BILL ANALYSIS                                                                                                                                                                                                    ”



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          Date of Hearing:  March 18, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          AB 67  
          (Gonzalez) - As Introduced December 17, 2014


          SUBJECT:  Double Pay on the Holiday Act of 2015


          SUMMARY:  Enacts the "Double Pay on the Holiday Act of 2015," as  
          specified.  Specifically, this bill:  


          1)Defines "family holiday" to mean either December 25 or the  
            fourth Thursday of November each year.


          2)Provides that any work performed on a family holiday shall be  
            compensated at no less than twice the employee's regular rate  
            of pay.


          3)Provides that "employee" does not include an employee covered  
            by a valid collective bargaining agreement that meets  
            specified criteria.


          FISCAL EFFECT:  Unknown


          COMMENTS:  This bill would enact the Double Pay on the Holiday  
          Act of 2015 that would require an employer to pay at least two  








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          times the regular rate of pay to an employee for work on a  
          family holiday, as defined.


          According to the author:


            "In recent years, Black Friday shopping deals have  
            increasingly spread into the Thanksgiving holiday, forcing  
            workers to miss out on celebrating the holiday and spending  
            time with their families in order to keep their jobs. In some  
            cases, this work has become mandatory, forcing workers to give  
            up their holiday or risk losing their jobs. Many of these  
            business practices have carried over to Christmas as well. The  
            increasing commercialization of the holiday season has created  
            significant public backlash, including petitions, media  
            criticism and worker protests.


            This past Thanksgiving, millions of Americans worked at a  
            dozen major retailers: Walmart, Macys, Sears/Kmart, Kohl's,  
            Gap/Old Navy/Banana Republic, Target, Staples, JC Penney, Toys  
            R Us, Sports Authority, Best Buy and Radio Shack. That  
            includes nearly a million people at Walmart stores alone, and  
            many more at food outlets like Starbucks.


            Current California law allows employers to mandate working  
            scheduled overtime, and nationally there have been reports of  
            retailers like Kmart threatening employees with termination if  
            they don't work on Thanksgiving.


            In fact, more than three-fifths of the country's large  
            employers have Thanksgiving shifts, while just one in five  
            small businesses do the same.


            Recent polling found that half of Americans think that it's a  








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            bad idea for stores to be open on Thanksgiving, and despite  
            talk about consumer demand, data shows that opening earlier  
            didn't actually boost overall sales. Instead, sales on  
            Thanksgiving Day just came out of Black Friday sales, meaning  
            taking away employees' holiday didn't actually help the bottom  
            line.


            Holiday work scheduling has inspired multiple petitions from  
            workers and their families across the country. Nearly  
            two-thirds of wealthy nations guarantee paid holidays, though  
            the United States isn't one of them. On top of that, the  
            United States is the only one not to guarantee any vacation  
            days."


          Work Restrictions in Other States and "Blue Laws"


          This bill would appear to establish the first law in the nation  
          that would require double pay for working on specified holidays.  
           However, other state laws prohibit work from being performed on  
          specified holidays or restrict the types of work that may  
          performed on certain days, usually Sundays.


          Currently three states (Massachusetts, Rhode Island, and Maine)  
          actually prohibit most retail stores, including grocery stores,  
          from opening on Thanksgiving and Christmas.  In Massachusetts,  
          state law also prohibits stores from opening on the mornings of  
          Columbus Day and Veterans Day without state permission.  Maine  
          allows certain sporting goods stores to remain open, an  
          exemption that allows Maine-based outdoor retailer L.L. Bean to  
          operate on a year-round basis. 


          Many states and local jurisdictions have laws on the books that  
          restrict work (or certain types of work) from being performed on  
          Sundays.  These laws are generally referred to as "blue laws."








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          For example, more than 30 counties in the South have "blue laws"  
          restricting the hours stores can open on Sundays.  For instance,  
          Aiken, South Carolina has a "blue law" that bans most stores  
          from opening their doors before 1:30 on Sunday afternoons. 


          Arizona previously limited alcohol sales hours on Sundays (10  
          a.m. to 2 a.m., the other six days of the week alcohol could be  
          purchased starting at 6 a.m.). This law was repealed in 2010.


          Arkansas prohibits alcohol sales on Sundays. In addition, car  
          dealerships may not open for sales on Sundays.


          Maine was the last New England state to repeal laws that  
          prohibited department stores from opening on Sundays.  The law  
          prohibiting department stores from opening on Sundays was ended  
          by referendum in 1990.  Recent efforts to overturn the laws  
          restricting automobile dealerships from opening on Sunday have  
          died in committee in the Maine legislature. In addition in  
          Maine, alcohol sales remain restricted between the hours of 1  
          a.m. and 7 a.m. Monday - Saturday and 1 a.m. and 9 a.m. on  
          Sunday.


          In the past, certain state "blue laws" have been challenged on  
          constitutional grounds.  However, in the 1961 case of McGowan v.  
          Maryland, 366 U.S. 420, the U.S. Supreme Court held that  
          Maryland's laws violated neither the Free Exercise Clause nor  
          the Establishment Clause of the First Amendment. It approved the  
          state's blue law restricting commercial activities on Sunday,  
          noting that while such laws originated to encourage attendance  
          at Christian churches, the contemporary Maryland laws were  
          intended to serve "to provide a uniform day of rest for all  
          citizens" on a secular basis and to promote the secular values  
          of "health, safety, recreation, and general well-being" through  








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          a common day of rest.  That this day coincides with the  
          Christian Sabbath is not a bar to the state's secular goals - it  
          neither reduces its effectiveness for secular purposes nor  
          prevents adherents of other religions from observing their own  
          holy days.


          ARGUMENTS IN SUPPORT





          Supporters argue that this bill guarantees that employees are  
          fairly compensated for the undue hardships associated with  
          working on the traditional family holidays of Thanksgiving and  
          Christmas.  Like the author, they contend that the increasing  
          commercialization of these holidays in recent years has forced  
          workers to miss out on celebrating the holiday and spending time  
          with their families in order to keep their jobs.  In some cases,  
          this work has become mandatory, forcing workers to give up their  
          holiday or risk losing their jobs.





          They state that requiring employers in California to pay at  
          least two times the regular rate of pay to an employee that  
          works on Thanksgiving or Christmas will increase the level of  
          respect for California's workers, assist in paying towards a  
          living wage, and perhaps have retailers think twice about  
          forcing a worker to miss a special holiday with his or her  
          family.













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          ARGUMENTS IN OPPOSITION





          Opponents argue that this bill will result in unavoidable cost  
          increases for certain businesses.  While some employers may  
          close their place of business on a "family holiday" to  
          accommodate their employees, others do not realistically have  
          that option for their business models.   For example, hospitals,  
          medical facilities, and lodging accommodations, need to stay  
          open even on "family holidays" for public benefit.  Despite  
          this, this bill would increase these employers' costs of doing  
          business by forcing them to provide all employees with double  
          pay.  This mandate places such employers in an unfair  
          predicament as they do not have the option to avoid those costs  
          by closing down.





          Opponents also argue that this bill would create a competitive  
          disadvantage for "brick-and-mortar" stores.  They state that  
          this bill would unilaterally increase the cost of doing business  
          only for those employers who have a physical presence in  
          California, thereby automatically placing them at a competitive  
          disadvantage with online companies and out-of-state businesses  
          that would not be subject to this cost.





          Opponents also argue that this bill is not explicitly limited to  
          hourly paid employees, and therefore includes exempt, salaried  
          employees. They contend that under this bill, no matter how long  
          the exempt employee actually worked on a "family holiday," the  








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          exempt employee would be entitled to double compensation for the  
          entire day, thereby significantly increasing the cost of all  
          employers.  This mandate would create a windfall for exempt  
          employees who may work only an hour on a "family holiday."





          Finally, opponents argue that this bill violates constitutional  
          rights to religious freedom.  They state:





            "Forcing a non-Christian employer to recognize Christmas as a  
            unique workday by paying all employees double their regular  
            rate of pay is likely a violation of that employer's  
            constitutional free exercise of religion.  See Sands v.  
            Morongo Unified School District, 53 Cal.3d 863, 879  
            (1991)(quoting Justice O'Connor that '[i]f government is to be  
            neutral in matters of religion, rather than showing either  
            favoritism or disapproval . . ., government cannot endorse the  
            religious practices and beliefs of some citizens without  
            sending a clear message to nonadherents that they are  
            outsiders or less than full members of the political  
            community.'") (citations omitted);  Catholic Charities of  
            Sacramento, Inc. v. Superior Ct., 32 Cal.4th 527, 547-548  
            (2004)(stating "[t]he government may not regulate beliefs as  
            such by compelling or punishing their affirmation, nor may it  
            target conduct for regulation only because it is undertaken  
            for religious reasons . . .").   [This bill] is not neutral on  
            its face, but rather, affirmatively recognizes Christmas as a  
            "family holiday" on which employers must provide double  
            compensation to all employees.  This is a government  
            endorsement of a Christian holiday, to the detriment of all  
            other non-Christian religious denominations and beliefs.  









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            Similarly, forcing an employer, especially those who are  
            immigrants and do not embrace American culture to recognize  
            Thanksgiving as a special "family holiday" fails to embrace  
            other cultures and beliefs.  The Legislature should not  
            mandate certain days as more significant based upon religious  
            or cultural beliefs that are not maintained by all."


          


          In addition, the Construction Employers' Association opposes  
          this bill unless amended because the collective bargaining  
          exemption only applies if the agreement provides for paid sick  
          days.  They contend that this requirement is not germane to the  
          bill and the exemption should be limited to the subject matter  
          of the bill.


          


          COMMITTEE STAFF COMMENT:





          As discussed above, certain state or local laws that prohibit  
          work (or certain work) from being performed on Sundays have  
          generally been held to survive constitutional scrutiny.  See,  
          for example, McGowan v. Maryland, 366 U.S. 420 (1961), discussed  
          above.













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          In addition, federal law making Christmas a national holiday has  
          similarly survived constitutional challenge.  For example, a  
          1999 case argued that the federal recognition of Christmas as a  
          holiday violated the First Amendment's establishment clause.   
          However, the U.S. District Court rejected that argument.   
          Ganulin v. U.S., 71 F.Supp. 2d 824 (S.D. Ohio 1999).  In 2000,  
          the 6th U.S. Circuit Court of Appeals affirmed the lower court  
          decision, and the U.S. Supreme Court subsequently refused to  
          grant certiorari.





          In a somewhat unusual precedent, the District Court Judge (Susan  
          J. Dlott) prefaced her opinion with the following nine-stanza  
          poem:



            The Court will address plaintiff's seasonal confusion

            erroneously believing Christmas merely a religious intuition.

            Whatever the reason constitutional or other,

            Christmas is not an act of Big Brother!

            Christmas is about joy and giving and sharing,

            it is about the child within us, it is most about caring!

            One is never jailed for not having a tree,

            for not going to church, for not spreading glee!

            The Court will uphold seemingly contradictory causes,

            *826 decreeing "the establishment" and "Santa" both worthwhile  








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            "Claus(es)!"

            We are all better for Santa, the Easter bunny too,

            and maybe the great pumpkin, to name just a few!

            An extra day off is hardly high treason.

            It may be spent as you wish, regardless of reason.

            The Court having read the lessons of "Lynch"

            refuses to play the role of the Grinch!

            There is room in this country and in all our hearts too,

            for different convictions and a day off too!
          Nevertheless, as discussed above, opponents argue that this  
          bill, in mandating employers (including private employers) to  
          pay premium wages for work performed on Christmas and  
          Thanksgiving, violates constitutional rights to religious  
          freedom.


          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          CA Conference Board of the Amalgamated Transit Union


          CA Conference of Machinists








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          California Immigrant Policy Center


          California Labor Federation, AFL-CIO


          California Nurses Association


          California School Employees Association


          California Teamsters Public Affairs Council


          Engineers & Scientists of California


          International Longshore & Warehouse Union


          Professional & Technical Engineers


          UNITE-HERE


          Utility Workers Union of America




          Opposition


          Agricultural Council of California
          Alhambra Chamber of Commerce








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          Associated General Contractors
          CalChamber
          California Association of Bed and Breakfast Inns
          California Association of Health Services at Home
          California Attractions and Parks Association
          California Automotive Wholesalers Association
          California Broadcasters Association
          California Citrus Mutual
          California Cotton Ginners Association
          California Employment Law Council
          California Farm Bureau Association
          California Grocers Association
          California Hotel & Lodging Association
          California Manufacturers & Technology Association
          California New Car Dealers Association
          California Newspaper Association
          California Pool & Spa Association 
          California Restaurants Association 
          Camarillo Chamber of Commerce
          Construction Employers' Association
          Culver City Chamber of Commerce
          El Dorado Hills Chamber of Commerce & California Welcome Center
          Fullerton Chamber of Commerce
          Goleta Valley Chamber of Commerce
          Greater Conejo Valley Chamber of Commerce
          Greater Riverside Chambers of Commerce
          Greater San Fernando Valley Chamber of Commerce
          Lake Tahoe South Shore Chamber of Commerce
          Long Beach Area Chamber of Commerce
          Maxim Healthcare Services
          Motion Picture Association of America
          National Association of Theatre Owners of California/Nevada  
          (NATO)
          Oxnard Chamber of Commerce
          Rancho Cordova Chamber of Commerce
          Redondo Beach Chamber of Commerce & Visitors Bureau
          San Jose Silicon Valley Chamber of Commerce
          Santa Clara Chamber of Commerce & Convention-Visitors Bureau
          Southwest California Legislative Council








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          Southwest California Legislative Council
          Torrance Chamber of Commerce
          Valley Industry and Commerce Association 
          Western Agricultural Processors Association California Dairies,  
          Inc.
          Western Growers Association 




          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091