Meal periods: impact of SB 1208 on an existing collective bargaining agreement

STATE OF CALIFORNIA PRAY DAVIS, governor

DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
Santa Rosa Legal Section
50 D Street, Suite 360
Santa Rosa, CA 95404
(707) 676-6788

H. THOMAS CADELL, Of Counsel

                                       December 9,   2002

Carrie E. Bushman, Esq.
Cook Brown, LLP
555 Capitol Mall, Suite 425
Sacramento, CA 95814-4503

      Re:        Impact Of SB 1208 On Existing CBA (00238)

Dear Ms. Bushman:

 Your letter of October 18, 2002, addressed to Chief Counsel

Anne Stevason regarding the above-referenced subject has been
referred to this office for response.

      Specifically, you ask:

      1.        What impact, if any, will SB 1208 have on existing
                collective bargaining agreements that do not provide for
                a meal period?
      2.        May the parties to such a collective bargaining agreement
                wait until their current contract expires to negotiate
                for the provision of a meal period pursuant to Labor Code
                § 512?
      3.        What will the enforcement policy of DLSE be as to those
                employers who wait until their current CBAs expire to
                negotiate for the provision of a meal period pursuant to
                Labor Code § 512?

  Labor Code § 514 was amended effective January 1, 2002, to

repeal the statutory exemption from the meal period requirement in
the case of workers covered by a collective bargaining agreement
which had been placed in the law in 2000. The Legislature adopted
a statement that this amendment was declarative of existing law and
shall not be deemed to alter, modify or otherwise affect any
provision of any IWC Order. IWC Orders 1-15 and 17 do not provide,
and never have provided, a CBA opt-out for meal period require­
ments. However, Order 16 does contain such an opt-out.

     Labor Code § 512 provides:

     "Sections 510 and 511 do not apply to an employee covered by
     a valid collective bargaining agreement if the agreement
     expressly provides for the wages, hours of work, and working
     conditions of the employees, and if the agreement provides
     premium wage rates for all overtime hours worked and a regular
     hourly rate of pay for those employees of not less than 30
     percent more than the state minimum wage."

 Labor Code §§ 510 and 511 deal with the overtime requirements

in California. Neither of these sections address the question of
meal periods requirements. The meal period requirement is
contained at Labor Code § 512:

  "(a) 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, except that if
 the total work period per day of the employee is no more than
 six hours, the meal period may be waived by mutual consent of
 both the employer and employee. An employer may not employ an
 employee for a work period of more than 10 hours per day
 without providing the employee with a second meal period of
 not less than 30 minutes, except that if the total hours
 worked is no more than 12 hours, the second meal period may be
 waived by mutual consent of the employer and the employee only
 if the first meal period was not waived.
 "(b) Notwithstanding subdivision (a), the Industrial Welfare
 Commission may adopt a working condition order permitting a
 meal period to commence after six hours of work if the
 commission determines that the order is consistent with the
 health and welfare of the affected employees."

 You state in your letter that your client had implemented work

schedules containing requisite meal periods as required by Labor
Code § 512. The union filed a grievance claiming that the
implementation of the meal period violates its collective
bargaining agreement with the company.

 As you will note, there is no "opt-out" for employers subject

to collective bargaining. In other words, a collective bargaining
agreement may not be used as a tool to waive the requirement 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. The IWC Orders have never
allowed an opt-out from the requirements of a meal period. Thus,
the provisions of Section 512 are not a departure from former law.

 In the past, the IWC Orders allowed the Labor Commissioner

the right to investigate and determine if an on-duty meal period
could be allowed; however, that provision of the Orders was removed
in 2000.

 The requirement that employees in the State of California

receive a meal period is what is commonly known as a minimum state
standard. Another example of a minimum state standard is the
California minimum wage which, of course, is higher than the
federal minimum wage.

 As the courts have explained, "Congress's main goal in

enacting the NLRA was to establish an equitable bargaining process,
not to establish any particular substantive terms to which the
parties must agree. Metropolitan Life v. Mass., 471 U.S. at 753,
105 S.Ct. at 2396. State laws which set minimum safety standards
do not interfere with the bargaining process itself. To preempt
such laws would 'allow unions and employers to bargain for terms of
employment that state law forbids employers to establish
unilaterally.' Metropolitan Life v. Mass., 471 U.S. at 755, 105
S.Ct. at 2398. Such an outcome was obviously not intended by the
NLRA."

  In Metropolitan Life v. Mass., supra, the Supreme Court

considered the legislative history of the NLRA and made the
following statement: "Most significantly, there is no suggestion in
the legislative history of the Act that Congress intended to
disturb the myriad state laws then in existence that set minimum
labor standards, but were unrelated in any way to the processes of
bargaining or self-organization. To the contrary, we believe that
Congress developed the framework for self-organization and
collective bargaining of the NLRA within the larger body of state
law promoting public health and safety. The States traditionally
have had great latitude under their police power to legislate as
'to the protection of the lives, limbs, health, comfort, and quiet
of all persons.' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 62,
21 L.Ed. 394 (1873), quoting Thorpe v. Rutland & Burlington R. Co.,
27 Vt. 140, 149 (1855). 'States possess broad authority under
their police powers to regulate the employment relationship to
protect workers within the State. Child labor laws, minimum and
other wage laws, laws affecting occupational health and safety . . .
are only a few examples.' De Canas v. Bica, 424 U.S. 351, 356, 96
S.Ct. 933, 937, 47 L.Ed.2d 43 (1976)." 471 U.S. at 756, 105 S.Ct.
at 2398 (emphasis added).

 Thus, the U.S. Supreme Court recognized that Congress did not

intend to preempt all local regulations that touch or concern the
employment relationship. Minimum state standards, such as meal
period requirements are not inconsistent with the general legis­
lative goals of the NLRA.

 Thus, to characterize your client's position as one of a

"classic Catch 22" is, we think, misplaced. Your client had no
more right to implement a work schedule which did not meet the
requirements of Labor Code § 512, than an employer would have the
right to implement a wage schedule arrived at through collective
bargaining which provided less than the California minimum wage.

We note that your letter indicated that an arbitration on the

union's grievance was scheduled for November 19th. Unfortunately,
we did not meet that deadline and we apologize. We feel, however,
that the material contained in this letter is pretty widely
disseminated and, consequently, are confident that your firm had
probably pointed the law out to the arbitrator.

 We would like to advise you and your client that there would

be no impediment to negotiations between the union and your client
concerning implementation of "on-duty" meal periods if it can be
shown that the nature of the work prevents the employees from
having a full 30-minute meal period. There is, of course, language
in the Orders which allows an employee to waive the meal period by
accepting an on-duty meal period if all of the required
circumstances exist. California law has always allowed a union, as
the collective bargaining representative, to act on behalf of its
members where such waiver is allowed. (Porter v. Quillin (1981) 123
Cal.App.3d 869) However, as is the case where there is no CBA, it
must be established by objective criteria, that the conditions for
the on-duty meal period are met before the waiver is allowed. The
parties may not agree to the on-duty meal period simply because it
is desired or helpful.

 Thank you for your continued interest in California labor law.

Yours truly,

H. THOMAS CADELL, JR
Attorney for the Labor Commissioner

c.c. Arthur Lujan, State Labor Commissioner
Tom Grogan, Chief Deputy Labor Commissioner
Anne Stevason, Chief Counsel
Assistant Labor Commissioners
Regional Managers