Many of our employees are commercial truck drivers whose hours are regulated under CPUC and DOT rules. Do we need to provide meal breaks or make sure that these employees take meal breaks? CPUC and DOT rules regulate the number of hours that a driver can work per day, but are we still bound by our meal break obligations under the Labor Code and Wage Orders? —Lance T., HR Manager in Fresno
There are actually two questions here, one specific to the trucking industry and the other applicable to all employers.
Briefly, although truck drivers regulated by the California Public Utilities Commission (CPUC) or the U.S. Department of Transportation (DOT) are exempt from overtime under the state’s Wage Orders, the exemption does not extend to meal period requirements.
The question of what an employer—and this goes for all employers—must do to satisfy the state Labor Code and Wage Orders requirement to provide meal periods currently has no clear answer because there are conflicting court decisions that only the California Supreme Court can resolve.
Meal Breaks for Truck Drivers
First, let’s further discuss whether truck drivers are exempt from the meal break requirements. Labor Code Section 512(a) states that: “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than [30] minutes.” Section 512 subsections (c) and (d) list special meal period rules for employees working in the wholesale baking industry or in the motion picture or broadcasting industry who are covered by a collective bargaining agreement. No similar exemption exists for employees working in the trucking industry; thus that industry’s employers are subject to Section 512(a) and must provide truck drivers with one 30-minute meal period for each work period of more than five hours a day.
A California appeals court decision in 2005 also discusses meal periods for truck drivers. In Cicairos v. Summit Logistics, Inc., a warehousing company whose employees delivered groceries and perishable goods to supermarkets argued that the overtime exemption for drivers whose hours of service are regulated by the CPUC or the DOT meant that they were not only exempt from overtime but also from all of the Wage Orders’ provisions, including the meal period requirement. The court rejected this argument, finding that the motor carrier exemption applies only to overtime, and therefore truck drivers are entitled to the meal period protections in the Labor Code and the Wage Orders.1
Requirement to ‘Provide’
The reader also asked, “Do we need to provide meal breaks or make sure that these employees take meal breaks?” This is a very good question and one that is subject to a great deal of controversy right now. In the Cicairos decision, the appeals court found that employers have a duty to ensure that workers are relieved of all duties during meal periods. The court further stated that an employer could not merely assume that meal periods were taken.
However, two federal district court decisions that came down in California after Cicairos did not follow its ruling that employers have a duty to ensure that workers are relieved of all work during meal periods. For example, in White v. Starbucks, the court found that an employer satisfies the requirement to provide a meal period when the employer “offers” meal breaks.2 The employee must only be provided the opportunity to freely take his or her meal period—an employer does not have to schedule or force meal periods. For a violation to be found, the “employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them, regardless of the reason.”
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However, the federal district court took a somewhatdifferent position in Perez v. Safety Kleen Systems, Inc. In this case, customer service representatives’ responsibilities primarily involved driving trucks and visiting the company’s customers. The court interpreted the Wage Orders to require an employer to do “something” to provide a meal period and not merely assume such breaks are taken.3 The court reasoned that an employer must provide the opportunity for employees to be relieved of all duty during a 30-minute period.
What to Do While Waiting for the Supreme Court
As these cases demonstrate, the question of what “provide a meal period” means under California law is somewhat in question. Until the California Supreme Court resolves this issue, employers should provide all employees with duty-free meal periods and do all they can to ensure that those employees do in fact take those breaks.
Lloyd W. Aubry, Jr., Esq., former California labor commissioner, is of counsel at the San Francisco office of the law firm Morrison & Foerster, LLP.
1Cicairos v. Summit Logistics, Inc., Calif. Court of Appeals (Dist. 3) No. C048133, 2005
2White v. Starbucks Corp., U.S. District Court (N.D. Cal.) No. C06-3861 VRW, 2007
3Perez v. Safety Kleen Systems, Inc., U.S. District Court (N.D. Cal.) No. C05-5338 PJH, 2007