New ‘Telework’ Legislation to Allow Employees Remote, Flexible Work Schedule

On February 18, Assembly Members Kelly Seyarto and Frank Bigelow introduced Assembly Bill 1028, which would create the Telework Flexibility Act. The bill would amend Section 510 of, add Sections 511.5 and 2699.7 to, and add Part 4.6 (commencing with Section 1460) to Division 2 of, the Labor Code. Section One of the bill would designate the new law as the “Workplace Flexibility Act.”

Section Two of the bill would amend Labor Code Section 510 to exempt from the eight-hour overtime requirement any employees who select a flexible work schedule adopted pursuant to a new section of law. Section Three of the bill would add Labor Code Section 511.5. This new section of law would allow an individual, nonexempt employee who is working remotely and who is not under the physical control of the employer may work up to 10 hours per workday without any obligation on the part of the employer to pay an overtime rate of compensation.

This exemption would apply if the employee requests this schedule in writing and the employer approves the request. This remote work flexible work schedule must include all of the following:

• A statement that the employer and employee participating in the remote work flexible work hour plan understand that work performed in excess of 10 hours in a day or in excess of 40 hours in a week is required to be compensated at the rate of one and one-half times the regular rate of pay.
• A description of the remote work flexible work hour plan.
• A statement that the remote work flexible work hour plan has not been made a condition of employment and that participation in the plan is voluntary.
• The original signature of the employee and the employer or authorized representative.

AB 1028 would require that, if an employee-selected remote work flexible work schedule is adopted, the employer pay overtime at one and one-half times the employee’s regular rate of pay for all hours worked over 40 hours in a workweek or over 10 hours in a workday, whichever is the greater number of hours. Moreover, all work performed in excess of 12 hours per workday and in excess of 8 hours on a fifth, sixth, or seventh day in the workweek must be paid at double the employee’s regular rate of pay. The bill would exempt from an employee-selected remote work flexible work schedule any split shift premiums that would otherwise be applicable.

An employer would be prohibited from inducing a request by promising an employment benefit or threatening an employment detriment. An employee or employer may discontinue an employee-selected remote work flexible work schedule at any time by giving written notice to the other party. Employees who are covered by a valid collective bargaining agreement or who are public employees. The DLSE would be charged with enforcement of this new law.

Section Four of the bill would add Part 4.6, which would be titled “Workplace Flexibility.” Any nonexempt employee who works from home and is not under the physical control of the employer may choose when to take any meal period or rest period during the workday, if the employer has not already scheduled a meal or rest period within the requirements of the law.

In addition, an employer would be required to notify the employee of the employee’s right to take a meal or rest period consistently with other provisions of the Labor Code and Wage Orders of the Industrial Welfare Commission. An employer would also be required to pay one additional hour of pay for each day that the employer fails to provide the one-time notification to an employee working from home. And, an employer would be prohibited from retaliating against any employee who exercises any rights pursuant to this section.

Section Five of the bill would add Labor Code Section 2699.7, which would be part of the Private Attorneys General Act (PAGA) statute. This new provision would prohibit an employee from recovering civil penalties from an employer for violations of any provision of either the Labor Code or a Wage Order of the Industrial Welfare Commission requiring the employer to provide meal and rest breaks if specified conditions are met.