California Bills Would Create More Workplace Flexibility

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The coronavirus pandemic forced many employers to make rapid changes to their operations as many employees made the switch overnight from onsite to remote work. California's strict wage and hour rules for nonexempt employees caused compliance challenges and prompted proposed legislation to create more flexibility for workers who want to telecommute.

"As we all know, 2020 was an incredibly challenging year," said Christopher Hoffman, an attorney with Fisher Phillips in San Diego. He was speaking during the California State Council of SHRM's (CalSHRM's) 2021 California State HR Advocacy and Legislative Conference. HR professionals found themselves in the middle of massive changes when areas of the country shut down and people had to work from home or figure out how to perform essential jobs safely, he noted.

Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and CalSHRM's director of government affairs, said the pandemic revealed several issues with telecommuting in California.

First, the California Labor Code provides very little guidance on telecommuting issues. Second, Kalt said, teleworking is here to stay and will continue after the pandemic. Additionally, many employees have discovered through the COVID-19 pandemic that they can effectively work anytime and from anywhere. So they may want more workplace flexibility beyond telecommuting, Kalt noted.

Here are several California bills that would provide more flexibility for employers and employees alike as they continue to navigate remote-work arrangements.

Telework Flexibility Act

The Telework Flexibility Act, AB 1028, would make it easier for employers to allow their nonexempt employees to work remotely. Employees would have considerably more flexibility under this bill, Kalt said.

During the pandemic, employees have commonly requested more flexibility in the days, times and hours they work, he observed. "But of course, it is very difficult to provide too much flexibility in California for your nonexempt employees, given the requirement to provide daily overtime."

Employees in the state must be paid overtime premiums for all hours worked beyond eight in a workday unless they are exempt from such payments.

Currently in California, nonexempt employees can arrange alternative work schedules for their unit and work up to 10 hours a day (four days a week) without receiving overtime premiums. However, making such arrangements requires a rigorous process. Among other criteria, two-thirds of the employees in the work unit must approve the schedule. AB 1028, however, would allow individual employees who are working remotely to arrange an alternative workweek if certain conditions are met.

The bill also would give remote workers more flexibility to balance their family needs if, for example, they need to work around a child's school schedule. Currently, employers must provide an extra hour of pay to employees who are required to work a split shift, which the California Department of Industrial Relations defines as a workday interrupted by an unpaid, nonworking break that is "longer than a bona fide meal period."

Under AB 1028, employers could allow employees to take longer breaks in the middle of the day without receiving a split-shift premium.

The bill would also allow remote employees to choose when during the workday to take a meal or rest break. Employers would still need to notify employees of their right to take such breaks and pay a penalty if they fail to do so.

Additionally, the bill would pause employer liability under the California Private Attorneys General Act (PAGA) for remote worker meal and rest break issues during the COVID-19 pandemic. "It creates a PAGA holiday of sorts," Kalt explained.

Another bill, AB 230, also addresses individual alternative workweek schedules. Although AB 230 has some overlap with AB 1028, it would apply more broadly to employees who report to the physical worksite and allow any nonexempt employee to request an individualized alternative workweek schedule if certain criteria are met.

A coalition of business groups, including the California Chamber of Commerce and local affiliates, support AB 1028. They pointed to the flexibility that employees, particularly women, need to balance work and caregiving responsibilities during the pandemic. "California's wage and hour laws currently make it cost prohibitive for employers to offer flexible work arrangements to assist employees with this balance or allow hourly employees the option to continue to telecommute once the pandemic is over," the groups wrote in a letter to the California Legislature.  

Kalt said AB 1028 would "be a very helpful bill," but he noted that plaintiffs' attorneys oppose the bill, particularly the part addressing PAGA claims. 

The Republican-backed bill may face resistance from Democrats, who have a supermajority in both chambers of the California Legislature.

More Telecommuting Bills

Several other telecommuting bills have a more narrow focus, Kalt said, including AB 513, which CalSHRM sponsored. The bill aims to modernize certain California Labor Code requirements for teleworkers.

AB 513 would clarify that employers can provide electronic notices and posters to remote workers rather than deliver physical documents to employees' homes. The bill also would authorize remote employees to electronically sign employment-related documents and allow employers to mail final wages to a fired remote employee if direct deposit hasn't been authorized. The bill would clarify that the final wage payment is made on the date it was mailed. Another bill, SB 657, includes the two provisions in AB 513 that would authorize electronic notices and signatures, and may face the least opposition since it is the narrowest option.

Assemblyman Kelly Seyarto, R-Murrieta, who co-authored AB 513 and SB 657, said the bills will make telework "more flexible and accommodating." He also said passing AB 1028 "will allow more businesses to offer telecommuting as an option to their workforce."

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