Building Trades News

click to enlarge

Ruling Restores Wage Protections By Roy San Filippo,
Staff Writer

In a major victory for Building Trades workers, the Fourth District Court of Appeal issued a decision in February reversing a trial court in Orange County that held Wage Order-16 was “invalid”. The court’s ruling in Small v. Brinderson Constructors, Inc. restores wage protections for construction workers, including the 8 hour work day.

California wage and hour law is governed by the Labor Code and a series of 15 industrial and occupational regulations known as Wage Orders that are promulgated by the Industrial Welfare Commission of California (IWC). These Wage Orders establish the minimum standards regulating wages, hours and working conditions for all covered employees in this state.

“This is a great victory for California construction workers. Taken to its illogical conclusion, construction employees would have been the only workers in California not covered by the 8 hour day rule, which is absurd, since they do the most difficult and dangerous tasks,” said attorney Ellyn Moscowitz, who represented the workers in the class action.

“The decision reaffirms that the California Legislature wants workers to work only an 8 hour day, and if they must work overtime after 8 hours in a day, they must be paid at the overtime rate, except in the rare instances where employees vote in a secret ballot election by a 2/3 vote to be exempt from overtime.”

At issue was a 4/10 work schedule implemented by Brinderson Construction at all their California refinery facilities. Thousands of workers worked a 4/10 work schedule without overtime pay after 8 hours in a day. Brinderson admitted they held only one secret ballot election for an alternative work week schedule in 1999, before Wage Order 16 was enacted by the Industrial Welfare Commission. The workers filed a class action lawsuit for unpaid overtime for hours worked over 8 in a day. This amounted to 8 hours of overtime pay per week, even in a 40 hour work week.

Gov. Davis signed into law AB 60, “the Eight-Hour Day Restoration and Workplace Flexibility Act” in 2000, which restored the 8 hour day to California workers including construction workers. Prior to the enactment of AB 60, a construction company’s employees who were engaged in on-site construction activities were excluded from the state Wage Orders. These on-site employees were covered by the state minimum wage order. As a result of AB 60, construction workers are entitled to daily as well as weekly overtime pay, and are governed by other provisions regulating working conditions under Wage Order 16.

Effective January 1, 2001, the IWC has issued a new Wage Order No. 16 covering employees working in on-site construction, drilling, logging and mining activities. In the construction industry, this means all job classifications, including but not limited to, work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, and repair work for which a contractor’s license is required by the California Business and Professions Code, and any other related occupations or trades.

Since Brinderson admitted it did not pay overtime for hours worked over 8 in a day and did not hold the necessary elections per Labor Code section 511 and Wage order 16, their only course of action was to argue the law was “unfair, arbitrary and capricious” and “unconstitutional.” While the trial court agreed with Brinderson, the Court of Appeal reversed, rejecting all of Brinderson’s legal arguments and holding that Wage Order 16 was indeed valid.

“If the trial courts decision had been allowed to stand, it would have had a devastating effect on all craft employees,” said Ray Van der Nat, attorney for LA/OC BCTC Council. “With this ruling all craft employees are once again protected by Wage Order 16 with all the protection and benefits that they are rightfully entitled.”

The law at issue, Labor Code section 511, does not apply to employers who are signatory to a collective bargaining agreement which permits a 4/10 work schedule.