Labor Employment Law Blog

Q. Have the meal and rest period rules changed?

A. Not yet. Last December, the Schwarzenegger administration proposed emergency regulations to give employees flexibility in taking meal and rest periods. The Division of Labor Standards Enforcement (“DLSE”) later withdrew the emergency regulations, but filed new proposed regulations. It may be months before any regulations become final. The proposed regulations would establish a test for determining whether the employer has “provided” the meal period. If the employer has posted the applicable Wage Order and maintained accurate time records for covered employees, the employer will be deemed to have provided a meal period if (1) the employer makes the meal period available to the employee and (2) affords the employee an opportunity to take the meal period. Employees may choose to begin the initial meal period at anytime before the end of the sixth hour.

The proposed regulations provide protections to employers who obtain written acknowledgements from their employees stating the employees understand their meal period rights. Another provision would provide that the monetary sanction of one hour’s pay is a “penalty” as opposed to a “wage.” This distinction would be beneficial for employers. Among other things, it would likely reduce the period, looking back, over which the penalties could be collected.