California Industrial Welfare Commission (IWC) Wage Order #8 Industries Handling Products After Harvest Poster

The Industrial Welfare Commission (IWC) Wage Order #8 Industries Handling Products After Harvest is a labor law posters poster by the California Department Of Industrial Relations. This poster is mandatory for some employers, including employers in the industries handling products after harvest.
This poster must be posted in a conspicuous place where all employees of industries that handle products after harvest will see it. Employers can also request if they need this poster in another language. This poster describes the standards and laws that must be followed in the Industries handling products after harvest. Such laws include minimum wage rate, working overtime, holding records, and regulations for disabled workers.
CA All-In-One Labor Poster: Instead of printing out dozens of posters, employers can also purchase an all-in-one poster that covers both California and Federal poster requirements by clicking here .
OFFICIAL NOTICE INDUSTRIAL WELFARE COMMISSION ORDER NO. 8-2001 REGULATING WAGES, HOURS AND WORKING CONDITIONS IN THE INDUSTRIES HANDLING PRODUCTS AFTER HARVEST Effective January 1, 2002 as amended Sections 4(A) and 10(C) amended and republished by the Department of Industrial Relations, effective January 1, 2021, pursuant to SB 3, Chapter 4, Statutes of 2016 and section 1182.13 of the Labor Code This Order Must Be Posted Where Employees Can Read It Easily IWC FORM 1108 (Rev. 11/2020) OSP 06 98766 — 1 TAKE NOTICE: To employers and representatives of persons working in industries and occupations in the State of California: The Department of Industrial Relations amends and republishes the minimum wage and meals and lodging credits in the Industrial Welfare Commission’s Orders as a result of legislation enacted (SB 3, Ch. 4, Stats of 2016, amending section 1182.12 of the California Labor Code), and pursuant to section 1182.13 of the California Labor Code. The amendments and republishing make no other changes to the IWC’s Orders. 1. APPLICABILITY OF ORDER (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professT his or der 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: ional 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 hir ing 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 wor k 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. Sections 541.102, 541.104- 111, and 541.115- 116. 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 which meet the test of the exemption. The activities constituting exempt wor k 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. Sections 541.201- 205, 541.207- 208, 541.210, and 541.215. 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 INDUSTRIA L WELFARE CO MMISSIO N O RDER N O. 8-2001 REGULATING WAGES, HOURS AND WORKING CO NDITIONS IN THE — 2 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 prima rily engaged in an oc cupation co mmon ly recogn ized as a lear ned or artistic profess ion. For the pur pos es of this subsect ion, ”le arned or artist ic profession” m eans an employ ee who is p rima rily enga ged i n the p erformance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a pro - longed 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) W hose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, me chanical, 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 salar y 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. Sections 541.207, 541.301(a) -(d), 541.302, 541.306, 541.307, 541.308, and 541.310. (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 and requires the exercise of di scretion 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 det ermine hardware, software, or system functional specifications. — The design, development, documentation, analysis, creation, testing, or modification of computer sy stems 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 Office of Policy, Research and Legislation 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. 1 (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: 1 Pursuant to Labor Code section 515.5, subdivision (a)(4), the Office of the Director - Research, Department of Industrial Relations, has adjusted the minimum hourly rate of pay specified in this subdivision to be $49.77, effective January 1, 2007. This hourly rate of pay is adjusted on October 1 of each year to be effective on January 1, of the following year, and may be obtained at htt ps://www.dir.ca.gov/iwc/ComputerSoftwareEmployees.html or by mail from the Department of Industrial Relations. — 3 (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 W ide W eb 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 12571 of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171.) 2. DEFINITIONS (A) An “alternative workweek schedul e” means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) ”Commissi on” means the Industrial Welfare Commission of the State of California. (C) “Divisio n” means the Division of Labor Standards Enforcement of the State of California. (D) “Emplo y” 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 work ed” 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 Harves t” 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 salespers on” 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) “Teachin g” 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) “Workda y” 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 ( 11/2) 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 — 4 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 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 1198.3 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 (7 th ) 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 (7 th ) 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 12940 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 work- day 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 Office of Policy, Research and Legislation 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 OFFICIAL NOTICE INDUSTRIAL WELFARE COMMISSION ORDER NO. 8-2001 REGULATING WAGES, HOURS AND WORKING CONDITIONS IN THE INDUSTRIES HANDLING PRODUCTS AFTER HARVEST Effective January 1, 2002 as amended Sections 4(A) and 10(C) amended and republished by the Department of Industrial Relations, effective January 1, 2021, pursuant to SB 3, Chapter 4, Statutes of 2016 and section 1182.13 of the Labor Code This Order Must Be Posted Where Employees Can Read It Easily IWC FORM 1108 (Rev. 11/2020) OSP 06 98766 — 1 TAKE NOTICE: To employers and representatives of persons working in industries and occupations in the State of California: The Department of Industrial Relations amends and republishes the minimum wage and meals and lodging credits in the Industrial Welfare Commission’s Orders as a result of legislation enacted (SB 3, Ch. 4, Stats of 2016, amending section 1182.12 of the California Labor Code), and pursuant to section 1182.13 of the California Labor Code. The amendments and republishing make no other changes to the IWC’s Orders. 1. APPLICABILITY OF ORDER (A) Provisions of Sections 3 through 12 of this order shall not apply to persons employed in administrative, executive, or professT his or der 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: ional 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 hir ing 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 wor k 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. Sections 541.102, 541.104- 111, and 541.115- 116. 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 which meet the test of the exemption. The activities constituting exempt wor k 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. Sections 541.201- 205, 541.207- 208, 541.210, and 541.215. 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 INDUSTRIA L WELFARE CO MMISSIO N O RDER N O. 8-2001 REGULATING WAGES, HOURS AND WORKING CO NDITIONS IN THE — 2 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 prima rily engaged in an oc cupation co mmon ly recogn ized as a lear ned or artistic profess ion. For the pur pos es of this subsect ion, ”le arned or artist ic profession” m eans an employ ee who is p rima rily enga ged i n the p erformance of: (i) Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a pro - longed 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) W hose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, me chanical, 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 salar y 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. Sections 541.207, 541.301(a) -(d), 541.302, 541.306, 541.307, 541.308, and 541.310. (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 and requires the exercise of di scretion 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 det ermine hardware, software, or system functional specifications. — The design, development, documentation, analysis, creation, testing, or modification of computer sy stems 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 Office of Policy, Research and Legislation 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. 1 (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply: 1 Pursuant to Labor Code section 515.5, subdivision (a)(4), the Office of the Director - Research, Department of Industrial Relations, has adjusted the minimum hourly rate of pay specified in this subdivision to be $49.77, effective January 1, 2007. This hourly rate of pay is adjusted on October 1 of each year to be effective on January 1, of the following year, and may be obtained at htt ps://www.dir.ca.gov/iwc/ComputerSoftwareEmployees.html or by mail from the Department of Industrial Relations. — 3 (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 W ide W eb 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 12571 of Title 42 of the United States Code. (See Stats. 2000, ch. 365, amending Labor Code Section 1171.) 2. DEFINITIONS (A) An “alternative workweek schedul e” means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. (B) ”Commissi on” means the Industrial Welfare Commission of the State of California. (C) “Divisio n” means the Division of Labor Standards Enforcement of the State of California. (D) “Emplo y” 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 work ed” 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 Harves t” 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 salespers on” 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) “Teachin g” 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) “Workda y” 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 ( 11/2) 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 — 4 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 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 1198.3 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 (7 th ) 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 (7 th ) 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 12940 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 work- day 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 Office of Policy, Research and Legislation 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 — 5 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, “a ffected employees in the work uni t” 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 Prior to the secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a disclosure in wri ting 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. (3) 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. (4) 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. (5) 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 Office of Policy, Research and Legislation 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. (6) 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. (7) 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 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) — 6 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 395.1 to 395.13, of Hours. (2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 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 other wise 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 the following: (1) Any employer who employs 26 or more employees shall pay to each employee wages not less than the following: (a) Thirteen dollars ($13.00) per hour for all hours worked, effective January 1, 2020; (b) Fourteen dollars ($14.00) per hour for all hours worked, effective January 1, 2021; and (c) Fifteen dollars ($15.00) per hour for all hours worked, effective January 1, 2022. (2) Any employer who employs 25 or fewer employees shall pay to each employee wages not less than the following: (a) Twelve dollars ($12.00) per hour for all hours worked, effective January 1, 2020; (b) Thirteen dollars ($13.00) per hour for all hours worked, effective January 1, 2021; (c) Fourteen dollars ($14.00) per hour for all hours worked, effective January 1, 2022; (d) Fifteen dollars ($15.00) per hour for all hours worked, effective January 1, 2023. Employees treated as employed by a single qualified taxpayer pursuant to Revenue and Taxation Code section 23626 are treated as employees of that single taxpayer. 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 appli
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