California Meal & Rest Break Rules
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.
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. ABA expects the petition will be published for public comment, once the government is reopened, and will conduct outreach to the industry for support in favor of the petition.
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.