BILL ANALYSIS
AB 2530
Page 1
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
AB 2530
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