FMCSA Won't Preempt California CMV Rest and Meal Break Rules

The Federal Motor Carrier Safety Administration has rejected a July 2008 petition filed on behalf of 11 motor carriers asking the agency to declare that the federal hours of service rules preempt California laws and rules requiring transportation employers to give their commercial vehicle drivers meal and rest breaks during the work day. FMCSA said the petition filed by James H. Hanson of the law firm Scopelitis, Garvin, Light, Hanson & Feary, P.C., did not satisfy the threshold requirement for preemption under 49 U.S.C. 31141(c) because the California provisions are not "laws and regulations on commercial motor vehicle safety," but rather laws and regulations applied generally to California employers.

The petition was filed on behalf of Affinity Logistics Corp.; Cardinal Logistics Management Corp.; C.R. England, Inc.; Diakon Logistics (Delaware), Inc.; Estenson Logistics, LLC; McLane Company, Inc.; McLane/Suneast, Inc.; Penske Logistics, LLC; Penske Truck Leasing Co., L.P.; Trimac Transportation Services (Western), Inc.; and Velocity Express, Inc., according to the agency's Federal Register notice.

It sought preemption of Section 512, Meal periods, of the California Labor Code, which says 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; and also 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.

Within Title 8 (Industrial Relations) of the California Code of Regulations is Section 11090(12), Rest Periods, which says, "Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hour worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3\1/2\) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

"If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hours of pay at the employer's regular rate of compensation for each workday that the rest period is not provided."

The petitioners argued they should be free to schedule drivers to work and drivers should be free to choose to work as much as they desire in accordance with the HOS Regulations, without regard for individual state requirements, as long as the driver is otherwise able to operate the equipment safely. The Meal and Rest Break Rules are inconsistent with the hours of service rule, they said.

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