Golf course restaurant employees are covered by Wage Order 10, not Wage Order 5

DEPARTMENT OF INDUSTRIAL RELATIONS

DIVISION OF LABOR STANDARDS ENFORCEMENT
LEGAL SECTION
45 Fremont Street, Suite 3220
San Francisco, CA 94105
(415) 975-2060

H. THOMAS CADELL, JR., Chief Counsel

December 3, 1997

John Hermann
Strategic HR Services
5000 Birch, Suite 8000
Newport Beach, CA 92660

Re: Applicability Of Wage Order 5

Dear Mr. Hermann:

This is to confirm our telephone conversation of this date
wherein I advised you that golf course employees would be subject
to the provisions of Wage Order 10-89, the order covering the
Amusement and Recreation Industry.

In answer to your question regarding the effect the changes in
the IWC Orders scheduled to take effect on January 1, 1998, will
have on your clients in the Amusement and Recreation Industry, the
answer is: There will be no effect. The only orders being changed
are 1, 4, 5, 7 and 9. Under the amendments to these orders, there
will no longer be an obligation to pay overtime after eight hours
in a workday.

Specifically, you asked whether workers employed in a
restaurant on a golf course would be affected by the changes in
Order 5-98. The answer is no since these workers are covered under
Order 10-89. You stated that one of your clients had been informed
by an employee of the Division that the employees of the golf
course who are employed in the restaurant located on the golf
course would be covered by Order 5-98, covering the "Public
Housekeeping Industry". This is incorrect.

The definition of "Public Housekeeping Industry" remains the
same as it has been for at least forty years:

"'Public Housekeeping Industry' means any industry,
business, or establishment which provides meals, housing,
or maintenance services whether operated as a primary
business or when incidental to other operations in an
establishment not covered by an industry order of the
Commission, and includes..." (Emphasis added)

John Hermann
December 3, 1997
Page 2

Therefore, since the employees of the golf course who are
engaged in the operation of the restaurant are covered by the
applicable "industry order" (IWC Order 10), they are not covered by
the provisions of Order 5. As you can see, the language adopted by
the Commission avoids the almost impossible situation which would
have arisen had the Commission decided to cover some employees in
an establishment under one wage order while covering other
employees under another.

This same result would be reached in any case where there are
restaurant or lodging facilities or maintenance services which are
incidental to the operation of a business under another "industry"
order. For instance, theaters with employees involved in food
service would still be under Order 10 because theaters are covered
by that order.

On the other hand, if there were employees of an oil drilling
operation engaged in the operation of food service (perhaps at the
well-head) those employees would be under Order 5 because there is
no industry order covering oil drilling.

I hope this adequately addresses the issues you raised in our
telephone conversation and the memo you faxed to me from one of
your clients. I want to apologize for any inconvenience that you
or your clients may have faced as a result of any misinformation
from members of our staff. However, as you know, a question can be
misinterpreted and that may be what led to the misinformation.

Yours truly,

H. THOMAS CADELL, JR.
Chief Counsel

c.c. Jose Millan, State Labor Commissioner
Nance Steffen, Assistant Labor Commissioner
Greg Rupp, Assistant Labor Commissioner
Tom Grogan, Assistant Labor Commissioner