California Meal & Rest Break Rules
FMCSA Announces Preemption of California’s MRB Rules for Drivers of Passenger-Carrying CMVs
On Jan. 13, 2020 during ABA's Bus Industry Safety Council winter meeting, Federal Motor Carrier Safety Acting Administrator Jim Mullen announced that FMCSA has granted ABA's petition stating that California's Meal and Rest Break rules are preempted under 49 U.S.C. 31141 as applied to passenger-carrying commercial motor vehicle drivers subject to FMCSA's hours of service regulations.
"This is the right thing to do," said Peter Pantuso, president and CEO of ABA. "We need uniform regulatory scheme, which is what FMCSA issues and enforces. This rule did not provide any safety benefit, only a burden for businesses."
The FMCSA agreed with ABA that federal law provides for preemption of state laws on commercial motor vehicle safety that are additional to or more stringent than federal regulations if they (1) have no safety benefit; (2) are incompatible with federal regulations; or (3) would cause an unreasonable burden on interstate commerce.
According to its announcement, the FMCSA stated it has determined that California's MRB rules are laws on commercial motor vehicle safety, that they are more stringent than the agency's hours of service regulations, that they have no safety benefits that extend beyond those already provided by the Federal Motor Carrier Safety Regulations, that they are incompatible with the federal hours of service regulations, and that they cause unreasonable burden on interstate commerce.
The California MRB rules, therefore, are preempted under 49 U.S.C. 31141(c).
ABA member Terry Fischer of Transportation Charter Services in Orange, Calif., said this announcement is a huge relief to his business, as well as others, because this was a burden that they didn't know they could survive.
"Given what we faced with the MRB it has been difficult for our business," said Fischer. "This is such great news. This announcemnt, given the negative affects we have been feeling from the MRB, I just want to say thank you to ABA and GAP team for all of their support they have provided helping us navigate our way through this."
Act Now!!! Support ABA Efforts to Pre-Empt the Meal & Rest Break Rules
ABA Petition and Request for Comments
On January 10, 2019, ABA filed a petition requesting a determination from FMCSA that the California meal & rest break rules for drivers of passenger-carrying motor vehicles subject to the federal HOS regulations are preempted under 49 U.S.C. 31141. This petition was published by FMCSA on May 9, 2019 and is open for public comment.
Click here to file comments. See Draft Template Letter to FMCSA
On May 3, 2019, a federal district court held that FMCSA’s meal and rest break preemption determination applies to cases that commenced before the determination was issued. The court held that “[t]he FMCSA has promulgated an order which specifically bars enforcement of the relevant provisions of the California Labor Code as applied to property-carrying commercial vehicle drivers.” As a result, the court concluded that it “currently has no authority to enforce” the meal and rest break rules, and granted summary judgment in favor of the motor carrier on plaintiffs’ break claims. The court noted that the FMCSA determination is currently the subject of pending challenges before the Ninth Circuit, and noted that it would allow plaintiffs to move for reconsideration “if there is a change in circumstances regarding the applicability of the” FMCSA determination.
After several failed legislative attempts in the last two Congresses to preempt California rules requiring employers to give employees meal and rest breaks during a work day, as applied to drivers of commercial motor vehicles (CMV) subject to the FMCSA’s hour of service (HOS) regulations, in October 2018 several trucking associations petitioned the FMCSA to preempt the statutes/rules through administrative action pursuant to FMCSA preemption authority. After FMCSA published notice of the petitions, which appeared to cover both CMVs of property and passengers, at the behest of several ABA members, ABA along with these members filed comments in support of preemption. On December 28, 2018, FMCSA published its decision in favor of preempting the meal and rest break rules. In the decision, FMCSA clearly stated its preemption was limited only to CMVs of property; however, the Agency noted it would consider a similar preemption petition for CMVs of passengers.
FMCSA Decision for Truckers
ABA Petition for Bus Drivers
Under California law, within the transportation industry, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
Ordinarily, the employee must be “relieved of all duty” for the period, unless “the nature of the work prevents an employee from being relieved of all duty,” and the employee enters into a written agreement to remain on duty, which he or she may revoke at any time. California law also provides that, within the transportation industry, 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. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
In short, California generally requires employers in the transportation industry to provide employees with an off-duty 30-minute break for every five hours worked, before the end of each five-hour period; and a ten-minute off-duty break for every four hour period (or “major fraction thereof,” i.e., period greater than two hours), in the middle of each such period if possible. Commercial drivers covered by collective bargaining agreements that meet certain statutorily enumerated criteria, however, are not subject to the meal period requirement.
The current federal hours of service rules is defined under 49 CFR 395.5. No motor carrier of passengers shall permit or require any passenger-carrying CMV driver to drive:
* More than 10 hours following 8 consecutive hours off duty, or
* For any period after having been on duty 15 hours following 8 consecutive hours off duty.
No motor carrier of passengers shall permit or require any passenger-carrying CMV driver to drive, regardless of number of motor carriers using the driver’s services, for any period after the driver has been on duty:
* 60 hours in any 7 consecutive days if the carrier does not operate CMVs every day of the week; or
* 70 hours in any 8 consecutive days if the carrier operates CMVs every day of the week.