DLSE ISSUES REVISIONS TO PROPOSED MEAL/REST PERIOD REGULATIONS

This is a follow-up to the December 22, 2004, E-Alert summarizing the regulations proposed by the Division of Labor Standards Enforcement (“DLSE”) that would drastically reform the current meal and rest period laws. The initial public comment period on the proposed regulations ended in early March 2005. On April 6, 2005, the DLSE released revised proposed regulations. A copy of the revised regulations is posted at http://www.dir.ca.gov/dlse/MRPRegs.htm.

The revised proposed regulations clarify that employers are not required to force an employee to take a meal period against his/her will.

Although there are numerous technical deviations between the original proposed regulations and the revised version, perhaps one of the most meaningful changes for employers is the addition of a definition of the term "provide" in the context of an employer "providing" a meal period. "Provide" is defined to mean: "to make the meal period available to the employee and afford the employee the opportunity to take the meal period." This definition clarifies that an employer does not have to force an employee to actually take the meal period, but just has to provide the employee with the opportunity to take it.

Under the revised proposed regulations, an employer is deemed to have "provided" a meal period so long as it (1) informs the employee of his/her right to take a meal period and the fact that he/she will suffer no retaliation for exercising this right; (2) affords the employee the opportunity to take a meal period; and (3) maintains accurate time records for covered employees (as required by the Labor Code and IWC wage orders) or otherwise establishes, by a preponderance of evidence, that the meal period was, in fact, actually provided to the employee.

The one hour of pay an employer must pay an employee for breach of the meal/rest period requirements is a penalty.

The revised proposed regulations clearly establish the DLSE's position that the one hour of pay an employer must pay an employee for breach of the meal/rest period requirements is a penalty, subject to a one-year statute of limitations.

Status of regulations.

According to the Office of Administrative Law, until the revised proposed regulations are adopted, there is no change in the current laws governing meal/rest breaks. The public has until 5:00 p.m. on April 22, 2005, to submit written comments on the revised proposed regulations. Under the Administrative Procedures Act ("APA"), the DLSE must consider all relevant information presented during the public comment period before taking action. Thereafter, the DLSE may make additional changes to the proposed regulations which, depending on their scope, may trigger another public comment period. This process will continue until the DLSE either adopts or abandons the proposed regulations. If the DLSE adopts the regulations, they become effective once the Office of Administrative Law reviews and approves them for compliance with the APA.