While employers continue to await an important meal period decision from the California Supreme Court, California has enacted new exemptions to its meal period requirements. Employers in certain industries now may exempt some employees from meal period requirements through the collective bargaining process. The new law became effective on January 1, 2011.
Assembly Bill 569 amended California Labor Code section 512 to provide an exemption from its meal period requirements for employees in the construction industry, commercial drivers, employees in the security services industry employed as security officers, and employees of electrical and gas companies and publicly-owned utilities if such employees are covered by a valid collective bargaining agreement. The collective bargaining agreement also must expressly provide for the wages, hours, and working conditions of employees, expressly provide for meal periods for those employees, establish final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than California’s minimum wage.
The law affords a complete exemption from California’s meal period requirements for covered employers. It means that employers and their employee representatives may negotiate any form of meal periods—independent of state law—under collective bargaining agreements meeting the requirements. The legislation does not define whether the “premium wage rates” for overtime are the overtime rates specified by California law, or whether “overtime hours” are as defined by state law or the agreement. However, past interpretations of the state’s collective bargaining exemption from daily overtime requirements deferred to the collective bargaining agreement on those points.
Section 512 already provides collective bargaining exemptions from meal period requirements for certain employers in the wholesale baking, motion picture, and broadcasting industries. For several years, some of the industries covered by AB 569 sought exemptions for their industries. Former Governor Arnold Schwarzenegger signed this bill, despite previously vetoing bills covering specific industries on the ground that he favored comprehensive reform rather than piecemeal efforts.
In part, AB 569 overturns the California Court of Appeal’s 2006 decision in Bearden v. U.S. Borax. That case concerned a meal period exemption in Industrial Welfare Commission (“IWC”) Wage Order No. 16, which covers certain on-site occupations in the construction, drilling, logging, and mining industries. The wage order provided a complete exemption from the order’s meal period requirements. The Bearden court invalidated this provision on the ground that it conflicted with section 512, which did not provide exemptions for the industries covered by the wage order. The court held that the Labor Code authorizes the IWC to enact meal period requirements only as consistent with section 512. AB 569 restores a collective bargaining exemption for certain construction industry employers.
AB 569 is not comprehensive reform or clarification. In the bill, the legislature expressed its intent that the changes “do not affect the nature or scope of the law related to meal periods, including the timing of commencement of a meal period, for employees or employers not specifically covered. . . .”
On a broader issue, Brinker Restaurant Corp. v. Superior Court remains pending before the California Supreme Court. Among other significant issues, a decision in that case is expected to clarify whether an employer’s obligation to provide a meal period means the opportunity simply must be made available, or whether an employer must ensure that an employee actually takes a meal period. The court granted review in this case in October 2008. While the case is fully briefed, no hearing date has been set.