Employers face a new threat due to missed recovery

Effective January 1, 2014, SB 435 expanded the scope Feces. Labor Code Article 226.7 (known for providing additional pay for missed meals and rest periods) to require employers of external workers to provide additional pay to employees who miss “recovery periods”. The convalescence period is defined as “a period of downtime granted to an employee for the prevention of heat illness.”

Under new Labor Code section 226.7, an employee is entitled to one additional hour of pay for each day of work in which the employer fails to provide a recovery period in accordance with state law, including, but not limited to, an applicable statute or an applicable regulation, standard or order of the Commission on Human Services, 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 employees working outdoors (e.g., workers in construction, agriculture, landscaping) from the risk of heat illness. The regulations require employers, among others, to: providing employees with access to drinking water and shaded places. Employees should also be allowed and encouraged to rest in the shade for no less than five minutes at a time. Employees may take this rest period at their discretion if they consider it necessary to protect themselves from overheating.

Although SB 435 does not include an express reference to Cal/OSHA regulations, plaintiffs’ attorneys may attempt to use Cal/OSHA regulations as the standard for determining liability under the new law. Because SB 435 does not specify when recovery periods must be granted, a liberal reading of SB 435 and Cal/OSHA combined may suggest that an employee may request and must receive any number of recovery periods during a work shift. If an employer fails to provide at least one recovery period, they may be charged for one hour of pay for that day.

This new recovery bonus law will reinforce the trend of class action lawsuits against employers for missed break periods. California employers with employees working 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 amending their employee handbooks and working time requirements to reflect their policy on the provision and recording of rest periods.