Employers in California and Washington are required to obey stricter meal and rest break rules than is required by the federal government.
FMCSA is trying to gather waiver requests from the public so they could reinstate California’s and Washington’s meal and rest break rules as applied to regulated commercial drivers.
Federal hours-of-service rules require that drivers only be provided a 30-minute break after eight hours of driving time (instead of on-duty time) and allow an on-duty/not driving period to qualify as the required break.
However, California and Washington have stricter state requirements.
California’s Labor Code mandates:
- Employers to provide non-exempt employees a 30-minute meal break for every 5 hours they work.
- Employers to provide 10-minute rest periods for non-exempt employees for each 4-hour work period.
- To the extent possible, these breaks are to be taken in the middle of each 4-hour period.
- Prohibits employers from requiring an employee to work during a mandated meal or rest break and provides for additional pay as a remedy for violating that prohibition.
Washington’s Administrative Code (WAC) requires:
- Employers to provide employees a meal period of at least 30 minutes that commences after the second hour and before the fifth hour after the shift commences.
- Employers to provide a 10-minute rest period “for each four hours of working time” and must occur no later than the end of the third working hour.
- The rest period must be scheduled as near as possible to the midpoint of the 4 hours of working time, and no employee may be required to work more than 3 consecutive hours without a rest period.
In a notice published to the Federal Register, FMCSA explained, “the Agency will consider petitions for waiver of its December 21, 2018, and January 13, 2020, decisions preempting the State of California’s Meal and Rest Break (MRB) rules for certain drivers of property- and passenger-carrying commercial motor vehicles (CMVs) and its November 17, 2020, decision preempting the State of Washington’s MRB rules for certain drivers of property-carrying CMVs.”
Let’s look at what this means.
Why is FMCSA Seeking Waiver Requests?
Under the Motor Carrier Safety Act of 1984, states are prohibited from enforcing a law or regulation on commercial motor vehicle safety that the transportation secretary has determined to be preempted by existing federal rules.
Labor laws in California and Washington call for worker breaks beyond those specified by federal HOS rules.
In 2018 and 2020, FMCSA ruled that California’s and Washington’s meal and rest break rules, as applied to regulated drivers, preempted federal rules that grants the Secretary of Transportation the authority to prohibit states from enforcing laws that interfere with the federal motor carrier safety regime.
Further, the agency determined the meal and rest break rules provide no additional safety benefit, are incompatible with federal HOS rules, and would overly burden interstate commerce.
However, according to the new notice, FMCSA may grant a waiver of a preemption decision.
In opposition, the ATA responded that there is potential for “a confusing patchwork of regulations” across the U.S. as this opens the doors for other states to make more strict meal and rest break requirements, which FMCSA would likely allow waivers for, as well.
How to petition for a waiver
If you are looking to submit a petition for waiver, it must address at least the following issues:
- Whether and to what extent enforcement of a state’s meal and rest break laws with respect to intrastate property-carrying truck drivers has impacted the health and safety of drivers.
- Whether enforcement of state meal and rest break laws as applied to interstate property-carrying truck drivers will exacerbate the existing truck parking shortages and result in more trucks parking on the side of the road, whether any such effect will burden interstate commerce or create additional dangers to drivers and the public, and whether the applicant intends to take any actions to mitigate or address any such effect.
- Whether enforcement of a state’s meal and rest break laws as applied to interstate property-carrying truck drivers will dissuade carriers from operating in that state, whether any such effect will weaken the resiliency of the national supply chain, and whether the applicant intends to take any actions to mitigate or address any such effect.
While petitions for waiver may be submitted at any time, FMCSA requests that any petitions for waiver of the above referenced preemption determinations be submitted by November 13, 2023.
FMCSA will publish any petitions for waiver that it receives and will provide an opportunity for public comment with respect to the petitions.