IR #2004-18
Monday, December 20, 2004

Dean Fryer

State Department of Industrial Relations moves to make meal and rest period rules permanent

SAN FRANCISCO - The California Division of Labor Standards Enforcement (DLSE), a division of the Department of Industrial Relations (DIR), is seeking to make permanent the proposed regulations it developed governing meal and rest periods for California workers. 

"We feel it is appropriate to move forward with permanent regulations rather than emergency regulations that may be in effect for only 120 days," said John Rea, acting director of DIR. "We also want to allow every Californian the opportunity to comment on these proposed regulations and this rulemaking track will provide them the ability to exercise that right if they choose." 

DIR today filed the proposed permanent regulations, which vary only slightly from the proposed emergency regulations filed on Dec. 10, 2004, with the Office of Administrative Law. The previous regulations, which would have been valid for only 120 days, were simultaneously rescinded in favor of the proposed permanent regulations.

The proposed regulations are designed to clarify sections of the Labor Code that were added in 2000, but were subject to considerable misinterpretation, resulting largely from conflicting administrative opinion letters previously issued by DLSE and also by changes in statutory language that now differs from the Industrial Welfare Commission (IWC) orders.

"We are proposing these regulations to interpret the statute for enforcement purposes," said Rea. "The proposals do not impact other issues designated by the Labor Code for IWC interpretation."

Without a clear definition to follow, both employees and employers are confused as to the requirements regarding meal periods. The consequences of this confusion are that employees are forced to take their meal periods during times they are not hungry so that employers can avoid the imposition of penalties and lawsuits. Thus, DLSE must take action to specify criteria to establish if an employer has met the statutory requirement of providing a meal period. These criteria are not intended to diminish in any way an employer's obligation to provide a meal period. Rather, these criteria are intended to offer clarity to both employees and employers on the issue of meal periods. 

Just as the previous proposal did, the proposed permanent regulations will alleviate any further confusion about penalties for failure to abide by the law.

Until now, DLSE had enforced a staff opinion letter that deemed the "one-hour of pay" (required as an amount paid by an employer to an employee for the employer's failure to abide by the law) to be wages, rather than a penalty. However, the history of Labor Code section 226.7 clearly indicates that the payment was meant to be a penalty. Also, supporting the penalty definition are state regulations, Title 22 of the California Code of Regulations, which provide in part, that wages do not include penalties or damage awards paid by an employer to an employee for certain violations. Furthermore, minutes of the IWC confirm that the amount paid to an employee by an employer for violations of the meal period requirements were considered to be penalty amounts. DLSE must interpret this issue in order to carry out its responsibility to hear actions to recover wages and penalties and other demands before it, which include claims based both on the orders of the Industrial Welfare Commission and the Labor Code.

DLSE is scheduling three public hearings in different locations across the state at which the public may comment on the proposed regulations:

San Francisco
Date:    Tuesday, February 8, 2005
Time:    9:00 a.m.
Place:   Hiram Johnson State Building, Auditorium
             455 Golden Gate Avenue, San Francisco, CA 94102

Los Angeles
Date:    Friday, February 4, 2005
Time:    9:00 a.m.
Place:   Ronald Reagan State Building, Auditorium
             300 South Spring Street, Los Angeles, CA 90013

Fresno  To be determined.

Information will be made available on DLSE's Website regarding the date, time and location of this hearing.

Any interested person, or authorized representative, may submit written comments to DLSE relevant to the proposed regulatory action. The written comment period closes at 5:00 p.m. on February 14, 2005. All comments must be submitted in writing (by mail, fax or e-mail) and received by that time at DLSE's office. Submit comments to:

Allen Perlof, senior deputy labor commissioner
Division of Labor Standards Enforcement 
9th Floor West
P.O. Box 420603
San Francisco, CA 94142
FAX: (415) 703-4807

A copy of these proposed regulations and comment procedures can be found on the DIR Website at