California Attorney General Steps In To Petition FMCSA For Waiver Of Meal And Rest Period Preemption Determination On Behalf Of State’s Drivers

Seyfarth Synopsis: In August, the Federal Motor Carrier Safety Administration (“FMCSA”) announced that it would start accepting petitions for waivers from the recent decisions preempting California and Washington’s meal and rest break rules. While the FMCSA has not yet publicized the petitions that it received by the November 13, 2023 deadline, the California Attorney General’s Office, in partnership with the Labor Commissioner, issued a press release publicizing its waiver petition on behalf of all California commercial motor vehicle drivers, regardless of industry, in an effort to “defend” California’s state rules. It remains unclear if and when the FMCSA will address this petition, but the public should be afforded a comment period before the FMCSA decides either way. If this petition is granted, employers can expect to return to the same California meal and rest period scheme that applied to drivers before the preemption determination.

The FMCSA’s Invitation For Petitions For Waivers

In an unexpected notice published in August 2023, the FMCSA announced that it would start accepting petitions for waivers from its own preemption determinations. Although the FMCSA in 2018 had determined that federal regulations preempted California law, the agency’s announcement signaled a shift in the agency’s view of the preemption determination over more employee-friendly state rules, or at least a shift in the politics surrounding the issue after the exit of the prior administration. Nonetheless, the notice still left unclear important issues including the scope of the waivers the FMCSA may consider granting and whether the FMCSA is considering a wholesale elimination of its prior determinations in California.

The California Attorney General’s Petition Seeking Waiver of Preemption And “Defending” California’s Meal And Rest Period Rules

No doubt seeing an opportunity after California’s federal and state courts upheld federal preemption despite the State of California’s pleas, the California Attorney General and Labor Commissioner accepted the FMCSA’s invitation and filed a petition seeking a waiver on behalf of all California commercial motor vehicle drivers. The 20-page petition argues California’s meal and rest break rules align closely with the safety recommendations made by other state agencies and empirical studies regarding breaks for commercial vehicle drivers. It also argues truck parking shortages are worse in states without such stringent meal and rest break rules. Thus, the petition concludes, such meal and rest period rules have not contributed to parking shortages, and projects to expand truck parking are in place on both the state and federal level. Finally, the petition claims that trucking has remained a robust industry within the state, and there is no tangible evidence that the state’s regulations have weakened the national supply chain. Though, the petition is silent as to the burden that the state’s meal and rest period rules has on business writ large in California.  

The FMCSA’s original notice said the FMCSA “will publish any petitions for waiver that it receives and will provide an opportunity for public comment with respect to the petitions.” Meaning, stakeholders in California should be afforded an opportunity to respond to the Attorney General’s petition before the FMCSA takes action either way. We anticipate that the public’s comments will be boisterous, given that many employers have reasonably relied on federal preemption after the determinations came out and then upheld, one way or another, in both state and federal courts.

Employers Should Remain Beware Of Looming Changes

As we have written before, the issue of whether drivers are subject to state meal and rest break rules will remain in flux as a result of legal and political considerations. This time, the preemption determination seems to be in acute danger given the FMCSA’s invitation for petitions, and the State of California wasting no time to accept that invitation. Employers should continue to keep their eye on these developments, including any comment period and any action by the FMCSA on the Attorney General’s petition (or any other petition that was filed). This is especially important given the ramifications that preemption (or no preemption) of state meal and rest break rules would have on many employers’ policies and practices, and given the consequences of not complying with these rules, when required.