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You Were Looking For A Meal Ticket? (UPDATE AT END)

You're on the edge of your seat? You're sitting down?

OK, now you can read on.

After a request from Governor Arnold Schwarzenegger, the California Division of Labor Standards Enforcement issued an emergency regulation drastically altering the agency's enforcement policy concerning employee meal and rest period requirements under California wage and hour laws. First issued on December 10, 2004, the new regulation became effective on December 20, 2004, after receiving approval of the California Office of Administrative Law.

The new regulation affects existing law three ways. Most significantly, the regulation clarifies that the one hour's pay owed by an employer to an employee who works five or more hours without an off-duty, nonworking meal period of at least 30 minutes is a penalty, not wages. This clarification means that claims for missed meal or break periods must be brought within a year or they will be barred by the statute of limitations.

Second, employees filing Labor Code claims against their employers may not recover attorneys fees, costs, interest or waiting-time penalties. The change, which is retroactive, should significantly reduce the ability of plaintiffs’ lawyers to recover excessive monetary awards in the many employment class actions now pending in California courts. How's that for an ex post facto law?

The new regulation describes how employers can satisfy the meal period requirement.

Count 'em, there are four ways: (1) making the meal period available to the employee; (2) affording the employee the opportunity to take the meal period; (3) posting the applicable order of the Industrial Welfare Commission (i.e., the Wage Order); and, (4) maintaining accurate time records. These options represent a significant change from the DLSE's prior interpretation that imposed a penalty of an hour's pay per day whenever the employee missed a meal period, even when done at the employee’s request.

Under this new regulation, employers can demonstrate compliance with the meal period requirements by having employees sign a notice and acknowledgment of understanding which advises them of their meal period rights.

The third change clarifies that employees scheduled to work longer than five hours may be permitted to take a meal period any time prior to the sixth hour of work without violating the law. This change affords employers and employees greater flexibility to schedule meal periods.

The new regulation will not change the employer's obligation to provide meal periods to its employees, but it provides much-needed guidance and clarifies the penalties for violating the meal period rules.

Ok, that's it in a nutshell. If you want more, consult your lawyer.

I knew you were dying to know.

12/21/04 UPDATE:

You knew it was too good to be true.

Due to heavy lobbying by organized labor and plaintiffs'-side employment lawyers, the Schwarzenegger administration withdrew proposed labor rules that critics complained would have made it harder for workers to take lunch breaks and collect back wages. The administration acted just as the rules were about to be put into effect on an emergency basis by the Office of Administrative Law, an agency that vets regulations to ensure that they're needed and correctly drafted.

The rules would have changed the criteria people follow to file complaints with state regulators about being deprived of proper lunch breaks on the job. As it is now, an employer has to give an employee a 30-minute break after the worker has put in five hours. The rules would have in effect stretched that to six hours. The proposed rules also would have eliminated employees' ability to file claims about incidents more than a year old. In addition, it would have become harder for workers to collect the attorneys' fees, costs, interest, waiting time penalties and large monetary awards that all had been bolstered in a law signed by former Governor Gray Davis in 2000.

By moving on an emergency basis, the administration would have had the rules go into effect before public hearings on them were scheduled. Now, hearings will be held in San Francisco, Los Angeles and Fresno over the next 120 days and then the Labor and Workforce Development Agency will decide whether to put the rules on the books.

We'll keep you posted.


Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, December 20, 2004 at 19:16 Comments Closed (1) |
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