terms under which the leave is to be granted. (4) Each agency shall keep an accurate record of all hours of work performed by each employee, as well as a complete and accurate record of all authorized leave which is approved. The ultimate responsibility for the accuracy and proper maintenance of all attendance and leave records shall be with the agency head. (5) Rules shall be adopted by the department in cooperation and consultation with the agencies to implement the provisions of this section; however, such rules must be approved by

143 the Administration Commission prior to their adoption. Such rules must provide for, but need not be limited to: (a) The maximum responsibility and authority resting with each agency head to administer attendance and leave matters in the agency within the parameters of the rules adopted by the department. (b) Creditable service in which 1 month of service credit is awarded for each calendar month that the employee is on the payroll of a state agency or during which the employee is on authorized leave without pay. (c) Holidays as provided in s (d) Overtime provisions. (e) Annual leave provisions. (f) Sick leave provisions. (g) Parental leave provisions. (h) Family medical leave provisions. (i) Disability leave provisions. (j) Compulsory disability leave provisions. (k) Administrative leave provisions. (l) Military leave provisions. (m) Educational leave with pay provisions. (n) Leave of absence without pay provisions. (6) The leave benefits provided to Senior Management Service employees shall not exceed those provided to employees in the Selected Exempt Service. (7) Each December, a permanent career service employee shall be entitled, subject to available funds, to a payout of up to 24 hours of unused annual leave as follows: (a) A permanent career service employee must have an annual leave balance of no less than 24 hours, after the payout, in order to qualify for this benefit. (b) No permanent career service employee shall receive a payout of greater than 240 hours over the course of the employee's career with the state, including any leave received at the time of separation. 60L Regular Time and Overtime. (1) Agencies shall pay the following at the employee's current straight time hourly regular rate of pay: the first 40 hours of work; hours in an approved extended work period; and hours in the regular work period for excluded employees, including holidays, leave with pay, and any other non-work time for which the employee is paid during these designated periods. (2) Agencies shall refer to the FLSA regarding what constitutes compensable hours of work. (3) Employees filling excluded positions in the selected exempt service and the senior management service are expected to work the necessary hours required, and shall not be paid overtime unless required by law or otherwise approved by the Department. (4) In lieu of overtime payment, an employee in an included position who is eligible for overtime, may, if mutually agreed by the employee and the agency, waive cash payment for overtime, and the agency shall process the FLSA special compensatory leave as follows: (a) At the end of the workweek or extended period, credit all overtime hours as FLSA special compensatory leave credits at the rate of one and one-half hours credit for each hour of overtime worked. (b) Allow the employee to accumulate up to a maximum of 80 hours of credits. (c) Allow the employee to use the credits in any increments mutually agreed by the employee and the supervisor. Absent mutual agreement, the supervisor may, with a minimum of five workdays notice, require the employee to use the credits at any time in increments of full workdays. (d) At the close of business on December 31 and June 30 of each year, or other dates approved by the Department, pay the employee for all unused credits at the employee's straight time regular hourly rate of pay. (e) If the employee separates from the agency or moves to an excluded position with accumulated credits, pay the employee for all unused credits at the employee's straight time regular hourly rate of pay. (f) When an employee is called back to work beyond the employee's scheduled hours of work for that day, the employee shall be credited with actual time worked or a minimum of two hours of work, whichever is greater. Time not worked of the minimum of two hours is not counted as hours worked for the purposes of computing overtime compensation. Georgia (a) As used in this Code section, the term: (a) As used in this Code section, the term: (1) "Overtime hours" means hours worked by a public employee for which payment of time and one-half overtime compensation or time and one-half compensatory time is required pursuant to the Fair Labor Standards Act, 29 U.S.C.A. 207, et seq. (2) "Public employee" or "applicant" means a public employee or applicant for public employment who is, or if hired would be, entitled to payment of time and onehalf overtime compensation or time and one-half compensatory time for overtime hours, pursuant to the Fair Labor Standards Act, 29 U.S.C.A. 207, et seq. (b) No public employer shall require that a public employee or applicant agree, as a term and condition of employment, to receive neither time and onehalf overtime compensation nor time and one-half compensatory time for overtime hours. (c) Nothing in this Code section shall prohibit a public employer from providing time and one-half compensatory time in lieu of cash overtime payment, or from exercising any other optional payment plan or method authorized by the Fair Labor Standards Act, 29 U.S.C.A. 207, et seq., including, but not limited to, the fluctuating work week method of overtime payment Maximum hours. (a) No employer shall, except as otherwise provided in this section, employ Hawaii

144 any employee for a workweek longer than forty hours unless the employee receives overtime compensation for the employee's employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which the employee is employed. For the purposes of this section, (1) "Salary" means a predetermined wage, exclusive of the reasonable cost of board, lodging, or other facilities, at which an employee is employed each pay period; (2) If an employee performs two or more different kinds of work for the same employer, the total earnings for all such work for the pay period shall be considered to have been earned for performing one kind of work. (b) The regular rate of an employee who is employed on a salary shall be computed as follows: (1) If the employee is employed on a weekly salary, the weekly salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be divided by forty. (2) If the employee is employed on a biweekly salary, the biweekly salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be divided by two and the quotient divided by forty. (3) If the employee is employed on a semi-monthly salary, the semi-monthly salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be multiplied by twenty-four, the product divided by fifty-two and the quotient divided by forty. (4) If the employee is employed on a monthly salary, the monthly salary and the reasonable cost of board, lodging, or other facilities if furnished to the employee, shall be multiplied by twelve, the product divided by fifty-two and the quotient divided by forty. (c) The regular rate of an employee who is employed on a salary and in addition receives other wages such as, but not limited to, commissions, bonus, piecework pay, and hourly or daily pay shall be computed in the manner provided in this subsection. As used hereinabove, the term "other wages" shall not include the reasonable cost of board, lodging, or other facilities. (1) If the employee's salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, equal or exceed fifty per cent of the employee's total earnings for the pay period, the total earnings shall be reduced to a regular rate in the manner provided in paragraph (1), (2), (3), or (4) of subsection (b), whichever is applicable. (2) If the employee's salary and the reasonable cost of board, lodging, or other facilities, if furnished to the employee, are less than fifty per cent of the employee's total earnings for the pay period, the total earnings shall be reduced to a regular rate in the manner provided in paragraph (1), (2), (3), or (4) of subsection (b), whichever is applicable, except that the actual number of hours worked in the workweek shall be substituted for the final divisor of forty. Such an employee shall receive overtime compensation for employment in excess of forty hours in a workweek at a rate not less than one-half times the employee's regular rate. (d) The regular rate of an employee whose compensation is based on other than salary shall be computed in the manner provided in paragraph (2) of subsection (c). The reasonable cost of board, lodging, or other facilities, if furnished to the employee, shall be included in computing the employee's regular rate. Such an employee shall receive overtime compensation for such employment in excess of forty hours in a workweek at a rate not less than one-half times the employee's regular rate. (e) An employer, (1) Who is engaged in agriculture and in the first processing of milk, buttermilk, whey, skim milk, or cream into dairy products, or in the processing of sugar cane molasses or sugar cane into sugar (but not refined sugar) or into syrup, or in the first processing of or in canning or packing any agricultural or horticultural commodity, or in handling, slaughtering, or dressing poultry or livestock; or (2) Who is engaged in agriculture and whose agricultural products are processed by an employer who is engaged in a seasonal pursuit or in processing, canning, or packing operations referred to in paragraph (1); or (3) Who is at any place of employment engaged primarily in the first processing of, or in canning or packing seasonal fresh fruits; shall not be required to pay overtime compensation for hours in excess of forty in a workweek to any of the employer's employees during any of twenty different workweeks, as selected by the employer, in any yearly period commencing July 1, for employment in any place where the employer is so engaged. The employer, however, shall pay overtime compensation for such employment in excess of forty-eight hours in any such exempt workweek at the rate and in the manner provided in subsections (a), (b), (c) and (d), whichever is applicable, except that the word "forty-eight" shall be substituted for the word "forty" wherever it appears in subsections (b), (c), and (d). (f) No employer shall employ any employee in split shifts unless all of the shifts within a period of twenty-four hours fall within a period of fourteen consecutive hours, except in case of extraordinary emergency. (g) This section shall not apply to any overtime hours worked by an employee of an air carrier subject to Title II of the Railway Labor Act, 45 U.S.C. section 181 et seq.; provided such overtime hours are the result of a voluntary agreement between employees to exchange work time or days off.

145 Provisions of law may not be waived by agreement. No provision of this chapter may in any way be contravened or set aside by private agreement Reduction of wages. No employer shall reduce a wage paid to an employee which is in excess of the minimum wage under chapter 387, Hawaii Revised Statues, for the purpose of, evading the overtime provisions of section 387-3,.Hawaii Revised Statutes Issuance of certificate. Upon receipt of an application for employment of a handicapped worker or handicapped trainee, the director may issue a special certificate to the employer-under the following terms and conditions: (1) The special certificate shall be valid under the terms set forth in the certificate for a period of not more than twelve months from the date of issue as specified in the certificate; (2) The special certificate shall have no retroactive effect, but shall operate as an exception subsequent to the date of issue only; (3) The subminimum wage shall not be less-than the wage specified in the certificate by the director; (4) The handicapped worker or handicapped trainee shall be paid at the hourly rate specified in the certificate, or not less than the piece rates paid non-handicapped workers employed in the same occupation, whichever is greater; (5) The handicapped worker or handicapped trainee shall be paid not less than one and one-half times the regular rate for all hours worked in excess of the maximum workweek under section 387-3, Hawaii Revised Statutes; (6) Money paid the handicapped trainee by any governmental agency for maintenance or other expenses shall not be considered as off-setting any part of the wage or other remuneration due the handicapped trainee by the employer; and (7) The terms of any special certificate may be `amended for cause upon written request to the director by the parties concerned Issuance of certificate. Upon receipt of an application for the employment of a paroled ward, the director may issue a special certificate to the employer subject to the following terms and conditions: (1) The wage rate set in the certificate shall be fixed at a figure designed to reflect adequately the individual worker's earning capacity. No wage rate shall be fixed at less than fifty per cent of the minimum. wage under section 387-2, Hawaii Revised Statutes; (2) The paroled ward shall be paid at the hourly rate specified in the certificate, or not less than the piece rates paid to employees in the same occupation, whichever is greater; (3) The paroled ward shall be paid not less than one and onehalf times the regular rate for all hours worked in excess of the maximum workweek under section 387-3, Hawaii Revised Statutes; (4) A special certificate shall be valid under the terms set forth in the certificate for a period of not more than six months from the date of issue or a longer period if specified in the certificate; and (5) The employer shall keep the special certificate on file while the paroled ward is employed, and upon termination of employment, the certificate shall be returned to the director. Sec Hours of work of officers and employees; compensation for overtime and premium pay. (a) The provisions of this section shall apply to: (1) Every officer or employee of the State or any of its political subdivisions, or of any department, board, commission, or other agency of the State or any of its political subdivisions, where pay is established by chapter 77, except: (A) Elected officials; (B) The head of any department, first deputy or first assistant; and (C) Officers and employees assigned to salary ranges 31 and over; (2) Students employed by the State or any of its political subdivisions or any department, board, commission, or other agency of the State or any of its political subdivisions, during the students' summer vacation and on an exempt service basis pursuant to applicable regulations of the department of personnel services. (b) Except as otherwise provided in this section the normal workweek of all government personnel shall be forty hours with not more than eight hours of work in any day. The normal workweek shall be applicable to all personnel, irrespective of whether their work is performed during the hours specified in section For pay and leave purposes, if a legal holiday falls on a: (1) Saturday and the preceding Friday is observed as a holiday pursuant to section 8-2: (A) For employees whose regular workweek does not include Saturday the workday preceding Saturday shall be held and considered to be a legal holiday in lieu of the holiday which so occurs on the Saturday; (B) For employees whose regular workweek includes Saturday, the holiday shall be observed on Saturday, but not on Friday; (2) Saturday and the preceding Friday is not observed as a holiday, employees whose regular workweek includes Saturday shall be entitled to observe the holiday; (3)

146 Sunday and the following Monday is observed as a holiday pursuant to section 8-2: (A) For employees whose regular workweek does not include Sunday, the next regular workday following Sunday shall be held and considered a legal holiday, in lieu of the holiday which so occurs on Sunday; (B) For employees whose regular workweek includes Sunday, the holiday shall be observed on Sunday, but not on Monday; (4) Regular weekly non-workday of any employee whose regular workweek is other than Monday-Friday, the next workday following the regular weekly non-workday shall be held and considered to be a legal holiday for the employee in lieu of the holiday which so occurs on the regular weekly non-workday. (c) The limitation of eight hours of work a day or forty hours a week may be waived for the convenience of employees by an agreement between a majority of a group of officers or employees and the head of that agency in which they are employed. The agreement shall be canceled or amended whenever a majority of the group wish to cancel or amend it. (d) The hours of work and compensation of the firefighting members of the fire departments of the political subdivisions of the State shall be governed by the following provisions: (1) The maximum number of hours of work shall be an average of sixty-three hours of actual service which shall constitute an average workweek and which shall be scheduled and computed on the basis of an eight-week cycle; provided that for firefighting members of the fire department who are required to work under unique and unusual situations, in a county with a population of one hundred thousand or less, the maximum number of hours may be reduced by the fire chief with the approval of the mayor; (2) The number of hours of each day's work shall be fixed from time to time by the head of the department; and (3) Notwithstanding any other law to the contrary, if any firefighting member of the fire departments of the political subdivisions of the State is required to report for duty on any state holiday designated by section 8-1, the firefighting member shall receive in lieu of the firefighting member's straight time pay, payment in cash at the rate of two times the firefighting member's regular rate of pay for all hours of duty. The double time payment shall be in lieu of and not be in addition to the firefighting member's regular straight time pay. (e) Employees shall be paid for all hours worked in excess of the foregoing limitations in cash at the rate of one and one-half hours for each hour of overtime worked. (f) If compensation for overtime worked is due an officer or employee at the time of severance, it shall be paid in cash. (g) Any work performed in a spread of more than ten hours per day, exclusive of meal periods, shall be considered as overtime work and the employee shall be paid for the work at the rate of time and one-half. (h) Whenever an employee is required to report to work because of an emergency outside of the employee's regular scheduled working hours, the employee shall be paid for a minimum of two hours of work, calculated from the time the employee leaves the employee's home until the employee returns from work. (i) Whenever an employee is required, with less than forty-eight hours advance notice, to report for work on a shift other than the shift for which the employee was officially scheduled, the employee shall be credited for overtime work for each hour of work performed on the first workday of such new shift. (j) The provisions of this section in regard to payment in cash shall be applicable in all cases except where the employee who has performed the overtime work elects, in writing, to take compensatory time off in lieu of cash. The employee shall receive as compensatory time off one and one-half hours for each hour of overtime worked. The compensatory time off shall be scheduled by mutual agreement of the affected employee and the employee's appointing authority. All cash payments shall be made within forty-five days after the overtime work is performed. (k) An employee who, by agreement with the head of the employee's department, performs stand-by or emergency service in excess of the employee's normal hours of work in exchange for accommodations provided the employee for the convenience of the government, shall not be entitled to overtime credit for such service except for emergency service rendered on the employee's scheduled day off. (l) The department of personnel services of the State and the departments of civil service in the political subdivisions of the State shall each be responsible for the proper administration of the provisions of this section in the respective jurisdictions. Rules and regulations for the proper administration and regulation of hours of work and overtime compensation of officers and employees of the State and its municipal subdivisions shall be promulgated by the respective personnel directors of the State and its municipal subdivisions, subject to the approval of the governor for the state rules, the mayor of the city and county of Honolulu for the rules of the city and county, and the chief executive officer for the rules of each of the counties of Hawaii, Kauai, and Maui. The rules and regulations shall be such as to obtain, so far as possible, uniformity and practicability in the application of this section. (m) In operating units rendering public service twenty-four hours per day and seven days per week, whenever an employee whose work is subject to shifts is required to render full-time service for more than six consecutive days, the employee shall be entitled to overtime for each

147 Idaho hour of work performed on the seventh day unless after the lapse of twenty-four nonwork hours. [This provision is repealed as part of a general repeal of Chapter 80, effective July 1, 2002, by Act 253 (S.B. 2859, s. 133), L Rights, benefits, and privileges enjoyed by those in civil service positions who were hired prior to July 1, 2001, are not to be diminished or impaired until those rights, benefits, and privileges are either negotiated into collective bargaining agreements or established by executive order for civil service employees (Act 253, L. 2000, s. 149, as amended by Act 123 (S.B. 1115), L. 2001, s. 15).] Hours of work and overtime. (1) It is the policy of the legislature of the state of Idaho that all classified and non-classified officers and employees of the executive branch of state government shall be treated substantially similar with reference to hours of employment, holidays and vacation leave, except as provided in this chapter. For wage, hour and working conditions, the supreme court and the legislative council shall prescribe rules for employees of the judicial branch and the legislative branch, respectively. The policy of this state shall not restrict the extension of regular work hour schedules on an overtime basis, which shall be the same for classified and non-classified employees, in those activities and duties where such extension is necessary and authorized by the appointing authority. (2) The appointing authority of any department shall determine the necessity for overtime work and shall provide for cash compensation or compensatory time off for such overtime work for eligible classified and non-classified officers and employees. (3) Classified and non-classified officers and employees who fall within one (1) or more of the following categories are ineligible for cash compensation or compensatory time for overtime work: (a) Elected officials; or (b) Those included in the definition of section (j), Idaho Code. (4) Classified and non-classified employees who are designated as executive, as provided in section , Idaho Code, and who are not included in the definition of subsection (3) of this section, shall be ineligible for compensatory time or cash compensation for overtime work. Such salaried employees shall report absences in excess of one-half (1/2) day. Unused compensatory time balances in excess of two hundred forty (240) hours as of the date of enactment of this act shall be forfeited on December 31, Unused compensatory time balances of two hundred forty (240) hours or less shall be forfeited on December 31, Employees who become executives within their current agency as set forth in section (12), Idaho Code, shall have twelve (12) months from the date of this act or of appointment, whichever is later, to use any compensatory time balance. After twelve (12) months, any remaining compensatory time will be forfeited. Compensatory time is not transferable, and shall be forfeited at the time of transfer to another appointing authority or upon separation from state service. (5) Classified and non-classified officers and employees who are designated as administrative or professional as provided in the federal fair labor standards act, or who are designated as exempt under any other complete exemption in federal law, and who are not included in the definition of subsection (3) of this section, shall be ineligible for cash compensation for overtime work unless cash payment is authorized by the state board of examiners for overtime accumulated during unusual or emergency situations, but such classified and non-classified officers and employees shall be allowed compensatory time off from duty for overtime work. Such compensatory time shall be earned and allowed on a one (1) hour for one (1) hour basis, shall not be transferable, and shall be forfeited at the time of transfer to another appointing authority or upon separation from state service. Compensatory time may be accrued and accumulated up to a maximum of two hundred forty (240) hours. Effective with the first pay period in July, 2008 (beginning date June 15, 2008), compensatory time balances in excess of two hundred forty (240) hours will not continue to accrue until the balance is below the maximum. After the last pay period in June, 2009 (ending date June 13, 2009), balances in excess of two hundred forty (240) hours shall be forfeited. (6) Classified and non-classified officers and employees who are not designated as executive, administrative or professional as provided in this section, and who are not included in the definition of subsection (3) of this section or who are not designated as exempt under any other complete exemption in federal law, shall be eligible for cash compensation or compensatory time off from duty for overtime work, subject to the restrictions of applicable federal law. Compensatory time off may be provided in lieu of cash compensation at the discretion of the appointing authority after consultation, in advance, with the employee. Compensatory time off shall be paid at the rate of one and one-half (1 1/2) hours for each overtime hour worked. Compensatory time off which has been earned during any one-half (1/2) fiscal year but not taken by the end of the succeeding one-half (1/2) fiscal year, shall be paid in cash on the first payroll following the close of such succeeding one-half (1/2) fiscal year. Compensatory time not

148 taken at the time of transfer to another appointing authority or upon separation from state service shall be liquidated at the time of such transfer or separation by payment in cash. (7) Notwithstanding the provisions of this section, employees may be paid for overtime work during a disaster or emergency with the approval of the board of examiners Hours of work and overtime. (1) It is hereby declared to be the policy of the legislature of the state of Idaho that all classified employees shall be treated substantially similar with reference to hours of employment. The policy of this state as declared in this act shall not restrict the extension of regular work hour schedules on an overtime basis in those activities and duties where such extension is necessary and authorized, provided that overtime work performed under such extension is compensated for as hereinafter provided. (2) The appointing authority of any department shall determine the necessity for overtime work and shall provide for cash compensation or compensatory time off for such overtime work for eligible classified officers and employees, subject to the restrictions of applicable federal law. (3) Cash for overtime and compensatory time shall be paid based on the following criteria: (a) Classified and non-classified officers and employees who fall within one (1) or more of the following categories are ineligible for cash compensation or compensatory time for overtime work: (i) Elected officials; or (ii) Those included in the definition of section (j), Idaho Code. (b) Classified and non-classified employees who are designated as executive, as provided in section , Idaho Code, and who are not included in the definition of subsection (3)(a) of this section, shall be ineligible for compensatory time or cash compensation for overtime work. Such salaried employees shall report absences in excess of one-half (1/2) day. Unused compensatory time balances in excess of two hundred forty (240) hours as of the date of enactment of this act shall be forfeited on December 31, Unused compensatory time balances of two hundred forty (240) hours or less shall be forfeited on December 31, Employees who become executives within their current agency as set forth in section (12), Idaho Code, shall have twelve (12) months from the date of this act or of appointment, whichever is later, to use any compensatory time balance. After twelve (12) months, any remaining compensatory time will be forfeited. Compensatory time is not transferable, and shall be forfeited at the time of transfer to another appointing authority or upon separation from state service. (c) Classified and non-classified employees who are designated as administrative or professional, as provided in the federal fair labor standards act, 29 U.S.C. section 201, et seq., or who are designated as exempt under any other complete exemption in federal law, and who are not included in the definition of either subsection (3)(a) or (3)(b) of this section, shall be ineligible for cash compensation for overtime work unless cash payment is authorized by the state board of examiners for overtime accumulated during unusual or emergency situations, but such classified and non-classified employees shall be allowed compensatory time off from duty for overtime work. Such compensatory time shall be earned and allowed on a one (1) hour for one (1) hour basis, shall not be transferable, and shall be forfeited at the time of transfer to another appointing authority or upon separation from state service. Compensatory time may be accrued and accumulated up to a maximum of two hundred forty (240) hours. Effective with the first pay period in July, 2008 (beginning date June 15, 2008), compensatory time balances in excess of two hundred forty (240) hours will not continue to accrue until the balance is below the maximum. After the last pay period in June, 2009 (ending date June 13, 2009), balances in excess of two hundred forty (240) hours shall be forfeited. (d) Classified employees who are not designated as executive, administrative or professional as provided in this section, and who are not included in the definition of subsection (3)(a) of this section or who are not designated as exempt under any other complete exemption in federal law, shall be eligible for cash compensation or compensatory time off from duty for overtime work, subject to the restrictions of applicable federal law. Compensatory time off may be provided in lieu of cash compensation at the discretion of the appointing authority after consultation, in advance, with the employee. Compensatory time off shall be paid at the rate of one and one-half (1 1/2) hours for each overtime hour worked. Compensatory time off which has been earned during any one-half (1/2) fiscal year but not taken by the end of the succeeding one-half (1/2) fiscal year, shall be paid in cash on the first payroll following the close of such succeeding one-half (1/2) fiscal year. Compensatory time not taken at the time of transfer to another appointing authority or upon separation from state service shall be liquidated at the time of such transfer or separation by payment in cash. (e) Notwithstanding the provisions of this section, employees may be paid for overtime work during a disaster or emergency with the approval of the board of examiners. (4) Cash compensation for overtime, when paid, shall be at one and one-half (1 1/2) times the hourly rate of that officer's or employee's salary or wage, except for

149 those employees whose positions fall within the definitions of executive, administrative or professional as stated in section , Idaho Code, who will be paid at their regular hourly rate of pay as provided for in subsection (3) of this section. (5) Except as provided for in subsection (3) of this section, compensation for authorized overtime work shall be made at the completion of the pay period next following the pay period in which the overtime work occurred and shall be added to the regular salary payment Definitions. As used in this chapter, and other applicable sections of the Idaho Code, each of the terms defined in this section shall have the meaning given in this section unless a different meaning is clearly required by the context. Such terms and their definitions are: (1) "Administrative employee" means any person, non-classified or classified appointed to a position which meets the criteria set forth in the federal fair labor standards act, 29 U.S.C. section 201, et seq. Final designation of a classified position as "administrative" within this definition shall be made by the administrator of the division of human resources. Exceptions to this designation which do not violate the federal fair labor standards act, 29 U.S.C. section 201, et seq., may be made by the administrator. (2) "Administrator" means the administrator of the division of human resources in the governor's office. (3) "Appointing authority" means the officer, board, commission, person or group of persons authorized by statute or lawfully delegated authority to make appointments to or employ personnel in any department. (4) "Class" means a group of positions sufficiently similar as to the duties performed, degree of supervision exercised or required, minimum require-merits of training, experience or skill, and other characteristics, that the same title, the same tests of fitness and the same schedule of compensation may be applied to each position in the group. (5) "Classified officer or employee" means any person appointed to or holding a position in any department of the state of Idaho which position is subject; to the provisions of the merit examination, selection, retention, promotion and dismissal requirements of chapter 53, title 67, Idaho Code. (6) "Commission" means the Idaho personnel commission. (7) "Compensatory time" means approved time off from duty provided in compensation for overtime hours worked. (8) "Computer worker" means any person, non-classified or classified, appointed to a position which meets the criteria set forth in the federal fair labor standards act, 29 U.S.C. section 201, et seq. Final designation of a classified position as "computer worker" within this definition shall be made by the administrator of the division of human resources. Exceptions to this designation which do not violate the federal fair labor standards act, 29 U.S.C. section 201, et seq., may be made by the administrator. (9) "Department" means any department, agency, institution or office of the state of Idaho. (10) "Disabled veteran" is as defined in section , Idaho Code. (11) "Eligible" means a person who has been determined to be qualified for a classified position and whose name has been placed on the register of eligibles. (12) "Executive employee" means any person, non-classified or classified, appointed to a position equivalent to a bureau chief or above as provided in section , Idaho Code, or any employee meeting the following criteria: (a) An individual whose primary duty is management of a department, division or bureau; and (b) Who customarily and regularly directs the work of at least two (2) or more other employees therein; and (c) Who has the authority to hire and fire, or to recommend hiring and firing; or whose recommendation on these and other actions affecting employees is given particular weight; and (d) Who customarily and regularly exercises discretionary powers; and (e) Who is classified to a position allocated to the pay grade equivalent to two hundred sixty (260) points or higher pursuant to the rating system established by rule. (f) Final designation of a classified position as "executive" in this definition shall be made by the administrator. Exceptions to this designation which do not violate the federal fair labor standards act, 29 U.S.C. section 201, et seq., may be made by the administrator. (13) "Exempt employee" means any employee, classified or non-classified, who is determined to be an executive, professional or administrative employee as defined herein, or who qualifies for any other exemption from cash compensation for overtime under applicable federal law. Final designation of a classified position as exempt shall be made by the administrator. (14) "Full-time employee" means any employee working a forty (40) hour work week. (15) "Holiday" means the following: January 1 (New Year's Day); Third Monday in January (Martin Luther King, Jr. Idaho Human Rights Day); Third Monday in February (Washington's Birthday); Last Monday in May (Memorial Day); July 4 (Independence Day); First Monday in September (Labor Day); Second Monday in October (Columbus Day); November 11 (Veterans Day); Fourth Thursday in November (Thanksgiving); December 25 (Christmas). In addition, the term "holiday" shall mean any day so designated by the President of the United States or the governor of this state for a public fast, thanksgiving or holiday. In the event that a holiday occurs on a

150 Saturday, the preceding Friday shall be a holiday, and if the holiday falls on a Sunday, the following Monday shall be a holiday. A holiday is a day of exemption from work granted to nonexecutive employees during which said employees shall be compensated as if they actually worked. Employees classified as executive exempt are entitled to ten (10) paid holidays per year. If such an employee works on one (1) of the official holidays listed in this subsection, then such employee may take an alternative day off but shall not receive additional compensation. (16) "Hours worked" means those hours actually spent in the performance of the employee's job on any day including holidays, and shall not include vacation or sick leave or other approved leave of absence. (17) "Non-classified employee" means any person appointed to or holding a position in any department of the state of Idaho, which position is exempted from the provisions of chapter 53, title 67, Idaho Code, as provided for in section , Idaho Code. (18) "Normal work week" means any forty (40) hours worked during a particular one hundred sixty-eight (168) hour period as previously established by the employee's appointing authority. (19) "Open competitive examination" means an examination which may be taken by qualified applicants to compete on an equal basis for listing on the register of eligibles. (20) "Overtime work" means time worked on holidays and time worked in excess of forty (40) hours in a period of one hundred sixty-eight (168) consecutive hours, except that in the case of those employees engaged in law enforcement, correctional and fire protection activities characterized by irregular shift work schedules, time worked in excess of one hundred sixty (160) hours in a period of twenty-eight (28) consecutive days shall constitute overtime work within the meaning of this chapter. Such employees may also be paid overtime for specific hours worked in addition to their normal schedules upon emergency declaration by the governor or with the approval of the appointing authority and the board of examiners. (21) "Participating department" means any department of the state of Idaho which employs persons in classified positions subject to the merit examination, selection, retention, promotion and dismissal requirements of this chapter. (22) "Part-time employee" means any employee whose usually scheduled work is less than forty (40) hours in a period of one hundred sixty-eight (168) consecutive hours, and who shall not be entitled to sick leave accruals provided in section , Idaho Code, vacation leave provided in section , Idaho Code, nor holiday pay as defined in subsection (15) of this section, unless contributions are being made to the public employee retirement system in accordance with chapter 13, title 59, Idaho Code, and rules promulgated by the public employee retirement system board. (23) "Personnel system" means the procedure for administering employees in accordance with this chapter. (24) "Political office" means a public office for which partisan politics is a basis for nomination, election or appointment. (25) "Political organization" means a party which sponsors candidates for election to political office. (26) "Position" means a group of duties and responsibilities legally assigned or delegated by one (1) or more appointing authorities and requiring the employment of one (1) person. (27) "Professional employee" means any person, non-classified or classified, appointed to a position which meets the criteria set forth in the federal fair labor standards act, 29 U.S.C. section 201, et seq. Final designation of a classified position as "professional" within this definition shall be made by the administrator. Exceptions to this designation which do not violate the federal fair labor standards act, 29 U.S.C. section 201, et seq., may be made by the administrator. (28) "Provisional appointment" means appointment to a classified position pending the establishment of a register for such position and employment shall not be continued in this status longer than thirty (30) days after establishment of a register. (29) "Qualifying examination" means an examination or evaluation given to a selected person to determine eligibility for reclassification or appointment to a position in a classification. (30) "Register" means a list of names of persons who have been determined to be eligible for employment in a classified position as determined on the basis of examination and merit factors as established by the administrator. (31) "Seasonal appointment" means an appointment to a position which is permanent in nature, but which has intermittent work periods throughout the year. (32) "Service rating" means a recorded evaluation of work performance and promotional potential of an employee by his supervisor. (33) "Temporary appointment" means appointment to a position which is not permanent in nature, and in which employment will not exceed one thousand three hundred eighty-five (1,385) hours during any twelve (12) month period. No person holding a temporary appointment may work in excess of one thousand three hundred eighty-five (1,385) hours during a twelve (12) month period of time for any one (1) department, except upon petition by the appointing authority of the department of lands that demonstrates good cause, the administrator of the division of human resources may extend the one thousand three hundred eighty-five (1,385) hour limit for employees of the department who are required to perform fire suppression activities. (34) "Vacation leave" means a period of exemption from

151 Illinois work granted to employees during which time said employees shall be compensated. The term shall not include compensatory time for overtime work. (35) "Veteran" is as defined in section , Idaho Code. 820 ILCS 105/4a (from Ch. 48, par. 1004a) Sec. 4a. (1) Except as otherwise provided in this Section, no employer shall employ any of his employees for a workweek of more than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than 1 1/2 times the regular rate at which he is employed. (2) The provisions of subsection (1) of this Section are not applicable to: A. Any salesman or mechanic primarily engaged in selling or servicing automobiles, trucks or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers. B. Any salesman primarily engaged in selling trailers, boats, or aircraft, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers. C. Any employer of agricultural labor, with respect to such agricultural employment. D. Any employee of a governmental body excluded from the definition of "employee" under paragraph (e)(2)(c) of Section 3 of the Federal Fair Labor Standards Act of E. Any employee employed in a bona fide executive, administrative or professional capacity, including any radio or television announcer, news editor, or chief engineer, as defined by or covered by the Federal Fair Labor Standards Act of 1938 and the rules adopted under that Act, as both exist on March 30, 2003, but compensated at the amount of salary specified in subsections (a) and (b) of Section of Title 29 of the Code of Federal Regulations as proposed in the Federal Register on March 31, 2003 or a greater amount of salary as may be adopted by the United States Department of Labor. For bona fide executive, administrative, and professional employees of not-for-profit corporations, the Director may, by regulation, adopt a weekly wage rate standard lower than that provided for executive, administrative, and professional employees covered under the Fair Labor Standards Act of 1938, as now or hereafter amended. F. Any commissioned employee as described in paragraph (i) of Section 7 of the Federal Fair Labor Standards Act of 1938 and rules and regulations promulgated thereunder, as now or hereafter amended. G. Any employment of an employee in the stead of another employee of the same employer pursuant to a work time exchange agreement between employees. H. Any employee of a not-for-profit educational or residential child care institution who (a) on a daily basis is directly involved in educating or caring for children who (1) are orphans, foster children, abused, neglected or abandoned children, or are otherwise homeless children and (2) reside in residential facilities of the institution and (b) is compensated at an annual rate of not less than $13,000 or, if the employee resides in such facilities and receives without cost board and lodging from such institution, not less than $10,000. I. Any employee employed as a crew member of any uninspected towing vessel, as defined by Section 2101(40) of Title 46 of the United States Code, operating in any navigable waters in or along the boundaries of the State of Illinois. (3) Any employer may employ any employee for a period or periods of not more than 10 hours in the aggregate in any workweek in excess of the maximum hours specified in subsection (1) of this Section without paying the compensation for overtime employment prescribed in subsection (1) if during that period or periods the employee is receiving remedial education that: (a) is provided to employees who lack a high school diploma or educational attainment at the eighth grade level; (b) is designed to provide reading and other basic skills at an eighth grade level or below; and (c) does not include job specific training. (4) A governmental body is not in violation of subsection (1) if the governmental body provides compensatory time pursuant to paragraph (o) of Section 7 of the Federal Fair Labor Standards Act of 1938, as now or hereafter amended, or is engaged in fire protection or law enforcement activities and meets the requirements of paragraph (k) of Section 7 or paragraph (b)(20) of Section 13 of the Federal Fair Labor Standards Act of 1938, as now or hereafter amended. 56 Ill. Adm. Code Regular Rate of Pay for Determination of Overtime a) Section 4a of the Act requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed. The regular rate of pay at which the employee is employed shall in no event be less than the statutory minimum. If the employee's regular rate of pay is higher than the statutory minimum, his overtime compensation must be computed at a rate not less than one and one-half times such higher rate. b) The regular rate is a rate per hour. The Act does not require employers to pay employees on an hourly rate basis. Their earnings may be determined on a piece-rate, salary, commission, or some other basis, but in such case the overtime pay due must be computed on a

152 basis of the hourly rate derived from such earnings. Sec Overtime General a) The Act does not require that an employee be paid overtime compensation for hours in excess of eight per day, or for work on Saturdays, Sundays, holidays or regular days of rest, unless hours worked exceed forty per week. b) The Act does not require holiday, vacation, sick pay or other similar causes be included in the regular rate of the employee. Hours that are paid for, but not worked, will not increase the regular rate. c) Sums paid as gifts such as those made at holidays or other amounts that are not measured by or dependent on hours worked may not be credited towards, or used to offset from, overtime compensation due under the Act. 210 ILCS 85/10.9 Sec Nurse mandated overtime prohibited. (a) Definitions. As used in this Section: "Mandated overtime" means work that is required by the hospital in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units, such as surgical nursing services, shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under subsection (b). "Nurse" means any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nurse Practice Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care. For the purposes of this Section, "advanced practice nurse" does not include a certified registered nurse anesthetist who is primarily engaged in performing the duties of a nurse anesthetist. "Unforeseen emergent circumstance" means (i) any declared national, State, or municipal disaster or other catastrophic event, or any implementation of a hospital's disaster plan, that will substantially affect or increase the need for health care services or (ii) any circumstance in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which the hospital fails to have enough nursing staff to meet the usual and reasonably predictable nursing needs of its patients. (b) Mandated overtime prohibited. No nurse may be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift. (c) Offduty period. When a nurse is mandated to work up to 12 consecutive hours, the nurse must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift. (d) Retaliation prohibited. No hospital may discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b). (e) Violations. Any employee of a hospital that is subject to this Act may file a complaint with the Department of Public Health regarding an alleged violation of this Section. The complaint must be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department must forward notification of the alleged violation to the hospital in question within 3 business days after the complaint is filed. Upon receiving a complaint of a violation of this Section, the Department may take any action authorized under Section 7 or 9 of this Act. (f) Proof of violation. Any violation of this Section must be proved by clear and convincing evidence that a nurse was required to work overtime against his or her will. The hospital may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work. Sec Nursing services and administration; Mandatory overtime prohibited. a) As used in this Section, the following definitions apply: "Agreed-to, predetermined shift" nursing hours of work, provided in advance to staff, in a prospective nurse staffing schedule for each patient care unit. Any work hours in addition to the predetermined shifts or prospective work schedule must be agreed to between the nurse employee and the employer. The agreed-to, predetermined shift may include "on call" but does not include other overtime staffing mechanisms in which a nurse employee's work, or availability to work additional hours, is at the sole discretion of the employer. "Mandated overtime" work that is required by the hospital in excess of an agreed-to, predetermined work shift. Time spent by nurses required to be available as a condition of employment in specialized units, such as surgical nursing services, shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime. (Section 10.9(a) of the Act) "Nurse" any advanced practice nurse, registered professional nurse, or licensed practical nurse, as defined in the Nursing and Advanced Practice Nursing Act, who receives an hourly wage and has direct responsibility to oversee or carry out nursing care. For the purposes of this Section, "advanced practice nurse" does not

153 Indiana include a certified registered nurse anesthetist who is primarily engaged in performing the duties of a nurse anesthetist. (Section 10.9(a) of the Act) "On-call/available" the voluntary agreement by any nurse to be assigned specific agreed-to, predetermined hours of availability for work as a condition of employment. Additional hours of on-call in excess of the nurse's predetermined hours of work shall be strictly voluntary. "Overtime" the hours of work in excess of an agreed-to predetermined regularly scheduled shift, not to exceed 40 hours of work in a seven-day workweek. "Retaliation" disciplining, discharging, suspending, demoting, harassing, denying employment or promotion, laying off, or taking any adverse action against a nurse. "Specialized unit" a unit, such as surgical nursing services. "Substantially affect" affecting a situation, except for deviations that result in unimportant changes, given the particular situation involved. "Unforeseen emergent circumstances" Any declared national, State or municipal disaster or other catastrophic event, or implementation of a hospital's disaster plan, that will substantially affect or increase the need for health care services; or Any circumstances in which patient care needs require specialized nursing skills through the completion of a procedure. An "unforeseen emergent circumstance" does not include situations in which the hospital fails to have enough nursing staff to meet the usual and reasonably predictable nursing needs of its patient. (Section 10.9(a) of the Act) b) Mandated overtime is prohibited. No nurse shall be required to work mandated overtime except in the case of an unforeseen emergent circumstance when such overtime is required only as a last resort. 1) Such mandated overtime shall not exceed 4 hours beyond an agreed-to, predetermined work shift. (Section 10.9(b) of the Act) 2) Time spent by nurses required to be available as a condition of employment in specialized units, such as surgical nursing services, shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandating overtime. (Section 10.9(a) of the Act) 3) For any nurse who does not agree to employment requiring on-call hours, the refusal of a nurse employee to agree to such on-call availability shall not constitute grounds for retaliation, discrimination, dismissal, discharge, or any other penalty, threat of reports for discipline, or employment decisions adverse to the nurse employee. 4) The hospital's written staffing plan shall include an on-call policy for those units where on-call is required as a condition of employment. 5) On-call is not to be used to fill vacancies resulting from chronic or foreseeable staff shortages. c) When a nurse is mandated to work up to 12 consecutive hours, the nurse shall be allowed at least 8 consecutive hours of off-duty time immediately following the completion of a shift. (Section 10.9(c) of the Act) d) No hospital shall discipline, discharge, or take any other adverse employment action against a nurse solely because the nurse refused to work mandated overtime as prohibited under subsection (b) of this Section. (Section 10.9(d) of the Act) e) Violations 1) Any employee of a hospital that is subject to the Act and this Part may file a complaint with the Department of Public Health regarding an alleged violation of the Act. (Section 10.9(e) of the Act) A) A complaint shall be submitted to the Department in writing, by telephone, or by personal visit. B) An oral complaint will be reduced to writing by the Department. 2) The complaint shall be filed within 45 days following the occurrence of the incident giving rise to the alleged violation. The Department will forward notification of the alleged violation to the hospital in question within 3 business days after the complaint is filed. (Section 10.9(e) of the Act) 3) Upon receiving a complaint of a violation of this Section, the Department may take any action authorized under Section 7 or 9 of the Act. (Section 10.9(e) of the Act) f) Any violation of this Section shall be proved by clear and convincing evidence that a nurse was required to work overtime against his or her will. The hospital may defeat the claim of a violation by presenting clear and convincing evidence that an unforeseen emergent circumstance, which required overtime work, existed at the time the employee was required or compelled to work. (Section 10.9(f) of the Act) Hearings shall be conducted in accordance with Section of this Part. IC (a) Every employer employing four (4) or more employees... (a) Every employer employing four (4) or more employees during a work week shall: (1) in any work week beginning on or after July 1, 1968, in which the employer is subject to the provisions of this chapter, pay each of the employer's employees wages of not less than one dollar and twenty-five cents ($1.25) per hour; (2) in any work week beginning on or after July 1, 1977, in which the employer is subject to this chapter, pay each of the employer's employees wages of not less than one dollar and fifty cents ($1.50) per hour; (3) in any work week beginning on or after January 1, 1978, in which the employer is subject to this chapter, pay each of the employer's employees wages of not less than one dollar and seventy-five cents ($1.75) per hour; and (4) in any work week beginning on or after January 1, 1979, in which the employer is subject to this chapter, pay each of the employer's employees wages of not less than two

154 dollars ($2) per hour. (b) Except as provided in subsection (c), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on and after July 1, 1990, and before October 1, 1998, wages of not less than three dollars and thirty-five cents ($3.35) per hour. (c) An employer subject to subsection (b) is permitted to apply a "tip credit" in determining the amount of cash wage paid to tipped employees. In determining the wage an employer is required to pay a tipped employee, the amount paid the employee by the employee's employer shall be an amount equal to: (1) the cash wage paid the employee, which for purposes of the determination shall be not less than the cash wage required to be paid to employees covered under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 203(m)(1)) on August 20, 1996, which amount is two dollars and thirteen cents ($2.13) an hour; and (2) an additional amount on account of the tips received by the employee, which amount is equal to the difference between the wage specified in subdivision (1) and the wage in effect under subsections (b), (f), (g), and (h). An employer is responsible for supporting the amount of tip credit taken through reported tips by the employees. (d) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which employees are employed, between employees on the basis of sex by paying to employees in such establishment a rate less than the rate at which the employer pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. (e) An employer who is paying a wage rate differential in violation of subsection (d) shall not, in order to comply with subsection (d), reduce the wage rate of any employee, and no labor organization, or its agents, representing employees of an employer having employees subject to subsection (d) shall cause or attempt to cause such an employer to discriminate against an employee in violation of subsection (d). (f) Except as provided in subsection (c), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after October 1, 1998, and before March 1, 1999, wages of not less than four dollars and twenty-five cents ($4.25) per hour. (g) Except as provided in subsections (c) and (j), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after March 1, 1999, and before July 1, 2007, wages of not less than five dollars and fifteen cents ($5.15) an hour. (h) Except as provided in subsections (c) and (j), every employer employing at least two (2) employees during a work week shall, in any work week in which the employer is subject to this chapter, pay each of the employees in any work week beginning on or after June 30, 2007, wages of not less than the minimum wage payable under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.). (i) This section does not apply if an employee: (1) provides companionship services to the aged and infirm (as defined in 29 CFR 552.6); and (2) is employed by an employer or agency other than the family or household using the companionship services, as provided in 29 CFR (a). (j) This subsection applies only to an employee who has not attained the age of twenty (20) years. Instead of the rates prescribed by subsections (c), (f), (g), and (h), an employer may pay an employee of the employer, during the first ninety (90) consecutive calendar days after the employee is initially employed by the employer, a wage which is not less than: (1) four dollars and twenty-five cents ($4.25) per hour, effective March 1, 1999; and (2) the amount payable under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et seq.), during the first ninety (90) consecutive calendar days after initial employment to an employee who has not attained twenty (20) years of age, effective July 1, However, no employer may take any action to displace employees (including partial displacements such as reduction in hours, wages, or employment benefits) for purposes of hiring individuals at the wage authorized in this subsection. (k) Except as otherwise provided in this section, no employer shall employ any employee for a work week longer than forty (40) hours unless the employee receives compensation for employment in excess of the hours above specified at a rate not less than one and one-half (1.5) times the regular rate at which the employee is employed. (l) For purposes of this section the following apply: (1) "Overtime compensation" means the compensation required by subsection (k). (2) "Compensatory time" and "compensatory time off" mean hours during which an employee is not working, which are not counted as hours worked during the applicable work week or other work period for purposes of overtime

155 compensation, and for which the employee is compensated at the employee's regular rate. (3) "Regular rate" means the rate at which an employee is employed is considered to include all remuneration for employment paid to, or on behalf of, the employee, but is not considered to include the following: (A) Sums paid as gifts, payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency. (B) Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause, reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of the employer's interests and properly reimbursable by the employer, and other similar payments to an employee which are not made as compensation for the employee's hours of employment. (C) Sums paid in recognition of services performed during a given period if: (i) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect the payments regularly; (ii) the payments are made pursuant to a bona fide profit sharing plan or trust or bona fide thrift or savings plan, meeting the requirements of the administrator set forth in appropriately issued regulations, having due regard among other relevant factors, to the extent to which the amounts paid to the employee are determined without regard to hours of work, production, or efficiency; or (iii) the payments are talent fees paid to performers, including announcers, on radio and television programs. (D) Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old age, retirement, life, accident, or health insurance or similar benefits for employees. (E) Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or work week because those hours are hours worked in excess of eight (8) in a day or in excess of the maximum work week applicable to the employee under subsection (k) or in excess of the employee's normal working hours or regular working hours, as the case may be. (F) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the work week, where the premium rate is not less than one and one-half (1.5) times the rate established in good faith for like work performed in non-overtime hours on other days. (G) Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight (8) hours) or work week (not exceeding the maximum work week applicable to the employee under subsection (k)) where the premium rate is not less than one and one-half (1.5) times the rate established in good faith by the contract or agreement for like work performed during the workday or work week. (m) No employer shall be considered to have violated subsection (k) by employing any employee for a work week in excess of that specified in subsection (k) without paying the compensation for overtime employment prescribed therein if the employee is so employed: (1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than one thousand forty (1,040) hours during any period of twenty-six (26) consecutive weeks; or (2) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that during a specified period of fifty-two (52) consecutive weeks the employee shall be employed not more than two thousand two hundred forty (2,240) hours and shall be guaranteed not less than one thousand eight hundred forty (1,840) hours (or not less than forty-six (46) weeks at the normal number of hours worked per week, but not less than thirty (30) hours per week) and not more than two thousand eighty (2,080) hours of employment for which the employee shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum work week applicable to the employee under subsection (k) or two thousand eighty (2,080) in that period at rates not less than one and one-half (1.5) times the regular rate at which the employee is employed. (n) No employer shall be considered to have violated subsection (k) by employing any employee for a work week in excess of the maximum work week applicable to the employee under subsection (k) if the employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of the employee necessitate irregular hours of work, and the contract or agreement includes the following: (1) Specifies a regular rate of pay of not less than the

156 minimum hourly rate provided in subsections (c), (h), and (j) (whichever is applicable) and compensation at not less than one and one-half (1.5) times that rate for all hours worked in excess of the maximum work week. (2) Provides a weekly guaranty of pay for not more than sixty (60) hours based on the rates so specified. (o) No employer shall be considered to have violated subsection (k) by employing any employee for a work week in excess of the maximum work week applicable to the employee under that subsection if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, the amount paid to the employee for the number of hours worked by the employee in the work week in excess of the maximum work week applicable to the employee under that subsection: (1) in the case of an employee employed at piece rates, is computed at piece rates not less than one and one-half (1.5) times the bona fide piece rates applicable to the same work when performed during non-overtime hours; (2) in the case of an employee performing two (2) or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half (1.5) times those bona fide rates applicable to the same work when performed during non-overtime hours; or (3) is computed at a rate not less than one and one-half (1.5) times the rate established by the agreement or understanding as the basic rate to be used in computing overtime compensation thereunder, provided that the rate so established shall be substantially equivalent to the average hourly earnings of the employee, exclusive of overtime premiums, in the particular work over a representative period of time; and if the employee's average hourly earnings for the work week exclusive of payments described in this section are not less than the minimum hourly rate required by applicable law, and extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate. (p) Extra compensation paid as described in this section shall be creditable toward overtime compensation payable pursuant to this section. (q) No employer shall be considered to have violated subsection (k) by employing any employee of a retail or service establishment for a work week in excess of the applicable work week specified therein, if: (1) the regular rate of pay of the employee is in excess of one and one-half (1.5) times the minimum hourly rate applicable to the employee under section 2 of this chapter; and (2) more than half of the employee's compensation for a representative period (not less than one (1) month) represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be considered commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee. (r) No employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or individuals with a mental illness or defect who reside on the premises shall be considered to have violated subsection (k) if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, a work period of fourteen (14) consecutive days is accepted in lieu of the work week of seven (7) consecutive days for purposes of overtime computation and if, for the employee's employment in excess of eight (8) hours in any workday and in excess of eighty (80) hours in that fourteen (14) day period, the employee receives compensation at a rate not less than one and one-half (1.5) times the regular rate at which the employee is employed. (s) No employer shall employ any employee in domestic service in one (1) or more households for a work week longer than forty (40) hours unless the employee receives compensation for that employment in accordance with subsection (k). (t) In the case of an employee of an employer engaged in the business of operating a street, a suburban or interurban electric railway, or a local trolley or motorbus carrier (regardless of whether or not the railway or carrier is public or private or operated for profit or not for profit), in determining the hours of employment of such an employee to which the rate prescribed by subsection (k) applies, there shall be excluded the hours the employee was employed in charter activities by the employer if both of the following apply: (1) The employee's employment in the charter activities was pursuant to an agreement or understanding with the employer arrived at before engaging in that employment. (2) If employment in the charter activities is not part of the employee's regular employment. (u) Any employer may employ any employee for a period or periods of not more than ten (10) hours in the aggregate in any work week in excess of the maximum work week specified in subsection (k) without paying the compensation for overtime employment prescribed in subsection (k), if during that period or periods the employee is receiving remedial education that: (1) is provided to employees who lack a high school diploma or educational attainment at the eighth grade level; (2) is designed to provide reading and other basic skills at an eighth grade level or below; and (3) does not include job specific training. (v) Subsection (k) does not apply to an employee of a motion picture

157 Kansas theater. (w) Subsection (k) does not apply to an employee of a seasonal amusement or recreational establishment, an organized camp, or a religious or nonprofit educational conference center that is exempt under the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. 213) Same; overtime compensation; exceptions. (a) On and after January 1, 1978, no employer shall employ any employee for a workweek longer than forty-six (46) hours, unless such employee receives compensation for employment in excess of forty-six (46) hours in a workweek at a rate of not less than one and one-half (1 1/2) times the hourly wage rate at which such employee is regularly employed. (b) No employer shall be deemed to have violated subsection (a) with respect to the employment of any employee who is covered by this section, who is engaged in the public or private delivery of emergency medical services as a crash injury management technician, emergency medical technician or mobile intensive care technician, or who is engaged in fire protection or law enforcement activities, including any member of the security personnel in any correctional institution, and who is paid compensation at a rate of not less than one and one-half (1 1/2) times the regular rate at which such employee is employed: (1) In any work period of twenty-eight (28) consecutive days in which such employee works for tours of duty which in the aggregate exceed two hundred fifty-eight (258) hours; or (2) in the case of any such employee to whom a work period of at least seven (7) but less than twentyeight (28) days applies, in any such work period in which such employee works for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in such work period as two hundred fifty-eight (258) hours bears to twenty-eight (28) days. (c) The provisions of this section shall not apply to the employment of: (1) Any employee who is covered under the provisions of section 7 of the fair labor standards act of 1938 as amended (29 U.S.C.A. 207), and as amended by the fair labor standards amendments of 1974 and any other acts amendatory thereof or supplemental thereto; or (2) any employee who is primarily engaged in selling motor vehicles, as defined in subsection (b) of K.S.A , for a nonmanufacturing employer primarily engaged in the business of selling such vehicles to ultimate purchasers; (3) any person who is sentenced to the custody of the secretary of corrections and any person serving a sentence in a county jail. (d) For the purposes of this section, the agreement or practice by employees engaged in fire protection or law enforcement activities of substituting for one another on regularly scheduled tours of duty, or a part thereof, shall be deemed to have no effect on hours of work if: (1) The substituting is done voluntarily by the employees and not at the behest of the employer; (2) The reason for substituting is due not to the employer's business practice but to the employee's desire or need to attend to a personal matter; (3) A record is maintained by the employer of all time substituted by the employer's employees; and (4) The period during which time is substituted and paid back does not exceed twelve (12) months Right of employees to bargain collectively not affected. Nothing in K.S.A to , inclusive, shall be deemed to interfere with, impede or in any way diminish the right of employees to bargain collectively with their employers, through representatives of their own choosing, in order to establish wages or other conditions of work in excess of the applicable minimum requirements of K.S.A to , inclusive Definitions. As used in this act: (a) "Administrator" means the executive director of the emergency medical services board. (b) "Ambulance" means any privately or publicly owned motor vehicle, airplane or helicopter designed, constructed, prepared and equipped for use in transporting and providing emergency care for individuals who are ill or injured. (c) "Ambulance service" means any organization operated for the purpose of transporting sick or injured persons to or from a place where medical care is furnished, whether or not such persons may be in need of emergency or medical care in transit. (d) "Attendant" means a first responder, emergency medical technician, emergency medical technician-intermediate, emergency medical technician-defibrillator or a mobile intensive care technician certified pursuant to this act. (e) "Board" means the emergency medical services board established pursuant to K.S.A , and amendments thereto. (f) "Emergency medical service" means the effective and coordinated delivery of such care as may be required by an emergency which includes the care and transportation of individuals by ambulance services and the performance of authorized emergency care by a physician, professional nurse, a licensed physician assistant or attendant. (g) "Emergency medical technician" means a person who holds an emergency medical technician certificate issued pursuant to this act. (h) "Emergency medical technician-defibrillator" means a person who holds an emergency medical technician-defibrillator certificate issued pursuant to this act.

158 (i) "Emergency medical technician-intermediate" means a person who holds an emergency medical technician-intermediate certificate issued pursuant to this act. (j) "First responder" means a person who holds a first responder certificate issued pursuant to this act. (k) "Hospital" means a hospital as defined by K.S.A , and amendments thereto. (l) "Instructor-coordinator" means a person who is certified under this act to teach initial courses of certification of instruction and continuing education classes. (m) "Medical adviser" means a physician. (n) "Medical protocols" mean written guidelines which authorize attendants to perform certain medical procedures prior to contacting a physician, or professional nurse authorized by a physician. These protocols shall be developed and approved by a county medical society or, if there is no county medical society, the medical staff of a hospital to which the ambulance service primarily transports patients. (o) "Mobile intensive care technician" means a person who holds a mobile intensive care technician certificate issued pursuant to this act. (p) "Municipality" means any city, county, township, fire district or ambulance service district. (q) "Nonemergency transportation" means the care and transport of a sick or injured person under a foreseen combination of circumstances calling for continuing care of such person. As used in this subsection, transportation includes performance of the authorized level of services of the attendant whether within or outside the vehicle as part of such transportation services. (r) "Operator" means a person or municipality who has a permit to operate an ambulance service in the state of Kansas. (s) "Person" means an individual, a partnership, an association, a joint-stock company or a corporation. (t) "Physician" means a person licensed by the state board of healing arts to practice medicine and surgery. (u) "Physician assistant" means a person who is licensed under the physician assistant licensure act and who is acting under the direction of a responsible physician. (v) "Professional nurse" means a licensed professional nurse as defined by K.S.A , and amendments thereto. (w) "Provider of training" means a corporation, partnership, accredited postsecondary education institution, ambulance service, fire department, hospital or municipality that conducts training programs that include, but are not limited to, initial courses of instruction and continuing education for attendants, instructor-coordinators or training officers. (x) "Responsible physician" means responsible physician as such term is defined under K.S.A a02 and amendments thereto. (y) "Training officer" means a person who is certified pursuant to this act to teach initial courses of instruction for first responders and continuing education as prescribed by the board Maximum hours before overtime; computations; schedule consecutive working days with corresponding maximum hours at regular rates; trading time. (a) Employees who are covered by the maximum hours provision of the law and who are engaged in fire protection or law enforcement activities shall be paid overtime compensation at a rate of not less than 1 1/2 times the regular rate at which the employee is employed. Overtime compensation shall be paid for all hours worked which exceed the hours worked shown opposite the number of consecutive days in the pay period, as follows: Consecutive work period Maximum hours at regular (days) rates (b) Calculations of pay rates for the overtime requirements of the act shall be based on an hourly rate regardless of the form of the wage payment. Use of the label "salary" to describe wage payments shall not determine coverage under or exemption from the act. All forms of wage payments shall be converted to an average hourly wage and may be computed as follows: Monthly rate X 12 Monthly pay = weeks X hours worked during the week Total amount paid during work period Weekly pay piece rate, unit = bonus, commission or other Total hours worked during period

159 (c) Fire protection or law enforcement activities employees may trade time, with the employer's permission, by one employee substituting for another on a regularly scheduled tour of duty, or for some part thereof, to permit an employee to absent himself or herself from work to attend to purely personal pursuits, if: (1) The trading of time is done voluntarily by the employees participating in the program and not at the behest of the employer; (2) The reason for trading time is due, not to the employer's business operations, but to the employee's desire or need to attend to personal matters; (3) A record is maintained by the employer of all time traded by employees; and (4) The period during which time is traded and paid back does not exceed 12 months. The employer shall assure that traded time is paid back or that proper wage payments are made as required. Kentucky Joint employment by public employers in fire prevention and law enforcement activities; overtime. (a) A joint employment relationship exists between two (2) or more public employers when they agree to share the services of an employee when one employer shall act directly or indirectly in the interest of the other employer in relations with the employee when: (1) The employers each have the right to control the job activities of the employee. (2) The second employer is required by local ordinance or otherwise to hire the employee and such employment benefits both employers. (b) The employees not otherwise exempt from K.S.A Supp through shall be paid overtime compensation by the primary employer for combined hours of work performed under joint employment relationships, except that employment with private employers shall not constitute a joint employment relationship under K.S.A Supp through Time and a half for employment in excess of forty hours Compensatory time. (1) No employer shall employ any of his employees for a work week longer than forty (40) hours, unless such employee receives compensation for his employment in excess of forty (40) hours in a work week at a rate of not less than one and one-half (1-½) times the hourly wage rate at which he is employed. (2) This provision shall not apply to the following: (a) Employees of retail stores engaged in work connected with selling, purchasing, and distributing merchandise, wares, goods, articles, or commodities; (b) Employees of restaurant, hotel, and motel operations; (c) Employees as defined and exempted from the overtime provision of the Fair Labor Standards Act in Sections 213(b)(1), 213(b)(6), 213(b)(10), and 213(b)(17) of Title 29, U.S.C.; (d) Employees whose function is to provide twenty-four (24) hour residential care on the employer's premises in a parental role to children who are primarily dependent, neglected, and abused and who are in the care of private nonprofit child caring facilities licensed by the Cabinet for Health and Family Services under KRS to ; or (e) Any individual who is employed by a third-party employer or agency other than the family or household using his or her services to provide in-home companionship services for a sick, convalescing, or elderly person. (3) As used in subsection (2) of this section, "companionship services" means those services which provide inhome fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. These services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work, provided that the household work is incidental, i.e., does not exceed twenty percent (20%) of the total weekly hours worked. The term "companionship services" does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse. (4) Notwithstanding the provisions of subsection (1) of this section or any other chapter of the KRS to the contrary, upon written request by a county or city employee, made freely and without coercion, pressure, or suggestion by the employer, and upon a written agreement reached between the employer and the county or city employee before the performance of the work, a county or city employee who is authorized to work one (1) or more hours in excess of the prescribed hours per week may be granted compensatory leave on an hour-for-hour basis. Upon the written request by a county or city employee, made freely and without coercion, pressure, or suggestion by the employer, and upon a written agreement reached between the employer and the county or city employee before the performance of the work, a county or city employee who is not exempt from the provisions of the Federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq., may be granted compensatory time in lieu of overtime pay, at the rate of not less than one and one-half (1-½) hours for each hour the county or city employee is authorized to work in excess of forty (40) hours in a work week. (5) (a) Upon the request of the county or city employee, and as provided in subsection (4) of this

160 section, compensatory time shall be awarded as follows: 1. A county or city employee who provided work in excess of forty (40) hours in a public safety activity, an emergency response activity, or a seasonal activity as described in 29 C.F.R. sec , may accrue not more than four hundred eighty (480) hours of compensatory time; or 2. A county or city employee engaged in other work in excess of forty (40) hours, may accrue not more than two hundred forty (240) hours of compensatory time. (b) A county or city employee who has accrued four hundred eighty (480) hours of compensatory time off pursuant to paragraph (a)1. of this subsection, or two hundred forty (240) hours of compensatory time off pursuant to paragraph (a)2. of this subsection, shall for additional overtime hours of work, be paid overtime compensation. (6) A county or city employee who has accrued compensatory time off as provided in subsection (4) of this section, and who requested the use of compensatory time, shall be permitted by the employer to use the compensatory time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer. Mere inconvenience to the employer shall not constitute a sufficient basis for denial of a county or city employee's request for compensatory time off. (7) If compensation is paid to a county or city employee for accrued compensatory time off, the compensation shall be paid at the regular rate earned by the county or city employee at the time the county or city employee receives the payment. (8) Upon a county or city employee's termination of employment, all unused accrued compensatory time shall be paid at a rate of compensation not less than: (a) The average regular rate received by the county or city employee during the last three (3) years of the county or city employee's employment; or (b) The final regular rate received by the county or city employee, whichever is higher. (9) Compensatory time shall not be used as a means to avoid statutory overtime compensation. A county or city employee shall have the right to use compensatory time earned and shall not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period upon the county or city employee making the request for compensatory time off. (10) Nothing in subsections (4) to (9) of this section shall be construed to supersede any collective bargaining agreement, memorandum of understanding, or any other agreement between the employer and representative of the county or city employees. (11) As used in subsections (4) to (9) of this section, "county or city employee" means an employee of any county, city, charter county, consolidated local government, unified local government, or urban-county government, including an employee of a county or city elected official. (12) In addition to the designation of a work week under subsection (1) of this section, local governments, as defined in KRS 95A.210(3), may designate a work period for professional firefighter employees as defined in KRS 95A.210. The designated work period shall be not less than one (1) work week of seven (7) consecutive days and not more than four (4) work weeks of twenty-eight (28) consecutive days for purposes of complying with the requirements of the Federal Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq. This subsection shall not exempt local governments from complying with the overtime requirements set forth in subsection (1) of this section and is intended to: (a) Clarify the option to designate both a work week for compliance with Kentucky law and a work period for compliance with the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq.; and (b) Allow for the application of the partial exemption set forth in 29 U.S.C. sec. 207(k) in determining overtime pay under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. secs. 201 et seq., only. 803 KAR 1:060. Overtime pay requirements. Section 1. Application of Overtime Provisions Generally. Since there is no absolute limitation in KRS on the number of hours that an employee may work in any workweek, he may work as many hours a week as he and his employer see fit, so long as the required overtime compensation is paid him for hours worked in excess of forty (40) hours as prescribed in KRS This statute does not require, however, that an employee be paid overtime compensation for hours in excess of eight (8) per day, or for work on Saturdays, Sundays, holidays or regular days of rest. If no more than forty (40) hours are actually worked in the workweek, overtime compensation pursuant to KRS need not be paid. Nothing in the statute, however, will relieve an employer of any obligation he may have assumed by contract or of any obligation imposed by other state or federal laws to limit overtime hours of work or to pay premium rates for work in excess of a daily standard or for work on Saturdays, Sundays, holidays, or other periods outside of or in excess of the normal or regular workweek or work day. Section 2. The Workweek as the Basis for Applying KRS If in any workweek an employee is covered by KRS and is not exempt from its overtime pay requirements, the employer must total all the hours worked by the employee for him in

161 that workweek, and pay overtime compensation for each hour worked in excess of the forty (40) hours. Section 3. Each Workweek Stands Alone. The statute takes a single workweek as its standard and does not permit averaging of hours over two (2) or more weeks. Thus, if an employee works thirty (30) hours one week and the fifty (50) hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the two (2) weeks is forty (40). This is true regardless of whether the employee works on a standard or swing-shift schedule and regardless of whether he is paid on a daily, weekly, biweekly, monthly, or other basis. The rule is also applicable to piece-workers and employees paid on a commission basis. It is therefore necessary to determine the hours worked and the compensation earned by pieceworkers and commission employees on a weekly basis. Section 4. Determining the Workweek. An employee's workweek is a fixed and regularly recurring period of 168 hours, seven (7) consecutive twenty-four (24) hour periods. It need not coincide with the calendar week but my being on any day and at any hour of the day. For purposes of computing pay due under this statute, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees. Once the beginning time of an employee's workweek is established, it remains fixed regardless of the schedule of hours worked by him. The beginning of the workweek may be changed if the change is intended to be permanent and is no designed to evade the overtime requirements of the statute. The proper method of computing overtime pay in a period in which a change in the time of commencement of the workweek is made, is explained in Section 12 of this administrative regulation. Section 5. General Standard for Overtime Pay. The general overtime pay standard in KRS requires that overtime must be compensated at a rate not less than one and one-half (1 1/2) times the hourly rate at which the employee is employed may in no event be less than the statutory minimum. If the employee's hourly rate of pay is higher than the statutory minimum, his overtime compensation must be computed at a rate not less than one and one-half (1 1/2) times such higher rate. Section 6. The overtime compensation is an hourly rate. The overtime compensation under KRS is based on the rate per hour. The statute does not require employers to compensate employees on an hourly rate basis; their earnings may be determined on a piece-rate, salary, commission, or other basis, but in such case the overtime compensation due to employees must be computed on the basis of the hourly rate derived therefrom and, therefore, it is necessary to compute the hourly rate of such employees during each workweek. The hourly rate of pay of an employee is determined by dividing his total remuneration for employment in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid. The following section gives some examples of the proper method of determining the regular hourly rate of pay in particular instances. Section 7. (1) Hour rate employee. If the employee is employed solely on the basis of a single hourly rate the overtime work he must be paid, in addition to his straight-time hourly earnings, a sum determined by multiplying one-half (1/2) the hourly rate by the number of hours worked in excess of forty (40) in the workweek. If the employee receives, in addition to his earnings at the hourly rate, an additional production bonus, the overtime must be paid on the total hourly rate received by the employee. This would be computed by adding the additional pay to the regular hourly rate and dividing by the total number of hours worked. (2) Pieceworker. When an employee is employed on a piece-rate basis, his hourly rate of pay is computed by adding together his total earnings for the workweek from piece rate and all other sources. This sum is then divided by the number of hours worked in the week for which compensation was paid, to yield the pieceworker's hourly rate for that week. For his overtime work the pieceworker is entitled to be paid, in addition to this total weekly earnings at this hourly rate for all hours worked, a sum equivalent to one-half (1/2) this rate of pay multiplied by the number of hours worked in excess of forty (40) in the week. (3) Day rates and job rates. If the employee is paid a flat sum for a day's work or for doing a particular job, without regard to the number of hours worked in the day or at the job, and if he receives no other form of compensation for services, his hourly rate is determined by totaling all the sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked. He is then entitled to extra half-time pay at this rate for all hours worked in excess of forty (40) in the workweek. (4) Salaried employee. (a) If the employee is employed solely on a weekly salary basis, his hourly rate of pay, on which time and a half must be paid, is computed by dividing the salary by the number of hours which the salary is intended to compensate. If an employee is hired at a salary of seventy (70) dollars and it is understood that this salary is compensation for a regular workweek of thirty-five (35) hours, the employee's rate of pay is seventy (70) divided by thirty-five (35) hours, or two (2) dollars an hour, and when he works

162 overtime he is entitled to receive two (2) dollars for each of the forty (40) hours and three (3) dollars for each hour thereafter. If an employee is hired at a salary of seventy (70) dollars for a forty (40) hour week, his rate is one (1) dollar and seventy-five (75) cents an hour. (b) Where the salary covers a period longer than a workweek, such as a month, it must be reduced to its workweek equivalent. A monthly salary is subject to translation to its equivalent weekly wage by multiplying by twelve (12) (the number of months) and dividing by fifty-two (52) (the number of weeks). A semimonthly salary is translated into its equivalent weekly wage by multiplying by twenty-four (24) and dividing by fifty-two (52). Once the weekly wage is arrived at, the hourly rate of pay will be calculated as indicated in the previous paragraph. An alternative method may be used to compute the hourly rate by dividing the monthly salary by the number of working days in the month and then by the number of hours of the normal or regular workday. Of course, the resultant rate in such a case must not be less than the statutory minimum wage. (c)1. An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working forty (40) hours or some other fixed weekly work period, such a salary arrangement is permitted if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half (1/2) his rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular hourly rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime at one-half (1/2) such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time rate, under the salary arrangement. 2. The application of the principles stated in the previous paragraph may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose overtime work is never in excess of fifty (50) hours in a workweek, and whose salary of eighty (80) dollars a week is paid with the understanding that it constitutes his compensation, except for overtime premiums, for whatever hours are worked in the workweek. If during the course of four (4) weeks this employee works forty (40), forty-four (44), fifty (50), and forty-eight (48) hours, his hourly rate of pay in each of these weeks is $2, $1.818, $1.60, and $1.667, respectively. Since the employee has already received straight-time compensation on a salary basis for all hour worked, only additional half-time pay is due. 3. The fluctuating workweek method of overtime payment may not be used unless the salary is sufficiently large to assure that no workweek will be worked in which the employee's average hourly earnings from the salary fall below the applicable minimum wage, and unless the employee clearly understands that the salary covers whatever hours the job may demand in a particular workweek and the employer pays the salary even though the workweek is one in which a full schedule of hours is not worked. Typically, such salaries are paid to employees who do not customarily work a regular schedule of hours and are in amounts agreed on by the parties as adequate straight-time compensation for long workweeks as well as short ones, under the circumstances of the employment as a whole. Where all the prerequisites for use of the "fluctuating workweek" method of overtime payment are present, the law, in requiring that not less than the prescribed premium of fifty (50) percent for overtime hours worked be paid, does not prohibit paying more. On the other hand, where all the facts indicate that an employee is being paid for his overtime hours at a rate no greater than that which he receives for non-overtime hours, compliance with the law cannot be rested on any application of the fluctuating workweek overtime formula. (5) Employees working at two (2) or more rates. Where an employee in a single workweek works at two (2) or more different types of work for which different non-overtime rates of pay have been established, his hourly rate for that week is the weighted average of such rates. That is, his total earnings are computed to include his compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs. (6) Payments other than cash. Where payments are made to employees in the form of goods or facilities which are regarded as part of wages, the reasonable cost to the employer or the fair value of such goods or of furnishing such facilities must be included in the hourly rate. Where, for example, an

163 employer furnishes lodging to his employees in addition to cash wages, the reasonable cost or the fair value of the lodging must be added to the cash wages before the hourly rate is determined. (7) Commission payments. (a) Commissions (whether based on a percentage of total sales or of sales in excess of a specified amount, or on some other formula) are payments for hours worked and must be included in the hourly rate. This is true regardless of whether the commission is the sole source of the employee's compensation or is paid in addition to a guaranteed salary or hourly rate, or on some other basis, and regardless of the method, frequency, or regularity of computing, allocating and paying the commission. It does not matter whether the commission earnings are computed daily, weekly, biweekly, semimonthly, monthly, or at some other interval. The fact that the commission is paid on a basis other than weekly, and that payment is delayed for a time past the employee's normal payday or pay period, does not excuse the employer from including this payment in the employee's hourly rate. (b) When the commission is paid on a weekly basis, it is added to the employee's other earnings for that workweek, and the total is divided by the total number of hours worked in the workweek to obtain the employee's hourly rate for the particular workweek. The employee must then be paid extra compensation at one-half (1/2) of that rate for each hour worked in excess of forty (40) hours in the workweek. (c) If the calculation and payment of the commission cannot be completed until sometime after the regular payday for the workweek, the employer may disregard the commission in computing the hourly rate until the amount of commission can be ascertained. Until that is done he may pay compensation for overtime at a rate of not less than one and one-half (1 1/2) the hourly rate paid the employee, exclusive of the commission. When the commission can be computed and paid, additional overtime compensation due by reason of the inclusion of the commission in the employee's regular hourly rate must be paid. To compute this additional overtime compensation, it is necessary, as a general rule, that the commission be apportioned back over the workweeks of the period during which it was earned. The employee must then receive additional overtime compensation for each week during the period in which he worked in excess of the forty (40) hours. The additional compensation for that workweek must be not less than one-half (1/2) of the increase in the hourly rate of pay attributable to the commission for that week multiplied by the number of hours worked in excess of the forty (40) hours in that workweek. (d) If it is not possible or practicable to allocate the commission among the workweeks or the period in proportion to the amount of commission actually earned or reasonably presumed to be earned each week, some other reasonable and equitable method must be adopted. The following methods must be used: 1. Allocation of equal amounts to each week. Assume that the employee earned an equal amount of commission in each week of the commission computation period and compute any additional overtime compensation due on this amount. This may be done as follows: For a commission computation period of one (1) month, multiply the commission payment by twelve (12) and divide by fifty-two (52) to get the amount of commission allocable to a single week. If there is a semi-monthly computation period, multiply the commission payment by twenty-four (24) and divide by fifty-two (52) to get each week's commission. For a commission computation period of a specific number of workweeks, such as every four (4) weeks (as distinguished from every month) divide the total amount of commission by the number of weeks for which it represents additional compensation to get the amount of commission allocable to each week. Once the amount of commission allocable to a workweek has been ascertained for each week in which overtime was worked, the commission for that week is divided by the total number of hours worked in that week, to get the increase in the hourly rate. Additional overtime due is computed by multiplying one-half (1/2) of this figure by the number of overtime hours worked in the week. 2. Allocation of equal amounts to each hour worked. If there are facts which make it inappropriate to assume equal commission earnings for each workweek, assume that the employee earned an equal amount of commission in each hour that he worked during the commission computation period, and divide the amount of the commission payment by the number of hours worked in the period to obtain the amount of increase in the regular rate allocable to the commission payment. One-half (1/2) of this figure should be multiplied by the number of overtime hours worked by the employee in the overtime workweek of the commission computation period to get the amount of additional overtime compensation due for this period. 3. If there are delays in crediting sales or debiting returns or allowances which affect the computation of commissions, the amounts paid to the employee for the computation period will be accepted as the total commission earnings of the employee during such period, and the commission may be allocated over the period from the last commission computation date to the present commission computation date, even though there may be credits or debits resulting from work which actually occurred during a previous period. The hourly increase resulting from the

164 commission may be computed as outlined in the preceding paragraphs pertaining to commission payments. (8) Other methods of determining the regular hourly rate are permitted as long as they provide for each employee employed by an employer to be paid a rate of not less than one and one-half (1 1/2) times the hourly rate at which the employee is employed and does not attempt to evade the provisions of KRS Section 8. Payments Excluded From Computing Hourly Rate. As used in KRS the "hourly rate at which he is employed" shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include: (1) Sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency. Such sums may not, however, be credited toward overtime compensation due under the statute. To qualify for this exclusion the bonus must be actually a gift or in the nature of a gift. If it is measured by hours worked, production, or efficiency, the payment is geared to wages and hours during the bonus period and is not longer to be considered as in the nature of a gift. If the payment is so substantial that it can be assumed that employees consider it a part of the wages for which they work, the bonus cannot be considered to be in the nature of a gift. Obviously, if the bonus is paid pursuant to contract, it is not in the nature of a gift. (2) Payments made for occasionally period when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer's interests and properly reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his hours of employment. However, since such payments are not made as compensation for the employee's hours worked in any workweek, no part of such payments can be credited toward overtime compensation due under the statute. (3) Sums paid in recognition of services performed during a given period if either: (a) Both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly; or (b) The payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan. Such sums may not, however, be credited toward overtime compensation due under the statute. In order for a bonus to qualify for exclusion as a discretionary bonus the employer must retain discretion both as to the fact of payment and as to the amount until a time quite close to the end of the period for which the bonus is paid. The sum to be paid as a bonus is determined by the employer without prior promise or agreement. The employee has no contract right, express or implied, to any amount. If the employer promises in advance to pay a bonus, he has abandoned his discretion with regard to it. (4) Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees. Such sums may not, however, be credited toward overtime compensation under the statute. (5) Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight (8) in a day or in excess of the maximum workweek applicable to such employee's normal working hours. Extra compensation paid for these hours shall be creditable toward overtime compensation under the statute. (6) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regulation days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and onehalf (1 1/2) times the rate established in good faith for like work performed in non-overtime hours on other days. Extra compensation paid for these hours shall be creditable toward overtime compensation under the statute. (7) Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday, where such premium rate is not less than one and one-half (1 1/2) times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek. Extra compensation paid for these hours shall be creditable toward overtime compensation under the statute. Section 9. Requirements of a "Bona Fide Profit-sharing Plan or Trust." (1) A bona fide profitsharing plan or trust is required to meet all of the standards set forth in the following paragraphs: (a) The profit sharing plan or trust constitutes a definite program or arrangement in writing, communicated or made available to the employees, which is established and maintained in good faith for the purpose of distributing to the employees a share of profits as additional remuneration over and above the wages or salaries paid to employees which wages or salaries are not dependent upon or influenced by the

165 existence of such profit-sharing plan or trust or the amount of the payments made pursuant thereto. (b) All contributions or allocations by the employer in the fund or trust to be distributed to the employees are: 1. Derived solely from profits of the employer's business as a whole, or an established branch or division of the business which is recognized as such for general business purposes and for which profits are separately and regularly calculated in accordance with accepted accounting practice; and 2. Made periodically, but not more frequently than is customary or consonant with accepted accounting practice to make periodic determinations of profit. (c) Eligibility to share in profits extends: 1. At least to all employees who are subject to the minimum wage and overtime provisions of the act, or to all such employees in an established part of the employer's business as described in paragraph (b) of this subsection: provided, however, that such eligibility may be determined by factors such as length of service or minimum schedule of hours or days of work which are specified in the plan or trust, and further, that eligibility need not extend to officers of the employer; or 2. To such classifications of employees as the employer may designate with the approval of the commissioner upon a finding, after notice to interested persons, including employee representatives, and an opportunity to present their views either orally or in writing. (d) The amounts paid to individual employees are determined in accordance with a definite formula or method of calculation specified in the plan or trust. The formula or method of calculation may be based on any one or more of such factors as straight-time earnings, total earnings, base rate of pay of the employee, straight-time hours or total hours worked by employees, or length of service, or distribution may be made on a per capita basis. (e) An employee's total share determined in accordance with paragraph (d) of this subsection may not be diminished because of any other remuneration received by him. (f) Provision is made either for payment to the individual employees of their respective shares of profits within a reasonable period after the determination of the amount of profits to be distributed, or for the irrevocable deposit by the employer of his employee's distributive shares of profits with a trustee for deferred distribution to such employees of their respective shares after a stated period of time or upon the occurrence of appropriate contingencies specified in the plan or trust; provided, however, that the right of an employee to receive his share is not made dependent upon his continuing in the employ of the employer after the period for which the determination of profits has been made. (2) No plan or trust which contains any one (1) of the following provisions shall be deemed to meet the requirements of a bona fide profit-sharing plan or trust: (a) If the share of any individual employee is determined in substance on the basis of attendance, quality or quantity of work, rate of production, or efficiency; (b) If the amount to be paid periodically by the employer into the fund or trust to be distributed to the employees is a fixed sum; (c) If periodic payments of minimum amounts to the employees are guaranteed by the employer; (d) If any individual employee's share, by the terms of the plan or trust, is set at a predetermined fixed sum or is so limited as to provide in effect for the payment of a fixed sum, or is limited to or set at a predetermined specified rate per hour or other unit of work or work time; (e) If the employer's contributions or allocations to the fund or trust to be distributed to the employees are based on factors other than profits such as hours of work, production, efficiency, sales or savings in cost. (3) As used in this section a "profit-sharing plan" means any such program or arrangement as qualifies hereunder which provides for the distribution by the employer to his employees of their respective shares of profits; and "profit-sharing trust" means any such program or arrangement as qualifies under this part which provides for the irrevocable deposit by the employer of his employee's distributive shares of profits with a trustee for deferred distribution to such employees of their respective shares. Section 10. Requirements of a "Bona Fide Thrift or Savings Plan." (1) A bona fide thrift or savings plan is required to meet all of the standards set forth in the following paragraphs: (a) The thrift or savings plan constitutes a definite program or arrangement in writing, adopted by the employer or by contract as a result of collective bargaining and communicated or made available to the employees, which is established and maintained, in good faith, for the purpose of encouraging voluntary thrift or savings by employees by providing an incentive to employees to accumulate regularly and retain cash savings for a reasonable period of time or to save through the regular purchase of public or private securities. (b) The plan specifically shall set forth the category or categories of employees participating and the basis of their eligibility. Eligibility may not be based on such factors as hours of work, production, or efficiency of the employees; provided, however, that hours of work may be used to determine eligibility of part-time or casual employees. (c) The amount any employee may save under the plan shall be specified in the plan or determined in accordance with a definite formula specified in the plan, which formula may be based on one or more factors such as the straight-time earnings or total earnings, base rate of pay, or length of service of the employee. (d) The

166 employer's total contribution in any year may not exceed fifteen (15) percent of the participating employees' total earnings during that year. In addition, the employer's total contribution in any year may not exceed the total amount saved or invested by the participating employees during that year; provided, however, that a plan permitting a greater contribution may be submitted to the commissioner and approved by him as a bona fide thrift or savings plan. (e) The employer's contributions shall be apportioned among the individual employees in accordance with a definite formula or method of calculation specified in the plan, which formula or method of calculation is based on the amount saved or the length of time the individual employee retains his savings or investment in the plan; provided, that no employee's share determined because of any other remuneration received by him. (2)(a) No employee's participation in the plan shall be on other than a voluntary basis. (b) No employee's wages or salary shall be dependent upon or influenced by the existence of such thrift or savings plan or the employer's contributions thereto. (c) The amounts any employee may save under the plan, or the amounts paid by the employer under the plan may not be based upon the employee's hours of work, production or efficiency. Section 11. Conditions for Exclusion of Benefit-plan Contributions under Section 8(4) of this Administrative Regulation. (1) In order for an employer's contribution to qualify for exclusion from the regular hourly rate the following conditions must be met: (a) The contributions must be made pursuant to a specific plan or program adopted by the employer, or by contract as a result of collective bargaining, and communicated to the employees. This may be either a company-financed plan or an employer-employee contributory plan. (b) The primary purpose of the plan must be to provide systematically for the payment of benefits to employees on account of death, disability, advanced age, retirement, illness, medical expenses, hospitalization, and the like. (c) In the plan or trust, either: 1. The benefits must be specified or definitely determinable on an actuarial basis; or 2. There must be both a definite formula for determining the amount to be contributed by the employer and a definite formula for determining the benefits for each of the employees participating in the plan; or 3. There must be both a formula for determining the amount to be contributed by the employer and a provision for determining the individual benefits by a method which is consistent with the purposes of the plan or trust. (d) The employer's contributions must be paid irrevocably to a trustee or third person pursuant to an insurance agreement, trust or other funded arrangement. The trustee must assume the usual fiduciary responsibilities imposed upon trustees by applicable law. The trust or fund must be set up in such a way that in no event will the employer be able to recapture any of the contributions paid in nor in any way divert the funds to his own use or benefit. (It should also be noted that in the case of joint employeremployee contributory plans, where the employee contributions are not paid over to a third person or to a trustee unaffiliated with the employer, violations of the statute may result if the employee contributions cut into the required minimum or overtime wages.) Although an employer's contributions made to a trustee or third person pursuant to a benefit plan must be irrevocably made, this does not prevent return to the employer of such sums which he had paid in excess of the contributions actually called for by he plan, as where such excess payments result from error or from the necessity of making payments to cover the estimated cost of contributions at a time when the exact amount of the necessary contributions under the plan is not yet ascertained. (e) The plan must not give an employee the right to assign his benefits under the plan nor the option to receive any part of the employer's contributions in cash instead of the benefits under the plan; provided, however, that if a plan otherwise qualifies as a bona fide benefit plan, it will still be regarded as a bona fide part thereof, for the payment to an employee in cash of all or a part of the amount standing to his credit: 1. At the time of the severance of the employment relation due to causes other than retirement, disability, or death; or 2. Upon proper termination of the plan; or 3. During the course of his employment under circumstances specified in the plan and not inconsistent with the general purposes of the plan to provide the benefits. (2) Where the benefit plan or trust has been approved by the Bureau of Internal Revenue as satisfying the requirements of section 401(1) of the Internal Revenue Code in the absence of evidence to the contrary, the plan or trust will be considered to meet the conditions specified in subsection (1)(a), (d) and (e) of this section. Section 12. Overlapping when Change of Workweek is Made. (1) As stated in Section 4 of this administrative regulation, the beginning of the workweek may be changed for an employee of for a group of employees if the change is intended to be permanent and is not designed to evade the overtime requirements of the statute. A change in the workweek necessarily results in a situation in which one or more hours or days fall in both the old workweek as previously constituted and the new workweek. Thus, if the workweek in a plant commenced at 7 a.m. on Monday and it is now proposed to begin the workweek at 7 a.m. on Sunday, the hours worked from 7 a.m. Sunday to 7 a.m. Monday will constitute

167 both the last hours of the old workweek and the first hours of the newly established workweek. (2) When the beginning of the workweek is changed, if the hours which fall within both old and new workweeks as explained in the subsection (1) of this section are hours in which the employee does no work, his overtime compensation for each workweek is, of course, determinable in precisely the same manner as it would be if no overlap existed. If, on the other hand, some of the employee's working time falls within hours which are included in both workweeks, the Labor Cabinet, as an enforcement policy, will assume that the overtime requirements of the statute have been satisfied if computation is made as follows: (a) Assume first that the overlapping hours are to be counted as hours worked only in the old workweek and not in the new; compute straight-time and overtime compensation due for each of the two (2) workweeks on this basis and total their sums. (b) Assume now that the overlapping hours are to be counted as hours worked only in the new workweek and not in the old, and complete the total computation accordingly. (c) Pay the employee an amount not less than the greater of the amounts computed by methods in paragraphs (a) and (b) of this subsection. Louisiana Time and a half for work done on seventh day of week Exceptions. (1) Any employer who permits any employee to work seven (7) days in any one (1) workweek shall pay him at the rate of time and a half for the time worked on the seventh day. For the purposes of this subsection, the term "workweek" shall mean a calendar week or any other period of seven (7) consecutive days adopted by the employer as the workweek with the intention that the same shall be permanent and without the intention to evade the overtime provision set out herein. (2) (a) Subsection (1) shall not apply in any case in which the employee is not permitted to work more than forty (40) hours during the workweek. In that case the employer may credit against the overtime payable under this section any overtime paid by him to the employees for the same hours under the requirements of any other law or contract. (b) Subsection (1) shall not apply to telephone exchanges having less than five hundred (500) subscribers, nor to stenographers, bookkeepers, or technical assistants of professions such as doctors, accountants, lawyers, and other professions licensed under the laws of this state, nor to any employees subject to the Federal Railway Labor Act and seamen or persons engaged in operating boats or other water transportation facilities upon navigable streams, nor to persons engaged in icing railroad cars, nor to common carriers under the supervision of the Department of Vehicle Regulation. (3) "Employee" as used in subsection (1) does not include any officer, superintendent, foreman, or supervisor whose duties are principally limited to directing or supervising other employees Effect on bargaining rights. Nothing in KRS to , , and to shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively through representatives of their own choosing in order to establish wages in excess of the applicable minimum or to establish hours of work shorter than the applicable minimum under KRS and Sec. 33:1994. Maximum hours & overtime, Municipal firefighters; Overtime compensation; Special work shift cycles, certain cities and parishes. A. Overtime compensation for firefighters covered by this Subpart in cities having a population of thirteen thousand or more and that of all parish and fire protection district paid firefighters shall be governed by the provisions of the federal Fair Labor Standards Act, as implemented in 29 CFR Part 553. In the event that such firefighters are subsequently excluded from the overtime compensation provisions of the Fair Labor Standards Act, any firefighters having a work period of at least seven but not more than twenty-eight consecutive days shall receive overtime compensation at the rate of one and one-half times his usual salary, to be determined by reducing his average monthly salary to an hourly scale, for all hours worked in excess of the following maximum hours standards: Work Period (days) Maximum Hours

168 B. The maximum hours of work required by persons employed or engaged full time by municipalities or municipal fire departments or by parish or parish fire departments or fire protection districts as operators of fire alarm systems in any one calendar week shall be forty-two hours. C. Notwithstanding any other provisions of this Section to the contrary, the city of Lafayette, may establish a work period not to exceed twenty-eight days for firemen, provided fire department employees are compensated at the rate of one and one-half times their regular rate of pay, or credited with compensatory time on a one and one-half time basis, for all hours in the work period that exceed an average of fifty-three hours per week. Hours worked by a fire department employee as a substitute for another employee shall be excluded from the calculation of overtime hours provided the substitution was voluntary on the part of both employees and approved by the employer. D. (1) Notwithstanding any other provision of this Section to the contrary, the governing authority of Fire Protection District No. One of the parish of Ouachita, in order to maximize fire protection, may establish a work shift cycle for the district as provided in R.S. 33:1994(D)(2), which requires a person employed by the district as a fireman to work in excess of sixty hours in any calendar week. Each fireman shall be paid at the rate of one and one-half times his usual salary for all overtime hours worked during a shift cycle. The total hours worked by each fireman during an entire work shift cycle shall be divided by the number of weeks in the shift cycle to determine the average number of hours worked per week. The overtime hours worked by each fireman during a shift cycle shall be the number of hours by which the average number of hours worked per week exceeds sixty multiplied by the number of weeks in the shift cycle. Hours worked by fire department employees as a substitute for another employee shall be excluded from the calculation of

169 overtime hours provided the substitution was voluntary on the part of both employees and approved by the employer. (2) For Fire Protection District No. One of Ouachita Parish, the work shift cycle authorized pursuant to Paragraph (D)(1) shall consist of a three week total of one hundred and sixtyeight hours. E. (1) Notwithstanding any other provision of this Section to the contrary, the city of Baton Rouge, in order to maximize fire protection, may establish a work shift cycle as provided in R.S. 33:1994(E)(2), which requires a person employed as a fireman to work in excess of sixty hours in any calendar week. Each fireman shall be paid at the rate of one and one-half times his usual salary for all overtime hours worked during a shift cycle. The total hours worked by each fireman during an entire work shift cycle shall be divided by the number of weeks in the shift cycle to determine the average number of hours worked per week. The overtime hours worked by each fireman during a shift cycle shall be the number of hours by which the average number of hours worked per week exceeds sixty multiplied by the number of weeks in the shift cycle. (2) The work shift cycle authorized pursuant to Subsection (E)(1) shall consist of a nine week total of five hundred and four hours. (3) Notwithstanding any other provisions of this Section to the contrary, the city of Baton Rouge, in order to maximize fire protection, may establish a work shift cycle as provided in R.S. 33:1994(E)(4), which requires a person employed as an operator of fire alarm systems to work in excess of forty-two hours in any calendar week. Each operator shall be paid at the rate of one and one-half times his usual salary for all overtime hours worked during a shift cycle. The total hours worked by each operator during an entire work shift cycle shall be divided by the number of weeks in the shift cycle to determine the average number of hours worked per week. The overtime hours worked by each operator during a shift cycle shall be the number of hours by which the average number of hours worked per week exceeds forty-two multiplied by the number of weeks in the shift cycle. (4) The work shift cycle authorized pursuant to Subparagraph (E)(3) shall consist of a twenty-six week total of one thousand ninety-two hours. F.(1) Notwithstanding any other provisions of this Section to the contrary, the city of Bossier City, in order to maximize fire protection, may establish a work shift cycle as provided in this Subsection, which requires a person employed as an operator of fire alarm systems to work in excess of forty-two hours in a calendar week. Each operator shall be paid at the rate of one and one-half times his usual salary for all overtime hours worked during a shift cycle. The total hours worked by each operator during an entire work shift cycle shall be divided by the number of weeks in the shift cycle to determine the average number of hours worked per week. The overtime hours worked by each operator during a shift cycle shall be the number of hours by which the average number of hours worked per week exceeds forty-two multiplied by the number of weeks in the shift cycle. (2) The work shift cycle authorized pursuant to Paragraph (1) of this Subsection shall consist of a twenty-six week total of one thousand ninety-two hours. Sec. 33:2213. Maximum hours & overtime, Municipal police department employees; Work shift cycles, certain cities; Compensatory time. A. The maximum hours of work required of any fulltime paid patrolman, patrolman first class, sergeant, lieutenant, or captain, or any other employee of the police department, except those employed in a position, grade or class above that of captain, in any municipality affected by this Subpart, shall be forty hours in any one calendar week. In cases of emergency, any employee may be required to work in excess of the maximum. For each hour so worked the employee shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his monthly salary to an hourly scale. B. (1) Notwithstanding any other provisions of law to the contrary, the city of Bossier City, the city of New Iberia, and the city of Abbeville, in order to maximize police protection, may establish a work shift cycle as provided in Subsection C of this Section, and the city of Lafayette may establish a work shift cycle as provided in Subsection F of this Section, both of which require any full-time paid patrolman, patrolman first class, corporal, sergeant, lieutenant, captain, or any other employee of the police department, except those employed in a position, grade, or class above that of captain whose scheduled hours of work are set according to rotating shifts, to work more than forty hours in one calendar week. (2) Each employee subject to the provisions of this Section shall be paid at the rate of one and one-half times his usual salary for all overtime hours worked during a shift cycle. (3)(a) The total hours worked by each such employee during an entire work shift cycle shall be divided by the number of weeks in the shift cycle to determine the average number of hours worked per week. (b) The overtime hours worked by each such employee during a shift cycle shall be the number of hours by which the average number of hours worked per week exceeds forty multiplied by the number of weeks in the shift cycle. C. The Bossier City Police Department, the New Iberia Police Department, and the Abbeville Police Department shall work a two-week cycle, thirty-six

170 hours the first week and forty-eight hours the second week. During the first week, the officers shall work Sunday, be off Monday and Tuesday, and work Wednesday and Thursday. During the second week, they shall work Monday and Tuesday, be off Wednesday and Thursday, and work Friday and Saturday. D. The Baton Rouge Police Department is authorized to work up to, but not more than, seven twelve hour shifts in a fourteen day work cycle. E. Notwithstanding any other provisions of law to the contrary, the city of Bastrop in order to maximize police protection, may establish a twenty-eight day work shift cycle which requires any full time paid patrolman, patrolman first class, corporal, sergeant, lieutenant, or captain, or any other employee of the police department, except those employed in a position, grade, or class above that of captain, whose scheduled hours of work are set according to rotating shifts, to work more than forty hours in one calendar week. Each employee subject to the provisions of this Subsection shall be compensated for overtime hours by receiving eight hours of compensatory time for each twenty-eight day cycle worked. F. Notwithstanding any other provision of law to the contrary, the city of Lafayette may establish a work period not to exceed twenty-eight days for police department employees provided they are compensated at the rate of one and one-half times their regular rate of pay, or credited with compensatory time on a one and one-half time basis, for all hours in the work period that exceed an average of forty hours per week. Hours worked by an employee as a voluntary substitute for another employee shall be in compliance with the provisions of the federal Fair Labor Standards Act, as amended. G. (1) Notwithstanding any other provisions of law to the contrary, the city of Baker, in order to maximize police protection, may establish a work shift cycle as provided herein which requires any full-time paid patrolman, patrolman first class, sergeant, lieutenant, captain, major, or any other employee of the police department, except those employed in a position, grade, or class above that of major, whose scheduled hours of work are set according to rotating shifts, to work more than forty hours in one calendar week. (2) Each employee subject to the provisions of this Subsection shall be paid at the rate of one and one-half times his usual salary for all overtime hours worked during a shift cycle or credited with compensatory time on a one and one-half basis for all hours in the work period that exceed an average of forty hours per week. (3)(a) The total hours worked by each such employee during an entire work shift cycle shall be divided by the number of weeks in the shift cycle to determine the average number of hours worked per week. (b) The overtime hours worked by each such employee during a shift cycle shall be the number of hours by which the average number of hours worked per week exceeds forty multiplied by the number of weeks in the shift cycle. (4) The Baker Police Department is authorized to work a two-week cycle, twelve hours a day, sixty hours the first week and twenty-four hours the second week. During the first week the officers may work Monday, Tuesday, Friday, Saturday, and Sunday and during the second week work Wednesday and Thursday. H. Any municipality subject to the provisions of this Subpart, to maximize police protection, may establish and implement a fourteen-day shift cycle for all full-time paid patrolmen, patrolmen first class, sergeants, lieutenants, captains, or any other employees of the police department except those in a position, grade, or class above that of captain which may require such officers to work Monday, Tuesday, Friday, Saturday, and Sunday of the first week of the cycle, and Wednesday and Thursday of the second week of the cycle. The workday shall consist of twelve hours on the above specified days. Such officers shall be paid overtime at one and one-half times their usual salary when the number of hours worked during the two-week cycle exceeds eighty hours or shall be credited with compensatory time on a one and one-half basis for all hours in said cycle that exceed eighty hours. I. Except for the city of Baton Rouge, the provisions of this Section shall not apply to any employee of a municipality with a population greater than two hundred thousand, according to the latest federal decennial census, employed in a position, grade, or class above that of lieutenant. J. The provisions of this Section shall not apply to any employee of the city of Shreveport employed in a position, grade, or class above that of lieutenant. K. Notwithstanding any other provision of law to the contrary, including Subsection A hereof, the city of Houma may establish and implement twelve-hour work shift cycles for all paid patrolmen, patrolmen first class, sergeants, lieutenants, captains, or any other employees of the police department except those in a position, grade, or class above that of captain. Such officers and employees shall be paid overtime at the rate of one and one-half times their usual salary when the number of hours worked during the two-week work cycle exceeds eighty hours or shall be credited with compensatory time on a one and one-half basis for all hours in said cycle that exceed eighty hours. L. Notwithstanding any other provision of law to the contrary, including Subsection A hereof, the city of Alexandria may establish and implement twelve-hour work shift cycles for police dispatchers of the Alexandria police department. Such dispatchers shall be paid overtime at the rate of one and one-half times their usual

171 Maine salary when the number of hours worked during the two-week cycle exceeds eighty hours or shall be credited with compensatory time on a one and one-half basis for all hours in said cycle that exceed eighty hours. M. Notwithstanding any other provision of law to the contrary, including Subsection A hereof, the city of Monroe may establish and implement twelve-hour work shift cycles for police dispatchers of the Monroe police department. Such dispatchers shall be paid overtime at the rate of one and one-half times their usual salary when the number of hours worked during the two-week cycle exceeds eighty hours or shall be credited with compensatory time on a one and one-half basis for all hours in said cycles that exceed eighty hours. N. Notwithstanding any other provision of law to the contrary, including Subsection A hereof, the city of Alexandria may establish and implement a fourteenday shift cycle for any full-time paid patrolmen, patrolmen first class, sergeants, lieutenants, captains, or any other employees of the police department except those in a position, grade, or class above that of captain which shall require such officers to begin work shifts on Monday, Tuesday, Friday, Saturday, and Sunday of the first week of the cycle, and Wednesday and Thursday of the second week of the cycle. The workday shall consist of a twelve-hour shift on each of the specified days for those employees assigned to such shifts. Such officers shall be paid overtime at the rate of one and one-half times their usual salary when the number of hours worked during the two-week cycle exceeds eighty hours or shall be credited with compensatory time on a one and one-half basis for all hours in said cycles that exceed eighty hours. Sec. 33: Maximum hours & overtime, Municipal police department employees; Compensatory time off in lieu of overtime compensation; Limitations & exceptions. A. For each hour of overtime worked, an employee covered by this Part may receive, in accordance with this Section and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required. B. (1) A municipality may provide compensatory time under Subsection A only in accordance with: (a) Applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the municipality and representatives of such employees; or (b) In the case of employees not covered by Subparagraph (1), an agreement or understanding arrived at between the employer and employee before the performance of the work. (2) A municipality may provide compensatory time under Subsection A only if the employee has not accrued compensatory time in excess of the limit applicable to the employee prescribed in Subsection C. C. (1) The work of an employee for which compensatory time may be provided, may not exceed four hundred eighty hours of compensatory time for hours worked. Any such employee who has accrued four hundred eighty hours of compensatory time off shall, for additional overtime hours worked, be paid overtime compensation. (2) If compensation is paid to an employee for accrued compensatory time off, such compensation shall be paid at the regular rate earned by the employee at the time the employee receives such payment. D. An employee who has accrued compensatory time off authorized to be provided under this Section, shall upon termination of employment, be paid for the unused compensatory time at a rate of compensation not less than: (1) The average regular rate received by such employee during the last three years of the employee's employment; or (2) The final regular rate received by such employee, whichever is higher. E. A municipal police employee who has accrued compensatory time off authorized to be provided under Subsection A, and who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the department. F. The provisions of this section shall not apply, however, to any municipality or employee exempt from coverage under the provisions of the federal Fair Labor Standards Act, as amended. Sec Minimum wage and overtime; Exemptions Except as otherwise provided in this subchapter [Subchapter III], an employer may not employ any employee at a rate less than the rates required by this section. 1. Minimum wage. The minimum hourly wage is $6.50 per hour. Starting October 1, 2006, the minimum hourly wage is $6.75 per hour. Starting October 1, 2007, the minimum hourly wage is $7.00 per hour. Starting October 1, 2008, the minimum hourly wage is $7.25 per hour. Starting October 1, 2009, the minimum hourly wage is $7.50 per hour. If the highest federal minimum wage is increased in excess of the minimum wage in effect under this section, the minimum wage under this section is increased to the same amount, effective on the same date as the increase in the federal minimum wage, but in no case may the minimum wage exceed the minimum wage otherwise in effect under this section by more than $1 per hour. 2. Tip Credit. An employer may consider tips as part of the

172 Maryland wages of a service employee, but such a tip credit may not exceed 50 percent of the minimum hourly wage established in this section. An employer who elects to use the tip credit must inform the affected employee in advance and must be able to show that the employee receives at least the minimum hourly wage when direct wages and the tip credit are combined. Upon a satisfactory showing by the employee or the employee's representative that the actual tips received were less than the tip credit, the employer shall increase the direct wages by the difference. The tips received by a service employee become the property of the employee and may not be shared with the employer. Service employees may volunteer to pool their tips to be split among other service employees or may volunteer to share a part of their tips with other employees who do not generally receive tips directly from customers. Tips that are automatically included in the customer's bill or that are charged to a credit card must be given to the service employee. A tip that is charged to a credit card must be paid by the employer to the employee by the next regular payday and may not be held while the employer is awaiting reimbursement from a credit card company. 3. Overtime Rate. An employer may not require an employee to work more than 40 hours in any one week unless 1 1/2 times the regular hourly rate is paid for all hours actually worked in excess of 40 hours in that week. The regular hourly rate includes all earnings, bonuses, commissions and other compensation that is paid or due based on actual work performed and does not include any sums excluded from the definition of "regular rate" under the Fair Labor Standards Act, 29 United States Code, Section 207(e). The overtime provision of this section does not apply to: A. Automobile mechanics, automobile parts clerks, automobile service writers, and automobile salespersons as defined in section 663. The interpretation of these terms must be consistent with the interpretation of the same terms under federal overtime law, 29 United States Code, Section 213; B. [Repealed, by PL Ch. 640 (LD 1697), L. 2007]; C. Mariners; D. Public employees, except those employed by the executive or judicial branch of the State; E. [Repealed, by PL Ch. 640 (LD 1697), L. 2007]; F. The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods. Individuals employed, directly or indirectly, for or at an egg processing facility that has over 300,000 laying birds must be paid overtime in accordance with this subsection; and; G. [Repealed]; H. Repealed; I. A driver or driver's helper who is subject to the provisions of 49 United States Code, Section as amended or to regulations adopted pursuant to that section and who is represented for purposes of collective bargaining by a labor organization certified by the National Labor Relations Board that is a party to a collective bargaining agreement that intends to regulate the rate of pay to be paid the driver or driver's helper; J. Repealed. K. A driver or driver's helper who is subject to the provisions of 49 United States Code, Section as amended or to regulations adopted pursuant to that section, who is governed by the applicable provisions of federal law with respect to payment of overtime. Nothing in this paragraph may be construed to limit the rights of parties to negotiate rates of pay for drivers and driver's helpers who are represented for purposes of collective bargaining by a labor organization certified by the National Labor Relations Board or who are employed by an entity that is party to a contract with the Federal Government or an agency of the Federal Government that dictates the minimum hourly rate of pay to be paid a driver or driver's helper. Sec [Overtime; Overtime requirements; Payment of overtime; Exceptions, Exemptions (a) General requirement. Except as otherwise provided in this section, each employer shall pay an overtime wage of at least 1.5 times the usual hourly wage, computed in accordance with of this Subtitle. (b) Exceptions for employers. This section does not apply to an employer that is: (1) subject to 49 U.S.C ; (2) an establishment that is a hotel or motel; (3) an establishment that is a restaurant; (4) considered a gasoline service station because the employer is engaged primarily in selling gasoline and lubricating oil, even if the employer sells other merchandise or performs minor repair work; (5) a bona fide private country club; (6) a not for profit entity and is engaged primarily in providing temporary at-home care services, such as companionship or delivery of prepared meals, to aged or sick individuals, individuals with disabilities, or individuals with a mental disorder; (7) a not for profit concert promoter, legitimate theater, music festival, music pavilion, or theatrical show; or (8) an amusement or recreational establishment, including a swimming pool, if the establishment: (i) operates for no more than 7 months in a calendar year; or (ii) for any 6 months during the preceding calendar year, has average receipts in excess of one-third of the average receipts for the other 6 months. (c) Exceptions for employees. This section does not apply to an employer with respect to (1) an employee for whom the United States Secretary of Transportation may set qualifications and maximum hours of service under 49 U.S.C ; (2) a mechanic, partsperson, or salesperson who primarily sells or

173 services automobiles, farm equipment, trailers, or trucks, if the employer is engaged primarily in selling those vehicles to ultimate buyers and is not a manufacturer; (3) a driver if the employer is engaged in the business of operating taxicabs; or (4) unless a collective bargaining agreement between an employer and a labor organization provides otherwise, an employee of the employer if: (i) the employer is subject to Title II of the Federal Railway Labor Act; (ii) the employer does not require the employee to work more than 40 hours during 1 workweek; and (iii) the employee voluntarily enters into an agreement with another employee to trade scheduled work hours and as a result the employee works more than 40 hours during a single workweek LAB. & EMPL. Computing wage for overtime. (a) In general. Except as otherwise provided in this section, an employer shall compute the wage for overtime under of this subtitle on the basis of each hour over 40 hours that an employee works during 1 workweek. (b) Music or theater craft or trade. Notwithstanding 3-415(b)(8) of this subtitle, an employer that is not a not for profit organization and is a concert promoter, legitimate theater, music festival, music pavilion, or theatrical show shall pay overtime for a craft or trade employee as required in subsection (a) of this section. (c) Farm work. The wage for overtime may be computed on the basis of each hour over 60 hours that an employee works during 1 workweek for an employee who: (1) is engaged in agriculture; and (2) is exempt from the overtime provisions of the federal Act. (d) Bowling establishments; infirmaries. The wage for overtime may be computed on the basis of each hour over 48 hours that an employee works during 1 workweek: (1) for an employee of a bowling establishment; and (2) for an employee of an institution that: (i) is not a hospital; but (ii) is engaged primarily in the care of individuals who: 1. are aged, intellectually disabled, or sick or have a mental disorder; and 2. reside at the institution STATE PERS. & PENS. Overtime compensation or compensatory time required; regulations. (a) In general. Except as otherwise provided in this subtitle, an employee who works more than the normal workweek for that employee's unit is entitled to compensation for that overtime work in the form of: (1) payment as provided in of this subtitle; or (2) compensatory time as provided in of this subtitle. (b) Regulations. The Secretary shall adopt regulations to prevent: (1) the granting of unnecessary overtime; and (2) the failure to grant overtime compensation to an eligible employee STATE PERS. & PENS. Payment of overtime required; special provisions for certain employees. (a) In general. Except as otherwise provided in this section: (1) payment for time worked in excess of an employee's normal workweek but not in excess of 40 hours in that workweek shall be made at the employee's regular hourly rate of pay; and (2) payment for time worked in excess of 40 hours in a workweek shall be made at one and one-half times the employee's regular hourly rate of pay. (b) Certain health care employees. (1) This subsection applies to those employees of a hospital or domiciliary care facility for the ill, aged, or disabled whose overtime compensation is computed on the basis of a 2-week work period under 8-304(b) of this subtitle. (2) For an employee subject to this subsection, payment for overtime work shall be made at the greater of (i) one and one-half times the employee's regular hourly rate of pay for time worked in excess of 80 hours in the 2-week work period; or (ii) one and one-half times the employee's regular hourly rate of pay for time worked during that 2- week work period that is in excess of 8 hours in any workday. (c) Certain employees with modified workdays. (1) This subsection applies to law enforcement and civilian employees of the Department of State Police who participate in the modified workday program established in accordance with of the Public Safety Article. (2) For an employee subject to this subsection, payment for overtime work shall be made at the greater of (i) one and one-half times the employee's regular hourly rate of pay for time worked in excess of 40 hours in the established work period; or (ii) one and one-half times the employee's regular hourly rate of pay for time worked during that work period that is in excess of the established workday. (d) Alternate work periods for certain employees. A unit may adopt alternate work periods as allowed by the federal Fair Labor Standards Act for the purpose of determining payment for overtime work for its law enforcement employees or fire fighters STATE PERS. & PENS. Right to elect compensatory time; notice, amount of compensatory time. (a) In general. By regulations consistent with the federal Fair Labor Standards Act, the Secretary may provide for employees who otherwise would be entitled to payment for overtime work to

174 Massachusetts elect to receive compensatory time instead. (b) Prior notice required. These regulations shall provide that an employee who elects to receive compensatory time must notify the employee's supervisor of that election before the overtime work is performed. (c) Amount of compensatory time. Compensatory time under this section shall equal: (1) 1 hour for each hour of overtime work for which the employee otherwise would receive the employee's regular hourly rate of pay; and (2) 1.5 hours for each hour of overtime work for which the employee otherwise would receive one and one-half times the employee's regular hourly rate of pay LAB. & EMPL. Mandatory overtime for nurses prohibited; conditions permitting mandatory overtime. (a) "Nurse" defined. In this section, "nurse" means a licensed practical nurse or a registered nurse as defined in of the Health Occupations Article. (b) Overtime prohibited. Except as provided in subsections (c) and (d) of this section, an employer may not require a nurse to work more than the regularly scheduled hours according to the predetermined work schedule. (c) Overtime Prohibited Exceptions. A nurse may be required to work overtime if: (1) the work is a consequence of an emergency situation which could not have been reasonably anticipated; (2) the emergency situation is nonrecurring and is not caused by or aggravated by the employer's inattention or lack of reasonable contingency planning; (3) the employer has exhausted all good faith, reasonable attempts to obtain voluntary workers during the succeeding shifts; (4) the nurse has critical skills and expertise that are required for the work; (5) the standard of care for a patient assignment requires continuity of care through completion of a case, treatment, or procedure; and (6) (i) the employer has informed the nurse of the basis for the employer's direction; and (ii) that basis satisfies the other requirements for mandatory overtime listed under this subsection. (d) Overtime prohibited Additional exceptions. In addition to the provisions of subsection (c) of this section, a nurse may be required to work overtime if: (1) a condition of employment includes on-call rotation; or (2) the nurse works in community-based care. (e) Construction. This section may not be construed to prohibit a nurse from voluntarily agreeing to work more than the number of scheduled hours provided in this section. (f) Responsibility for patient's care. (1) Except as provided in subsections (c) and (d) of this section, a nurse may not be considered responsible for the care of a patient beyond the nurse's predetermined work schedule if the nurse: (i) has notified another appropriate nurse of the patient's status; and (ii) has transferred responsibility for the patient's care to another appropriate nurse or properly designated individual. (2) The employer shall exhaust all good faith, reasonable attempts to ensure that appropriate staff is available to accept responsibility for a patient's care beyond a nurse's predetermined work schedule..l.c. 151, 1A. Overtime pay; excluded employments. Section 1A. Except as otherwise provided in this section, no employer in the commonwealth shall employ any of his employees in an occupation, as defined in section two, for a work week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed. Sums paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production, shall be excluded in computing the regular rate and the overtime rate of compensation under the provisions of this section. In any work week in which an employee of a retail business is employed on a Sunday or certain holidays at a rate of one and one-half times the regular rate of compensation at which he is employed as provided in chapter 136, the hours so worked on Sunday or certain holidays shall be excluded from the calculation of overtime pay as required by this section, unless a collectively bargained labor agreement provides otherwise. Except as otherwise provided in the second sentence, nothing in this section shall be construed to otherwise limit an employee's right to receive one and one-half times the regular rate of compensation for an employee on Sundays or certain holidays or to limit the voluntary nature of work on Sundays or certain holidays, as provided for in said chapter 136. This section shall not be applicable to any employee who is employed: (1) as a janitor or caretaker of residential property, who when furnished with living quarters is paid a wage of not less than thirty dollars per week. (2) as a golf caddy, newsboy or child actor or performer. (3) as a bona fide executive, or administrative or professional person or qualified trainee for such position earning more than eighty dollars per week. (4) as an outside salesman or outside buyer. (5) as a learner, apprentice or handicapped person under a special license as provided in section nine. (6) as a fisherman or as a person employed in the catching or taking of any kind of fish, shellfish or other aquatic forms of animal and vegetable life. (7) as a switchboard operator in a public telephone exchange. (8) as a driver or helper on a truck with respect to whom the Interstate Commerce

175 Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section two hundred and four of the motor carrier act of nineteen hundred and thirty-five, or as employee of an employer subject to the provisions of Part 1 of the Interstate Commerce Act or subject to title II of the Railway Labor Act. (9) in a business or specified operation of a business which is carried on during a period or accumulated periods not in excess of one hundred and twenty days in any year, and determined by the commissioner to be seasonal in nature. (10) as a seaman. (11) by an employer licensed and regulated pursuant to chapter one hundred and fifty-nine A. (12) in a hotel, motel, motor court or like establishment. (13) in a gasoline station. (14) in a restaurant. (15) as a garageman, which term shall not include a parking lot attendant. (16) in a hospital, sanatorium, convalescent or nursing home, infirmary, rest home or charitable home for the aged. (17) in a non-profit school or college. (18) in a summer camp operated by a non-profit charitable corporation. (19) as a laborer engaged in agriculture and farming on a farm. (20) in an amusement park containing a permanent aggregation of amusement devices, games, shows, and other attractions operated during a period or accumulated periods not in excess of one hundred and fifty days in any one year. Sec. R ,Massachusetts Minimum wage; Definitions Bona Fide Educational Institution. An educational institution that has received accreditation from a recognized source. For purposes of 455 CMR 2.00, a newly established institution may be recognized by the Director as a bona fide educational institution provided it has applied for accreditation. Director. The Director of the Department of Labor and Workforce Development Employer. An individual, corporation, partnership or other entity, including any agent thereof, that engages the services of an employee or employees for wages, remuneration or other compensation. Learner or Apprentice. A person enrolled in a vocational or technical course of instruction whether directly leading to a bachelor's degree or not, in a bona fide educational institution. Minor. A person under 18 years of age. Regular Hourly Rate. The amount that an employee is regularly paid for each hour of work. When an employee, other than an employee exempt from overtime under M.G.L. c. 151, 1A, is paid on a piece work basis, salary, or any basis other than an hourly rate, the regularly hourly rate shall be determined by dividing the total hours worked during the week into the employee's total weekly earnings. Regardless of the basis used, whether time rate, commission basis or piece rate, an employee shall be paid not less than the applicable minimum wage each week. The regular hourly rate shall include all remuneration for employment paid to, or on behalf of, the employee, but shall not include: (a) sums paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production; or (b) sums excluded under 29 U.S.C. 207(e). Tipped Employee. An employee who receives gratuities of more than $20 a month. Uniform. All special wearing apparel which is worn by an employee as a condition of employment. It shall be presumed that a uniform worn by an employee of any establishment is worn as a condition of employment if the uniform is of similar design, color, or material, or it forms part of the decorative pattern of the establishment to distinguish a person as an employee of the place of work. Where an employer requires a general type of basic street clothing, permits variation in details of dress, and the employee chooses the specific type and style of clothing, this clothing shall not be considered a uniform. Working Time. Includes all time during which an employee is required to be on the employer's premises or to be on duty, or to be at the prescribed work site, and any time worked before or beyond the end of the normal shift to complete the work. Working time does not include meal times during which an employee is relieved of all work-related duties. M.G.L.c. 151, 7. Investigation and classification of employments; establishment of minimum fair wage rates; exceptions; overtime. Section 7. The commissioner may, and upon the petition of fifty or more citizens of the commonwealth shall, undertake such investigation as may be required to ascertain whether any substantial number of persons in any occupation are receiving oppressive and unreasonable wages, as defined in section one. The commissioner may, subsequent to such investigation, differentiate and classify employments in any occupation according to the nature of the service rendered and recommend appropriate minimum fair wage rates for different classes of employment. The commissioner may establish minimum fair wage rates varying with localities if in its judgment conditions make such local differentiation proper and will not cause unreasonable discrimination against any locality. The commissioner may establish a suitable scale of rates for learners and apprentices in any occupation or occupations, which scale of learners' and apprentices' rates may be less than the regular

176 minimum fair wage rates established for experienced persons in such occupation or occupations, provided that in a retail, merchandising or laundry establishment such scale of learners' and apprentices, rates shall apply only to the first eighty hours during which such learner or apprentice is employed. The commissioner shall not establish minimum fair wage rates below $1.85 per hour, except for learners and apprentices, and except for ushers, ticket sellers and ticket takers whose minimum fair wage rates shall not be below $1.25, and except for janitors and caretakers of residential property, who, when furnished with living quarters, shall be paid a wage of not less than $36 per week, and except for services as golf caddies, and except for service people who customarily and regularly receive more than $20 a month in tips. In determining the wage an employer is required to pay a tipped employee, the amount paid to such employee by the employer shall be an amount equal to: (1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on July 1, 1999; and (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in clause (1) and the wage in effect under section 1. The additional amount on account of tips may not exceed the value of the tips actually received by an employee. This paragraph shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this paragraph, and all tips received by such employee have been retained by the employee, except that this paragraph shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. The commissioner may establish overtime rates for all hours worked in excess of forty hours in any week. 455 CMR 2.02: Basic Minimum Wage and Overtime Rates (1) Basic Minimum Ware. The minimum wage rate in effect under M.G.L.c. 151, 1 to be paid to an employee in an occupation as defined in M.G.L.c. 151, 2. Page 6 4/25/03 (2) Service Rate. The minimum wage rate for a tipped employee may be comprised of both: (a) the service rate paid by the employer; and (b) tips actually received and retained by the employee. The sum of the service rate and the tips received by the employee must equal or exceed the basic minimum wage. The service rate shall be not less than $2.63 per hour. An employer may pay the service rate to the employee only if: 1. the employer has informed such employee of the provisions of the third paragraph of M.G.L.c. 151, 7; 2. the employee actually received tips in an amount which, when added to the service rate, equals or exceeds the basic minimum wage; and 3. all tips received by the employee were either retained by him or her or were distributed to him or her through a tip-pooling arrangement. If the employee is engaged in the serving of food or beverages, such a tip-pooling arrangement must conform with the requirements of M.G.L.c. 149, 152A. Unless all three of the foregoing requirements are met, the employer must pay a tipped employee the full basic minimum wage rate. The minimum wage for an employee receiving $20 or less per month in tips shall be the basic minimum wage. (3) Overtime Rate. One and one half times an employee's regular hourly rate, such regular hourly rate not to be less than the basic minimum wage, for work in excess of 40 hours in a work week, except as set forth in M.G.L.c. 151, 1A. The terms "bona fide executive, or administrative or professional person" in M.G.L.c. 151, 1A (3), shall have the same meaning as set forth in Part 541 of Title 29 of the U.S. Code of Federal Regulations. The overtime rate for a tipped employee receiving the service rate shall be computed at one and one half times the basic minimum wage, except where exempted by M.G.L.c. 151, 1A. 455 CMR 2.04: Wage Payments and Deductions from Wages (1) Deductions from Basic Minimum Wage. No deduction, other than those required by law and those allowed for lodging and meals listed in 455 CMR 2.04 (1)(a) and (b), shall be made from the basic minimum wage. (a) Deductions for Lodging. An employer, including an employer of seasonal and temporary help, may deduct from the basic minimum wage of an employee a sum per week as set forth in 455 CMR 2.04 (1)(a) 1. through 3. when adequate, decent and sanitary lodging, including heat, potable water, and light are furnished. A deduction for lodging is not permitted unless the room is actually used by the employee and unless said employee desires said room. Deductions shall not exceed the following rates. 1. A sum not exceeding $35.00 per week for a room occupied by one person. 2. A sum not exceeding $30.00 per week for a room occupied by two persons. 3. A sum not exceeding $25.00 per week for a room occupied by three or more persons. (b) Deductions for Meals. No employer shall deduct from the basic minimum wage of an employee a sum in excess of the amounts per day hereafter set forth for meals actually furnished to

177 the employee. The maximum deduction for meals per day shall be as follows: Breakfast, $1.50, Lunch, $2.25; Dinner, $2.25. No deduction for meals may exceed the actual cost to the employer. 1. No such deduction for meals shall be made without the written consent of the employee. 2. A deduction for one meal may be made from the basic minimum wage of an employee working three hours or more. 3. A deduction for two meals may be made from the basic minimum wage of an employee whose work entirely covers two meal periods, or eight hours of work. 4. A deduction for three meals may be made from the basic minimum wage of an employee if lodging is provided, or if special permission is granted by the Director. (2) Deductions for Uniforms. For employers requiring uniforms, the following shall apply: (a) Where uniforms require dry-cleaning, commercial laundering, or other special treatment, the employee shall be reimbursed for the actual costs of such service to the extent that these costs reduce the employee's hourly rate below the basic minimum wage. Where uniforms are made of "wash and wear" materials, that do not require special treatment, and that are routinely washed and dried with other personal garments, the employer need not reimburse the employee for uniform maintenance costs. (b) No deposit shall be required by the employer from an employee for a uniform or for any other purpose, except by permission of the Director. (3) Deductions and the Calculation of Overtime. Where deductions are made from an employee's wages for meals, lodging, or uniforms, the employee's regular hourly rate used to calculate overtime compensation shall be the employee's hourly rate before any deductions are made. (4) Student Housing/Childcare Exchanges. Notwithstanding any provision of 455 CMR 2.00 to the contrary, an employer may provide lodging and meals in the employer's home to an employee who is a full-time student at a bona fide educational institution of higher learning in exchange for household services, provided that such household services do not exceed 18 hours of working time per week in exchange for occupancy of a single room. M.G.L.c. 149, 30B. Overtime of state employees; regulations. Section 30B. All service in excess of eight hours in any one tour of duty or forty hours in any one work week rendered by any employee of the commonwealth at the request of an officer of the commonwealth or other person whose duty it is to employ, direct or control such employee, except the state police uniformed force and detectives, fire prevention engineer, boatswain coastal patrol boat, captain coastal patrol boat, coastal warden coastal patrol boat, coastal warden engineer coastal patrol boat, industrial relations adjuster, Labor relations examiners, teachers, armorers, elected officers, appointees of the governor, heads of departments and divisions and their deputies and assistants, confidential secretaries, incumbents of the positions of superintendents, assistant superintendents, deputy superintendents, stewards, physicians, dentists, head farmers, business manager, institutions chief power plant engineers at mental health, mental retardation, public health, correctional institutions, soldiers' homes in Massachusetts and agencies under the jurisdiction of the department of youth services, the manager of the boarding hall at the University of Massachusetts, the adjutants of the soldiers' homes in Massachusetts, and any employees while on full travel status, shall be compensated for at the rate of one and one half times the regular hourly rate of said employee for every hour or fraction thereof of such services rendered. The personnel administrator is empowered to make rules and regulations, subject to the approval of the commissioner of administration, to carry out the provisions of this section. M.G.L.c. 149, 30C. Work week of uniformed members of the state police; overtime service; compensation; rules and regulations. Section 30C. The service of all members of the uniformed members of the state police and land based environmental police officers of the division of law enforcement shall consist of an average of forty hours per week over a period of one or more work weeks not in excess of eight, as determined by the commissioner of the department in which they are respectively serving, and shall be restricted to not more than five normal work days, as so determined, in any consecutive seven-day period; provided, however, that all services in excess of the normal work day, as so determined, or in excess of forty hours per week, as so averaged, rendered by any such officer at the request of the commissioner of the department in which he is serving, shall be compensated for at the rate of one and one half times the regular hourly rate of such officer for every hour or fraction thereof of such services rendered. The personnel administrator is empowered to make rules and regulations, subject to the approval of the commissioner of administration, to carry out the provisions of this section. M.G.L.c. 149, 33C. City and town employees; overtime; effective date. Section 33C.

178 Notwithstanding any other provision of general or special law, any permanent employee of a city or town who is required to work in excess of his regular number of maximum hours per week as regulated by law, ordinance or by-law or rule shall be compensated for such additional hours of service at a rate of one and one half times his regular hourly compensation. The provisions of sections thirty-three A and thirty-three B shall not apply in any city or town which accepts this section. This section shall take effect upon its acceptance in a city having a Plan E charter, by the affirmative vote of two thirds of all the members of the city council, and, in any other city by vote of the city council, subject to the provisions of its charter, and in a town by majority vote at the annual town meeting. M.G.L.c. 136, 6. Limitation of operation of sec. 5. Section 6. Section five shall not prohibit the following: (1) Any manner of labor, business or work not performed for material compensation; provided, no public nuisance is created thereby. (2) The opening of a store or shop and the sale at retail of foodstuffs therein; provided, not more than a total of three persons, including the proprietor, are employed therein at any one time on Sunday and throughout the week. (3) The use or repair of any way or bridge, or the payment and collection of any toll incidental thereto. (4) The conduct of any public service the continuing operation of which is necessary for the maintenance of life, such as, but not limited to, the operation of municipal water and sewage disposal systems, the operation of hospitals and clinics, or the necessary services of physicians, surgeons, dentists and the like. (5) The making of emergency repairs for the purposes of immediate and necessary protection of persons, or property including realty, or the towing of any motor vehicle or boat for such purpose. (6) The manufacture, sale or distribution of steam, electricity, fuel, gas, oxygen, hydrogen, nitrogen, acetylene, carbon dioxide and the calcining of lime, manufacturing processes which for technical reasons require continuous operation, and the processing of checks, items, documents or data by a bank or trust company. (7) The operation of radio and television stations; the operation of telephone and telegraph systems; or the preparation, printing, publication, sale and delivery of newspapers, or the taking of pictures. (8) The opening and operation of any secular place of business not otherwise prohibited by law if the natural person in control of the business conscientiously believes that the seventh day of the week, or the period which begins at sundown on Friday night and ends at sundown on Saturday night, should be observed as the Sabbath, and causes all places of business in the commonwealth over which he has control to remain closed for secular business during the entire period of twenty-four consecutive hours which he believes should be observed as the Sabbath, and actually refrains from engaging in secular business and from laboring during that period. (9) The showing, sale, or rental of noncommercial real property to be used for residential purposes. (10) The opening of art galleries or the display and sale therein of paintings, objects of art, catalogues and pictures. (11) The operation of libraries. (12) The operation of public bathhouses. (13) The operation of boats for purposes of non-commercial fishing and recreation, or the sale of bait for fishing. (14) The catching or gathering of seafood and fresh water fish not otherwise prohibited by law. (15) The letting of horses, vehicles, boats or aircraft for pleasure. (16) The sale and rental of sporting equipment and clothing on premises where the sport for which the equipment or clothing to be sold or rented is carried on. (17) The retail sale of fuel, gasoline and lubricating oil and the operation of an automotive service facility. (18) The retail sale of tires, batteries and automotive parts for emergency use. (19) The operation of a pleasure vehicle or the piloting of an aircraft. (20) The sale at retail of growing plants, trees or bushes, and articles incidental to the cultivation of such plants, trees or bushes; and the retail sale and delivery of cut flowers. (21) The cultivation of land, and the raising and harvesting of agricultural products and fruit, and the making of butter and cheese. (22) The sale, for consumption off the premises, of food prepared by a common victualler licensed under other provisions of law to serve on Sunday. (23) The selling of kosher wine or the selling or delivery of kosher meat or fish by any natural person who observes Saturday as the Sabbath by closing his place of business from sundown Friday to sundown Saturday. (24) The making and baking of bakery products and the sale thereof in a shop or store. (25) The retail sale of tobacco products, soft drinks, confectioneries, baby foods, fresh fruit and fresh vegetables, dairy products and eggs, and the retail sale of poultry by the person who raises the same. (26) The sale and delivery of ice. (27) The retail sale of drugs and medicines and the retail sale or rental of mechanical appliances prescribed by physicians or surgeons, and the retail sale of personal health and sanitary supplies. (28) The retail sale of greeting cards and photographic films and the processing of photographic films. (29) The sale, at retail, of gifts, souvenirs, antiques, secondhand furniture, handcrafted goods and art goods, in an establishment primarily engaged in the sale of such merchandise, or on the premises of a licensed common victualler.

179 (30) The opening of a store or shop primarily engaged in the retail sale of pets, and the sale therein of pets and articles necessary for the keeping, care and feeding of pets. (31) The transport of goods in commerce, or for consideration, by motor truck or trailer; or the loading or unloading of the same. (32) The transport of goods by rail, water or air; or the loading or unloading of the same. (33) The transport of persons by licensed carriers and all matters incidental thereto, including the operation of all facilities incidental thereto. (34) The transport or processing of fresh meat, fresh poultry, fresh fish, fresh seafoods, fresh dairy products, fresh bakery products, fresh fruits or fresh vegetables, or ice, bees, or Irish moss, when circumstances require that such work be done on Sunday; or all return trips necessitated thereby. (35) The transport of livestock, farm commodities and farming equipment for participation in and return from fairs, expositions or sporting events. (36) The operation of a lodging place, including the letting of rooms and all services necessary and incidental to the letting of rooms. (37) The carrying on of the business of bootblack before eleven o'clock in the morning provided that such business may be carried on at any time at public airports. (38) The employment for a consideration of musicians in parades by any post or camp of an incorporated organization of veterans of any war in which the United States of America was engaged, or by any incorporated civic, religious or fraternal organization, or by any company or association of policemen or firemen. (39) The necessary preparation for, and the conduct of, events licensed under section four, or activities as to which, under the provisions of paragraph (7) of section four, sections two, three and four do not apply. (40) Any labor, business or work necessary to the performance of or incidental to any religious exercises, including funerals and burials, the execution of wills or codicils, the preparation of contracts, the execution of federal, state or municipal tax returns or reports, the preparations for trials by lawyers or any other activity not prohibited nor required to be licensed on Sunday. (41) Work lawfully done by persons working under permits granted under section seven. (42) The conduct of the business of an inn holder or common victualler. (43) The conduct of any business licensed under chapter one hundred and thirty-eight which may be conducted on Sunday in accordance with the provisions of said chapter. (44) The operation of a car-washing business between eight o'clock in the forenoon and one o'clock in the afternoon, provided that such business may be carried on at any time if not more than a total of two persons are employed therein at any one time on Sunday and throughout the week. (45) The operation of a coin-operated selfservice laundry. (46) The operation of a coin-operated car-washing business. (47) The sale of tickets or shares for the state lottery. (48) The operation of a self-service auto repair center. (49) The transport of amusement devices, such as carousels, ferris wheels, inclined railways and other similar devices, concessions stands and tents from one location to the next between eight o'clock in the forenoon and one o'clock in the afternoon. (50) The keeping open of a store or shop and the sale at retail of goods therein, but not including the retail sale of goods subject to chapter 138, and the performance of labor, business, and work directly connected therewith on Sunday. This exemption shall not apply to any legal holiday as defined in clause eighteenth of section 7 of chapter 4, but this exemption shall apply to the day following Christmas Day when Christmas occurs on a Sunday. In any year in which Christmas Day occurs on a Sunday, this exemption shall not apply to that Sunday. Any store or shop which qualifies for exemption under this clause or under clause (25) or clause (27) and which employs more than a total of seven persons, including the proprietor, on Sunday or any day throughout the week, shall compensate all employees engaged in the work performed on Sunday pursuant to the provisions of this clause, or clause (25) or clause (27), excepting those bona fide executive or administrative or professional persons earning more than two hundred dollars a week, at a rate not less than one and one-half times the employee's regular rate. No employee engaged in work subject to the provisions of this clause shall be required to perform such work, and refusal to work for any retail establishment on Sunday shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty. The provisions of this paragraph shall be enforced by the office of the attorney general. The provisions of section one hundred and eighty A of chapter one hundred and forty-nine shall apply to any violation of this paragraph. (51) The operation of a home video movie rental business. (52) The retail sale of alcoholic beverages not to be drunk on the premises on Sundays by retail establishments licensed under section 15 of chapter 138; provided, however, that notwithstanding this chapter, a municipality may prohibit the retail sale of alcoholic beverages on Sundays by licensees under section 15 by vote of the city council or board of selectmen; provided further, that there shall be no such sales prior to the hour of 12:00 noon or on Christmas Day if Christmas occurs on a Sunday; and provided further, that establishments operating under this clause which employ more than 7 persons shall compensate all employees for work performed on a Sunday at a rate of not less than one and one-half of the employee's

180 Michigan regular rate. No employee shall be required to work on a Sunday and refusal to work on a Sunday shall not be grounds for discrimination, dismissal, discharge, deduction of hours or any other penalty. (53) The operation of commercial auto schools, otherwise known as driver education. (54) The cutting and styling of hair, manicuring, and the furnishing of related cosmetological and beauty services. (55) The conduct of banking operations by a bank as defined in section one of chapter one hundred and sixtyseven. M.G.L.c. 136, 13. Application of secs. 5 11; exceptions. Section 13. The provisions of sections five to eleven, inclusive, shall, except as provided in section fourteen, apply to all legal holidays, except January first, the third Monday in January, the third Monday in February, March seventeenth, the third Monday in April, May twentieth, June seventeenth, and November eleventh after one o'clock post meridian, or on the day following when any of said days occur on Sunday. Any retail establishment which operates on January first, or November eleventh, the second Monday in October, under the exemption granted by this section, shall pay to those employees working on any of said days, time and one-half, or such larger sum as may be determined by contract; such work shall be voluntary and refusal to work for any retail establishment on such legal holidays shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty. The provisions of this, paragraph shall be enforced by the attorney general. The provisions of section one hundred and eighty A of chapter one hundred and forty-nine shall apply to any violation of this paragraph. 226.Mandatory overtime, Nurses; Hospitals; Requiring nurses to work beyond the regularly scheduled shift prohibited; Exception for emergencies; Voluntary overtime; Maximum hours, Off-duty periods; Guidelines; Impact on collective bargaining agreements. For purposes of this section, mandatory overtime shall mean any hours worked by a nurse in a hospital setting to deliver patient care, beyond the predetermined and regularly scheduled number of hours that the hospital and nurse have agreed that the employee shall work, provided that in no case shall such predetermined and regularly scheduled number of hours exceed 12 hours in any 24 hour period. (b) Notwithstanding any general or special law to the contrary, a hospital shall not require a nurse to work mandatory overtime except in the case of an emergency situation where the safety of the patient requires its use and when there is no reasonable alternative. (c) Under subsection (b), whenever there is an emergency situation where the safety of a patient requires its use and when there is no reasonable alternative, the facility shall, before requiring mandatory overtime, make a good faith effort to have overtime covered on a voluntary basis. Mandatory overtime shall not be used as a practice for providing appropriate staffing for the level of patient care required. (d) Under subsection (c), the health policy commission established under section 2 of chapter 6D, shall develop guidelines and procedures to determine what constitutes an emergency situation for the purposes of allowing mandatory overtime. In developing those guidelines, the commission shall consult with those employees and employers who would be affected by such a policy. The Commission shall solicit comment from those same parties through a public hearing. (e) Hospitals shall report all instances of mandatory overtime and the circumstances requiring its use to the department of public health. Such reports shall be public documents. (f) A nurse shall not be allowed to exceed 16 consecutive hours worked in a 24 hour period. In the event a nurse works 16 consecutive hours, that nurse must be given at least 8 consecutive hours of off-duty time immediately after the worked overtime. (g) This section is intended as a remedial measure to protect the public health and the quality and safety of patient care and shall not be construed to diminish or waive any rights of the nurse under other laws, regulations or collective bargaining agreements. The refusal of a nurse to accept work in excess of the limitations set forth in this section shall not be grounds for discrimination, dismissal, discharge or any other employment decision. (h) Nothing in this section shall be construed to limit, alter or modify the terms, conditions or provisions of a collective bargaining agreement entered into by a hospital and a labor organization a Compensation for overtime; exceptions; rules; unpaid minimum wages; appropriation; compensatory time in lieu of monetary overtime compensation. Sec. 4a. (1) Except as otherwise provided in this section, an employee shall receive compensation at not less than 1-1/2 times the regular rate at which the employee is employed for employment in a workweek in excess of 40 hours. (2) The state or a political subdivision, agency, or instrumentality of the state does not violate subsection (1) with respect to the employment of an employee in fire protection activities or an employee in law enforcement activities, including security personnel in correctional institutions, if any of the following applies: (a) In a work period of 28 consecutive days, the employee receives for tours of duty, which in

181 the aggregate exceed 216 hours, compensation for those hours in excess of 216 at a rate not less than 1-1/2 times the regular rate at which the employee is employed. The employee's regular rate shall be not less than the statutory minimum hourly rate. (b) For an employee to whom a work period of at least 7 but less than 28 days applies, in the employee's work period the employee receives for tours of duty, which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in the employee's work period as 216 bears to 28 days, compensation for those excess hours at a rate not less than 1-1/2 times the regular rate at which the employee is employed. The employee's regular rate shall be not less than the statutory minimum hourly rate. (c) If an employee engaged in fire protection activities would receive overtime payments under this act solely as a result of that employee's trading of time with another employee pursuant to a voluntary trading time arrangement, overtime, if any, shall be paid to employees who participate in the trading of time as if the time trade had not occurred. As used in this subdivision, "trading time arrangement" means a practice under which employees of a fire department voluntarily substitute for one another to allow an employee to attend to personal matters, which practice is neither for the convenience of the employer nor because of the employer's operations. (3) The state or a political subdivision, agency, or instrumentality of the state engaged in the operation of a hospital or an establishment that is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises does not violate subsection (1) if both of the following conditions are met: (a) Pursuant to a written agreement or written employment policy arrived at between the employer and the employee before performance of the work, a work period of 14 consecutive days is accepted instead of the workweek of 7 consecutive days for purposes of overtime computation. (b) For the employee's employment in excess of 8 hours in a workday and in excess of 80 hours in the 14-day period, the employee receives compensation at a rate of 1-1/2 times the regular rate, which rate shall be not less than the statutory minimum hourly rate at which the employee is employed. (4) Subsections (1), (2), and (3) do not apply to any of the following: (a) An employee employed in a bona fide executive, administrative, or professional capacity, including an employee employed in the capacity of academic administrative personnel or teacher in an elementary or secondary school. However, an employee of a retail or service establishment is not excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in the employee's workweek which the employee devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40% of the employee's hours in the workweek are devoted to those activities. (b) An individual who holds a public elective office. (c) A political appointee of a person holding public elective office or a political appointee of a public body, if the political appointee described in this subdivision is not covered by a civil service system. (d) An employee employed by an establishment which is an amusement or recreational establishment, if the establishment does not operate for more than 7 months in a calendar year. (e) An employee employed in agriculture, including farming in all its branches, which among other things includes: the cultivation and tillage of the soil; dairying; the production, cultivation, growing, and harvesting of agricultural or horticultural commodities; the raising of livestock, bees, furbearing animals, or poultry; and a practice, including forestry or lumbering operations, performed by a farmer or on a farm as an incident to or in conjunction with farming operations, including preparation for market, delivery to storage, or delivery to market or to a carrier for transportation to market or the processing or preserving of perishable farm products. (f) An employee who is not subject to the minimum hourly wage provisions of this act. (5) The director of the department of consumer and industry services shall promulgate rules pursuant to the administrative procedures act of 1969, 1969 PA 306, M.C.L to , to define the terms used in subsection (4). (6) For purposes of administration and enforcement, an amount owing to an employee that is withheld in violation of this section is unpaid minimum wages under this act. (7) The legislature shall annually appropriate from the general fund to each political subdivision affected by subsection (2) an amount equal to the difference in direct labor costs before and after January 4, 1979 which arises from any change in existing law resulting from the enactment of subsection (2) and incurred by each such political subdivision. (8) In lieu of monetary overtime compensation, an employee subject to this act may receive compensatory time off at a rate of not less than 1-1/2 hours for each hour of employment for which overtime compensation is required under this act, subject to all of the following: (a) The employer allows employees a total of at least 10 days of leave per year without loss of pay and provides the compensatory time to the employee only pursuant to either of the following: (i) Applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other written agreement

182 between the employer and representative of the employee. (ii) If employees are not represented by a collective bargaining agent or other representative designated by the employee, a plan adopted by the employer and provided in writing to its employees that provides employees with a voluntary option to receive compensatory time off for overtime work when there is an express, voluntary written request to the employer by an individual employee for compensatory time off in lieu of overtime pay before the performance of any overtime assignment. (b) The employee has not earned compensatory time in excess of the applicable limit prescribed by subdivision (d). (c) The employee is not required as a condition of employment to accept or request compensatory time. An employer shall not directly or indirectly intimidate, threaten, or coerce or attempt to intimidate, threaten, or coerce an employee for the purpose of interfering with the employee's rights under this section to request or not request compensatory time off in lieu of payment of overtime compensation for overtime hours, or requiring an employee to use compensatory time. In assigning overtime hours, an employer shall not discriminate among employees based upon an employee's choice to request or not request compensatory time off in lieu of overtime compensation. An employer who violates this subsection is subject to a civil fine of not more than $1, (d) An employee may not accrue more than a total of 240 hours of compensatory time. An employer shall do both of the following: (i) Maintain in an employee's pay record a statement of compensatory time earned by that employee in the pay period that the pay record identifies. (ii) Provide an employee with a record of compensatory time earned by or paid to the employee in a statement of earnings for the period in which the compensatory time is earned or paid. (e) Upon the request of an employee who has earned compensatory time, the employer shall, within 30 days following the request, provide monetary compensation for that compensatory time at a rate not less than the regular rate earned by the employee at the time the employee performed the overtime work. (f) An employee who has earned compensatory time authorized under this subsection shall, upon the voluntary or involuntary termination of employment or upon expiration of this subsection, be paid unused compensatory time at a rate of compensation not less than the regular rate earned by the employee at the time the employee performed the overtime work. A terminated employee's receipt of or eligibility to receive monetary compensation for earned compensatory time shall not be used by either of the following: (i) The employer to oppose an employee's application for unemployment compensation under the Michigan employment security act, 1936 (Ex Sess) PA 1, M.C.L to (ii) The state to deny unemployment compensation or diminish an employee's entitlement to unemployment compensation benefits under the Michigan employment security act, 1936 (Ex Sess) PA 1, M.C.L to (g) An employee shall be permitted to use any compensatory time accrued under this subsection for any reason unless use of the compensatory time for the period requested will unduly disrupt the operations of the employer. (h) Unless prohibited by a collective bargaining agreement, an employer may terminate a compensatory time plan upon not less than 60 days' notice to employees. (i) As used in this subsection: (i) "Overtime compensation" means the compensation required under section 4a. (ii) "Compensatory time" and "compensatory time off" mean hours during which an employee is not working and for which the employee is compensated in accordance with this subsection in lieu of monetary overtime compensation. (iii) "Overtime assignment" means an assignment of hours for which overtime compensation is required under this act Applicability of act; scope. Sec. 14. (1) This act does not apply to an employer who is subject to the minimum wage provisions of the fair labor standards act of 1938, 29 USC 201 to 219, unless those federal minimum wage provisions would result in a lower minimum hourly wage than provided in this act. Each of the following applies to an employer who is subject to this act only by application of this subsection: (a) Section 4a does not apply. (b) This act does not apply to an employee who is exempt from the minimum wage requirements of the fair labor standards act of 1938, 29 USC 201 to 219. (2) Notwithstanding subsection (1), an employee shall be paid in accordance with the minimum wage and overtime compensation requirements of sections 4 and 4a if the employee meets either of the following conditions: (a) Is employed in domestic service employment to provide companionship services as defined in 29 CFR for individuals who, because of age or infirmity, are unable to care for themselves and is not a live-in domestic service employee as described in 29 CFR (b) Is employed to provide child care, but is not a live-in domestic service employee as described in 29 CFR However, the requirements of sections 4 and 4a do not apply if the employee meets all of the following conditions: (i) Is under the age of 18. (ii) Provides services on a casual basis as described in 29 CFR (iii) Provides services that do not regularly exceed 20 hours per week, in the aggregate.

183 (3) This act does not apply to persons employed in summer camps for not more than 4 months or to employees who are covered under section 14 of the fair labor standards act of 1938, 29 USC 214. (4) This act does not apply to agricultural fruit growers, pickle growers and tomato growers, or other agricultural employers who traditionally contract for harvesting on a piecework basis, as to those employees used for harvesting, until the board has acquired sufficient data to determine an adequate basis to establish a scale of piecework and determines a scale equivalent to the prevailing minimum wage for that employment. The piece rate scale shall be equivalent to the minimum hourly wage in that, if the payment by unit of production is applied to a worker of average ability and diligence in harvesting a particular commodity, he or she receives an amount not less than the hourly minimum wage. (5) Notwithstanding any other provision of this act, subsection (1)(a) and (b) and subsection (2) do not deprive an employee or any class of employees of any right that existed on September 30, 2006 to receive overtime compensation or to be paid the minimum wage. Minnesota Sec. R Determination of workweek, overtime. Rule 21. (1) An employer shall establish an employee's workweek and shall indicate the beginning time and day of the workweek in the employment record for the employee. (2) Once the beginning time of an employee's workweek is established, it remains fixed and may be changed only if the change is intended to be permanent and is not designed to evade the overtime requirements of the act. (3) Each workweek stands alone. Averaging of hours over 2 or more weeks is prohibited, regardless of whether the employee works on a standard or swing shift schedule and regardless of whether the employee is paid on an hourly, daily, weekly, biweekly, monthly, piecework, commission or other basis, except as otherwise provided by law. Sec. R Employee work periods. Rule 22. (1) An employer shall establish an employee's work period and shall indicate the beginning and ending time and date of the work period in the employment record for the employee. (2) The work period need not coincide with the pay period. (3) The beginning and ending date of a work period shall not be changed, regardless of the number of hours worked within the period, unless the change is intended to be permanent and is not designed to evade the overtime requirements of the act. (4) An employer may have different work periods for different employees. Sec. R Overtime; Employees paid by commission or piece-rate basis; Determination of regular rate of pay. Rule 23. (1) If an employee is paid on an hourly rate plus commission or salary plus commission, then the salary and commission shall be considered as gross earnings for the workweek, and the regular rate is obtained by dividing the sum by the number of hours for which the salary was paid. (2) If an employee is paid on a piece-rate basis, then the regular rate of pay is computed by adding together the total earnings of the workweek from piece rates and all other earnings and any sums paid for other hours worked. This sum total is divided by the number of hours worked in that week to yield the pieceworker's regular rate for that week Overtime. Subdivision 1. Compensation required. No employer may employ an employee for a workweek longer than 48 hours, unless the employee receives compensation for employment in excess of 48 hours in a workweek at a rate of at least 1-1/2 times the regular rate at which the employee is employed. The state of Minnesota or a political subdivision may grant time off at the rate of 1-1/2 hours for each hour worked in excess of 48 hours in a week in lieu of monetary compensation. An employer does not violate the overtime pay provisions of this section by employing any employees for a workweek in excess of 48 hours without paying the compensation for overtime employment prescribed (1) if the employee is employed under an agreement meeting the requirement of section 7(b)(2) of the Fair Labor Standards Act of 1938, as amended, or (2) if the employee is employed as a sugar beet hand laborer on a piece rate basis, provided that the regular rate of pay received per hour of work exceeds the applicable wage provided in section , subdivision 1 by at least 40 cents. Subd. 2. Health care exception. An employer who operates a health care facility does not violate subdivision 1 if the employer and employee agree before performance of the work to accept a work period of 14 consecutive days in lieu of the workweek of seven consecutive days for the purpose of overtime compensation and if for the employment in excess of eight hours in any work day and in excess of 80 hours in the 14-day period the employee receives compensation at a rate not less than 1-1/2 times the regular rate at which the employee is employed. Subd. 3. Motor vehicle salespeople; mechanics. Subdivision 1 does not apply to any salesperson, parts person, or mechanic primarily engaged in selling

184 or servicing automobiles, trailers, trucks, or farm implements and paid on a commission or incentive basis, if employed by a nonmanufacturing establishment primarily engaged in selling the vehicles to ultimate purchasers. Subd. 4. Constructors of on-farm silos. Subdivision 1 does not apply if the employee is employed in the construction of on-farm silos or the installation of appurtenant equipment on a unit or piece rate basis, if the regular rate of pay received per hour of work exceeds the applicable wage provided in section , subdivision OVERTIME PAY. Overtime pay shall be paid no later than the payday immediately following the regular payday for the pay period in which it was earned Right of Collective Bargaining. Nothing in sections to limits the right of employees to bargain collectively with their employers through representatives of their own choosing to establish wages or other conditions of work more favorable to the employees than those required by sections to Missouri Regulating Nurses' Overtime. Subdivision 1. Definitions. For purposes of this section, the following terms have the meanings given them: (1) "emergency" means a period when replacement staff are not able to report for duty for the next shift or increased patient need, because of unusual, unpredictable, or unforeseen circumstances such as, but not limited to, an act of terrorism, a disease outbreak, adverse weather conditions, or natural disasters which impact continuity of patient care; (2) "normal work period" means 12 or fewer consecutive hours consistent with a predetermined work shift; (3) "nurse" has the meaning given in section , subdivision 9, and includes nurses employed by the state of Minnesota; and (4) "taking action against" means discharging; disciplining; threatening; reporting to the Board of Nursing; discriminating against; or penalizing regarding compensation, terms, conditions, location, or privileges of employment. Subd. 2. Prohibited actions. Except as provided in subdivision 3, a hospital or other entity licensed under sections to , and its agent, or other health care facility licensed by the commissioner of health, and the facility's agent, is prohibited from taking action against a nurse solely on the grounds that the nurse fails to accept an assignment of additional consecutive hours at the facility in excess of a normal work period, if the nurse declines to work additional hours because doing so may, in the nurse's judgment, jeopardize patient safety. This subdivision does not apply to a nursing facility, an intermediate care facility for persons with developmental disabilities, a licensed boarding care facility, or a housing with services establishment. Subd. 2a. State nurses. Subdivision 2 applies to a nurse employed by the state of Minnesota regardless of the type of facility in which the nurse is employed and regardless of the facility's license, if the nurse is involved in resident or patient care. Subd. 2b. MS 2007 Supp Expired Subd. 2c. Collective bargaining rights. This section does not diminish or impair the rights of a person under any collective bargaining agreement. Subd. 3. Emergency. Notwithstanding subdivision 2, a nurse may be scheduled for duty or required to continue on duty for more than one normal work period in an emergency. Subd. 4. Exception. Section does not apply to violations of this section Overtime compensation, applicable number of hours, exceptions. 1. No employer shall employ any of his employees for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 2. Employees of an amusement or recreation business that meets the criteria set out in 29 U.S.C. 213(a)(3) must be paid one and one-half times their regular compensation for any hours worked in excess of fifty-two hours in any one-week period. 3. With the exception of employees described in subsection (2), the overtime requirements of subsection (1) shall not apply to employees who are exempt from federal minimum wage or overtime requirements including, but not limited to, the exemptions or hour calculation formulas specified in 29 U.S.C. Sections 207 and 213, and any regulations promulgated thereunder. 4. Except as may be otherwise provided under sections to , this section shall be interpreted in accordance with the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq., as amended, and the Portal to Portal Act, 29 U.S.C. Section 251, et seq., as amended, and any regulations promulgated thereunder. (L H.B , A.L Adopted by Initiative, Proposition B, November 7, 2006, A.L H.B merged with H.B. 2041)

185 Law not to interfere with collective bargaining rights. Nothing in sections to shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum under the provisions of sections to Montana Overtime hours, state employee may choose compensatory leave time, when payment for overtime, when reports on overtime paid overtime earned under Fair Labor Standards Act, applicability. 1. Any state employee who has accrued any overtime hours may choose to use those hours as compensatory leave time provided that the leave time is available and agreed upon by both the state employee and his or her supervisor. 2. A state employee who is a nonexempt employee pursuant to the provisions of the Fair Labor Standards Act shall be eligible for payment of overtime in accordance with subsection 4 of this section. A nonexempt state employee who works on a designated state holiday shall be granted equal compensatory time off duty or shall receive, at his or her choice, the employee's straight time hourly rate in cash payment. A nonexempt state employee shall be paid in cash for overtime unless the employee requests compensatory time off at the applicable overtime rate. As used in this section, the term "state employee" means any person who is employed by the state and earns a salary or wage in a position normally requiring the actual performance by him or her of duties on behalf of the state, but shall not include any employee who is exempt under the provisions of the Fair Labor Standards Act or any employee of the general assembly. 3. Beginning on January 1, 2006, and annually thereafter each department shall pay all nonexempt state employees in full for any overtime hours accrued during the previous calendar year which have not already been paid or used in the form of compensatory leave time. All nonexempt state employees shall have the option of retaining up to a total of eighty compensatory time hours. 4. The provisions of subsection 2 of this section shall only apply to nonexempt state employees who are otherwise eligible for compensatory time under the Fair Labor Standards Act, excluding employees of the general assembly. Any nonexempt state employee requesting cash payment for overtime worked shall notify such employee's department in writing of such decision and state the number of hours, no less than twenty, for which payment is desired. The department shall pay the employee within the calendar month following the month in which a valid request is made. Nothing in this section shall be construed as creating a new compensatory benefit for state employees. 5[fn*]. Each department shall, by November first of each year, notify the commissioner of administration, the house budget committee chair, and the senate appropriations committee chair of the amount of overtime paid in the previous fiscal year and an estimate of overtime to be paid in the current fiscal year. The fiscal year estimate for overtime pay to be paid by each department shall be designated as a separate line item in the appropriations bill for that department. The provisions of this subsection shall become effective July 1, Each state department shall report quarterly to the house of representatives budget committee chair, the senate appropriations committee chair, and the commissioner of administration the cumulative number of accrued overtime hours for department employees, the dollar equivalent of such overtime hours, the number of authorized full-time equivalent positions and vacant positions, the amount of funds for any vacant positions which will be used to pay overtime compensation for employees with full-time equivalent positions, and the current balance in the department's personal service fund. 7. This section is applicable to overtime earned under the Fair Labor Standards Act. This section is applicable to employees who are employed in nonexempt positions providing direct client care or custody in facilities operating on a twenty-four-hour seven-day-a-week basis in the department of corrections, the department of mental health, the division of youth services of the department of social services, and the veterans commission of the department of public safety. [fn*] Subsection 5 becomes effective Overtime compensation. (1) An employer may not employ any employee for a workweek longer than 40 hours unless the employee receives compensation for employment in excess of 40 hours in a workweek at a rate of not less than 1 1/2 times the hourly wage rate at which the employee is employed. (2) An overtime provision does not apply for farm workers. (3) Employers of students at an amusement or recreational area that operates on a seasonal basis who furnish the students with board, lodging, or other facilities may not employ the students for a workweek longer than 48 hours, unless the students receive compensation for their employment in excess of 48 hours in a workweek at a rate of not less than 1 1/2 times the hourly wage rate at which they are employed. (4) The application of the overtime provisions of subsection (1) to the employment of firefighters and law enforcement officers by

186 the state must be consistent with the Fair Labor Standards Act of 1938, as amended, and consistent with regulations promulgated under the act. History: En. Sec. 3, Ch. 417, L. 1971; amd. Sec. 1, Ch. 363, L. 1973; amd. Sec. 1, Ch. 421, L. 1975; R.C.M. 1947, (b); amd. Sec. 1, Ch. 71, L Compiler's Comments: 2001 Amendment: Chapter 71 inserted (4) requiring consistent application of overtime provisions to employment of firefighters and law enforcement officers; and made minor changes in style. Amendment effective March 20, Administrative Rules: ARM Workweek. Title 24, chapter 16, subchapter 10, ARM Hours worked. Title 24, chapter 16, subchapter 25, ARM Overtime compensation. Title 24, chapter 16, subchapter 55, ARM Requirements of bona fide profit-sharing plan or trust. Title 24, chapter 16, subchapter 61, ARM Records to be kept by employer. Title 24, chapter 16, subchapter 65, ARM Seasonal amusement or recreational. Case Notes: Agency Rejection and Order for Modification of Conclusions of Law Regarding Employee's Entitlement to Overtime Pay Proper Correct Standard of Review Applied: Winkler filed an overtime wage claim, and a state compliance specialist awarded Winkler the entire amount plus a 15% statutory penalty. A state hearings officer found that Winkler was not entitled to overtime. The Board of Personnel Appeals reversed the hearings officer, and the District Court affirmed the Board. The employer appealed on grounds that the Board and the District Court erroneously substituted their judgment for the findings of fact of the hearings officer, but the Supreme Court found no abuse of discretion and affirmed. Under the federal Fair Labor Standards Act, to avoid paying overtime, an employer has the burden of proving that the employee fits plainly and unmistakably within the Act's exemption requirements. The Board concluded that the hearings officer failed to show that Winkler was exempt, and the District Court agreed. Thus, the Board and the court did not modify the findings of the hearings officer in violation of , but did comply with in rejecting and ordering a modification of the hearings officer's conclusions of law. Further, the Board and the District Court applied the correct standard of review set out in Moran v. Shotgun Willies, Inc., 270 Mont. 47, 889 P.2d 1185 (1995), in holding that the hearings officer's findings were based on competent substantial evidence that Winkler did not agree to work for a set number of hours each week. Key W., Inc. v. Winkler, 2004 MT 186, 322 Mont. 184, 95 P.3d 666 (2004). Liquidated Damages for Failure to Pay Overtime Warranted Absent Showing That Employer Acted in Good Faith and With Reasonable Grounds in Paying Wages Fees and Costs of Appeal Allowed to Employee: The federal Fair Labor Standards Act provides that employees who are not paid overtime may recover liquidated damages in the amount of unpaid wages in addition to the unpaid wages. In this case, Winkler was awarded liquidated damages, and the employer appealed on grounds that it paid Winkler's wages in good faith and had reasonable grounds to believe that it did not violate the Act, so liquidated damages were not warranted under 29 U.S.C The Supreme Court applied the test in Walton v. United Consumers Club, Inc., 786 F.2d 303 (7th Cir. 1986), to determine what constitutes good faith and reasonable grounds. The Walton standard is whether, when objectively viewed through the lens of the tort law reasonable person standard, the employer acted in good faith and had reasonable grounds for believing that the employer's act or omission did not violate the Act. The hearings officer found that, based on the entire record, the employer failed to present sufficient evidence of good faith and reasonable grounds, and the Supreme Court declined to substitute its judgment for that of the agency as to the weight of the evidence on the factual question. Winkler was also entitled to court costs and attorney fees for appeal as the prevailing party under and 29 U.S.C. 216(b). Key W., Inc. v. Winkler, 2004 MT 186, 322 Mont. 184, 95 P.3d 666 (2004). Employee Who Spent Eighty Percent of Time on Non-managerial Work Considered Manager Exempt From Overtime Requirements: Showers sued Kemp for unpaid wages allegedly owed for Showers' work as a chef. The Board of Personnel Appeals found that Kemp owed $5, in unpaid overtime, and the District Court affirmed. On appeal, Kemp maintained that Showers was employed in an executive capacity under 29 U.S.C. 213(a)(1) and was thus exempt from the overtime provisions of the Fair Labor Standards Act. The Supreme Court considered the factors in 29 CFR in determining whether Showers' primary duty was management: (1) time spent performing managerial duties; (2) the relative importance of the employee's managerial duties as compared with other duties; (3) the frequency with which the employee exercises discretionary powers; (4) the employee's relative freedom from supervision; and (5) the relationship between the employee's salary and wages paid to subordinates for the nonexempt work performed by the employee. Generally, an employee who spends 50% or more of time in management would have management as the primary duty, but time is not the sole test. An employee may spend less than 50% of time on management and still be considered a manager if other factors support that conclusion. Here, Showers spent only 20% of her time performing managerial work and 80% of her

187 time cooking, but the managerial duties were more important than her other duties because they needed to be done so that her subordinates could work and so the kitchen could operate successfully. Further, Showers frequently exercised discretionary powers by making weekly, if not daily, decisions concerning operation of the kitchen, was relatively, if not totally, free from supervision, and was compensated better than her subordinates. Although exemptions from the Fair Labor Standards Act are to be narrowly construed against the employer asserting the exemption and the employer has the burden of proving that the employee fits plainly and unmistakably within the terms of the exemption, the Supreme Court found that, considering the other factors in the federal regulations, Showers was an exempt employee whose primary duty was management, even though she spent 80% of her time performing non-managerial work. Kemp v. Bd. of Personnel Appeals, 1999 MT 255, 296 Mont. 319, 989 P.2d 317, 56 St. Rep (1999). Inclusion of District Construction Allowance in Base Pay for Purposes of Calculating Overtime Pay: Plaintiff employees' union sought a declaratory judgment that the district construction allowance (DCA) paid to eligible state employees should be included in their base pay for purposes of calculating overtime compensation. The District Court found that the DCA should not be included in the base pay and granted summary judgment to defendant state agency. On appeal, the Supreme Court reversed, holding that the District Court erred in granting summary judgment. Defendant did not meet its burden of showing that the DCA fit plainly and unmistakenly within one of the exceptions to the federal Fair Labor Standards Act (FLSA), 29 U.S.C. 201 through 219. The FLSA exceptions are to be narrowly construed against the employer asserting them, and the employer bears the burden of showing that the employee fits within the terms of the exception. All remuneration that does not fall within one of the seven exclusionary clauses of the FLSA must be added into the total compensation received by the employee before the hourly pay rate is determined. In the present case, the expenses at issue were not incurred on the employer's behalf or for its benefit or convenience, but rather the money was reimbursement for normal, everyday expenses incurred by the employee for traveling to and from work and thus could not be excluded from the regular rate as reimbursement for travel expenses under 29 U.S.C. 207(e)(2). Further, the agency could not be relieved of liability under the Portal-to-Portal Act of 1947 (PPA), 29 U.S.C. 251, et seq., because under the PPA, that relief does not extend to an employer if the activity is compensable by either an express provision of a written or non-written contract in effect, at the time of the activity, between the employer and the employee, the employee's agent, or the collective bargaining representative, as was the case here. Mont. Pub. Employees Ass'n v. Dept. of Transportation, 1998 MT 17, 287 Mont. 229, 954 P.2d 21, 55 St. Rep. 60 (1998). Impermissible Wage Computation Scheme Lack of Employee-Employer Agreement: Most Montana employers must compute wages based on Montana's Constitution and statutes providing for an 8-hour workday rather than on the provisions of the federal Fair Labor Standards Act of 1938 (FLSA). The FLSA provides a floor under which a state's hourly pay scheme cannot descend, but states are free to give greater benefits to their workers. Under this section, an employer is generally required to pay employees who work over 40 hours a week 1 1/2 times their regular hourly wage for overtime hours worked. In the present case, in order to determine regular pay, the employer divided fixed pay by the total number of hours an employee worked. While permissible under federal law, this pay scheme is not permissible as applied to most employment relationships in Montana. The pay scheme was also a violation of wage laws because the employer and employees did not mutually agree to its use, in violation of ARM (2)(e). Craver v. Waste Management Partners of Bozeman, 265 Mont. 37, 874 P.2d 1, 51 St. Rep. 268 (1994), followed in Lewis v. B&B Pawnbrokers, Inc., 1998 MT 302, 292 Mont. 82, 968 P.2d 1145, 55 St. Rep (1998). Overtime for TV News Editor/Reporter Not Covered by Federal Law: Since the overtime pay section of the federal Fair Labor Standards Act of 1938 specifically exempted a TV news editor/reporter from overtime pay, he was not covered by the federal Act for purposes of the provision in that this part does not apply to employees covered by the federal Act. Therefore, he is covered by this part's overtime pay provisions and is entitled to overtime pay for past work because this part does not exempt him from overtime provisions. Berry v. KRTV Communications, Inc., 262 Mont. 415, 865 P.2d 1104, 50 St. Rep (1993), followed in Kearney v. KXLF Communications, Inc., 263 Mont. 407, 869 P.2d 772, 51 St. Rep. 119 (1994). Remedies Cumulative: On the question of whether plaintiffs who were denied overtime compensation under this section must seek relief exclusively from the Commissioner of Labor under this chapter, the Supreme Court held that the clear and unambiguous language of provides for cumulative remedies. Therefore, resort to the Commissioner of Labor was not plaintiffs' exclusive option. The court reversed a dismissal that was based on plaintiffs' failure to exhaust administrative remedies. Boegli v. Glacier Mtn. Cheese Co., 238 Mont. 426, 777 P.2d 1303, 46

188 St. Rep (1989). Trucking Dispatcher as Administrative Employee Overtime Denied: Evidence of a trucking dispatcher's customary exercise of discretion and judgment was sufficiently credible to support the conclusion that he acted in an administrative capacity and was not eligible for overtime compensation. Dennis v. Tomahawk Serv., Inc., 235 Mont. 378, 767 P.2d 346, 46 St. Rep. 69 (1989). Deputy Sheriffs' Overtime and On-Call Time Before and After "Garcia Decision": This section relates to overtime compensation generally, while through specifically address the salary and overtime compensation of Deputy Sheriffs. Therefore, under the rule that the specific statute governs over the general, this section does not apply to Deputy Sheriffs. Furthermore, provides that through govern if they conflict with any other law. Under , payment of overtime for time worked beyond the regularly scheduled work period is not mandatory and lies in the discretion of the Board of County Commissioners. Since this section does not apply to the deputies, the Fair Labor Standards Act (FLSA) and Garcia v. San Antonio Metropolitan Transit Authority, 469 US 528, 83 L Ed 2d 1016, 105 S Ct 1005 (1985), set the threshold (171 hours per 28-day work period) above which the deputies must be paid overtime, retroactive to April 15, 1985, the date Garcia was decided; it could not be argued that the FLSA intended that the lower of the FLSA and the (160 hours) threshold for a 28-day period should be used to determine when overtime begins. The deputies' claim for compensation for on-call time was another claim for overtime, and payment for on-call time prior to Garcia was in the discretion of the County Commissioners. On-call time since Garcia did not constitute work under a United States Supreme Court test that for FLSA purposes work is physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer. Phillips v. Lake County, 222 Mont. 42, 721 P.2d 326, 43 St. Rep (1986). Deputy Sheriffs' Retroactive Overtime Conflict of Laws: Since deputies' award of retroactive overtime compensation was grounded in federal rather than state law, the state laws relating to penalties, interest, attorney fees, and costs did not apply. Phillips v. Lake County, 222 Mont. 42, 721 P.2d 326, 43 St. Rep (1986). Ranch Hand at State Research Ranch: Plaintiff was a beef herdsman at the Gerwin Research Farm, a part of the Agricultural Research Station of Montana State University (now Montana State University Bozeman). He fed and watered cattle, helped deliver calves, maintained fences, assisted with artificial insemination, and maintained herd management records. He was a "farm worker" working on a "farm or ranch" for purposes of and He was also a person employed in agriculture for purposes of (2). On both grounds, he was not covered by the overtime compensation requirement of The definition of "farm or ranch" in does not require that the employer be a farm or ranch or even be primarily engaged in farming or ranching. It focuses on the activities at the work situs, and the Gerwin Research Farm fits within that definition. Terry v. Bd. of Regents, 220 Mont. 214, 714 P.2d 151, 43 St. Rep. 304 (1986). Public Policy Against Waiver of Overtime Estoppel: Though employee allegedly failed to report overtime hours and inform employer that he expected overtime pay, his nonassertion of his right under state and federal law to overtime pay did not constitute a waiver of the right or estop him from bringing a claim for it. Laws intended to protect the public in general cannot be waived privately by either implication or agreement, and laws establishing the right to overtime pay are among such laws. The court did not refer to Celmer v. Schmitt, 198 Mont. 271, 645 P.2d 946, 39 St. Rep. 925 (1982), which appears to have a contrary holding. Hoehne v. Sherrodd, Inc., 205 Mont. 365, 668 P.2d 232, 40 St. Rep (1983), followed in Lewis v. B&B Pawnbrokers, Inc., 1998 MT 302, 292 Mont. 82, 968 P.2d 1145, 55 St. Rep (1998). Lewis also overruled Celmer to the extent that it conflicted with Hoehne. Farm Worker: Schmitt hired Celmer to work in his livestock, grain, and meat production business at a salary of $1,000 per month plus a rent and meat allowance. After Celmer quit without giving notice, he filed a claim for compensation for overtime he worked during his employment. The court rejected Celmer's claim because: (1) the employment contract excluded overtime payment because Celmer was compensated by salary and allowance for rent and meat, and (2) Celmer was an agricultural employee. In any event, an employee is estopped from claiming overtime compensation if he failed to report the overtime or to inform his employer that he expected compensation until he sued after quitting. Celmer v. Schmitt, 198 Mont. 271, 645 P.2d 946, 39 St. Rep. 925 (1982). Claim for Overtime Pay at End of Employment Valid: A county is not relieved of liability for overtime pay on the grounds that an employee did not file an overtime pay claim for each pay period and did not claim any overtime until the end of his employment with the county. Rosebud County v. Roan, 192 Mont. 252, 627 P.2d 1222, 38 St. Rep. 639 (1981). Overtime Wage Claim Valid No Express Mandate to Work Overtime: Employers may not arbitrarily deny overtime on the basis that the employer did not expressly order the employee to work overtime. A

189 rule to the contrary would reject many legitimate overtime wage claims such as the one here where the employee's overtime work was an effort to fulfill the terms of his employment rather than an attempt to create his own employment contract and where the employer knew that the employee worked overtime and did not direct the employee to stop working overtime. Rosebud County v. Roan, 192 Mont. 252, 627 P.2d 1222, 38 St. Rep. 639 (1981). Two-Part Test in Qualifying an Employee as an Executive for the Purposes of Overtime Wage: In order to qualify an employee as an "executive" for the purposes of denying the employee overtime wage compensation, the test under the administrative rules is "whether the employee's duties `include the customary and regular direction of the work of two or more other employees therein'", and in addition, whether the employee customarily and regularly supervised at least two full-time employees or the equivalent. Both rules defining the test must be met, and where the employee supervised two employees, one of which did not work for him full time, the employee does not meet the requirement of being an "executive". Rosebud County v. Roan, 192 Mont. 252, 627 P.2d 1222, 38 St. Rep. 639 (1981). Commissioned Employees Minimum Wage and Overtime Compliance: When an employer paid employees on a commission basis, the Department of Labor and Industry did not err in requiring that the employees must be compensated in compliance with the minimum wage and overtime compensation laws. To determine whether an employee's regular pay meets minimum wage standards, his total compensation each week is divided by his total hours worked. To comply with the requirements of and this section, the employer must agree with his employees to pay the stated commission or the minimum wage plus overtime, whichever is greater. St. v. Wilson, 189 Mont. 52, 614 P.2d 1066, 37 St. Rep (1980). Time Limitation on Penalty Tolled by Agency Enforcement: Failure to pay overtime results in the penalty at as provided by Section states that the penalty is assessed for the entire period of time that the wages remain unpaid, except Sundays and legal holidays. The penalty may be enforced only if a complaint is filed or the Department of Labor and Industry acts to enforce the law within the 18-month limitation of following the accrual of the action. St. v. Wilson, 189 Mont. 52, 614 P.2d 1066, 37 St. Rep (1980). Wage Claim Action Department Power to Initiate: The Department of Labor and Industry has the authority to bring an action for violation of the Montana minimum wage and overtime compensation law (Title 39, ch. 3, part 4) even though no complaint was filed by any of the defendant's wage earners, such a complaint being unnecessary under as provided by St. v. Wilson, 189 Mont. 52, 614 P.2d 1066, 37 St. Rep (1980). Minimum Wages and Hours Act Not Preempted: The Fair Labor Standards Act does not preempt the subject of wage, hour, or overtime regulation to the exclusion of Montana minimum wages and hours law. Plouffe v. Farm & Ranch Equip. Co., 174 Mont. 313, 570 P.2d 1106 (1977). See also Berry v. KRTV Communications, Inc., 262 Mont. 415, 865 P.2d 1104, 50 St. Rep (1993). Public Officers and Employees: Provisions of this act and the provision dictating that County Commissioners fix the salaries of deputies ( ) are in conflict and the special act prevails over the general provisions of this act. Because a maximum is provided by , the time-and-a-half for overtime hours in excess of 40 hours per week is unenforceable. Billings v. Smith, 158 Mont. 197, 490 P.2d 221 (1971). Attorney General Opinions: Montana Law Not Applicable to Workers Covered by Fair Labor Standards Act: State and local government employees who are covered by the federal Fair Labor Standards Act of 1938 (FLSA) are not subject to the provisions of the Montana minimum wages and maximum hours law (Title 39, ch. 3, part 4) and therefore may reach agreement with their employers to receive compensatory time in lieu of cash overtime in accordance with FLSA amendments in A.G. Op. 58 (1986). Four-Day Workweek: Local law enforcement agencies may, with the consent of affected employees, schedule a 40-hour workweek consisting of 4 consecutive 10-hour days. 38 A.G. Op. 83 (1980). Hours of Labor and Compensation: An agency of state government may permit an employee to work more than 8 hours in any workday, but overtime need only be paid for hours worked in excess of 40 hours in any one workweek, and paid days off for annual leave, legal holidays, jury duty, and military leave are not counted as hours worked in computing weekly overtime. 37 A.G. Op. 16 (1977). Sec Minimum wage, maximum hours and overtime provisions; Exclusions from coverage The provisions of and do not apply with respect to: (a) students participating in a distributive education program established under the auspices of an accredited educational agency; (b) persons employed in private homes whose duties consist of menial chores, such as babysitting, mowing lawns, and cleaning sidewalks; (c) persons employed directly by the head of a household to care for children dependent upon the head of the household; (d) immediate members of the

190 family of an employer or persons dependent upon an employer for half or more of their support in the customary sense of being a dependent; (e) persons who are not regular employees of a nonprofit organization and who voluntarily offer their services to a nonprofit organization on a fully or partially reimbursed basis; (f) persons with disabilities engaged in work that is incidental to training or evaluation programs or whose earning capacity is so severely impaired that they are unable to engage in competitive employment; (g) apprentices or learners, who may be exempted by the commissioner for a period not to exceed 30 days of their employment; (h) learners under the age of 18 who are employed as farm workers, provided that the exclusion may not exceed 180 days from their initial date of employment and further provided that during this exclusion period, wages paid the learners may not be less than 50% of the minimum wage rate established in this part; (i) retired or semiretired persons performing part-time incidental work as a condition of their residence on a farm or ranch; (j) an individual employed in a bona fide executive, administrative, or professional capacity, as these terms are defined by regulations of the commissioner, a computer systems analyst, computer programmer, software engineer, network administrator, or other similarly skilled computer employee who earns not less than $27.63 an hour pursuant to 29 CFR or , or an individual employed in an outside sales capacity pursuant to 29 CFR ; (k) an individual employed by the United States of America; (l) resident managers employed in lodging establishments or assisted living facilities who, under the terms of their employment, live in the establishment or facility; (m) a direct seller as defined in 26 U.S.C. 3508; (n) a person placed as a participant in a public assistance program authorized by Title 53 into a work setting for the purpose of developing employment skills. The placement may be with either a public or private employer. The exclusion does not apply to an employment relationship formed in the work setting outside the scope of the employment skills activities authorized by Title 53. (o) a person serving as a foster parent, licensed as a foster care provider in accordance with , and providing care without wage compensation to no more than six foster children in the provider's own residence. The person may receive reimbursement for providing room and board, obtaining training, respite care, leisure and recreational activities, and providing for other needs and activities arising in the provision of in-home foster care. (p) an employee employed in domestic service employment to provide companionship services, as defined in 29 CFR 552.6, or respite care for individuals who, because of age or infirmity, are unable to care for themselves as provided under section 213(a)(15) of the Fair Labor Standards Act, 29 U.S.C. 213, when the person providing the service is employed directly by a family member or an individual who is a legal guardian. (2) The provisions of do not apply to: (a) an employee with respect to whom the United States secretary of transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C ; (b) an employee of an employer subject to 49 U.S.C and 49 U.S.C , the provisions of part I of the Interstate Commerce Act; (c) an individual employed as an outside buyer of poultry, eggs, cream, or milk, in their raw or natural state; (d) a salesperson, parts person, or mechanic paid on a commission or contract basis and primarily engaged in selling or servicing automobiles, trucks, mobile homes, recreational vehicles, or farm implements if the salesperson, parts person, or mechanic is employed by a nonmanufacturing establishment primarily engaged in the business of selling the vehicles or implements to ultimate purchasers; (e) a salesperson primarily engaged in selling trailers, boats, or aircraft if the salesperson is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers; (f) a salesperson paid on a commission or contract basis who is primarily engaged in selling advertising for a radio or television station employer; (g) an employee employed as a driver or driver's helper making local deliveries who is compensated for the employment on the basis of trip rates or other delivery payment plan if the commissioner finds that the plan has the general purpose and effect of reducing hours worked by the employees to or below the maximum workweek applicable to them under ; (h) an employee employed in agriculture or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways that are not owned or operated for profit, that are not operated on a sharecrop basis, and that are used exclusively for supply and storing of water for agricultural purposes; (i) an employee employed in agriculture by a farmer, notwithstanding other employment of the employee in connection with livestock auction operations in which the farmer is engaged as an adjunct to the raising of livestock, either alone or in conjunction with other farmers, if the employee is: (i) primarily employed during a workweek in agriculture by a farmer; and (ii) paid for employment in connection with the livestock auction operations at a wage rate not less than that prescribed by ; (j) an employee of an establishment commonly recognized as a country elevator, including an establishment that sells products and services used in the

191 operation of a farm if no more than five employees are employed by the establishment; (k) a driver employed by an employer engaged in the business of operating taxicabs; (l) an employee who is employed with the employee's spouse by a nonprofit educational institution to serve as the parents of children who are orphans or one of whose natural parents is deceased or who are enrolled in the institution and reside in residential facilities of the institution so long as the children are in residence at the institution and so long as the employee and the employee's spouse reside in the facilities and receive, without cost, board and lodging from the institution and are together compensated, on a cash basis, at an annual rate of not less than $10,000; (m) an employee employed in planting or tending trees; cruising, surveying, or felling timber; or transporting logs or other forestry products to a mill, processing plant, railroad, or other transportation terminal if the number of employees employed by the employer in the forestry or lumbering operations does not exceed eight; (n) an employee of a sheriff's department who is working under an established work period in lieu of a workweek pursuant to (1); (o) an employee of a municipal or county government who is working under a work period not exceeding 40 hours in a 7-day period established through a collective bargaining agreement when a collective bargaining unit represents the employee or by mutual agreement of the employer and employee when a bargaining unit is not recognized. Employment in excess of 40 hours in a 7-day, 40-hour work period must be compensated at a rate of not less than 1 1/2 times the hourly wage rate for the employee. (p) an employee of a hospital or other establishment primarily engaged in the care of the sick, disabled, aged, or mentally ill or defective who is working under a work period not exceeding 80 hours in a 14-day period established through either a collective bargaining agreement when a collective bargaining unit represents the employee or by mutual agreement of the employer and employee when a bargaining unit is not recognized. Employment in excess of 8 hours a day or 80 hours in a 14-day period must be compensated for at a rate of not less than 1 1/2 times the hourly wage rate for the employee. (q) a firefighter who is working under a work period established in a collective bargaining agreement entered into between a public employer and a firefighters' organization or its exclusive representative (r) an officer or other employee of a police department in a city of the first or second class who is working under a work period established by the chief of police under ; (s) an employee of a department of public safety working under a work period established pursuant to ; (t) an employee of a retail establishment if the employee's regular rate of pay exceeds 1 1/2 times the minimum hourly rate applicable under section 206 of the Fair Labor Standards Act of 1938, 29 U.S.C. 206, and if more than half of the employee's compensation for a period of not less than 1 month is derived from commissions on goods and services; (u) a person employed as a guide, cook, camp tender, or livestock handler by a licensed outfitter as defined in ; (v) an employee employed as a radio announcer, news editor, or chief engineer by an employer in a second- or third-class city or a town; (w) an employee of the consolidated legislative branch as provided in ; (x) an employee of the state or its political subdivisions employed, at the employee's option, on an occasional or sporadic basis in a capacity other than the employee's regular occupation. Only the hours that the employee was employed in a capacity other than the employee's regular occupation may be excluded from the calculation of hours to determine overtime compensation GENERAL STATEMENT (1) The Montana Minimum Wage and Overtime Compensation Act, is a Montana statute of general application which establishes minimum wage and overtime pay that apply as provided in the law. All employees are subject to the prescribed labor standards unless specifically exempted from them. Employers having such employees are required to comply with the law's provisions in this regard unless relieved therefrom by some exemption in the law. (2) These interpretations and regulations contain the construction of the law which the commissioner believes to be correct and which will guide him in the performance of his duties under the law, unless and until he is otherwise directed by authoritative decisions of the courts or he concludes upon re-examination of a regulation or interpretation that it is incorrect. The interpretations contained herein may be modified, amended, rescinded, or determined by judicial authority to be incorrect Exclusions. (1) The provisions of and do not apply with respect to: (a) students participating in a distributive education program established under the auspices of an accredited educational agency; (b) persons employed in private homes whose duties consist of menial chores, such as babysitting, mowing lawns, and cleaning sidewalks; (c) persons employed directly by the head of a household to care for children dependent upon the head of the household; (d) immediate members of the family of an employer or persons dependent upon an employer for half or more of their support in the

192 customary sense of being a dependent; (e) persons who are not regular employees of a nonprofit organization and who voluntarily offer their services to a nonprofit organization on a fully or partially reimbursed basis; (f) persons with disabilities engaged in work that is incidental to training or evaluation programs or whose earning capacity is so severely impaired that they are unable to engage in competitive employment; (g) apprentices or learners, who may be exempted by the commissioner for a period not to exceed 30 days of their employment; (h) learners under the age of 18 who are employed as farm workers, provided that the exclusion may not exceed 180 days from their initial date of employment and further provided that during this exclusion period, wages paid the learners may not be less than 50% of the minimum wage rate established in this part; (i) retired or semiretired persons performing part-time incidental work as a condition of their residence on a farm or ranch; (j) an individual employed in a bona fide executive, administrative, or professional capacity, as these terms are defined by regulations of the commissioner, or in an outside sales capacity, as defined in 29 CFR 541.5; (k) an individual employed by the United States of America; (l) resident managers employed in lodging establishments or assisted living facilities who, under the terms of their employment, live in the establishment or facility; (m) a direct seller as defined in 26 U.S.C. 3508; (n) a person placed as a participant in a public assistance program authorized by Title 53 into a work setting for the purpose of developing employment skills. The placement may be with either a public or private employer. The exclusion does not apply to an employment relationship formed in the work setting outside the scope of the employment skills activities authorized by Title 53. (o) a person serving as a foster parent, licensed as a foster care provider in accordance with , and providing care without wage compensation to no more than six foster children in the provider's own residence. The person may receive reimbursement for providing room and board, obtaining training, respite care, leisure and recreational activities, and providing for other needs and activities arising in the provision of in-home foster care. (p) an employee employed in domestic service employment to provide companionship services, as defined in 29 CFR 552.6, or respite care for individuals who, because of age or infirmity, are unable to care for themselves as provided under section 213(a)(15) of the Fair Labor Standards Act, 29 U.S.C. 213, when the person providing the service is employed directly by a family member or an individual who is a legal guardian. (2) The provisions of do not apply to: (a) an employee with respect to whom the United States secretary of transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C ; (b) an employee of an employer subject to 49 U.S.C and 49 U.S.C , the provisions of part I of the Interstate Commerce Act; (c) an individual employed as an outside buyer of poultry, eggs, cream, or milk, in their raw or natural state; (d) a salesperson, parts person, or mechanic paid on a commission or contract basis and primarily engaged in selling or servicing automobiles, trucks, mobile homes, recreational vehicles, or farm implements if the salesperson, parts person, or mechanic is employed by a nonmanufacturing establishment primarily engaged in the business of selling the vehicles or implements to ultimate purchasers; (e) a salesperson primarily engaged in selling trailers, boats, or aircraft if the salesperson is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers; (f) a salesperson paid on a commission or contract basis who is primarily engaged in selling advertising for a radio or television station employer; (g) an employee employed as a driver or driver's helper making local deliveries who is compensated for the employment on the basis of trip rates or other delivery payment plan if the commissioner finds that the plan has the general purpose and effect of reducing hours worked by the employees to or below the maximum workweek applicable to them under ; (h) an employee employed in agriculture or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways that are not owned or operated for profit, that are not operated on a sharecrop basis, and that are used exclusively for supply and storing of water for agricultural purposes; (i) an employee employed in agriculture by a farmer, notwithstanding other employment of the employee in connection with livestock auction operations in which the farmer is engaged as an adjunct to the raising of livestock, either alone or in conjunction with other farmers, if the employee is: (i) primarily employed during a workweek in agriculture by a farmer; and (ii) paid for employment in connection with the livestock auction operations at a wage rate not less than that prescribed by ; (j) an employee of an establishment commonly recognized as a country elevator, including an establishment that sells products and services used in the operation of a farm if no more than five employees are employed by the establishment; (k) a driver employed by an employer engaged in the business of operating taxicabs; (l) an employee who is employed with the employee's spouse by a nonprofit educational institution to serve as the parents of children who are orphans or one

193 of whose natural parents is deceased or who are enrolled in the institution and reside in residential facilities of the institution so long as the children are in residence at the institution and so long as the employee and the employee's spouse reside in the facilities and receive, without cost, board and lodging from the institution and are together compensated, on a cash basis, at an annual rate of not less than $10,000; (m) an employee employed in planting or tending trees; cruising, surveying, or felling timber; or transporting logs or other forestry products to a mill, processing plant, railroad, or other transportation terminal if the number of employees employed by the employer in the forestry or lumbering operations does not exceed eight; (n) an employee of a sheriff's office who is working under an established work period in lieu of a workweek pursuant to (1); (o) an employee of a municipal or county government who is working under a work period not exceeding 40 hours in a 7-day period established through a collective bargaining agreement when a collective bargaining unit represents the employee or by mutual agreement of the employer and employee when a bargaining unit is not recognized. Employment in excess of 40 hours in a 7-day, 40-hour work period must be compensated at a rate of not less than 1 1/2 times the hourly wage rate for the employee. (p) an employee of a hospital or other establishment primarily engaged in the care of the sick, disabled, aged, or mentally ill or defective who is working under a work period not exceeding 80 hours in a 14-day period established through either a collective bargaining agreement when a collective bargaining unit represents the employee or by mutual agreement of the employer and employee when a bargaining unit is not recognized. Employment in excess of 8 hours a day or 80 hours in a 14-day period must be compensated for at a rate of not less than 1 1/2 times the hourly wage rate for the employee. (q) a firefighter who is working under a work period established in a collective bargaining agreement entered into between a public employer and a firefighters' organization or its exclusive representative; (r) an officer or other employee of a police department in a city of the first or second class who is working under a work period established by the chief of police under ; (s) an employee of a department of public safety working under a work period established pursuant to ; (t) an employee of a retail establishment if the employee's regular rate of pay exceeds 1 1/2 times the minimum hourly rate applicable under section 206 of the Fair Labor Standards Act of 1938, 29 U.S.C. 206, and if more than half of the employee's compensation for a period of not less than 1 month is derived from commissions on goods and services; (u) a person employed as a guide, cook, camp tender, or livestock handler by a licensed outfitter as defined in ; (v) an employee employed as a radio announcer, news editor, or chief engineer by an employer in a second- or third-class city or a town; (w) an employee of the consolidated legislative branch as provided in ; (x) an employee of the state or its political subdivisions employed, at the employee's option, on an occasional or sporadic basis in a capacity other than the employee's regular occupation. Only the hours that the employee was employed in a capacity other than the employee's regular occupation may be excluded from the calculation of hours to determine overtime compensation. Amendments Composite Section: Chapter 54 in (1)(l) after "establishments or" substituted "assisted living" for "personal-care". Amendment effective October 1, Chapter 83 in (1)(p) after "provide" deleted "live-in", after " 29 CFR 552.6" inserted "or respite care", and at end inserted clause providing limited exemption to person providing service when person is employed by family member or legal guardian. Amendment effective October 1, Amendments Composite Section: Chapter 22 in (1)(j) inserted "or in an outside sales capacity, as defined in 29 CFR 541.5"; deleted former (1)(m) that referred to outside salespersons or marketing representatives primarily engaged in marketing products or services in the food distribution industry; deleted former (2)(d) that referred to outside salespersons primarily employed in selling newspaper advertising; in (2)(d) near middle after "farm implements" deleted "or replacement parts" and near end after "implements" deleted "or replacement parts" and before "ultimate purchasers" deleted "wholesalers or"; deleted former (2)(g) that referred to outside salespersons primarily engaged in selling office supplies, equipment, and computers; and made minor changes in style. Amendment effective February 19, Chapter 71 inserted (2)(x) providing that does not apply to a state or other government employee employed on an occasional basis in a capacity other than the employee's regular occupation; and made minor changes in style. Amendment effective March 20, Amendment: Chapter 179 inserted (1)(q) excluding persons providing live-in companionship for the aged or infirm. Amendment effective March 25, Amendments: Chapter 2 inserted (2)(y) exempting employees of the consolidated Legislative Branch. Amendment effective January 27, Chapter 42 in (2)(a) substituted "49 U.S.C " for "49 U.S.C. 304"; in (2)(b) inserted reference to 49 U.S.C and 49 U.S.C ; in (2)(v), after "section 206 of the Fair Labor Standards Act of 1938",

194 inserted "(29 U.S.C. 206)"; and made minor changes in style. Amendment effective March 12, Chapter 193 in (2)(e), after "farm implements", inserted "or replacement parts", after "implements" inserted "or replacement parts", and before "ultimate" inserted "wholesalers or"; and made minor changes in style. Chapter 472 in (1)(f) substituted "persons with disabilities" for "handicapped workers". Chapter 515 inserted (1)(o) relating to a person in a welfare work program with a public or private employer under Title 53 and within the scope of the employment skills activities authorized by that title; and inserted (1)(p) relating to a licensed foster parent providing care without wage compensation to fewer than seven children in the foster parent's residence. Amendment effective May 2, Saving Clause: Section 4, Ch. 515, L. 1997, was a saving clause Amendments: Chapter 48 inserted (1)(n) excluding direct sellers; and made minor changes in style. Amendment effective February 9, Chapter 114 inserted (2)(w) concerning a person employed by a licensed outfitter. Amendment effective March 13, Chapter 382 inserted (2)(x) concerning employees employed as radio announcers, news editors, or chief engineers; and made minor changes in style. Amendment effective April 12, Amendments Composite Section: Chapter 95 in (1)(j), after "defined", deleted "and delimited"; inserted (1)(m) excluding certain outside salespersons or marketing representatives employed in selling or marketing products or services in the food distribution industry; and made minor changes in style. Amendment effective March 16, Chapter 405 inserted (2)(v) relating to a retail employee with a pay rate exceeding 1 1/2 times the federal minimum hourly rate and more than half of whose compensation for at least 1 month is from commissions; and made minor changes in style. A style change in (2)(k) was slightly different in the two chapters. The codifier chose the more appropriate of the two Amendment: Inserted (2)(g) exempting an outside salesman employed in selling office supplies and equipment from coverage under overtime compensation statute; and made minor changes in style Amendments: Chapter 175 inserted (2)(g) excluding commission and contract salesmen of broadcast advertising. Chapter 353 inserted (2)(d) excluding commission and contract outside salesmen of newspaper advertising. Chapter 650 inserted (1)(l) excluding lodging establishment and personal care facility resident managers who live in the establishment or facility Amendment: Inserted (2)(r) excluding department of public safety employees Amendments: Chapter 375 inserted (2)(p) excluding certain firefighters. Chapter 562 inserted (2)(q) excluding certain police officers. Chapter 640 inserted (2)(n) excluding certain government employees; and inserted (2)(o) excluding certain health care workers Amendment: Inserted (2)(m) excluding certain Sheriff's Department employees. Administrative Rules: ARM and Employee employed in bona fide executive capacity. ARM and Employee employed in bona fide administrative capacity. ARM and Employee employed in bona fide professional capacity. Title 24, chapter 16, subchapter 7, ARM Special minimum wages for handicapped workers in competitive employment. ARM Employment of learners. ARM General standard for overtime pay. Title 24, chapter 16, subchapter 65, ARM Seasonal amusement or recreational. Title 24, chapter 16, subchapter 67, ARM Student-learner. Case Notes: Constitutional Provision Regarding Work Day Not Applicable to Firefighters Under Collective Bargaining Agreement: The provision in Art. XII, sec. 2, Mont. Const., that guarantees an 8-hour workday is not self-executing in that the permissive language in the section allows the Legislature to change the maximum period of 8 hours for certain professions, such as firefighters working pursuant to a collective bargaining agreement. Thus, firefighters in this case ineffectively argued that the constitutional guarantee applied when their collective bargaining agreement was for a 27-day work cycle that included working 24-hour shifts and sometimes more than 40 hours a week. Kuhr v. Billings, 2007 MT 201, 338 Mont. 402, 168 P.3d 615 (2007). No Error in Finding Hourly, Rather Than Annual, Wage Agreement Applicable: A collective bargaining agreement between firefighters and the city of Billings was disputed when the firefighters alleged that the city failed to pay for all hours worked and for leave time. The District Court determined that the contract was an hourly wage contract and that the firefighters were entitled to unpaid wages and leave time. The city asserted that the agreement was an annual salary contract and that the hourly wage provisions did not apply. The Supreme Court examined the agreement and affirmed. Despite the mention of an annual base salary, the contract listed and clearly provided for actual hourly wages, and there was no basis for treating the contract as an annual salary contract. It would have been illogical to provide an actual hourly wage but not pay for each hour worked. Thus, the District Court did not err in concluding that the firefighters were entitled to unpaid wages and leave time. Kuhr v. Billings, 2007 MT 201, 338 Mont. 402, 168 P.3d 615 (2007). Agency Rejection and Order for Modification of Conclusions of Law Regarding Employee's Entitlement to Overtime Pay Proper Correct Standard of Review Applied: Winkler filed

195 an overtime wage claim, and a state compliance specialist awarded Winkler the entire amount plus a 15% statutory penalty. A state hearings officer found that Winkler was not entitled to overtime. The Board of Personnel Appeals reversed the hearings officer, and the District Court affirmed the Board. The employer appealed on grounds that the Board and the District Court erroneously substituted their judgment for the findings of fact of the hearings officer, but the Supreme Court found no abuse of discretion and affirmed. Under the federal Fair Labor Standards Act, to avoid paying overtime, an employer has the burden of proving that the employee fits plainly and unmistakably within the Act's exemption requirements. The Board concluded that the hearings officer failed to show that Winkler was exempt, and the District Court agreed. Thus, the Board and the court did not modify the findings of the hearings officer in violation of , but did comply with in rejecting and ordering a modification of the hearings officer's conclusions of law. Further, the Board and the District Court applied the correct standard of review set out in Moran v. Shotgun Willies, Inc., 270 Mont. 47, 889 P.2d 1185 (1995), in holding that the hearings officer's findings were based on competent substantial evidence that Winkler did not agree to work for a set number of hours each week. Key W., Inc. v. Winkler, 2004 MT 186, 322 Mont. 184, 95 P.3d 666 (2004). Liquidated Damages for Failure to Pay Overtime Warranted Absent Showing That Employer Acted in Good Faith and With Reasonable Grounds in Paying Wages Fees and Costs of Appeal Allowed to Employee: The federal Fair Labor Standards Act provides that employees who are not paid overtime may recover liquidated damages in the amount of unpaid wages in addition to the unpaid wages. In this case, Winkler was awarded liquidated damages, and the employer appealed on grounds that it paid Winkler's wages in good faith and had reasonable grounds to believe that it did not violate the Act, so liquidated damages were not warranted under 29 U.S.C The Supreme Court applied the test in Walton v. United Consumers Club, Inc., 786 F.2d 303 (7th Cir. 1986), to determine what constitutes good faith and reasonable grounds. The Walton standard is whether, when objectively viewed through the lens of the tort law reasonable person standard, the employer acted in good faith and had reasonable grounds for believing that the employer's act or omission did not violate the Act. The hearings officer found that, based on the entire record, the employer failed to present sufficient evidence of good faith and reasonable grounds, and the Supreme Court declined to substitute its judgment for that of the agency as to the weight of the evidence on the factual question. Winkler was also entitled to court costs and attorney fees for appeal as the prevailing party under and 29 U.S.C. 216(b). Key W., Inc. v. Winkler, 2004 MT 186, 322 Mont. 184, 95 P.3d 666 (2004). Family Member Exclusion Inapplicable to Claim for Unpaid Back Wages One Hundred Ten Percent Penalty Applied Attorney Fees and Costs Properly Awarded: Greta worked for her husband's broadcasting company as a traffic system manager, initially working without hourly wages or a salary. About 10 months after her employment began, her husband offered Greta a monthly salary and agreed that Greta should be paid retroactively to the first day on which she started working, preparing a memorandum of understanding to that effect. The M.O.U. also provided that Greta be repaid for the 10-month period according to a mutually agreeable schedule. Greta continued to work several months at salary, but the marriage began to dissolve, and she left her position without receiving any back wages. The company eventually made some payments, but Greta ultimately sued for unpaid wages plus penalties under the wage protection statutes. The District Court granted Greta summary judgment on the issue of whether unpaid wages were owed and, after trial, ordered the company to pay Greta the amount still owing. However, the court declined to award the maximum 110% penalty, establishing a 55% penalty instead and awarding Greta her attorney fees and costs. Both parties appealed. The company claimed that the penalty and fees should not have been awarded because, as a family member, Greta's employment relationship was excluded under this section. However, that exception applies to the minimum wage and overtime provisions of the employment relationship, not to the failure to timely pay wages, which is governed by Once Greta became a salaried employee, she was entitled to the rights and remedies afforded to all employees under state law. Therefore, the District Court properly determined that back wages were owing. However, under ARM , an employer who pays some or all of a contested wage may be relieved in whole or in part of paying a penalty, unless the employer has previously violated similar wage and hour statutes within 3 years prior to the date of the filing of the wage claim. The District Court erred in not taking judicial notice of the administrative rule. Because the company had been the subject of at least three prior wage claims by other employees, the special circumstances of the rule applied, so the 110% penalty, as a matter of law, applied to the back wages owed to Greta at the time of her separation from employment. Thus, the Supreme Court vacated the 55% award and directed a 110% award from that date. Further, the

196 District Court's award of attorney fees and costs was based on substantial evidence and was proper under , including Greta's attorney fees incurred on appeal. Reier Broadcasting Co. v. Reier, 2000 MT 120, 299 Mont. 463, 1 P.3d 940, 57 St. Rep. 504 (2000). Employee Who Spent Eighty Percent of Time on Non-managerial Work Considered Manager Exempt From Overtime Requirements: Showers sued Kemp for unpaid wages allegedly owed for Showers' work as a chef. The Board of Personnel Appeals found that Kemp owed $5, in unpaid overtime, and the District Court affirmed. On appeal, Kemp maintained that Showers was employed in an executive capacity under 29 U.S.C. 213(a)(1) and was thus exempt from the overtime provisions of the Fair Labor Standards Act. The Supreme Court considered the factors in 29 CFR in determining whether Showers' primary duty was management: (1) time spent performing managerial duties; (2) the relative importance of the employee's managerial duties as compared with other duties; (3) the frequency with which the employee exercises discretionary powers; (4) the employee's relative freedom from supervision; and (5) the relationship between the employee's salary and wages paid to subordinates for the nonexempt work performed by the employee. Generally, an employee who spends 50% or more of time in management would have management as the primary duty, but time is not the sole test. An employee may spend less than 50% of time on management and still be considered a manager if other factors support that conclusion. Here, Showers spent only 20% of her time performing managerial work and 80% of her time cooking, but the managerial duties were more important than her other duties because they needed to be done so that her subordinates could work and so the kitchen could operate successfully. Further, Showers frequently exercised discretionary powers by making weekly, if not daily, decisions concerning operation of the kitchen, was relatively, if not totally, free from supervision, and was compensated better than her subordinates. Although exemptions from the Fair Labor Standards Act are to be narrowly construed against the employer asserting the exemption and the employer has the burden of proving that the employee fits plainly and unmistakably within the terms of the exemption, the Supreme Court found that, considering the other factors in the federal regulations, Showers was an exempt employee whose primary duty was management, even though she spent 80% of her time performing non-managerial work. Kemp v. Bd. of Personnel Appeals, 1999 MT 255, 296 Mont. 319, 989 P.2d 317, 56 St. Rep (1999). Agency's Findings of Fact Not Overturned Unless Clearly Erroneous: The plaintiff sued the defendant for past wages and overtime. The defendant argued that no overtime was owed on the grounds that the plaintiff was an executive employee as set out in ARM The Department of Labor and Industry determined that the plaintiff was not an executive employee and was entitled to overtime pay. The Supreme Court ruled that the Department's findings were supported by substantive evidence and therefore could not be overturned by the District Court. Holbeck v. Stevi-West, Inc., 240 Mont. 121, 783 P.2d 391, 46 St. Rep (1989). Dispatcher Not Subject to Federal Regulations Not Exempt From Overtime Requirements: The federal Motor Carrier Safety Act of 1984 affects only those employees whose activities concern the safety of motor carrier operations. A trucking company dispatcher does not engage in such activities and therefore is not subject to federal regulations concerning maximum hours. Thus, the exemption in this section, which states that the overtime provisions of do not apply to employees with respect to whom the United States Secretary of Transportation has the power to establish maximum hours of service, does not apply to the dispatcher. The dispatcher is not exempt from overtime requirements. V.K. Putnam, Inc. v. McFarlane, 239 Mont. 300, 779 P.2d 905, 46 St. Rep (1989). Trucking Dispatcher as Administrative Employee Overtime Denied: Evidence of a trucking dispatcher's customary exercise of discretion and judgment was sufficiently credible to support the conclusion that he acted in an administrative capacity and was not eligible for overtime compensation. Dennis v. Tomahawk Serv., Inc., 235 Mont. 378, 767 P.2d 346, 46 St. Rep. 69 (1989). Deputy Sheriffs' Overtime and On-Call Time Before and After "Garcia Decision": Section relates to overtime compensation generally, while through specifically address the salary and overtime compensation of Deputy Sheriffs. Therefore, under the rule that the specific statute governs over the general, does not apply to Deputy Sheriffs. Furthermore, provides that through govern if they conflict with any other law. Under , payment of overtime for time worked beyond the regularly scheduled work period is not mandatory and lies in the discretion of the Board of County Commissioners. Since does not apply to the deputies, the Fair Labor Standards Act (FLSA) and Garcia v. San Antonio Metropolitan Transit Authority, 469 US 528, 83 L Ed 2d 1016, 105 S Ct 1005 (1985), set the threshold (171 hours per 28-day work period) above which the deputies must be paid overtime, retroactive to April 15, 1985, the date Garcia was decided; it could not be argued that the FLSA intended that the lower of the FLSA and the (160 hours) threshold for

197 a 28-day period should be used to determine when overtime begins. The deputies' claim for compensation for on-call time was another claim for overtime, and payment for on-call time prior to Garcia was in the discretion of the County Commissioners. On-call time since Garcia did not constitute work under a United States Supreme Court test that for FLSA purposes work is physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer. Phillips v. Lake County, 222 Mont. 42, 721 P.2d 326, 43 St. Rep (1986). Deputy Sheriffs' Retroactive Overtime Conflict of Laws: Since deputies' award of retroactive overtime compensation was grounded in federal rather than state law, the state laws relating to penalties, interest, attorney fees, and costs did not apply. Phillips v. Lake County, 222 Mont. 42, 721 P.2d 326, 43 St. Rep (1986). Ranch Hand at State Research Ranch: Plaintiff was a beef herdsman at the Gerwin Research Farm, a part of the Agricultural Research Station of Montana State University (now Montana State University Bozeman). He fed and watered cattle, helped deliver calves, maintained fences, assisted with artificial insemination, and maintained herd management records. He was a "farm worker" working on a "farm or ranch" for purposes of and He was also a person employed in agriculture for purposes of (2). On both grounds, he was not covered by the overtime compensation requirement of The definition of "farm or ranch" in does not require that the employer be a farm or ranch or even be primarily engaged in farming or ranching. It focuses on the activities at the work situs, and the Gerwin Research Farm fits within that definition. Terry v. Bd. of Regents, 220 Mont. 214, 714 P.2d 151, 43 St. Rep. 304 (1986). Two-Part Test in Qualifying an Employee as an Executive for the Purposes of Overtime Wage: In order to qualify an employee as an "executive" for the purposes of denying the employee overtime wage compensation, the test under the administrative rules is "whether the employee's duties `include the customary and regular direction of the work of two or more other employees therein'", and in addition, whether the employee customarily and regularly supervised at least two full-time employees or the equivalent. Both rules defining the test must be met, and where the employee supervised two employees, one of which did not work for him full time, the employee does not meet the requirement of being an "executive". Rosebud County v. Roan, 192 Mont. 252, 627 P.2d 1222, 38 St. Rep. 639 (1981), followed in Bronken's Goodtime Co. v. Bishop, 201 Mont. 360, 664 P.2d 292, 39 St. Rep (1982). Commissioned Employees Minimum Wage and Overtime Compliance: When an employer paid employees on a commission basis, the Department of Labor and Industry did not err in requiring that the employees must be compensated in compliance with the minimum wage and overtime compensation laws. To determine whether an employee's regular pay meets minimum wage standards, his total compensation each week is divided by his total hours worked. To comply with the requirements of and , the employer must agree with his employees to pay the stated commission or the minimum wage plus overtime, whichever is greater. (This holding is subject to certain exclusions for employees paid on a commission basis that are provided for by this statute.) St. v. Wilson, 189 Mont. 52, 614 P.2d 1066, 37 St. Rep (1980). Policemen of Third-Class Cities Overtime Compensation: A 1971 decision of the Supreme Court held that policemen were professionals and exempt from the minimum wage and hour law (Title 39, ch. 3, part 4). As exempt employees they were not entitled to overtime pay. In 1973, the Legislature enacted which provided overtime pay for police officers of first- and second-class cities. Plaintiff, a police officer in a third-class city, argued that the 1973 enactment repealed the 1971 decision and that he was entitled to overtime pay. The court held that the 1973 enactment did not repeal the 1971 decision and since he was not within the class that the Legislature authorized the payment of overtime, he was not entitled to overtime. Dodd v. E. Helena, 180 Mont. 518, 591 P.2d 241, 36 St. Rep. 414 (1979). Dependent: Pope was not a dependent of Keefer even though he lived with Keefer and Keefer provided all of his support. The fair inference is that the support was given not because Pope was a dependent in any customary sense but in exchange for the work he performed. Pope is therefore not a person excluded under this section and is entitled to the minimum wage provided by (See 1999 amendment.) Pope v. Keefer, 180 Mont. 454, 591 P.2d 206, 36 St. Rep. 366 (1979). Handicapped Worker: A person who has an I.Q. of 80 but who is not so mentally impaired as to be unable to engage in competitive, gainful employment within a limited range of possibilities is not a handicapped worker within the meaning of this section. Such an individual is entitled to the minimum wage provided by Pope v. Keefer, 180 Mont. 454, 591 P.2d 206, 36 St. Rep. 366 (1979). Law Enforcement Officers: The Legislature intended to include policemen, firemen, and Deputy Sheriffs within the terms of "bona fide executives, administrative, or professional capacity" and exclude them from coverage of and Billings v. Smith, 158 Mont. 197, 490 P.2d 221 (1971). Attorney General

198 Opinions: Computation of Salaries, Longevity Payments, and Overtime for Sheriffs, Undersheriffs, and Deputy Sheriffs: Since no statutory right to compensation for overtime for Deputy Sheriffs and undersheriffs existed prior to enactment of in 1981, they are not entitled to a cash payment in lieu of compensatory time off for overtime hours worked before October 1, The enactment of was not expressly retroactive. 40 A.G. Op. 55 (1984). Chapter 603, L. 1981, amended and and enacted through Under Ch. 603, the following holdings were made: (1) an individual undersheriff or Deputy Sheriff is entitled to an initial longevity payment on his first employment anniversary occurring after October 1, 1981; (2) years of service prior to October 1, 1981, must be considered in determining the amount of longevity payments to Deputy Sheriffs and undersheriffs; (3) the "minimum base annual salary" for calculating longevity payments is the statutory minimum level for the county involved, as specified in ; (4) the "salary" of a Sheriff, for purposes of calculating the annual compensation of Deputy Sheriffs and undersheriffs, includes the additional $2,000 received by the Sheriff pursuant to ; and (5) the payment of overtime compensation to undersheriffs and Deputy Sheriffs is within the discretion of the individual Boards of County Commissioners. 39 A.G. Op. 21 (1981). Nevada SEASONAL AMUSEMENT OR RECREATIONAL (1) Definitions. (a) Seasonal Means seven (7) months or less. (b) Student One who is attending an accredited school, college or university and is employed on a part-time basis. (c) Amusement or Recreation Establishment Examples are the concessionaires at amusement parks, resorts and ski areas. (d) Amusement or Recreational area Example National Parks, Ski areas, Vacation resort areas. (e) Establishment Refers to a "distinct physical place of business" rather than to an entire business or enterprise which may include several separate places of business. (2) Seasonal Amusement or Recreational Establishment. An amusement or recreational establishment operating on a seasonal basis must comply with the provisions of Section MCA, but may qualify as an exempt establishment from the $2.00 under Section Section MCA apply to any students employed by an amusement or recreational establishment. For seasonal amusement or recreational establishments to be exempt from the minimum wage of $2.00 per hour specified in Section MCA they must meet all three of the following requirements. (a) The business or establishment in which the students are employed must be amusement or recreational. (b) The employee must be a student in an accredited school. (c) The operation of the establishment must be seasonal (seven (7) months or less). (3) Seasonal Amusement or Recreational area. Employers of students in an amusement or recreational area may qualify for a partial exemption from the overtime provisions of section (3) MCA. This exemption will allow the employer to employ the student employees for 48 hours in each workweek. In workweeks longer than 48 hours the student employee shall receive compensation for employment in excess of 48 hours in a workweek at a rate of not less than one and one half times the hourly wage rate at which he was employed. Establishments operating in an amusement or recreational area must meet all the following requirements in order to qualify for the partial exemption. (a) Must be in amusement or recreational area. (b) Employee must be student in an accredited school. (c) The establishment must be seasonal (seven (7) months or less). (d) Board and room must be furnished Maximum hours and overtime; Weekly or daily overtime; Time and a half for hours worked over 40 a week or eight hours a day; Exceptions 1. An employer shall pay one and onehalf times an employee's regular wage rate whenever an employee who receives compensation for employment at a rate less than one and one-half times the minimum rate prescribed pursuant to NRS works: (a) More than 40 hours in any scheduled week of work; or (b) More than 8 hours in any workday unless by mutual agreement the employee works a scheduled 10 hours per day for 4 calendar days within any scheduled week of work. 2. An employer shall pay one and one-half times an employee's regular wage rate whenever an employee who receives compensation for employment at a rate not less than one and one-half times the minimum rate prescribed pursuant to NRS works more than 40 hours in any scheduled week of work. 3. The provisions of subsections 1 and 2 do not apply to: (a) Employees who are not covered by the minimum wage provisions of NRS ; (b) Outside buyers; (c) Employees in a retail or service business if their regular rate is more than one and one-half times the minimum wage, and more than half their compensation for a representative period comes from commissions on goods or services, with the representative period being, to the extent allowed pursuant to federal law, not less than one month; (d) Employees who are employed in bona fide executive, administrative or professional capacities; (e) Employees covered by collective bargaining

199 agreements which provide otherwise for overtime; (f) Drivers, drivers' helpers, loaders and mechanics for motor carriers subject to the Motor Carrier Act of 1935, as amended; (g) Employees of a railroad; (h) Employees of a carrier by air; (i) Drivers or drivers' helpers making local deliveries and paid on a triprate basis or other delivery payment plan; (j) Drivers of taxicabs or limousines; (k) Agricultural employees; (l) Employees of business enterprises having a gross sales volume of less than $250,000 per year; and (m) Any salesman or mechanic primarily engaged in selling or servicing automobiles, trucks or farm equipment. (n) A mechanic or workman for any hours to which the provisions of subsection 3 or 4 of NRS apply. NRS Pay plan to set official rates applicable to all positions in classified service; overtime; workweek for certain firefighters; innovative workweeks; existing contracts of employment. 1. The Legislature declares that since uniform salary and wage rates and classifications are necessary for an effective and efficient personnel system, the pay plan must set the official rates applicable to all positions in the classified service, but the establishment of the pay plan in no way limits the authority of the Legislature relative to budgeted appropriations for salary and wage expenditures. 2. Credit for overtime work directed or approved by the head of an agency or his representative must be earned at the rate of time and one-half, except for those employees described in NRS Except as otherwise provided in subsections 4, 6, 7 and 9, overtime is considered time worked in excess of: (a) Eight hours in 1 calendar day; (b) Eight hours in any 16-hour period; or (c) A 40-hour week. 4. Firefighters who choose and are approved for a 24-hour shift shall be deemed to work an average of 56 hours per week and 2,912 hours per year, regardless of the actual number of hours worked or on paid leave during any biweekly pay period. A firefighter so assigned is entitled to receive 1/26 of his annual salary for each biweekly pay period. In addition, overtime must be considered time worked in excess of: (a) Twentyfour hours in one scheduled shift; or (b) Fifty-three hours average per week during one work period for those hours worked or on paid leave. (The appointing authority shall designate annually the length of the work period to be used in determining the work schedules for such firefighters. In addition to the regular amount paid such a firefighter for the deemed average of 56 hours per week, he is entitled to payment for the hours which comprise the difference between the 56-hour average and the overtime threshold of 53 hours average at a rate which will result in the equivalent of overtime payment for those hours. 5. The Commission shall adopt regulations to carry out the provisions of subsection For employees who choose and are approved for a variable workday, overtime will be considered only after working 40 hours in 1 week. 7. Employees who are eligible under the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., to work a variable 80-hour work schedule within a biweekly pay period and who choose and are approved for such a work schedule will be considered eligible for overtime only after working 80 hours biweekly, except those eligible employees who are approved for overtime in excess of one scheduled shift of 8 or more hours per day. 8. An agency may experiment with innovative workweeks upon the approval of the head of the agency and after majority consent of the affected employees. The affected employees are eligible for overtime only after working 40 hours in a workweek. 9. This section does not supersede or conflict with existing contracts of employment for employees hired to work 24 hours a day in a home setting. Any future classification in which an employee will be required to work 24 hours a day in a home setting must be approved in advance by the Commission. 10. All overtime must be approved in advance by the appointing authority or his designee. No officer or employee, other than a director of a department or the chairman of a board, commission or similar body, may authorize overtime for himself. The chairman of a board, commission or similar body must approve in advance all overtime worked by members of the board, commission or similar body. 11. The Budget Division of the Department of Administration shall review all overtime worked by employees of the Executive Department to ensure that overtime is held to a minimum. The Budget Division shall report quarterly to the State Board of Examiners the amount of overtime worked in the quarter within the various agencies of the State. Sec. 16. Minimum wage rate for employers who provide health benefits; Minimum wage rate for employers who do not provide a qualified health insurance plan; Annual adjustments based on cost-of-living increases; No tip credits allowed; Collective bargaining agreements; Violations; Employee protections; Employee and Employer defined; Severability A. Each employer shall pay a wage to each employee of not less than the hourly rates set forth in this section. The rate

200 New Hampshire shall be five dollars and fifteen cents ($5.15) per hour worked, if the employer provides health benefits as described herein, or six dollars and fifteen cents (6.15) per hour if the employer does not provide such benefits. Offering health benefits within the meaning of this section shall consist of making health insurance available to the employee for the employee and the employee's dependents at a total cost to the employee for premiums of not more than 10 percent of the employee's gross taxable income from the employer. These rates of wages shall be adjusted by the amount of increases in the federal minimum wage over $5.15 per hour, or, if greater, by the cumulative increase in the cost of living. The cost of living increase shall be measured by the percentage increase as of December 31 in any year over the level as of December 31, 2004 of the Consumer Price Index (All Urban Consumers, U.S. City Average) as published by the Bureau of Labor Statistics, U.S. Department of Labor or the successor index or federal agency. No CPI adjustment for any one-year period may be greater than 3%. The Governor or the State agency designated by the Governor shall publish a bulletin by April 1 of each year announcing the adjusted rates, which shall take effect the following July 1. Such bulletin will be made available to all employers and to any other person who has filed with the Governor or the designated agency a request to receive such notice by lack of notice shall not excuse noncompliance with this section. An employer shall provide written notification of the rate adjustments to each of its employees and make the necessary payroll adjustments by July 1 following the publication of the bulletin. Tips or gratuities received by employees shall not be credited as being any part of or offset against the wage rates required by this section. B. The provision of this section may not be waived by agreement between an individual employee and an employer. All of the provisions of this section, or any part hereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute, or be permitted, as a waiver of all or any part of the provisions of this section. An employer shall not discharge, reduce the compensation of or otherwise discriminate against any employee for using any civil remedies to enforce this section or otherwise asserting his or her rights under this section. An employee claiming violation of this section may bring an action against his or her employer in the courts of this State to enforce the provisions of this section and shall be entitled to all remedies available under the law or in equity appropriate to remedy any violation of this section, including but not limited to back pay, damages, reinstatement or injunctive relief. An employee who prevails in any action to enforce this section shall be awarded his or her reasonable attorney's fees and costs. C. As used in this section, "employee" means any person who is employed by an employer as defined herein but does not include an employee who is under eighteen (18) years of age, employed by a nonprofit organization for after school or summer employment or as a trainee for a period not longer than ninety (90) days. "Employer" means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts of employment. D. If any provision of this section is declared illegal, invalid or inoperative, in whole or in part, by the final decision of any court of competent jurisdiction, the remaining provisions and all portions not declared illegal, invalid or inoperative shall remain in full force or effect, and no such determination shall invalidate the remaining section or portions of the sections of this section. [Sec. 16 is added to Article 15 of the Constitution of the State of Nevada, by Ballot Measure 6, as approved by voters in the November 2006 General Election, eff. 11/28/ :21 Minimum Hourly Rate. Unless otherwise provided by statute, no person, firm, or corporation shall employ any employee at an hourly rate lower than that set forth in the federal minimum wage law, as amended, or as follows, whichever is higher: Date Hourly Rate On and after September 1, 1997 $5.15 On and after September 1, 2007 $6.50 On and after September 1, 2008 $7.25 Tipped employees of a restaurant, hotel, motel, inn or cabin, who customarily and regularly receive more than $30 a month in tips directly from the customers will receive a base rate from the employer of not less than 45 percent of the applicable minimum wage. If an employee shows to the satisfaction of the commissioner that the actual amount of wages received at the end of each pay period did not equal the minimum wage for all hours worked, the employer shall pay the employee the difference to guarantee the applicable minimum wage. The limitations imposed hereby shall be subject to the following exceptions: I. These limitations shall not apply to employees engaged in household labor, domestic labor, farm labor, nor to outside salesmen, nor to employees of summer camps for minors. II. These limitations shall not apply to employees engaged as newsboys, non-professional ski patrolmen or

201 New Jersey golf caddies. III. [Repealed.] IV. These limitations shall not apply to a person with less than 6 months' experience in an occupation; provided, however, such person shall not be paid less than 75 percent of applicable statutory minimum wage in an occupation, after application is filed by the employer with the labor commissioner within 10 days after hire. V. These limitations shall not apply to a person 16 years of age or under; provided, however, such person shall not be paid less than 75 percent of applicable statutory minimum wage rate and evidence of such person is kept on file by the employer. VI, VII. [Repealed.] VIII. Those employees covered by the introductory paragraph of this section, with the following exceptions, shall, in addition to their regular compensation, be paid at the rate of time and one-half for all time worked in excess of 40 hours in any one week: (a) Any employee employed by an amusement, seasonal, or recreational establishment if: (1) It does not operate for more than 7 months in any calendar year; or (2) During the preceding calendar year, its average receipts for any 6 months of such year were not more than 33-1/3 percent of its average receipts for the other 6 months of such year. In order to meet the requirements of this subparagraph, the establishment in the previous year shall have received at least 75 percent of its income within 6 months. The 6 months, however, need not be 6 consecutive months. (b) Any employee of employers covered under the provisions of the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. section 201, et seq.); provided however, employers that pay any delivery drivers or sales merchandisers an overtime rate of compensation for hours worked in excess of 40 hours in any one week shall not calculate such overtime rate of compensation by the fluctuating workweek method of overtime payment under 29 C.F.R. section :11-56a4 Minimum wage rate; exemptions. Every employer shall pay to each of his employees wages at a rate of not less than $5.05 per hour as of April 1, 1992 and, after January 1, 1999 the federal minimum hourly wage rate set by section 6(a)(1) of the federal "Fair Labor Standards Act of 1938" (29 U.S.C. 206(a)(1)), and, as of October 1, 2005, $6.15 per hour, and as of October 1, 2006, $7.15 per hour for 40 hours of working time in any week and 1 1/2 times such employee's regular hourly wage for each hour of working time in excess of 40 hours in any week, except this overtime rate shall not include any individual employed in a bona fide executive, administrative, or professional capacity or, if an applicable wage order has been issued by the commissioner under section 17 (C. 34:11-56a16) of this act, not less than the wages prescribed in said order. The wage rates fixed in this section shall not be applicable to part-time employees primarily engaged in the care and tending of children in the home of the employer, to persons under the age of 18 not possessing a special vocational school graduate permit issued pursuant to section 15 of P.L. 1940, c. 153 (C. 34: ), or to persons employed as salesmen of motor vehicles, or to persons employed as outside salesmen as such terms shall be defined and delimited in regulations adopted by the commissioner, or to persons employed in a volunteer capacity and receiving only incidental benefits at a county or other agricultural fair by a nonprofit or religious corporation or a nonprofit or religious association which conducts or participates in that fair. The provisions of this section for the payment to an employee of not less than 1 1/2 times such employee's regular hourly rate for each hour of working time in excess of 40 hours in any week shall not apply to employees engaged to labor on a farm or employed in a hotel or to an employee of a common carrier of passengers by motor bus or to a limousine driver who is an employee of an employer engaged in the business of operating limousines or to employees engaged in labor relative to the raising or care of livestock. Employees engaged on a piece-rate or regular hourly rate basis to labor on a farm shall be paid for each day worked not less than the minimum hourly wage rate multiplied by the total number of hours worked. Full-time students may be employed by the college or university at which they are enrolled at not less than 85% of the effective minimum wage rate. Notwithstanding the provisions of this section to the contrary, every trucking industry employer shall pay to all drivers, helpers, loaders and mechanics for whom the Secretary of Transportation may prescribe maximum hours of work for the safe operation of vehicles, pursuant to section 31502(b) of the federal Motor Carrier Act, 49 U.S.C (b), an overtime rate not less than 1 1/2 times the minimum wage required pursuant to this section and N.J.A.C. 12: Employees engaged in the trucking industry shall be paid no less than the minimum wage rate as provided in this section and N.J.A.C. 12: As used in this section, "trucking industry employer" means any business or establishment primarily operating for the purpose of conveying property from one place to another by road or highway, including the storage and warehousing of goods and property. Such an employer shall also be subject to the jurisdiction of the Secretary of Transportation pursuant to the federal Motor Carrier Act, 49 U.S.C et seq., whose employees are exempt under section 213(b)(1) of the federal "Fair Labor Standards Act of 1938," 29

202 U.S.C. 213(b)(1), which provides an exemption to employees regulated by section 207 of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. 207, and the Interstate Commerce Act, 49 U.S.C. 501 et al. The provisions of this section shall not be construed as prohibiting any political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing any standard for vendors, contractors and subcontractors of the subdivision regarding wage rates or overtime compensation which is higher than the standards provided for in this section, and no provision of any other State or federal law establishing a minimum standard regarding wages or other terms and conditions of employment shall be construed as preventing a political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing a standard for vendors, contractors and subcontractors of the subdivision which is higher than the State or federal law or which otherwise provides greater protections or rights to employees of the vendors, contractors and subcontractors of the subdivision, unless the State or federal law expressly prohibits the subdivision from adopting the ordinance, resolution, regulation or rule, or entering into the agreement. 34:11-56a4 Minimum wage rate; exemptions. Every employer shall pay to each of his employees wages at a rate of not less than $5.05 per hour as of April 1, 1992 and, after January 1, 1999 the federal minimum hourly wage rate set by section 6(a)(1) of the federal "Fair Labor Standards Act of 1938" (29 U.S.C. 206(a)(1)), and, as of October 1, 2005, $6.15 per hour, and as of October 1, 2006, $7.15 per hour for 40 hours of working time in any week and 1 1/2 times such employee's regular hourly wage for each hour of working time in excess of 40 hours in any week, except this overtime rate shall not include any individual employed in a bona fide executive, administrative, or professional capacity or, if an applicable wage order has been issued by the commissioner under section 17 (C. 34:11-56a16) of this act, not less than the wages prescribed in said order. The wage rates fixed in this section shall not be applicable to part-time employees primarily engaged in the care and tending of children in the home of the employer, to persons under the age of 18 not possessing a special vocational school graduate permit issued pursuant to section 15 of P.L. 1940, c. 153 (C. 34: ), or to persons employed as salesmen of motor vehicles, or to persons employed as outside salesmen as such terms shall be defined and delimited in regulations adopted by the commissioner, or to persons employed in a volunteer capacity and receiving only incidental benefits at a county or other agricultural fair by a nonprofit or religious corporation or a nonprofit or religious association which conducts or participates in that fair. The provisions of this section for the payment to an employee of not less than 1 1/2 times such employee's regular hourly rate for each hour of working time in excess of 40 hours in any week shall not apply to employees engaged to labor on a farm or employed in a hotel or to an employee of a common carrier of passengers by motor bus or to a limousine driver who is an employee of an employer engaged in the business of operating limousines or to employees engaged in labor relative to the raising or care of livestock. Employees engaged on a piece-rate or regular hourly rate basis to labor on a farm shall be paid for each day worked not less than the minimum hourly wage rate multiplied by the total number of hours worked. Full-time students may be employed by the college or university at which they are enrolled at not less than 85% of the effective minimum wage rate. Notwithstanding the provisions of this section to the contrary, every trucking industry employer shall pay to all drivers, helpers, loaders and mechanics for whom the Secretary of Transportation may prescribe maximum hours of work for the safe operation of vehicles, pursuant to section 31502(b) of the federal Motor Carrier Act, 49 U.S.C (b), an overtime rate not less than 1 1/2 times the minimum wage required pursuant to this section and N.J.A.C. 12: Employees engaged in the trucking industry shall be paid no less than the minimum wage rate as provided in this section and N.J.A.C. 12: As used in this section, "trucking industry employer" means any business or establishment primarily operating for the purpose of conveying property from one place to another by road or highway, including the storage and warehousing of goods and property. Such an employer shall also be subject to the jurisdiction of the Secretary of Transportation pursuant to the federal Motor Carrier Act, 49 U.S.C et seq., whose employees are exempt under section 213(b)(1) of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. 213(b)(1), which provides an exemption to employees regulated by section 207 of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. 207, and the Interstate Commerce Act, 49 U.S.C. 501 et al. The provisions of this section shall not be construed as prohibiting any political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing any standard for vendors, contractors and subcontractors of the subdivision regarding wage rates or overtime compensation which is higher than the standards provided for in this section, and no

203 provision of any other State or federal law establishing a minimum standard regarding wages or other terms and conditions of employment shall be construed as preventing a political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing a standard for vendors, contractors and subcontractors of the subdivision which is higher than the State or federal law or which otherwise provides greater protections or rights to employees of the vendors, contractors and subcontractors of the subdivision, unless the State or federal law expressly prohibits the subdivision from adopting the ordinance, resolution, regulation or rule, or entering into the agreement. 12: Workweek hours (a) Covered employees shall be paid 1 1/2 times the regular hourly wage for each hour of working time in excess of 40 hours in any workweek. (b) There is no requirement that an employee be paid premium overtime compensation for hours in excess of eight hours per day, nor for work on Saturdays, Sundays, holidays or regular days of rest, other than the required overtime for over 40 hours per week; provided, however, nothing shall relieve an employer of any obligation he or she may have assumed by contract or of any obligation imposed by other State or Federal law limiting overtime hours of work or to pay premium rates for work which are in excess of the minimum required by this chapter. 12: Actual wage basis Covered employees shall be entitled to overtime pay based upon their actual wages and not the specified minimum wages. 34:11-56a26. Protection of right to collective bargaining Nothing in this act shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively through representatives of their own choosing in order to establish wages in excess of the applicable minima under this act. 12: Overtime rates Overtime at 1 times regular hourly rate shall be paid to those engaged in first processing of farm products occupations for all hours worked in excess of 40 in a week. 12: Overtime rates Overtime at 1-1/2 times the regular hourly wage rate shall be paid for all hours worked in excess of 40 hours in any week. 12: Overtime rates (a) Overtime at 1 1/2 times the regular hourly wage shall be paid for all hours worked in excess of 40 hours in any week. 1. The minimum overtime rate for those covered by the overtime provision is $5.70 on May 3, 1990, $6.38 on April 1, 1991, and $7.58 on April 1, If the employee's regular hourly wage rate is more than the minimum per hour, then the overtime rate is 1-1/2 times the employee's regular rate. 3. Food and lodging supplied to employees shall not be included in wages for those hours worked in excess of 40 hours per week. Gratuities shall not be counted toward the premium part of the overtime. The additional halftime must be in cash. 12: Overtime rates (a) Overtime shall be paid at 1 1/2 times the regular hourly wage rate to all nonexempt employees for all hours worked in excess of 40 hours in a week except rescheduled time off for overtime shall be permitted to air carrier employees where: 1. The employee so requests; 2. The employer determines that the workload demands permit the employee's absence; or 3. The rescheduled time off is taken within specified periods. 12: Scope This subchapter shall apply to the minimum wage rates paid to all minors engaged in mercantile occupations, irrespective of the nature of the business of the employer or the location of the place where the work is being performed. 12: Scope This subchapter shall apply to the minimum wage rates paid to all minors engaged in beauty culture occupations, irrespective of the nature of the business of the employer or the location of the place where the work is being performed. 12: Scope This subchapter shall apply to the minimum wage rate paid to all minors engaged in laundry, cleaning and dyeing occupations, irrespective of the nature of the business of the employer or the location of the place where the work is being performed. 12: Scope This subchapter shall apply to the minimum wage rates paid to all minors engaged in light manufacturing and apparel occupations regardless of the nature of the business of the employer or the location of the place where the work is being performed. 34:11-56a34 Acceptance by employee of overtime shall be voluntary; exception for emergent

204 circumstances a. Notwithstanding any provision of law to the contrary, no health care facility shall require an employee to accept work in excess of an agreed to, predetermined and regularly scheduled daily work shift, not to exceed 40 hours per week. b. The acceptance by any employee of such work in excess of an agreed to, predetermined and regularly scheduled daily work shift, not to exceed 40 hours per week, shall be strictly voluntary and the refusal of any employee to accept such overtime work shall not be grounds for discrimination, dismissal, discharge or any other penalty or employment decision adverse to the employee. c. The provisions of this section shall not apply in the case of an unforeseeable emergent circumstance when: (1)the overtime is required only as a last resort and is not used to fill vacancies resulting from chronic short staffing, and (2) the employer has exhausted reasonable efforts to obtain staffing. In the event of such an unforeseeable emergent circumstance, the employer shall provide the employee with necessary time, up to a maximum of one hour, to arrange for the care of the employee's minor children or elderly or disabled family members. The requirement that the employer shall exhaust reasonable efforts to obtain staffing shall not apply in the event of any declared national, State or municipal emergency or a disaster or other catastrophic event which substantially affects or increases the need for health care services. d. In the event that an employer requires an employee to work overtime pursuant to subsection c. of this section, the employer shall document in writing the reasonable efforts it has exhausted. The documentation shall be made available for review by the Department of Health and Senior Services and the Department of Labor. 34:11-56a32 Definitions relative to work hours for certain health care facility employees. 2. As used in this act: "Employee" means an individual employed by a health care facility who is involved in direct patient care activities or clinical services and who receives an hourly wage, but shall not include a physician. "Employer" means an individual, partnership, association, corporation or person or group of persons acting directly or indirectly in the interest of a health care facility. "Health care facility" means a health care facility licensed by the Department of Health and Senior Services pursuant to P.L. 1971, c. 136 (C. 26:2H-1 et seq.), a State or county psychiatric hospital, a State developmental center, or a health care service firm registered by the Division of Consumer Affairs in the Department of Law and Public Safety pursuant to P.L. 1960, c. 39 (C. 56:8-1 et seq.). "On-call time" means time spent by an employee who is not currently working on the premises of the place of employment, but who is compensated for availability, or as a condition of employment has agreed to be available, to return to the premises of the place of employment on short notice if the need arises. "Reasonable efforts" means that the employer shall: a. seek persons who volunteer to work extra time from all available qualified staff who are working at the time of the unforeseeable emergent circumstance; b. contact all qualified employees who have made themselves available to work extra time; c. seek the use of per diem staff; and d. seek personnel from a contracted temporary agency when such staff is permitted by law or regulation. "Unforeseeable emergent circumstance" means an unpredictable or unavoidable occurrence at unscheduled intervals relating to health care delivery that requires immediate action. 34:11-56a4 Minimum wage rate; exemptions. Every employer shall pay to each of his employees wages at a rate of not less than $5.05 per hour as of April 1, 1992 and, after January 1, 1999 the federal minimum hourly wage rate set by section 6(a)(1) of the federal "Fair Labor Standards Act of 1938" (29 U.S.C. 206(a)(1)), and, as of October 1, 2005, $6.15 per hour, and as of October 1, 2006, $7.15 per hour for 40 hours of working time in any week and 1 1/2 times such employee's regular hourly wage for each hour of working time in excess of 40 hours in any week, except this overtime rate shall not include any individual employed in a bona fide executive, administrative, or professional capacity or, if an applicable wage order has been issued by the commissioner under section 17 (C. 34:11-56a16) of this act, not less than the wages prescribed in said order. The wage rates fixed in this section shall not be applicable to part-time employees primarily engaged in the care and tending of children in the home of the employer, to persons under the age of 18 not possessing a special vocational school graduate permit issued pursuant to section 15 of P.L. 1940, c. 153 (C. 34: ), or to persons employed as salesmen of motor vehicles, or to persons employed as outside salesmen as such terms shall be defined and delimited in regulations adopted by the commissioner, or to persons employed in a volunteer capacity and receiving only incidental benefits at a county or other agricultural fair by a nonprofit or religious corporation or a nonprofit or religious association which conducts or participates in that fair. The provisions of this section for the payment to an employee of not less than 1 1/2 times such employee's regular hourly rate for each hour of working time in excess of 40 hours in any week shall not apply to

205 New Mexico employees engaged to labor on a farm or employed in a hotel or to an employee of a common carrier of passengers by motor bus or to a limousine driver who is an employee of an employer engaged in the business of operating limousines or to employees engaged in labor relative to the raising or care of livestock. Employees engaged on a piece-rate or regular hourly rate basis to labor on a farm shall be paid for each day worked not less than the minimum hourly wage rate multiplied by the total number of hours worked. Full-time students may be employed by the college or university at which they are enrolled at not less than 85% of the effective minimum wage rate. Notwithstanding the provisions of this section to the contrary, every trucking industry employer shall pay to all drivers, helpers, loaders and mechanics for whom the Secretary of Transportation may prescribe maximum hours of work for the safe operation of vehicles, pursuant to section 31502(b) of the federal Motor Carrier Act, 49 U.S.C (b), an overtime rate not less than 1 1/2 times the minimum wage required pursuant to this section and N.J.A.C. 12: Employees engaged in the trucking industry shall be paid no less than the minimum wage rate as provided in this section and N.J.A.C. 12: As used in this section, "trucking industry employer" means any business or establishment primarily operating for the purpose of conveying property from one place to another by road or highway, including the storage and warehousing of goods and property. Such an employer shall also be subject to the jurisdiction of the Secretary of Transportation pursuant to the federal Motor Carrier Act, 49 U.S.C et seq., whose employees are exempt under section 213(b)(1) of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. 213(b)(1), which provides an exemption to employees regulated by section 207 of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. 207, and the Interstate Commerce Act, 49 U.S.C. 501 et al. The provisions of this section shall not be construed as prohibiting any political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing any standard for vendors, contractors and subcontractors of the subdivision regarding wage rates or overtime compensation which is higher than the standards provided for in this section, and no provision of any other State or federal law establishing a minimum standard regarding wages or other terms and conditions of employment shall be construed as preventing a political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing a standard for vendors, contractors and subcontractors of the subdivision which is higher than the State or federal law or which otherwise provides greater protections or rights to employees of the vendors, contractors and subcontractors of the subdivision, unless the State or federal law expressly prohibits the subdivision from adopting the ordinance, resolution, regulation or rule, or entering into the agreement. 11A:6-24. Hours of work, overtime and holiday pay. State employees in the career, senior executive and unclassified services in titles or circumstances designated by the Civil Service Commission shall be eligible for overtime compensation and holiday pay. Overtime compensation and holiday pay shall be either cash compensation at a rate representing 1 1/2 times the employee's hourly rate of base salary or compensatory time off at a rate of 1 1/2 hours for each hour worked beyond the regular workweek, at the discretion of the department head, with the approval of the commission. The commission shall adopt rules for the implementation of hours of work, overtime compensation and holiday pay programs, which shall include but need not be limited to application and eligibility procedures Minimum wages. A. An employer shall pay an employee the minimum wage rate of six dollars fifty cents ($6.50) an hour. As of January 1, 2009, an employer shall pay the minimum wage rate of seven dollars fifty cents ($7.50) an hour. B. An employer furnishing food, utilities, supplies or housing to an employee who is engaged in agriculture may deduct the reasonable value of such furnished items from any wages due to the employee. C. An employee who customarily and regularly receives more than thirty dollars ($30.00) a month in tips shall be paid a minimum hourly wage of two dollars thirteen cents ($2.13). The employer may consider tips as part of wages, but the tips combined with the employer's cash wage shall not equal less than the minimum wage rate as provided in Subsection A of this section. All tips received by such employees shall be retained by the employee, except that nothing in this section shall prohibit the pooling of tips among employees. D. An employee shall not be required to work more than forty hours in any week of seven days, unless the employee is paid one and one-half times the employee's regular hourly rate of pay for all hours worked in excess of forty hours. For an employee who is paid a fixed salary for fluctuating hours and who is employed by an employer a majority of whose business in New Mexico consists of providing investigative services to the federal government, the hourly rate may be calculated in accordance with the provisions of the

206 federal Fair Labor Standards Act of 1938 and the regulations pursuant to that act; provided that in no case shall the hourly rate be less than the federal minimum wage Overtime requirements; Exempt employers; Employers of workers engaged in ginning of cotton; Agricultural employers; Airlines; Trading of work shifts among airline employees A. An employer of workers engaged in the ginning of cotton for market, in a place of employment located within a county where cotton is grown in commercial quantities, is exempt from the overtime provisions of Subsection D of Section NMSA 1978 if each employee is employed for a period of not more than fourteen weeks in the aggregate in a calendar year. B. An employer of workers engaged in agriculture is exempt from the overtime provisions set forth in Subsection D of Section NMSA As used in this subsection, agriculture has the meaning used in Section 203 of the federal Fair Labor Standards Act of C. An employer is exempt from the overtime provisions set forth in Subsection D of Section NMSA 1978 if the hours worked in excess of forty hours in a week of seven days are: (1) worked by an employee of an air carrier providing scheduled passenger air transportation subject to Subchapter II of the federal Railway Labor Act or the air carrier's subsidiary that is subject to Subchapter II of the federal Railway Labor Act; (2) not required by the employer; and (3) arranged through a voluntary agreement among employees to trade scheduled work shifts; provided that the agreement shall: (a) be in writing; (b) be signed by the employees involved in the agreement; (c) include a requirement that an employee who trades a scheduled work shift is responsible for working the shift so agreed to as part of the employee's regular work schedule; and (d) not require an employee to work more than: 1) thirteen consecutive days; 2) sixteen hours in a single work day; 3) sixty hours within a single work week; or 4) can be required as provided in a collective bargaining agreement to which the employee is subject. New York Sec Overtime requirements; Exempt employers; Employers of workers engaged in ginning of cotton; Agricultural employers (Eff. 7/1/2015) A. An employer of workers engaged in the ginning of cotton for market, in a place of employment located within a county where cotton is grown in commercial quantities is exempt from the overtime provisions of Subsection D of Section NMSA 1978 if each employee is employed for a period of not more than fourteen weeks in the aggregate in a calendar year. B. An employer of workers engaged in agriculture is exempt from the overtime provisions set forth in Subsection D of Section NMSA As used in this subsection, agriculture has the meaning used in Section 203 of the federal Fair Labor Standards Act Right of collective bargaining. Nothing in this act shall be deemed to interfere with, impede or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum under the provisions of this act Daily maximum hours of employment; exceptions. A. No employee other than a fireman, law enforcement officer or farm or ranch hand whose duties require them to work longer hours, or employees primarily in a stand-by position, shall be required to work for any employer within the state more than sixteen hours in any one day of twenty-four hours except in emergency situations. B. Any person violating any of the provisions of this act shall be guilty of a misdemeanor Any person or persons, firm, association or corporation, owning any hotel, restaurant, cafe or eating house within this state, shall not be allowed to cause any male employee therein to labor more than ten hours in any twenty-four hours of any one day, nor more than seventy hours in any one week of seven days. The hours of labor may be so arraigned so as to permit the employment of any male employee so engaged at any time so that they shall not work more than ten hours in any twenty-four hours of any one day, nor more than seventy hours in any one week of seven days Nothing in Section 3 of this act, shall be construed so as to prevent work in excess of ten hours per day in emergency cases; provided that in no one week of seven days shall there be permitted more than seventy-four hours of labor, and provided that work in excess of seventy hours of labor in any one week of seven days, shall be paid for on the basis of time and one-half for such excess. 12 NYCRR Basic minimum hourly wage rate and allowances. (a) The basic minimum hourly wage rate shall be: (1) $5.15 per hour on and after March 31, 2000; (2) $6.00 per hour on and after January 1, 2005; (3) $6.75 per hour on and after January 1, 2006; (4) $7.15 per hour on and after

207 January 1, 2007; (5) $7.25 per hour on and after July 24, 2009, or, if greater, such other wage as may be established by Federal law pursuant to 29 U.S.C. section 206 or its successors. (b) The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. However, a residential employee one who lives on the premises of the employer shall not be deemed to be permitted to work or required to be available for work: (1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment. 12 NYCRR Basic minimum hourly wage rate. (a) The basic minimum hourly wage rate shall be: (1) $5.15 per hour on and after March 31, 2000; (2) $6.00 per hour on and after January 1, 2005; (3) $6.75 per hour on and after January 1, 2006; (4) $7.15 per hour on and after January 1, 2007; (5) $7.25 per hour on and after July 24, 2009, or, if greater, such other wage as may be established by Federal law pursuant to 29 U.S.C. section 206 or its successors. (b) The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. However, a residential employee one who lives on the premises of the employer shall not be deemed to be permitted to work or required to be available for work: (1) during his or her normal sleeping hours solely because such employee is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment. Sec. 232.Overtime. An employee, employed by a contractor, who works more than eight hours in any one day or more than forty hours in any workweek shall be paid wages for such overtime at a rate not less than one-and-one-half times his prevailing basic cash hourly rate. 230 Lab. Definitions. As used in this article: 1. "Building service employee" or "employee" means any person performing work in connection with the care or maintenance of an existing building, or in connection with the transportation of office furniture or equipment to or from such building, or in connection with the transportation and delivery of fossil fuel to such building, for a contractor under a contract with a public agency which is in excess of one thousand five hundred dollars and the principal purpose of which is to furnish services through the use of building service employees. "Building service employee" or "employee" includes, but is not limited, to, watchman, guard, doorman, building cleaner, porter, handyman, janitor, gardener, groundskeeper, stationary fireman, elevator operator and starter, window cleaner, and occupations relating to the collection of garbage or refuse, and to the transportation of office furniture and equipment, and to the transportation and delivery of fossil fuel but does not include clerical, sales, professional, technician and related occupations. "Building service employee" or "employee" also does not include any employee to whom the provisions of articles eight and eight-a of this chapter are applicable. 2. "Building service work" or "service work" means work performed by a building service employee, but does not include work performed for a contractor under a contract for the furnishing of services by radio, telephone, telegraph or cable companies; and any contract for public utility services, including electric light and power, water, steam and gas. 3. "Public agency" means the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education. 4.[fn*] "Contractor" means any employer who employs employees to perform building service work under a contract with a public agency and shall include any of the contractor's subcontractors. [fn*] NB Effective until 2012/10/27, pursuant to Laws 2007, ch. 678, Sec. 5 4.[fn*] "Contractor" means any employer who employs employees to perform building service work under a contract with a public agency, and shall include any of his subcontractors. [fn*] NB Effective 2012/10/27, pursuant to Laws 2007, ch. 678, Sec "Wage" includes: (a) basic hourly cash rate of pay; and (b) supplements. The term "supplements" means fringe benefits including medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise required by federal, state or local law to be provided by the contractor or subcontractor. 6. "Prevailing wage" means the wage determined by the fiscal officer to be prevailing for the various classes of building service employees in the locality. In no event shall the basic hourly cash rate of pay be less than the statutory minimum wage established by article nineteen of this chapter, or, in a city with

208 a local law requiring a higher minimum wage on city contract work, less than the minimum wage specified in such local law. 7. "Locality" means the state, a town, city, village or other civil division or area of the state as determined by the fiscal officer. The fiscal officer may fix a different geographic area in determining the locality for the prevailing basic hourly cash rate of pay and the locality for prevailing supplements. 8. "Fiscal officer" means the industrial commissioner, except for building service work performed by or on behalf of a city, in which case "fiscal officer" means the comptroller or other analogous officer of such city. 9. "Fossil fuel" shall mean coal, petroleum products and fuel gases. "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel gases" shall include but not be limited to methane, natural gas, liquefied natural gas and manufactured fuel gases. "Petroleum products" shall include all products refined or rerefined from synthetic or crude oil or oil extracted from other sources, including natural gas liquids. Provided that nothing in this subdivision shall affect the exclusion for public utility services set forth in subdivision two of this section. 10. "Substantially-owned affiliated entity" shall mean the parent company of the contractor or subcontractor, any subsidiary of the contractor or subcontractor, or any entity in which the parent of the contractor or subcontractor owns more than fifty percent of the voting stock, or an entity in which one or more of the top five shareholders of the contractor or subcontractor individually or collectively also owns a controlling share of the voting stock, or an entity which exhibits any other indicia of control over the contractor or subcontractor or over which the contractor or subcontractor exhibits control, regardless of whether or not the controlling party or parties have any identifiable or documented ownership interest. Such indicia shall include: power or responsibility over employment decisions, access to and/or use of the relevant entity's assets or equipment, power or responsibility over contracts of the entity, responsibility for maintenance or submission of certified payroll records, and influence over the business decisions of the relevant entity. 11. "Entity" shall mean a partnership, association, joint venture, company, sole proprietorship, corporation or any other form of doing business. 12. "Parent company" shall mean an entity that directly controls the contractor or subcontractor. 13. "Subsidiary" shall mean an entity that is controlled directly, or indirectly through one or more intermediaries, by a contractor or subcontractor or the contractor's parent company. 14. "Successor" shall mean an entity engaged in work substantially similar to that of the predecessor, where there is substantial continuity of operation with that of the predecessor. NYCRR Application. Every employer in the building service industry shall pay to each employee, as defined herein, not less than the minimum wage rates provided in this Part. 12 NYCRR Application Every employer in the restaurant industry shall pay to each employee, as defined in this Part, not less than the minimum wage rates provided in this Part. 12 NYCRR Basic minimum hourly wage rate and tip allowances all-year and resort hotels. (a) Basic minimum hourly wage rate. (1) $5.15 per hour on and after March 31, 2000; (2) $6.00 per hour on and after January 1, 2005; (3) $6.75 per hour on and after January 1, 2006; (4) $7.15 per hour on and after January 1, 2007; (5) $7.25 per hour on and after July 24, 2009; or, if greater, such other wage as may be established by Federal law pursuant to 29 U.S.C. section 206 or any successor provisions. (b) Tip allowance for service employees. (1) On and after March 31, 2000, allowance for tips shall not exceed $1.15 an hour for an employee whose weekly average of tips received is between $1.15 and $1.65 per hour and shall not exceed $1.65 per hour for an employee whose weekly average of tips received is $1.65 per hour or more. FOR RESORT HOTELS ONLY, the allowance for tips shall not exceed $2.05 per hour for an employee whose weekly average of tips received exceeds $2.90 per hour. (2) On and after January 1, 2005, allowance for tips shall not exceed $1.35 an hour for an employee whose weekly average of tips received is between $1.35 and $1.90 per hour and shall not exceed $1.90 per hour for an employee whose weekly average of tips received is $1.90 per hour or more. FOR RESORT HOTELS ONLY, the allowance for tips shall not exceed $2.40 per hour for an employee whose weekly average of tips received exceeds $3.40 per hour. (3) On and after January 1, 2006, allowance for tips shall not exceed $1.50 an hour for an employee whose weekly average of tips received is between $1.50 and $2.15 per hour and shall not exceed $2.15 per hour for an employee whose weekly average of tips received is $2.15 per hour or more. FOR RESORT HOTELS ONLY, the allowance for tips shall not exceed $2.70 per hour for an employee whose weekly average of tips received exceeds $3.80 per hour. (4) On and after January 1, 2007 allowance for tips shall not exceed $1.60 an hour for an employee whose weekly average of tips received is between $1.60 and $2.30 per

209 hour and shall not exceed $2.30 per hour for an employee whose weekly average of tips received is $2.30 per hour or more. FOR RESORT HOTELS ONLY, the allowance for tips shall not exceed $2.85 per hour for an employee whose weekly average of tips received exceeds $4.05 per hour. (5) On and after July 24, 2009, allowance for tips shall not exceed $1.60 per hour for an employee whose weekly average of tips received is between $1.60 and $2.35 per hour and shall not exceed $2.35 per hour for an employee whose weekly average of tips received is $2.35 per hour or more. FOR RESORT HOTELS ONLY, the allowance for tips shall not exceed $2.90 per hour for an employee whose weekly average of tips exceeds $4.10 per hour. (c) Tip allowance for food service worker. (1) On and after March 31, 2000, a food service worker shall receive a cash wage of at least $3.30 per hour, provided that the tips received when added to such cash wage are equal to or exceed $5.15 per hour; (2) On and after January 1, 2005, a food service worker shall receive a cash wage of at least $3.85 per hour, provided that the tips received when added to such cash wage are equal to or exceed $6.00 per hour; (3) On and after January 1, 2006, a food service worker shall receive a cash wage of at least $4.35 per hour, provided that the tips received when added to such cash wage are equal to or exceed $6.75 per hour; (4) On and after January 1, 2007, a food service worker shall receive a cash wage of at least $4.60 per hour, provided that the tips received when added to such cash wage are equal to or exceed $7.15 per hour; (5) On and after July 24, 2009, a food service worker shall receive a cash wage of at least $4.65 per hour, provided that the tips received when added to such cash wage are equal to or exceed $7.25 per hour. (d) Tip allowance for chambermaids in resort hotels. (1) On and after March 31, 2000, allowance for tips shall not exceed 80 cents per hour for an employee whose weekly average of tips received is between 80 cents and $2.90 per hour and shall not exceed $1.65 per hour for an employee whose weekly average of tips received is more than $2.90 per hour; (2) On and after January 1, 2005, allowance for tips shall not exceed 95 cents per hour for an employee whose weekly average of tips received is between 95 cents and $3.40 per hour and shall not exceed $1.90 per hour for an employee whose weekly average of tips received is more than $3.40 per hour; (3) On and after January 1, 2006, allowance for tips shall not exceed $1.05 per hour for an employee whose weekly average of tips received is between $1.05 and $3.80 per hour and shall not exceed $2.15 per hour for an employee whose weekly average of tips received is more than $3.80 per hour; (4) On and after January 1, 2007, allowance for tips shall not exceed $1.10 per hour for an employee whose weekly average of tips received is between $1.10 and $4.05 per hour and shall not exceed $2.30 per hour for an employee whose weekly average of tips received is more than $4.05 per hour; (5) On and after July 24, 2009, allowance for tips shall not exceed $1.10 per hour for an employee whose weekly average of tips received is between $1.10 and $4.10 per hour and shall not exceed $2.35 per hour for an employee whose weekly average of tips received is more than $4.10 per hour. 134 Civ. Serv. Work week of state officers and employees for basic annual salaries; overtime compensation. 1. For all state officers and employees, other than officers and employees of the legislature and the judiciary and other than those who shall be excluded pursuant to the rules and regulations hereafter mentioned, the workweek for basic annual salary shall not be more than fortyhours; and, notwithstanding any inconsistent provisions of law, and subject to the rules and regulations promulgated by the director of the budget, any such state officer and employee who is authorized or required to work more than forty hours in any week in his regular position or title or in a position the title of which is allocated to the same salary grade as his regular position, shall receive overtime compensation for the hours worked in excess of forty in each week at one and one-half times the hourly rate of pay received by such employee in his regular position; provided, however, that an employee not subject to the overtime provisions of the federal "Fair Labor Standards Act of 1938" as amended by the federal "Fair Labor Standards Amendments of 1966", being public law six hundred one of the eightyninth congress, as approved September twenty-three, nineteen hundred sixty-six, and all acts amendatory thereof and supplementary thereto, may by written agreement with his proper authority exchange hours of work with other employees doing similar work in the same state institution or other state governmental unit without overtime compensation. Upon the approval of the director of the budget a member of the state police may be considered to have worked, for the purpose of determining overtime compensation pursuant to the provisions of this section, a minimum of four hours each time he is recalled to work overtime after completing his scheduled work period and leaving his scheduled work station or may be considered to have worked a minimum of two hours each time he is scheduled to return and returns to duty to work overtime for the purpose of making an appearance in court after completing his regularly scheduled work period and leaving his regularly scheduled work station. Upon

210 the approval of the director of the budget an employee may be considered to have worked, for the purpose of determining overtime compensation pursuant to the provisions of this section, a minimum of one-half day each time he is recalled to work overtime after completing his scheduled work period and leaving his scheduled work station; provided, however, that, subject to the terms of an agreement negotiated between the state and an employee organization pursuant to article fourteen of the civil service law, an employee recalled to work may be considered to have worked less than a minimum of one-half day and an employee recalled to work more than once during a period of one-half day commencing with the onset of the initial recall will not be entitled to more than one-half day of overtime credit unless more than one-half day is actually worked. When an employee shall work overtime in a position which has a title which is allocated to a lower salary grade than the salary grade to which the title of his regular position is allocated, he shall receive overtime compensation at one and one-half times the hourly rate of pay of the maximum salary of the grade of the position in which he shall work overtime, or such maximum salary plus the additional increment or increments, if he would be entitled to such additional increment or increments were he then appointed to such position; provided, however, that when such hourly rate exceeds the hourly rate of pay received by him in his regular position, he shall receive one and one-half times the hourly rate of his regular position. When an employee works overtime in a position allocated to a salary grade higher than the salary grade to which his regular position is allocated, he shall receive overtime compensation at one and one-half times the hourly rate of pay of the rate of compensation to which he would be entitled if he were permanently promoted to the position in which such overtime work is performed. 2. Any person employed by the state in any institution under the jurisdiction of the department of mental hygiene, the department of correction, the department of health or the department of social welfare, or in the state barge canal system, or in the New York state school for the blind, Batavia, or in the New York state veterans' rest camp, Mt. McGregor, whose hours of labor are limited to forty hours per week, or six days per week, by law or administrative regulation, who is not allowed time off by the appointing officer, during any fiscal year commencing on or after April first, nineteen hundred forty-six, for any holiday, pass day or vacation period which he was eligible to receive by law or by administrative regulation, shall, upon the approval of the superintendent or other head of such institution or department and the director of the budget, be entitled to compensation therefor at the hourly rate of pay received by such employee, or shall be allowed an equivalent amount of time off in lieu of such compensation. 3. The amount received as overtime compensation under this section shall be regarded as salary or compensation for any of the purposes of any pension or retirement system in which the employee receiving the same is a member. Overtime compensation shall not be regarded as salary or compensation for the purpose of determining the right to any increase of salary or any salary increment on account of length of service or otherwise. No such overtime compensation shall be construed to constitute a promotion or to increase any compensation which a public employee may receive pursuant to section six of chapter six hundred eight of the laws of nineteen hundred fifty-two. 4. The director of the budget shall promulgate, and may from time to time amend or rescind, rules and regulations for carrying into effect the provisions of this section. Such rules and regulations, among other things, may classify and define positions and employments for the purposes of this section, and otherwise provide appropriate formulas for determining overtime compensation as herein provided and provide that for the purpose of computing overtime compensation pursuant to this section, members of the state police in any title or individual position or positions shall be considered to have worked a minimum of four hours each time they are recalled to work overtime after having completed their scheduled work period and left their scheduled work station or shall be considered to have worked a minimum of two hours each time they are scheduled to return and return to duty to work overtime for the purpose of making an appearance in court in their official capacity after having completed their scheduled work period and left their scheduled work station; and provide that for the purpose of computing overtime compensation pursuant to this section, employees in any title or individual position or positions shall be considered to have worked a minimum of one-half day each time they are recalled to work overtime after having completed their scheduled work period and left their scheduled work station. Such rules and regulations may exclude any title or individual position or positions, when the nature of the duties performed or the difficulty of maintaining adequate time controls makes it impracticable to apply to such title or individual position or positions the provisions of this section which prescribe a work week for basic salary and provide for overtime compensation. 5. Notwithstanding any other provisions of law to the contrary, employees in any title or individual position or positions ineligible to accrue overtime credits

211 under the rules and regulations promulgated by the director of the budget pursuant to the provisions of this section who are required to work beyond a normal work week may be granted additional compensation. Such compensation shall be paid upon approval by the director of the budget and at a rate established by the director of the budget, provided however, that such additional compensation shall not exceed twelve per cent of the employee's basic salary. Such compensation shall be paid in addition to and shall not be a part of the employee's basic annual salary, and shall not affect or impair any performance advances or other rights or benefits to which the employee may be entitled under the provisions of this chapter, provided however, that any differential payable pursuant to this subdivision shall be included as compensation for retirement purposes. 6. Notwithstanding any other provisions of law to the contrary, any employee in any title or individual position ineligible to accrue overtime credits under the rules and regulations promulgated by the director of the budget pursuant to the provisions of this section who is required to work beyond a normal workweek during a period deemed by the director of the budget to be an extreme emergency, may be granted additional compensation upon the approval of and at a rate established by the director of the budget; provided, however, that such additional compensation shall not exceed one and one-half times the hourly rate of pay received by such employee in his regular position. Such compensation shall be in addition to, and not be a part of, the employee's basic annual salary and shall not affect or impair any increment or other rights or benefits to which the employee may be entitled under the provisions of this chapter; provided, however, that any differential payable pursuant to this subdivision shall be included as compensation for retirement purposes. 6-a. Notwithstanding any other provisions of law to the contrary, employees in any title or individual position or positions, other than those ineligible to accrue overtime credits under the rules and regulations promulgated by the director of the budget pursuant to the provisions of this section, who are required to be available for immediate recall and who must be prepared to return to duty within a limited period of time may be granted additional compensation for each day that such employee is actually scheduled to remain and remains available for recall; provided, however, in the event an employee entitled to such additional compensation is actually recalled to work, the employee will receive appropriate overtime or recall compensation in lieu of such additional compensation, except that employees in positions in the administrative, operational and institutional services units established pursuant to article fourteen of this chapter shall receive such appropriate overtime or recall compensation in addition to such additional compensation. Such additional compensation shall be paid upon approval of the director of the budget and at a rate established by the director of the budget. Such compensation shall be paid in addition to and shall not be a part of the employee's basic annual salary, and shall not affect or impair any increments or other rights or benefits to which the employee may be entitled under the provisions of this chapter; provided, however, that any compensation payable pursuant to this subdivision shall be included as compensation for retirement purposes. The director of the budget may adopt such regulations as he or she may deem necessary to carry out the provisions of this subdivision. 6-b. Notwithstanding any other provision of law to the contrary, a member of the state police in a title or individual position, other than a title or individual position ineligible to accrue overtime credits under the rules and regulations promulgated by the director of the budget pursuant to the provisions of this section, who is either in an off-duty status or has completed a tour of duty and is directed, during an emergency situation, to be available for immediate recall and who must be prepared to return to duty within a limited period of time may be granted additional compensation for each hour of such time that each such member is actually directed to remain and remains available for recall; provided, however, in the event the member is recalled and compensated pursuant to the recall provisions of this section but works less than four hours, for the purpose of computing the compensation payable pursuant to this subdivision the length of time during which the member remains available for recall shall be reduced by an amount of time equal to the difference between the hours worked and four hours. Such additional compensation shall be paid upon approval of the director of the budget and at the rate established, subject to the terms of any agreement negotiated between the state and an employee organization pursuant to article fourteen of the civil service law, by the director of the budget; provided, however, that such rate, when computed on an annual basis, shall not exceed ten per cent of such member's basic annual salary. Such compensation shall be paid in addition to and shall not affect or impair any increments or other rights or benefits to which the member may be entitled under the provisions of this chapter; provided, however, that any compensation payable pursuant to this subdivision shall be included as compensation for retirement purposes. The director of the budget may adopt such regulations as he may deem necessary to carry out the provisions of this subdivision. 6-c.

212 North Carolina Notwithstanding any other provision of law to the contrary, employees in any title or individual position or positions who are entitled to time off with pay on days observed as holidays by the state as an employer and are required to work on such holidays may be granted additional compensation for time worked on such days. Such additional compensation shall be at a rate established, subject to the terms of any agreement negotiated between the state and an employee organization pursuant to article fourteen of the civil service law, by the director of the budget. Such compensation shall be paid in addition to and shall not be a part of the employees' basic annual salary, and shall not affect or impair any increments or other rights or benefits to which the employee may be entitled under the provisions of this chapter; provided, however, that any compensation payable pursuant to this subdivision shall be included as compensation for retirement purposes. The director of the budget may adopt such regulations, including eligibility for such pay, as he may deem necessary to carry out the provisions of this subdivision, subject to the terms of any agreement negotiated between the state and an employee organization pursuant to article fourteen of the civil service law. 7. To the extent that appropriations heretofore or hereafter made for personal service in any state department, division, institution or other state agency are sufficient for the purpose, they shall be available for the payment of overtime compensation provided under this section, after audit by and upon the warrant of the state comptroller and the certification prescribed by law for the payment of the regular compensation of such employees. 7. No rule, regulation or other procedure under this section affecting state employees shall be adopted, repealed or amended without the approval of the director of employee relations. 135 Civ. Serv. Extra salary or compensation prohibited. 1. No person holding a position or employment in any department, bureau, commission or office to which this article applies and for which a definite salary or compensation has been appropriated or designated, shall receive any extra salary or compensation in addition to that so fixed except overtime compensation as provided in section one hundred thirty-four of this title. The requirements of this subdivision shall not apply to: (a) clinical practice pursuant to subdivision fourteen of section two hundred six of the public health law, or (b) certain employees of the department of motor vehicles who receive certain incentive payments for productivity standards pursuant to a program established by such department since nineteen hundred seventyseven, or (c) employees in the office of general services who are specified as eligible under a labor management memorandum of understanding with the appropriate employee representative organization to participate in practices or programs constituting one or more pilot studies to evaluate the effect of extra compensation on productivity, efficiency and overall service delivery. The commissioner of general services in consultation with the director of the governor's office of employee relations and the director of classification and compensation in the department and with the approval of the director of the budget is hereby authorized to direct the payment of extra compensation to such employees. Such extra compensation shall be paid pursuant to a specified plan developed by the commissioner of general services which shall be effective when approved by the director of the budget. The payment of such extra compensation shall be in addition to and shall not be part of an employee's basic annual salary, and shall not affect or impair any performance advancement payments, performance awards, longevity payments or other rights or benefits to which an employee may be entitled. Furthermore, any additional compensation payable pursuant to this subdivision shall not be included as compensation for retirement purposes. 2. Any contribution by the state of food, lodging or maintenance, or any commutation in lieu of maintenance, except traveling expenses and field allowances, shall be considered as part of the salary established by section one hundred thirty of this chapter. The fair value of such food, lodging, maintenance or commutation shall be determined by the director of the budget and may in his discretion be deducted from the salary established by said section. No employee shall board or lodge away from any institution or hospital which regularly furnishes food, lodging or maintenance, without the permission of the head of the institution or department by which he is employed. The director of the budget may deduct from the salary of any employee who fails to obtain such permission, the fair value of food, lodging or maintenance which such institution or hospital has offered to furnish to such employee. Whenever a chaplain employed in any state institution is not furnished a residence by the state, twenty per cent of his annual salary shall be deemed to constitute the amount to be paid to him in lieu of such residence Overtime. (a) Every employer shall pay each employee who works longer than 40 hours in any workweek at a rate of not less than time and one half of the regular rate of pay of the employee for those

213 North Dakota hours in excess of 40 per week; provided that employers of seasonal amusement or recreational establishment employees are required to pay those employees the overtime rate only for hours in excess of 45 per workweek. (b) Repealed by Session Laws 1991, c. 330, s. 2, effective June 19, Standards that apply. 1. The North Dakota minimum wage is no less than five dollars and fifteen cents per hour and must be paid to all employees in every occupation in the state. The following are exempt from minimum wage and working conditions provided in this chapter: a. Employees of nonprofit camps that are directly youth-related and intended for educational purposes. b. A guide, cook, or camp-tender for a hunting or fishing guide service. c. Golf course caddies. d. Any person in a program for youthful or first-time offenders designed as an alternative to incarceration if the person: (1) Voluntarily enters into the program for personal benefit; (2) Does not displace regular employees or infringe on the employment opportunities of others; (3) Is under the supervision or control of a court; and (4) Performs the work without contemplation of pay. e. Prison or jail inmates who do work for the prison, jail, institution, or other areas directly associated with the incarceration program. The work must be performed for the prison, jail, institution, state, or a political subdivision. f. Actors or extras for a motion picture. g. Any person working on a casual basis for less than twenty hours per week for less than three consecutive weeks in domestic service employment providing babysitting services. h. Volunteers as described in this subdivision: (1) Individuals who donate their time and services, usually on a part-time basis, including public service, humanitarian objectives, religious, fraternal, nonprofit, and charitable organizations, not as employees and without contemplation of pay. (2) Individuals who provide services to hospitals or nursing homes to provide support and assistance to families and patients. (3) Regular employees of religious, nonprofit, or charitable organizations may volunteer their services for activities outside of their normal work duties. (4) Residents or patients of shelters, foster care, or other such related establishments may volunteer their services as long as regular employees are not displaced. i. Student trainees meeting the following six criteria: (1) The training is similar to that in a vocational school. (2) The training is clearly for the benefit of the trainee. (3) The trainee does not displace regular employees. (4) The employer derives no immediate benefit. (5) The trainee is not entitled to a job. (6) The trainee is not entitled to wages. 2. The commissioner may issue subminimum wages for students enrolled in vocational education or related programs as long as the wage is not below eighty-five percent of the current state minimum wage. The process for granting subminimum wages for students includes: a. The student must complete the application for subminimum wage certificate for vocational education students (SFN 51370). The application (SFN 51370) includes: the employee's name, address, and signature; the employer's name, type of business, address, and signature; a description of the job; the pay rate; the vocational education instructor's signature. b. Upon receipt of the application the commissioner may issue a license to pay a subminimum wage to the employee for not more than one year. 3. The process for granting subminimum wages to individuals with disabilities in accordance with North Dakota Century Code section includes: a. The disabled worker must complete the application for subminimum wage certificate for individuals with disabilities (SFN 51371). The application (SFN 51371) includes: the employee's name, address, and signature; the employer's name, type of business, address, and signature; a description of the job; the prevailing wage; the proposed pay rate; and an analysis of the employee's productive capacity. A physician's signed verification of the disability in relationship to the job duties or existing supporting evidence of the disability must be provided. b. In order to be paid less than the minimum wage, documentation of the employee's commensurate wage rate must be provided to the commissioner and maintained by the employer. Commensurate wages are determined by assessing nondisabled worker productivity, the prevailing wage rate for the same or similar work, and an evaluation of the worker's own efficiency. c. Upon receipt of the application and documentation the commissioner may issue a license to pay a subminimum wage to the employee for not more than one year. d. The worker's commensurate wage rate must be reevaluated by the employer every six months and adjusted accordingly; the employer must maintain all documentation. The commissioner may issue a special license to pay less than the minimum wage to nonprofit community rehabilitation programs for the handicapped under North Dakota Century Code section Those programs must conduct a recognized program for rehabilitation for handicapped workers or provide paid employment for such workers or other occupational rehabilitative activity of an educational or learning nature. Special licenses to these programs may be issued after the commissioner receives a copy of the application and license from the commensurate federal program for employment of disabled workers under special certificates. 4. Overtime pay must be paid at one and

214 one-half times the regular rate of pay to any employee for hours worked in excess of forty hours in any one week. Paid holidays, paid time off, or sick leave are not counted in computing overtime hours. Overtime is computed on a weekly basis regardless of the length of the pay period. Hours worked may not be averaged over the pay period or used to offset shorter weeks. Employees working more than one job under the control of the same employer must have all hours worked counted toward overtime. Individuals employed as drivers by taxicab companies must be compensated at one and one-half times the regular rate of pay for all hours worked in excess of fifty hours in any one week. Hospitals and residential care establishments may adopt, by agreement with their employees, a fourteen-day overtime period in lieu of the usual seven-day workweek, if the employees are paid at least time and one-half their regular rate for hours worked over eight in a day or eighty in a fourteen-day work period. The following types of employment are exempt from the overtime provisions of this subsection: a. Any employee employed in a bona fide executive, administrative, or professional capacity. b. Any employee engaged in an agricultural occupation. c. Any employee spending at least fifty-one percent of the employee's work time providing direct care to clients of a shelter, foster care, or other such related establishment whose primary responsibilities are to provide temporary shelter, crisis intervention, prevention, education, and fellowship. d. Any employee employed in domestic service who resides in the household in which employed. e. A straight commission salesperson in retail automobile, trailer, boat, aircraft, truck, or farm implement dealerships unless that salesperson is required to be on the premises for more than forty hours per week. f. Computer professionals exercising discretion and independent judgment when designing, developing, creating, analyzing, testing, or modifying computer programs or who are paid hourly at a rate of at least twenty-seven dollars and sixty-three cents. g. Any employee who is customarily and regularly engaged away from the employer's premises for the purpose of making sales or taking orders. Work unrelated to outside sales may not exceed twenty percent of the hours worked in the week for the exemption to apply. h. Mechanics paid on a commission basis off a flat rate schedule. i. An employee of a retail establishment if the employee's regular rate of pay exceeds 1.5 times the minimum hourly rate applicable if more than half of the employee's compensation for a period of not less than one month is derived from commission on goods or services sold. j. Any employee employed as an announcer, news editor, or chief engineer by a radio or television station. k. Artistic professions which are original and creative in nature or where the work is dependent upon the invention, imagination, or talent of the employee, such as: editors, columnists, critics, publishers, cartoonists, graphic artists, musicians, composers, conductors, soloists, novelists, writers, and actors. l. Motor carrier: Any employee exempted by section 13(b)(1), (2), and (3) of the Fair Labor Standards Act [29 U.S.C. 213(b)(1), (2), and (3)] from section 7 of the Fair Labor Standards Act [29 U.S.C. 207], as applied to covered employees of motor common, contract, and private carriers specified by the Motor Carriers Act [49 U.S.C. 3102]. m. Teachers, instructors, tutors, and lecturers engaged in teaching in a school or educational system. 5. A minimum thirty-minute meal period must be provided in each shift exceeding five hours when there are two or more employees on duty. Employees may waive their right to a meal period upon agreement with the employer. Employees do not have to be paid for meal periods if they are completely relieved of their duties and the meal period is ordinarily thirty minutes in length. The employee is not completely relieved if required to perform any duties during the meal period. Collectively bargained agreements will prevail over this provision. 6. Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if all the following four criteria are met: a. Attendance is outside of the employee's regular working hours. b. Attendance is in fact voluntary. c. The course, lecture, or meeting is not directly related to the employee's job. d. The employee does not perform any productive work during such attendance. Training or education mandated by the state, federal government, or any political subdivision for a specific occupation need not be counted as work time. 7. Ordinary travel from home to work need not be counted as work time. Special and unusual one-day assignments performed for the employer's benefit and at the employer's request is work time for the employee regardless of driver or passenger status. Travel away from home is work time when performed during the employee's regular working hours. Time spent traveling on nonworking days during regular working hours is work time. The time spent as a passenger on an airplane, train, bus, or automobile after normal working hours is not work time. The driver of a vehicle is working at any time when required to travel by the employer. Travel time from jobsite to jobsite, or from office to jobsite, is work time to be compensated. Activities which are merely incidental use of an employer-provided vehicle for commuting home to work are not considered part of the employee's principal activity and therefore need not be counted as work time. 8. Standby time on the employer's

215 premises, or "on call" as in an engaged to wait manner is work time to be compensated. Waiting to be engaged is not required to be compensated as work time. 9. If an employee is required to be on duty for twenty-four hours or more, the employer and the employee may agree to exclude bona fide meal periods and bona fide regularly scheduled sleeping periods of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted sleep. If the sleeping period is more than eight hours, only eight hours will be deducted from hours worked. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted as work time. 10. Recordkeeping: Every employer must furnish to an employee each pay period a check stub or pay voucher that indicates hours worked, the rate of pay, required state and federal deductions, and authorized deductions. Time clocks: Time clocks are not required. If used, the employer may round the time to the nearest five minutes or quarter hour using the total minutes for the day as long as the employee over a period of time is paid for all the time the employee has actually worked. Employees who voluntarily clock in before their regular starting time or remain after closing time do not have to be compensated provided that no work is performed. 11. An employer may require an employee to purchase uniforms if the cost of such uniforms does not bring that employee's wage below the hourly minimum wage for all hours worked during that pay period. 12. Paid time off includes annual leave, earned time, personal days, or any other provisions of the employment relationship intended to provide compensation as vacation. Provisions where employees earn time off and the employees can use the days for any purpose, are paid time off unless separate arrangements are made for sick leave. Paid time off, once earned or awarded, is considered wages upon separation from employment. If the paid time off is available for use at the time of separation from employment, the employer must pay the employee for that time at the regular rate of pay earned by the employee prior to separation. No employment contract or policy may provide for forfeiture of earned paid time off upon separation. An employment contract or policy may require an employee to take vacation by a certain date or lose the vacation (use it or lose it), provided that the employee is given a reasonable opportunity to take the vacation. The employer must demonstrate that the employee had notice of such contract or policy provision. 13. The reasonable value not exceeding the employer's actual cost of board, lodging, and other facilities customarily furnished by the employer for the employee's benefit may be treated as part of the wages, up to a maximum of eighteen dollars per day, if agreed to by a written agreement and if the employee's acceptance of facilities is in fact voluntary. 14. The common law test provided in subdivisions a and b of subsection 5 of section will be used to determine whether or not an individual may be considered an employee or an independent contractor. 15. Earned bonus: An earned bonus is an amount paid in addition to a salary, wage, or commission. An earned bonus is compensable when an employee performs the requirements set forth in a contract or an agreement between the parties. Earned commission: A commission is a fee or percentage given for compensation to an individual for completion of a sale, service, or transaction. Upon separation from employment, the past practices, policies, and entire employment relationship will be used to determine if the commission is earned and compensable. 16. The department will use the past practices, policies, and entire employment relationship in wage claim determinations Additional standards that apply to government entities. 1. Any two individuals employed by the state or any political subdivision in any occupation may agree to substitute for one another during scheduled work hours in performance of work in the same capacity. The hours worked shall be excluded by the employer in the calculation of the hours for which the substituting employee would otherwise be entitled to overtime. If one employee works for another, each employee will be credited as if that employee had worked that employee's normal schedule. In order to qualify an agreement between individuals employed by the agency the agreement must be approved by the agency. The agency approval must be prior to the work being done. Each employee must be free to refuse to participate. The employee's decision to participate is valid only if freely made without coercion from the employer. A public agency that employs individuals who substitute or "trade time" under this section is not required to keep a record of the hours of the substitute work. This subsection must be interpreted in accordance with 29 CFR , as amended. 2. A state or political subdivision employee, solely at the employee's own option, may work occasionally or sporadically on a part-time basis for the same agency in a different capacity from the regular employment. The hours worked in the different jobs must not be combined for overtime purposes. This subsection must be interpreted in accordance with 29 CFR

216 Ohio , as amended As used in this chapter: As used in this chapter: (A) "Wage" means compensation due to an employee by reason of employment, payable in legal tender of the United States or checks on banks convertible into cash on demand at full face value, subject to the deductions, charges, or allowances permitted by rules of the director of commerce under section of the Revised Code. "Wage" includes an employee's commissions of which the employee's employer keeps a record, but does not include gratuities, except as provided by rules issued under section of the Revised Code. "Wage" also includes the reasonable cost to the employer of furnishing to an employee board, lodging, or other facilities, if the board, lodging, or other facilities are customarily furnished by the employer to the employers employees. The cost of board, lodging, or other facilities shall not be included as part of wage to the extent excluded therefrom under the terms of a bona fide collective bargaining agreement applicable to the employee. (B) "Occupation" means any occupation, service, trade, business, industry, or branch or group of industries or employment or class of employment in which individuals are employed (A) An employer shall pay an employee for overtime at a wage rate of... (A) An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's wage rate for hours worked in excess of forty hours in one workweek, in the manner and methods provided in and subject to the exemptions of section 7 and section 13 of the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 207, 213, as amended. Any employee employed in agriculture shall not be covered by the overtime provision of this section. (B) If a county employee elects to take compensatory time off in lieu of overtime pay, for any overtime worked, compensatory time may be granted by the employee's administrative superior, on a time and one-half basis, at a time mutually convenient to the employee and the administrative superior within one hundred eighty days after the overtime is worked. (C) A county appointing authority with the exception of the county department of job and family services may, by rule or resolution as is appropriate, indicate the authority's intention not to be bound by division (B) of this section, and to adopt a different policy for the calculation and payment of overtime than that established by that division. Upon adoption, the alternative overtime policy prevails. Prior to the adoption of an alternative overtime policy, a county appointing authority with the exception of the county department of job and family services shall give a written notice of the alternative policy to each employee at least ten days prior to its effective date. (D) As used in this section: (1) "Employ" means to suffer or to permit to work. (2) "Employer" means the state of Ohio, its instrumentalities, and its political subdivisions and their instrumentalities, any individual, partnership, association, corporation, business trust, or any person or group of persons, acting in the interest of an employer in relation to an employee, but does not include an employer whose annual gross volume of sales made for business done is less than one hundred fifty thousand dollars, exclusive of excise taxes at the retail level which are separately stated. (3) "Employee" means any individual employed by an employer but does not include: (a) Any individual employed by the United States; (b) Any individual employed as a baby-sitter in the employer's home, or a live-in companion to a sick, convalescing, or elderly person whose principal duties do not include housekeeping; (c) Any individual engaged in the delivery of newspapers to the consumer; (d) Any individual employed as an outside salesperson compensated by commissions or employed in a bona fide executive, administrative, or professional capacity as such terms are defined by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 201, as amended; (e) Any individual who works or provides personal services of a charitable nature in a hospital or health institution for which compensation is not sought or contemplated; (f) A member of a police or fire protection agency or student employed on a part-time or seasonal basis by a political subdivision of this state; (g) Any individual in the employ of a camp or recreational area for children under eighteen years of age and owned and operated by a nonprofit organization or group of organizations described in Section 501(c)(3) of the "Internal Revenue Code of 1954," and exempt from income tax under Section 501(a) of that code; (h) Any individual employed directly by the house of representatives or directly by the senate Nothing in sections to of the Revised Code interferes... Nothing in sections to of the Revised Code interferes with, impedes, or in any way diminishes the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum

217 under sections to of the Revised Code. Oklahoma Oregon Any standards relating to minimum wages, overtime compensation, or... Any standards relating to minimum wages, overtime compensation, or other working conditions in effect under any other law of this state on the effective date of sections to of the Revised Code, which are more favorable to employees than those applicable to employees under sections or regulations issued hereunder, are not amended, rescinded, or otherwise affected by said sections, but continue in full force and effect, and may be enforced as provided by law until they are specifically superseded by standards more favorable to the employees by operation of or in accordance with regulations issued under said sections Working day for public employees. A. Except as provided in subsection B of this section, eight (8) hours shall constitute a day's work for all public employees not otherwise exempt from or covered by special provisions under the federal Fair Labor Standards Act, 29 U.S.C.A., Section 201 et seq. and regulations thereto. In cases where it may be necessary to work more than eight (8) hours per calendar day which results in more than forty (40) hours worked per week, all public employees not otherwise exempt from or otherwise covered by special provisions under the federal Fair Labor Standards Act and regulations related thereto or other persons so employed shall be compensated in accordance with the federal Fair Labor Standards Act and regulations related thereto. B. Public employees and public safety professionals may be allowed to work in excess of eight (8) hours per day when such hours are assigned as part of an alternative work schedule. In any case where such work schedule results in an employee working in excess of forty (40) hours per workweek who is not exempt from or covered by special provisions under the overtime provisions of the Fair Labor Standards Act, the employee shall be compensated in accordance with the Fair Labor Standards Act and regulations related thereto. For purposes of this section, "public safety professionals" means sheriffs, deputy sheriffs, correctional officers, and persons in the emergency medical service profession Public Contracts Made on Basis of Eight-Hour Day. All contracts hereafter made by or on behalf of the state, or by or on behalf of any county, city, township, or other municipality, with any corporation, person or persons, for the performance of any public work, by or on behalf of the state or any county, city, township, or other municipality, shall be deemed and considered as made upon the basis of eight (8) hours constituting a day's work; and it shall be unlawful for such corporation, person or persons, to require, aid, abet, assist, connive at, or permit any laborer, workman, mechanic, prison guards, janitors in public institutions, or other person to work more than eight hours per calendar day in doing such work, except in cases and upon the conditions provided in the preceding section. Provided that the provisions of this act in regard to hours worked per calendar day shall not apply to the construction, reconstruction, maintenance, or the production of local materials for: Highways, roads, streets, and all the structures and drainage in connection therewith; sewer systems, waterworks systems, dams and levees, canals, drainage ditches, airport grading, drainage, surfacing, seeding and planting. Provided that the provisions of this act will not prevent employees from drawing time and half for those hours worked over forty (40) during any calendar week Minimum employment conditions; overtime; rules; meal periods; exemptions. (1) The Commissioner of the Bureau of Labor and Industries may adopt rules prescribing such minimum conditions of employment, excluding minimum wages, in any occupation as may be necessary for the preservation of the health of employees. The rules may include, but are not limited to, minimum meal periods and rest periods, and maximum hours of work, but not less than eight hours per day or 40 hours per week; however, after 40 hours of work in one week overtime may be paid, but in no case at a rate higher than one and one-half times the regular rate of pay of the employees when computed without benefit of commissions, overrides, spiffs and similar benefits. (2) Nothing contained in ORS to shall be construed to confer authority upon the commissioner to regulate the hours of employment of employees engaged in production, harvesting, packing, curing, canning, freezing or drying any variety of agricultural crops, livestock, poultry or fish. (3) Rules adopted by the commissioner pursuant to subsection (1) of this section do not apply to individuals employed by this state or a political subdivision or quasi-municipal corporation thereof if other provisions of law or collective bargaining agreements prescribe rules pertaining to conditions of employment referred to in subsection (1) of this section, including meal periods, rest periods, maximum hours of work and overtime. (4) Rules adopted by the commissioner pursuant to subsection (1) of this section regarding

218 meal periods and rest periods do not apply to nurses who provide acute care in hospital settings if provisions of collective bargaining agreements entered into by the nurses prescribe rules concerning meal periods and rest periods. (5)(a) The commissioner shall adopt rules regarding meal periods for employees who serve food or beverages, receive tips and report the tips to the employer. (b) In rules adopted by the commissioner under paragraph (a) of this subsection, the commissioner shall permit an employee to waive a meal period. However, an employer may not coerce an employee into waiving a meal period. (c) Notwithstanding ORS (1), in addition to any other penalty provided by law, the commissioner may assess a civil penalty not to exceed $2,000 against an employer that the commissioner finds has coerced an employee into waiving a meal period in violation of this subsection. Each violation is a separate and distinct offense. In the case of a continuing violation, each day's continuance is a separate and distinct violation. (d) Civil penalties authorized by this subsection shall be imposed in the manner provided in ORS All sums collected as penalties under this subsection shall be applied and paid over as provided in ORS (3). [1967 c (2), (3); 1971 c ; 1981 c ; 1985 c. 99 9; 2001 c ; 2007 c ] (1) The Commissioner of the Bureau of Labor and Industries may adopt rules prescribing such minimum conditions of employment, excluding minimum wages, in any occupation as may be necessary for the preservation of the health of employees. The rules may include, but are not limited to, minimum meal periods and rest periods, and maximum hours of work, but not less than eight hours per day or 40 hours per week; however, after 40 hours of work in one week overtime may be paid, but in no case at a rate higher than one and one-half times the regular rate of pay of the employees when computed without benefit of commissions, overrides, spiffs and similar benefits. (2) Nothing contained in ORS to shall be construed to confer authority upon the commissioner to regulate the hours of employment of employees engaged in production, harvesting, packing, curing, canning, freezing or drying any variety of agricultural crops, livestock, poultry or fish. (3) Rules adopted by the commissioner pursuant to subsection (1) of this section do not apply to individuals employed by this state or a political subdivision or quasi-municipal corporation thereof if other provisions of law or collective bargaining agreements prescribe rules pertaining to conditions of employment referred to in subsection (1) of this section, including meal periods, rest periods, maximum hours of work and overtime. (4) Rules adopted by the commissioner pursuant to subsection (1) of this section regarding meal periods and rest periods do not apply to nurses who provide acute care in hospital settings if provisions of collective bargaining agreements entered into by the nurses prescribe rules concerning meal periods and rest periods Overtime Generally (1) Except as provided in OAR to , all work performed in excess of forty (40) hours per week must be paid for at the rate of not less than one and one-half times the regular rate of pay when computed without benefits of commissions, overrides, spiffs, bonuses, tips or similar benefits pursuant to ORS (1). Similar benefits include, but are not limited to, discretionary bonuses, gifts, profit sharing, thrift and savings program, trusts, reimbursements for expenses, holiday, or vacation pay. (2) Definitions: (a) "Work week" means any seven (7) consecutive twenty four (24) hour period as determined by the employer. The beginning of the work week may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of this rule. For purposes of overtime computation, each work week stands alone; (b) "Regular rate", for purposes of overtime computation, means a regular hourly rate, but in no case will the regular hourly rate be less than the applicable statutory minimum wage rate. In the absence of an express agreement between the employer and the employee which specifies the regular hourly rate, the regular hourly rate is determined by dividing the total remuneration for employment in any work week (excluding commissions, spiffs, bonuses, tips or similar benefits), by the total number of hours actually worked in that work week for which such remuneration was paid. The division will be guided in the application and calculation of regular rate by Title 29, Code of Federal Regulations, Part 778, Subpart C, D and E except when expressly prohibited by ORS Chapter 653 or these rules. (3) Methods for determining amount of overtime payment under different compensation agreements: (a) Compensation based exclusively on hourly rate of pay: (A) Where the employee is employed solely on the basis of a single hourly rate, the hourly rate is the "regular rate." For hours worked in excess of forty (40) hours in a work week the employee must be paid, in addition to the straight time hourly earnings, a sum determined by multiplying one-half the hourly rate by the number of hours worked in excess of forty (40); (B) For example, a $10 per hour rate will bring, for an employee who works 46 hours, a total weekly wage of $490 (46 hours at $10 plus six hours at $5.00). In other words the employee must be paid an amount equal to $10 per hour for 40 hours and $15.00 per hour for the six hours of overtime, or

219 a total of $490. (b) Compensation based upon piece-rate agreement: (A) Where an employee is employed on a piece-rate basis, the regular hourly rate of pay is determined by adding together the total earnings, (excluding commissions, spiffs, bonuses, tips or similar benefits) for the work week and dividing this sum by the number of hours worked in the week for which such compensation is to be paid; (B) For example, an employee who has earned $500 during a 50 hour work week must be paid an additional sum of $50 for the ten overtime hours, or a total of $550 (50 hours at $10 per hour and the ten overtime hours at $5.00 per hour). (c) Compensation based upon weekly salary agreement for regular work week of less than 40 hours: (A) Where the employee is employed on a weekly salary for a regular work week of fewer than 40 hours, the regular hourly rate of pay is determined by dividing the salary by the number of hours agreed to be worked in the work week which such salary is intended to compensate; (B) For example, if an employee is hired at a salary of $525 and it is understood that this salary is compensation for a regular work week of 35 hours, the employee's regular rate of pay is $15 per hour ($525 divided by 35 hours). Thus, where the employee works in excess of 35 hours in a given work week such employee must be paid $15 per hour for each of the first 40 hours and $22.50 per hour (one and one-half times $15) for each hour worked in excess of 40 hours in such work week. (d) Compensation based upon a weekly salary agreement for a regular work week of 40 hours: (A) Where the employee is employed on a weekly salary for a regular work week of 40 hours, the regular hourly rate of pay is computed by dividing the salary by 40 hours; (B) For example, where an employee is hired at a salary of $600 and it is understood that this weekly salary is compensation for a regular work week of 40 hours, the employee's regular rate of pay is $15 per hour and such employee must be compensated at the rate of $22.50 per hour for each hour worked in excess of 40 hours in such work week. (e) Compensation based upon weekly salary agreement for regular workweeks of more than 40 hours: (A) If the employee is employed on a weekly salary which is the agreed compensation for a set number of hours in excess of 40, the regular hourly rate of pay is determined by dividing the weekly salary by the set number of hours which such salary is intended to compensate; (B) For example, where an employee is hired at a weekly salary of $675 and it is understood that this weekly salary is compensation for a regular work week set at 45 hours, the employee's regular rate of pay is $15 per hour and such employee must be paid an additional sum of $37.50 for such work week or a total of $ (45 hours at $15 per hour and the five overtime hours at $7.50 per hour). The employee must be paid an additional $22.50 per hour for each hour worked in excess of 45 hours in such work week. (f) Compensation based upon an agreed fixed salary for fluctuating hours (fluctuating workweek method for payment of overtime): (A) An employee employed on a fixed salary may have hours of work which vary from work week to work week and the salary may be paid to the employee pursuant to an understanding with the employer that such employee will receive such fixed amount of compensation for whatever hours the employee is called upon to work in a work week, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation for the hours worked each work week, whatever their number, such a salary arrangement is permitted if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable statutory minimum wage rate for every hour worked in those work weeks in which the number of hours worked is greatest, and if the employee receives overtime compensation, in addition to such salary, for all hours worked in excess of 40, at a rate not less than one-half the regular rate of pay. Since, under such an arrangement, the number of hours actually worked will fluctuate from work week to work week, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the work week into the amount of the salary to obtain the applicable regular hourly rate for any given work week. Payment for overtime hours worked in excess of 40 hours in such work week at one-half such hourly rate in addition to the salary satisfies the requirements of this rule because such hours have already been compensated at the regular rate, under the salary arrangement. The following examples, based upon a weekly salary of $400, are offered by way of illustration: (i) Work week #1 50 hours worked; the employee's regular rate of pay is $8 per hour and the employee must be paid an additional sum equal to one-half the regular rate times the ten overtime hours worked or $40, making the total compensation for that work week $440; (ii) Work week #2 60 hours worked; the employee's regular rate of pay is $6.67 per hour, which is less than the required state minimum wage rate. The employee must be paid an additional sum equal to the difference between the employee's weekly salary of $400 and the total of the amount the employee earned at the minimum wage for 40 hours plus one and one-half times the minimum wage rate for the hours worked over 40 during the work week (40 hours X minimum wage rate + 20 hours X 1.5 X minimum wage rate). (B) The fluctuating

220 work week method for the payment of overtime does not apply to employers covered by the federal Family Medical Leave Act of 1993, 29 U.S.C. 2601, et. seq., who comply with the Code of Federal Regulations regarding the nonpayment of leave time authorized by the Act and the special exception pertaining to the payment of overtime under the fluctuating workweek method. (See 29 C.F.R. Part (b) and (c)) Employers who select this method for paying overtime and who are covered by this Act but choose not to comply with 29 C.F.R , must comply with this rule. (g) Fixed salary for periods other than work week: Where a salary covers a period longer than a work week, such as a month, it must be reduced to its work week equivalent. A monthly salary is subject to translation to its equivalent weekly wage by multiplying by 12 (the number of months) and dividing by 52 (the number of weeks). A semi-monthly salary is translated into its equivalent weekly wages by multiplying by 24 and dividing by 52. Once the weekly wage is arrived at, the regular rate of pay and the amount of any overtime pay is determined as provided by this rule Overtime for labor directly employed by public employers. (1) Labor directly employed by any public employer as defined in ORS shall be compensated, if budgeted funds for such purpose are available, for overtime worked in excess of 40 hours in any one week, at not less than one and one-half times the regular rate of such employment. If budgeted funds are not available for the payment of overtime, such overtime shall be allowed in compensatory time off at not less than time and a half for employment in excess of 40 hours in any one week. (2) Nothing in this section shall prevent a labor organization under the National Labor Relations Act or ORS to or other employees from negotiating additional overtime pay requirements with a public employer Overtime pay for firefighters. (1) Every affected incorporated city, municipality and fire district shall put into effect and maintain a schedule of working hours required of regularly employed firefighters which shall not be in excess of the average hours established by ORS , and which shall provide for at least 48 consecutive hours off-duty time in each seven-day period. Any affected incorporated city, municipality or fire district failing so to do shall pay to every regularly employed firefighter as additional pay for every hour of regular duty required of and performed by the firefighter over and above the average hours established by ORS a sum equivalent to one and one-half times the regular hourly rate of pay at the time of such default. However, in the case of replacement for any authorized leave, vacation or temporary vacancy, regularly employed firefighters in a department employing four or more persons on a full-time basis as firefighters may elect to work in excess of 56 hours a week at not less than their regular hourly rate of pay. (2) Nothing in subsection (1) of this section requires payment of one and one-half times the hourly rate of pay to a volunteer firefighter for hours of duty performed in excess of the average hours established by ORS Need for replacement staff. (1) When a hospital learns about the need for replacement staff, the hospital shall make every reasonable effort to obtain registered nurses, licensed practical nurses or certified nursing assistants for unfilled hours or shifts before requiring a registered nurse, licensed practical nurse or certified nursing assistant to work overtime. (2) A hospital may not require a registered nurse, licensed practical nurse or certified nursing assistant to work: (a) Beyond the agreedupon shift; (b) More than 48 hours in any hospital-defined work week; or (c) More than 12 consecutive hours in a 24-hour time period, except that a hospital may require an additional hour of work beyond the 12 hours if: (A) A staff vacancy for the next shift becomes known at the end of the current shift; or (B) There is a potential harm to an assigned patient if the registered nurse, licensed practical nurse or certified nursing assistant leaves the assignment or transfers care to another. (3)(a) Time spent in required meetings or receiving education or training shall be included as hours worked for purposes of subsection (2) of this section. (b) Time spent on call but away from the premises of the employer may not be included as hours worked for purposes of subsection (2) of this section. (c) Time spent on call or on standby when the registered nurse, licensed practical nurse or certified nursing assistant is required to be at the premises of the employer shall be included as hours worked for purposes of subsection (2) of this section. (4) The provisions of this section do not apply to nursing staff needs: (a) In the event of a national or state emergency or circumstances requiring the implementation of a facility disaster plan; (b) In emergency circumstances identified by the Oregon Health Authority by rule; or (c) If a hospital has made reasonable efforts to contact all of the on-call nursing staff or staffing agencies on the list described in ORS and is unable to obtain replacement staff in a timely manner.

221 Pennsylvania Maximum working hours in certain industries; overtime hours and pay; exemptions. (1) No person shall be employed in any mill, factory or manufacturing establishment in this state more than 10 hours in any one day, or in sawmills, planing mills, shingle mills and logging camps more than eight hours, exclusive of one hour, more or less, in one day or more than 48 hours in one calendar week, except logging train crews, guards, firefighters and persons engaged in the transportation to and from work, and employees when engaged in making necessary repairs, or in the case of emergency where life and property are in imminent danger. However, employees may work overtime not to exceed three hours in one day, conditioned that payment be made for said overtime at the rate of time and one-half the regular wage. (2) No employer shall require or permit any person to work in any place mentioned in this section more than the hours provided for in this section during any day of 24 hours. No employer shall permit or suffer an overseer, superintendent or other agent of the employer to violate this section. (3) This section does not apply to persons employed in the care of quarters or livestock, conducting messhalls, superintendence and direction of work, or to the loading and removal of the finished forest product. (4) Subsections (1) and (2) of this section do not apply to employees who are represented by a labor organization for purposes of collective bargaining with their employer, provided limits on the required hours of work and overtime payment have been agreed to between the employer and labor organization, or if no agreement is reached, then, for the purposes of this subsection, such limits and payments shall not be deemed to be changed from the previous collective bargaining agreement between the employer and labor organization unless the employees have been locked out, are engaged in a strike or the employer has unilaterally implemented new terms and conditions of employment Overtime for persons employed in canneries, driers and packing plants. When employed in canneries or driers or packing plants, excluding canneries or driers or packing plants located on farms and primarily processing products produced on such farms, employees shall be paid time and a half for time over 10 hours per day and piece workers shall be paid one and a half the regular prices for all work done during the time they are employed over 10 hours per day. 43 P. S Minimum wages Except as may otherwise be provided under this act: (a) Every employer shall pay to each of his or her employees wages for all hours worked at a rate of not less than: (1) Two dollars sixty-five cents ($2.65) an hour upon the effective date of this amendment. (2) Two dollars ninety cents ($2.90) an hour during the year beginning January 1, (3) Three dollars ten cents ($3.10) an hour during the year beginning January 1, (4) Three dollars thirty-five cents ($3.35) an hour after December 31, (5) Three dollars seventy cents ($3.70) an hour beginning February 1, (6) Five dollars fifteen cents ($5.15) an hour beginning September 1, (7) Six dollars twenty-five cents ($6.25) an hour beginning January 1, (8) Seven dollars fifteen cents ($7.15) an hour beginning July 1, (a.1) If the minimum wage set forth in the Fair Labor Standards Act of 1938 (52 Stat. 1060, 29 U.S.C. 201 et seq.) is increased above the minimum wage required under this section, the minimum wage required under this section shall be increased by the same amounts and effective the same date as the increases under the Fair Labor Standards Act, and the provisions of subsection (a) are suspended to the extent they differ from those set forth under the Fair Labor Standards Act. (b) The secretary, to the extent necessary to prevent curtailment of employment opportunities, shall by regulations provide for the employment of learners and students, under special certificates at wages lower than the minimum wage applicable under this section, and subject to such limitations as to number, proportion and length of service as the secretary shall prescribe: Provided, That the minimum wage prescribed under this subsection (b) shall not be less than eighty-five percent of the otherwise applicable wage rate in effect under section 4. A special certificate issued under this subsection shall provide that for six or less students for whom it is issued shall, except during vacation periods, be employed on a part-time basis and not in excess of twenty hours in any workweek at a subminimum rate. In the case of an employer who intends to employ seven or more students, at a subminimum rate, the secretary may issue a special certificate only if the employer certifies to the secretary that employment of such students will not create a substantial probability of reducing the full-time employment opportunities for other workers. (c) Employees shall be paid for overtime not less than one and one-half times the employee's regular rate as prescribed in regulations promulgated by the secretary: Provided, That students employed in seasonal occupations as defined and delimited by regulations promulgated by the secretary may, by such regulations, be excluded from the overtime provisions of this

222 act: And provided further, That the secretary shall promulgate regulations with respect to overtime subject to the limitations that no pay for overtime in addition to the regular rate shall be required except for hours in excess of forty hours in a workweek. (d) An employee whose earning capacity is impaired by physical or mental deficiency or injury may be paid less than the applicable minimum wage if either a license specifying a wage rate commensurate with the employee's productive capacity has been obtained by the employer from the secretary or a Federal certificate is obtained under section 14(c) of the Fair Labor Standards Act of 1938 (52 Stat. 1060, 29 U.S.C. 201 et seq.). A license obtained from the secretary shall be granted only upon joint application of employer and employee. (e) In lieu of the minimum wage prescribed in subsection (a) and section 5(c)[fn1] and notwithstanding subsections (b) and (d), an employer may, during the first sixty calendar days when an employee under the age of twenty years is initially employed, pay the employee training wages at a rate of not less than the minimum wage set forth in section 6(a) of the Fair Labor Standards Act (29 U.S.C. 206(a)). A person employed at the training wage under this subsection shall be informed of the amount of the training wage and the right to receive the full minimum wage, or a higher wage, upon completion of the training period. No employer may take any action to displace existing employees, including partial displacements such as reduction in the hours, wages or employment benefits of existing employees, for purposes of hiring individuals at the training wage authorized by this subsection. 34 Pa. Code Rate. Except as otherwise provided in section 5(a)-(c) of the act (43 P.S (a)-(c)), each employee shall be paid for overtime not less than 1-1/2 times the employee's regular rate of pay for all hours in excess of 40 hours in a workweek. 34 Pa. Code Workweek. The term workweek shall mean a period of 7 consecutive days starting on any day selected by the employer. Overtime shall be compensated on a workweek basis regardless of whether the employee is compensated on an hourly wage, monthly salary, piece rate or other basis. Overtime hours worked in a workweek may not be offset by compensatory time off in any prior or subsequent workweek. 34 Pa. Code Regular rate. For purposes of these (relating to overtime pay), the regular rate at which an employee is employed shall be deemed to include all remuneration for employment paid to or on behalf of the employee, but it shall not be deemed to include the following: (1) Sums paid as gifts, payments in the nature of gifts made at Christmas time or on other special occasions as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency. (2) Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work or other similar cause, reasonable payments for traveling expenses or other expenses incurred by an employee in the furtherance of his employer's interests and properly reimbursable by the employer, and other similar payments to an employee which are not made as compensation for the employee's hours of employment. (3) Sums paid in recognition of services performed during a given period if: (i) Both the fact that payment is to be made and the amounts of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly. (ii) The payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan without regard to hours of work, production or efficiency. (iii) The payments are talent fees paid to performers, including announcers on radio and television programs. (4) Contributions irrevocably made by an employer to a trustee or third person under a bona fide plan for providing old-age, retirement, life, accident or health insurance or similar benefits for employees. (5) Extra compensation provided by a premium rate for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of 8 in a day or in excess of the maximum workweek applicable to the employee under (relating to rate) or in excess of the normal working hours or regular working hours of the employee, as the case may be. (6) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than 1½ times the rate established in good faith for like work performed in non-overtime hours on other days. (7) Extra compensation provided by a premium rate paid to the employee in pursuance of an applicable employment contract or collective bargaining agreement for work outside of the hours established in good faith by the contract or agreement as the

223 Rhode Island basic, normal or regular workday not exceeding 8 hours or workweek not exceeding the maximum workweek applicable to the employee under (relating to rate), where the premium rate is not less than 1½ times the rate established in good faith by the contract or agreement for like work performed during the workday or workweek. (b) If the employee is paid a flat sum for a day's work or for doing a particular job without regard to the number of hours worked in the day or at the job and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received at the day rates or job rates in the workweek and dividing by the total hours actually worked. He is then entitled to extra half-time pay at this rate for hours worked in excess of 40 in the workweek. (c) No employer may be deemed to have violated these (relating to overtime pay) by employing an employee for a workweek in excess of the maximum workweek applicable to the employee under (relating to rate) if the employee is employed under a bona fide individual contract or under an agreement made as a result of collective bargaining by representatives of employees, if the duties of the employee necessitate substantially irregular hours of work. For example, where neither the employee nor the employer can either control or anticipate with a degree of certainty the number of hours the employee must work from week to week, where the duties of the employee necessitate significant variations in weekly hours of work both below and above the statutory weekly limit on non-overtime hours, or where the substantially irregular hours of work are not attributable to vacation periods, holidays, illness, failure of the employer to provide sufficient work, or other similar causes, and the contract or agreement: (1) Specifies a regular rate of pay of not less than the minimum hourly rate and compensation at not less than 1 1/2 times the rate for hours worked in excess of the maximum workweek. (2) Provides a weekly guaranty of pay for not more than 60 hours based on the rates so specified. (d) No employer may be deemed to have violated these by employing an employee for a workweek in excess of the maximum workweek applicable to the employee under if, under an agreement or understanding arrived at between the employer and the employee before performance of the work, the amount paid to the employee for the number of hours worked by him in the workweek in excess of the maximum workweek applicable to the employee under : (1) In the case of an employee employed at piece rates, is computed at piece rates not less than 1 1/2 times the bona fide piece rates applicable to the same work when performed during nonovertime hours. (2) In the case of an employee's performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than 11/2 times the bona fide rate applicable to the same work when performed during non-overtime hours. (3) Is computed at a rate not less than 1 1/2 times the rate established by the agreement or understanding as the basic rate to be used in computing overtime compensation thereunder; and if the average hourly earnings of the employee for the workweek, exclusive of payments described in subsection (a)(1) (7), are not less than the minimum hourly rate required by applicable law and if extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate. (e) Extra compensation paid as described in subsection (a)(5) (7) shall be creditable toward overtime compensation payable under these (relating to overtime pay). (f) No employer may be deemed to have violated these by employing an employee of a retail or service establishment for a workweek in excess of 40 hours if: (1) The regular rate of pay of the employee is in excess of 1 1/2 times the minimum hourly rate applicable. (2) More than half of the employee's compensation for a representative period, not less than 1 month, represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee Overtime pay. (a) Except as hereinafter otherwise provided, no employer shall employ any employee for a workweek longer than forty (40) hours unless the employee is compensated at a rate of one and one-half (1 1/2) times the regular rate at which he or she is employed for all hours worked in excess of forty (40) hours per week. (b) In any workweek in which an employee of a retail business is employed on a Sunday and/or a holiday at a rate of one and one-half (1 1/2) times the regular rate at which he or she is employed as provided in , the hours worked on the Sunday and/or holiday shall be excluded from the calculation of overtime pay as required by this section Bi-weekly overtime pay. Except as otherwise provided in , no employer shall employ any employee on a bi-weekly basis with hours worked and hourly wages averaged over that

224 period for longer than forty (40) hours per week unless the employee is compensated at a rate of one and one-half (1 1/2) times the regular rate at which he or she is employed for all hours worked in excess of forty (40) hours per week Exemptions. -- (a) The provisions of sections and do not apply to the following employees: 1) Any employee of a summer camp when it is open no more than six (6) months of the year. (2) Police officers, firefighters, and rescue service personnel employed by the cities and towns. (3) Employees of the state or political subdivision of the state who may elect through a collective bargaining agreement, memorandum of understanding, or any other agreement between the employer and representatives of the employees, or if the employees are not represented by an exclusive bargaining agent, through an agreement or understanding arrived at between the employer and the employee prior to the performance of work, to receive compensatory time off for hours worked in excess of forty (40) in a week. The compensatory hours shall at least equal one and one half (1 1/2) times the hours worked over forty (40) in a week. If compensation is paid to an employee for accrued compensatory time, the compensation shall be paid at the regular rate earned by the employee at the time of payment. At the time of termination, unused accrued compensatory time shall be paid at a rate not less than: i) The average regular rate received by the employee during the last three (3) years of the employee's 1 employment, or (ii) The final regular rate received by the employee, whichever is higher. (4) Any employee employed in a bona fide executive, administrative, or professional capacity, as defined by the Fair Labor Standards Act of 1938, 29 U.S.C.section 201 et seq., compensated for services on a salary basis of not less than two hundred dollars ($200) per week. (5) Any employee as defined in subparagraph (a)(4) of this section unless the wages of the employee, if computed on an hourly basis, would violate the applicable minimum wage law. (6) Any salaried employee of a nonprofit national voluntary health agency who elects to receive compensatory time off for hours worked in excess of forty (40) hours per week. (7) Any employee, including drivers, driver's helpers, mechanics, and loaders of any motor carrier, including private carriers, with respect to whom the U.S. secretary of transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C. section ) Any employee who is a salesperson, parts person, or mechanic primarily engaged in the sale and/or servicing of automobiles, trucks or farm implements, and is employed by a nonmanufacturing employer primarily engaged in the business of selling vehicles or farm implements to ultimate purchasers, to the extent that the employers are exempt under the federal Wage-Hour and Equal Pay Act, 29 U.S.C. section 201 et seq. and 29 U.S.C. section 213(b)(10); provided, that the employee's weekly, bi-weekly, or monthly actual earnings exceed an amount equal to the employee's basic contractual hourly rate of pay times the number of hours actually worked plus the employee's basic contractual hourly rate of pay times one-half ( 1/2) the number of hours actually worked in excess of forty (40) hours per week. (9) Any employee employed in agriculture; however, this exemption applies to all agricultural enterprises that produce greenhouse crops, fruit and vegetable crops, herbaceous crops, sod crops, viticulture, viniculture, floriculture, feed for livestock, forestry, dairy farming, aquaculture, the raising of livestock, furbearing animals, poultry and eggs, bees and honey, mushrooms, and nursery stock. This exemption also applies to nursery workers. (10) Any employee of an air carrier subject to the provisions of title 45 U.S.C. section 181 et seq., of the Railway Labor Act when the hours worked by such employee in excess of forty (40) in a work week are not required by the air carrier, but are arranged through a voluntary agreement among employees to trade scheduled work hours. (b) Nothing in this section exempts any employee who under applicable federal law is entitled to overtime pay or benefits related to overtime pay Work on Sundays or holidays. (a) Work performed by employees on Sundays and holidays must be paid for at least one and one-half (1½) times the normal rate of pay for the work performed; provided: (1) that it is not grounds for discharge or other penalty upon any employee for refusing to work upon any Sunday or holiday enumerated in this chapter; (2) any manufacturer which operates for seven (7) continuous days per week is exempt from the requirement of subdivision (1). (b) Any manufacturer of wall-covering products which operates for seven (7) continuous days per week, twentyfour (24) hours per day, and has complied with the provisions of subsection (a) is exempt from the requirement that the work be voluntary on Sundays as provided in subsection (a); provided, that the manufacturer increases employment by at least ten percent (10%), within one year of its conversion to continuous operation from non-continuous operation. (c) Any manufacturer that operates three (3)

225 shifts, or begins its work week on Sundays, may begin the shift or start the work week at 11:00 P.M. on Sunday and not be required to pay its employees one and one-half (1½) times the normal rate of pay during the one hour period between 11:00 P.M. Sunday and 12 midnight. (d) Any and all employees of a chauffeur driven limousine or taxi cab company that operates seven (7) continuous days per week, twenty-four (24) hours per day are exempt from the provisions of subsection (a) hereof. (e) Any car rental company which operates a car rental agency at T.F. Green Airport and is required pursuant to its lease agreement with the Rhode Island Airport Corporation to operate on Sundays and/or holidays is exempt from the provisions of subsection (a) hereof with respect to work performed at its T.F. Green Airport location Exemptions. Whenever in the opinion of the director any class of employers, either because of the nature of their operations or their size, should be exempted from the provisions of this chapter, the director may do so by regulations adopted in accordance with the provisions of Collective bargaining rights preserved. Nothing in this chapter shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum under the provisions of this chapter Exemptions from overtime pay. (a) Sections and do not apply to the following employees: (1) Any employee of a summer camp when it is open no more than six (6) months of the year. (2) Police officers, firefighters, and rescue service personnel employed by the cities and towns. (3) Employees of the state or political subdivision of the state who may elect through a collective bargaining agreement, memorandum of understanding, or any other agreement between the employer and representatives of the employees, or if the employees are not represented by an exclusive bargaining agent, through an agreement or understanding arrived at between the employer and the employee prior to the performance of work, to receive compensatory time off for hours worked in excess of forty (40) in a week, provided that the compensatory hours shall at least equal one and one half (1 1/2) times the hours worked over forty (40) in a week. If compensation is paid to an employee for accrued compensatory time, the compensation shall be paid at the regular rate earned by the employee at the time of payment. At the time of termination, unused accrued compensatory time shall be paid at a rate not less than: (i) The average regular rate received by the employee during the last three (3) years of the employee's employment, or (ii) The final regular rate received by the employee, whichever is higher. (4) Any employee employed in a bona fide executive, administrative, or professional capacity, as defined by the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., compensated for services on a salary basis of not less than two hundred dollars ($200) per week. (5) Any employee as defined in subsection (a)(4) above unless the wages of the employee, if computed on an hourly basis, would violate the applicable minimum wage law. (6) Any salaried employee of a nonprofit national voluntary health agency who may elect to receive compensatory time off for hours worked in excess of forty (40) hours per week. (7) Any employee, including drivers, driver's helpers, mechanics, and loaders of any motor carrier, including private carriers, with respect to whom the U.S. secretary of transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C (8) Any employee who is a salesperson, parts person, or mechanic primarily engaged in the sale and/or servicing automobiles, trucks or farm implements, and is employed by a nonmanufacturing employer primarily engaged in the business of selling vehicles or farm implements to ultimate purchasers, to the extent that the employers are exempt under the federal Wage- Hour and Equal Pay Act, 29 U.S.C. 201 et seq. and 29 U.S.C. 213(b)(10); provided that the employee's weekly, bi-weekly, or monthly actual earnings exceed an amount equal to the employee's basic contractual hourly rate of pay times the number of hours actually worked plus the employee's basic contractual hourly rate of pay times one-half (1/2) the number of hours actually worked in excess of forty (40) hours per week. (9) Any employee employed in agriculture; however, this exemption shall apply to all agricultural enterprises that produce greenhouse crops, fruit and vegetable crops, herbaceous crops, sod crops, viticulture, viniculture, floriculture, feed for livestock, forestry, dairy farming, aquaculture, the raising of livestock, furbearing animals, poultry and eggs, bees and honey, mushrooms, and nursery stock. This exemption shall also apply to nursery workers. (b) Nothing in this section shall exempt any employee who under applicable federal law is entitled to overtime pay or benefits related to it.

226 Texas Utah RULES AND REGULATIONS RELATING TO EXEMPTIONS FOR WORK ON HOLIDAYS AND SUNDAYS 1. Pursuant to R.I.G.L and R.I.G.L the Director may exempt any class of employers, either because of the nature of their operations or their size, from the requirement that work performed by employees on Sundays and holidays must be paid for at least one and one-half (1 1/2) times the normal rate of pay for the work performed. 2. Any Rhode Island employer, as defined by (4), may petition the Director for an exemption by filing with the Director a written statement containing the following: (a) a description of the class of employers which the petitioner seeks to exempt from holiday and Sunday premium wage laws; (b) a description of the employer classes' operational requirements necessitating Sunday and holiday staffing; (c) the approximate number of petitioner's employees who typically work on Sundays and holidays and who would be affected by the exemption; and (d) a statement of the economic necessity, as defined by , justifying the exemption. 3. Upon receipt of a petition for exemption pursuant to R.I.G.L , the Director shall either grant the request for an exemption for a particular employer class and notify the petitioner of the Department's intent to promulgate regulations for that class pursuant to R.I.G.L et. seq. or shall notify the petitioner that the request has been denied. 4. An employer whose petition for exemption has been denied, may, within ten (10) days from the date of the Director's notice of denial of the petition, request an appeal hearing before the Director or the Director's designee to present evidence or other information concerning the request; the Director shall then review the information provided and may either grant the petition or deny the petition. 5. When applicable, if a collective bargaining agreement provides for the payment of any premium wage on Sundays or holidays to certain employees who are otherwise exempted by these rules from receiving premium wages on Sundays or holidays, the employer shall pay the premium wage as required by the collective bargaining agreement. 6. Manufactures of monoclonal antibodies using mammalian cells requiring continuous operations and maintenance for the production of such monoclonal antibodies are exempt from paying employees Sunday and holiday premium pay when those employees work directly on the production, maintenance and quality control testing of monoclonal antibodies using mammalian cells GOV'T. Right to be Paid Prevailing Wage Rates (a) A worker employed on a public work by or on behalf of the state or a political subdivision of the state shall be paid: (1) not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed; and (2) not less than the general prevailing rate of per diem wages for legal holiday and overtime work. (b) Subsection (a) does not apply to maintenance work. (c) A worker is employed on a public work for the purposes of this section if the worker is employed by a contractor or subcontractor in the execution of a contract for the public work with the state, a political subdivision of the state, or any officer or public body of the state or a political subdivision of the state LOC. GOV'T Overtime Compensation for Certain Police Department Officers and Civilian Employees (a) This section applies only to a municipality with a population of one million or more that has not adopted Chapter 143. (b) Subject to the federal Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.), a municipality may but is not required to establish a system under which compensation is paid or compensatory time off is allowed for overtime worked by the following officers and employees of the municipality's police department: (1) a police officer who has a rank above the rank of captain and whose appointment to the officer's current rank was not based at least in part on the officer's performance on a competitive examination; or (2) a civilian who receives a salary greater than the lowest base salary that the municipality pays a captain and whose appointment to the civilian's current position was not based at least in part on the civilian's performance on a competitive examination Overtime policies for state employees. (1) As used in this section: (a) "Accrued overtime hours" means: (i) for nonexempt employees, overtime hours earned during a fiscal year that, at the end of the fiscal year, have not been paid and have not been taken as time off by the nonexempt state employee who accrued them; and (ii) for exempt employees, overtime hours earned during an overtime year. (b) "Appointed official" means: (i) each department executive director and deputy director, each division director, and each member of a board or commission; and (ii) any other person employed by a department who is appointed by, or whose appointment is required by law to be approved by, the governor and who: (A) is paid a salary by the state; and (B) who exercises managerial, policy-making, or advisory responsibility. (c) "Department" means the Department of Administrative Services, the

227 Department of Corrections, the Department of Financial Institutions, the Department of Alcoholic Beverage Control, the Insurance Department, the Public Service Commission, the Labor Commission, the Department of Agriculture and Food, the Department of Human Services, the State Board of Education, the Department of Natural Resources, the Department of Technology Services, the Department of Transportation, the Department of Commerce, the Department of Workforce Services, the State Tax Commission, the Department of Community and Culture, the Department of Health, the National Guard, the Department of Environmental Quality, the Department of Public Safety, the Department of Human Resource Management, the Commission on Criminal and Juvenile Justice, all merit employees except attorneys in the Office of the Attorney General, merit employees in the Office of the State Treasurer, merit employees in the Office of the State Auditor, Department of Veterans' Affairs, and the Board of Pardons and Parole. (d) "Elected official" means any person who is an employee of the state because the person was elected by the registered voters of Utah to a position in state government. (e) "Exempt employee" means a state employee who is exempt as defined by the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq. (f) "FLSA" means the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq. (g) "FLSA agreement" means the agreement authorized by the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq., by which a nonexempt employee elects the form of compensation the nonexempt employee will receive for overtime. (h) "Nonexempt employee" means a state employee who is nonexempt as defined by the Department of Human Resource Management applying FLSA requirements. (i) "Overtime" means actual time worked in excess of the employee's defined work period. (j) "Overtime year" means the year determined by a department under Subsection (4)(b) at the end of which an exempt employee's accrued overtime lapses. (k) "State employee" means every person employed by a department who is not: (i) an appointed official; (ii) an elected official; (iii) a member of a board or commission who is paid only on a per diem or travel expenses basis; or (iv) employed on a contractual basis at the State Office of Education. (l) "Uniform annual date" means the date when an exempt employee's accrued overtime lapses. (m) "Work period" means: (i) for all nonexempt employees, except law enforcement and hospital employees, a consecutive seven day 24 hour work period of 40 hours; (ii) for all exempt employees, a 14 day, 80 hour payroll cycle; and (iii) for nonexempt law enforcement and hospital employees, the period established by each department by rule for those employees according to the requirements of the Fair Labor Standards Act of 1978, 29 U.S.C. Section 201 et seq. (2) Each department shall compensate each state employee who works overtime by complying with the requirements of this section. (3)(a) Each department shall negotiate and obtain a signed FLSA agreement from each nonexempt employee. (b) In the FLSA agreement, the nonexempt employee shall elect either to be compensated for overtime by: (i) taking time off work at the rate of one and one-half hour off for each overtime hour worked; or (ii) being paid for the overtime worked at the rate of one and one-half times the rate per hour that the state employee receives for non-overtime work. (c) Any nonexempt employee who elects to take time off under this Subsection (3) shall be paid for any overtime worked in excess of the cap established by the Department of Human Resource Management. (d) Before working any overtime, each nonexempt employee shall obtain authorization to work overtime from the employee's immediate supervisor. (e) Each department shall: (i) for employees who elect to be compensated with time off for overtime, allow overtime earned during a fiscal year to be accumulated; and (ii) for employees who elect to be paid for overtime worked, pay them for overtime worked in the paycheck for the pay period in which the employee worked the overtime. (f) If the department pays a nonexempt employee for overtime, the department shall charge that payment to the department's budget. (g) At the end of each fiscal year, the Division of Finance shall total all the accrued overtime hours for nonexempt employees and charge that total against the appropriate fund or subfund. (4)(a) (i) Except as provided in Subsection (4)(a)(ii), each department shall compensate exempt employees who work overtime by granting them time off at the rate of one hour off for each hour of overtime worked. (ii) The executive director of the Department of Human Resource Management may grant limited exceptions to this requirement, where work circumstances dictate, by authorizing a department to pay employees for overtime worked at the rate per hour that the employee receives for non-overtime work, if the department has funds available. (b) (i) Each department shall: (A) establish in its written human resource policies a uniform annual date for each division that is at the end of any pay period; and (B) communicate the uniform annual date to its employees. (ii) If any department fails to establish a uniform annual date as required by this Subsection (4), the executive director of the Department of Human Resource Management, in conjunction with the director of the Division of Finance, shall establish the date for that department. (c) (i) Any overtime earned under this Subsection

228 (4) is not an entitlement, is not a benefit, and is not a vested right. (ii) A court may not construe the overtime for exempt employees authorized by this Subsection (4) as an entitlement, a benefit, or as a vested right. (d) At the end of the overtime year, upon transfer to another department at any time, and upon termination, retirement, or other situations where the employee will not return to work before the end of the overtime year: (i) any of an exempt employee's overtime that is more than the maximum established by the Department of Human Resource Management rule lapses; and (ii) unless authorized by the executive director of the Department of Human Resource Management under Subsection (4)(a)(ii), a department may not compensate the exempt employee for that lapsed overtime by paying the employee for the overtime or by granting the employee time off for the lapsed overtime. (e) Before working any overtime, each exempt employee shall obtain authorization to work overtime from the exempt employee's immediate supervisor. (f) If the department pays an exempt employee for overtime under authorization from the executive director of the Department of Human Resource Management, the department shall charge that payment to the department's budget in the pay period earned. (5) The Department of Human Resource Management shall: (a) ensure that the provisions of the FLSA and this section are implemented throughout state government; (b) determine, for each state employee, whether that employee is exempt, nonexempt, law enforcement, or has some other status under the FLSA; (c) in coordination with modifications to the systems operated by the Division of Finance, make rules: (i) establishing procedures for recording overtime worked that comply with FLSA requirements; (ii) establishing requirements governing overtime worked while traveling and procedures for recording that overtime that comply with FLSA requirements; (iii) establishing requirements governing overtime worked if the employee is "on call" and procedures for recording that overtime that comply with FLSA requirements; (iv) establishing requirements governing overtime worked while an employee is being trained and procedures for recording that overtime that comply with FLSA requirements; (v) subject to the FLSA, establishing the maximum number of hours that a nonexempt employee may accrue before a department is required to pay the employee for the overtime worked; (vi) subject to the FLSA, establishing the maximum number of overtime hours for an exempt employee that do not lapse; and (vii) establishing procedures for adjudicating appeals of any FLSA determinations made by the Department of Human Resource Management as required by this section; (d) monitor departments for compliance with the FLSA; and (e) recommend to the Legislature and the governor any statutory changes necessary because of federal government action. (6) In coordination with the procedures for recording overtime worked established in rule by the Department of Human Resource Management, the Division of Finance shall modify its payroll and human resource systems to accommodate those procedures. (a) Notwithstanding the procedures and requirements of Title 63G, Chapter 4, Administrative Procedures Act, Section , and Section 67-19a-301, any employee who is aggrieved by the FLSA designation made by the Department of Human Resource Management as required by this section may appeal that determination to the executive director of the Department of Human Resource Management by following the procedures and requirements established in Department of Human Resource Management rule. (b) Upon receipt of an appeal under this section, the executive director shall notify the executive director of the employee's department that the appeal has been filed. (c) If the employee is aggrieved by the decision of the executive director of the Department of Human Resource Management, the employee shall appeal that determination to the Department of Labor, Wage and Hour Division, according to the procedures and requirements of federal law. R Work Period. (1) The state's standard work week begins Saturday and ends the following Friday. Agencies may implement alternative work schedules from among those approved by the Executive Director, DHRM. (2) State offices are typically open Monday through Thursday from 7 a.m. to 6 p.m. Agencies may adopt extended business hours to enhance service to the public. (3) Agency management may approve a flexible starting and quitting time for an employee as long as scheduling is consistent with overtime provisions of Section R (4) An employee is required to be at work on time. An employee who is late, regardless of the reason including inclement weather, shall, with management approval, make up the lost time by using accrued leave, leave without pay or adjusting their work schedule. (5) An employee must work in increments of 15 minutes or more to receive salary for hours worked and overtime hours worked. This rule incorporates by reference 29 CFR for rounding practices when calculating time worked. R Dual State Employment. An employee who has more than one position within state

229 government, regardless of schedule is considered to be in a dual employment situation. The following conditions apply to dual employment status. (1) An employee may work in up to four different positions in state government. (2) An employee's benefit status for any secondary position(s), regardless of schedule of any of the positions, shall be the same as the primary position. (3) An employee's FLSA status (exempt or nonexempt) for any secondary position(s) shall be the same as the primary position. (4) Leave accrual shall be based on all hours worked in all positions and may not exceed the maximum amount allowed in the primary position. (5) As a condition of dual employment, an employee in dual employment status is prohibited from accruing excess hours in either the primary or secondary positions. All excess hours earned shall be paid at straight time in the pay period in which the excess hours are earned. (6) As a condition of dual employment, the Overtime or Comp selection shall be as overtime paid regardless of FLSA status. An employee may not accrue comp hours while in dual employment status. (7) Overtime shall be calculated at straight time or time and one half depending on the FLSA status of the primary position. Time and a half overtime rates shall be calculated based on the weighted average rate of the multiple positions. Refer to Division of Finance's payroll policies, dual employment section. (8) The Accepting Terms of Dual Employment form shall be completed, signed by the employee and supervisor, and placed in the employee's personnel file with a copy sent to the Division of Finance. (9) Secondary positions may not interfere with the efficient performance of the employee's primary position or create a conflict of interest. An employee in dual employment status shall comply with conditions under Subsection R (1). Vermont R Reasonable Accommodation. Reasonable accommodation for qualified individuals with disabilities may be a factor in any employment action. Before notifying an employee of denial of reasonable accommodation, the agency shall consult with the Division of Risk Management Forty-hour work week Overtime at one and one-half regular rate. Forty hours shall constitute a working week on all works and undertakings carried on by the state, county, or municipal governments, or by any officer of the state or of any county or municipal government. Any persons, corporation, firm, contractor, agent, manager, or foreman, who shall require or contract with any person to work upon such works or undertakings longer than 40 hours in one week shall pay such employees at a rate not less than one and one-half times the regular rate at which he is employed. Sec. 384 Overtime rate; Applicability; Deductions for board and lodging, etc. (a) An employer shall not employ an employee at a rate less than $7.25, and, beginning January 1, 2007, and on each subsequent January 1, the minimum wage rate shall be increased by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller. The minimum wage shall be rounded off to the nearest $0.01. An employer in the hotel, motel, tourist place, and restaurant industry shall not employ a service or tipped employee at a basic wage rate less than $3.65 an hour, and beginning January 1, 2008, and on each January 1 thereafter, this basic tip wage rate shall be increased at the same percentage rate as the minimum wage rate. For the purposes of this subsection, "a service or tipped employee" means an employee of a hotel, motel, tourist place, or restaurant who customarily and regularly receives more than $ per month in tips for direct and personal customer service. If the minimum wage rate established by the United States government is greater than the rate established for Vermont for any year, the minimum wage rate for that year shall be the rate established by the United States government. (b) Notwithstanding subsection (a) of this section, an employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek. However, this subsection shall not apply to: (1) Employees of any retail or service establishment. A "retail or service establishment" means an establishment 75 percent of whose annual volume of sales of goods or services, or of both, is not for resale and is recognized as retail sales or services in the particular industry. (2) Employees of an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year its average receipts for any six months of that year were not more than one third of its average receipts for the other six months of the year. (3) Employees of an establishment which is a hotel, motel or restaurant. (4) Employees of hospitals, public health centers, nursing homes, maternity homes, therapeutic community residences and residential care homes as those

230 terms are defined in Title 18, provided: (A) the employer pays the employee on a bi-weekly basis; and (B) the employer files an election to be governed by this section with the commissioner; and (C) the employee receives not less than one and one-half times the regular wage rate for any work done by the employee: (i) in excess of eight hours for any workday; or (ii) in excess of 80 hours for any bi-weekly period. (5) Those employees of a business engaged in the transportation of persons or property to whom the overtime provisions of the Federal Fair Labor Standards Act do not apply, but shall apply to all other employees of such businesses. (6) Those employees of a political subdivision of this state. (7) State employees, who shall be covered by the U.S. Federal Fair Labor Standards Act. (c) However, an employer may deduct from the rates required in subsections (a) and (b) of this section the amounts for board, lodging, apparel, rent or utilities paid or furnished or other items or services or such other conditions or circumstances as may be usual in a particular employer-employee relationship including gratuities as determined by the wage order made under this subchapter. Section I. AUTHORITY Issued by Authority of and under the provisions of Subchapter 3, Chapter 5, Title 21; Vermont Statutes Annotated as amended by No. 244 of the Acts of 1978, No. 82 of the Acts of 2005, No. 78 of the Acts of 2007, and No. 182 of the Acts of These rules supersede and replace Wage Orders Number 1 and 2. Section II. APPLICATION Minimum wage rules are applicable to all employers of two or more persons unless the employee is specifically exempt under 21 V.S.A. 383(2). Section III. DEFINITIONS 1. Commissioner. The Commissioner of Labor. 2. Employer. One who employs two or more persons. 3. Employee. Any individual employed or permitted to work by an employer. 4. Non-Service Employees. Employees in hotels, motels, tourist places or restaurants who do not regularly receive more than $ per month in tips. 5. Service or Tipped Employees. Employees in hotels, motels, tourist places or restaurants who customarily and regularly receive more than $ per month in tips for direct and personal customer service. See 21 V.S.A. 384(a). Examples of such employees include waiters, waitresses, bartenders, housekeepers, counterservers, and bellhops. 6. Occupation. Any industry, trade or business or branch thereof, or class of work therein in which the worker is gainfully employed, specifically including the cosmetology business. 7. Hotel or Motel. Any establishment, including an Inn, Cabin, Lodge, Bed and Breakfast or Resort, which as a whole or part of its business activities offers lodging accommodations for hire to the public or to members or guests of its members, and services in connection thereto. 8. Restaurant. Any establishment conducting any activity directly connected with the preparation and serving of food to the public for pay, and where lodging is not furnished for pay. 9. Tourist Industry. An amusement or recreational establishment that, a) does not operate for more than seven months in any calendar year, or b) during the preceding calendar year, had average receipts for any six months of that year that were not more than one third of its average receipts for the other six months of the year. 10. Basic Wage Rate. The minimum hourly portion of the minimum wage which an employer subject to these rules must pay service or tipped employees, provided however that in any week in which a service or tipped employee does not receive and retain sufficient tips to meet or exceed the minimum wage, the employer must contribute the additional amount necessary to raise the employee s hourly earnings to at least the minimum wage. 11. Tip. A sum of money gratuitously and voluntarily left by a customer for service, or indicated on the bill or the charge statement, to be paid to service or tipped employees for directly and personally serving that customer in a hotel, motel, tourist place or restaurant. Note: An employer mandated service charge is not a tip. 12. Tip Credit. The amount of a service or tipped employee's actual hourly average tip earnings received and retained by the service or tipped employee during the work week (not to exceed seven days) which an employer may credit toward the obligation to pay the service or tipped employee the prevailing minimum wage, not to exceed the smaller of either the amount set forth in the schedule below or the average hourly amount of tips actually earned and retained by such employee, as computed on a work week basis. Section IV. MINIMUM WAGE Effective January 1, 2008, the minimum wage rates are as follows: Non-Service Employee Minimum Wage Rate, $7.68* Service or Tipped Employee Basic Wage Rate, $3.72* Tip Credit, $3.96 * Beginning January 1, 2007, and on each subsequent January 1, the minimum wage rate shall be

231 increased by five percent or the percentage increase of the Consumer Price Index, CPI-U U.S., city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller. The minimum wage shall be rounded off to the nearest $0.01. For purposes of service and tipped employees, effective January 1, 2008 and on each January 1 thereafter, the basic wage rate for Tipped or Service Employees shall be increased at the same percentage rate as the minimum wage rate. NOTE: If the minimum wage rate established by the U.S. Government is greater than the rate established for Vermont for any year, the Vermont minimum wage rate shall be the rate established by the U.S. Government. Section V. OVERTIME An employer must pay an employee at least 1 1/2 times the employee's regular wage rate for all hours worked over 40 in a workweek. Note: Vermont exempts from this overtime requirement employees of: retail or service establishments; hotels, motels or restaurants; the state and political subdivisions of the state; certain amusement or recreational establishments; and, certain employees engaged in transportation if also exempted from the F.L.S.A. See 21 V.S.A. 384(b). Employees exempted under Vermont law may still be entitled to overtime under federal law. Section VI. WAGE STATEMENTS Each employer shall deliver to each covered employee with such employee's pay each week, a detailed written statement, which at a minimum shall set forth the gross pay and hours worked, hourly rate, and all deductions fully itemized (including number of meals for which deduction is made and gross meals deductions, unless weekly full room and board is charged). A service employee must submit a signed report to the employer on a weekly basis indicating the total amount of tips received and retained by the employee during the previous seven-day period. The employer is required to preserve all such reports submitted by the employee for a period of three years. Section VII. WEEKLY PAYMENT OF WAGES Any person having employees in his service doing and transacting business within the state shall pay each week, in lawful money or checks, each of his employees, the wages earned by such employee to a day not more than six days prior to the date of such payment. See 21 V.S.A. 342(a). After giving written notice to his employees, any person having employees in his service doing and transacting business within the state may, notwithstanding the previous paragraph, pay bi-weekly or semi-monthly in lawful money or checks, each of his employees, the wages earned by the employee to a day not more than six days prior to the date of the payment. If a collective bargaining agreement so provides, the payment may be made to a day not more than 13 days prior to the date of payment. See 21 V.S.A. 342(b). An employee who voluntarily leaves employment shall be paid on the last regular pay day, or if there is no regular pay day, on the following Friday. See 21 V.S.A. 342(c)(1). An employee who is discharged from employment shall be paid within 72 hours of the discharge. See 21 V.S.A. 342(c)(2). If an employee is absent from his/her regular place of employment on the employer's regular scheduled date of wages or salary payment, such employee shall be entitled to such payment upon demand. See 21 V.S.A. 342.(c)(3). Section VIII. ELECTRONIC OR DIRECT DEPOSIT With the written authorization of an employee, or unless otherwise required by law, an employer may pay wages due the employee by deposit through electronic funds transfer or other direct deposit systems to a checking, savings or other deposit account maintained by the employee in any financial institution within or without the state. See 21. V.S.A. 342(d). Section IX. COMMISSION OR BONUS Where an employee receives a commission on sales or a bonus in lieu of wages, the aggregate of said commission and/or bonus shall in no case be less than the minimum wage. Section X. DEDUCTIONS ALLOWED An employer may apply wage deductions as follows: 1. Deductions for goods or services. An employer may deduct for goods or services provided by the employer to the employee if the following conditions are met: a. The deduction does not reduce an employee's wages below the hourly minimum wage. b. The employee provides written authorization or the employer sufficiently documents the employee's intention to repay. c. The deduction is not prohibited by state or federal law or these rules. d. The deduction shall not exceed the amount the employee agreed to. 2. Deductions authorized by law. An employer may make deductions specifically authorized by state or federal law including deductions for state and federal taxes and child support. The employer may, with written authorization from the employee, make deductions for contributions for health insurance or retirement plans. 3. Deductions for employer provided meals and lodging. An employer shall be entitled to deduct from the wages earned an allowance for meals and lodging actually furnished and accepted as follows: Breakfast $2.72 daily

232 Virginia Lunch $3.05 daily Dinner $3.39 daily Full Board $9.16 daily or $64.12 per week Nightly Lodging $3.73 daily Full Room $22.43 weekly Full Room and Board $77.48 per week Effective January 1, 2009, and on each January 1 thereafter, the meals and lodging rates shall increase by five percent or the percentage increase of the Consumer Price Index, CPI-U, U.S. city average, not seasonally adjusted, or successor index, as calculated by the U.S. Department of Labor or successor agency for the 12 months preceding the previous September 1, whichever is smaller. Section XI. DEDUCTIONS NOT ALLOWED 1. An employer may not deduct from an employee s wages any amount due to claimed damages, cash register shortages or to pay for a medical exam as a condition of employment. 2. An employer may not deduct from an employee's wage any amount for providing or maintaining required apparel, including a uniform, nor shall any other compensation pass to any employer from an employee for required apparel, including a uniform or the maintenance thereof, unless the employee voluntarily consents to such deduction or compensation in writing and such deduction does not: a) Reduce the total remuneration received by an employee below the hourly minimum wage; b) Include any administrative fees or charges; c) Amend, nullify or violate the terms and conditions of any collective bargaining agreement. 3. An employer may neither deduct from an employee's wages, nor require an employee to pay, any amount for personal protective equipment required by occupational safety and health regulations, except as allowed by sections (h) and (d) of Title 29 of the Code of Federal Regulations. 4. An employer may not deduct from an employee's wages any amount to offset a state-mandated Health Care Contribution as defined under 21 V.S.A (Catamount Health). Section XII. NOTIFICATION 1. All employers of two or more employees shall prominently post the Minimum Wage Poster (Exhibit A) so that employees may refer to it. All required posters are available from the Department's website at or by calling Wage and Hour Program at An employer shall notify a job applicant prior to or at the time of hire, of any cost to the employee for required apparel, consistent with Section XI.2. above. Section XIII. COMPLAINTS: Any person who has any complaint regarding an employer s compliance with this order may call the Office of the Commissioner of Labor, Wage and Hour Program at Definitions. As used in this chapter, unless the context requires a different meaning: "Employer" means any political subdivision of the Commonwealth, including any county, city, town, authority, or special district that employs fire protection employees except any locality with five or fewer paid firefighters that is exempt from overtime rules by 29 U.S.C. 207(k). "Fire protection employee" means any person, other than an employee who is exempt from the overtime provisions of the Fair Labor Standards Act, who is employed by an employer as a paid firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker who is (i) trained in fire suppression and has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of an employer; and (ii) engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. "Law-enforcement employee" means any person who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, other than an employee who is exempt from the overtime provisions of the Fair Labor Standards Act, and who is a full-time employee of either (i) a police department or (ii) a sheriff's office that is part of or administered by the Commonwealth or any political subdivision thereof. "Regularly scheduled work hours" means those hours that are recurring and fixed within the work period and for which an employee receives a salary or hourly compensation. "Regularly scheduled work hours" does not include on-call, extra duty assignments or any other nonrecurring and non-fixed hours Overtime compensation rate. A. Employers shall pay fire protection or law-enforcement employees overtime compensation or leave, as under the Fair Labor Standards Act, 29 U.S.C. 207(o), at a rate of not less than one and one-half times the employee's regular rate of pay for all hours of work

233 between the statutory maximum permitted under 29 U.S.C. 207(k) and the hours for which an employee receives his salary, or if paid on an hourly basis, the hours for which the employee receives hourly compensation. A fire protection or law-enforcement employee who is paid on an hourly basis shall have paid leave counted as hours of work in an amount no greater than the numbers of hours counted for other fire protection or law-enforcement employees working the same schedule who are paid on a salaried basis in that jurisdiction. B. Nothing in this chapter shall be construed to affect the right of any employer to provide overtime compensation to fire protection or law-enforcement employees in an amount that exceeds the amounts required by this section. C. The provisions of this section pertaining to law-enforcement employees shall only apply to employers of 100 or more lawenforcement employees Work period. Employers may adopt any work period to compute overtime compensation for fire protection or law-enforcement employees between seven and 28 days provided that the work period is recurring and fixed, and is not changed for purposes of denying overtime compensation to such employees to which they may be entitled under subsection A of The provisions of this section pertaining to law-enforcement employees shall only apply to employers of 100 or more lawenforcement employees. Washington Hours of work. For purposes of computing fire protection or law-enforcement employees' entitlement to overtime compensation, all hours that an employee works or is in a paid status during his regularly scheduled work hours shall be counted as hours of work. The provisions of this section pertaining to law-enforcement employees shall only apply to such employees of an employer of 100 or more law-enforcement employees. RCW (1) Except as otherwise provided in this section, no employer shall... (1) Except as otherwise provided in this section, no employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. (2) This section does not apply to: (a) Any person exempted pursuant to RCW (5). The payment of compensation or provision of compensatory time off in addition to a salary shall not be a factor in determining whether a person is exempted under RCW (5)(c); (b) Employees who request compensating time off in lieu of overtime pay; (c) Any individual employed as a seaman whether or not the seaman is employed on a vessel other than an American vessel; (d) Seasonal employees who are employed at concessions and recreational establishments at agricultural fairs, including those seasonal employees employed by agricultural fairs, within the state provided that the period of employment for any seasonal employee at any or all agricultural fairs does not exceed fourteen working days a year; (e) Any individual employed as a motion picture projectionist if that employee is covered by a contract or collective bargaining agreement which regulates hours of work and overtime pay; (f) An individual employed as a truck or bus driver who is subject to the provisions of the Federal Motor Carrier Act (49 U.S.C. Sec et seq. and 49 U.S.C. Sec et seq.), if the compensation system under which the truck or bus driver is paid includes overtime pay, reasonably equivalent to that required by this subsection, for working longer than forty hours per week; (g) Any individual employed (i) on a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment; or (ii) in packing, packaging, grading, storing or delivering to storage, or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; or (iii) commercial canning, commercial freezing, or any other commercial processing, or with respect to services performed in connection with the cultivation, raising, harvesting, and processing of oysters or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; (h) Any industry in which federal law provides for an overtime payment based on a work week other than forty hours. However, the provisions of the federal law regarding overtime payment based on a work week other than forty hours shall nevertheless apply to employees covered by this section without regard to the existence of actual federal jurisdiction over the industrial

234 activity of the particular employer within this state. For the purposes of this subsection, "industry" means a trade, business, industry, or other activity, or branch, or group thereof, in which individuals are gainfully employed (section 3(h) of the Fair Labor Standards Act of 1938, as amended (Public Law )); (i) Any hours worked by an employee of a carrier by air subject to the provisions of subchapter II of the Railway Labor Act (45 U.S.C. Sec. 181 et seq.), when such hours are voluntarily worked by the employee pursuant to a shift-trading practice under which the employee has the opportunity in the same or in other work weeks to reduce hours worked by voluntarily offering a shift for trade or reassignment. (3) No employer shall be deemed to have violated subsection (1) of this section by employing any employee of a retail or service establishment for a work week in excess of the applicable work week specified in subsection (1) of this section if: (a) The regular rate of pay of the employee is in excess of one and one-half times the minimum hourly rate required under RCW ; and (b) More than half of the employee's compensation for a representative period, of not less than one month, represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate is to be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee. (4) No employer of commissioned salespeople primarily engaged in the business of selling automobiles, trucks, recreational vessels, recreational vessel trailers, recreational vehicle trailers, recreational campers, manufactured housing, or farm implements to ultimate purchasers shall violate subsection (1) of this section with respect to such commissioned salespeople if the commissioned salespeople are paid the greater of: (a) Compensation at the hourly rate, which may not be less than the rate required under RCW , for each hour worked up to forty hours per week, and compensation of one and one-half times that hourly rate for all hours worked over forty hours in one week; or (b) A straight commission, a salary plus commission, or a salary plus bonus applied to gross salary. (5) No public agency shall be deemed to have violated subsection (1) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if: (a) In a work period of twentyeight consecutive days the employee receives for tours of duty which in the aggregate exceed two hundred forty hours; or (b) in the case of such an employee to whom a work period of at least seven but less than twenty-eight days applies, in his or her work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his or her work period as two hundred forty hours bears to twenty-eight days; compensation at a rate not less than one and one-half times the regular rate at which he or she is employed. [1998 chap. 239 sec. 2. Prior: 1997 chap. 311 sec. 1; 1997 chap. 203 sec. 2; 1995 chap. 5 sec. 1; 1993 chap. 191 sec. 1; 1992 chap. 94 sec. 1; 1989 chap. 104 sec. 1; prior: 1977 Ex.Sess. chap. 4 sec. 1; 1977 Ex.Sess. chap. 74 sec. 1; st Ex.Sess. chap. 289 sec. 3.] NOTES: Findings Intent 1998 chap. 239: "The legislature finds that employees in the airline industry have a long-standing practice and tradition of trading shifts voluntarily among themselves. The legislature also finds that federal law exempts airline employees from the provisions of federal overtime regulations. This act is intended to specify that airline industry employers are not required to pay overtime compensation to an employee agreeing to work additional hours for a coemployee." [1998 chap. 239 sec. 1.] Intent Collective bargaining agreements 1998 chap. 239: "This act does not alter the terms, conditions, or practices contained in any collective bargaining agreement." [1998 chap. 239 sec. 3.] Retroactive application 1998 chap. 239: "This act is remedial in nature and applies retroactively." [1998 chap. 239 sec. 4.] Severability 1998 chap. 239: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1998 chap. 239 sec. 5.] Construction 1997 chap. 203: "Nothing in this act shall be construed to alter the terms, conditions, or practices contained in any collective bargaining agreement in effect at the time of the effective date of this act [July 27, 1997] until the expiration date of such agreement." [1997 chap. 203 sec. 4.] Intent Application 1995 chap. 5: "This act is intended to clarify the original intent of Wash. Rev. Code (5)(c). This act applies to all administrative and judicial actions commenced on or after February 1, 1995, and pending on March 30, 1995, and such actions commenced on or after March 30, 1995." [1995 chap. 5 sec. 2.] WAC The regular rate of pay shall be the hourly rate at which the employee is... The regular rate of pay shall be the hourly rate at which the employee is being paid, but may not be less than

235 the established minimum wage rate. Employees who are compensated on a salary, commission, piece rate or percentage basis, rather than an hourly wage rate, unless specifically exempt, are entitled to one and one-half times the regular rate of pay for all hours worked in excess of forty per week. The overtime may be paid at one and one-half times the piecework rate during the overtime period, or the regular rate of pay may be determined by dividing the amount of compensation received per week by the total number of hours worked during that week. The employee is entitled to one and one-half times the regular rate arrived at for all hours worked in excess of forty per week. WAC The term "individual employed in the capacity of outside salesman" in... The term "individual employed in the capacity of outside salesman" in RCW (5)(c) shall mean any employee: (1) Who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or places of business, as well as on the premises (where the employee regulates his own hours and the employer has no control over the total number of hours worked) in the following alternative activities: (a) In making sales; including any sale, exchange, contract to sell, consignment for sale, shipment for sale or other disposition; or (b) In obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; or (c) In demonstrating products or equipment for sale; or (d) In the sale of services and performance of the service sold when the compensation to the employee is computed on a commission basis; and (2) Whose hours of work of a nature other than that described in (1)(a), (b), (c) and (d) of this section do not exceed 20 percent of the hours worked in the work week by nonexempt employees of the employer: Provided, That work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, shall not be regarded as nonexempt work; and (3) Who is compensated by the employer on a guaranteed salary, commission or fee basis and who is advised of his status as "outside salesman." Eight hour day, 1899 act. Public works contracts Emergency overtime All work done by contract or subcontract on any building or improvements or works on roads, bridges, streets, alleys or buildings for the state or any county or municipality within the state, shall be done under the provisions of RCW through : PROVIDED, That in cases of extraordinary emergency such as danger to life or property, the hours for work may be extended, but in such case the rate of pay for time employed in excess of eight hours of each calendar day, shall be one and one-half times the rate of pay allowed for the same amount of time during eight hours' service. And for this purpose RCW through is made a part of all contracts, subcontracts or agreements for work done for the state or any county or municipality within the state. RCW Notwithstanding the provisions of RCW through , a... Notwithstanding the provisions of RCW through , a contractor or subcontractor in any public works contract subject to those provisions may enter into an agreement with his or her employees in which the employees work up to ten hours in a calendar day. No such agreement may provide that the employees work ten-hour days for more than four calendar days a week. Any such agreement is subject to approval by the employees. The overtime provisions of [*] RCW shall not apply to the hours, up to forty hours per week, worked pursuant to agreements entered into under this section. RCW (1) No employee of a health care facility may be required to work... (1) No employee of a health care facility may be required to work overtime. Attempts to compel or force employees to work overtime are contrary to public policy, and any such requirement contained in a contract, agreement, or understanding is void. (2) The acceptance by any employee of overtime is strictly voluntary, and the refusal of an employee to accept such overtime work is not grounds for discrimination, dismissal, discharge, or any other penalty, threat of reports for discipline, or employment decision adverse to the employee. (3) This section does not apply to overtime work that occurs: (a) Because of any unforeseeable emergent circumstance; (b) Because of prescheduled on-call time; (c) When the employer documents that the employer has used reasonable efforts to obtain staffing. An employer has not used reasonable efforts if overtime work is used to fill vacancies resulting from chronic staff shortages; or (d) When an employee is required to work overtime to complete a patient care procedure already in progress where the absence of the employee could have an adverse effect on the patient.

236 WAC (1)(a) The compensation system under which a truck or bus... (1)(a) The compensation system under which a truck or bus driver subject to the provisions of the Federal Motor Carrier Act is paid shall include overtime pay at least reasonably equivalent to that required by Wash. Rev. Code for working in excess of forty hours a week. To meet this requirement, an employer may, with notice to a truck or bus driver subject to the provisions of the Federal Motor Carrier Act, establish a rate of pay that is not on an hourly basis and that includes in the rate of pay compensation for overtime. An employer shall substantiate any deviation from payment on an hourly basis to the satisfaction of the department by using the following formula or an alternative formula that, at a minimum, compensates hours worked in excess of forty hours per week at an overtime rate of pay and distributes the projected overtime pay over the average number of hours projected to be worked. The following formula is recommended for establishing a uniform rate of pay to compensate work that is not paid on an hourly basis and for which compensation for overtime is included: Example: A truck driver is paid on a mileage basis for a two hundred thirty mile trip performed about ten times a week. The base rate of pay is twenty cents a mile. The overtime rate of pay is thirty cents a mile. The average length of the trip is four and one-half hours.

237 West Virginia (b) In using a formula to determine a rate of pay, the average number of hours projected to be worked and the average number of work units accomplished per week shall reflect the actual number of hours worked and work units projected to be accomplished by persons performing the same type of work over a representative time period within the past two years consisting of at least twenty-six consecutive weeks. (c) The department may evaluate alternative rates of pay and formulas used by employers in order to determine whether the rates of pay established under this section result in the driver receiving compensation reasonably equivalent to one and one-half times the base rate of pay for actual hours worked in excess of forty hours per week. (2) Where an employee receives a different base rate of pay depending on the type of work performed, the rate that is paid or used for hours worked in excess of forty hours per week shall be at least the overtime rate of pay for the type of work in which most hours were worked. (3) Compensation plans before March 1, An employer who employed drivers who worked over forty hours a week consisting of both in-state and out-of-state hours anytime before March 1, 2007, may, within ninety days of the adoption of this subsection, submit a proposal consistent with subsection (1) of this section to the department for approval of a reasonably equivalent compensation system. The employer shall submit information to substantiate its proposal consisting of at least twentysix consecutive weeks over a representative time period between July 1, 2005, and March 1, The department shall then determine if the compensation system includes overtime that was at least reasonably equivalent to that required by Wash. Rev. Code Note 1: On March 1, 2007, the Washington state supreme court ruled that overtime rate of pay includes hours worked within and outside the state of Washington for Washington-based employees. Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007). 21-5C-3. Maximum hours; overtime compensation. (a) On and after the first day of July, one thousand nine hundred eighty, no employer shall employ any of his employees for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate of not less than one and one-half times the regular rate at which he is employed. (b) As used in this section the "regular rate" at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include: (1) Sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or

238 dependent on hours worked, production, or efficiency; (2) Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his employer's interests and properly reimbursable by the employer, and other similar payments to an employee which are not made as compensation for his hours of employment; (3) Sums paid in recognition of services performed during a given period if either: (a) Both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly; or (b) the payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan, meeting the requirements of the commissioner set forth in appropriate regulation which he shall issue, having due regard among other relevant factors, to the extent to which the amounts paid to the employee are determined without regard to hours of work, production or efficiency; or (c) the payments are talent fees (as such talent fees are defined and delimited by regulations of the commissioner) paid to performers, including announcers, on radio and television programs; (4) Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees; (5) Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee under subsection (a) or in excess of the employee's normal working hours or regular working hours, as the case may be; (6) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days; or (7) Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal or regular workweek where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workweek. (c) No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under subsection (a) if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than the minimum hourly rate provided in section two and compensation at not less than one and one-half times such rate for all hours worked in excess of such maximum workweek, and (2) provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified. (d) No employer shall be deemed to have violated subsection (a) by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under such subsection if, pursuant to an agreement or understanding arrived at between the employer and the employee before performance of the work, the amount paid to the employee for the number of hours worked by him in such workweek in excess of the maximum workweek applicable to such employee under such subsection: (1) In the case of an employee employed at piece rates, is computed at piece rates not less than one and one-half times the bona fide piece rates applicable to the same work when performed during non-overtime hours; or (2) In the case of an employee performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than one and one-half times such bona fide rates applicable to the same work when performed during non-overtime hours; or (3) Is computed at a rate not less than one and one-half times the rate established by such agreement or understanding as the basic rate to be used in computing overtime compensation thereunder: Provided, That the rate so established shall be authorized by regulation by the commissioner as being substantially equivalent to the average hourly earnings of the employee, exclusive of overtime premiums, in the particular work over a representative period of time; and if (i) the employee's average hourly earnings for the workweek exclusive of payments described in subdivisions (1) through (7) of subsection (b) are not less than the minimum hourly rate required by applicable law, and (ii) extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate. (e) Extra compensation paid as described in subdivisions (5), (6) and (7) of subsection (b) shall be creditable toward overtime compensation payable pursuant to this

239 section. (f)(1) Employees of county and municipal governments may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime is required pursuant to this section. (2) County and municipal governments may provide compensatory time under subdivision (1) of this subsection, only pursuant to a written agreement arrived at between the employer and employee before the performance of the work, and recorded in the employer's record of hours worked, and if the employee has not accrued compensatory time in excess of the limit prescribed in subdivision (3) of this subsection. Any written agreement may be modified at the request of either the employer or the employee, but under no circumstances shall changes in the agreement deny an employee compensatory time heretofore acquired. (3) An employee may accrue up to four hundred eighty hours of compensatory time if the employee's work is a public safety activity, an emergency response activity or a seasonal activity. An employee engaged in other work for a county or municipal government may accrue up to two hundred forty hours of compensatory time. Any such employee who has accrued four hundred eighty or two hundred forty hours of compensatory time, as the case may be, shall, for additional overtime hours of work, be paid overtime compensation. If compensation is paid to an employee for accrued compensatory time off, such compensation shall be paid at the regular rate earned by the employee at the time the employee receives such payment. (4) An employee who has accrued compensatory time off authorized to be provided under subdivision (1) of this subsection shall, upon termination of employment, be paid for the unused compensatory time at a rate of compensation not less than: (A) The average regular rate received by such employee during the last three years of the employee's employment; or (B) The final regular rate received by such employee, whichever is higher. (5) An employee of a county or municipal government: (A) Who has accrued compensatory time off authorized to be provided under subdivision (1) of this subsection; and (B) Who has requested the use of such compensatory time, shall be permitted by the employee's employer to use such time within a reasonable time after making the request if the use of the compensatory time does not unduly disrupt the operation of the public agency. Compensatory time must be used within one year from the time it was acquired. (6) For purposes of this subsection the terms "compensatory time" and "compensatory time off" mean hours during which an employee is not working, which are not counted as hours worked during the applicable workweek or other work period for purposes of overtime compensation, and for which the employee is compensated at the employee's regular rate a. Policemen who are required to work during holidays; how compensated. From the effective date of this section, if any municipal police officer is required to work during a legal holiday as is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the police officer's regular scheduled day off, he or she is allowed equal time off at a time as may be approved by the chief of police under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay: Provided, That if a special election of a political subdivision other than a municipality falls on a Saturday or Sunday, the municipality may choose not to recognize the day of the election as a holiday if a majority of the municipality's city council votes not to recognize the day of the election as a holiday a. Firemen who are required to work during holidays; how compensated. From the effective date of this section, if any member of a paid fire department is required to work during a legal holiday as is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the member's regular scheduled day off, he or she shall be allowed equal time off at such time as may be approved by the chief executive officer of the department under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay: Provided, That if a special election of a political subdivision other than a municipality falls on a Saturday or Sunday, the municipality may choose not to recognize the day of the election as a holiday if a majority of the municipality's city council votes not to recognize the day of the election as a holiday. 21-5F-3. Hospital nursing overtime limitations and requirements. (a) Except as provided in subsections (b), (c), (d), (e) and (f) of this section, a hospital is prohibited from mandating a nurse, directly or through coercion, to accept an assignment of overtime and is prohibited from taking action against a nurse solely on the grounds that the nurse refuses to accept an assignment of overtime at the facility if the nurse declines to work additional hours because doing so may, in the nurse's judgment,

240 Wisconsin jeopardize patient or employee safety. (b) Notwithstanding subsections (a) and (g) of this section, a nurse may be scheduled for duty or mandated to continue on duty in overtime status in an unforeseen emergent situation that jeopardizes patient safety. (c) Subsections (a) and (g) of this section do not apply when a nurse may be required to fulfill prescheduled on-call time, but nothing in this article shall be construed to permit an employer to use on-call time as a substitute for mandatory overtime. (d) Notwithstanding subsections (a) and (g) of this section, a nurse may be required to work overtime to complete a single patient care procedure already in progress, but nothing in this article shall be construed to permit an employer to use a staffing pattern as a means to require a nurse to complete a procedure as a substitute for mandatory overtime. (e) Subsection (a) of this section does not apply when a collective bargaining agreement is in place between nurses and the hospital which is intended to substitute for the provisions of this article by incorporating a procedure for the hospital to require overtime. (f) Subsection (a) of this section does not apply to voluntary overtime. (g) In the interest of patient safety, any nurse who works twelve or more consecutive hours, as permitted by this section, shall be allowed at least eight consecutive hours of off-duty time immediately following the completion of the shift. Except as provided in subsections (b), (c) and (d) of this section, no nurse shall work more than sixteen hours in a twenty-four hour period. The nurse is responsible for informing the employer hospital of other employment experience during the twenty-four hour period in question if this provision is to be invoked. To the extent that an on-call nurse has actually worked sixteen hours in a hospital, efforts shall be made by the hospital to find a replacement nurse to work. Each hospital shall designate an anonymous process for patients and nurses to make staffing complaints related to patient safety. (h) Each hospital shall post, in one or more conspicuous place or places where notices to employee nurses are customarily posted, a notice in a form approved by the commissioner setting forth a nurse's rights under this article Hours of labor. No person may be employed or be permitted to work in any place of employment or at any employment for such period of time during any day, night or week, as is dangerous or prejudicial to the person's life, health, safety or welfare. The department shall investigate, ascertain, determine and fix such reasonable classification, and promulgate rules fixing a period of time, or hours of beginning and ending work during any day, night or week, which shall be necessary to protect the life, health, safety or welfare of any person, or to carry out the purposes of ss to The department shall, by rule, classify such periods of time into periods to be paid for at regular rates and periods to be paid for at the rate of at least one and one-half times the regular rates. Such investigations, classifications and orders shall be made as provided in s and the penalties under s (12) shall apply to and be imposed for any violation of ss to Such orders shall be subject to review in the manner provided in ch Section (2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section Hours of work. (1) No person shall be employed or be permitted to work in any place of employment or at any employment for such period or periods of time during any day, night or week as shall be dangerous or prejudicial to the life, health, safety or welfare of such person. (2) It is recommended that each employer allow each employee, 18 years of age or over, at least 30 minutes for each meal period reasonably close to the usual meal period time (6:00 a.m., 12:00 noon, 6:00 p.m. or 12:00 midnight) or near the middle of a shift. Shifts of more than 6 consecutive hours without a meal period should be avoided. Note: The above meal period requirements are mandatory for minors under 18 years of age. (3) The employer shall pay all employees for on-duty meal periods, which are to be counted as work time. An on-duty meal period is a meal period where the employer does not provide at least 30 minutes free from work. Any meal period where the employee is not free to leave the premises of the employer will also be considered an on-duty meal period Overtime pay. Except as provided in s. DWD , each employer subject to this chapter shall pay to each employee time and one-half the regular rate of pay for all hours worked in excess of 40 hours per week Waiver or modification. Except as provided in s. DWD , where a collectively bargained agreement exists, the department may consider the written application of labor and management for a waiver or modification to the requirements of this chapter based upon practical difficulties or unnecessary hardship in complying therewith. If the department determines that in the circumstances

241 existing compliance with this chapter is unjust or unreasonable and that granting such waiver or modification will not be dangerous or prejudicial to the life, health, safety or welfare of the employees, the department may grant such waiver or modification as may be appropriate to the case Applicability of chapter. Pursuant to s (1), Stats., employees employed in manufactories, mechanical or mercantile establishments, beauty parlors, laundries, restaurants, confectionary stores, telegraph or telephone offices or exchanges or express or transportation establishments, hotels, and by the state, its political subdivisions and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts, are covered by this chapter. Employees employed in domestic service in a household by a household are not subject to this chapter Hours of labor; compensatory time. (1) In this section: (a) "Compensatory time" means hours during which an employee is not working, which are not counted as hours worked during the workweek or other work period classified by the department by rule promulgated under s for purposes of calculating overtime compensation, and for which the employee is compensated at the employee's regular rate of pay. (b) "Employee" has the meaning given in s (2). (c) "Overtime compensation" means the compensation required to be paid for hours worked during periods that the department has classified, by rule promulgated under s , as periods to be paid for at the rate of at least 1.5 times an employee's regular rate of pay. (2) An employer described in s (1) (b) may provide an employee, in lieu of overtime compensation, compensatory time off as permitted under 29 USC 207 (o), as amended to April 15, Wage rate on state work. Definitions. In this section: (a) "Area" means the county in which a proposed project of public works that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, "area" means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, "area" means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, "area" means the entire state or, if the department is requested to review a determination under sub. (3) (c), "area" means the city, village, or town in which a proposed project of public works that is subject to this section is located. (am) "Bona fide economic benefit" means an economic benefit for which an employer makes irrevocable contributions to a trust or fund created under 29 USC 186 (c) or to any other bona fide plan, trust, program, or fund no less often than quarterly or, if an employer makes annual contributions to such a bona fide plan, trust, program, or fund, for which the employer irrevocably escrows moneys at least quarterly based on the employer's expected annual contribution. (b) "Hourly basic rate of pay" means the hourly wage paid to any employee, excluding any contributions or payments for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefits, whether paid directly or indirectly. (bg) "Insufficient wage data" means less than 500 hours of work performed in a particular trade or occupation on projects that are similar to a proposed project of public works that is subject to this section. (bj) "Minor service and [or] maintenance work" means a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration. NOTE: The correct word is shown in brackets. Corrective legislation is pending. (c) "Prevailing hours of labor" for any trade or occupation in any area means 10 hours per day and 40 hours per week and may not include any hours worked on a Saturday or Sunday or on any of the following holidays: 1. January The last Monday in May. 3. July The first Monday in September. 5. The 4th Thursday in November. 6. December The day before if January 1, July 4 or December 25 falls on a Saturday. 8. The day following if January 1, July 4 or December 25 falls on a Sunday. (d) 1. Except as provided in subd. 2., "prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for a majority of the hours worked in the trade or occupation on projects in the

242 area. 2. If there is no rate at which a majority of the hours worked in the trade or occupation on projects in the area is paid, "prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area. (f) "State agency" means any office, department, independent agency, institution of higher education, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts. "State agency" also includes the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, and the Wisconsin Aerospace Authority. (fm) "Supply and installation contract" means a contract under which the material is installed by the supplier, the material is installed by means of simple fasteners or connectors such as screws or nuts and bolts and no other work is performed on the site of the project of public works, and the total labor cost to install the material does not exceed 20 percent of the total cost of the contract. (g) "Truck driver" includes an owner-operator of a truck. (1m) Applicability. Subject to sub. (3g), this section applies to any project of public works erected, constructed, repaired, remodeled, demolished for the state or a state agency, other than a highway, street, or bridge construction or maintenance project, including all of the following: (a) A project erected, constructed, repaired, remodeled, demolished by one state agency for another state agency under any contract or under any statute specifically authorizing cooperation between state agencies. (b) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, the state in lieu of the state or a state agency contracting for the erection, construction, repair, remodeling, demolition of the facility. (c) A "sanitary sewer" or water main project in which the completed sanitary sewer or water main is acquired by, or dedicated to, the state for ownership or maintenance by the state. (2) Prevailing wage rates and hours of labor. Any contract made for the erection, construction, remodeling, repairing, or demolition of any project of public works to which the state or any state agency is a party shall contain a stipulation that no person performing the work described in sub. (2m) may be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, except that any such person may be permitted or required to work more than such prevailing hours of labor per day and per week if he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay; nor may he or she be paid less than the prevailing wage rate determined under sub. (3) in the same or most similar trade or occupation in the area in which the project of public works is situated. A reference to the prevailing wage rates determined under sub. (3) and the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project of public works that is subject to this section is entered into, the prevailing wage rates determined under sub. (3) and the prevailing hours of labor shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, as determined by the department, the department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. (2m) Covered employees. (a) Subject to par. (b), all of the following employees shall be paid the prevailing wage rate determined under sub. (3) and may not be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay: 1. All laborers, workers, mechanics, and truck drivers employed on the site of a project of public works that is subject to this section. 2. All laborers, workers, mechanics, and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies, or equipment on the site of a project of public works that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project of public works that is subject to this section by a contractor, subcontractor, agent, or other person performing any work on the site of the project. (b) Notwithstanding par. (a) 1., a laborer, worker, mechanic or truck driver who is regularly employed to process, manufacture, pick up or deliver materials or products from a commercial establishment that has a fixed place of business from which the establishment regularly supplies processed or manufactured materials or products is not entitled to receive the prevailing wage

243 rate determined under sub. (3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor unless any of the following applies: 1. The laborer, worker, mechanic, or truck driver is employed to go to the source of mineral aggregate such as sand, gravel, or stone that is to be immediately incorporated into the work, and not stockpiled or further transported by truck, pick up that mineral aggregate, and deliver that mineral aggregate to the site of a project of public works that is subject to this section by depositing the material substantially in place, directly or through spreaders from the transporting vehicle. 2. The laborer, worker, mechanic, or truck driver is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project of public works and transport that excavated material or spoil away from the site of the project. (c) A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck. (3) Investigation; determination. (a) Before bids are asked for any work to which this section applies, the state agency having the authority to prescribe the specifications shall apply to the department to determine the prevailing wage rate for each trade or occupation required in the work under contemplation in the area in which the work is to be done. The department shall conduct investigations and hold public hearings as necessary to define the trades or occupations that are commonly employed on projects that are subject to this section and to inform itself as to the prevailing wage rates in all areas of the state for those trades or occupations, in order to determine the prevailing wage rate for each trade or occupation. The department shall issue its determination within 30 days after receiving the request and shall file the determination with the requesting state agency. For the information of the employees working on the project, the prevailing wage rates determined by the department, the prevailing hours of labor and the provisions of subs. (2) and (6m) shall be kept posted by the state agency in at least one conspicuous and easily accessible place on the site of the project. (am) The department shall, by January 1 of each year, compile the prevailing wage rates for each trade or occupation in each area. The compilation shall, in addition to the current prevailing wage rates, include future prevailing wage rates when those prevailing wage rates can be determined for any trade or occupation in any area and shall specify the effective date of those future prevailing wage rates. If a project of public works extends into more than one area there shall be but one standard of prevailing wage rates for the entire project. (ar) In determining prevailing wage rates under par. (a) or (am), the department may not use data from projects that are subject to this section, s , , , or or 40 USC 3142 unless the department determines that there is insufficient wage data in the area to determine those prevailing wage rates, in which case the department may use data from projects that are subject to this section, s , , , or or 40 USC (b) Any person may request a recalculation of any portion of an initial determination within 30 days after the initial determination date if the person submits evidence with the request showing that the prevailing wage rate for any given trade or occupation included in the initial determination does not represent the prevailing wage rate for that trade or occupation in the area. The evidence shall include wage rate information reflecting work performed by persons working in the contested trade or occupation in the area during the current survey period. The department shall affirm or modify the initial determination within 15 days after the date on which the department receives the request for recalculation. (c) In addition to the recalculation under par. (b), the state agency that requested the determination under this subsection may request a review of any portion of a determination within 30 days after the date of issuance of the determination if the state agency submits evidence with the request showing that the prevailing wage rate for any given trade or occupation included in the determination does not represent the prevailing wage rate for that trade or occupation in the city, village, or town in which the proposed project of public works is located. That evidence shall include wage rate information for the contested trade or occupation on at least 3 similar projects located in the city, village, or town where the proposed project of public works is located on which some work has been performed during the current survey period and which were considered by the department in issuing its most recent compilation under par. (am). The department shall affirm or modify the determination within 15 days after the date on which the department receives the request for review. (3g) Nonapplicability. This section does not apply to any of the following: (a) A project of public works for which the estimated project cost of completion is less than $25,000. (b) A project of public works in which the labor for the project is provided by unpaid volunteers. (c) Minor service or maintenance work, warranty work, or work under a supply and installation contract. (4r) Compliance. (a) When the department finds that a state agency has not requested a determination under sub. (3) (a) or that a state agency, contractor or subcontractor has not physically incorporated a determination into a contract or

244 subcontract as required under sub. (2) or has not notified a minor subcontractor of a determination in the manner prescribed by the department by rule promulgated under sub. (2), the department shall notify the state agency, contractor or subcontractor of the noncompliance and shall file the determination with the state agency, contractor or subcontractor within 30 days after such notice. (b) Upon completion of a project of public works and before receiving final payment for his or her work on the project, each agent or subcontractor shall furnish the contractor with an affidavit stating that the agent or subcontractor has complied fully with the requirements of this section. A contractor may not authorize final payment until the affidavit is filed in proper form and order. (c) Upon completion of a project of public works and before receiving final payment for his or her work on the project, each contractor shall file with the state agency authorizing the work an affidavit stating that the contractor has complied fully with the requirements of this section and that the contractor has received an affidavit under par. (b) from each of the contractor's agents and subcontractors. A state agency may not authorize a final payment until the affidavit is filed in proper form and order. If a state agency authorizes a final payment before an affidavit is filed in proper form and order or if the department determines, based on the greater weight of the credible evidence, that any person performing the work specified in sub. (2m) has been or may have been paid less than the prevailing wage rate or less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor and requests that the state agency withhold all or part of the final payment, but the state agency fails to do so, the state agency is liable for all back wages payable up to the amount of the final payment. (5) Records; inspection; enforcement. (a) Each contractor, subcontractor, or contractor's or subcontractor's agent performing work on a project of public works that is subject to this section shall keep full and accurate records clearly indicating the name and trade or occupation of every person performing the work described in sub. (2m) and an accurate record of the number of hours worked by each of those persons and the actual wages paid for the hours worked. (am) 1. Except as provided in this subdivision, by no later than the end of the first week of a month following a month in which a contractor, subcontractor, or contractor's or subcontractor's agent performs work on a project of public works that is subject to this section, the contractor, subcontractor, or agent shall submit to the department in an electronic format a certified record of the information specified in par. (a) for that preceding month. This requirement does not apply to a contractor, subcontractor, or agent if all persons employed by the contractor, subcontractor, or agent who are performing the work described in sub. (2m) are covered under a collective bargaining agreement and the wage rates for those persons under the collective bargaining agreement are not less than the prevailing wage rate. In that case, the contractor, subcontractor, or agent shall submit to the department in an electronic format a copy of all collective bargaining agreements that are pertinent to the project of public works by no later than the end of the first week of the first month in which the contractor, subcontractor, or agent performs work on the project of public works. 2. The department shall post on its Internet site all certified records and collective bargaining agreements submitted to the department under subd. 1., except that the department may not post on that site the name of or any other personally identifiable information relating to any employee of a contractor, subcontractor, or agent that submits information to the department under subd. 1. In this subdivision, "personally identifiable information" does not include an employee's trade or occupation, his or her hours of work, or the wages paid for those hours worked. (b) It shall be the duty of the department to enforce this section. To this end it may demand and examine, and every contractor, subcontractor, and contractor's and subcontractor's agent shall keep, and furnish upon request by the department, copies of payrolls and other records and information relating to the wages paid to persons performing the work described in sub. (2m) for work to which this section applies. The department may inspect records in the manner provided in this chapter. Every contractor, subcontractor, or agent performing work on a project of public works that is subject to this section is subject to the requirements of this chapter relating to the examination of records. Section (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section. (c) If requested by any person, the department shall inspect the payroll records of any contractor, subcontractor, or agent performing work on a project of public works that is subject to this section to ensure compliance with this section. In the case of a request made by a person performing the work specified in sub. (2m), if the department finds that the contractor, subcontractor, or agent subject to the inspection is in compliance and that the request is frivolous, the department shall charge the person making the request the actual cost of the inspection. In the case of a request made by a person not performing the work specified in sub. (2m), if the department finds that the contractor, subcontractor, or agent subject to the inspection is in compliance and that the request is frivolous, the department shall

245 charge the person making the request $250 or the actual cost of the inspection, whichever is greater. In order to find that a request is frivolous, the department must find that the person making the request made the request in bad faith, solely for the purpose of harassing or maliciously injuring the contractor, subcontractor, or agent subject to the inspection, or that the person making the request knew, or should have known, that there was no reasonable basis for believing that a violation of this section had been committed. (6m) Liability and penalties. (ag) 1. Any contractor, subcontractor, or contractor's or subcontractor's agent who fails to pay the prevailing wage rate determined by the department under sub. (3) or who pays less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor is liable to any affected employee in the amount of his or her unpaid wages or his or her unpaid overtime compensation and in an additional amount as liquidated damages as provided in subd. 2., 3., whichever is applicable. 2. If the department determines upon inspection under sub. (5) (b) or (c) that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the department shall order the contractor to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages within a period specified by the department in the order. 3. In addition to or in lieu of recovering the liability specified in subd. 1. as provided in subd. 2., any employee for and in behalf of that employee and other employees similarly situated may commence an action to recover that liability in any court of competent jurisdiction. If the court finds that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate determined by the department under sub. (3) or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the court shall order the contractor, subcontractor, or agent to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation and an additional amount equal to 100 percent of the amount of those unpaid wages or that unpaid overtime compensation as liquidated damages. 5. No employee may be a party plaintiff to an action under subd. 3. unless the employee consents in writing to become a party and the consent is filed in the court in which the action is brought. Notwithstanding s (1), the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant. (am) Except as provided in pars. (b), (d) and (f), any contractor, subcontractor or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense. (b) Whoever induces any person who seeks to be or is employed on any project of public works that is subject to this section to give up, waive, or return any part of the wages to which the person is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to a person for work on a project that is not subject to this section during a week in which the person works both on a project of public works that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from employment, or by any other means is guilty of an offense under s (1). (c) Any person employed on a project of public works that is subject to this section who knowingly permits a contractor, subcontractor, or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the project, who gives up, waives, or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives, or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project of public works that is subject to this section and on a project that is not subject to this section, is guilty of an offense under s (2). (d) Whoever induces any person who seeks to be or is employed on any project of public works that is subject to this section to permit any part of the wages to which the person is entitled under the contract governing the project to be deducted from the person's pay is guilty of an offense under s (3), unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC (e) Any person employed on a project of public works that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing the project to be deducted from his or her pay is guilty of an offense under s (4), unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC (f) Paragraph (am) does not apply to any person who fails to provide any information to the department to assist the department in

246 determining prevailing wage rates under sub. (3) (a) or (am). (7) Debarment. (a) Except as provided under pars. (b) and (c), the department shall distribute to all state agencies a list of all persons whom the department has found to have failed to pay the prevailing wage rate determined under sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor at any time in the preceding 3 years. The department shall include with any name the address of the person and shall specify when the person failed to pay the prevailing wage rate and when the person paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor. A state agency may not award any contract to the person unless otherwise recommended by the department or unless 3 years have elapsed from the date the department issued its findings or date of final determination by a court of competent jurisdiction, whichever is later. (b) The department may not include in a notification under par. (a) the name of any person on the basis of having let work to a person whom the department has found to have failed to pay the prevailing wage rate determined under sub. (3) or has found to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor. (c) This subsection does not apply to any contractor, subcontractor or agent who in good faith commits a minor violation of this section, as determined on a case-by-case basis through administrative hearings with all rights to due process afforded to all parties or who has not exhausted or waived all appeals. (d) Any person submitting a bid on a project of public works that is subject to this section shall, on the date the person submits the bid, identify any construction business in which the person, or a shareholder, officer, or partner of the person, if the person is a business, owns, or has owned at least a 25% interest on the date the person submits the bid or at any other time within 3 years preceding the date the person submits the bid, if the business has been found to have failed to pay the prevailing wage rate determined under sub. (3) or to have paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor. (e) The department shall promulgate rules to administer this subsection Highway contracts. (1) Definitions. In this section: (a) "Area" means the county in which a proposed project that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, "area" means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, "area" means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, "area" means the entire state. (b) "Hourly basic rate of pay" has the meaning given in s (1) (b). (bg) "Insufficient wage data" has the meaning given in s (1) (bg). (c) "Prevailing hours of labor" has the meaning given in s (1) (c). (d) 1. Except as provided in subd. 2., "prevailing wage rate" for any trade or occupation in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation in the area. 2. If there is no rate at which a majority of the hours worked in the trade or occupation in the area is paid, "prevailing wage rate" means the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation in that area. (e) "Truck driver" has the meaning given in s (1) (g). (2) Prevailing wage rates and hours of labor. No person performing the work described in sub. (2m) in the employ of a contractor, subcontractor, agent or other person performing any work on a project under a contract based on bids as provided in s (2) to which the state is a party for the construction or improvement of any highway may be permitted to work a greater number of hours per day or per week than the prevailing hours of labor; nor may he or she be paid a lesser rate of wages than the prevailing wage rate in the area in which the work is to be done determined under sub. (3) ; except that any such person may be permitted or required to work more than such prevailing hours of labor per day and per week if he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay. (2m) Covered employees. (a) Subject to par. (b), all of the following employees shall be paid the prevailing wage rate determined under sub. (3) and may not be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay: 1. All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section. 2.

247 All laborers, workers, mechanics and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project that is subject to this section by a contractor, subcontractor, agent or other person performing any work on the site of the project. (b) Notwithstanding par. (a) 1., a laborer, worker, mechanic or truck driver who is regularly employed to process, manufacture, pick up or deliver materials or products from a commercial establishment that has a fixed place of business from which the establishment regularly supplies processed or manufactured materials or products is not entitled to receive the prevailing wage rate determined under sub. (3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor unless any of the following applies: 1. The laborer, worker, mechanic or truck driver is employed to go to the source of mineral aggregate such as sand, gravel or stone that is to be immediately incorporated into the work, and not stockpiled or further transported by truck, pick up that mineral aggregate and deliver that mineral aggregate to the site of a project that is subject to this section by depositing the material substantially in place, directly or through spreaders from the transporting vehicle. 2. The laborer, worker, mechanic or truck driver is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project and transport that excavated material or spoil away from the site of the project and return to the site of the project. (c) A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck. (3) Investigations; determinations. The department shall conduct investigations and hold public hearings necessary to define the trades or occupations that are commonly employed in the highway construction industry and to inform itself as to the prevailing wage rates in all areas of the state for those trades or occupations, in order to ascertain and determine the prevailing wage rates accordingly. (4) Certification of prevailing wage rates. The department of workforce development shall, by May 1 of each year, certify to the department of transportation the prevailing wage rates in each area for all trades or occupations commonly employed in the highway construction industry. The certification shall, in addition to the current prevailing wage rates, include future prevailing wage rates when such prevailing wage rates can be determined for any such trade or occupation in any area and shall specify the effective date of those future prevailing wage rates. If a construction project extends into more than one area there shall be but one standard of prevailing wage rates for the entire project. (4m) Wage rate data. In determining prevailing wage rates for projects that are subject to this section, the department shall use data from projects that are subject to this section, s , , or or 40 USC (5) Appeals to governor. If the department of transportation considers any determination of the department of workforce development as to the prevailing wage rates in an area to have been incorrect, it may appeal to the governor, whose determination shall be final. (6) Contents of contracts. A reference to the prevailing wage rates determined under sub. (3) and the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for a project. If any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates determined under sub. (3) and the prevailing hours of labor shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, as determined by the department of workforce development, that department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. For the information of the employees working on the project, the prevailing wage rates determined by the department, the prevailing hours of labor and the provisions of subs. (2) and (7) shall be kept posted by the department of transportation in at least one conspicuous and easily accessible place on the site of the project. (7) Penalties. (a) Except as provided in pars. (b), (d) and (f), any contractor, subcontractor or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense. (b) Whoever induces any person who seeks to be or is employed on any project that is subject to this section to give up, waive or return any part of the wages to which the person is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to a person for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from employment or by any other means is guilty of an offense under s (1). (c) Any person employed on a project that is subject to this section who knowingly permits a

248 contractor, subcontractor or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the project, who gives up, waives or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, is guilty of an offense under s (2). (d) Whoever induces any person who seeks to be or is employed on any project that is subject to this section to permit any part of the wages to which the person is entitled under the contract governing the project to be deducted from the person's pay is guilty of an offense under s (3), unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC (e) Any person employed on a project that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing the project to be deducted from his or her pay is guilty of an offense under s (4), unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC (f) Paragraph (a) does not apply to any person who fails to provide any information to the department to assist the department in determining prevailing wage rates under sub. (3) or (4). (8) Enforcement and prosecution. The department of transportation shall require adherence to subs. (2), (2m) and (6). The department of transportation may demand and examine, and every contractor, subcontractor and contractor's or subcontractor's agent shall keep and furnish upon request by the department of transportation, copies of payrolls and other records and information relating to compliance with this section. Upon request of the department of transportation or upon complaint of alleged violation, the district attorney of the county in which the work is located shall investigate as necessary and prosecute violations in a court of competent jurisdiction. Section (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section. History: 1977 c. 29 s (8) (c); 1979 c. 269; 1985 a. 332 ss. 143, 144, 253; 1989 a. 228; 1993 a. 492; 1995 a. 215, 225; 1997 a. 3, 35; 1999 a. 70; 1999 a. 150 ss. 629, 672; 2001 a. 30; 2009 a. 28. Crossreference: See s (13) (t) for provision that determinations of hours, wages and truck rentals need not be filed as rules but are subject to review under ch Cross Reference: See also ch. DWD 290, Wis. adm. code. WERC had no jurisdiction to enforce wage rates on a highway project as an unfair labor practice when the complaining union had no members among the employees affected and was not seeking to represent them. Chauffeurs, Teamsters & Helpers v. WERC, 51 Wis.2d 391, 187 N.W.2d 364 (1971). The department may not make more than one annual certification of the prevailing hours of labor or prevailing wage rates to apply to state highway project contracts. 59 Atty. Gen. 23. Federal law does not preempt application of Wisconsin's prevailing wage law, s , to truck drivers who perform transportation and delivery work pursuant to joint federal-state highway contracts. Frank Brothers, Inc. v. DOT, 409 F.3d 332 (2005). Wyoming Coverage of public employees. (1) This section applies to employees of the state, its political subdivisions, and any office, department, independent agency, authority, institution, association, society or other body in state or local government created or authorized to be created by the constitution or any law, including the legislature and the courts. (2) The provisions of ss. DWD through DWD regarding overtime pay, exemptions, and records shall not be applicable to employees identified in sub. (1). The provisions applicable to employees identified in sub. (1) shall be the provisions of the federal Fair Labor Standards Act, 29 CFR Part 553, the regulations of the U.S. department of labor relating to the application of the Act to employees of state and local governments, and other federal regulations relating to the application of the Act to overtime issues affecting employees of state and local governments. (3) Where there is a valid collective bargaining agreement in effect as of December 18, 1990, the provisions of this chapter shall not become effective for employees identified in sub. (1) until one day after expiration of the collective bargaining agreement, unless it is otherwise modified prior to expiration State and county employees; overtime compensation. (a) The period of employment of state and county employees is eight (8) hours per day and forty (40) hours per week which constitute a lawful day's and week's work respectively. (b) Except for employees whose maximum salary is remitted by statute, any state or county employee may be compensated at a rate one and one-half (1 ½) times their regular compensation for each hour of service required to be performed in excess of eight (8) hours

249 per day and forty (40) hours per week. If overtime compensation is paid pursuant to this section, no additional benefits, including compensatory time off, shall be allowed to the employee receiving the overtime compensation. (c) Overtime compensation may only be authorized by the appropriate employing governing body subject to the following: (i) For employees of the executive branch of state government, pursuant to rules and regulations of the human resources division of the department of administration and information. The human resources division shall specify what employees may receive overtime compensation, may require notification of an intent to pay overtime compensation preceding rendering of the additional services, and may prescribe any other limitations deemed desirable; (ii) For employees of the legislative branch of state government, pursuant to rules and regulations of the management council of the legislative service office or resolution of the legislature; (iii) For employees of the judicial branch of state government, pursuant to rules and regulations of the Wyoming supreme court; (iv) For county employees, pursuant to rules and regulations of the respective boards of county commissioners Limitation on work hours; overtime; exceptions. (a) No person shall require laborers, workmen or mechanics to work more than eight (8) hours in any one (1) calendar day or forty (40) hours in any one (1) week upon any public works of the state or any of its political subdivisions except as hereafter authorized. An employee may agree to work more than eight (8) hours per day or more than forty (40) hours in any week, provided the employee shall be paid at the rate of one and one-half (1 ½) times the regularly established hourly rate for all work in excess of forty (40) hours in any one (1) week. This section does not apply: (i) In case of emergency caused by fire, flood or danger to life or property; or (ii) To work upon public or military works or defenses in time of war.