Calif. Construction Wage Order Affects Landscape Contractors

The state’s Industrial Welfare Commission (IWC) finally passed the order following several months of review, negotiations and revisions solicited from parties affected by the law, as earlier drafts of the wage order would have been burdensome to some employers. One organization that had a hand in fighting provisions in the original proposed law was the California Landscape Contractors Association (CLCA). CLCA reviewed the original provisions of the order and found that the laws were written to cater more specifically to the construction industry and could have hindered the flexibility of landscape company owners in rescheduling intended work due to weather-related conditions or other setbacks.

Along with two other construction trade associations, CLCA was successful in calling attention to the problems facing employers. The IWC reviewed the association’s report and amended the original proposed order, resulting in Wage Order 16 more closely resembling California's other wage orders.

Wage Order 16 must be posted in an area frequented by employees where it can be read easily. If the location of work or other conditions makes this impractical, the employer must keep a copy and make it available to employees upon request. The document can be downloaded from the IWC's website at www.dir.ca.gov/IWC/iwcarticle16.html. Below are several provisions of the new order as reported by CLCA:

• Unlike California Wage Order 5, Wage Order 16 gives workers under its purview the right to refuse to work more than 72 hours in one workweek, except in cases of emergency. Employee representatives requested this stipulation because of the heavy toll that construction work can take on workers’ bodies.



• Unlike the other wage orders, Wage Order 16 stipulates that if the number of employees in a work unit that adopted an alternative schedule increases by 50 percent above the number that voted to ratify the employer-proposed schedule, the employer must conduct a new ratification election. This was included at the request of employee representatives who wanted to take into account the transitory and seasonal nature of construction work, where workforce numbers can fluctuate dramatically.



• Also addressing the unique nature of construction work, Wage Order 16 requires employers to provide an adequate supply of potable water, soap or other cleansing agent and single-use towels for hand washing. This was added at the request of the employee representatives to make sure workers can clean up at job sites prior to eating meals.



• Although Wage Order 16 requires the same paid rest breaks that are required by the other wage orders, it stipulates that breaks need not be authorized in limited circumstances when the disruption of continuous operations would jeopardize the product or process of work. However, the employer must make up the missed rest period within the same workday or compensate the employee for the missed 10 minutes of rest time. This was added at the request of construction trade associations to take into account the need for uninterrupted work in certain circumstances, such as in the case of concrete pouring.

Additional state wage orders that potentially affect landscape contractors are Wage Order 4 and Wage Order 5, which can be found online at www.dir.ca.gov/IWC/WageOrderIndustries.htm. CLCA believes Wage Order 4 may need to be posted for landscape contractors who employ on-site construction workers if they employ clerical workers who are not on site. CLCA also believes landscape contractors who perform maintenance and construction services must post Wage Order 4 and Wage Order 5.

Regardless of the appropriate forms to post, CLCA recommends saving all documents for reference in case of a complaint, as audits can go back three years and can cover all wage orders. If audited, an employer must prove compliance of whichever wage orders were applicable at the time.