Section 1182.5 Of Chapter 1. Wages, Hours And Working Conditions From California Labor Code >> Division 2. >> Part 4. >> Chapter 1.
1182.5
. (a) The Legislature finds that the time permitted the
Industrial Welfare Commission to consider daily overtime compensation
petitions that are to be given priority attention by the commission
pursuant to Section 20 of Chapter 1083 of the Statutes of 1980, has
created unanticipated delays in the review and possible modification
of applicable commission orders for preexisting workweek
arrangements, as defined in subdivision (b). The Legislature finds
further that legislation is necessary to provide redress of hardships
resulting from these unanticipated delays by the enactment of
special commission review procedures that augment, and do not limit
in any way, the rights and privileges of parties before the
Industrial Welfare Commission under this chapter.
(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) An employer who has had in operation an established
preexisting workweek arrangement may, prior to July 1, 1985, file a
verified petition with the commission for review and modification of
an applicable order and, upon filing this petition, shall
simultaneously file a copy with the Labor Commissioner. Upon receipt
of the petition by the Labor Commissioner a stay of enforcement of
the applicable commission order as it would affect the workweek
arrangement shall take effect. The Labor Commissioner may reject a
petition that, on its face, cannot qualify as a preexisting workweek
arrangement. Within three months of commencement of the stay the
Labor Commissioner shall certify the preexisting workweek arrangement
to the commission if, upon examination, the Labor Commissioner finds
that all of the following conditions are met by the workweek
arrangement:
(1) It was established by the petitioning employer and was in
operation prior to November 1980.
(2) It had to be abandoned or modified by the employer because of
noncompliance with the applicable order of the commission.
(3) It was established on a nondiscriminatory basis with the
support of affected employees and it continues to have the support of
two-thirds of the employees in the covered work group.
(4) It complied with all applicable standards of the commission,
other than daily overtime requirements.
(5) It is found, after consultation with the Director of
Industrial Relations when appropriate, not to be adverse to the
health and welfare of affected employees.
In the course of examining a preexisting workweek arrangement and
following certification, the Labor Commissioner shall not divert any
of the resources of the Division of Labor Standards Enforcement for
the purpose of investigating, prosecuting, or otherwise acting upon
any alleged violations of the daily overtime provisions of an
applicable commission order during any period in 1980 in which a
court-issued stay of enforcement was in effect for these provisions;
provided, the workweek arrangement involved was in operation during
that period in good faith reliance by the employer upon the
court-issued stay of enforcement and with the approval of two-thirds
of the employer's affected employees.
(d) In the course of examining a petition for certification to the
commission, the Labor Commissioner shall have access to all
pertinent records of the petitioning employer and shall have the
authority to converse with affected employees of the employer without
the presence of management. Until the commission takes action on a
petition, the Labor Commissioner shall retain the authority to
withdraw a certification to the commission for cause.
(e) Upon receipt by the commission of the Labor Commissioner's
certification of a preexisting workweek arrangement, the stay of
enforcement shall continue as hereinafter provided beyond the
three-month period for certification until modified or rescinded by
the commission. The modification or rescission shall not be made
without an appropriate hearing and findings regarding the applicable
order. If the commission undertakes review of the applicable order,
the stay of enforcement shall continue through the review process and
until any resulting modification of the applicable order, in which
case, the modified order shall become applicable to the preexisting
workweek arrangement.