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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How federal question is presented -......02.02..0..0.20c2cceceee0eee
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)
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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
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