Petition — San Joaquin Nisei Farmers League v. Industrial Welfare Commission

Supreme Court brief1980

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Ma bic ak awa hie emt aR iaiiat

Supreme Court, U.S,

rIiLED

8 0 = 5 60 OCT 8 1980

MICHAEL RODAK, JR., CLERK

In the Supreme Court

OF THE

United States

Octoser Term, 1980

San Joaquin Nise Farmers Leacue,

WEeEsTERN Growers ASSOCIATION, AND

F'LoraL Councii or NorTHERN CALIFORNIA,

Petitioners,

VS.

INDUSTRIAL WELFARE COMMISSION OF THE STATE OF

CaLirorN1A, Division or Lasor Stanparps ENFORCEMENT

oF THE STATE oF CaLirorniA, AND JAMEs L. QuILLIN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

LirrLerR, MENDELSON, Dress.er, STOLL, QuESEN-

Fastirr & TicHy BERY, Laws & BarsaMIAN

A PROFESSIONAL Cuar.es M. Stoin

CORPORATION Rosert P. Roy

Gerorce J. Ticny, II

COUNSEL OF RECORD P. O. Box 2130

Ricuarp H. Harpine Newport Beach, CA 92660

MIcHELE S. PooHar Telephone: (805) 486-1691

650 California Street, Attorneys for Western

20th Floor Growers Association

San Francisco, CA 94108 _ and Floral Council of

Telephone: (415) 433-1940 Northern California

Attorneys for San

Joaquin Nisei

Farmers League

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F., CA 94111 © (415) 981-7862

i

QUESTIONS PRESENTED

Whether a state supreme court exercising its original

jurisdiction violates procedural due process of law as

guaranteed by the Fourteenth Amendment to the United

States Constitution by making factual determinations es-

sential to the resolution of complex issues of federal sub-

stantive due process as well as state law in the absence of

a factual record and without affording any opportunity for

an evidentiary hearing?

PARTIES TO Tr_4 PROCEEDING IN THE

SUPREME COURT OF THE STATE OF CALIFORNIA

In addition to petitioners and respondents herein, the

following constitute the parties to the proceeding in the

Supreme Court of the State of California: American

Airlines, Inc.; California Hotel and Motel Association;

California Manufacturers Association, a California corpo-

ration; California Trucking Association; Corcoran Motor

Transport, Ine.; Hitcheock Transportation Co.; Nisei

Farmers League; Sierra Ski Areas Association; Theatre

Association of California, Inc.; Theatre Properties, Ine. ;

United Air Lines, Ine.; Kern County Superior Court;

Kings County Superior Court; Orange County Superior

Court; and Stanislaus County Superior Court.

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TABLE OF CONTENTS

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Parties to the proceeding in the Supreme Court of

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Reasons for granting the WYit .................2:.-.:cscscscsseseeeseeeeee

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TABLE OF AUTHORITIES CITED

Cases

age

Goldberg v. Kelly, 397 U.S. 254 RE AE OR 9,12

Greene v. McElroy, 360 U.S. 474 CII escnictendaishlleinkianite 9

I.C.C. v. Louisville & Nashville Railroad Co., 227 US.

ID icilelisiticihensct pascal Padi ie mir 9

Joint-Anti-Fascist Refugee Committee vy. MeGrath, 341

jt A | Gees el Ow es eae Oe cate en | ee am 12

Meyer v. Nebraska, 262 U.S. 390 ( GaN Ae AEE Le 8

Pierce v. Society of Sisters, 268 U.S. 510 CRO D sisssnen 8

Hoe v. Wade, 410 U.S. 113 (1978) ........................... 8

Truax v. Corrigan, 257 U.S, 312 (|S URnaae eal Rennes 9

Willner v. Committee on Character and Fitness, 373

2 bina Se acca! MC TE ec PI lo ir ONSET 9

Constitution

United States Constitution, Fourteenth Amendment

sdpavenas ereeheinanaainitsnsiitabiheh cabiteieboabbndivbidimain tanadccbianiibediccigcteses 1, 2,7

Statutes

Title 8 of the California Administrative Code 3

Sth eee 2

No.

In the Supreme Court

OF THE

United States -

Octoser Term, 1980

San Joaquin Niser Farmers Leacur,

WEsTERN Growers AssocIaTION, AND

FLora Councit or NortHEeRN CALIFoRNIA,

Petitioners,

Vs .

InpustRIAL WELFARE COMMISSION OF THE STATE OF

Cauirorn1, Division or Lasor Stanparps ENFORCEMENT

OF THE STATE OF CaLirorwiA, AND James L, QuiILLin,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

Petitioners, San Joaquin Nisei Farmers League, Western

Growers Association, and Floral Council of Northern

California, respectfully petition for a Writ of Certiorari

to review the judgment of the Supreme Court of the State

of California directing. that a peremptory writ of mandate

issue instructing the superior courts: (1) to vacate their

orders which had stayed the enforcement of the challenged

wage orders of the Industrial Welfare Commission (here-

inafter the “IWC” or the “Commission”) and (2) to enter

judgment for the Commission in each of the respective

superior court actions,

2

OPINION BELOW

The opinion of the California Supreme Court is reported

at 27 Cal.3d 690 and appears at Appendix A, infra, pp. A-1

to A-59. The order of the Court extending the time for

granting or denying a rehearing appears at Appendix B,

infra, p. B-1. The order denying rehearing appears at

Appendix C, infra, p. C-1. The modification of the Court’s

opinion appears at Appendix D, infra, p. D-1.

JURISDICTION

The opinion of the Supreme Court of the State of Cali-

fornia was rendered on July 10, 1980; its Judgment was

entered on August 28, 1980. The Court denied a petition

for rehearing on August 28, 1980. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1257(3).

RELEVANT CONSTITUTIONAL PROVISION

The Fourteenth Amendment to the United States Con-

stitution provides in pertinent part:

“All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they re-

side. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

Petitioners are associations of agricultural employers in

the State of California. They are among the real parties

3

in interest in the proceedings below. On September 7, 1979,

the Commission, a quasi-legislative agency, promulgated

wage orders covering wages, hours, and working conditions

of employees working in fifteen separate industry and occu-

pational classifications. These wage orders were to become

effective on January 1, 1980.

On December 20, 1979, the San Joaquin Nisei Farmers

League filed an action in the Superior Court of the State

of California for the County of Stanislaus, challenging the

validity of the IWC wage orders that regulate the wages,

hours and working conditions of persons (a) performing

work in the industries handling agricultural products after

harvest; (b) performing work in the industries preparing

agricultural products for market, on the farm; and (c)

performing agricultural work on farms. These wage orders

were designated orders 8-80, 13-80 and 14-80. The challenged

wage orders are contained in Title 8 of the California Ad-

ministrative Code and appear at Appendix K, infra, pp.

K-1 to E-54. On December 21, 1979, the Western Growers

Association and the Floral Council of Northern California

filed suit in the Superior Court of the State of California

for the County of Kern, challenging the validity of these

same wage orders.

The superior court in the Stanislaus County action is-

sued a stay order on January 23, 1980, preventing the

enforcement of all of the provisions of the challenged wage

orders, with the exception of the minimum wage provision

of each such wage order; in the Kern County action the

parties entered into a stipulation on or about January 8,

1980, staying the enforcement of section 3(A) of wage

4

order 14-80 and sections 3(A) and 3(C) of wage orders

8-80 and 13-80.

On April 1, 1980, upon the petition of respondents, the

California Supreme Court asserted original jurisdiction

over the matter and ordered an alternative writ of man-

date to issue directing that all proceedings in the superior

courts cease and that, in effect, the cases be consolidated

and transferred to the Supreme Court. No factual record

had been made below and discovery had hardly been com-

menced when the California Supreme Court suddenly seized

the cases. Indeed, petitioners were never permitted to com-

plete the depositions of four of the principals involved in

the promulgation of the wage orders that were in progress

when the California Supreme Court’s order came down.

On April 14, 1980, the real parties in interest filed a

motion with the California Supreme Court seeking to have

the Commission’s petition dismissed, or, in the alternative,

to have the Court allow discovery to continue and to

appoint a referee to take evidence on disputed, substantial

and material issues of fact. Said motion was summarily

denied on April 22, 1980.

Petitioners thereupon briefed and argued the merits of

the procedural and substantive challenges to the wage

orders. However, petitioners continually objected to the

proceedings on the ground that they constituted a denial

of procedural due process in that petitioners had been

deprived of a hearing, the right to examine and cross-

examine witnesses and an opportunity to present evidence.

On July 10, 1980, in the exercise of its original jurisdic-

tion, the California Supreme Court rendered its decision in

4)

this litigation. The Court directed that a peremptory writ

of mandate issue instructing the superior courts (1) to

vacate their orders which had stayed the enforcement of

the challenged wage orders and (2) to enter judgment for

the Commission in each of the respective actions.

A petition for stay filed by petitioners herein on August

1, 1980, requesting that the California Supreme Court stay

the issuance of its mandate pending the filing of the instant

petition for Writ of Certiorari, was denied by the Califor-

nia Supreme Court on September 3, 1980. Justice Rehn-

quist issued a temporary stay on September 26, 1980, pend-

ing further order of this Court.

HOW FEDERAL QUESTION IS PRESENTED

The federal question sought to be reviewed was first

raised before the California Supreme Court which exer-

cised its original jurisdiction in this action. Said question

was first raised by way of real parties’ in interest Notice

of Motion and Motion to Dismiss and/or for Summary

Judgment or Summary Adjudication of Issues Without

Substantial Controversy; or in the Alternative, Motion to

Appoint Referee, Receive Evidence and Make Findings of

Fact; Points and Authorities and Declarations in Support

Thereof, wherein real parties moved the Court to appoint

a referee who would be instructed by the Court to set a

discovery schedule, hold an evidentiary hearing and make

findings of fact.

The issue was further raised in the Return of Real Par-

ties in Interest to the Petition for Writ of Mandate, Pro-

hibition and Stay Order; Points and Authorities in Support

Thereof; more specifically, the issue was raised in two

6

parts of the Return: (1) Demurrer to Petition for Writ of

Mandate, Prohibition and Stay Order; and (2) Answer of

Real Parties in Interest to the Petition for Writ of Man-

date, Prohibition and Stay Order. The real parties de-

murred to the petition on the ground that, inter alia, the

Court lacked jurisdiction to resolve and/or remove the

actions pending in the superior courts prior to a final adju-

dication on the merits. In their answer to the petition,

real parties alleged that numerous questions of fact had

to be resolved by extrinsic evidence and asserted as an

affirmative defense that the resolution of said factual issues

without an evidentiary hearing constituted a cenial of their

constitutional rights.

Moreover, the question was presented at the very open-

ing of the Reply of Real Parties in Interest to Petitioners’

Replication, at page 1 thereof, as follows:

“We [petitioners herein] are also disturbed with the

precipitous manner in which this case has been brought

before this Court. We believe that the Court is ill-

served by the incomplete evidentiary base upon which

it will have to make its decision and the piecemeal

briefing which has necessarily followed... .

*Real parties in interest, in order to preserve their rights,

hereby object to these proceedings on the ground that they

constitute a denial of due process in that real parties have

been deprived of a hearing, the right to examine and cross-

examine witnesses and the opportunity to present evidence.”

REASONS FOR GRANTING THE WRIT

The question in the instant case goes to the very integ-

rity of the judicial process. More specifically, the issue at

hand is whether the California Supreme Court’s failure to

7

afford petitioners an opportunity to introduce evidence

concerning substantial and material issues of fact at any

sort of trial-type proceeding constitutes a deprivation of

petitioners’ right to procedural due process of law as

guaranteed by the Fourteenth Amendment to the United

States Constitution.

Numerous factual issues with respect to the validity of

the challenged wage orders were raised by petitioners in

the course of the proceedings below. Such issues apper-

tained to both the federal substantive due process chal-

lenge to the wage orders as well as the substantial state

law claims raised by petitioners. The California Supreme

Court made findings of fact regarding these issues.’ Yet,

contrary to the fundamental principle of procedural due

process of law, at no point in the course of the proceedings

below were petitioners given an opportunity to introduce

evidence at any type of hearing.

Thus, at stake here is the judicial process itself. Simply

stated, a state supreme court has seen fit to snatch up

four separate actions, which were still in their infancy,

and to decide crucial issues of fact without any basis

whatsoever in the record to support the findings made

and the conclusions drawn by that court. The importance

of this issue and its ramifications should compel a Supreme

Court resolution of it.

Over the repeated objections of petitioners and in the

total absence of evidence of the undue hardships imposed

‘See, e.g., infra, A-33 (environmental effect of wage orders);

A-53-54 (burden imposed upon petitioners by wage orders); A-55

(undue hardship to petitioners as a result of wage orders),

8

upon petitioners’ members by the wage orders, the Cali-

fornia Supreme Court nevertheless decided the federal

substantive due process issue, sustaining the constitution-

ality of the challenged wage orders (A. 54). The Court

so held, despite terms and conditions contained in the

wage orders which, as petitioners are prepared to show,

impose such inflexible overtime and work rules upon peti-

tioners’ members that they will force some agricultural

employers out of business.

This Court has long held that the resolution of an issue

as complicated as substantive due process depends, in

large part, upon the facts of each particular case. Roe v.

Wade, 410 U.S. 113, 163 (1973); Pierce v, Society of

Sisters, 268 U.S. 510, 536 (1925) (wherein the Court stated:

“Prevention of impending injury by unlawful action is a

well-recognized function of courts of equity.”); Meyer v.

Nebraska, 262 U.S. 390, 399-400 (1923). Although the facts

of Meyer v. Nebraska, Pierce v. Society of Sisters, and

Roe v. Wede differ from those of the instant case, the

principles enunciated by this Court. in those cases are

equally applicable to the case at bar. In the absence of

any sort of factual record, there cannot possibly be any

meaningful analytical resolution of the due process issue.

The decision of this case in a factual vacuum strikes

at the very heart of procedural due process of law. This

Court has recognized that the essence of the due process

clause is that “every man shall have the protection of

his day in court, and the benefit of the general law,—

a law which hears before it condemns, which proceeds

not arbitrarily or capriciously, but upon inquiry, and ren-

9

ders judgment only after trial .. .” Truaz v. Corrigan,

257 U.S. 312, 332 (1921).

This Court has held on numerous occasions that, in

situations like the present, due process requires that close

attention be paid to questions of fact. E.g., Goldberg v.

Kelly, 397 U.S. 254, 269-271 (1970). At the very crux

of the concept of due process is the requirement that

there be an opportunity to confront and cross-examine

adverse witnesses where questions of fact are to be

resolved. Willner v. Committee on Character and Fitness,

373 U.S. 96, 103-104 (1963); Greene v. McElroy, 360 US.

474, 507-508 (1959) ; 1.C.C. v. Louisville & Nashville Rail-

road Co., 227 U.S. 88, 93-94 (1913). In Goldberg v. Kelly,

397 U.S. at 269, the Court stated that:

“In almost every setting where important decisions

turn on questions of fact, due process requires an

opportunity to confront and cross-examine adverse

witnesses.”

As aiscussed infra, the California Supreme Court made

numerous material findings with respect to the factual

issues ra sed by petitioners in the course of the proceed-

ings below. Yet, contrary to the fundamental principles

of fairness and procedural due process of law, at no stage

of the proceedings below were petitioners given an oppor-

tunity to present evidence or to examine or cross-examine

witnesses in any sort of trial-type proceeding.

With respect to petitioners’ federal substantive due

process challenge to the wage orders, given the oppor-

tunity, petitioners would have presented substantial evi-

dence as to the impact of the wage orders upon the

10

agricultural employers. Petitioners stood ready to show

that wage orders 8-80, 13-80 and 14-80 would have such a

devastating impact upon persons engaged in agriculture

that the orders would have the effect of infringing upon the

right to engage in such an occupation. Evidence would

have been introduced to establish that due to the very

unpredictable and uncontrollable nature of agricultural

hours relating to the harvest and the processing of perish-

able products, particularly the need to maintain twenty-

four hour operations during peak seasons, it would be an

undue hardship for agriculture to be regulated in a man-

ner which is far more appropriate for a manufacturing

plant where needs can be determined on a more predictable

basis.

Petitioners never got that chance. No opportunity was

afforded for the introduction of a scintilla of evidence

with respect to the substantive due process issue. And yet

the California Supreme Court, acting as the court of first

instance, passed upon this federal constitutional issue,

finding that the employers had “completely fail[ed] to

show that the wage and hour regulations they attack are

not rationally related to these permissible state interests.”

(A. 54). No such showing was possible in the absence of

any type of hearing.

Furthermore, the California Supreme Court made

material findings of fact with respect to petitioners’ state

law claims in the absence of any factual record. For

example, in their initial pleadings in the superior courts,

petitioners had contended that the challenged wage orders

were invalid because the Commission had failed to comply

11

with the provisions of the California Environmental

Quality Act. Petitioners intended to introduce evidence

concerning the impact of the wage orders upon the envir-

onment. In sum, petitioners were prepared to make a

factual showing with regard to the following aspects of

the environmental fallout of the wage orders: (1) increased

mechanization as a result of the restrictive work rules and

wage provisions which would cause the greater use of

machinery and fuel; (2) greater noise and air pollution;

and (3) increased sale of arable land for urban purposes.

However, petitioners were never permitted to make such a

showing. Ruling in a factual void, the California Supreme

Court found that the IWC regulations had “no obvious

effect on the environment.” (A, 33).

A further example is found in the Court’s ruling on the

challenge made by petitioners on the ground that the

Commission exceeded its statutory authority by regulating

subjects as to which the California Occupational Safety

and Health Standards Board has exclusive jurisdiction.

The California Supreme Court held that the Commission

retained “jurisdiction to regulate working conditions

related to the health and safety of employees in the

absence of any actual conflict with existing Cal/OSHA

regulations or policy.” (A. 483). No such conflict was found

due to the fact that petitioners, although prepared to do

so, were never allowed an opportunity to present evidence

as to the actual conflicts between Cal/OSHA regulations

and certain provisions of the wage orders such as meal

periods, rest periods, seats, temperature, lifting, change

rooms and resting facilities,

12

In setting the standards by which courts should measure

the adequacy of due process provided in particular cases,

the Court stated in Goldberg v. Kelly, 397 U.S. at 262-263,

that:

“The extent to which procedural due process must

be afforded the recipient is influenced by the extent to

which he may be ‘condemned to suffer grievous loss,’

... and depends upon whether the recipient’s interest

in avoiding that loss outweighs the governmental

interest in summary adjudication.” Jd. at 262-263,

quoting Joint-Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J.,

concurring).

The nature of petitioners’ loss herein goes beyond a

purely monetary one. The impact of the wage orders upon

petitioners’ members is a grievous one indeed; to the

extreme detriment of the agricultural employers of

California, the entire compensation and employment struc-

ture of the agricultural industry is about to undergo a

total transformation. And yet, petitioners never had their

day in court.

13

CONCLUSION

For the reasons set forth herein, the Petition for Writ

of Certiorari should be granted.

Respectfully submitted,

Grorce J. Trcony, IT,

COUNSEL OF RECORD

Ricuarp H. Harpine

MicHELE 8. Poowar

LitrLer, MENDELSON, Fastirr &

Ticuy

A PROFESSIONAL CORPORATION

Cuarues M. StTouu

Rosert P, Roy

Dressuer, STOLL, QUESENBERY,

Laws & BarsaMIAN

Attorneys for Petitioners

(Appendices follow)

A-1

Appendix A

In the Supreme Court

of the

State of California

S. F. 24123

:

Industrial Welfare Commission et al.,

Petitioners,

v.

Kern County Superior Court et al., >

Respondents ;

California Hotel & Motel Association et al.,

Real Parties in Interest.

;

[Filed July 10, 1980]

On September 7, 1979, the California Industrial Welfare

Commission (hereafter [WC or commission), acting pur-

suant to its constitutionally and statutorily based authority

(Cal. Const., art. XIV, §1; Lab. Code, §§ 70-74, 1171-

1204),’ adopted a series of industry-wide “wage orders,”

prescribing the minimum wages, maximum hours, and

standard conditions of employment for employees in this

state. These orders (hereafter 1980 wage orders) were

scheduled to go into effect on Jannary 1, 1980. In mid-

December 1979, however, shortly before the effective date

of the orders, numerous employer associations and individ-

ual employers (hereafter employers), representing com-

panies which employ millions of California workers, ini-

‘Unless otherwise indicated, all statutory references are to the

Labor Code,

A-2

tiated four separate mandate actions in various superior

courts throughout the state, challenging the validity of

nine of the 1980 wage orders on various grounds.’ In each

of the cases, an alternative writ of mandate issued, along

with an order staying each of the nine challenged wage

orders in whole or in part.

In a significant number of respects, the December 1979

lawsuits were sequels to similar litigation that had been

brought by many of the same organizations and emplovers

several years earlier challenging the 1976 orders adopted

by the IWC. In the earlier round of litigation, various

courts throughout the state had reached differing conclu-

sions with respect to a number of common legal issues

raised in each of the separate lawsuits. As a consequence,

in some industries employees were denied the benefits of

the 1976 wage orders, while in other industries similarly

situated employees were afforded the protections of the

orders. After the normal, lengthy process of trial and

*The four actions, and the respective wage orders challenged

therein, are: (1) Western Growers Assn. et al. v. IWC (Kern

County Super. Ct. No. 164537) (challenging orders 8-80 (industries

handling products after harvest), 13-80 (industries preparing agri-

cultural products for market, on the farm), 14-80 (agricultural

occupations ); (2) California Manufacturers Assn. v. IWC (Orange

County Super. Ct. No. 325866) (challenging orders 1-80 (manu-

facturing industry), 3-80 (canning, freezing and preserving in-

dustry), 4-80 (professional, technical, clerical, mechanical and

similar occupations, 8-8); (3) San Joaquin Nisei Farmers League

et al. v. IWC (Stanislaus County Super. Ct. No. 164580 (challeng-

ing orders 8-80, 13-80, and 14-80); and (4) California Trucking

Association et al. v. IWC (Kings County Super. Ct. No, 3132]

(challenging orders 5-80 (public housekeeping industry), 9-80

(transportation industry) and 10-80 (amusement and recreation

industry ).

A-3

appeal, one of the cases challenging the 1976 orders reached

this court for decision in 1979. In California Hotel & Motel

Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200 our

court resolved several of the common legal issues presented

in the challenges to the 1976 wage orders, but at the same

time determined that a number of other legal issues “could

be dealt with more appropriately” in a future case in which

the IWC had explained the basis of its wage orders in a

fashion consistent with our holding in that case (25 Cal.3d

at pp. 204-205, fn. 2.)

In February 1980, two months after the institution of

the four December 1979 lawsuits noted above, the Attorney

General, acting on behalf of the IWC, initiated this pro-

ceeding seeking an original writ of mandate or prohibition

from this court. The Attorney General’s petition alleged

that each of the four mandate actions filed in December

1979 presented a number of common legal issues, many of

which had been raised but left unresolved in California

Hotel & Motel Assn. The petition also suggested that if the

lower court actions were permitted to run their normal

course, there was a significant possibility that the history

of the 1976 wage order litigation would repeat itself, with

lower courts reaching disparate results on common legal

issues, and with employees in many industries being de-

prived of the protection of the 1980 wage orders for per-

haps as long as several years. Under these circumstances,

the Attorney General urged this court to issue an alterna-

tive writ and to provide a prompt and definitive resolution

of the numerous common legal issues raised in the various

court actions below.

A-4

In view of the large number of employees affected by

the challenged orders, and the tortuous litigation history

which had prevented the implementation of the majority of

IWC wage orders in recent years, we concluded that this

was an appropriate instance for the exercise of our original

jurisdiction, and accordingly we issued an alternative writ

of mandate. (See, e.g., Agricultural Labor Relations Bd. v.

Superior Court (1976) 16 Cal.3d 392, 402.) Although the

employers claim that we lack jurisdiction to review the

legal challenges to any of the 1980 wage orders because

none of the trial courts has as yet entered a judgment on

the merits, the Court of Appeal in Rivera v. Division of

Industrial Welfare (1968) 265 Cal.App.2d 576, 580-581,

acted under similar circumstances to review the validity

of an IWC wage order in an original mandate proceeding

instituted in the appellate court.

Moreover, because the stay orders issued by several of

the respondent courts have the practical effect of enjoining

the operation of an administrative regulation promulgated

pursuant to the [WC’s quasi-legislative authority, past au-

*The employers additionally argue that this court should not

act at this time because there are allegedly numerous factual issues

upon which evidence must be taken. We do not believe, however,

that the alleged factual disputes preclude our consideration of the

employers’ legal challenges to the wage orders at this stage. As we

explained under similar circumstances in Burrey v. Embarcadero

Mun. Improvement Dist. (1971) 5 Cal.3d 671, 676: “Respondents

argue that we should not exercise our jurisdiction because there

exist numerous questions of fact which must be resolved prior to

any decision in the case. The petition for writ of mandate does

contain allegations of fact which are controverted by respondent

and intervener. We are satisfied that these disputed facts are either

not material to our resolution of the case, or may be resolved by

judicial notice.”

A-5

thorities teach that if this court concludes that the chal-

lenged orders are in fact valid, the lower court’s issuance

of such quasi-injunctive relief would properly be subject

to correction by extraordinary writ. (See, e.g., Agricultural

Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at

p. 401.) Accordingly, we conclude that this matter is prop-

erly before this court.

1. Background and general principles of review.

Before undertaking an analysis of the numerous legal

contentions which the employers have advanced in support

of their attack upon the 1980 wage orders, we believe it

may be helpful to summarize very briefly the historical

background of the IWC’s jurisdiction and the established

legal principles which govern judicial review of the com-

mission’s administrative orders.

The IWC is a five-member appointive board initially

established by the Legislature in 1913. For the first 60 years

of its existence, the [WC’s mission was to regulate the

wages, hours and conditions of employment of women and

children employed in this state, in furtherance of such em-

ployees’ “health and welfare.” To this end, the commis-

sion—beginning in 1916—promulgated a series of industry-

and occupation-wide “wage orders,” prescribing various

minimum requirements with respect to wages, hours and

working conditions to protect the health and welfare of

women and child laborers. For many decades, IWC wage

orders have embraced a variety of subjects comparable in

scope to the 1980 wage orders at issue in this case.

In the early 1970s, a number of federal judicial decisions

invalidated a substantial portion of the then-prevailing

A-6

IWC wage orders on the ground that the limited applica-

tion of such orders to women workers (and children) vio-

lated the prohibition on sex discrimination embodied in

Title VII of the federal Civil Rights Act of 1964. (See,

e.g., Rosenfeld v. Southern Pacific Co. (9th Cir. 1971) 444

F.2d 1219, 1225-1227; Homemakers, Ine. of L.A. v. Division

of Indust. Welf. (N.D. 1973) 356 F.Supp. 1111, affd. (9th

Cir. 1974) 509 F.2d 20, cert. den. (1975) 423 U.S. 1063; and

cases cited, 509 F.2d at p. 23, fn. 7.) In response to these

federal decisions, the California Legislature in 1972 and

1973 amended the applicable provisions of the Labor Code

to authorize the IWC to establish minimum wages, maxi-

mum hours and standard conditions of employment for all

employees in the state, men as well as women. (Stats. 1972,

ch. 1122, §§ 2-6, pp. 2153-2155; Stats. 1973, ch. 1007,

§$§ 1.5-4, pp. 2002-2003.) The constitutionality of this legis-

lative expansion of the [WC’s jurisdiction to all California

workers is explicitly confirmed by article XIV section 1 of

the California Constitution which declares: “The Legis-

lature may provide for minimum wages and for the general

welfare of employees and for those purposes may confer

on a commission legislative, executive and judicial powers.’

*Article XIV section 1 replaced former article XX, section 17%

which, prior to 1970, provided:

“The Legislature may, by appropriate legislation, provide for

the establishment of a minimum wage for women and minors

and may provide for the comfort, health, safety and general

welfare of any and all employees. No provision of this Con-

stitution shall be construed as a limitation upon the authority

of the Legislature to confer upon any commission now or

hereafter created, such power and authority as the Legislature

may deem requisite to carry out the provisions of this section.”

A-7

Although the 1973 modification of the [WC’s jurisdiction

to encompass men as well as women and minors clearly

worked a substantial expansion in the number of workers

affected by the commission’s orders, and, as a practical

matter, was probably a major impetus to the host of liti-

gation that has surrounded the commission’s wage orders

since 1973, the 1973 legislation did not alter the basic na-

ture of the IWC’s decisionmaking authority or the basic

principles governing judicial review of the commission’s

exercise of that authority. From its inception in 1913 to

the present, the commission has been vested with broad

statutory authority to investigate “the comfort, health,

safety, and welfare” of the California employees under

its aegis ($1173, enacted Stats. 1918, ch. 324, § 3, p. 633)

and to establish (1) “[a] minimum wage... which shall

not be less than a wage adequate to supply ... the neces-

sary cost of proper living and to maintain the health and

welfare of such [employees],” (2) “[t]he maximum hours

of work consistent with the health and welfare of [such

employees]” and (3) “[tjhe standard conditions of labor

demanded by the health and welfare of such employees.

...” (§ 1182, enacted Stats, 1913, ch. 324, § 6, pp. 634-635.)

Indeed, the 1973 act—while retaining the authorizing

language of section 1182 quoted above—restated the com-

mission’s responsibility in even broader terms, directing

the commission continually to review and to update its

“rules, regulations and policies to the extent found by the

commission to be necessary to provide adequate and rea-

sonable wages, hours, and working conditions appropriate

for all employees in the modern society.” (Italies added.)

(§ 1173, enacted Stats. 1973, ch. 1007, § 1.5, p. 2002.)

A-8

Judicial authorities have repeatedly emphasized that in

fulfilling its broad statutory mandate, the IWC engages

in a quasi-legislative endeavor, a task which necessarily

and properly requires the commission’s exercise of a con-

siderable degree of policy-making judgment and discretion.

(See, e.g., California Hotel & Motel Assn., supra, 25 Cal.3d

200, 211; California State Restaurant Assn. v. Whitlow

(1976) 58 Cal.App.3d 340, 344; California Grape etc, League

v. Industrial Welfare Com, (1969) 268 Cal.App.2d 692, 708;

Rivera v. Division of Industrial Welfare, supra, 265 Cal.

App.2d 576, 586, 591, 595.)

Because of the quasi-legislative nature of the [WC’s au-

thority, the judiciary has recognized that its review of the

commission’s wage orders is properly circumscribed. As

the Court of Appeals noted in Rivera, supra, 265 Cal.App.

2d 576, 594: “A reviewing court does not superimpose its

own policy judgment upon a quasi-legislative agency in

the absence of an arbitrary decision; rather, the review is

limited to an examination of the proceedings to determine

whether the action is arbitrary or entirely lacking in evi-

dentiary support or whether the agency has violated the

procedure required by law; in these technical matters re-

quiring the assistance of experts and the collection and

study of statistical data, courts let administrative boards

and officers work out their problems with as little judicial

interference as possible.” (In. omitted.)

Moreover, past decisions additionally teach that in light

of the remedial nature of the legislative enactments au-

thorizing the regulation of wages, hours and working con-

A-9

ditions for the protection and benefit of employees, the

statutory provisions are to be liberally construed with an

eye to promoting such protection. As the court observed in

California Grape etc. League, swpra, 268 Cal.App.2d 692,

698: “Remedial statutes such as those under consideration

[i.e., the statutes governing the adoption of wage orders]

are to be liberally construed. [Citation.] They are not con-

strued within narrow limits of the letter of the law, but

rather are to be given liberal effect to promote the general

object sought to be accomplished. ... [{]] Regulations and

orders of the Industrial Welfare Commission are presumed

to be reasonable and lawful.” (Italies in original.)

With these general principles of judicial review and

statutory construction in mind, we turn to the numerous

legal challenges which the employers have mounted against

the [WC’s 1980 wage orders, The employers contend that

the 1980 wage orders are fatally flawed on both procedural

and substantive levels. Procedurally, the employers argue

that the wage orders are invalid because the [WC (1) failed

to conduct an adequate “investigation” under section 1178

before selecting wage boards, (2) failed to include an ade-

quate “statement as to the basis upon which the order is

predicated” as required by section 1177, and (3) failed to

comply with the requirements of the California Environ-

mental Quality Act of 1970 (CEQA) prior to the adoption

of the orders.

Substantively, the employers contend (1) that all of the

various provisions of the wage orders dealing with the

health and safety of employees are invalid because only

the California Occupational Safety and Health Standards

A-10

Board, and not the [WC, has jurisdiction to act on such

matters and (2) that various labor relation statutes pre-

clude the IWC from setting fixed minimum standards with

respect to matters that the labor laws leave to the collec-

tive bargaining process between employers and employees.

As we explain, we have concluded that none of these objec-

tions to the 1980 wage orders has merit."

2. The IWC complied with the pre-wage board “investi-

gation” requirements of section 1178.

The employers initially contend that all of the 1980 wage

orders are invalid in their entirety because the IWC al-

legedly failed to comply with an initial step in the elaborate

procedure established by Labor Code section 1178 for the

adoption of commission regulations fixing minimum wages,

maximum working hours and standard conditions of em-

ployment. To place this contention in context, we set forth

the lengthy provisions of section 1178 in full.

Section 1178 provides:

“Tf after investigation the commission finds that in

any occupation, trade, or industry, the wages paid to

employees are inadequate to supply the cost of proper

living, or that the hours or conditions of labor are

prejudicial to the health, morals, or welfare of em-

ployees, the commission shall select a wage board to

‘In addition to the general common legal issues enumerated

above, a number of the mandate actions filed below set forth

additional contentions directed at more specific and limited portions

of the various wage orders. We address these additional contentions

in section 7 below, and conclude that all of these challenges also

lack merit.

A-11

consider any of such matters. Such wage board shall

be composed of an equal number of representatives of

employers and employees in the occupation, trade, or

industry in question; and a representative of the com-

mission to be designated by it, who shall act as chair-

man of the wage board on request of the commission.

The wage board shall report and make recommenda-

tions to the commission, including therein:

“(a) An estimate of the minimum wage adequate

to supply the necessary cost of proper living to, and

maintain the health and welfare of employees en-

gaged in the occupation, trade, or industry in

question.

“(b) The number of hours of work per day in

the occupation, trade, or industry in question, con-

sistent with the health and welfare of employees.

“(c) The standard conditions of labor in the oceu-

pation, trade, or industry in question, demanded by

the health and welfare of employees.

“Before promulgating an order relating to wages,

hours, or conditions of labor for the occupation, trade,

or industry in question, and after receipt of the report

from the wage board, the commission shall prepare

proposed regulations for the occupation, trade, or in-

dustry in question and then shall hold a public hear-

ing. The proceedings shall be recorded and transcribed

and shall thereafter be a matter of public record. When-

ever the occupation, trade, or industry in question is

statewide in scope, a public hearing shall be held in

each of two cities in this state; when it is not state-

A-12

wide, a public hearing shall be held in the locality

where the occupation, trade, or industry prevails.”

The employers concede that before the 1980 wage orders

were adopted (1) the IWC convened wage boards for each

of the industrial and occupational groupings to consider

the updating of its prior wage orders, (2) the wage boards

received recommendations and statements from affected

individuals and prepared wage board reports containing

recommendations as to revisions, (3) the IWC reviewed

the wage board reports and the records of the wage board

proceedings and, after deliberation, prepared and published

proposed revisions of the existing wage orders, (4) the

IWC held public hearings throughout the state on the

proposed revisions, and (5) the IWC considered the addi-

tional matters raised in the public hearings, amended its

proposed orders, and finally on September 7, 1979, adopted

its 1980 wage orders together with a statement as to the

basis of each order.

Despite this extensive procedure, the employers, focusing

upon the initial passage of section 1178 which states that

“lilf after investigation the commission finds that .. . the

wages paid to employees are inadequate to supply the cost

of proper living, or that the hours and conditions of labor

are prejudicial to the health, morals or welfare of employ-

ees, the commission shall select a wage board to consider

any such matter... .” (italics added), maintain that the

1980 wage orders are invalid because of the commission’s

alleged failure to conduct an “adequate” investigation prior

to convening the wage boards. The plaintiffs in California

Hotel & Motel Assn. raised a similar contention, but our

A-18

court ultimately concluded that we did not need to deter-

mine the general scope of the pre-wage board investigation

provision of section 1178 in that case, for we found that

other provisions of the 1973 legislation, directing the IWC

to undertake a “full review” of its orders “forthwith,” had

in any event relieved the commission of any separate pre-

wage board investigation requirement prior to the promul-

gation of the 1976 wage orders. (See 25 Cal.3d at pp. 206-

209.) We now address the issue which we did not reach in

California Hotel & Motel Assn, and, as we shall explain,

we conclude that the [WC fully complied with the require-

ments of section 1178.°

On May 8, 1978, the TWC voted to open the 1976 wage

orders for full review by wage boards. At that time, the

commission unanimously adopted a statement explaining

that “Section 1173 of the Labor Code requires that the

*In addition to contending that it has fully complied with the

pre-wage board investigation provision of section 1178, the IWC

points out that section 1173, as amended in 1973, directed the com-

mission not only to undertake a “full review” of its orders “forth-

with,” but also required the commission to “conduct such a full

review at least once every two calendar years, or at such more

frequent times as the commission, based upon then current condi-

tions, deems appropriate.” (Italics added.) (Stats. 1973, ch. 1007,

§ 1.5, p. 2002.)

The commission maintains that, as in California Hotel & Motel

Assn., this statutory mandate of a “full review” of existing orders

at least once every two years itself authorizes the commission, as

part of its biennial review, to convene wage boards without regard

to any pre-wage board investigation. Because, as we explain below,

we conclude that the commission complied with the preliminary

investigation requirements of section 1178, we need not decide

whether section 1173's mandate of a full review once every two

years in itself empowers the commission to initiate the wage board

procedure as part of its full review,

A-14

Commission conduct a fall review of all existing rules,

regulations and policies made under its jurisdiction at least

once every two calendar years. The Commission has made

@ continuous investigation of wages, hours, and working

conditions affecting employees in industries, trades and

occupations covered by its orders, and it also takes official

notice of the substantial inflation affecting all members of

society, and the recent increase in the federal minimum

wage. It thereby concludes that it would be imperative to

conduct a full review of the existing wage orders in order

to provide for the health and welfare of employees and

wages adequate to supply them with the necessary cost of

proper living even if Section 1173 did not dictate a full

review at that time.” (Italics added.)

Although the employers acknowledge that the commis-

sion, as part of its on-going duties under section 1173,’

gathers a voluminous quantity of statistical and other data

from governmental and private studies with respect to

economic trends and employment conditions,’ the employ-

"Section 1173 provides in relevant part: “It shall be the contin-

uing duty of the Industrial Welfare Commission . . . to ascertain the

wages paid to all employees in this state, and to ascertain the hours

and conditions of labor and employment in the various occupations,

trades, and industries in which employees are employed in this

state, and to investigate the comfort, health, safety, and welfare of

such employees.” (Italics added. )

*The administrative record in this case contains a variety of infor-

mation obtained by the commission members prior t6'their decision

to convene wage boards to review the existing wage orders. That

information includes: (1) proposed and enacted state and federal

legislation affecting wages, hours, and working conditions, (2) com-

plaints and correspondence from employees and employers con-

cerning wages, hours and working conditions, (3) studies, surveys,

reports and bulletins from the California Department of Industrial

A-15

ers contend that this normal on-going commission activity

does not constitute “adequate” investigation to satisfy the

“after investigation” provision of section 1178. While the

employers concede that section 1178 establishes no stan-

dard as to the required depth or breadth of investigation

contemplated before wage boards are convened, the em-

ployers apparently maintain that the investigation in this

case was not adequate because it did not involve field in-

vestigation and did not apprise the commission of specific

changes that were needed in the existing wage orders.

We think the employers have misconceived the nature

of the preliminary investigation contemplated by section

1178, as well as the administrative agency’s discretion in

determining the extent of the investigation necessary. As

the United States Supreme Court has explained in a simi-

lar context: “[An agency’s| duty to investigate is a duty

to make such investigation as the nature of the case re-

quires. An investigation is ‘essentially informal, not ad-

versary’; it is ‘not required to take any particular form.’

[Citation.] These principles are particularly apt... where

Congress has simply told the [agency] to investigate and

has left to it the task of selecting the methods and proce-

dures which it should employ in each case.” (Railway

Clerks v. Employees Assn. (1965) 380 U.S. 650, 662; see,

e.g., Inland Kmpire Council v. Millis (1945) 325 U.S. 697,

706; Ruby v. American Airlines (2d Cir. 1963) 323 F.2d

248, 255.)

Relations, and the California Health and Welfare Agency, and from

the United States Department of Labor and Department of Agri-

culture, and (4) transcripts of hearings held by the IWC with

respect to minimum wage and related compensation.

A-16

As the full text of section 1178 makes clear, the pre-

wage board investigation contemplated by the statute is

only the first step in a lengthy administrative process by

which the IWC determines whether existing wage orders

are adequate and decides if and how any present orders

should be modified. The section does not require the com-

mission to formulate specific proposed modifications of the

present orders before selecting the wage boards; indeed, as

the Court of Appeal observed in California Grape etc.

League, “it would be contrary to the clear purpose of the

statute for the commission to arrive at specific proposals

without benefit of the views and advice of interested per-

sons on the wage board and at the public hearings.” (268

Cal.App.2d 692, 708.)

Instead, the investigation contemplated is simply a pre-

liminary inquiry to determine whether there is sufficient

question as to the adequacy of the existing wage orders

that wage boards ought to be selected. In this context, we

think that the commission’s reliance on the statistical and

other data compiled in its normal investigative process,

along with its consideration of the obvious effect on ein-

ployees of the economy’s rapidly increasing inflation, clearly

sufficed to justify the convening of wage boards to review

the adequacy of the existing orders under section 1178.

Authorities construing statutes embodying similar pre-

liminary investigation requirements confirm this conclusion,

In Modern Plastics Corporation v. MeCulloch (6th Cir.

1968) 400 F.2d 14, for example, an employer sought to en-

join the NLRB from conducting a representation election

among the company’s employees on the ground that the

A-17

NLRB had failed to comply with section 9(¢) of the NLRA

(29 U.S.C. § 159(¢)) which provides in part that “[w]hen-

ever a [representation] petition shall have been filed .. .

the Board shall investigate such petition. . . .” (Italics

added.) In rejecting the employer’s contention, the Modern

Plastics court pointed out that the investigation contem-

plated by the statute was simply a preliminary inquiry to

determine whether there was sufficient question as to repre-

sentation so as to warrant holding a formal hearing on the

issue. Because the investigation contemplated by the stat-

ute was only a threshold step leading to further adminis-

trative procedures, the court concluded that the agency

had not violated the statute merely because it had not

undertaken any formal field investigation before deciding

to go forward with a hearing, when the facts before the

relevant administrative official “were not so plainly in-

substantial that he could not reasonably conclude that a

sufficient question of representation existed to justify in-

quiry through the usual ... hearing.” (400 F.2d at p. 19.)

In like manner, the facts within the knowledge of the

commission in May 1978—by virtue of its continuing in-

vestigation and the readily ascertainable increasing infla-

tion—were certainly sufficient to permit the commission

to conclude that “further inquiry” into the adequacy of the

existing wage orders through the wage board procedure

was warranted. Under these circumstances, the commission

did not violate section 1178 in reopening the wage orders

for review by wage boards.

Our conclusion in this regard is buttressed by the history

of section 1178. The “after investigation” language of sec-

A-18

tion 1178 relied upon by the employers has been part of

California law since the inception of the IWC in 1913.

(Stats. 1913, ch. 324, ¢5, p. 634.) Past cases indicate that

the commission has long interpreted the statute as authoriz-

ing the opening of existing wage orders and the convening

of wage boards on the basis of its review of data compara-

ble to the matters that were before the IWC in the instant

case. (See, e.g., Rivera v. Division of Industrial Welfare

(1968) 265 Cal.App.2d 576, 582-584, 590. See also Cal.

Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287,

301.)

Furthermore, while section 1178 has been amended on

several occasions, the Legislature has never altered the

“after investigation” language to indicate that the com-

mission’s long-standing interpretation of the section is

erroneous. As California courts have noted, “[r]eenactment

of a provision which has a meaning well established by

administrative construction is persuasive that the intent

was to continue the same construction previously recog-

nized and applied.” (Cal. M. Express v. St. Bd. of Equali-

zation (1955) 13 Cal.App.2d 237, 239-240; see, e.g., Coca

Cola Co. v. State Bd. of Equalization (1945) 25 Cal.2d 918,

922.)

Finally, even if the commission’s pre-wage board investi-

gation was in some respects inadequate—which we do not

believe to be the case—we do not understand how such

a deficiency realistically prejudiced the employers so as

to justify setting aside the entire 1980 wage orders. (Cf.

Modern Plastics Corp. v. McCulloch supra, 400 F.2d 14, 17,

fn. 5.) The employers had a full opportunity during both

the wage board proceedings and the subsequent public

A-19

hearings to fully apprise the commission of all relevant

facts and to present arguments and recommendations either

in support of or in opposition to changes in the wage

orders. Uuder these circumstances, we would be loath to

overturn vital administrative regulations on the basis of a

minor, nonprejudicial misstep. As the Fifth Circuit Court

of Appeals has observed: “Courts..., as partners with...

agencies in the effectuation of [legislative] will through the

administrative process, ...do not function to strike down

agency action because of merely formal to technical flaws.”

(Ala. Ass’n. of Ins. A. v. Bd. of Gov. of F. R. System (5th

Cir. 1976) 553 F.2d 224, 236.)

Accordingly, we conclude that the IWC adequately com-

plied with section 1178 prior to convening wage boards to

consider the 1980 wage orders.

3. The “statement as to basis” accompanying the 1980

wage orders comply with the requirements of section

1177 as articulated in California Hotel &: Motel Assn.

v. Industrial Welfare Com. (1979) 25 Cal.3d 200.

The employers next contend that in adopting the 1980

wage orders the IWC failed to comply with Labor Code

section 1177 which provides in relevant part: “Hach order

of the commission shall include a statement as to the basis

upon which the order is predicated and shall be concurred

in by a majority of the commissioners.” The employers

acknowledge that each of the commission’s 1980 orders in-

cludes a lengthy document entitled “Statement as to Basis,”

concurred in by a majority of the commissioners, providing

a section-by-section analysis and explanation for each por-

A-20

tion of the accompanying wage orders. The employers

maintain, however, that the statements are not sufficiently

detailed to satisfy the statutory requirements of section

1177 under this court’s recent decision in California Hotel

& Motel Assn. As we shall explain, the employers’ conten-

tion misconceives the basic thrust of ‘° s court’s holding in

California Hotel & Motel Assn. and, contrary to that deci-

sion, seeks to read into section 1177 unreasonably burden-

some requirements that are basically incompatible with the

commission’s quasi-legislative task.

In California Hotel & Motel Assn., this court reviewed

the validity of one of IWC’s 1976 wage orders, order 5-76,

dealing with the public housekeeping industry. Unlike the

1980 wage orders now before us, the order contained no

provision or document which specifically purported to be

a statement as to the basis of the order as required by

section 1177. The commission, however, contended that the

statement as to basis requirement of section 1177 was sat-

isfied by a paragraph in the order, entitled “TO WHOM IT

MAY CONCERN,” which read as follows:

“TO WHOM IT MAY CONCERN: TAKE NO-

TICE: That pursuant to the Legislature’s 1973 man-

date to the Industrial Welfare Commission to review,

update and promulgate regulations necessary to pro-

vide adequate and reasonable wages, hours, and work-

ing conditions appropriate for all employees, and by

virtue of authority vested in the Commission by sec-

tion 1171 through 1204 of the Labor Code of the State

of California, and after investigation and findings pur-

suant to section 1178 and after receiving recommenda-

tions from duly appointed wage boards, and after

A-21

consideration of all written material and information

submitted, and after public hearings duly held, notice

of said hearings having been duly given in the manner

provided by law, the Industrial Welfare Commission,

upon its own motion has found and concluded that its

Public Housekeeping Industry Order, Number 5-68,

enacted on September 24, 1967 and its Minimum Wage

Order 1-74 enacted on January 1, 1974, should be

altered and amended.

“NOW, THEREFORE, the Industrial Welfare Com-

mission of the State of California does hereby alter

and amend said Public Housekeeping Industry Order,

Number 5-68, and its Minimum Wage Order 1-74.”

In California Hotel & Motel Assn. our court rejected the

commission’s contention in this regard, concluding that the

commission had misinterpreted the fundamental purpose of

section 1177 by suggesting that the provision could be sat-

isfied by a statement which simply listed the statutory basis,

ie., the authorizing statutes, for the agency’s regulatory

action. Instead, adverting to the legislative history of the

provision and to an analogous provision of the federal

Administrative Procedure Act (APA),° we pointed out that

Section 4(c) of the APA (5 U.S.C. §553(c)) reads in pertinent

part: “After consideration of the relevant matters presented [in an

informal rule-making proceeding], the agency shall incorporate in

the rules adopted a concise general statement of their basis and

purpose.” (Italics added.) In view of the similarity of this provi-

sion to section 1177, we indicated in California Hotel & Motel Assn.

that federal authorities construing section 4(c), while not control-

ling, will often be persuasive in interpreting section 1177. (See 25

Cal. 3d at p. 210, fn. 20; id., at pp. 219-220 (Christian, J. conc. ).)

As noted post, we have utilized a number of such federal authorities

in reaching our conclusions in the instant case,

A-22

the statute was a response to the Legislature’s belief “that

the public has the right to know the reasons for the laws

which govern them” (italics added) (25 Cal.3d at p. 210,

fn. 21), and accordingly we concluded that section 11/7

contemplated that the IWC would provide a reasoned

explanation to accompany its orders, an explanation that

would “reflect the factual, legal and policy foundations for

the action taken.” (/d., at p. 213.)*°

At the same time, however, we recognized that in prom-

ulgating wage orders the IWC is involved in a quasi-

legislative, rather than a quasi-judicial endeavor, and we

cautioned that “[t]he statement of basis is not the equiva-

lent of the findings of fact that a court may be required

to make.” (Jd.) Instead, we emphasized that what section

1177 demands is simply “an explanation of how and why

the Commission did what it did.” (Italics added.) (JId.)

Because the “To Whom it May Concern” paragraph did

not fulfill this basic function, we concluded that the com-

mission had failed to comply with section 1177 in initially

adopting order 5-76.

We explained this requirement as follows: “If terms of the

order turn on factual issues, the statement must demonstrate reason-

able support in the administrative record for the factual determina-

tions. If, on the other hand, the terms of the order turn on policy

choices, an assessment of risks or alternatives, or predictions of eco-

nomic or social consequences, the statement of basis must show

how the commission resolved conflicting interests and how that res-

olution led to the order chosen. If an order differentiates among

classes of industries, employers, or employees, the statement of basis

must show that the distinctions drawn are reasonably supported by

the administrative record and are reasonably related to the purposes

of the enabling statute.” (25 Cal.3d at p. 214.)

A-23

The 1980 wage orders at issue in this case were pro-

mulgated shortly after this court’s decision in California

Hotel & Motel Assn., and the statements as to the basis

of such orders were quite evidently drafted with that deci-

sion’s guidelines firmly in mind. Unlike the “To Whom it

May Concern” paragraph of the initial 1976 orders, the

statements accompanying the 1980 orders deal directly with

the substantive provisions of each of the orders, and pro-

vide concise and clearly worded explanations for the vari-

ous provisions of those orders. The statements make fre-

quent reference to specific comments and recommendations

raised in the course of the lengthy administrative proceed-

ings and indicate why the commission decided to adopt

some proposals and declined to adopt others; when the

wage orders impose different regulations on some indus-

tries than are imposed on others, or exempt some occupa-

tions from generally applicable requirements, the state-

ments explain the differential treatment. Indeed, a reading

of the numerous statements as to basis in the 1980 orders

leaves little doubt that the commission has made a thorough

and conscientious effort to explain “how and why [it] did

what it did.” (25 Cal.3d at p. 213.)

The employers assert however, that the commission’s

efforts in this regard were insufficient, and they level a

multi-pronged attack challenging the adequacy of virtually

every statement as to basis in all of the wage orders under

review. We do not believe that it is necessary, in this pro-

ceeding, to review each of the employers’ numerous attacks

separately. As we shall explain, an analysis of several rep-

resentative challenges mounted by the employers reveals

A-24

the general tenor and, in our view, misguided nature, of

the employers’ various contentions.

The employers initially challenge the adequacy of the

statements as to basis relating to section 3 of the wage

orders, concerning “Hours and Days of Work.” The state-

ment adopted by the commission reads in relevant part:

“The 8-hour day, 40-hour week is an accepted standard

in American society. Federal law embodying these stan-

dards (Walsh-Healey Act and Fair Labor Standards Act)

was enacted with the purpose of encouraging employers to

hire more employees when they have need for labor in

excess of 40 hours a week. The California Legislature de-

clares that ‘eight hours of labor constitutes a day’s work’

(Labor Code Section 510). Einployee representatives con-

tinue to express their conviction that a regular schedule

of work beyond eight hours a day is detrimental to the

health and welfare of employees.

“The Commission relies on the imposition of a premium

or penalty pay for overtime work to regulate maximum

hours consistent with the health and welfare of employees

covered by this order. Employers have objected to the

requirement for overtime pay after 8 hours a day and in

1976 they urged a 10-hour day without overtime, asserting

that employees favored such a schedule to save travel time

and expense and to have more leisure for weekend trips.

The Commission provided for such alternative in the 1976

Order, specifying conditions under which employees could

exercise a choice. In the review just completed, employee

representatives [o]n the wage board and in public hearing

asked that the provisions for four 10-hour days be deleted.

Some complained that once employees voted for such a

A-25

schedule there was no way to get out of it even when

employees found, from experience, that it was detrimental

to their welfare. Employer representatives on wage boards

and in public hearings proposed an alternative of three or

four workdays of not more than 12 hours each without

overtime. In view of the accepted 8-hour day standard,

social experience and testimony by employees the Com-

mission determined that a 12-hour day generally is detri-

mental to the welfare of employees. Where, in special cir-

cumstances, employees and employer agree in collective

bargaining that it is not detrimental, provision is made for

such exception as described below. The Commission did

retain the provision for the week of four 10-hour days, and

made it more flexible at the request of some employers and

employees by allowing the four days to be worked any time

within the work week so long as the employee received two

consecutive days off. Previously the four days had to be

scheduled within five consecutive days.

“At the same time the Commission acknowledges the

employees’ problem of being trapped in such a schedule

when it proved to be detrimental and provided a means of

voting out such a schedule (Section 3(B)(4)) under reason-

able conditions which protect the employer against frivo-

lous or too frequent changes.”

In questioning the adequacy of this lengthy statement,

the employers concede that “[i]t would be difficult to attack

the Commission’s apparent conclusion that an eight hour

day is consistent with the health and welfare of employees”

but argue that the statement is deficient for failing to indi-

cate why the Commission concluded that “an eight-hour day

A-26

is the only work day consistent with the health and welfare

of employees.” (Employers’ emphasis.) In a similar vein,

the employers argue that the statement does not satisfy

the requirement of section 1177, as interpreted in California

Hotel & Motel Assn., because while the statement explains

why the commission decided to permit a 10-hour day, 4-day

week without overtime pay, it does not indicate why the

commission did not permit any other alternative 40-hour

week.

In essence, the employers’ contention amounts to an

assertion that under section 1177, the commission must not

only explain why it adopted the orders that it did, but also

detail its reason for not adopting the myriad of possible

alternatives to its regulations. Such an interpretation of

section 1177, however, would be totally impractical and

would impose an unreasonable burden upon the agency. As

one federal court has explained in an analogous context.

“A rule-making agency makes not one but dozens of ‘ulti-

mate’ decisions—not only because a set of regulations has

many provisions, but also because adoption of any one

provision constitutes simultaneous rejection of many pos-

sible alternatives. ... For these reasons we think petition-

ers’ expansive reading of the ‘findings’ requirement .. . [to

require findings as to such alternatives] is inherently unre-

alistic. To require [such] findings of a rulemaking agency

. . would be to invite endless confusion and great uncer-

tainty.” (Amoco Oil Co. v. Environmental Protection

Ageney (D.C. Cir. 1974) 501 F.2d 722, 734-735.)

Indeed, we think that the governing legislation itself

demonstrates that the Legislature, in enacting section 1177,

A-27

did not intend to require the extraordinary extensive state-

ment as to basis that would be required under the employ-

ers’ proposed interpretation. As we recognize in California

Hotel & Motel Assn., supra, 25 Cal.3d at page 215, section

1177 provides that the statement as to basis is to be

included as an integral part of each wage order; section

1183, in turn, requires that the commission mail a copy of

such orders to employers covered by the order and directs

such employers to “post a copy thereof in the building in

which employees affected by the order are employed.”

These statutes demonstrate that the Legislature contem-

plated that the statement as to basis would take a form that

could reasonably be posted in places of employment and

could be read and understood by the employers and employ-

ees affected by the order.

This legislative purpose of effectively informing employ-

ers and employees of the basic reasons for the commission’s

actions would be defeated if we were to interpret the

statute to require a statement so lengthy and detailed that,

in practice, such statement would have to been printed in

extremely small type or in a document so extended that no

one could reasonably be expected to read it. As the United

States Supreme Court has recently emphasized in another

context: “Meaningful disclosure does not [necessarily]

mean more disclosure. Rather, it describes a balance be-

tween ‘competing considerations of complete disclosure ...

and the need to avoid ... “informational overload” .. .”

(Ford Motor Credit Co. v. Milhollin (1980) ...... US...

face [100 S.Ct. 790, 798].)

eoeg

The employers also challenge the adequacy of the state-

ments as to the basis of a number of sections of the 1980

A-28

wage orders in which the commission made no changes

whatsoever from previous wage orders. Thus, for example,

the statement as to the basis of this section 12, Rest

Periods,” reads: “The Commission received no compel-

ling evidence and concluded that there was no rationale to

warrant any change in this section, the basic provisions

of which date back to 1932. It also noted that administrative

exemptions are available if warranted under provisions of

section 17 of this order.” (Italics added.) The employers

contend that even when no change from a previous order

is implemented, section 1177 requires the IWC to provide

a full explanation for the original adoption of the provi-

sion and precludes the commission from simply indicating

the historical basis of the order.

As this court explained in California Hotel & Motel

Assn., however, the legislative history of section 1177 indi-

cates that the section was intended to ensure that the com-

mission would “accompany any new or revised order”

with an explanation for the agency’s determinations. (Ital-

ics added.) (25 Cal.3d at p. 210, fn. 21.) When the commis-

“The rest period provision of wage order 1-80 provides in full:

“Every employer shall authorize and permit 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 em-

ployees whose total daily work time is less than three and

one-half (3%) hours. Authorized rest period time shall be

counted as hours worked for which there shall be no deduction

from wages.”

A-29

sion, on the basis of its investigation, wage board pro-

ceedings and public hearings, determines that an existing

regulation should be altered or a new regulation promul-

gated, section 1177 requires that the commission explain

the reason for the new or revised rule. When the commis-

sion concludes that no such modification is warranted,

however, no comparable explanation is necessary, for the

commission is simply continuing in effect a regulation that

has previously become a part of the standard working con-

ditions of “employees in the modern society.” (§ 1173.) Al-

though we can perhaps conjure that, under some circum-

stances, underlying societal conditions may so change as

to reasonably require an explanation from the IWC for its

decision to continue a particular working condition regula-

tion in effect, we do not believe that the commission’s reten-

tion of the long-standing provisions in this case—involving

rest periods, meal periods, and the like—require any such

justification.

Finally, the employers contend that a number of the

statements as to basis are deficient even though they con-

tain a general explanation of the commission’s actions

because the statements do not specifically respond to some

comments or suggestions raised by wage boards or affected

individuals at some point in the administrative process.

Once again, however, the employers’ argument would ex-

pand the statement as to basis beyond all reasonable

bounds. As the Fifth Circuit has observed with respect

to the analogous “statement of basis and purpose” called

for by section 4(c) of the federal APA: “It is not expected

that the agency will discuss in detail every item of fact

or opinion included in the comments submitted to it.

A-30

[What] is expected [is] that the agency’s concise general

statement of basis and purpose... will enable us to see

what major issues of policy were ventilated by the [admin-

istrative] proceedings and why the agency reacted to them

as it did.” (Italics added.) (General Telephone Co. of

Southwest v. United States (5th Cir. 1971) 449 F.2d 846,

862.) In our view the statements as to the basis of the

1980 wage orders adequately fulfill this function.

In sum, we conclude that the 1980 statements as to basis,

promulgated in the wake of this court’s decision in Cali-

fornia Hotel & Motel Assn., satisfy the requirements of

section 1177 as articulated in that decision.

4. The IWC did not violate the provisions of CEQA in

promulgating the 1980 wage orders, since such orders

are specifically exempted from the statutory require-

ments under section 15124 of the California Admin-

istrative Code.

The employers next argue that the 1980 wage orders are

invalid because of the IWC’s alleged failure to comply with

the requirements of CEQA, relating to the preparation of

an “environmental impact report” or a “negative declara-

tion,” prior to the promulgation of its wage orders. As we

explain, this contention is clearly without merit, for the

commission’s wage orders have been explicitly exempted

from the statutory requirements of CEQA by a valid

administrative regulation.

In enacting CEQA to protect the environment of Califor-

nia, the Legislature recognized that not all actions of gov-

ernmental agencies have significant environmental effect,

A-31

and concluded that it was desirable to exempt certain cate-

gories of governmental actions from the generally applica-

ble requirements of the statute. Accordingly, the Legis-

lature in section 21084 of the Public Resources Code,

directed the Secretary of the California Resources Agency

to promulgate as part of the administrative guidelines gov-

erning the administration of CEQA, “a list of classes of

projects which have been determined not to have a signifi-

cant effect on the environment and which shall be exempt

from the provisions of this division.”

Acting pursuant to this directive, the Secretary of Re-

sources has established a list of classes of projects which,

by regulation, are declared “to be categorically exempt

from the requirement for the preparation of environ-

mental documents.” In February 1978, the secretary

adopted section 15124 of title 14 of the California Admin-

istrative Code which categorically exempts from CHQA’s

requirements “actions taken by regulatory agencies, includ-

ing the Industrial Welfare Commission as authorized by

statute to regulate any of the following: (a) Employee

wages, (b) Hours of work, or (c) Working conditions where

there will be no demonstrable physical changes outside the

place of work.” Under this regulation, the IWC had no obli-

gation to prepare an environmental impact report or nega-

tive declaration prior to the adoption of the wage orders

at issue here.”

Although the employers recognize that the regulation in

question exempts IWC wage orders from the application of

“Before promulgating the 1980 orders, the IWC specifically made

a written finding “that none of its proposed regulations would make

a demonstrable physical change outside the place of work or have

a significant effect on the environment.”

A-32

CEQA, the employers contend that the Secretary of Re-

sources exceeded his statutory authority in adopting section

15124. In support of this argument, the employers rely on

this court’s decision in Wildlife Alive v. Chickering (1976)

18 Cal.3d 190, 204-206, in which we held that an administra-

tive regulation categorically exempting “actions taken...

to assure the maintenance, restoration or enhancement of

a natural resource .. .” could not properly be interpreted

as creating an exemption from CEQA for actions of the

Fish and Game Commission in fixing hunting or fishing

seasons.

In reaching that conclusion in Wildlife Alive, however,

we recognized that “the setting of hunting and fishing sea.

sons has the potential for a significant environmental im-

pact, both favorable and unfavorable,” and that “[t]here

inheres in the fixing or hunting seasons and the issuance

of hunting permits a serious risk of overkill and depletion

of the affected species.” (18 Cal.3d at p. 206.) Noting that

under section 21084 “[t]he secretary is empowered to ex-

empt only those activities which do not have a significant

effect on the environment” (id., at p. 205), we conclude that

because of the obvious possibility that the setting of hunt-

ing and fishing seasons would have a significant effect on

the environment, an interpretation of the exempting regula-

tion to cover such administrative acts would cast doubt on

the validity of the regulation.

From an environmental standpoint, however, the wage

orders at issue in this case are obviously a far ery from

the administrative regulations fixing hunting and fishing

seasons which were before our court in Wildlife Alive.

A-33

Unlike hunting and fishing season regulations which affect

wildlife in a very direct and unambiguous manner, the

IWC regulations governing the wages, hours and working

conditions of employees have no obvious effect on the

environment.

Indeed, the employers in the present case in effect con-

cede the absence of any such direct effect, arguing only

that the categorical exemption is improper because of cer-

tain alleged collateral consequences to the environment

which the employers claim may possibly be engendered by

the commission’s wage orders. Thus, for example, the em-

ployers attacking the IWC wage orders with respect to

agricultural industries argue that “(t]he 1980 provisions

with regard to hours and days of work are much more re-

strictive and financially more costly [than prior orders,

and thus] may well have the effect of forcing employers

to turn to mechanization or automation [which in turn]

will result in the greater use of machines and fuel of all

types and, therefore, may have a significant effect on the

environment.” In a similar vein, the growers contend that

it is “likely that increased mechanization of agricultural

operations will cause greater dust and noise pollution in

areas adjacent to metropolitan centers” and also allege

that “increased wages and overtime provisions will have

the probable effect of increasing the sale of agricultural

land to developers for urban purposes, thereby having an

increasingly significant environmental impact.”

Aside from the obvious speculation impli@t in the em-

ployers’ argument, it is not the IWC regulation of wages,

hours and working conditions that, in the employers’

A-34

scenario may significantly affect the environment, but

rather it is the employers’ own future actions, not called

for by the wage orders, that may have such an effect. To

the extent that such future actions by growers may ad-

versely affect the environment, of course, the employers

will be subject to regulation by a variety of state and

federal environmental protection agencies. In any event,

however, we think that the mere possibility that an em-

ployer may respond to the requirements of a wage order by

adopting measures that may endanger the environment

does not undermine the validity of the Secretary of Re-

sources’ conclusion that the [WC’s promulgation of wage

orders is categorically exempt from CE.QA’s requirements.

Accordingly, the IWC did not violate CEQA in adopting

its 1980 wage orders.

5. In the absence of a conflict with regulations promul-

gated by the California Occupational Health and Safety

Standards Board, the IWC may adopt wage orders re-

lating to the health or safety of employees.

In addition to the various procedural contentions dis-

cussed above, the employers contend that the IWC ex-

ceeded its substantive authority in promulgating a number

of the provisions included in all o. -he 1980 wage orders.

In this regard, the employers initially focus on those sec-

tions of the wage orders which deal with matters generally

relating to the health and safety of employees, e.g., provi-

sions regulating meal periods ($11), rest periods (412),

seats (§ 14) and temperature ($15). The employers con-

tend that under the current statutes only the California

Occupational Safety and Health Standards Board (here-

A-35

after Cal/OSHA), formerly the Industrial Safety Board

(see § 140, subd. (e)), has jurisdiction to act with respect

to such matters and that, as a consequence, the IWC reg-

ulations in this field are null and void.

The employers’ argument rests in principal part upon

a portion of section 1173 that was added to the statute in

1973. The relevant paragraph reads: “Before adopting any

new rules, regulations or policies, the commission shall con-

sult with the Industrial Safety Board to determine those

areas and subject matters where the respective jurisdic-

tion of the commission and the Industrial Safety Board

overlap. In the case of such overlapping jurisdiction, the

Industrial Safety Board shall have exclusive jurisdiction,

and rules, regulations, or policies of the commission on the

same subject have no force or effect.”

The employers argue that this provision precludes the

commission from enacting regulations on any matter upon

which the Industrial Safety Board, i.e. Cal/OSHA has

the authority or jurisdiction to act. Since, as the employers

maintain, the governing statutes and judicial precedents

clearly provide that Cal/OSHA has broad authority to act

to protect workers’ health and safety (see §{ 6305-6307;

Carmona v. Division of Industrial Safety (1975) 13 Cal.3d

303, 312-313) the employer reasons that the IWC lacks any

power to act in this field. The IWC, by contrast, asserts

that while the 1973 amendment of section 1173 grants

Cal/OSHA the “last word” on matters within its jurisdic-

tion, the statute does not inhibit the IWC from acting to

protect employees’ health and safety in areas in which no

A-36

conflict with Cal/OSHA regulations or policies actually

exist.

In resolving this question of statutory interpretation, we

begin with a brief historical review of the two agencies’

overlapping jurisdiction in matters of employee health

and safety. Since its inception as an entity charged with

the regulation of wages, hours and working conditions of

women and children, the IWC has been statutorily man-

dated “to investigate the comfort, health, safety, and wel-

fare of such employees” and to fix wages, hours and work-

ing conditions so as to maintain and protect the “health

and welfare” of such employees. (Stats. 1913, ch. 324, $§ 3,

6, pp. 633, 634-635.) From its earliest days, the commis-

sion’s regulatory orders have contained numerous provi-

sions aimed directly at preserving and promoting the health

and safety of employees within its jurisdiction, and nu-

merous decisions throughout the commission’s existence

have clearly recognized the validity of the commission’s

regulation of such matters. (See, e.g., Kerr’s Catering

Service v. Department of Industrial Relations (1962) 57

Cal.2d 319, 324-325; 2 Ops.Cal.Atty.Gen. 456 (1943) ; 6 Ops.

Cal.Atty.Gen. 193, 194 (1945); 20 Ops.Cal.Atty.Gen. 120,

122 (1952).)

Despite its broad authority in this field, however, the

IWC has never been the only state agency to regulate

matters relating to the health and safety of California

employees. In 1913, the year of the establishment of the

IWe, the Legislature enacted a separate bill creating the

Industrial Accident Commission, and vested that body,

inter alia, with broad authority to adopt regulations relat-

A-37

ing to the safety and welfare of employees. (Stats. 1913,

ch. 176, §§ 51-72, pp. 305-311.) Unlike the IWC, however,

the Industrial Accident Commission’s jurisdiction was not

limited only to the protection of women or child workers,

but encompassed the entire workforce. Subsequently, in

1945, the Industrial Accident Commission’s broad authority

to regulate safety in places of employment was transferred

to a new body, the Industrial Safety Board. (Stats. 1945,

ch. 1431, § 78, p. 2698.)

In view of the broad grant of authority in matters re-

lating to occupational health and safety to both the IWC

and the Industrial Safety Board, the question of over-

lapping jurisdiction of these two agencies has existed for

many decades. Prior to 1973, however, no specific statutory

provision attempted to reconcile this overlapping jurisdic-

tion. In the absence of any such provision, the existing

authorities determined that both of the agencies had “con-

current jurisdiction” over matters within their authority,

and concluded that affected employers were required to

comply with all applicable regulations of both agencies.

(See, e.g., 20 Ops.Cal.Atty.Gen. 120, 122 (1952); 37 Ops.

Cal.Atty.Gen. 31, 36 (1961); ef. Orange County Air Pollu-

tion Control Dist. v. Publie Util. Com. (1971) 4 Cal.3d 945,

| 951-954.) When more than one agency’s regulations applied

to a particular activity, the employer was obligated to com-

ply with the most stringent regulation. (See 37 Ops.Cal.

Atty.Gen. 31, 36 (1961).)

As already noted, in 1973 the Legislature enacted a bill

expanding the [WC’s jurisdiction to include all California

employees, men, women and children. In the same bill, the

A-38

Legislature added to section 1173 a paragraph specifically

addressing the question of the overlapping jurisdiction of

the IWC and the Industrial Safety Board. It is the inter-

pretation of this provision upon which the present contro-

versy turns.” To reiterate, the relevant paragraph of sec-

tion 1173 reads in full: “Before adopting any new rules,

regulations or policies, the commission shall consult with

the Industrial Safety Board to determine those areas and

subject matters where the respective jurisdiction of the

commission and the Industrial Safety Board overlap. In

the case of such overlapping jurisdiction, the Industrial

Safety Board shall have exclusive jurisdiction, and rules,

13Although the employers argue that a separate 1973 enactment

(Stats. 1973, ch. 993, §§ 11, 16, pp. 1919-1920), which renamed the

Industrial Safety Board the California Occupational Safety and

Health Standards Board and which included a provision stating that

such board “shall be the only agency in this state authorized to

adopt occupational and health standards” (§ 142.3), was intended

by the Legislature to give additional content to the 1973 amend-

ment of section 1173, we think that that contention is belied both

by the language of the section 1173 amendment and by its legisla-

tive history. As we have noted, the amendment of section 1173

refers to the “Industrial Safety Board” not the Occupational Safety

and Health Standards Board and thus it is clear that, contrary to the

employers’ contention, the amendment of section 1173 was by no

means a “companion” to the Cal/OSHA legislation. Second, as

originally introduced, the paragraph of section 1173 in question

provided that the IWC, rather than the Industrial Safety Board,

would have “exclusive jurisdiction” in cases of conflict; although the

position of the two agencies in the section 1173 paragraph was ulti-

mately reversed, the legislation was not part of any comprehensive

legislative design to give the newly constituted Cal/OSHA sole

authority in this area.

Similarly, a review of Cal/OSHA legislation also suggests that the

provisions of section 142.3 were not intended to effect the [WC’s

jurisdiction. Unlike section 1173, which specifically addresses the

A-39

regulations, or policies of the commission on the same sub-

ject have no force or effect.”

The employers contend that this provision was intended

to resolve the question of overlapping jurisdiction by en-

tirely eliminating the power of the IWC to regulate on any

matter over which the Industrial Safety Board (i.e.,

Cal/OSHA) has jurisdiction, i.e., all matters of occupa-

tional health and safety. The IWC contends that the Legis-

lature had a more modest goal in mind and simply intended

to provide that, im cases of conflict, the regulations or poli-

cies of the Industrial Safety Board would govern.

Viewed in isolation, the language of the paragraph in

question is somewhat ambiguous. On the one hand, the par-

agraph’s reference to the “exclusive jurisdiction” of the

Industrial Safety Board appears to support the employ-

ers’ reading of the provision. On the other hand, however,

issue of the overlapping jurisdiction of the IWC and the Industrial

Safety Board (Cal/OSHA), section 142.3 makes no reference to the

IWC at all. Although that section provides that Cal/OSHA shall be

the only agency to adopt “occupational and health standards,” that

terminology is a term of art specifically defined by the Cal/OSHA

legislation (see § 6305, subd. (a) ) and does not encompass wage

orders promulgated by the IWC. Indeed, another provision of the

Cal/OSHA legislation, section 144, subdivision (c), specifically pro-

vides that “[n]othing in this section shall affect or limit the authority

of any state or local agency as to any matter other than the enforce-

ment of occupational and health standards adopted by the board.

Since the Legislature specifically enacted the amendment to sec-

tion 1173 to address the question of the overlapping jurisdiction of

the IWC and the Industrial Safety Board (Cal/OSHA), we con-

clude that we must properly look to that statute to determine legis-

lative intent as to the proper allocation of authority between the two

agencies.

A-40

the statutory requirement of consultation between the two

agencies would be rather pointless if the IWC had abso-

lutely no authorit: to act with respect to health and safety

matters in any circumstances. Moreover, the concluding

language of the paragraph, declaring that “rules, regula-

tions or policies of the commission on the same subject

have no force or effect,” suggests that the Legislature may

well have intended that IWC orders would be preempted

only when the Industrial Safety Board, i.e., Cal/OSHA, had

actually regulated on the same subject.

Although the paragraph at issue, standing alone, is thus

arguably susceptible to either of the interpretations prof-

fered by the parties, for a number of reasons we conclude

that the construction suggested by the IWC is the more

reasonable and should be adopted.

First, and most significantly, numerous other provisions

of the 1973 bill in which the paragraph in question appears

are entirely incompatible with the employer’s proposed in-

terpretation. (See Stats. 1973, ch. 1007, §§ 1.5, 2, 3, pp. 2002-

2003.) To begin with, as reenacted in 1973, the first para-

graph of section 1173, immediately preceding the para-

graph relied upon by the employers, provides explicitly that

“Tijt shall be the continuing duty of the Industrial Welfare

Commission .. . to investigate the comfort, health, safety

and welfare of . . . employees.” (Emphasis added.) In

addition, the 1973 legislation also explicitly retained the

provisions of section 1178, declaring that “wage boards

shall report and make recommendations to the Commission,

including therein: (a) An estimate of the minimum wage

adequate to supply the necessary cost of proper living to,

A-41

and maintain the health and welfare of employees; (b) the

number of hours of work per day . . . consistent with the

health and welfare of employees; (c) the standard condi-

tions of labor .. . demanded by the health and welfare of

employees.” Finally, the 1973 act, while revising section

1182 in several respects, reiterated the portion of that sec-

tion authorizing the IWC to fix “the standard conditions of

labor demanded by the health and welfare of the employees

in this state.”

If the Legislature, by its 1973 enactments, had in fact

intended to preclude the commission from acting with re-

spect to matters of employee health and safety, as the

employers suggest, it clearly would not have explicitly

mandated the commission “to investigate the .. . health

[and] safety of ... employees” and would not have contin-

ued to authorize the commission to establish “standard

conditions of employment demanded by the health .. . of

[such] employees.” A cardinal principle of statutory con-

struction, of course, decrees that all related statutory pro-

visions must be read together and harmonized, if possible.

(See, e.g., Moyer v. Workmen’s Comp. Appeals Bd. (1973)

10 Cal.38d 222, 230-231.) In this case, a reading of the 1973

enactment as a whole indicates that, contrary to the em-

ployers’ contention, the Legislature contemplated that the

IWC would retain authority to protect workers’ health and

safety, supporting the IWC’s position that the statute sim-

ply requires the IWC to yield to the Industrial Safety

Board (Cal/OSHA) in instances of actual conflict.

Second, the [WC’s reading of the statute is supported

by the fact that both of the administrative agencies charged

A-42

with administering the legislation in question agree that

this is the appropriate construction to be given the statu-

tory language. Since the enactment of the 1973 legislation,

the IWC and Cal/OSHA have consulted on numerous occa-

sions pursuant to the provision of section 1173, and as

a result of these consultations, the IWC has deleted from

its wage orders a number of long-standing provisions on

various subjects (e.g., protective garments and equipment,

sanitary conditions of toilets and floors) over which Cal/

OSHA has assumed jurisdiction. As the employers con-

cede, however, throughout this period the officials of both

Cal/OSHA and the IWC have taken the position that the

IWC is not totally precluded from regulating on matters

relating to worker health or safety, but may adopt such

regulations so long as they do not conflict with applicable

Cal/OSHA directives or policy. We have often said, of

course, that “the construction of a statute by officials

charged with its administration ... is entitled to great

weight” (Morris v. Williams (1967) 67 Cal.2d 733, 748) and

this principle applies with particular strength when two

agencies agree as to the interpretation. of a statutory provi-

sion concerned with the allocation of authority between

the agencies.

Finally, the interpretation of the statute urged by the

IWC is sustained by the general principle of statutory

interpretation, noted at the outset of this opinion, that

remedial legislation of this nature is to be liberally con-

strued in favor of accomplishing the principal objective of

the legislation, i.e., protecting workers. Under the employ-

ers’ interpretation of the statute, employees would be de-

prived of the benefits of health- and safety-related regula-

A-43

tions of the IWC even though Cal/OSHA had not yet acted

on the subject to protect the workers’ interests. Such a

construction is clearly at odds with the remedial purpose

of the entire statutory framework.

Contrary to the employers’ claim, the [WC’s interpre-

tation of the provision in no way deprives the relevant

statutory provisions of section 1173 of all meaning. Unlike

the situation prior to 1973, under the new statute employers

need not comply with the most restrictive regulation when

IWC and Cal/OSHA regulations collide; instead, the stat-

ute provides that in such a situation, the regulations pro-

mulgated by Cal/OSHA will prevail.

Accordingly, we conclude that IWC retains jurisdiction

to regulate working conditions related to the health and

safety of employees in the absence of any actual conflict

with existing Cal/OSHA regulations or policy. Because the

record establishes that no such conflict exists, we reject

the employers’ challenge to the orders’ validity on this

ground.

6. Neither federal nor state labor relation legislation pre-

cludes the IWC from establishing minimum wages,

maximum hours or standard conditions of employment

to protect the health and welfare of California em-

ployees.

A number of employers additionally contend that a

variety of state and federal labor relation statutes, which

have as a principal objective the resolution of employer-

employee disputes over wages, hours and working condi-

tions through the collective bargaining process, operate to

A-44

“preempt” the IWC from “imposing” or “dictating,” upon

either employers or employees, conditions of employment

that have not been arrived at through collective bargain-

ing.* Relying upon a number of labor law decisions which

have indicated in other contexts that neither the National

Labor Relations Board nor similar state agencies may “im-

pose [their] own views of a desirable settlement” in the

event of a dispute over employment conditions (see, e.g.,

H.K. Porter Co. v. NLRB (1970) 397 U.S. 99, 103-104;

Machinists v. Wisconsin Emp. Rel. Comm’n (1976) 427

U.S. 132, 153), the employers maintain that the IWC lacks

authority to “interfere” with the collective bargaining

process by mandating minimum permissible employment

conditions in matters that are “mandatory subjects” of

collective bargaining under the applicable labor statutes.

‘In the underlying mandate actions, the employers have raised

this issue with respect to the provisions of the California Agricul-

tural Labor Relations Act (ALRA) (§ 1140 et seq.) which guaran-

tee collective bargaining rights in the agricultural sector. Because

(1) the ALRA’s provisions in this regard were modeled upon the

provisions of the National Labor Relations Act (NLRA) (see, e.Z.,

Vargas v. Municipal Court (1978) 22 Cal.3d 902, 910-911), (2)

many of the lawsuits challenging the 1976 orders raised an analo-

gous issue with respect to the federal labor legislation, and (3) one

of the issues specifically left open in California Hotel ¢> Motel Assn.

concerned the alleged preemptive effect of federal labor laws (25

Cal.3d at p. 205, fn. 2), we believe it is appropriate to analyze this

issue’ with reference to both state and federal labor legislation. Al-

though the employers have objected to the court’s addressing and

discussing the federal labor preemption issue in this proceeding, all

parties were notified prior to oral argument of this court’s intention

to consider the issue, and both sides have filed briefs directed to this

issue.

A-45

Taken at face value, the employers’ contentions in this

regard would have the effect of precluding the [WC from

regulating with respect to any of the matters within its

jurisdiction. Under each of the labor statutes which apply

to the industries regulated by the commission-—-the Na-

tional Labor Relations Act (NLRA) (29 U.S.C. § 151 et

seq.), the Railway Labor Act (RLA) (45 U.S.C. § 151 et

seq.), and the Agricultural Labor Relations Act (ALh.. ’

(§ 1140 et scq.)—‘wages, honrs and working conditio:..’’

constitute mandatory subjects of colicctive bargaining.

Thus, if these labor statutes in fact prohibited all govern-

mental regulation on any matter that is subject to em-

ployee-employer bu: gaining, neither che IWC nor any other

state or federal a;:icy would have authority to prescribe

minimum wages or maximtun hours, to promulgate occu-

pational health and safety standards, or to prohibit dis-

criminatory employment practices. The mere recitation of

the logical consequences of the employers’ argument, of

course, signals the «xtreme tenuousness of the employers’

contention.

In fact, the fundamental flaw in the employers’ present

argument was fully exposed nearly 30 years ago by Justice

Jackson in his opinion for the United States Supreme Court

in Terminal Assn. v. Trainmen (1943) 318 U.S. 1.

In Terminal, an employer covered by the Railway Labor

Act challenged the validity of a state agency regulation

which, to protect the health and safety of employees,

required the company to provide cabooses on designated

railroad runs. The employer in Terminal pointed out that

the state regulation conflicted with a specific provision

of a collective bargaining agreement that had been negoti-

»~ A-46

ated between the employer and employees, and argued that

since the question of providing cabooses involved a work-

ing condition of the employment and thus was a “manda-

tory subject” of collective bargaining subject to resolution

under the Railway Labor Act, state regulation on the

subject was preempted by the act.

In Termimal, the Supreme Court unanimously rejected

the employer’s contention and upheld the validity of the

state regulation. In reaching this conclusion, Justice

Jackson explained: “The Railway Labor Act, like the

National Labor Relations Act, does not undertake govern-

mental regulation of wages, hours, or working conditions.

Instead it seeks to provide a means by which agreement

may be reached with respect to them. The national interest

expressed by those Acts is not primarily in the working

conditions as such....

“State laws have long regulated a great variety of con-

ditions in transportation and industry, such as sanitary

facilities and conditions, safety devices and protections,

purity of water supply, fire protection, and innumerable

others. Any of these matters might, we suppose, be the

subject of a demand by workmen for better protection

and upon refusal might be the subject of a labor dispute

which would have such effect on interstate commerce that

federal agencies might be invoked to deal with some phase

of it. But we would hardly be expected to hold that the

price of the federal effort to protect the peace and con-

tinuity of commerce has been to strike down state sanitary

codes, health regulations, factory inspections, and safety

provisions for industry and transportation. We suppose

A-47

employees might consider that state or municipal require-

ments of fire escapes, fire doors, and fire protection were

inadequate and make them the subject of a dispute, at

least some phases of which would be of federal concern.

But it cannot be that the minimum requirements laid down

by state authority are all set aside. We hold that the

enactment by Congress of the Railway Labor Act was

not a preemption of the field of regulating working con-

ditions themselves and did not preclude the State... from

making the order in question.” (Italics added; fn. omitted.)

(318 U.S. at pp. 6, 7.)

This reasoning, we believe, fully answers the employers’

contention that federal or state labor legislation, fostering

collective bargaining, can be read to preempt legislative

efforts to prescribe minimuin standards of wages, hours

and working conditions for the protection of employees.

Indeed, as already suggested, the numerous existing federal

and state statutes embodying just such “minimum stand-

ards” stand as eloquent testimony to the validity of such

regulation. Thus, notwithstanding the NLRA and the RLA,

the federal government has enacted the Fair Labor

Standards Act of 1938 (29 U.S.C. § 201 et seq.) preseribing

minimum wages and maximum hours, and the Occupational

Safety and Health Act of 1970 (federal OSHA) (29 U.S.C.

§ 650 et seq.), authorizing the promulgation of specific

standards directly relating to workers’ conditions of em-

ployment. Moreover, both the Fair Labor Standards Act

and federal OSHA contain specifie provisions which ree-

ognize the states’ authority to go beyond the federal

legislation in adopting more protective regulations for the

A-48

benefit of employees. (29 U.S.C. 4218; 29 U.S.C. $§ 651

(b) (11), 667.)

Furthermore, although the employers argue that state

regulation in this field—if permissible at all—must be

confined only to matters of minimum wages, maximum

hours or working conditions which directly implicate the

health or safety of employees, federal and state legislation

directed to discrimination in employment demonstrates

that governmental entities retain broad authority to estab-

lish minimum standards related generally to the “welfare”

of employees. (See, e.g., 42 U.S.C. $§ 2000e-2, 2000e-7;

Lab. Code § 1410 et seq.)*

As the Terminal case teaches, the fact that these matters:

may also constitute proper, indeed “mandatory,” subjects

of collective bargaining does not preclude the state from

adopting minimum standards to protect the welfare of

15To the extent that the case of United Air Lines v. Industrial

Welfare Com. (1963) 211 Cal.App.2d 729, 744, supports the conten-

tion that state regulation of working conditions is invalid outside the

realm of health and safety provisions, that decision is disapproved.

Numerous legislative enactments and judicial authorities make it

clear that the states possess broad authority, under their police

power, to prescribe minimum standards of employer conduct found

necessary to protect the welfare of employers, even when health or

safety considerations are not directly implicated. (See, e.g., 42

U.S.C. § 2000e-7 (recognizing validity of state anti-discrimination

provisions ); 15 U.S.C. § 1677 (recognizing validity of state laws pro-

hibiting discharge on basis of wage garnishments); Lab. Code,

§ 1101 et seq. (prohibiting employer interference with employees’

political activities or affiliations ); De Canas v. Bica (1976) 424 US.

351, 356; Baltimore & O.R. Co. v. Commonwealth, Dept. of L. & I.

(Pa. 1975) 334 A.2d 636, 643, app. dism. for want of substantial fed.

question, 423 U.S. 806.)

A-49

workers who may not enjoy sufficient bargaining strength

to obtain adequate protection from their employers at the

bargaining table.

Accordingly, we conclude that existing federal and state

labor statutes establish no bar to the IWC’s promulgation

of the 1980 wage orders. (See, e.g., Rivera v. Division of

Industrial Welfare, supra, 265 Cal.App.2d 576, 602-604.)

7. The employers’ additional, individual challenges to

specific provisions in various wage orders are without

merit.

Finally, in addition to raising the numerous common legal

challenges to the 1980 wage orders discussed at length

1°The numerous labor law preemption decisions relied upon by

the employers are clearly not in point. None of the decisions dealt

with a state regulation prescribing a minimum standard for working

conditions to protect the health, safety or welfare of employees.

Instead, the cases involve either direct state interference with the

collective bargaining process (see, e.g., California v. Taylor (1957)

353 U.S. 553) or with the choice of economic weapons available

during a labor dispute (see, e.g., Machinists v. Wisconsin Emp. Rel.

Comm’n, supra, 427 U.S. 132), or the state’s use of its antitrust laws

to bar the collective action by employees or employers protected by

federal law. (See, e.g., Teamsters Union v. Oliver (1959) 358 U.S.

283.) As the United States Supreme Court recently observed:

“[A]lmost all of the Court’s labor law decisions in which state reg-

ulatory schemes have been found to be preempted have involved

state efforts to regulate or to prohibit private conduct that was

either protected by §7 [of the NLRA], prohibited by § 8 [of the

NLRAJ, or at least arguably so protected or prohibited.” (New York

Tel. Co. v. New York Labor Dept. (1979) 440 U.S. 519, 529 (fns.

omitted ). )

Contrary to the employers’ contention, the Supreme Court has

never retreated from its holding in Terminal, quoted above, that the

federal labor laws do not “preempt | |]... the field of regulating

working conditions. .. .” (318 U.S. at p. 7. See, e.g., Malone v.

A-50

above, a number of employers have put forward a variety

of more limited objections to specific provisions of one

or more of the various 1980 wage orders. As we shall

explain, we have also conc!-ded that none of these addi-

tional contentions has merit.

(a) Treatment of tupped employees in wage order 5-80.

In the Kings County action (see fn. 2, ante), a number

of employers argue that in enacting wage order 5-80,

relating to the public housekeeping industry, the IWC

abused its discretion in refusing to provide a lower mini-

mum wage for tipped employees. The IWC explained the

basis of its decision in the statement as to the basis for

order 5-76 which it adopted upon remand of this court’s

decision in California Hotel & Motel Assn. The commission

stated: “Many requests were received from the hotel and

restaurant industry for a special, lower rate for tipped

employees. The Commission carefully studied written and

oral arguments on the matter. It denied the request, how-

ever, for two reasons. First, and most important, the

Legislature specifically revoked the authority it had earlier

given the IWC to allow credit for tips against the minimum

wage, when it amended Section 351 of the Labor Code this

year [i.e., 1975]. Second, the Commission noted from en-

forcement experience during the time that tip credit was

allowed that tip sharing was required to such an extent

that the traditional tipped employees were subsidizing

the minimum wages of other classifications.”

White Motor Corp. (1978) 435 U.S 497, 504-505, 512; Baltimore &

O.R. Co. v. Commonwealth, Dept. of L. & I., supra, 334 A.2d 636,

app. dism. for want of a substantial fed. question, 423 U.S. 806. )

A-51

The employers contend that the IWC has misinterpreted

the effect of the 1975 amendment to section 351,” asserting

that while the Legislature intended by such amendment to

prohibit the IWC from allowing employers directly to

deduct from an employee’s wages tips that an employee

actually receives, the Legislature did not intend to prohibit

the commission itself from indirectly achieving a somewhat

comparable result by establishing a lower minimum wage

for tipped employees. Although the tip credit practice

sanctioned by the [WC in the past may have engendered

particular abuse because individual employers exacted

credit from their employees on an individual basis, we

think that the legislative history of the 1975 bill supports

the IWC’s conclusion that the Legislature contemplated

that the enactment would insure that tips received by an

employee would not reduce an employer’s minimum wage

obligation, either directly or indirectly.

For example, an analysis of the 1975 bill by the Senate

Industrial Relations Committee specifically states: “The

effect of this bill would be to require employers to pay

employees at least the minimum wage regardless of the

amount of tips the employees receive.” Similarly, a memo-

randum on the legislation drafted by the Assembly Labor

‘Prior to 1975, section 351 provided in relevant part: “No em-

ployer ... shall . . . receive any gratuity or a part thereof, paid,

given to or left for an employee by a patron, or deduct any amount

from wages due an employee on account of such gratuity .. . except

to the extent that may be permitted by a valid regulation of the

Industrial Welfare Commission. . . .” (Italics added.) In 1975, sec-

tion 351 was amended to delete the italicized language of the

statute,

A-52

Relations Committee states in part: “The basis for this leg-

islation would appear to be that tips or gratuities are given

for individual excellence of service above and beyond the

basic duties of employment, and as such, the employer has

no vested right to consider tips as part of wages.” In light

of the legisiative history, the IWC could reasonably inter-

pret the amendment of section 351 as a legislative determi-

nation that all employees should be guaranteed a minimum

- wage that is not reduced by virtue of any tips an em-

ployee may possibly receive. As already noted, the commis-

sion’s interpretation of the statutes which it administers

is entitled to great weight, and, in our view, the employers

have not demonstrated a sufficient basis for rejecting the

commission’s interpretation of this provision.

The employers additionally contend, however, that as

interpreted by the commission, section 351 violates equal

protection principles by creating an aribtrary distinction

between tipped and nontipped employees. We do not agree.

The Legislature could rationally determine (1) that, for

minimum wage purposes, employers should not receive the

benefits of gratuities that customers intend for the sole

benefit of employees and (2) that employers should not be

excused from the obligation of paying minimum wages to

certain employees upon the uncertain possibility that such

employees will in fact receive a predetermined amount of

tips for their services. (See generally Cal. Drive-in Restau-

rant Assn. v. Clark (1943) 22 Cal.2d 287, 295-300; Williams

v. Terminal Co. (1942) 315 U.S. 386, 388-389; id., at pp.

410-411 (Black, J. dis.).) Although the employers also claim

that the absence of a lower minimum wage for tipped em-

ployees is arbitrary in light of the credits which employers

A-53

are given for other “non-wage benefits,” e.g., meals pro-

vided by the employer, there is an obvious distinction be-

tween the two categories of “non-wage benefits” in that the

employer makes a direct out-of-pocket expenditure for

meals and the like, whereas tips are paid by customers, not

tL. employer.

Accordingly, we conclude that the minimum wage provi-

sions of wage orders 5-80 are not invalid in failing to pro-

vide a differentiated minimum wage for tipped and non-

tipped employees.

(b) “Due process” challenge to orders 8-80, 13-80 and

1480.

In the Stanislaus County case, numerous agricultural

employers contend that the 1980 wage orders regulating

agricultural industries violate due process, asserting in

conclusory terms that the orders impose such “inflexible

overtime and work rules [that] many such employers will

not be able to operate efficiently or economically [and] .. .

will be forced out of business.” The employers additionally

contend that in evaluating the constitutionality of the wage

order provisions, the judiciary should exercise de novo

review because the regulation may deprive the growers of

the right to practice a common occupation.

As the IWC suggests, the employers’ contentions in this

regard fly in the face of a long line of contrary authority.

From at least as early as the United States Supreme Court

decision in West Coast Hotel Co. v. Parrish (1937) 300 U.S.

379, sustaining the constitutionality of a state minimum

wage law in the face of a similar due process challenge, the

cases have made clear that state regulations of minimum

A-54

wages, maximum hours and working conditions come to the

courts “freighted with [a] strong presumption of regu-

larity” (Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d

172, 175) and are not subject to “de novo” judicial review.

As the court emphasized in West Coast Hotel: “‘[T]imes

without number we have said that the legislature is pri-

marily the judge of the necessity of such an enactment, that

every possible presumption is in favor of its validity, and

that though the court may hold views inconsistent with the

wisdom of the law, it may not be annulled unless palpably in

excess of legislative power.’ ” (300 U.S. at p. 398.)

Moreover, the authorities similarly declare that the “leg-

islative power” to regulate employment conditions is very

broad indeed, even though such regulations almost inevi-

tably impose some economic burden upon employers. Again,

as the Supreme Court stated in West Coast Hotel: “In deal-

ing with the relation of employer and employed, the legis-

lature has necessarily a wide filed of discretion in order

that there may be suitable protection of health and safety,

and that peace and good order may be promoted through

regulations designed to insure wholesome conditions of

work and freedom from oppression.” (/d., at p. 393.) The

employers completely fail to show that the wage and hours

regulations they attack are not rationally related to these

permissible state interests.

Indeed, although the agricultural employers complain

about the harshness of the wage orders applicable to their

industry, the fact of the matter is that the wage order

relating to agriculture appears to be particularly solicitous

of the interests of agricultural employers in several re-

A-55

spects. Thus, for example, wage order 14-80 provides for a

longer work week for agricultural employees (ten-hour day,

six-day week) before the overtime premium applies, ex-

empts growers from the requirement of providing specific

places for meal peirods, changing rooms or rest facilities,

and imposes no temperature restrictions.

(c) “Undue hardship”

In a corollary to the above “due process” argument, the

agricultural employers argue that orders 8-80, 13-80 and

14-80 are invalid because they impose an “undue hardship”

on employers in violation of a provision of the 1973 legis-

lation which reads: “It is the intent of the Legislature in

enacting this act that the Industrial Welfare Commission

interpret these provisions in a manner which does not

cause undue hardship or loss of employment opportunities

in any segment of industry in California.” (Stats. 1973, ch.

1007, § 11, p. 2005.)

As already noted, however, the 1980 agricultural wage

orders give full consideration to the interests of both em-

ployees and employers, and provide numerous exemptions

—where the IWC found it appropriate—in recognition of

the commission’s responsibility to avoid “undue hardship”

to all affected individuals. The statutory language to which

the employers point makes it clear that the “undue hard-

ship” provision was not intended to grant courts the pre-

rogative of usurping the agency’s quasi-legislative function ;

the statute directs the JWC to interpret the provision so as

to forestall undue hardship. The employers fail to demon-

strate that the commission failed to give heed to the guid-

ance of this provision.

A-56

(d) Alleged conflicts with section 554

The agricultural employers additionally contend that sec-

tion 3(A) of orders 8-80 and 13-80 confiict with section

554 and are invalid. Section 3(A)(1) of each of these orders

requires that employees in the covered industries be given

a twenty-four hour period off after they have worked sev-

enty-two hours in any seven-day period;** the employers

contend that this requirement is inconsistent with the pro-

visions of section 554 which exempt agricultural employees

from section 551’s statutory requirement of one day’s rest

in seven.””

The employers’ contention rests upon a fundamental

misconception of the relationship between the general statu-

tory provisions of sections 510-556 and the more specific

regulations embodied in IWC wage orders. Although

section 1182 expressly provides that the maximum hours

fixed by IWC wage orders “shall not be more than the

maximum now or hereafter fixed by law” (italics added),

the authorities have uniformly held that “the Industrial

Welfare Orders may provide more restrictive provisions

than are provided by [the general] statutes adopted by the

Legislature on this subject [in sections 510-556]... .”

Section 3(A)(1) reads in relevant part: “An employee may

work up to a maximum of seventy-two (72) hours in any seven (7)

consecutive days after which the employee shall have a twenty-four

hour period off duty.”

Section 551 provides: “Every person employed in any occupa-

tion of labor is entitled to one day’s rest therefrom in seven.”

Section 554 provides in part: “This chapter shall not apply to

any cases of emergency nor to work performed in the necessary care

of animals, crops or agricultural lands. . . .”

A-57

(Italics added.) (2 Ops.Cal.Atty.Gen. 456, 457 (1943) ;

accord Cal. Drive-in Restaurant Assn. v. Clark, supra,

22 Cal.2d 287, 290-294; ef. § 1356; Rivera v. Division of

Industrial Welfare, supra, 265 Cal.App.2d 576, 599-601.)

Thus, in the opinion cited above, the Attorney General

rejected a contention, similar to that raised by the employ-

ers in the instant case, that the provisions of section 556—

exempting certain employees from the statutory mandate

of section 551—operated to preclude the IWC from requir-

ing employers to afford such employees one day’s rest

in seven. (2 Ops.Cal.Atty.Gen. 456, 458 (1943).)

Moreover, this conclusion is reinforced in the instant

case by the fact that the sections of the 1980 wage orders

challenged by the employers have been part of the wage

orders of the industries in question since 1943. As the

Court of Appeal noted in Rivera about a similar wage

order provision: “This long-continued and consistent

administrative interpretation has received at least silent

acquiescence from the Legislature. It supports the inter-

pretation that the statutory [provisions] . . . should not

be construed to prevent it. The courts will not depart from

such a construction unless it is clearly erroneous or un-

authorized.” (Fn. omitted.) (265 Cal.App.2d 576, 601.)

(e) Alleged conflict with section 1394, subdivision (a).

Finally, the agricultural employers contend that section

3(c) of order 13-80, regulating the hours of employment

of minors, conflicts with section 1394, subdivision (a) and

is invalid. As the [WC’s replication points out, however,

A-58

the employer’s argument rests entirely upon an outdated

version of section 1394, subdivision (a) and completely

ignores recent amendments to section 1394 and the enact-

ment of section 1394.1. The employers have not demon-

strated that the 1980 wage orders conflict with the currently

prevailing statutes.

8. Conclusion.

We are aware of the vexation that the managements of

many regulated corporations must feel as to the multiple

controls an administrative society is compelled to impose

upon them. Perhaps this extensive regulation is the price

we pay for the very life of a society based upon the con-

glomerate and the mass producer. Yet the incidence of

such control hopefully should not endanger the very con-

tinuance of tiose fundamental protections of the workers

that trace back over a half century and that the Legis-

lature and responsible administrative officials have deter-

mined to be necessary to the workers’ welfare. The likely

chagrin of the regulated should not obscure the underlying

social need that prompts the regulation.

For the reasons discussed at length above, we conclude

that none of the employers’ challenges to the ICW’s 1980

wage orders has merit.

Let a peremptory writ of mandate issue, directing the

respondent courts (1) to vacate the orders previously

A-59

issued staying the operation and effect of the challenged

wage orders and (2) to enter judgment in favor of the

commission in each of the underlying mandate actions.

TOBRINER, Acting C.J.

WE CONCUR:

CLARK, J.

RICHARDSON, J.

MANUEL, J.

NEWMAN, J.

*TAYLOR, J.

**RACANELLI, J.

* Assigned by the Chairperson of the Judicial Council.

** Assigned by the Chairperson of the Judicial Council.

B-1

Appendix B

S.F. No. 24123

In the Supreme Court

of the

State of California

In Bank

Industrial Welfare Commission et al.

v.

The Superior Court of Kern County et al.

[Filed Aug. 6, 1980]

The time for granting or denying a rehearing in the

above cause is hereby extended to and including September

8, 1980 or the date upon which a rehearing is either granted

or denied.

/s/ Tobriner

Acting Chief Justice

C-1

Appendix C

Order Due

September 8, 1980

Order Denying Rehearing

S.F. No. 24123

In the Supreme Court

of the

State of California

In Bank

Industrial Welfare Commission, et al., Petitioners

Vv.

The Superior Court of Kern County et al., Respondents ;

California Hotel and Motel Association et al.,

Real Parties in Interest

[Filed Aug. 28, 1980]

BIRD, C.J., AND MOSK, J., DID NOT PARTICIPATE

Petition of California Trucking Association,

Real Party in Interest.

for rehearing DENIED.

The application for a stay is DENIED

Opinion modified.

/s/ 'Tobriner

Acting Chief Justice

D-1

Appendix D

In the Supreme Court

of the

State of California

S.F. 24123

Industrial Welfare Commission et al., )

Petitioners,

Vv.

Kern County Superior Court et al.,

Respondents ;

California Hotel & Motel Association,

et al.,

~—e

Real Parties in Interest.

;

[Filed Aug. 28, 1980]

MODIFICATION OF OPINION

BY THE COURT:

The above entitled opinion, appearing at 27 Cal.3d 690,

is hereby modified by adding the following sentence to the

judgment on page 735: The commission shall recover its

costs in this proceeding.

K-1

Appendix E

Title 8,§11110 Division of Labor Standards Enforcement

Article 5. Industries Handling Products After Harvest

(Order No. 8-80, Effective January 1, 1980)

11110. Order Governing Wages, Hours, and Working Con-

ditions 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 shell not apply

to persons employed in administrative, executive, or pro-

fessional capacities. No person shall be considered to be

employed in an administrative, executive or professional

capacity unless one of the following conditions prevails:

(1) The employee 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 $900.00 per

month; or

(2) The employee is licensed or certified by the State of

California and is engaged in the practice of one of the fol-

lowing recognized professions: law, medicine, dentistry,

pharmacy, optometry, architecture, engineering, teaching,

or accounting.

(B) The provisions of this Order shall not apply to em-

ployees directly employed by the State or any county, incor-

porated city or town or other municipal corporation, or to

outside salespersons.

E-2

(C) Provisions of this Order shall not apply to any indi-

vidual who is the parent, spouse, child, or legally adopted

child of the employer.

2. Definitions.

(A) “Commission” means the Industrial Welfare Com-

mission of the State of California.

(B) “Division” means the Division of Labor Standards

Enforcement of the State of California.

(C) “Industries Handling Products After Harvest”

means any industry, business, or establishment operated

for the purpose of grading, sorting, cleaning, drying, cool-

ing, icing, packing, dehydrating, cracking, shelling, can-

dling, 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.

(D) “Employ” means to engage, suffer, or permit to

work.

(EK) “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,

E-3

(H) “Minor” means, for the purpose of this Order, any

person under the age of eighteen (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 one-half the employee’s work time.

(K) “Split shift” means a work schedule which is inter-

rupted by non-paid non-working periods established by the

employer, other than bona fide rest or meal periods.

(L) “Teaching” means, for the purpose of Section 1 of

this Order, the profession of teaching under a certifi-

cate from the Commission for Teaching Preparation and

Licensing.

(M) “Wages” means all amounts paid for labor per-

formed 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.

(N) “Workday” means any consecutive 24 hours begin-

ning at the same time each calendar day.

(O) “Workweek” means any seven (7) consecutive days,

starting with the same calendar day each week. “Work-

week” is a fixed and regularly recurring period of 168

hours, seven (7) consecutive 24-hour periods.

E-4

3. Hours and Days of Work.

(A) No employee eighteen (18) years of age or over nor

any minor permitted to work as an adult as provided in (C)

(1) shall 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 (144) times

such employee’s regular rate of pay for all hours worked

over forty (40) in the workweek. Employment beyond eight

(8) hours in any workday or more than six (6) days in any

one workweek is permissible under the following conditions.

(1) An employee may work up to a maximum of seventy-

two (72) hours in any seven (7) consecutive days after

which the employee shall have a twenty-four (24) hour

period off duty. Overtime hours shall be compensated at:

(a) One and one-half (114) 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 (8) hours worked on the seventh (7th) day of

work,

(b) 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) day of work in any workweek.

(B) No employer shall be deemed to have violated the

provisions of the above subsection (A) by instituting, pur-

suant to a vitten agreement voluntarily executed by the

employer and at least two-thirds (33) of the affected em-

ployees before the performance of the work, a regularly

scheduled week of work which includes not more than four

(4) working days of not more than ten (10) hours each so

B-5

long as the employee receives at least two (2) consecutive

days off within each workweek, provided that:

(1) The employer is not required to pay the premium

wage rate prescribed in subsection (A) for the 9th and 10th

hours worked during such workdays;

(2) If an employee on such a four-day schedule is re-

quired or permitted to work more than ten (10) hours in’

any workday, the premium wage rate provisions in sub-

section (A) above shall apply to such employee for those

hours worked in excess of the 10th hour of that workday.

(3) Any employee on such a schedule who is required or

permitted to work on more than four (4) days shall be

compensated at the rate of not less than one and one-half

(112) times the employee’s regular rate of pay for the first

eight (8) hours on such additional workdays and double the

employee’s regular rate of pay for work in excess of eight

(8) hours on those workdays.

(4) After a lapse of twelve (12) months and upon peti-

tion of a majority of the affected employees a new vote

shall be held and a two-thirds (35) vote of the affected

employees will be required to reverse the agreement above.

If such agreement is revoked the employer shall comply

within sixty (60) days. Upon a proper showing by the

employer of undue hardship, the Division may grant an

extension of the time for compliance.

(C) No minor shall be employed more than eight (8)

hours in any workday or more than six (6) days in any

workweek, One and one-half (114) times the minor’s regu-

lar rate of pay shall be paid for all work over forty (40)

E-6

hours in any workweek. No minor shall be employed before

5 o’clock in the morning or after 10 o’clock in the evening,

except that during any evening preceding a non-school day

a minor may work the hours authorized by this section until

12:30 o’clock in the morning of such non-school day.

(1) Notwithstanding the preceding provisions of this

subsection, minors sixteen (16) and seventeen (17) years

old who are not required by law to attend school may be

employed for the same hours as an adult. Minors so permit-

ted to work shall be subject to subsection (A) or (B) above.

(D) Minors sixteen (16) and seventeen (17) years of age

who are enrolled in work experience education programs

approved by the State Department of Education or in

work experience education programs conducted by private

schools may work after 10 p.m. but not later than 12:30

a.m. providing such employment is not detrimental to the

health, education or welfare of the minors and the approval

of the parent and the work experience coordinator has been

obtained. However, any such minor who works any time

during the hours from 10 p.m. to 12:30 a.m. shall be paid

for work during that time at a rate which is not less than

the minimum wage required for adults.

(VIOLATIONS OF CHILD LABOR LAWS are subject

to civil penalties of from $100 to $5,000 as well as to crim-

inal 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.)

(E) An employee may be employed on seven (7) work-

days in one workweek with no overtime pay required when

E-7

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) If, during any workday an employer declares a work

recess of one-half (42) 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 (42) hour may not be deducted from hours worked.

(G) If a meal period occurs on a shift beginning or end-

ing at or between the hours of 10 p.m. and 6 a.m., facilities

shall be available for securing hot food or 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 this section are not applicable to

employees whose hours of service are regulated by (1) the

United States Department of Transportation Code of Fed-

eral Regulations, Title 49, Sections 395.1 to 395.13, Hours

of Service of Drivers, or (2) Title 13 of the California

Administrative Code, Subchapter 6.5, Section 1200 and fol-

lowing sections regulating hours of drivers.

(1) Except as provided in subsections (C), (D), and (G),

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.

H-8

4, Minmium Wages.

(A) Every employer shall pay to each employee wages

not less than three dollars and ten cents ($3.10) per hour

for all hours worked, effective January 1, 1980, and three

dollars and thirty-five cents ($3.35) per hour for all hours

worked, effective January 1, 1981, except:

(1) LEARNERS. Employees 18 years of age or over,

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.

(2) MINORS may be paid not less than eighty-five per-

cent (85%) of the minimum wage rounded to the nearest

nickel provided that the number of minors employed at said

lesser rate shall not exceed twenty-five percent (25%) of

the persons regularly employed in the establishment. An

employer of less than ten (10) persons may employ three

(3) minors at said lesser rate. The twenty-five percent

(25%) limitation on the employment of minors shall not

apply during school vacations.

(3) Minors sixteen (16) and seventeen (17) years old

must be paid the minimum wage for all hours worked within

any workweek during which they work overtime.

Nore: Under certain conditions, the full minimum wage

may be required for minors under 16 years of age. See

Labor Code 1391.2 (b).

(B) Every employer shall pay to each employee, on the

established payday for the period involved, not less than

E-9

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.

do. 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 fur-

nished 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 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 be not 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

E-10

(2) Public utilities fail to supply electricity, water, or

gas, or there is a failure in the public utilities or sewer

system; or i

(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 Handicapped Workers. A license may

be issued by the Division authorizing employment of a per-

son whose earning capacity is impaired by physical dis-

ability 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.

A special license may be issued to a nonprofit organiza-

tion 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.

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 1191.5.)

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 se-

curity number.

K-11

(2) Birthdate, 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 appli-

cable 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 lan-

guage and in ink or other indelible form, properly dated,

H-12

showing month, day and year, and shall be kept on file by

the emplc,-er for at least three years at the place of employ-

ment or at a central location within the State of California.

An employee’s records shall be available for inspection by

the empicyee 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 reim-

bursement from an employee for any cash shortage, break-

age, or loss of equipment, unless it can be shown that the

shortage, breakage or loss is caused by a dishonest or will-

ful act, or by the gross negligence of the employee. Not-

withstanding the foregoing provision, where an employee

has the exclusive and personal control of cash funds of the

employer and is required by the employer to account,

under reasonable accounting procedures, for said funds, the

employer may upon prior written notice require reimburse-

ment from such employee for cash shortages.

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 em-

ployer. The term “uniform” includes wearing apparel and

accessories of distinctive design or color.

Nore: This section shall not apply to protective apparel

regulated by the Occupational Safety and Health Standards

Board.

H-13

(B) When tools or equipment are required by the em-

ployer 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 may be required to

provide and maintain hand tools and equipment custom-

arily required by the trade or craft. This subsection (B)

shall not apply to apprentices regularly indentured under

the State Division of Apprenticeship Standards.

Notge:) This section shall not apply to protective equip-

ment and safety devices on tools regulated by the Occupa-

tional 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.

“Lodging” means living accommodations available to the

employee for full-time occupancy which are adequate, de-

H-14

cent, and sanitary according to usual and customary stand-

ards. Employees shall not be required to share a bed.

(B) 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 Effective

January 1, 1980 January 1, 1981

Room occupied alone ........ $15.00 per week $16.00 per week

IN 625s on cis bweeienls $12.00 per week $13.00 per week

Apartment—two-thirds (34) of

the ordinary rental value, and

in no event more than ..... $175.00 per month $190.00 per month

be ji Kong le are, both em-

ploy e employer, two-

thirds (45) of the ordinary

rental value, and in no event

| Ce? $260.00 permonth $280.00 per month

Meals

RAP anY = SEapeme ERR CAAR TS $1.20

RC eo Gee a ae eg RO, ear $1.65

Ba Phi iced eaverun’ Ie bey x Wis ree $2.20

(C) 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.

(D) 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

H-15

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.

(B) 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. 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 em-

ployees whose total daily work time is less than three and

one-half (34%) hours. Authorized rest period time shall be

counted as hours worked for which there shall be no deduc-

tion from wages.

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

H-16

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.

Nore: 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 suit-

able 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 em-

ployees 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 work per-

formed.

(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 rea-

H-17

sonable 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 main-

tained 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 industrywide standards for the na-

ture of the process and the work performed shall be pro-

vided 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 11, Meal

Periods; Section 12, Rest Periods; Section 13, Change

Rooms and Resting Facilities; Section 14, Seats; Section

15, Temperature; or Section 16, Elevators, would not ma-

terially 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 exemp-

tions 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 em-

ployee 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.

K-18

18. Filing Reports. Every employer shall furnish to

the Commission and to the Division at all reasonable times

any and all reports or information which may be required

to carry out the purpose of this Order, such reports and

information to be verified if and when so requested.

19. Inspection. The Commission and duly authorized

representatives of the Division shall be allowed free access

to any office or establishment covered by this Order to

investigate and gather data regarding wages, hours, work-

ing conditions, and employment practices, and shall be per-

mitted to inspect and make excerpts from any and all

relevant records and to question all employees for such

purposes.

The investigations and data gathering shall be conducted

in a reasonable manner calculated to provide the necessary

surveillance of employment practices and the enforcement

of the Commission’s orders.

20. Penalties. Failure, refusal, or neglect to comply

with any of the provisions of this Order is a violation of

the Labor Code of the State of California and is punish-

able by fine or imprisonment or both.

(See excerpts from Laber 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 pro-

hibited 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 unconstitu-

tional had not been included herein.

K-19

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 imprac-

tical, every employer shall keep a copy of this Order and

make it available to every employee upon request.

Nore: Authority cited: Division 2, Part 4, Chapter 1,

Labor Code and Sections 1171-1204, Labor Code. Issuing

agency: Industrial Welfare Commission.

History:

1. Amendment filed 10-7-76; designated effective 10-

18-76 (Register 76, No. 41). Industrial Welfare Commis-

sion Order No. 8-76. For prior history, see Register 68,

No. 36.

2. Amendment filed 12-31-79; designated effective 1-1-80

(Register 80, No. 1). Industrial Welfare Commission Order

No. 8-80.

Article 5.5. Industries Preparing Agricultural Products

for Market, on the Farm

(Order No. 13-80, Effective J anuary 1, 1980)

11127. Order Governing Wages, Hours, and Working Con-

ditions 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:

E-20

(A) Provisions of Sections 3 through 12 shall not apply

to persons employed in administrative, executive, or pro-

fessional capacities. No person shall be considered to be

employed in an administrative, executive or professional

capacity unless one of the following conditions prevails:

(1) The employee 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 $900.00 per month;

or

(2) 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,

pharmacy, optometry, architecture, engineering, teaching,

or accounting.

(B) The provisions of this Order shall not apply to

employees directly employed by the State or any county,

incorporated city or town or other municipal corporation,

or to outside salespersons.

(C) Provisions of this Order shall not apply to any

individual who is the parent, spouse, child, or legally

adopted child of the employer.

2. Definitions.

(A) “Commission” means the Industrial Welfare Com-

mission of the State of California.

(B) “Division” means the Division of Labor Standards

Enforcement of the State of California. 7

(C) “Industries Preparing Agricultural Produets for

Market, on the Farm” means any operation performed in

E-21

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.

(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) “Minors” means, for the purpose of this Order, any

person under the age of eighteen (18) years.

(1) “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 obtain-

ing orders or contracts for products, services or use of

facilities.

(J) “Primarily” as used in Section 1, Applicability,

means more than one-half the employee’s work time.

B-22

(K) “Split shift” means a work schedule which is inter-

rupted by non-paid non-working periods established by the

employer, other than bona fide rest or meal periods.

(L) “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.

(M) “Wages” means all amounts paid for labor per-

formed 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.

(N) “Workday” means any consecutive 24 hours begin-

ning at the same time each calendar day.

(O) “Workweek” means any seven (7) consecutive days,

starting with the same calendar day each week. “Work-

week” is a fixed and regularly recurring period of 168

hours, seven (7) consecutive 24-hour periods.

3. Hours and Days of Work.

(A) No employee eighteen (18) years of age or over nor

any minor permitted to work as an adult as provided in

(C)(1) shall be employed more than eight (8) hours in

any workday or more than forty (40) hours in any work-

week unless the employee receives one and one-half (114)

times such employee’s regular rate of pay for all hours

worked over forty (40) hours in the workweek. Employ-

ment beyond eight (8) hours in any wo

This text is long and has been trimmed here. Open the source document for the complete record.

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Petition — San Joaquin Nisei Farmers League v. Industrial Welfare Commission · 449 U.S. 1034 | Frix