Effective January 1, 2014, SB 435 expanded the scope of Cal. Labor Code Section 226.7 (known for providing premium pay for missed meal and rest periods) to require employers of outdoor workers to provide premium pay to employees who missed “recovery periods.” A recovery period is defined as a “cooldown period afforded to employee to prevent heat illness.”
Under the new Labor Code Section 226.7, an employee is entitled to one additional hour of pay for each workday during which his or her employer has failed to provide a recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.
For years, Cal/OSHA regulations have required California employers to protect outdoor employees (e.g., employees in construction, agriculture, landscaping) from the hazard of heat illness. Among other things, the regulations require employers to provide employees access to drinking water and shade areas. Employees must also be allowed and encouraged to take a cool-down rest in the shade for a period of no less than five minutes at a time. Employees are permitted to take this rest at their discretion whenever they feel the need to do so to protect themselves from overheating.
Although SB 435 does not explicitly reference the Cal/OSHA regulations, plaintiffs’ lawyers may attempt to use the Cal/OSHA regulations as the standard by which to determine liability under the new law. Because SB 435 is vague as to when recovery periods must be taken, a liberal reading of SB 435 and Cal/OSHA regulations together could suggest that an employee may request and must be granted any number of recovery periods during a work shift. If the employer fails to provide even one recovery period, it may be liable for one hour of pay for that day.
This new premium pay law for recovery periods will strengthen the trend of class action litigation against employers for missed break periods. California employers with employees who work outdoors should review their heat illness prevention programs to ensure compliance with Cal/OSHA regulations, including the requirement that such programs be in writing. Employers should also consider revising their employee handbooks and timekeeping requirements to reflect their policy regarding providing and recording recovery periods.