BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: April 28, 2010 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:No
Urgency: No
Bill No: SB 908
Author: Wyland
Version: As Introduced January 27, 2010
SUBJECT
Meal and rest periods: exceptions.
KEY ISSUE
Should the Legislature exempt employers in the armored car
industry from providing meal periods and from being liable for
unpaid wages for failing to provide a meal period?
PURPOSE
To exempt employers in the armored car industry from meal period
requirements and statutory wage restitution for failing to
provide meal periods.
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 exempt employers in the armored car industry
from the requirement to provide a meal period, as well as exempt
employers in the armored car industry from the requirement of
paying one hour of premium wages at the employee's regular rate
of compensation for each workday that a meal period was not
provided.
COMMENTS
1. Need for this bill?
While the author and sponsor acknowledge that the Committee
has heard several bills on meal periods and premium wage
payments for failing to provide a meal period, both believe
that the employment conditions of the armored car industry are
unique and require a specific statutory treatment. The
reasons for the need for a specific statutory treatment,
according to the author and sponsor, are due to public safety
and environmental concerns.
The public safety concerns revolve around the fact that
armored cars carry high-value cargo, and therefore run a high
risk of theft. According to the sponsor, a high proportion of
armored car robberies involve gunfire, and therefore can pose
a significant risk to bystanders if stationary for a long
period of time. As a meal period would involve remaining
stationary for a period of time, the sponsors argue this is
too significant a risk for public safety and therefore
requires a specific exemption.
The sponsor also notes that the armored cars are not equipped
with windows that can roll down, and therefore require the
driver to idle the armored car for long periods of time in
Hearing Date: April 28, 2010 SB 908
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
order to appropriately heat or cool the vehicle for employee
comfort. These long periods of idling contribute to regional
air quality issues, and therefore pose larger environmental
concerns.
Finally, sponsors note that one of their members, GARDA,
recently lost meal period litigation that resulted in a $9
million settlement. However, according to the sponsors, this
settlement did not result in a change of behavior by either
the employer or employee, leaving the underlying meal period
requirement unfulfilled. The sponsors believe that this
inability to change industry policies requires relief.
2. A Brief Overview of the Armored Car Service Industry:
According to the federal Bureau of Labor Statistics data for
2008, 6,149 individuals were employed in the armored car
services industry by 80 businesses. On average, these
employees received $34,382 in annual compensation.
3. Current Status of Meal Period Enforcement:
As has been discussed in previous analyses, the California
Supreme Court is current reviewing meal period issues in
Brinker Restaurant Corp. v. Superior Court of San Diego County
(Hohnbaum). In this case, the 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. This decision would
impact all employers, including the armored car industry.
Until the Supreme Court can clarify the meaning of meal period
law, the position of the Division of Labor Standards
Enforcement (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 meal periods
are actually taken." (Emphasis added.)
Hearing Date: April 28, 2010 SB 908
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
As such, the DLSE is only taking up cases that involve
employers that have made meal periods completely unavailable
to their employees. Similarly, until the Brinker case is
decided, class action certification is basically frozen.
4. Staff Comments:
1) Meal Period Wage Restitution under SB 908:
While several industries have specific exemptions from
meal period requirements, currently no industries are
completely exempt from meal period premium wage
restitution if an exempted employer fails to provide a
meal period. The committee may wish to consider if
creating the precedent of excluding an entire industry
from meal period enforcement, albeit a unique industry,
is in step with existing statutory enforcement
provisions.
2) Who is Exempt under SB 908?
Currently, on page 2, lines 31 through 33, SB 908 exempts
"an employee in the transportation industry whose work
places him or her inside an armored car in shifts during
a workday" from meal period provisions. Using the IWC
Wage Order definition, it would include employees
involved in maintenance, repair, storage, cleaning, and
other incidental activities related to transportation.
The committee may wish to consider clarifying who is and
who isn't exempt under SB 908.
5. Proponent Arguments :
Proponents argue that this bill would provide needed
flexibility to armored car drivers to take their meal periods
when safe and appropriate. Proponents believe that a
stationary armored car is a magnet for criminal activity,
placing the employees and general public in harm's way.
Proponents also note the special and time-sensitive nature of
the valuable cargo armored cars transport, which they believe
necessitates a meal period exemption.
Hearing Date: April 28, 2010 SB 908
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations
6. Opponent Arguments :
Opponents argue that eliminating meal and rest breaks for an
entire industry is inappropriate and jeopardizes the health
and safety of the employees. Opponents note that meal and
rest periods provide important health benefits, as food and
rest period provide additional energy for alert attention to
job details. Proponents also note that the armored car
industry is a particularly stressful occupation, and that rest
and alertness is required in an occupation that involves
weapons and long periods of time on the road. Finally,
opponents believe that existing on-duty meal period provisions
apply to armored car employee, making the bill unnecessary.
Other opponents have taken an 'oppose unless amended'
position, arguing that SB 908 should be amended to provide
meal period flexibility to all employers. These opponents
feel that current meal period law is too rigid and inflexible,
and SB 908 should instead focus on comprehensive legislative
vehicle for all of California's employers.
7. Prior Legislation :
SB 342 (Ackerman) of 2007 was identical to this bill. It was
amended to intent language in this committee and held at the
Assembly Desk.
SUPPORT
National Armored Car Association - NACA - Sponsor
Association for Los Angeles Deputy Sheriffs
California Narcotic Officers Association
California Peace Officers' Association
California Police Chiefs Association
OPPOSITION
California Employment Law Council (Oppose Unless Amended)
California Employment Lawyers Association "CELA" (Oppose Unless
Hearing Date: April 28, 2010 SB 908
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Senate Committee on Labor and Industrial Relations
Amended)
California Grocers Association (Oppose Unless Amended)
California Hospital Association (Oppose Unless Amended)
California Labor Federation
California Manufacturers and Technology Association (Oppose
Unless Amended)
California Nurses Association/National Nurses Organizing
Committee
Consumer Attorneys of California
Employers Group (Oppose Unless Amended)
National Federation of Independent Business (Oppose Unless
Amended)
National Gypsum (Oppose Unless Amended)
* * *
Hearing Date: April 28, 2010 SB 908
Consultant: Gideon L. Baum Page 6
Senate Committee on Labor and Industrial Relations