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

226 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 7.9.9 Federal Aviation Administration Authorization Act preemption? Employers of truck drivers had hoped that California meal- and rest-break requirements were preempted by the Federal Aviation Administration Authorization Act of 1994, but those hopes were dashed in 2014. (See § 7.8.7). 7.9.10 Federal Motor Carrier Act preemption? In 2021, the Ninth Circuit affirmed the Federal Motor Carrier Safety Administration’s (FMCSA) 2018 determination that its hours-of-service regulations for commercial motor vehicle drivers preempt California rules for meal and rest breaks. (See § 7.8.7). 7.9.11 Recovery breaks As of 2014, California employers must afford employees a “recovery period,” to “prevent heat illness. ” 271 Employers must not require employees to work during a recovery period that is “mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division or Occupational Safety and Health. ” 272 The recovery period counts as hours worke d. 273 7.9.12 Exemption for safety-sensitive positions at petroleum facilities Certain unionized workers who hold “safety-sensitive positions” at petroleum facilities are exempted from rest- break rule s. 274 A “safety-sensitive position” is a position whose duties reasonably include responding to emergencies in the facility and carrying communication devices. In 2020 the Legislature extended this special exemption until 202 6. 275 The exemption applies only to workers covered by a collective bargaining agreement and subject to Wage Order 1. If such a worker’s rest period is interrupted to respond to an emergency, then the employer must pay the worker one hour of pay. 7.9.13 Exemption for certain security officers In 2020, perhaps inspired by the special exemption for certain petroleum workers, the Legislature created a rest- break exemption for unionized registered private patrol operators. Yielding to the common sense that it furthers the public interest to have security officers who can respond to emergency situations without delay, the new law permits employer to require certain security officers to remain on the premises and on call during paid rest periods, and to carry and monitor a communication device. Affected security officers can, consistent with the employer obligation to provide rest breaks, be required to remain on the premises during rest periods, to remain on call, and to carry and monitor a communication device, so long as the security officer can restart a rest period anew as soon as practicable if the rest period is interrupte d. 276 7.9.14 Liability for unprovided rest breaks Failure to provide a required rest break 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 further violations . 277 No double recovery. The extra hour of pay is in lieu of, not in addition to, the money needed to recover the wages lost by a denied rest break. The Court of Appeal so held in an unpublished 2020 case. Piece-rate farmworkers sued their employer for failing to pay for rest breaks. The plaintiffs sought minimum wage for the time