Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 223 7.8.7 Federal Motor Carrier preemption Employers of truck drivers had hoped that California meal and rest requirements were preempted by the Federal Aviation Administration Authorization Act of 1994, but those hopes were dashed in 2014, when the Court of Appeal held that the FAAAA does not preempt California’s meal- and rest-break requirements . 244 Meanwhile, however, in 2018, the Federal Motor Carrier Safety Administration (FMCSA) declared that its hours- of-service regulations for commercial motor vehicle drivers preempt California rules for meal and rest breaks . 245 The FMCSA determined that the California rules create an “unreasonable burden on interstate commerce” by imposing “significant and substantial costs stemming from decreased productivity and administrative burden. ” 246 I n doing so the FMCSA reversed a determination it had made in 2008 that it lacked the power to preempt the California rules. On review, the Ninth Circuit upheld the FMCSA determination. The determination was not arbitrary or capricious, the Ninth Circuit reasoned, because California rules require more breaks, more frequently, and with less flexibility than is the case under federal regulations . 247 7.8.8 Statutory exemptions from meal period requirements Collective bargaining agreements. Union-friendly California has created some meal-period exemptions for certain employees covered by collective bargaining agreements. The meal-period requirements do not apply to certain construction workers, commercial truck drivers, security officers, and gas or electrical utility workers if (1) their employment is governed by a “valid collective bargaining agreement” that expressly provides for such things as meal periods and final and binding arbitration of meal-period disputes and (2) their regular wage is 30% more than the state minimum wage . 248 Certain truck drivers transporting commercial feed. Truck drivers transporting commercial livestock feed to “remote, rural areas” may take a meal period after the sixth hour if their regular rate of pay is at least one and a half times the state minimum wage and the driver is eligible for overtime pay. Drivers must still be provided a second meal period by the end of the tenth hou r. 249 7.8.9 Liability for unprovided meal periods Failure to provide a required meal period incurs liability for an extra hour of pay per day (see § 7.10) and also can trigger Section 558 of the Labor Code, which creates a civil penalty of $50 per employee per pay period for an initial violation, and $100 per employee per pay period for additional violations . 250 7.9 Rest and Recovery Breaks Section 12 of most wage orders states: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. ” 251 A rest break must be paid: “Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. ” 252 Section 12 applies only to nonexempt workers. Failure to provide a required rest break makes the employer liable for an extra hour of pay for each day in which a required rest break is not authorized and permitted. Labor Code section 226.7 forbids an employer to require an employee to work during a prescribed rest break . 253 7.9.1 Amount and timing of rest breaks The wage orders entitle employees to 10 minutes of “net rest time” for every four hours worked or “major fraction thereof,” with the rest break to be available near the middle of the work period, insofar as is practicable . 254 U nder DLSE interpretations, employers must authorize and permit a first rest break if the daily work time is at least three and one-half hours and a second rest break if the work time has extended beyond six hours . 255