April 12, 2005 DLSE Issues Revised Meal Period Regulations

As we reported late last year, the California Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”), took up the task of clarifying California’s meal period requirements by submitting proposed regulations. After receiving and considering public comments on the proposed regulations, the DLSE has now published a revised set of proposed meal period regulations. As explained on the DLSE’s website, these revised regulations are currently open to public comment until April 22, 2005.

The newly proposed regulations offer much needed guidance on how and when to provide meal periods, as well as the potential consequences for failing to provide meal periods.

How to Provide Meal Periods

Previously, employers were required to force employees to take a meal period or risk potential penalties for a meal period violation. Under the newly proposed regulations, however, an employer “provides” a meal period to an employee (even if the employee does not actually take the meal period) by simply affording the employee the opportunity to take it. More specifically, an employer’s obligation to “provide” a meal period is satisfied by doing the following:

  • Informing the employee of his or her right to take a meal period and that he or she will suffer no retaliation for exercising this right;

  • Affording the employee the opportunity to take the meal period; and

  • Maintaining accurate time records of meal periods or otherwise being able to prove that the meal period was in fact actually provided to the employee.

This proposed provision will give employers the ability to allow employees the flexibility to control their own schedule as to meal periods.

When to Provide Meal Periods

In its prior opinions, the DLSE set certain meal period time parameters which often resulted in inconvenient meal periods for both the employer and employee. The proposed regulations replace the DLSE’s prior time parameters with the following clarified rules:

  • An employer is not required to provide a meal period to an employee who works for a period that is five hours or less.

  • An employer must provide (as discussed above) a 30-minute meal period to an employee who works for more than five hours, but not more than six. In this situation, however, the employer and employee can mutually waive the meal period requirement.

  • For a work period of more than six hours, but not more than ten hours, an employer must provide a 30-minute meal period to the employee before the work period exceeds six hours. This provision departs from the DLSE’s prior opinion that the meal period must begin within five hours of the start of a work shift.

  • Finally, for a work period of more than ten hours, but not more than twelve hours, an employer must provide a second 30-minute meal period to an employee, unless the employer and employee mutually waive this second meal period. Importantly, the second meal period can be waived only if the first meal period was not waived and the employee’s work period does not exceed 12 hours.

Consequence of Non-Compliance

Pursuant to Labor Code section 226.7, an employer must pay an employee one additional hour of pay for each day that a meal period is not provided to that employee. The proposed regulations make it clear that this additional payment constitutes a penalty, not a wage. As a result, penalties sought under Labor Code section 226.7 are subject to a one year statute of limitations, as opposed to the three or four year statutes of limitations applicable to claims for unpaid wages.

What this Means

Although not yet final, the DLSE’s revised regulations constitute a significant step toward providing California employers with much needed clarification of the meal period laws. At this point, the revised regulations are open to public comment until April 22, 2005. Once the comment period has concluded, the regulations will await final approval by the Office of Administrative Law—a process which can be expected to take up to thirty days. Accordingly, we will keep you updated on the status of these proposed regulations, and how they affect the workplace, as they move through the rulemaking process.

This E-Update was authored by Mike Minguet and Mike Sullivan. For more information, please contact Mr. Minguet or Mr. Sullivan or any Paul, Plevin attorney at 619-237-5200.

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