Are You Really in Outside Sales?
Meal Break Claims Not Pre-Empted by NLRA Even If Employees Are Bound By Collective Bargaining Agreement

Meal Period "Penalty or Wage" Issues Still Not Settled Even at DLSE Level

The latest round of comments to the latest round of changes by the Division of Labor Standards Enforcement (“DLSE”) to proposed regulation section 13700 relating to Meal and Rest Periods closed on May 25, 2005.

The proposed regulation was the subject of a Notice of Proposed Rulemaking published in the California Regulatory Notice Register (Register 2005, No. 2-Z) on January 14, 2005, and public hearings conducted in Los Angeles on February 4, 2005, San Francisco on February 8, 2005, and Fresno on March 2, 2005. The proposed modifications were in response to comments received during the 15-day public comment period, which ended on April 22, 2005.

The modifications clarified some provisions, but mostly watered down the employee's rights even further. The DLSE has not announced any new modifications since the most recent comment period closed. This subject might make for an interesting ballot measure, because the general desires of the voting work force is quite the opposite of the administration's intentions.

The full text of the proposed regulation, as modified, is:

§13700.  Meal and Rest Periods

(a) Definitions.  As used in this section,:

(1)       “Meal period” means the a period of not less than 30 minutes as provided in Labor Code section 512(a). time during which an employee is relieved of all work duties and not subject to the control of the employer.  In all places of employment where employees are required to eat on the premises, a suitable place for that purpose shall be designated.

NOTE:  This regulation does not address on-duty meal periods.

(2)  “Provide” means to make a the meal period available to the employee and afford the employee the opportunity to take the meal period.

(3)  "Workday" and "Dday" means any consecutive 24-hour period beginning at the same time each calendar day.

(4)  wWork period” means that period of time during the day in which an employee is subject to the control of the employed by an employer.  A work period begins at the time an employee begins commences work and ends at the time the employee either takes a meal period or stops work for the day.  A new work period begins each time an employee resumes work after taking a meal period. 

(b) Requirement to Provide Meal Periods

(1)           Pursuant to Labor Code Sections 554(a) and 512(c), the provisions of this regulation do not apply to:  (Aa) a person employed in an agricultural occupation, as defined in Industrial Welfare Commission Wage Order 14; and (Bb) a person employed in the wholesale baking industry who is subject to an Industrial Welfare Commission Wage Order and who is covered by a valid collective bargaining agreement that provides for a 35-hour workweek consisting of five seven-hour days, payment of 1 and 1/2 the regular rate of pay for time worked in excess of seven hours per day, and a rest period of not less than 10 minutes every two hours.

(2)  An employer shall be deemed to have provided a meal period to an employee in accordance with Labor Code Section 512 if the employer:

a.  Makes the meal period available to the employee and affords the opportunity to take it; and

Aab.  Informs the employee, either orally or in writing, of his/her right to take a meal period and the fact that he/she will suffer no retaliation for exercising this right Posts the applicable order of the Industrial Welfare Commission; and and 

Bb.  Affords the employee the opportunity to take the meal period; and

Cc.  Maintains accurate time records for covered employees, as required by Labor Code section 1174(d) and section 7, Records, of the Industrial Welfare Commission wage orders (with the exception of Wage Order 16 in which the Records provision is contained in section 6 and Wage Order 17, which does not have a provision for records) the posted order or otherwise establishes by a preponderance of evidence that the meal period was in fact actually provided to the employee;.  NOTE:  While an employer may prove by a preponderance of evidence that a meal period was in fact actually provided to an employee, this regulatory section does not relieve an employer of any existing obligations to maintain accurate time records under Labor Code section 1174(d) and applicable sections of the Industrial Welfare Commission wage orders.

 

(2)   As a further precaution beyond the criteria required under (b)(1), an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period in a way that permits the employee to acknowledge in writing that he or she understands those rights.

(3)  Notwithstanding the criteria set out in subsections (b)(2)(A), (B), and (C), an employer may establish by a preponderance of evidence that a meal period was in fact actually made available to the employee and the employee was in fact actually afforded the opportunity to take the meal period. 

NOTE:  While an employer may prove by a preponderance of evidence that a meal period was in fact actually made available to an employee and the employee was in fact actually afforded the opportunity to take the meal period, this regulatory section does not relieve an employer of any existing obligations to maintain accurate time records under Labor Code section 1174(d) and applicable sections of the Industrial Welfare Commission wage orders.

(c)  Illustrative table Regarding Meal Periods

Beginning of a Meal Period

[table omitted due to WageLaw formatting]

(d)  Beginning of a Meal Period

(1)  Work period Employment of less more than 5 hours, but no more than 6 hours per day

:

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. If the total work hours period per day of the employee are is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

(2)  Work period Employment of more than 6 hours, but less no more than ten hours, per day. :

Unless provided otherwise by an applicable law order of the Industrial Welfare Commission, a meal period as required by Labor Code Section 512(a) must be provided may begin before the work period exceeds six hours  the end of the sixth hour of the work period.

a.  An employer may not require an employee to begin a meal period after the end of the sixth hour of work, except as provided in Labor Code sections 512 (b) or (c).   

b.  If an employee requests a meal period to begin after the end of the sixth hour of work, an employer is not in violation of Labor Code 512 so long as the employee was provided the availability and opportunity to take a meal period before the end of the sixth hour of work.

(3)  Work period Employment of more than ten hours but less no more than twelve hours per day:

An employer may not employ an employee for more than 10 hours per day without providing 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.

(4)  Examples

Example 1:  A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:300 p.m.  The employer is required to provide a meal period to the employee at this point, as the employee will has worked more than 5 hours.  However, if the employee’s work period will end no later than 2:00 p.m., the meal period may be waived by mutual consent of the employer and the employee.

Example 2: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until noon 1:10 p.m.  The employee has not worked over 5 hours and is not entitled to a meal period.  The employee has not requested the meal period to begin after the end of the sixth hour of work.  Without the employee’s request, the employer may not require the meal period to begin after 2 p.m. as this would beafter the end of the sixth hour.

Example 3:  A non-exempt employee begins work at 8:00 a.m. and is provided a meal period, which begins at 10:30 a.m.  The beginning of the meal period ends the initial work period of that employee’s work.  Upon returning to work at 11:00 a.m., the employee commences a new work period.  The employee then works until 4:00 p.m.  If the employee continues work beyond this point, the employer is required to provide another meal period to the employee, as the work period will exceed five hours.  However, if the employee’s work will end by 5:00 p.m., the second meal period may be waived by mutual consent of the employer and the employee.

Example 4:  A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:00 p.m.  After taking a half-hour meal period, the employee returns to work at 1:30 p.m. and works until 6:30 p.m.  If the employee works beyond this time, the employer is required to provide a second meal period to the employee.  However, because the total hours worked by the employee in the day exceeds 10 hours, but not more than twelve, the second meal period may be waived by mutual consent of the employer and the employee as the first meal period was not waived.

(d e)  Penalty for Failure to Provide Meal or Rest Period.  Any amount paid or owed by an employer to an employee under Labor Code section 226.7, subdivision (b), for failing to provide the employee a meal period or rest period, in accordance with an where applicable, order of the Industrial Welfare Commission is a penalty payable to the employee, without abatement or reduction, and not a wage. 

NOTE: 

Pursuant to Labor Code section 98.6, an employer cannot retaliate against an employee for exercising his/her right to take a meal or rest period.

(e f) Severability.  If the application of any provision of this regulation, or any section, subsection, subdivision, sentence, clause, phrase, word or portion thereof should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein. 

Authority:         Sections 53, 54, 55, 59, 95, 98, 98.8, 516, 1193.5, and 1198.4, Labor Code.

Reference:      Sections 226.7 and 512, Labor Code.

Comments

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name is required. Email address will not be displayed with the comment.)