[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Notices]
[Pages 79204-79206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30646]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
Petition for Preemption of California Regulations on Meal Breaks
and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for
Failure To Meet Threshold Requirement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), USDOT.
ACTION: Notice of rejection of petition for preemption.
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SUMMARY: FMCSA announces the rejection of a petition for preemption of
California laws and regulations requiring employers to provide
employees with meal and rest breaks. The petition does not satisfy the
threshold requirement for preemption under 49 U.S.C. 31141(c) because
the provisions at issue are not ``laws and regulations on commercial
motor vehicle safety,'' but rather laws and regulations applied
generally to California employers.
DATES: Effective Date: This decision is effective December 23, 2008.
FOR FURTHER INFORMATION CONTACT: Mr. Charles Medalen, Attorney-Advisor,
FMCSA Office of Chief Counsel. Telephone (202) 493-0349.
Background
On July 3, 2008, James H. Hanson, Esq., Scopelitis, Garvin, Light,
Hanson & Feary, P.C., petitioned the Federal Motor Carrier Safety
Administration (FMCSA) on behalf of a group of motor carriers \1\ to
preempt the California statutes and rules requiring transportation
industry employers to give their employees meal and rest breaks during
the work day, as applied to drivers of commercial motor vehicles (CMVs)
subject to the FMCSA hours-of-service (HOS) regulations. For the
reasons set forth below, FMCSA rejects the petition.
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\1\ 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.
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California Law
Section 512, Meal periods, of the California Labor Code reads in
part as follows:
``(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.''
Section 11090 of Article 9 (Transport Industry) of Group 2
(Industry and Occupation Orders) of Chapter 5 (Industrial Welfare
Commission) of Division 1 (Department of Industrial Relations) of Title
8 (Industrial Relations) of the California Code of Regulations, is
entitled ``Order Regulating Wages, Hours, and Working Conditions in the
Transportation Industry'' [hereafter: ``8 CCR Sec. 11090,'' ``Section
11090'', or ``Sec. 11090'' \2\].
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\2\ California Industrial Welfare Commission Order No. 9-2001 is
identical to 8 CCR Sec. 11090.
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Section 11090(11). Meal Periods, reads as follows:
``(A) No employer shall employ any person for a work period of
more than five (5) hours without a meal period of not less than 30
minutes, except that when a work period of not more than six (6)
hours will complete the day's work the meal period may be waived by
mutual consent of the employer and employee.
``(B) An employer may not employ an employee for a work period
of more than ten (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 employee
only if the first meal period was not waived.
``(C) Unless the employee is relieved of all duty during a 30
minute meal period, the meal period shall be considered an `on duty'
meal period and counted as time worked. An `on duty' meal period
shall be permitted only when the nature of the work prevents an
employee from being relieved of all duty and when by written
agreement between the parties an on-the-job paid meal period is
agreed to. The written agreement shall pay the employee one (1) hour
of pay at the employee's regular rate of compensation for each
workday that the meal period is not provided.
``(D) If an employer fails to provide an employee a meal period
in accordance with the applicable provisions of this order, the
employer shall pay the employee one (1) hour of pay at the
employee's regular rate of compensation for each workday that the
meal period is not provided.
``(E) In all places of employment where employees are required
to eat on the premises, a suitable place for that purpose shall be
designated.''
Section 11090(12). Rest Periods, reads as follows:
``(A) 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.
``(B) 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.''
[[Page 79205]]
Although Sec. 11090(3)(L) provides that ``[t]he provisions of this
section are not applicable to employees whose hours of service are
regulated by: (1) The United States Department of Transportation, Code
of Federal Regulations, Title 49, sections 395.1 to 395.13, Hours of
Service of Drivers,'' the California courts have interpreted the word
``section'' to refer only to Sec. 11090(3), which regulates ``hours
and days of work,'' not to all of Sec. 11090, including meal and rest
breaks in Sec. 11090(11) and (12). Cicairos v. Summit Logistics, Inc.,
133 Cal App.4th 949 (2006).
Federal Law
FMCSA is authorized by 49 U.S.C. 31141 to preempt State law. For
purposes of this petition, the relevant portions of that statute read
as follows:
``(a) Preemption after decision.--A State may not enforce a
State law or regulation on commercial motor vehicle safety that the
Secretary of Transportation decides under this section may not be
enforced. * * *
``(c) Review and decisions by the secretary.--
``(1) Review.--The Secretary shall review State laws and
regulations on commercial motor vehicle safety. The Secretary shall
decide whether the State law or regulation--
``(A) Has the same effect as a regulation prescribed by the
Secretary under section 31136;
``(B) Is less stringent than such regulation; or
``(C) Is additional to or more stringent than such regulation. *
* *
``(4) Additional or more stringent regulations.--If the
Secretary decides a State law or regulation is additional to or more
stringent than a regulation prescribed by the Secretary under
section 31136 of this title, the State law or regulation may be
enforced unless the Secretary also decides that--
``(A) The State law or regulation has no safety benefit;
``(B) The State law or regulation is incompatible with the
regulation prescribed by the Secretary; or
``(C) Enforcement of the State law or regulation would cause an
unreasonable burden on interstate commerce.''
Petitioners' Argument
Petitioners summarized the effect of the California meal and rest
break rules as follows:
``Motor carrier operations are carefully timed to take advantage
of the flexibility available under the HOS Regulations and, in some
instances, to take advantage of the full complement of driving hours
provided as well. Some carriers schedule driver meals to take place
at carrier facilities once the driver has delivered a load so that
unloading, sorting, and loading of outbound shipments can take place
during the break. The Meal and Rest Break Rules, by mandating when
meals breaks must be taken, interfere with such arrangements,
meaning that the driver will miss the inbound appointment, which in
turn has the domino effect of delaying outbound operations. * * *
[A]s a practical matter, since the driver must be fully relieved of
duty during the break, breaks will take much longer as the driver
will be required to find a place to pull over and must actually park
and shut down the equipment before the break can start. Of course,
this will require that the driver return to the equipment, start it,
and get back on the road as well. Thus, as a practical matter, the
Meal and Rest Break Rules impose a much greater burden on the driver
than a simple reading of the rules * * * would at first suggest, and
the burden is exacerbated in congested areas'' [pages 10-11].
``In the absence of the Meal and Rest Break Rules, a driver
could spend three non-driving hours engaged in [other] activities
and could still drive for 11 hours under the HOS Regulations. In
California, due to the Meal and Rest Break Rules, however, the
driver loses 1\1/2\ hours (two 30-minute meal breaks and three 10-
minute rest breaks) over the course of the permitted 14-hour on-duty
period in which the driver can neither drive nor perform on-duty
driving tasks. The practical effect is that a driver in California
has only 12\1/2\ hours of on-duty time after initially coming on
duty during which he/she can accumulate his/her 11 hours of driving
time, leaving only 1\1/2\ hours to perform any other duty non-
driving tasks that might naturally occur during the day'' [page 10].
``Applying the Meal and Rest Break Rules to drivers subject to
the HOS Regulations imposes limitations on a driver's time that are
different from and more stringent than the HOS Regulations because
the Meal and Rest Break Rules limit the amount of hours available to
a driver to complete driving duties after initially coming on-duty
to less than the 14 hours permitted by the HOS Regulations.
Moreover, the Meal and Rest Break Rules do not allow for the
flexibility provided by the HOS Regulations, further exacerbating
the effect of the limitations imposed by the Meal and Rest Break
Rules. This lack of flexibility not only hinders operations from a
scheduling standpoint, it also creates serious safety concerns.
Specifically, by imposing meal and rest breaks at set times, the
Meal and Rest Break Rules limit a driver's ability to take breaks
when they are actually needed. A driver subject only to the HOS
Regulations, on the other hand, is not subject to externally imposed
limitations and is instead able to take breaks when he or she deems
necessary'' [page 6].
In a supplement filed with FMCSA on October 2, 2008, petitioners
reiterated their position even more bluntly:
``Petitioners * * * argue * * * that they should be free to
schedule drivers to work and that 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 HOS
Regulations'' [page 4].
The July petition states that:
``The threshold for review under 49 U.S.C. 31141 is that the
state law or regulation be `on commercial motor vehicle safety.' * *
* Thus, the only logical/consistent interpretation of `on commercial
motor vehicle safety' under 49 U.S.C. 31141 is to interpret it as
applying to state laws or regulations that regulate or affect
subject matter within the FMCSA's authority under 49 U.S.C. 31136,
i.e., any state law or regulation that regulates subject matter
within the FMCSA's authority under 49 U.S.C. 31136 is `on commercial
motor vehicle safety' for purposes of 49 U.S.C. 31141.
``Conceivably, it could be argued that the Meal and Rest Break
rules are not `on commercial motor vehicle safety' because they are
rules of general applicability and their application is not limited
to CMVs. When considered from a practical perspective, however,
there can be no question that the Meal and Rest Break Rules are
exactly the type of rules that fall within the scope of 49 U.S.C.
31141. As a practical matter, interpreting the statute to apply only
to state laws or rules applicable solely to CMVs would open the door
to state regulation of CMV safety under the guise of generally
applicable state laws or rules'' [page 21].
Decision
Petitioners themselves acknowledge the decisive argument against
their own position. The California meal break statute [Cal. Labor Code
Sec. 512] and the corresponding rules in Sec. 11090(11)-(12) are not
regulations ``on commercial motor vehicle safety'' and thus do not meet
the threshold requirement for consideration under 49 U.S.C. 31141.\3\
The State rules apply to the entire ``transportation industry,'' which
Sec. 11090(2)(N) defines as ``any industry, business, or establishment
operated for the purpose of conveying persons or property from one
place to another whether by rail, highway, air, or water, and all
operations and services in connection therewith; and also includes
storing or warehousing of goods or property, and the repairing,
parking, rental, maintenance, or cleaning of vehicles.'' The meal and
rest break rules thus cover far more than the trucking industry.
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\3\ Petitioners claim that by ``imposing meal and rest breaks at
set times,'' the California rules create safety concerns by
interfering with a driver's ability to take breaks when actually
needed [page 6]. In fact, the State rules allow the first meal break
at any point during the first five hours on duty, and the second
within the next five hours. Five-hour windows hardly constitute
``set times.'' Petitioners provide no evidence that these breaks
undermine safety.
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In fact, the meal and rest break rules are not even unique to
transportation. California imposes virtually the same rules on the
``manufacturing industry'' [8 CCR Sec. 11010(11)-(12)]; the ``personal
service industry'' [8 CCR Sec. 11020(11)-(12)]; the ``canning,
freezing and
[[Page 79206]]
preserving industry'' [8 CCR Sec. 11030(11)-(12)]; the ``professional,
technical, clerical, and similar occupations'' [8 CCR Sec. 11040(11)-
(12)]; the ``public housekeeping industry'' [8 CCR Sec. 11050(11)-
(12)]; the ``laundry, linen supply, dry cleaning, and dyeing industry''
[8 CCR Sec. 11060(11)-(12)]; the ``mercantile industry'' [8 CCR Sec.
11070(11)-(12)]; ``industries handling products after harvest'' [8 CCR
Sec. 11080(11)-(12)]; the ``amusement and recreation industry'' [8 CCR
Sec. 11100(11)-(12)]; the ``broadcasting industry'' [8 CCR Sec.
11110(11)-(12)]; the ``motion picture industry'' [8 CCR Sec.
11120(11)-(12)]; ``industries preparing agricultural products for
market, on the farm'' [8 CCR Sec. 11130(11)-(12)]; ``agricultural
occupations'' [8 CCR Sec. 11140(11)-(12)]; ``household occupations''
[8 CCR Sec. 11150(11)-(12)]; ``certain on-site occupations in the
construction, drilling, logging and mining industries'' [8 CCR Sec.
11160(10)-(11)]; and ``miscellaneous employees'' [8 CCR Sec.
11170(9)]. The meal and rest break rules for CMV drivers are simply one
part of California's comprehensive regulations governing wages, hours
and working conditions. Because these rules are in no sense regulations
``on commercial motor vehicle safety,'' they are not subject to
preemption under 49 U.S.C. 31141.
Recognizing this problem, petitioners expanded their argument to
claim that ``the FMCSA has power to preempt any state law or regulation
that regulates or affects any matters within the agency's broad
Congressional grant of authority'' (page 22). There is nothing in the
statutory language or legislative history of 49 U.S.C. 31141 that would
justify reading into it the authority to preempt State laws
``affecting'' CMV safety. Further, if the Agency were to take such a
position, any number of State laws would be subject to challenge. For
example, it is conceivable that high State taxes and emission controls
could affect a motor carrier's financial ability to maintain compliance
with the Federal Motor Carrier Safety Regulations (FMCSRs); however, it
is doubtful that the Agency would be viewed as thus having the
authority to preempt State tax or environmental laws.
Yet petitioners make the equally far-reaching argument that FMCSA
can and should preempt the California statutes and rules on wages,
hours, and working conditions which prevent carriers from maximizing
their employees' driving and on-duty time. In fact, the FMCSRs have for
decades required carriers and drivers to comply with all of the laws,
ordinances, and regulations of the jurisdiction where they operate [49
CFR 392.2].
FMCSA cannot entertain this petition. Because the California meal
and rest break rules are not ``regulations on commercial motor vehicle
safety,'' the Agency has no authority to preempt them under 49 U.S.C.
31141. Furthermore, that statute does not allow the preemption of other
State or local regulations merely because they have some effect on CMV
operations.
Issued on: December 18, 2008.
David A. Hugel,
Deputy Administrator.
[FR Doc. E8-30646 Filed 12-23-08; 8:45 am]
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