City Sanitation Workers Are Not In The “Transportation Industry” Under Wage Order No. 9

CATEGORY: Client Update for Public Agencies, Public Education Matters
CLIENT TYPE: Public Education, Public Employers
DATE: Dec 28, 2020

The City of Los Angeles employs wastewater collection workers in the City’s Wastewater Collection Systems Division (Wastewater Division) of its Bureau of Sanitation (Sanitation Bureau).  The City’s wastewater collection crews remove debris and stormwater from the City’s catch basins, sidewalk culverts, low flow sewage, and storm drain systems.  They transport the debris to collection and treatment facilities. Some of the trucks used to complete these duties are classified as commercial vehicles, which requires the driver to hold a commercial driver’s license with tanker and air brake endorsements.  The work involves substantial driving each day, sometimes more than 100 miles to as many as 90 work and disposal sites.

Three wastewater collection crew members sued the City on behalf of themselves and all other Wastewater Division employees, alleging that the City denied them a meal and rest breaks from June 2, 2011, to the present in violation of Labor Code sections 226.7 and 512 and Wage Order No. 9. The employees alleged the City restricted their meal and rest breaks by requiring them to: “remain on-call at all times; refrain from sleeping on the job; refrain from returning to their yard until the end of their shift; refrain from leaving the work locations during their shift; refrain from using City vehicles for personal business, including traveling to lunch breaks; refrain from congregating with other Wastewater Division employees during their shift, and refrain from leaving their work vehicles during their shift.”  In general, Wage Order No. 9 explicitly requires public entities to provide meal and rest breaks to “commercial drivers” in the “transportation industry.”

After many years, the City filed a motion to dismiss the employees’ Wage Order No. 9 claims, arguing that Wage Order No. 9 did not apply because they did not work in the transportation industry. Alternatively, the City argued that Wage Order No. 9 applied only to those wastewater collection employees who were permitted to drive the City’s commercial vehicles.  The trial court concluded that Wage Order No. 9 applied only to workers in the transportation industry and that undisputed evidence indicated that the Wastewater Division’s primary purpose was to maintain the City’s sanitary and storm sewer systems.  The court noted that any driving performed by its employees was incidental to that primary objective.  The trial court entered judgment in the City’s favor and denied the employees the opportunity to assert new federal claims. The employees appealed.

On appeal, the court rejected the employees’ arguments and affirmed the trial court’s ruling. The court noted that the main purpose of the business, and not the job duties of the employee, determines which wage order applies. The court relied on the language of Wage Order No. 9 stating that a business whose purpose is transportation is considered to be in the transportation industry.  The court reasoned that to conclude that the incidental activities the Wastewater Division employee performed involving transportation “would read the word ‘purpose’ right out of the order.”  Although some employees were required to operate commercial vehicles to carry out the Sanitation Bureau’s purpose, the purpose of the Wastewater Division was to clean the City’s sewers.  Thus, the trial court properly entered judgment in the City’s favor.

Miles v. City of Los Angeles, 56 Cal.App.5th 728 (2020).


While the meal and break provisions of California’s Wage Orders generally do not apply to public agencies, Wage Order No. 9 provides an exception for transportation industry employees.  Public agencies should ensure they are providing meal and rest breaks to covered public transportation employees.  LCW attorneys can assist agencies in determining which job classifications qualify as “Transportation Industry” employees.

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