Pending Bill Could Make Major Changes to Meal and Rest Break Flexibility
Posted by Nancy G. Berner
Last week, California Assembly Member Lloyd Levine proposed broad changes to sections of the California Labor Code regulating, among other rules, the meal and rest break requirements imposed on the state’s employers as part of AB 1711. The bill’s most important provisions are summarized below.
Meal Break Timing and On Duty Meal Periods
The proposed legislation requires that the meal period shall be completed before the end of the sixth hour of work. The current interpretation is that the meal period must be commenced before the end of the fifth hour, so this bill would provide greater flexibility in the scheduling of meal breaks if enacted.
The bill also contains significant modifications to Labor Code section 512(b), regulating provision of an on-duty meal period. Current regulation leaves employers to guess when an on-duty meal period is permitted, and prudent employers generally guess “very rarely” based on prior opinion letters issued by the Division of Labor Standards Enforcement interpreting the on-duty meal break provisions.
The proposed amendments clarify that on-duty meal periods are permissible when the “nature of the work” prevents an employee from being relieved of all duties, namely when:
- The employee works alone, or “is the only person in his or her job classification who is on duty and there are no other employees who can reasonably relieve him or her of all duties.”
Arguably, this proposed change broadens the category of employees who may take on-duty meal breaks. Note in particular DLSE Opinion Letter 2002-09-04, concluding that a sole, hourly shift supervisor on the graveyard shift at a fast food restaurant must be provided with an unpaid, and potentially offsite meal break, even if the restaurant is left without a supervisor for half an hour. This opinion appears to be contradicted by the proposed legislative changes, assuming that the DLSE is persuaded that there are no other employees who can assume the duties of the supervisor.
- The work requires a licensed employee, and the employee in question is the only licensed person on duty.
- State or federal law imposes a requirement that the employee not be relieved of all duties.
Collective Bargaining Agreements
Under the proposed changes, the meal period requirements of Labor Code section 512 will not apply to employees covered by a collective bargaining agreement if the agreement expressly provides for meal periods and provides final and binding arbitration of disputes concerning application of its meal period provisions. This would lead to much greater flexibility for unions and employers to negotiate their own meal and rest period provisions, and would likely be very helpful to unionized employers and their employees.
Broadening of Exemption for Computer Professionals
The proposed changes lower the hourly salary requirement of exempt computer software professionals from $41/hour to $36/hour, allowing for more computer professionals to be paid on an exempt salary basis.
Split Shift Payments
The new regulations simplify the payment of the so-called “split shift” premium available to workers whose schedules are interrupted by non-paid, non-working, non-meal periods, such as restaurant workers who are off between their lunch and dinner shifts. An employee who works a split shift will be entitled to one additional hour of pay at his or her regular rate of pay for each split shift day worked. By way of simple example, a waiter who works the lunch shift, and is off for two hours before returning for the dinner shift, is entitled to an hour of pay beyond the hours worked for this “split shift” time period. This broadens the current law on split shift premiums and requires them to be paid in more situations.
Expert Witness Fees
Currently, prevailing parties in wage and hour claims can be entitled to recover attorneys’ fees. The proposed legislation would add expert witness fees as a cost recoverable by the prevailing party, a not insignificant expense.
What the Bill Does Not Do
One of the primary problems with the current meal break regulations is that there is no definition of what it means to “provide” a meal break. Some interpretations claim that “provide” means the employer must force the employee to take the meal break to avoid liability for the extra hour of pay under Labor Code section 512. Other interpretations explain that “providing” a meal break means allowing the employee the opportunity to take the break and that the employee cannot obtain an extra hour of pay under Section 512 simply by failing to take his or her break. The most recent court decision to interpret this provision, White v. Starbucks, used this latter definition holding that: “the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason. . . .[Otherwise,] employees would be able to manipulate the process and manufacture claims by skipping breaks or taking breaks of fewer than 30 minutes, entitling them to compensation of one hour of pay for each violation. This cannot have been the intent of the California Legislature, and the court declines to find a rule that would create such perverse and incoherent incentives.”
We believe that the Legislature should use this bill as an opportunity to clarify the definition of “provide” and follow the logic of the court in White v. Starbucks. By doing so, the Legislature could help employees by giving them the flexibility to forgo their meal breaks when family or other obligations are more important to them and they would rather get home earlier and take a break shorter than 30 minutes or voluntarily skip their break altogether. This would also help employers because it would help minimize frivolous litigation, where employees simply manipulate the system in order to set their employers up for litigation. Unfortunately, Assembly Member Levine’s proposal does nothing to set forth what the employer’s exact requirement is with respect to its duty to “provide” a thirty minute meal break for every five hours worked. We encourage readers to contact Assembly Member Levine’s office at (916) 319-2040 and ask his office to amend the bill to address this issue.
Conclusion
Assembly Member Levine has proposed broad changes impacting wage and hour law, including the highly controversial meal and rest break regulations. This blog entry provides a brief highlight of the proposals. We will continue to follow the progress of this bill. For additional information on how these changes can impact your business, please contact Carlton DiSante & Freudenberger.