DLSE Public Hearings on Meal/Rest Periods Under Fire

By Loretta Macktal, Executive Assistant to the Vice President, Government Relations

Capitol Update, Feb. 4, 2005 Share this on FacebookTweet thisEmail this to a friend

The Division of Labor Standards Enforcement (DLSE) proposed to adopt a regulation on section 13700, Meal and Rest Periods, in Title 8 of the California Code of Regulations after considering all comments, objections and recommendations regarding the proposed action. However, the Assembly Labor and Employment Committee held a hearing on the proposed regulation on January 26th and committee chair, Paul Koretz, (D-West Hollywood) denounced the regulation, severely criticized representatives from the Labor and Workforce Agency, accused the agency of a power grab and developing stealth regulation.

DLSE wants to clarify that the one hour of pay an employer must give an employee for each workday in which a meal or rest period is not provided is considered a penalty. Section 13700 also clarifies the time parameters and criteria under which meal periods can be provided to employees.

CMTA supports and is very encouraged by the proposal. Clarification of the meal and rest period is needed because some of our members have had claims filed against them. They then contacted DLSE for clarification and assistance without success. These members found the law to be vague and difficult to follow with any certainty of compliance. Understanding the meal and rest period rules is further complicated by the use of "Opinion letters," issued by DLSE in response to specific requests by employer representatives over a long period of time that were not made uniformly available to affected employers. Even with "Opinion letters" the rules are still extremely difficult to understand and apply in an ever changing workplace. Subsequently, several "Opinion letters" have been tossed out by the court as "underground regulations", making the timely development of regulations even more important.

In the meantime, many individual meal period violation claims have been filed and over 200 class action meal period violation claims are currently being held by DLSE pending the development of regulations. CMTA believes that it is absolutely necessary for DLSE to develop clear and concise regulations that can be uniformly enforced.

One of the major issues that the regulation would clarify is an employers' responsibility to make sure that an employee actually takes the break. Employees and attorneys filing claims are alleging that employers have a duty to insure that a meal period is taken within the allotted time period. Absent documentation, employers are finding it extremely difficult to defend these claims successfully.

An equally important issue to be resolved is whether the one hour of wage an employer must pay for a missed meal period is considered a "penalty" or "wage." This is an important distinction because the monetary recovery of a "penalty" violation is limited to one year, but the monetary recovery for a "wage" violation may go back three years and include attorney fees and costs. The latter definition may help explain the sudden increase in class action claims.

CMTA and other employer representatives are seeking clarification in the definition of the term "work period" and when the initial meal period in a workday may commence by the end of the sixth hour of the workday. Clarification is needed on whether the one hour of regular wage an employer must pay an employee for each workday in which a meal or rest period is not provided is classified as a "penalty" rather than a "wage." CMTA believes that it is absolutely necessary that DLSE develop this regulation in a timely manner in order to avoid unnecessary litigation and cost.

DLSE has scheduled three public hearings on the proposed action:

Friday, February 4, 2005 at 9:00 a.m.
Ronald Reagan State Building, Auditorium
300 South Spring Street, Los Angeles, CA 90013

Tuesday, February 8, 2005 at 9:00 a.m.
Hiram Johnson State Building, Auditorium
455 Golden Gate Avenue, San Francisco, CA 94102

Wednesday, March 2, 2005 at 9:00 a.m.
Fresno State Building, Room 1036
2550 Mariposa Mall, Fresno, CA 93721

CMTA encourages you to review the proposed regulation on meal and rest periods in its entirety at www.dir.ca.gov and provide us with comments by February 2nd. We also encourage you to attend the hearing in your area, to testify and submit your own comments in support to DLSE in order to increase support for the regulation. We believe that there is strength in numbers. For those of you who have employees who would like greater flexibility with meal periods, you should encourage those employees to attend the hearing and testify.

Please call (916-498-3322) or email Willie.Washington@cmta.net if you have questions or if any of your employees who support the proposed regulation plan to attend any of the hearings.
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