Proposed Meal-Break Rules Panned by Worker Advocates

Would tinkering with a law on meal breaks amount to a corporate free lunch?

Gov. Arnold Schwarzenegger’s proposal to redefine a state statute requiring that employers provide 30 minutes off for meals has drawn fire from worker advocates who complain that unscrupulous employers might deny employees any lunch break at all.

The proposed changes in state regulations, aggressively promoted by the California Chamber of Commerce, would cut to one year from three the period during which businesses can be fined for failing to give meal breaks. In addition, the responsibility for ensuring that a break is taken would be shifted from the employer to the employee.

The proposed regulations, which are expected to be adopted after hearings this month and next, apply to a law signed by Gov. Gray Davis in 1999. It held employers liable for an hour’s wage for each day that a worker didn’t take a proper lunch. The law also granted attorney fees for successful lawsuits filed in such cases.

Businesses were hit with investigations and class-action suits, some of which led to multimillion-dollar settlements. The chamber and other business groups complained that the state was interpreting the law too liberally and inconsistently. They pressed for change under the Schwarzenegger administration.

“From the moment we walked in the door in November of 2003, this is all we heard about,” said Rick Rice, undersecretary of the state Labor and Workforce Development Agency, who helped craft the proposed regulations.

Rice said they would merely clarify a badly written law.

“I find it offensive that some people are characterizing this as a take-away, because it is not,” he said.

Proponents of the changes say they reflect efforts by Schwarzenegger to ease onerous regulations on business. Critics say the effort is another administration attack on worker rights.

Much of the meal break controversy hinges on a single phrase. What does the law mean when it says that a company must “provide an employee a meal period”? Early opinion letters from a commission that monitors wage and hour laws said that meant that employers were responsible for ensuring that workers took their required breaks.

Rice said that interpretation -- the basis of hundreds of lawsuits -- went too far. He said he looked up the word “provide” in a number of dictionaries and never found an element of responsibility. Under the proposed regulations, an employer would satisfy the law if he or she “makes the meal period available to the employee and affords the opportunity to take it.” The worker could opt to waive it.

Critics said that wording was even more ambiguous than the original. They contend that the law wouldn’t be clarified but actually altered.

“It’s a complete policy change, a drastic about-face,” said attorney Tim Koleskinow, who worked at the state Division of Labor Standards Enforcement when the law took effect. He helped negotiate its first big settlement: a $10-million payment to workers at Chili’s Grill & Bar by operator Brinker International Inc. Now in private practice, he has filed suits on behalf of workers in several recent cases involving meal breaks.

Worker advocates, including those representing garment workers, janitors and farmworkers, said that even under the current scheme, enforcement was difficult. The proposed wording would make it harder, they contend, by pitting the worker’s word against the employer’s.

The changes were initially planned as an emergency measure, but after labor and legal aid groups complained, hearings were hastily arranged throughout the state. At hearings in Los Angeles on Friday and San Francisco on Tuesday, workers and business owners showed up in force to press arguments on both sides. A third and final hearing is scheduled for Fresno on March 2.

Employers attending the hearings have complained that the current law was too difficult and costly. They have been accompanied by restaurant workers who said they wanted the flexibility to work through breaks if they could earn good tips. These workers added that they didn’t want break times determined by state bureaucrats.

On the other side, health and safety advocates at the hearings said mandatory breaks in some jobs were a matter of safety. Dozens of workers who are on their feet throughout a shift testified that they needed the time off.

Among them was janitor Laura Gutierrez, who has a claim pending with the state labor commissioner over three years of untaken breaks.

“In one day of work, I have to clean bathrooms, take out garbage and vacuum carpet on three floors,” she said. “I’m talking about 7 1/2 hours a day of continuous work, without a break.”

Attorney Koleskinow noted that according to a state Supreme Court ruling, a regulation is just one of several factors to be considered in interpreting the law.

“This will ultimately be decided by the courts,” he said.