Labor Employment Law Blog

On May 9, 2005, the California Division of Labor Standards Enforcement ("DLSE") posted notice of further modifications to its proposed meal and rest period regulations and opened another 15-day public comment period on the proposed modified text.

The modified regulations represent the latest step in a long process that began on December 20, 2004, when DLSE proposed regulations designed, among other things, to clarify the Labor Code's meal and rest period provisions. After publishing the proposed regulations, the DLSE opened a 45-day written comment period and scheduled three public hearings on the proposed rules. In response to comments received during its initial comment period, DLSE modified the regulations and opened a second comment period on April 6, 2005. That period closed on April 22, 2005. The latest proposal represents DLSE's response to comments made during that period.

The revised regulations retain the provision that the amount owed by an employer to an employee for failing to provide a meal or rest period is a penalty, not a wage.

They also include several significant clarifications, including a new explanation of the circumstances under which "an employer shall be deemed to have provided" a meal period to an employee. Under the new proposal, an employer would be "deemed" to have provided a meal period if the employer:

A. Informs the employee, either orally or in writing, of his/her right to take a meal period;
B. Affords the employee the opportunity to take the meal period; and
C. 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...

This is in some ways more employer-friendly than its predecessors. It now permits employers to inform an employee "orally" of the right to take a meal period, and to eliminate the employer's duty to inform employees that they will suffer no retaliation for exercising their right to take a meal period.

The revised regulations also clarify the rule, set forth in previous versions, that if an employer cannot meet the test set forth above, it can establish "by a preponderance of the evidence" that a meal period was "provided" to the employee. The revised proposal provides that:

Notwithstanding the criteria set out in subsections (b)(2)(A), (B), and (C), an employer may establish by a preponderance of the 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.

The revised proposal unambiguously states that it would not relieve the employer of the obligation to maintain accurate time records. It makes it clear that an employer may provide evidence either that it has informed the employee of the employee's right, afforded the employee the opportunity to take the meal period, and kept accurate records, or that it has made the meal period available and actually afforded the employee the opportunity to take the meal period.

The proposed regulations also simplify several definitions. A "meal period" is now simply defined as "a period of not less than 30 minutes as provided in Labor Code section 512(a)." The revised proposal explicitly states that the rules do not address "on-duty" meal periods. The definition of "work period" has been changed from the time during which an employee is "subject to the control of" an employer to the time during the day in which an employee is "employed by" an employer.

DLSE has also changed the title of the regulations back to the original title, "Meal and Rest Periods," although the regulations do not mention rest periods other than to provide that the payment for missed meal or rest periods is a penalty, not a wage, and that "an employer cannot retaliate against an employee for exercising his/her right to take a meal or rest period." Finally, DLSE has expanded its "illustrative table" on Meal Periods.
The entire text of the proposed regulations, along with the original regulations and the history of the rulemaking, can be found at the California Department of Industrial Relations website, www.dir.ca.gov.