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California Employers Awaiting Significant Changes To Rules On Meal Periods & Rest Periods

This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed July 14, 2016

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The California Division of Labor Standards Enforcement (DLSE) proposed a new meal and rest period regulation on December 20, 2004. This proposal was filed under the regular rule-making process of the Administrative Procedure Act (APA). On the same day, the DLSE pulled the Emergency Regulation that it had proposed only ten days earlier. The wording is almost identical in both proposals.

The Proposed Regulation

The DLSE proposal, also known as Section 13700, contains four primary sections:

  1. a definition of a work period;
  2. a discussion of how an employer provides a meal period and how it documents the provision of that meal period;
  3. a discussion of when a meal period must start; and
  4. a clarification that the sanction of not providing a meal period or rest period is a penalty, not a wage.

A work period is defined as "that period of time during which an employee is subject to the control of the employer." § 13700(a). Essentially, a work period begins when the employee starts the day, and a new work period begins after a meal period ends. A work period ends with the start of a meal period and at the end of the day's work.

An employer properly provides a meal period when it:

  • "makes the meal period available to the employee and affords the opportunity to take it;"
  • posts the applicable order of the Industrial Welfare Commission (IWC); and
  • maintains accurate time records for covered employees as required by the posted order. § 13700(b)(1).

In addition to the record-keeping requirements of (b) and (c), above, an employer "as a further precaution" may inform an employee in writing that the meal period is available and that the employee has the opportunity to take the meal period and obtain an acknowledgment from the employee that the employee understands those rights. § 13700(b)(2).

Where an employee works more than six hours but less than ten hours, a meal period must start under the DLSE proposal "before the end of the sixth hour of a work period. An employer may not require an employee to begin a meal period after the end of the sixth hour of a work period. However, an employee may make such a request so long as the employee had the option of taking a meal period earlier. § 13700(c)(2).

According to the proposed regulation, the "one hour of additional pay" found in both Section 226.7 of the California Labor Code and in all but one of the Wage Orders is a penalty, not a wage. § 13700 (d). This is significant for at least four reasons:

  1. the statute of limitations for a penalty under Section 340(a) of the Code of Civil Procedure is one year, not three years under Section 338(a) of the Code of Civil Procedure;
  2. waiting time penalties under Sections 200-203 of the Labor Code are not available, because waiting time penalties are available only for "wages earned and unpaid" for "labor performed," not for penalties;
  3. attorneys' fees and interest under Sections 218.5 and 218.6 of the Labor Code are available only for the nonpayment of "wages, fringe benefits, or health and welfare or pension fund contributions," not for the nonpayment of penalties; and
  4. according to the DLSE's press release, the "one hour of additional pay" is not taxable as a penalty.

APA

As discussed above, this proposal was filed under the regular rule-making process of the APA. Cal. Gov't Code § 11340 et seq. After public notice; public written comment due on or before March 2, 2005; and public hearings on February 4, in Los Angeles; on February 8, in San Francisco; and on March 2, in Fresno; the proposed regulation must be submitted to the Office of Administrative Law (OAL) for review and approval. Review by the OAL is limited to making sure that the proposed regulation is "written in a comprehensible manner," "authorized by statute," and "consistent with other law." As regards the substantive content of the proposed regulation, the OAL and the courts are not supposed to substitute their judgment for that of the rule-making agency. Cal. Gov't Code § 11340.1. Even if the OAL does not approve the proposed regulation, the Governor still "may overrule" such a disapproval under the APA. Cal. Gov't Code § 11349.5(e).

Path Forward

While there is much reason for optimism, employers should proceed with caution. It can be predicted that claimants, unions, employee advocates, and the plaintiffs' bar will contest this proposed regulation at every step. This will not be over soon.

In the meantime, employers should NOT be making major changes to their policies and practices without working closely with employment counsel. Employers should audit their meal and rest period policies and practices to make sure they are following a most conservative reading of the Wage Orders and the Labor Code. Proper records should be prepared and maintained for at least a rolling four-year period, longer if currently engaged in litigation. Employers should also conduct inspections to make sure that up-to-date and proper postings are in place.

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