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May 2005

CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT PROPOSES ADDITIONAL MODIFICATIONS TO PROPOSED MEAL AND REST PERIOD REGULATIONS

On May 9, 2005, the Division of Labor Standards Enforcement ("DLSE") proposed additional modifications to the text of the proposed meal and rest period regulations.  As you may recall, on December 10, 2004, the DLSE initially proposed its modified meal and rest period regulations as emergency regulations.  In apparent response to a number of complaints from a vocal opposition, the DLSE withdrew the emergency regulations on December 20, 2004 and opted instead to introduce permanent regulations using the regular rule-making process.  As part of this process, the DLSE held three hearings throughout February and March 2005 and collected comments on the proposed regulations.  As a result of these hearings, the DLSE has further modified the proposed regulations.

The Proposed Regulations As Further Modified

Notable aspects of the regulations as now modified by the DLSE include:

·     The definition of meal period, formerly quite lengthy, now simply refers to a meal period "as provided in Labor Code section 512(a)." 

·     Language requiring the employer to provide a place for a meal period if the employer requires the employees to eat on the premises has been deleted.

·     The "work period" definition is clarified to refer to the time period between when the employee starts and stops work for the day, not the time period between when the employee commences work and takes a meal period.

·     The regulations specifically exempt agricultural workers and certain workers in the baking industry (certain baking industry workers are already exempted under Labor Code section 512(c)).

·     The proposed new regulations delete the requirement that the employer make the meal period "available" to the employee, but require the employer to affirmatively inform the employee, orally or in writing, of his or her right to take a meal period and afford him or her the opportunity to take it.

·     The proposed new regulations delete the requirement that the employer post the applicable Industrial Welfare Commission order. 

·     The employer is still required to keep accurate time records of meal periods.

·     Even if the employer does not inform the employee of the right to take a meal period, the employer may still establish, by a preponderance of the evidence, that a meal period was in fact actually made available to the employee and the employee was in fact actually afforded the opportunity to take the meal period. 

·     The proposed regulations clarify, with charts and examples, that if the work period is more than five hours but not more than six hours, the employer must provide a meal period between the fifth and sixth hour, unless waived.

·     The proposed regulations also clarify that if the employee's work period is more than 10 hours but less than 12 hours, the employer must provide a second meal period between the 10th and 12th hour, unless waived (the employee may only waive the second meal period if he or she did not waive the first meal period). 

·     The proposed regulations specify that an employer cannot retaliate against an employee for exercising his or her right to take a meal period.

The proposed regulations place a burden on the employer that the regulations as originally modified did not, i.e., to inform the employee, orally or in writing, of his or her right to take a meal period.  If this proposal survives, employers, to ensure compliance, will want to have written acknowledgement from employees of their understanding of their right to take a meal period. 

Next Steps

The DLSE will accept comments regarding the proposed changes to the regulations between May 10 and May 25, 2005.  Written comments must be submitted to the DLSE no later than 5:00 p.m. on May 25. 

For more information about these new developments in employment law, please contact any of Orrick, Herrington & Sutcliffe LLP's employment law partners listed below.

Michael Delikat (New York) 212-506-5230

D. Barclay Edmundson (Los Angeles) 213-612-2397

Lynne C. Hermle (Silicon Valley) 650-614-7422

Mark Howitson (Silicon Valley) 650-614-7643

Timothy J. Long (Sacramento) 916-329-7919 /(Los Angeles) 213.612.2404

Jill L. Rosenberg (New York) 212-506-5215

Ira Rosenstein (New York) 212-506-5228

Robert S. Shwarts (San Francisco) 415-773-5760

Gary R. Siniscalco (San Francisco) 415-773-5833

Julie A. Totten (Sacramento) 916-329-4908

Robert S. Whitman (New York) 212-506-5257