The Federal Motor Carrier Safety Administration in a Federal Register notice dated Monday, Aug. 14, said it will consider petitions for waivers from its decisions to preempt California and Washington state’s Meal and Rest Break (MRB) rules. The move in effect opens a new door for CDL drivers who want the rules to apply to them, or for the states themselves, to challenge FMCSA's preemption determination.
While petitions for waivers can be submitted at any time, FMCSA requested that any petitions for waiver of the preemption determinations be submitted by Nov. 13. The agency said it will publish any petitions for waiver that it receives and will provide an opportunity for public comment with respect to the petitions.
California’s law requires employers to provide non-exempt employees a 30-minute meal break if they work more than 5 hours in a day, and employees who work a shift of 10 hours or more are entitled to a second 30-minute meal break. The rule also requires employers to provide rest periods for non-exempt employees who work three-and-a-half or more hours in a day. Employees are entitled to a 10-minute rest period for each 4 hours, or a substantial fraction thereof, that they work in a day.
In Washington, employers must provide employees a meal period of at least 30 minutes that starts after the second hour and before the fifth hour after the shift begins. Additionally, Washington’s MRB rules provide for 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.
On Dec. 21, 2018, FMCSA granted petitions filed by the American Trucking Associations and the Specialized Carriers and Rigging Association, and determined that California’s MRB rules are preempted by federal hours of service rules. On Nov. 27, 2020, FMCSA granted a petition filed by the Washington Trucking Association, determining that Washington’s MRB rules are also preempted by federal regulations. In granting these petitions, FMCSA said it determined the states’ MRB rules are more stringent than federal regulations and that they meet the three potential criteria for preemption under U.S. code.
The Teamsters union signaled support for the FMCSA's move: "FMCSA Administrator Robin Hutcheson is taking steps in the right direction by accepting applications for waiver petitions,” said Teamsters General President Sean M. O’Brien. “States should have the freedom to protect motorists and workers by implementing stronger meal and rest break requirements for professional drivers. This prevents tragedy -- not just for commercial vehicle operators, but for everyone who uses our highways.”
ATA President and CEO Chris Spear, in a statement Aug. 11, voiced opposition to FMCSA calling for waiver requests, saying truck drivers should have a "singular, national standard of work rules."
