Labor Employment Law Blog

On July 7, 2005, the California Division of Labor Standards Enforcement ("DLSE") posted the fourth iteration of its proposed meal and rest period regulations since December 20, 2004, and opened yet another 15-day public comment period on the proposed modified text. DLSE's latest proposal continues the agency's effort to clarify the Labor Code's meal and rest period provisions and represents DLSE's response to comments made during the last 15-day comment period, which closed on May 25, 2005.

The revised regulations retain most of the significant features of the proposed text they replace, including, in unchanged form, 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. The latest regulations also would continue to allow employers to "orally" inform employees of their right to meal periods without requiring them to notify employees that they will suffer no retaliation for exercising this right.

However, DLSE did make some subtle but important revisions to the definitions and operative language of the proposed regulations. Under the latest proposal, an employer would be "deemed" to have provided a meal period in accordance with the Labor Code if the employer:

A. has informed the employee after the effective date of the new regulations, either orally or in writing, of his/her right to take a meal period;

B. gives the employee the opportunity each day to take the meal period(s); 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.

In addition, the proposed regulations would significantly refine the standard for when a meal period must be given during a "work period" of more than 6 hours, but not more than ten hours per day:

[A] meal period as required by Labor Code Section 512(a) must be provided before the completion of the sixth hour of work. The employer cannot waive its obligation to provide the meal period. However, an employee may initiate a request for approval from his/her employer to: (A) not take the meal period for that day or (B) take only a portion of the meal period for that day. The employer has the discretion to approve or deny the request. The employer's approval or denial of such a request is not a violation of the employer's duty to provide a meal period.

The latest regulations thus would give employers added flexibility in accommodating employee scheduling needs. The proposed regulations would further validate the appropriateness of an employee-initiated request in such circumstances with a new illustrative example of compliant conduct:

A non-exempt employee begins work at 8:00 a.m. The employee's regular work schedule is 8:00 a.m. to 4:30 p.m. with a 30 minute meal break. However, the employee wishes to leave by 4:00 p.m. that day in order to take his son to a doctor's appointment. The employee requests approval from his employer not to take the meal period that day in order to leave work 30 minutes earlier. After reviewing the operational needs of the company for that day, the employer approves the employee's request to not take his meal period. At 2:00 p.m., the employer provides a meal period to the employee by giving the employee the opportunity to take the meal period However, the employee does not take his meal period. The employee leaves work at 4:00 p.m.

The proposed regulations also would simplify several definitions. A "work period" would now be defined as "that period of time which begins at the time an employee commences work and ends at the time the employee stops work for the day, excluding any time that is not hours worked (as defined in section 2 of the Industrial Welfare Commission wage orders)." Consistent with the changes discussed above, the new regulations also would define "provide" to mean "to supply or make available a meal period to the employee and give the employee the opportunity to take the meal period."

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.