In apparent response to a significant number of complaints from a vocal opposition, the California Division of Labor Standards Enforcement withdrew its December 10, 2004, proposed emergency regulations clarifying and revising meal-period requirements for California employees.
Under the DLSE's prior interpretation of the law, employees who work five hours must receive an uninterrupted meal period of at least 30 minutes, and the meal period must begin before the sixth hour of work; employees who work no more than six hours in a day may waive their right to a meal period. A second uninterrupted meal period must be provided to employees who work more than 10 hours in a day, but the second meal period may be waived, if the first meal period was not waived and the employee works no more than 12 hours in the day. Employers are required to pay an employee one hour of additional pay for each day the employee did not receive a required meal period.
Instead of pursuing emergency regulations, the DLSE submitted its proposed regulations (with some modification) to the normal public review process. Among other things, the proposed regulations: (1) specify that meal periods could start before completion of the sixth hour of work unless other-wise required by an Industrial Welfare Commission Wage Order; (2) provide that an employer will be deemed to have provided a required meal period by making the meal period available to the employee and providing the employee with the opportunity to take it, posting the applicable IWC wage order and keeping accurate time records as required by the posted IWC wage order; and (3) clarify that the one hour of additional pay imposed for not providing a required meal period is a penalty (thereby subjecting such claims to a one-year statute of limitation rather than the three-year statute of limitation applicable to wage claims or a four-year statute of limitation to recover wages under an unfair business practices theory of liability).
The DLSE also announced it was withdrawing a number of informal opinion letters addressing meal period requirements in response to an October 2004 court opinion that found one of the opinion letters to be an illegal underground regulation.
Public hearings on the proposed regulations will be held during February and March. Employers that believe the proposed regulations would benefit them and their employees by permitting greater flexibility in scheduling meal periods may wish to submit comments supporting the proposed regulations. The written comment period closes at 5 p.m. on Wednesday, March 2, 2005. All comments must be submitted in writing (by mail, fax, or email) and received by that time at the DLSE's headquarters office. Submit comments to: Allen Perlof, Senior Deputy Labor Commissioner, Division of Labor Standards Enforcement, 9th Floor West, Post Office Box 420603, San Francisco, CA 94142; email: firstname.lastname@example.org; fax: (415) 703-4807.
Because the last public hearing is scheduled for early March, we do not expect the DLSE regulations on meal periods to be enacted before the end of that month.
What Employers Should Do: The Necessity of an Internal Audit
In light of the ongoing uncertainty over meal period requirements, employers are advised to continue following the DLSE's prior interpretation of the meal period requirements and ensure that employees begin any required uninterrupted meal period before the fifth hour of work is completed.
The DLSE has the authority to interpret the law for enforcement purposes and to investigate employment records and worksites to determine if employers are complying with the meal period requirements. It is therefore critically important that employers be prepared for a DLSE examination of their records and personnel practices. By conducting an internal audit of wage and hour law compliance before an investigator knocks at the facility door, employers can address and remedy vulnerabilities that an audit might reveal.
As part of an internal audit, the employer's policies and procedures should be reviewed for compliance with current law and regulations, those areas identified as "hot spots" should be closely examined, and any irregularities should be corrected.
Jackson Lewis attorneys are available to assist employers conduct an internal compliance audit of wage-hour practices and to modify practices and policies that create vulnerabilities. Employers who wish further information on wage-hour audits or meal period requirements should contact the Jackson Lewis attorney with whom they regularly work, or partners Jamerson Allen, Robert Pattison, Jonathan Siegel, Robert Vogel or Jennifer Brown Shaw.