In what seems like an unprecedented move, the Federal Motor Carrier Safety Administration (FMCSA) is soliciting regulatory waiver requests from the public, which, if granted, could reinstate California's and Washington's meal and rest break rules as applied to regulated commercial drivers. In a notice published to the Federal Register on August 14, 2023, the 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."
In 2018 and 2020, the FMCSA, at the request of many in the industry including the American Trucking Associations (ATA) and American Bus Association (ABA) ruled that California's and Washington's meal and rest break rules, as applied to regulated drivers, are preempted by 49 U.S.C. 31141, a federal statute that grants the Secretary of Transportation the authority to prohibit states from enforcing laws that interfere with the federal motor carrier safety regime.
The agency had considered a similar petition in 2008, but held that California's meal and rest break requirements were not preempted at the time.
The federal law at issue--49 U.S.C. 31141--prohibits states from enforcing rules on CMV safety that the FMCSA, acting under designation, deems to be preempted. To determine whether a state law or regulation is preempted, the FMCSA must first decide whether it: (1) Has the same effect as a regulation within the Federal Motor Carrier Safety Regulations (FMCSRs); (2) is less stringent than such a regulation; or (3) is additional to or more stringent than such a regulation. If the FMCSA determines the state law is additional to or more stringent than a federal rule, that rule may be enforced unless the agency decides that the state law (1) has no safety benefit; (2) is incompatible with the regulation prescribed by the Secretary; or (3) would cause an unreasonable burden on interstate commerce.
In its 2018 and 2020 preemption decisions, the FMCSA ruled that California's and Washington's meal and rest break rules are rules on CMV safety that are more stringent that the federal hours-of-service (HOS) rules and would cause an unreasonable burden on interstate commerce. As a result, those laws, as applied to commercial drivers, have been rendered preempted and unenforceable in those states since 2020.
In reaching these conclusions, the FMCSA observed that because the meal and rest break rules impose the same types of restrictions on CMV driver duty and driving times as the FMCSA's HOS regulations, they are “regulations on commercial motor vehicle safety.” 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. "California's additional requirements that breaks be of specific durations, and occur within specific intervals, do not provide additional safety benefits...Based on the numerous comments received, the FMCSA concludes that the MRB Rules impose significant and substantial costs stemming from decreased productivity and administrative burden." See California's Meal and Rest Break Rules for Commercial Motor Vehicle Drivers; Petition for Determination of Preemption, 83 Fed. Reg. 67470 (Dec. 28, 2018).
In early 2021, the U.S. Court of Appeals for the Ninth Circuit denied petitions for review challenging the first preemption decision. Int'l Bhd. of Teamsters, Local 2785 v. FMCSA, 986 F.3d 841 (9th Cir. 2021), cert. denied sub nom. Trescott v. Fed. Motor Carrier, No. 20–1662, 2021 WL 4507755 (Oct. 4, 2021). The State of California filed a petition for review in the Ninth Circuit in March 2020 challenging the second preemption decision, and the court has held that case in abeyance. People of the State of Cal. ex rel. Bonta v. FMCSA, No. 20–70706 (9th Cir.). The State of Washington filed a petition for review in the Ninth Circuit challenging the third preemption decision but voluntarily dismissed the case in August 2022. State of Washington v. FMCSA, No. 20–73730 (9th Cir.).
California's Meal & Rest Break Requirements
Section 512 of California's Labor Code mandates employers provide non-exempt employees a 30-minute meal break for every 5 hours they work. Further, under the California Code of Regulations (CCR) section 11090(12), employers are required 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. California law 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. Cal. Labor Code 226.7(b)–(c).
Washington's Meal & Rest Break Requirements
Section 296–126–092 of 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. Additionally, Washington law requires 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. WAC 296–126–092(4). 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.
The import of FMCSA's waiver request
In its most recent notice, the FMCSA is actively soliciting waiver requests from its earlier preemption decisions. What exactly does this mean? Well, if FMCSA were to receive and grant such a request, then California and/or Washington would presumably be permitted to once again enforce their meal and rest break rules against employers of commercial drivers. The agency explains in its notice that "a petition for waiver [must] demonstrate to the Agency's satisfaction that a waiver from Federal preemption is in the public interest and is consistent with the safe operation of CMVs. A petition for waiver need not contend that the Agency erred in determining that the California and Washington MRB rules are laws on CMV safety, that they are more stringent than the Federal HOS regulations, or that they meet any or all the criteria for preemption under 31141(c)(4)–(5), and the Agency encourages waiver petitioners to include arguments that do not depend on a conclusion that the Agency's preemption determinations were erroneous."
The FMCSA is requesting that any such waiver petitions address the following questions:
1. Whether and to what extent enforcement of a State's meal and rest break laws with respect to intrastate property-carrying and passenger-carrying CMV drivers has impacted the health and safety of drivers.
2. Whether enforcement of State meal and rest break laws as applied to interstate property-carrying or passenger-carrying CMV 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; and
3. Whether enforcement of a State's meal and rest break laws as applied to interstate property-carrying or passenger-carrying CMV 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.
In short, it's hard to view the FMCSA's notice as anything but politically motivated. It has flip flopped on this issue since 2008, depending on which political party happens to hold office. Given that it is actively soliciting waiver requests--which is an exceedingly rare occurrence--we assume the agency fully intends to grant any such requests that it receives. Ultimately, we expect California and Washington will file such requests and that FMCSA will grant them. If that happens, then motor carriers with drivers in these states will presumably have to comply with these meal and rest break requirements. And the burden on interstate commerce that the FMCSA itself acknowledged in 2018 and 2020 will become a reality.
We strongly encourage industry stakeholders to file comments in opposition to any such waiver requests. We will update this article with any subsequent developments. Also, we will provide regular updates via our newsletter.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.