BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: April 29, 2009 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 807
Author: Benoit
Version: As Amended April 2, 2009
SUBJECT
Employment: meal and rest periods.
KEY ISSUE
Should the Legislature extend the time period within which an
employee can take a meal period, redefine the employer's
responsibility for providing his or her employees a meal period,
and decrease the statute of limitations for failing to provide a
meal period?
PURPOSE
To grant employers greater flexibility to provide meal periods,
and also reduce the punishment for failing to provide a meal
period.
ANALYSIS
Existing law requires, with certain exemptions, that all
employees receive a meal break of 30 minutes before the start of
the 5th hour of work, unless the work period is no more than six
hours and both the employer and the employee choose to waive the
meal period by mutual consent.
Existing law requires that if the work period is more than ten
hours, a second meal period of 30 minutes must also be granted
to an employee. This second meal period can be waived by the
mutual consent of the employer and employee, but only if the
work period is no more than 12 hours, and the first meal period
was not waived.
Existing law states that if an employer fails to provide a meal
break, the employer must give the employee one hour of premium
wages at the employee's regular rate of compensation for each
workday that a meal period was not provided. If unpaid,
existing law requires that this wage accrues for 30 days and the
statute of limitations on its collection runs for 3 years.
This bill would:
a) Allow employees to take their first meal period before
the start of the 6th hour of work;
b) Change an employer's punishment for not providing a meal
period to a simple penalty equal to an hour of work, rather
than a premium wage penalty of one hour of work, which
decreases the statute of limitations for enforcement
purposes from three years to one year;
c) Define, for the purposes of enforcement, an employer's
responsibility to provide a meal period as making a meal
period available without interference.
COMMENTS
1. Legislative Background - Meal Periods
In 1999, AB 60 (Knox) became law, which included the
requirement that all employers provide a meal period for an
employee. Prior to AB 60, meal periods had been required by
the regulatory IWC Wage Orders, but, with the exception of a
few industries, were not statutorily required. The following
year, AB 2509 (Steinberg) created the monetary punishment for
employers who do not provide a meal period for their
employees. Questions soon arose from the employer community
as to what it meant to provide a meal period and if the
monetary punishment was a penalty, with a statute of
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
limitations of one year, or a premium wage, with a statute of
limitations of three years.
In 2002, the Department of Labor Standards Enforcement (DLSE)
enforcement manual interpreted the requirement of the employer
to provide a meal period as a responsibility that falls
directly on the employer to ensure that the employee takes a
meal period, much as it is the employer's responsibility to
ensure that his or her employee is paid the minimum wage.
This remains the current policy.
However, in 2004, the DLSE sought to create emergency
regulations to define the requirement to provide a meal period
to "supply" or "make available". These regulations were
withdrawn in 2005, and the DLSE decided not to move forward
with further meal period regulations in 2006.
By defining an employer's responsibility to provide a meal
period as making a meal period available without interference
for the purpose of enforcement, SB 807 seeks to redefine
providing a meal period in a manner similar to last year's SB
1192 (Margett) and the recent Brinker decision (see below).
The initial hearing for SB 1192 was cancelled at the author's
request.
2. Legislative Background - Premium Wage Penalties
On the question of the monetary punishment for not providing a
meal period, the question was somewhat muddled due to the
contradictory opinion letters issued by the Labor
Commissioner. The same 2004 DLSE regulations sought to change
the monetary punishment for failing to provide a meal period
to a penalty, rather than a premium wage, which would have
changed the statute of limitations to one year, rather than
three for an uncollected wage, but the regulations were not
put into action.
In 2005, the Labor Commissioner issued a Precedent Decision,
Hartwig v. Orchard Commercial, Inc., which again set the
monetary penalty to a penalty. The issue was litigated before
the California Supreme Court in Murphy v. Kenneth Cole
Productions, Inc., and in a 2007 decision, the California
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
Supreme Court found that the monetary punishment was a premium
wage, and therefore overturned the Labor Commissioner's
Precedent Decision, setting the statute of limitations to
three years.
SB 807, therefore, would seek to codify the DLSE regulations
of 2004 by setting in code the monetary punishment as a
penalty and, for the purposes of enforcement, define the
provision of a meal period as not interfering with an employee
taking a meal period. SB 807 also allows an employer to
provide a meal period before the beginning of the 6th hour of
work, rather than at beginning of the 5th hour, creating
greater workplace flexibility.
3. The State of Existing Law:
On July 22, 2008, the California Court of Appeal in Brinker
Restaurant Corporation v. Superior Court of San Diego County
(Hohnbaum) (2008) interpreted existing law and the IWC Wage
Order meal period provisions as a requirement for employers to
provide meal periods by making them available, but need not
ensure that they are taken. Employers, however, cannot impede,
discourage or dissuade employees from taking meal periods.
On October 22, 2008, the California Supreme Court granted
review of the California Court of Appeal decision in Brinker
Restaurant Corp. v. Superior Court of San Diego County
(Hohnbaum). The Supreme Court's grant of review supersedes the
Court of Appeal's decision. The Supreme Court is expected to
confirm, among other things, whether the meal period laws and
regulations impose upon employers a responsibility to ensure
that employees actually take the meal period or rather, that
the employer's obligations is simply to make that meal period
available to the employee and afford the employee the
opportunity to take the meal period.
Until the Supreme Court can clarify the meaning of Labor Code
512, the new position of the DLSE is that "[t]aken together,
the language of the statute and the regulation, and the cases
interpreting them demonstrates compelling support for the
position that employers must provide meal periods to employees
but do not have an additional obligation to ensure that such
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations
meal periods are actually taken." (Emphasis added.)
Therefore, while SB 807 does not follow the model of the
Brinker decision, but rather the 2004 Division of Labor
Standards Enforcement emergency regulations and last year's SB
1192 (Margett), the definition the bill uses for providing a
meal period is nearly identical to the current enforcement
practices of the DLSE.
4. Staff Comments:
Before the Committee today are two meal and rest period bills,
SB 807 and SB 287 (Calderon), that seek to redefine the term
"provide" in Labor Code 512. The relevant language in 512
reads as follows:
"An employer may not employ an employee for a
work period of more than five hours per day
without providing the employee with a meal period
of not less than 30 minutes?." (Emphasis added.)
The definition for providing a meal period in SB 807 reads as
follows:
For purposes of this section, an employer
provides a meal or rest period by making
one available to the employee without
interfering with its use. (Emphasis
added)
SB 807 does not, however, define what "interfering" or "to
interfere" means, running into similar challenges that many
in the business community ascribe to the statute's current
use of the term "provide". Blacks Law Dictionary (Seventh
Edition, 1999) defines interference as "the act of meddling
in another's affairs" or "an obstruction or hindrance".
Miriam-Webster's Collegiate Dictionary (Tenth Edition, 2001)
gives a similar definition.
But it is unclear what would qualify as an obstruction or
hindrance as per Labor Code 512. While physically or
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 5
Senate Committee on Labor and Industrial Relations
verbally preventing an employee from taking a meal period
would probably be viewed as an obstruction or hindrance, it
is unclear if a veiled or passive comment from an employer to
an employee suggesting that the employee not take a meal
break would.
Another question is that, since the definition of
interference includes meddling in another's affairs, it is
unclear if it would even be legal for an employer to discuss
with an employee the taking of meal periods, which could be
necessary in the case of health issues, such as eating
disorders, illnesses, or other health and occupational
concerns connected to the workplace.
In short, the term "interference" may be too broad, and the
Committee may want to explore the use of other terminology.
5. Proponent Arguments :
Proponents argue that SB 807 will create jobs in California by
reducing unnecessary litigation through clarifying meal period
laws and revising the timeframe to recover meal period
violation penalties. Proponents believe that this clarity is
needed due to the multiple interpretations of what is an
employer's obligation is to provide a meal period, as well as
the disruptive nature in the workplace of policies compelling
employees to take their meal periods in order to avoid
liability and litigation. Finally, proponents argue that by
changing the employer penalty for violating meal period law
from a premium wage to a simple penalty, and thereby lowering
the statute of limitations to one year, employers will avoid
unwarranted class action lawsuits, while creating a reasonable
statute of limitations for collecting back penalties.
6. Opponent Arguments :
Opponents argue that SB 807 would undermine the right to a
lunch break for California workers, a right has been available
since 1947. Opponents argue that existing law already
balances the needs of employers and employees, and that
shifting the burden from employers needing to provide a meal
period to employees needing to ask for a meal period will
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations
weaken worker rights. Opponents also argue that changing the
definition of providing a meal period will reopen existing law
settled in Murphy v. Kenneth Cole and lead to more litigation.
Finally, opponents note that several studies have shown that
workers need regular breaks to prevent injuries caused by
hunger, fatigue, and repetitive stress.
7. Current Legislation:
SB 287 (Calderon) would grant employers greater flexibility to
provide meal periods, expand the number of qualifying
circumstances for creating on-duty meal period agreements, and
exempt collective bargaining agreements from meal period law.
This bill will be heard in the Senate Labor Committee today.
SB 665 (Cedillo) would allow an employer of a registered
security officer to provide on-duty meal periods if the
officer is covered by a valid collective bargaining agreement
containing specified terms or has a written on-duty meal
period agreement with his or her employer containing specified
terms. This bill will be heard in the Senate Labor Committee
today.
SB 380 (Dutton) would grant employers greater flexibility to
provide meal periods, expand the number of qualifying
circumstances for creating on-duty meal period agreements,
exempt collective bargaining agreements from meal period law,
and state these amendments are declarative of existing law,
and would not be considered amendatory of existing law. The
hearing of this bill was cancelled at the author's request.
AB 569 (Emmerson) would exempt employees in the construction
and transportation industry that are covered by a collective
bargaining agreement from meal period requirements. This bill
was heard in Assembly Labor and Employment on April 22nd and
was passed out and sent to Assembly Appropriations Committee.
8. Prior Legislation :
SB 1192 (Margett) of 2008 sought to allow the employer to
satisfy the requirement to provide a meal period if the meal
period is available to an employee, as well as change the
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 7
Senate Committee on Labor and Industrial Relations
punishment for an employer failing to provide a meal from a
premium wage to a penalty. The initial hearing for SB 1192
was cancelled at the author's request.
SB 1539 (Calderon) of 2008 sought, among other things, to
allow the employer to satisfy the requirement to provide a
meal period if the meal period is available to an employee.
SB 1539 was heard in this Committee, amended to intent
language, and sent to the Senate Rules Committee.
SB 529 (Cedillo) of 2008 would have exempted utility workers,
construction workers, and security officers from certain meal
and rest period requirements. SB 529 was held in the inactive
file on the Assembly Floor.
AB 1711 (Levine) of 2007 would have allowed an employee to
complete his or her meal period before the conclusion of the
6th hour or work. The initial hearing for AB 1711 was
cancelled by the author.
AB 60 (Knox) Statutes of 1999, Chapter 134 codified the meal
period for all California employees.
AB 2509 (Steinberg) Statutes of 2000, Chapter 876, created the
wage premium penalty for an employer who fails to provide a
meal period.
SUPPORT
California Chamber of Commerce
California Retailers Association
Civil Justice Association of California
OPPOSITION
American Federation of State, County and Municipal Employees,
AFL-CIO
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 8
Senate Committee on Labor and Industrial Relations
California Labor Federation, AFL-CIO
California Nurses Association/National Nurses Organizing
Committee
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
Professional and Technical Engineers Local 21, IFPTE, AFL-CIO
UNITE HERE! AFL-CIO
United Food and Commercial Workers Union, Western States Council
United Transportation Union
* * *
Hearing Date: April 29, 2009 SB 807
Consultant: Gideon L. Baum Page 9
Senate Committee on Labor and Industrial Relations