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December 21, 2004
California Pulls Emergency Meal and Rest Rules

The California Division of Labor Standards Enforcement (DLSE), a division of the Department of Industrial Relations (DIR), has withdrawn emergency regulations governing meal and rest periods. The division published the emergency rules, which were scheduled to take effect yesterday, on December 10.

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The emergency rules would have taken effect without public hearings. The division says it now intends to follow the normal rulemaking process on new rules, which are slightly revised from the emergency rules, and will hold a series of public hearings on new proposed regulations.

"We feel it is appropriate to move forward with permanent regulations rather than emergency regulations that may be in effect for only 120 days," says John Rea, acting director of DIR. "We also want to allow every Californian the opportunity to comment on these proposed regulations and this rulemaking track will provide them the ability to exercise that right if they choose."

DIR yesterday filed the proposed permanent regulations, which vary only slightly from the proposed emergency regulations with the Office of Administrative Law. The previous regulations, which would have been valid for only 120 days, were simultaneously rescinded in favor of the proposed permanent regulations.

According to the DLSE, the proposed regulations are designed to clarify sections of the Labor Code that were added in 2000. Until now, DLSE had enforced a staff opinion letter that deemed the "one-hour of pay" (required as an amount paid by an employer to an employee for the employer's failure to abide by the law) to be wages, rather than a penalty.

However, officials say, the history of Labor Code section 226.7 indicates that the payment was meant to be a penalty. Also, supporting the penalty definition are state regulations, Title 22 of the California Code of Regulations, which provide in part, that wages do not include penalties or damage awards paid by an employer to an employee for certain violations.

In addition, the proposed rules state that for employees working more than six hours per day, a meal period may begin before the end of the sixth hour of the work period.

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