Labor Code section 512 prohibits employers from requiring an employee to work more than five hours per day without providing a meal period, or ten hours per day without providing a second meal period.

AB 569, signed by Governor Schwarzenegger on September 30, 2010, creates a potential exemption from these requirements for commercial drivers and employees in the utilities, security and construction industries, instead allowing them to negotiate mutually agreeable meal period rules through the collective bargaining process.

The new law defines a “commercial driver” for purposes of the exemption as “an employee who operates a vehicle described in Section 260 or 462 of, or subdivision (b) of Section 15210 of, the Vehicle Code.”

Security guards are also exempted from the meal period requirements of Labor Code section 512. The exclusion applies to “[a]n employee employed in the security services industry as a security officer who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, and who is employed by a private patrol operator registered pursuant to that chapter.”

The law similarly covers employees in a construction occupation, which includes work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, and repair, and any other similar or related occupation or trade. Finally, the law includes employees of electrical and gas corporations or local publicly owned electric utilities, as defined in Section 218 and 222 of the California Public Utilities Code.

Employees in these occupations/industries will fall within this new exemption if they meet the following requirements:

1. the employee is covered by a valid collective bargaining agreement;
2. his collective bargaining agreement expressly provides for wages, hours of work, working conditions, meal periods, final and binding arbitration of disputes concerning application of the CBA’s meal period provisions, and premium wage rates for all overtime hours worked; and
3. the employee’s regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate (currently $10.40/hour based on a minimum wage of $8.00/hour).  

Assuming AB 569 goes into effect, California employers engaged in collective bargaining negotiations will be empowered to negotiate meal periods that fit the particular needs, demands and realities of their industry. The new statute also potentially puts a powerful tool in the hands of many unionized employers who have been swept up in the wave of litigation brought by unionized employees who claim meal period violations despite receiving meal periods that are consistent with their collective bargaining agreements. We can expect further litigation over the extent to which this new law affects ongoing litigation or cases extending back before the law becomes effective.

This entry was written by Kevin Lilly and Gregory Wong.

Image credit: skodonnell