The Road Ahead for California Truckers:  Rest Breaks, Piece-Rate Work, and Federal Preemption

Several cases over the past few years have made it much easier for truck drivers in California to collect unpaid wages for missed meal and rest breaks.  These decisions have also clarified that truck drivers in California who are paid by the mile or by the load must be paid separately for time that they are not actually Gear-and-Gavel_dark-bluedriving.  This means that companies that pay their drivers by the piece must also pay them an hourly rate for time spent doing things like vehicle inspections and stand-by time.

For example, in Bluford v. Safeway Stores, Inc., a group of truck drivers sued Safeway for unpaid rest breaks.  Section 226.7 of the California Labor Code and Industrial Welfare Commission Wage Order 9 require employers to permit employees to take 10 minute rest breaks for every four hours (or major portion thereof) worked.  The first rest break kicks in after three and a half hours of work.  The second kicks in after six hours, and the third after 10 hours.  In other words, an employee who works a shift that is more than 10 hours long is owed three rest breaks.  Although employees are free from job duties during these breaks, the employer is required to pay for them and cannot deduct the rest breaks from employees’ wages.

The Bluford drivers claimed that Safeway had violated these requirements because it paid drivers based upon miles driven and tasks performed, but did not pay them for their rest breaks.  Safeway responded that it did not deduct any pay from the drivers’ paychecks, and thus did not violate the law.

The California Court of Appeal agreed with the drivers.  The court held that the drivers’ claim that they were not paid separately for rest breaks was enough to state a claim under Wage Order 9.   In other words, where drivers are paid by the mile or by the task, the employer must pay them separately for their rest breaks.  (On a separate but related note, if a driver is unable to take a rest break, the employer must compensate him or her with an additional hour of pay.) (more…)

Ninth Circuit Clarifies California Labor Law Protections for Truck Drivers in Dilts v. Penske Logistics

California labor laws almost always offer stronger protections than their federal counterparts, which set the minimum baseline for all states. However, for some categories of employees, the California Labor Code protections can be preempted by federal laws- meaning the federal law supersedes the California law. Federal Gear-and-Gavel_blackpreemption of California laws almost always translates into fewer protections for employees.

Two federal regulatory schemes in particular contain preemption clauses: the Federal Aviation Administration Authorization Act of 1994 (FAAAA), dealing with motor carriers (the trucking industry), and the Airline Deregulation Act of 1978 (ADA), dealing with the air carriers. Both laws bar the application of California laws “relating to the rates, routes, or services” of any air or motor carrier.

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The Law Regarding “On-Duty” Meal Periods in California

What is an on-duty meal period?

An on-duty meal period is one in which the employee is not relieved of all duties. In California, on-duty meal periods are only legal under certain narrow circumstances. On-duty meal periods are only legal if:

  1. The nature of the work prevents an employee from being relieved of all duty.
  2. The employer and the employee agree to on-duty meal periods in writing.
  3. The meal period is paid.
  4. The agreement to waive the meal period can be revoked at any time in writing by the employee.

Meal Period Regulations in California

Gear-and-Gavel_goldCalifornia employers are generally required to provide an unpaid, off-duty meal period of at least 30 uninterrupted minutes to its non-exempt employees for every five hours of work. During these meal periods, employees must be relieved of all duties and employers must relinquish control over their activities. Employers may not impede or discourage employees from taking their breaks. See Brinker v. Superior Court (2012) 53 Cal.4th 1004; California Labor Code §226.7; 8 Cal. Code Regs. §11040. If an employee is not afforded a 30-minute uninterrupted meal break for every five hours worked, the employer must compensate the employee for one additional hour of pay for each workday that the meal break is missed. California Labor Code §226.7.

Sometimes, in an attempt to circumvent this law, employers ask employees to sign forms agreeing to take “on-duty” meal periods. However, on-duty meal periods are permissible only under very limited circumstances, as described above.

Under this narrow exception to the general rule that employers must provide off-duty meal periods, an employer who opts to implement on-duty meal periods carries the burden of establishing that the facts justify an on-duty meal period. Abdullah v. U.S. Sec. Assocs., 731 F.3d 952, 961 (9th Cir. Cal. 2013); see also Dynabursky v. AlliedBarton Sec. Servs. LP, 2014 U.S. Dist. LEXIS 36915, 11-12 (C.D. Cal. Jan. 29, 2014). Because on-duty meal periods are limited alternatives to the off-duty meal requirement, various factors are considered when analyzing employer-mandated on-duty meal periods. If an employer has a qualified representative who can perform the duties, the on-duty meal exception may not apply. Dynabursky v. AlliedBarton Sec. Servs. LP, 2014 U.S. Dist. LEXIS 36915, 11-12 (C.D. Cal. Jan. 29, 2014) (citations omitted). However, if a position calls for an employee to be on duty at all times and that employee is the sole employee of a particular employer, the exception may apply.

Hunter Pyle Law recently represented a client whose employer had a blanket policy mandating that all dispatchers agree to “on-duty” meal breaks. The employer required our client to sign an on-duty meal period agreement despite the fact that she worked with one to two other dispatchers at all times. The other dispatchers could have relieved our client of her duties. Our firm was able to settle this case before filing a lawsuit on favorable terms on the grounds that the employer could not meet its burden in demonstrating that the on-duty meal period exception was justifiable.

If you have questions about your meal periods, on-duty meal agreements, or would like to speak with an experienced wage and hour attorney, please contact Hunter Pyle Law at 510.444.4400, or email us at ttambling@hunterpylelaw.com, for a free consultation.

On-Duty Meal and Rest Breaks: Workers May Proceed In Class Action Even If Some Got Breaks

The recently published decision in Faulkinbury v. Boyd & Associates, G041702 (Cal.App.4th May 10, 2013) (Faulkinbury II) clarified several important issues in wage and hour class actions.  First, the court held that a trial court must certify a class where an employer requires all employees to sign meal-break waivers-evenGear-and-Gavel_dark-blue when some of the employees are able to take off-duty meal breaks.  Second, the court held that the lack of a uniform rest break policy may create a common issue that is sufficient for class certification.  Third, the court held that an overtime policy that fails to include bonuses and other allowances in calculating the overtime rate of pay presents common questions suitable for class treatment.
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