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(A version of this article will appear in the California
Construction Law Reporter, published by the West Group.)
By James E. Acret
The
California Industrial Welfare Commission, as empowered by
statute, adopted Wage Order 4-89 that required overtime
pay for work in excess of eight hours in any 24-hour period.
The order did not contain any exemption for construction
industry employees. Plaintiffs sought a writ of mandate
to compel the labor commissioner and the Division of Labor
Standards Enforcement (DLSE) to process plaintiffs' complaint
for overtime pay. Plaintiffs were mechanics and equipment
operators employed by Odebrecht Contractors on the Seven
Oaks Dam in San Bernardino County. The trial court declined
to issue the writ.
Affirmed
in Hestand v. Saunders, ___ Cal.App.4th ___, ___
Cal.Rptr.2d ___, 2000 Daily Journal D.A.R. 13085 (2000).
Although
WO 4-89 by its terms includes construction workers, DLSE
and labor commissioner have unwaveringly declared, in oral
and written statements both public and private, that the
onsite construction industry is not covered by any wage
order. In her opening brief, the new commissioner abandoned
this position and agreed that construction workers were
covered. After the filing of amicus briefs, the commissioner
changed her position and stated that she will not in future
support the claims of construction industry workers under
WO 4-89. The court wrote:
The
one thing that is clear throughout the commissioner's
wavering course is the insistence that her call is final
and we may not review it. In that she is mistaken.
The
court held that DLSE's varying interpretations of WO 4-89
- that it does and does not apply to onsite construction
industry - are "regulations" within the meaning
of the Administrative Procedure Act (Government Code §11340
et seq.). Because neither interpretation was adopted
in accordance with the APA, both are void. The court, therefore,
determined that it must interpret the wage order in accordance
with principles of statutory construction. Once particular
legislative intent has been ascertained, it must be given
effect even though it may not be consistent with the strict
letter of the statute. The law cannot turn a blind eye toward
what the public, the industry and DLSE repeatedly were told
by the IWC: That none of its wage orders covers the onsite
construction industry. The wage order never was intended
to apply to the onsite construction industry, and petitioners
are not entitled to relief.
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©2001 Thelen Reid Brown Raysman & Steiner LLP
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