Date of Hearing: April 9, 2008
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2530 (Duvall) - As Introduced: February 21, 2008
SUBJECT : Meal periods: transportation workers.
SUMMARY : Provides that the meal period requirements of current law do not apply to employees whose hours are regulated by either federal or state law regulating the hours of service of drivers.
EXISTING LAW :
1)Prohibits an employer from employing any person for a work period of more than five hours without providing the employee with a meal period of not less than 30 minutes [Labor Code section 512 (a)].
2)Provides that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee [Labor Code section 512 (a)].
3)Authorizes paid on-duty meal periods when the nature of the work prevents an employee from being relieved of all duty, the parties have agreed to the paid on-duty meal period in writing, and the written agreement authorizes the employee to revoke the agreement at any time [See, for example, Industrial Welfare Commission Wage Order 9 Section 11(C)].
4)Provides that if an employer fails to provide an employee a meal period or rest period, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided (Labor Code Section 226.7).
FISCAL EFFECT : Unknown
COMMENTS : This bill is sponsored by the California Trucking Association (CTA), who argues that California's meal and rest period requirements are preempted by federal law regulating the hours of service of truck drivers.
According to CTA, the Federal Motor Carrier Safety Administration (FMCSA) regulates drivers' hours of service comprehensively. FMCSA does not, however, require mandatory meal or rest breaks as specific intervals within the parameters of the driving time and on-duty time permitted under its rules. FMCSA's current hours of service regulations limit the hours of drivers of property-carrying commercial motor vehicles in two ways. First, following ten consecutive hours off duty, a driver may not drive more than eleven hours total or beyond the 14th hour after first coming on duty. Second, a driver may not drive beyond his 60th hours on duty over the course of a seven-day period, or beyond his 70th hour over an eight-day period.
As discussed above, California law generally requires employees (including drivers) to take a 30-minute meal period every five hours. CTA argues that these requirements are preempted by the federal hours of service statute and regulations because they are an obstacle to the fulfillment of the purposes and objectives of federal law. CTA contends that California's meal period requirements are also subject to preemption under a separate section of federal law because they impose requirement that are more stringent than federal law and significantly burden interstate commerce while providing little, if any, corresponding safety benefit. Finally, CTA argues that California's requirements are preempted by the Federal Aviation Administration Authorization Act because they "relate to" carriers' rates, routes and services in a way that interferes with the carriers' operations.
In support of its argument, CTA points to the recent United States Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, No. 06-457 (U.S. S.Ct. Feb. 20, 2008). In that case, the Court held that federal law preempted a Maine tobacco law that regulated the delivery of tobacco to customers within the state. The regulations at issue effectively required motor carriers to provide a special kind of "recipient-verification" service and deemed motor carriers to know that certain packages contained tobacco products and in certain instances prohibited their delivery.
According to CTA, while the trucking industry fully supports providing employees appropriate meal periods, the rigid California requirements have severely disrupted many types of motor carrier operations, leading to adverse economic, safety, security, and societal consequences. For example, many types of trucking operations are carefully scheduled to allow drivers to reach immediate destinations where lunch breaks can be safely taken without delaying the complex, multi-step transportation process. While the driver is having a meal, freight arriving from many locations can be consolidated and reloaded for the next stage of its transportation, with a new load being made available for the drivers to transport back to their home terminals.
CTA argues that forcing drivers to stop short of those intermediate locations for a meal period can disrupt the entire transportation process. Because it adds to the time needed to complete the overall operation, it pushes driving times into congested periods and/or requires the carriers to utilize more equipment and drivers to meet critical deadlines. From the drivers' perspective, a forced, untimely meal period requires them to stop at inconvenient, possibly unsafe and unsecure locations en route and forces them to use their time less efficiently, thereby affecting their earnings. In summary, CTA argues that mandatory meal period provisions adversely affects both the motor carrier and drivers' economic interests, creates safety concerns, and exacerbates highway congestion problems.
ARGUMENTS IN OPPOSITION :
Opponents argue that there is no reason to strip an entire industry of workers of their rights to take rest periods and lunch breaks. These drivers - like all workers - deserve these basic protections. Opponents state that, in fact, breaks are even more important for commercial drivers, since they can lawfully work up to fifteen hours a day.
Opponents note that health experts agree that regular breaks are essential in preventing workplace injury caused by repetitive stress, hunger and fatigue. Without breaks to eat or rest, workers are more likely to injure themselves and their coworkers. Workers denied breaks may even use artificial stimulants to stay awake, which in turn damage their health. Denying breaks to commercial drivers would not only endanger the health of those workers, it would increase the risk to the public who must share the roads with drivers who would be required to work long hours without the right to stop when they need to eat or rest.
The Teamsters, writing in opposition to this bill, state the following:
PRIOR LEGISLATION :
AB 1034 (Keene) from 2007, as introduced, would have permitted parties in the transportation industry to establish, by a collective bargaining agreement, specified requirements concerning meal periods. Specifically AB 1034 would have authorized the parties, to a valid collective bargaining agreement covering commercial drivers in the transportation industry, to establish (1) an off-duty meal period that commences after no more than six hours of work, and (2) the circumstances under which commercial drivers may qualify for an on-duty meal period.
Subsequently, AB 1034 was amended to apply more broadly than to just the transportation industry. Among other things, the amended version of AB 1034 provides that a meal period shall be commenced not later than the completion of the employee's sixth hour of work. AB 1034 also provides that if an employer and employee have entered into a valid collective bargaining agreement, the terms, conditions and remedies of that agreement pertaining to meal periods apply in lieu of the requirements of current law. Finally, AB 1034 specifies that an "on duty" meal period will be permitted only when the nature of the work prevents an employee from being relieved of all duty and when the employer and the employee have, by mutual consent, entered into a written agreement agreeing to an on-the-job paid meal period.
AB 1034 is currently in the Senate Rules Committee.
The original version of AB 1034 was identical to AB 2593 (Keene) from 2006, which was vetoed by Governor Schwarzenegger. In his veto message, the Governor stated the following:
In addition, the provisions of AB 1034 were similar to language contained in AB 3018 (Koretz) from 2003, which was also vetoed by Governor Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION :
Bulk or Liquid Transport
California Dump Truck Owners Association
California Trucking Association (Sponsor)
Central Freight Lines Inc.
Certified Freight Lines, Inc.
Cherokee Freight Lines
Downs Fuel Transport
Engel & Gray, Inc
Jack L. Spence, Inc.
Mid State Concrete Products
Northern Refrigerated Transportation, Inc.
One West Insurance Services, Inc.
Pacific Tank Lines, Inc.
Pozas Bros Trucking
Ritchie Trucking Service
Ross Transportation Services
S & J Transportation
W. H. Breshears, Inc.
California Conference Board of the Amalgamated Transit Union California Conference of Machinists
California Labor Federation, AFL-CIO
California Teamsters Public Affairs Council
International Longshore and Warehouse Union
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091