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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

: 

OPINION : No. 86-1001 

: 

of : OCTOBER 21, 1987 

:
 

JOHN K. VAN DE KAMP :
 

Attorney General :
 

:
 

ANTHONY S. DA VIGO :
 

Deputy Attorney General :
 

:
 

THE HONORABLE JAMES P. FOX, DISTRICT ATTORNEY, COUNTY OF 

SAN MATEO, has requested an opinion on the following question: 

Are the temporary employees hired by a private non-profit corporation which 

contracts with the county to operate the county fair subject to the overtime pay requirements of 

the Industry and Occupation Orders of the Industrial Welfare Commission? 

CONCLUSION 

The temporary employees hired by a private non-profit corporation which 

contracts with the county to operate the county fair are subject to the overtime pay requirements 

of the Industry and Occupation Orders of the Industrial Welfare Commission. 

ANALYSIS 

The board of supervisors of a county is authorized to conduct a county fair either 

through county officials and employees (Gov. Code, § 25900; 29 Ops.Cal.Atty.Gen. 107 (1957)), 

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or by contracting with a private nonprofit corporation or association (Gov. Code, §§ 25905, 

25906). The latter section provides in part as follows: 

"The board of supervisors of a county may contract with a nonprofit corporation 

or association for the conducting of an agricultural fair in such county for such 

period and under such conditions as the board may determine. Such contracts 

may provide for the use, possession, and management of any public park or 

fairgrounds by such nonprofit corporation during the period of the contract. 

When such use, possession, and management is granted, the board may also 

allocate to such nonprofit corporation such sum of money it deems necessary to 

be used for any purpose incidental to the fair." 

We are advised that pursuant to this authority a county board of supervisors has entered into a 

contract with a private nonprofit corporation ("Faircorp," post) to conduct, manage, and control 

its fair, grounds, and facilities. 

During July of each year Faircorp hires a number of temporary employees for a 

two to six week period to help in the conduct of the annual county fair. The services provided by 

these employees are necessary, and if the county were conducting the fair itself it would provide 

the same services by hiring from the same temporary employee pool. Due to the lengthy daily 

hours of operation of the annual fair, and the relatively short, over-all length of time which the 

fair is open, some of the temporary employees are required to work more than 40 hours in any 

given seven day period. 

Pursuant to the authority vested in it by Labor Code section 1173, the Industrial 

Welfare Commission has promulgated numerous orders (Cal. Admin. Code, tit. 8, § 11010 et 

seq.) regulating wages, hours, and working conditions in designated industries and occupations. 

(See Appendix A.) By way of example, the overtime provisions of Order No. 10-80 (subd. 3(A) 

of § 11100) governing the amusement and recreation industry are set forth as follows: 

"(A) The following overtime provisions are applicable to employees eighteen 

(18) years of age or over and to employees sixteen (16) or seventeen (17) years of 

age who are not required by law to attend school: such employees shall not be 

employed more than eight (8) hours in any workday or more than forty (40) hours 

in any workweek unless the employee receives one and one-half (1 1/2) times 

such employee's regular rate of pay for all hours worked over forty (40) hours in 

the workweek. Employment beyond eight (8) hours in any workday or more than 

six (6) days in any workweek is permissible provided the employee is 

compensated for such overtime at not less than: 

"(1) One and one-half (1 1/2) times the employees' regular rate of pay for all 

hours worked in excess of eight (8) hours up to and including twelve (12) hours in 

any workday, and for the first eight (8) hours worked on the seventh (7th) day of 

work; and 

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"(2) Double the employees' regular rate of pay for all hours worked in excess of 

twelve (12) hours in any workday and for all hours worked in excess of eight (8) 

hours on the seventh (7th) day of work in any workweek." 

The question presented for consideration is whether any such order which would otherwise be 

applicable in a given case1 would apply to the temporary employees hired by Faircorp. 

It has been suggested that temporary employees are, for purposes of such orders, 

employees of the county and therefore not subject to the provisions of the Labor Code. (Cf. 

O'Sullivan v. City & County of San Francisco (1956) 145 Cal.App.2d 415, 418.) The term 

"employer" as defined in subdivision 2(F) of section 11100, governing the amusement and 

recreation industry, is typical of all such orders, and includes: 

". . . any person, as defined in Section 18 of the Labor Code, who directly or 

indirectly, or through an agent or any other person, employs or exercises control 

over the wages, hours, or working conditions of any person." (Emphasis added.)2 

It has been contended that employees of Faircorp are indirectly employed by the 

county. We disagree. First, there is no employment relationship, direct or indirect, between the 

county and the employees of an independent contractor. The salient fact remains that the 

temporary employees in question are employed and compensated by Faircorp, with whom the 

county contracted in order to relieve its own officers and employees of attendant burdens. 

Manifestly, employees of Faircorp are not those of the county. 

Second, the orders typically exempt "employees directly employed by . . . any 

county." (Emphasis added; cf. § 11100(1)(B).) This exemption is expressly limited, thus 

indicating an intention not to exempt others who might claim an indirect relationship. 

Third, if exempt, temporary employees of Faircorp would enjoy neither the 

benefit of a salary established by law, nor of a salary subject to the constraints of applicable 

regulatory enactments. We perceive no such legislative oversight.3 In this regard, it is clear that 

these regulations should be liberally construed to promote the general object sought to be 

accomplished. (Skyline Homes, Inc. v. Department of Industrial Relations (1985) 165 

Cal.App.3d 239, 250.) One such objective, the limitation of excessive overtime requirements, is 

1 We have not been apprised as to the job specifications of each of such employees, nor do 

we attempt to identify those orders which may be applicable. Generally, the temporary 

employees in question are hired for purposes of security, sanitation, and construction and 

demolition of booths, stands, and other facilities. 

2 Labor Code section 18 defines "person" as any person, association, organization, 

partnership, business trust, or corporation. 

3 Labor Code section 1173 provides that "[i]t shall be the continuing duty of the Industrial 

Welfare Commission . . . to ascertain the wages paid to all employees in this state . . . ." 

(Emphasis added.) 

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enforced primarily by premium pay for overtime. (California Manufacturers Assn. v. Industrial 

Welfare Com. (1980) 109 Cal.App.3d 95, 111.) Conversely, exceptions should be narrowly 

construed. (Lacabanne Properties, Inc. v. Dept. Alcoholic Bev. Cont. (1968) 261 Cal.App.2d 

181, 189; 70 Ops.Cal.Atty.Gen. 92, 97 (1987).)4 

The employees of Faircorp are not those of the county. It is concluded that such 

orders are applicable to the employees of Faircorp.5 

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4 Generally, the same rules of construction which apply to statutes govern the interpretation of 

administrative regulations. (Geftakys v. State Personnel Board (1982) 138 Cal.App.3d 844, 

859.) 

5 This conclusion applies as well to contractors for charter as well as general law counties. 

(64 Ops.Cal.Atty.Gen. 234, 237-238 (1981).) In the latter opinion it was concluded that the 

prevailing wage law applies to those who contract with a county to conduct the county's refuse 

disposal landfill operations. Similarly, in 70 Ops.Cal.Atty.Gen. 92 (1987) it was concluded that 

the prevailing wage law applies to an engineering firm which contracts with a city to perform the 

duties of city engineer. 

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APPENDIX "A" 

Industry and Occupation Orders
 

Industrial Welfare Commission
 

Order No. Title 8, Sec. Industry 

1-80 11010 Manufacturing 

2-80 11020 Personal Service 

3-80 11030 Canning, Freezing, Preserving 

4-80 11040 Professional, Technical, Clerical, 

Mechanical, and related 

5-80 11050 Public Housekeeping 

6-80 11060 Laundry, Linen Supply, Dry 

Cleaning, Dyeing 

7-80 11070 Mercantile 

8-80 11080 Product Handling After Harvest 

9-80 11090 Transportation 

10-80 11100 Amusement and Recreation 

11-80 11110 Broadcasting 

12-80 11120 Motion Picture 

13-80 11130 Preparing Agricultural Products 

For Market, On Farm 

14-80 11140 Agricultural 

15-86 11150 Household 

***** 

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