California Labor and Employment Defense Blog

DLSE Public Hearings Air Concerns Regarding Meal Break Issues

Once upon a time, employee meal and rest periods were an obscure legal backwater, which was the exclusive province of hard-core human resources nerds and bureaucrats. But no longer. Class action meal period litigation has now become a multi-million dollar political football. 

This new reality was highlighted by response when the DLSE recently held two public hearings on the topic in Sacramento and Los Angeles. Over 200 and 400 concerned individuals showed up in person to the respective meetings, and another 200 written comments were submitted in writing 

As the Labor Commissioner explained in her formal written report on the hearings.  

It is apparent that emotions surrounding the issue of meal and rest periods have run high for a long time. Conflicts and confusion in the statute and in the IWC orders have proven problematic. The forums demonstrated an urgent need for common sense solutions by the Courts and by the Legislature which would greatly benefit workers and businesses throughout California.

The California Division of Labor Standards Enforcements (or “DLSE”) is the administrative enforcement arm of the Labor Commissioner. As such, it has some limited latitude to influence how courts will define the scope of the meal period requirements – i.e., Labor Code sections 512 and 226.7. At the behest of Governor Schwarzenegger, the DLSE initially sided with employers by issuing an administrative decision that would have cut the relevant statute of limitations from four years to just one year.   The Division also propounded a set of “proposed” pro-employer regulations. 

The DLSE was forced to beat a hasty retreat, however, when the California Supreme Court issued its decision in Murphy v. Kenneth Cole. This opinion, which constitutes controlling legal authority, took the exact opposite position.

At this point, it appears that the Labor Commissioner has abandoned her own attempts to formally weigh in on any matters of first impression. Instead, the main purpose of the recent hearings is apparently to flag various concerns and ambiguities and beseech the Courts and politicians for more definitive guidance.  

The Labor Commissioner’s report recites that “Preserving the right to take meal and rest breaks is critical.” Nevertheless, Ms. Bradstreet primarily calls for more “flexibility” and highlights the following testimony:

  • Many workers who operate on tips or commissions object to taking breaks at times that cut into their earnings;
  • To keep consistent staffing, some employers are complying with the letter of law by scheduling “staggered lunch breaks” that begin as early as 9:00 a.m.
  • Employers are policing compliance by imposing ever-greater disciplinary measures on employees – for example, “UPS reported that in the first eight months of 2007 it issued 7,200 disciplinary citations and fired 22 workers for meal break violations.”

The report and various summaries of the comments on which it is based can be viewed through the following links.;;

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