Law & Wage Order 1:07, June 24, 2016

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Law & Wage Order

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When we think about “a law,” we usually mean a statute that is enacted when a majority of legislators vote to pass a bill that is signed by the Governor or President.

In addition to statutory law, the executive agencies – such as the federal Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity Commission (EEOC), and Department of Labor (DOL) – are also authorized to enact “regulations” that can have the same effect as laws passed by Congress. 
This is true on both the federal and state level. Besides federal agencies, California employers are also familiar with the safety regulations of Cal-OSHA (officially, the Division of Occupational Safety and Health (DOSH)), the anti-discrimination regulations of Department of Fair Employment and Housing (DFEH), and the minimum wage and overtime regulations enforced by the Labor Commissioner (officially, the Division of Labor Standards Enforcement (DLSE)).
To be precise, the Labor Commissioner (DLSE) does not create new wage-and-hour rules, but only enforces the regulations that were enacted by another agency, the now-defunct Industrial Welfare Commission (IWC).[1] The IWC’s regulations are commonly known as “Wage Orders” (WOs).
California has 18 WOs. These regulations govern the hours, wages, overtime, and working conditions of most employees who work for private (non-governmental) employers, whether for-profit, nonprofit, or religious. There are 12 “industry” WOs, four “occupation” WOs, one WO for “miscellaneous employees,” and one WO covering the minimum wage. Every private employer in California is covered by one (and usually only one) industry or occupation WO and must comply with the appropriate regulations. You can see the WOs online.
Besides the difficulty employers may have in determining the appropriate WO, many provisions in the WOs seem to be odd remnants that address industrial problems for workplaces of the past. Despite their obscurity, these regulations do have the force of law, and contemporary employers face liability for violating these requirements. In general, violating a WO is a misdemeanor and penalties may run from administrative fines to imprisonment.[2]
For example, one unusual WO provision – the regulation requiring “suitable seats” – has led to several lawsuits and probably hundreds of thousands of dollars spent in legal fees in the last decade. According to the IWC’s industry and occupation WOs, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”[3]
Although this provision has been included in the WOs for over 25 years, litigation over the issue was relatively unknown before 2005, when a case involving guest service agents at the San Francisco Hilton was decided in the hotel’s favor. Even so, in the last several years, employees have sued (among other companies) Bank of America, Kmart Corporation, CVS Pharmacies, 99¢ Only Stores, Blockbuster Video, and Home Depot, claiming their employers failed to provide them with suitable seats. Many of these class action lawsuits involving the “suitable seats” regulation remain currently pending.
So what else is hidden in the Wage Orders? Here are a few more of the IWC’s regulations that you don’t want to violate:
·         “Clocks shall be provided in all major work areas or within reasonable distance thereto insofar as practicable.” §7(D)
·         “Employees shall not be required to share a bed.” §10(B)
·         “A temperature of not less than 68° shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use.” §15(C)

Obscure, right? Although we haven’t seen litigation over these particular provisions, they are the official WO regulations and have the force of law. Consider yourself warned.

[1] Currently, the IWC is not an active agency. Established in 1913, the IWC was first authorized to set working conditions only for women and children. In operation, the IWC was often politically controversial. For example, in 1997, the IWC eliminated the daily overtime pay requirement for many California workers, and was soon defunded by legislative leaders. However, after Governor Gray Davis signed AB 60, the “Eight Hour Day Restoration and Workplace Flexibility Act of 1999,” the IWC was reconstituted to draft new Wage Orders that included daily overtime regulations. Subsequently, on July 1, 2004, the IWC was officially defunded by the legislature. According to its website, “The IWC is currently not in operation.”
[2] During 2012, the California Labor Commissioner assessed employers over $51 million in civil penalties for violations, in addition to requiring them to pay $3 million in unpaid minimum wages and $13 million in unpaid overtime wages.
[3] WO 14, applicable to field hands and other agricultural occupations, differs slightly. It says, “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.”

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