Construction Industry Meal-Break Exemption Ruled Invalid

October 12, 2006 by Beeson Tayer & Bodine

On April 7, 2006, the Second District Court of Appeal published its decision in Bearden v. U.S. Borax invalidating Wage Order No. 16’s unioncontract-exemption for mandatory meal periods. The case represents a significant change in the law regarding meal periods for employees working in the construction, drilling, logging and mining industries.

Plaintiffs were six mine workers who sued their employer for failing to provide them with a second meal period during their 12.5 hour shifts. The employer argued that the employees’ jobs were covered by a collective bargaining agreement and, therefore, exempt from the meal period requirements of the Wage Order. The employer also argued that the plaintiffs’ claims had to be arbitrated under the collective bargaining agreement and that the union was an indispensable party. The trial court sided with the employer and the workers appealed.

On appeal, the court focused on the collective bargaining exemption in Section 10(E) of Wage Order 16, which applies to the construction, drilling, logging and mining industries. Section 10(E) provides:

“(E) Subsections (A), (B), and (D) of Section 10, Meal Periods, shall not apply to any employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.”

Sections 10(A), 10(B), and 10 (D) concern, in order, the requirements that a thirty minute meal period be provided within the first five hours of work, that a second meal period of the same duration be provided when working more then ten hours, and the conditions under which an “on-duty” meal period is acceptable.

Plaintiffs argued on appeal that the IWC exceeded its authority in enacting the collective bargaining exemption since that clause goes beyond the exceptions recognized by the Legislature in Labor Code § 512, titled “Meal Periods.” Section 512 provides only three exceptions to its meal period requirements and those are reserved for employees working in the wholesale baking, motion picture, and broadcasting industries under collective bargaining agreements containing certain specific terms. According to Plaintiffs, since the Legislature allowed only these exceptions to the meal period requirement, the IWC was not empowered to enact an additional one for employees working under a collective bargaining agreement in the construction, drilling, logging, and mining industries.

The appellate court sided with the workers, concluding:

“Our review of the wage and hour provisions of the Labor Code make it plain that the Legislature exercised its power to create exceptions to the requirements where it thought best. The broad powers granted to the IWC do not extend to the creation of additional exemptions from the meal period requirement beyond those provided by the Legislature. … We conclude that the IWC exceeded its authority in adopting section 10(E) of the Wage Order and that the ex- emption is therefore invalid.”

The court also held that Plaintiffs’ claims need not be arbitrated even though Section 10 (F) of the Wage Order pro- vides, “In cases where a valid collective bargaining agreement provides final and binding mechanism for resolving disputes regarding enforcement of the meal period provisions, the collective bargaining agreement will prevail.” The court held that the collective bargaining agreement did not claim to resolve statutory disputes, limiting itself instead to disputes concerning the collective bargaining agreement. Finally, the court went on to consider whether its decision should apply retroactively. On this question it punted, reserving that for the trial court.

More and more private-sector employers that have historically permitted employees to skip meal breaks and leave work early are reversing course and compelling employees to take a thirty- minute off-duty meal break. This decision makes clear that, with the exception of employees in the baking, motion picture, and broadcast industries, past practice or union-contract language permitting employees to skip meal breaks and leave work thirty minutes before they would with a meal break will not trump the state law requirement that employers compel employees to take a thirty-minute, off-duty meal break.

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