©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 227 others). The Ninth Circuit rejected the plaintiff’s argument that restricting the employees’ movement during the meal period made it an “on duty” meal period, which would be inconsistent with the requirement to provide offduty meal periods.263 7.8.7 Federal Motor Carrier preemption Employers of truck drivers had hoped that California meal and rest requirements were preempted by the Federal Aviation Administration Authorization Act of 1994, but those hopes were dashed in 2014, when the Court of Appeal held that the FAAAA does not preempt California’s meal- and rest-break requirements.264 Meanwhile, however, in 2018, the Federal Motor Carrier Safety Administration (FMCSA) declared that its hoursof-service regulations for commercial motor vehicle drivers preempt California rules for meal and rest breaks.265 The FMCSA determined that the California rules create an “unreasonable burden on interstate commerce” by imposing “significant and substantial costs stemming from decreased productivity and administrative burden.”266 In doing so the FMCSA reversed a determination it had made in 2008 that it lacked the power to preempt the California rules. On review, the Ninth Circuit upheld the FMCSA determination. The determination was not arbitrary or capricious, the Ninth Circuit reasoned, because California rules require more breaks, more frequently, and with less flexibility than is the case under federal regulations.267 But in yet another turn of events, on August 14, 2023, the FMCSA announced that it would be accepting petitions for waiver from its previous decisions to preempt meal and rest break rules in California.268 According to the agency’s notice in the federal register, the FMCSA will consider granting waivers based on various practical, nonlegal factors that will include: safety, parking shortages, and consideration of “whether enforcement of a State’s meal and rest break laws as applied to interstate property-carrying or passenger-carrying CMV drivers will dissuade carriers from operating in that State,” and “whether any such effect will weaken the resiliency of the national supply chain.” The scope of the waivers that the FMCSA might consider granting remains unclear, however, and on December 6, 2023, the FMCSA requested public comment on whether, and the extent to which, enforcement of state meal and rest break laws will impact driver health and safety, truck parking shortages, carrier operations in the states, and national supply chain resiliency.269 7.8.8 Statutory exemptions from meal period requirements Collective bargaining agreements. Union-friendly California has created some meal-period exemptions for certain employees covered by collective bargaining agreements. The meal-period requirements do not apply to certain construction workers, commercial truck drivers, security officers, and gas or electrical utility workers if (1) their employment is governed by a “valid collective bargaining agreement” that expressly provides for such things as meal periods and final and binding arbitration of meal-period disputes and (2) their regular wage is 30% more than the state minimum wage.270 The meal and rest break requirements do not apply to airline cabin crew employees who are covered by a collective bargaining agreement that addresses meal and rest breaks, or, under certain circumstances, if the employees are represented by a labor organization but not yet covered by a valid collective bargaining agreement.271 The meal and rest break requirements also do not apply to hospital, clinic, or public health employees who provide or support direct patient care if the employees are covered by a collective bargaining agreement that provides for meal and rest periods and the agreement provides a “monetary remedy” that is no less than “one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest period is not provided.”272 Certain truck drivers transporting commercial feed. Truck drivers transporting commercial livestock feed to “remote, rural areas” may take a meal period after the sixth hour if their regular rate of pay is at least one and a half times the state minimum wage and the driver is eligible for overtime pay. Drivers must still be provided a second meal period by the end of the tenth hour.273
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