BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2530
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          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.  









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          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  








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          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  








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          following:

               "The [sponsors] have circulated a legal analysis suggesting  
               that the deregulation of trucking and the preemption of  
               state regulation of routes, rates and service preempts the  
               right of states to regulate break times for drivers.  This  
               is one of the most ridiculous arguments we have ever seen  
               made to the Legislature.  First of all, the United States  
               Supreme Court has repeatedly ruled that states may regulate  
               the wages, hours, and working conditions of all workers,  
               including commercial drivers, provided those regulations  
               are at least as protective as the federal Fair Labor  
               Standards Act.

               Secondly, meal and rest break requirements are not  
               regulations of "rates, routes and service."  They are  
               fundamental "police power" regulations protecting the  
               safety and health of commercial drivers.  Perhaps the  
               sponsors of this bill, the California Trucking Association,  
               will next argue that the state can't set the minimum wage  
               for truck or bus drivers because those are 'rates."

               In any event, if the California Trucking Association thinks  
               that state wage and hour laws are preempted, it should file  
               a lawsuit challenging their constitutionality."

           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  








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          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:

               "This bill seeks to provide relief for unionized  
               employers and employees in the transportation industry  
               from California's confusing meal period laws and  
               regulations.  This confusion has resulted in costly  
               litigation against employers and even termination of  
               employees that do not comply with the law's burdensome  
               requirements.  While well-intentioned, I cannot  
               support this bill because it singles out a specific  
               group of employers and employees for relief from a  
               problem that plagues almost every industry in this  
               state.

               In addition, this legislation could inadvertently  
               impact pending litigation as well as potential  
               rulemaking.  A number of recent court cases have  
               significantly impacted meal period law.  One recent  
               appellate decision could effectively invalidate large  
               portions of the Industrial Welfare Commission's Wage  
               Orders.  Such an action would have a significant  
               effect on employers and employees throughout  
               California.  While I appreciate that the sponsors and  
               supporters of the bill need the relief sought, I  
               cannot support legislation that addresses this issue  
               in such a narrow manner.

               The Labor and Workforce Development Agency is closely  
               monitoring these cases to determine what actions it can  
               take to provide better guidance to employers and employees  
               on how to comply with the law.  It is premature to take any  
               legislative action until these pending court cases and  








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               regulatory matters have been resolved."

          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  :   

           Support 
           
          Bulk or Liquid Transport
          California Dump Truck Owners Association
          California Trucking Association (Sponsor)
          Central Freight Lines Inc.
          Certified Freight Lines, Inc.
          Cherokee Freight Lines
          DOSS
          Downs Fuel Transport
          Engel & Gray, Inc
          Jack L. Spence, Inc.
          Mid State Concrete Products
          Northern Refrigerated Transportation, Inc.
          Numerous Individuals
          One West Insurance Services, Inc.
          Pacific Tank Lines, Inc.
          Pozas Bros Trucking
          Ritchie Trucking Service
          Ross Transportation Services
          S & J Transportation
          Sygma
          UPS
          Veolia, Inc.
          W. H. Breshears, Inc.


           Opposition 
           
          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
          UNITE-HERE!
           
          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091 








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