Federal Agency Gives Notice That It May Reverse Course On Its Own Preemption Determination For California And Washington Meal And Rest Period Rules – Employee Rights/ Labour Relations – United States

Seyfarth Synopsis: The Federal Motor
Carrier Safety Administration determined only a few years ago that
federal law preempts California’s and Washington’s meal and
rest period rules. Regardless of what would happen in the courts,
observers questioned whether the Biden Administration would seek to
unravel the determinations that were made under the former
administration. On August 14, 2023, those questions were addressed
when the FMCSA gave notice in the federal register that it would be
accepting waiver petitions from “any persons” wishing to
avoid its previous preemption decisions. It is unclear what the
FMCSA intends to do with the petitions for waiver that it receives,
but employers should continue to proceed with caution, as the FMCSA
may seek to unravel the preemption determinations in one way or
another.

Recent History Of The FMCSA’s Determinations Preempting
California And Washington Meal And Rest Break Rules.

In December 2018, the FMCSA under a different administration concluded that the federal Motor Carrier
Safety Act preempts California’s meal and rest break rules when
a driver is subject to federal hours-of-service requirements. The
FMCSA found that California’s rules “are incompatible with
the federal hours of service regulations and that they cause an
unreasonable burden on interstate commerce.”

On November 27, 2020, shortly after the national election, the
FMCSA determined that Washington’s meal and rest break rules
were also subject to hours-of-service regulations and thus
preempted.

Subsequent challenges to the so-called “Preemption
Determination” by the State of California and several other
groups failed, and even a panel of the Ninth Circuit Court of
Appeal ruled in January 2021 that the FMCSA’s
preemption determination, as applied to drivers of
property-carrying commercial motor vehicles in California, was
valid. A similar challenge levied by the State of Washington also
failed when the State voluntarily dismissed the case in August
2022.

The FMCSA’s Notice Seeking Petitions For Waivers From Its
Own Preemption Determinations.

Though no one can now dispute that the preemption determinations
stand on solid legal ground, there remains an unease that outside
political forces could act to minimize or altogether eliminate
their application. That unease came to a head on August 14, 2023,
when the FMCSA provided notice in the federal register that it would
be accepting petitions for waiver from its previous decisions to
preempt meal and rest break rules in California and Washington.
According to the notice, “any person” may file a petition
for waiver by November 13, 2023, and then the agency “will
publish any petitions for waiver that it receives and will provide
an opportunity for public comment with respect to the
petitions.”

The notice specifies that the FMCSA will consider granting
waivers based on various practical, non-legal factors that will
include: safety, parking shortages, and the consideration of
“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,” and “whether any such effect will weaken the
resiliency of the national supply chain.”

What remains unclear is the scope of the waivers that the FMCSA
might consider granting, whether the FMCSA is considering a
wholesale elimination of its prior determinations in California and
Washington, or whether the FMCSA is considering a more narrow
approach, such as granting waivers to only those
“persons” or groups that seek them. While the notice does
not answer these questions, the notice says the FMCSA “will
publish any petitions for waiver that it receives and will provide
an opportunity for public comment with respect to the
petitions.” At present, we are left to guess what the FMCSA
will do with the public’s comments. It’s likely, however,
that the comments will be boisterous given that many employes 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 Continue To Proceed With Caution.

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.
Employers should continue to keep their eye on these developments,
especially given the ramifications that preemption (or no
preemption) of those rules would have on many employers’
policies and practices, and given the consequences of no
noncompliance if their preempted status is overturned in whole or
in part.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.