Effective January 1, 2023, California law will require public employers to provide meal and rest periods to employees who provide or support direct patient care in a general acute care hospital, clinic, or public health setting. Public employers should consult with legal counsel for advice on compliance with this new law, Senate Bill 1334, which was passed in September 2022 and is now set forth as California Labor Code Section 512.1. This bulletin provides a starting point to understand some of the key elements of SB 1334.
Which Employers Are Subject to SB 1334?
SB 1334 applies to public employers. The statute defines employer to mean “the state, political subdivisions of the state, counties, municipalities, and the Regents of the University of California.”
What Employees Are Covered/Not Covered by SB 1334?
The meal and rest period requirements under SB 1334 will apply to employees who provide direct patient care or support direct patient care in general acute care hospitals, clinics, or public health settings. Although SB 1334 defines “acute care hospitals” to have the same definition as that set forth at Health and Safety Code section 1250(a), SB 1334 does not define the terms “clinic” or “public health setting.”
Employees who are exempt from overtime under state law are not covered by SB 1334. State law has much stricter requirements for overtime exemptions than federal law (FLSA), including a minimum salary requirement of $64,480 per year (as of January 1, 2023). State law also has a stricter duties test for exemptions, which results in certain positions that are exempt under the FLSA, such as Registered Nurses, being non-exempt under state law. As a result, some employees who are exempt from overtime under the FLSA will not be exempt under state law and will be covered by SB 1334.
Meal and Rest Period Requirements under SB 1334:
Under SB 1334, covered employees will be entitled to the following:
Meal Periods
Covered employees are entitled to one unpaid 30-minute meal period on shifts over five hours and a second unpaid 30-minute meal period on shifts over 10 hours. Employees must take their first meal period before the end of their fifth hour of work and their second meal period before the end of their tenth hour of work.
If an employee’s total hours worked do not exceed six hours, the employee and employer may waive the meal period by mutual consent. Employees in the health care industry who work shifts in excess of eight hours may waive their right to one of their two meal periods by mutual consent in a written agreement that may be revoked on one day’s notice. The health care industry is defined as: “hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, clinics operating 24 hours per day, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis.”
Certain clinics and public health settings that have employees who are covered by SB1334 may not qualify as being in a health care industry. Those employees who do not work in the health care industry who work shifts of more than 10 but not more than 12 hours may waive their second meal period by mutual consent if the first meal period was not waived.
Employees must be relieved of all duty during their statutory meal period subject to one exception: if the nature of the job prevents the employee from being relieved of all duty, an “on duty” meal period is permitted if there is a written agreement between the parties that is revocable at any time.
Employers need not ensure meal periods are taken, but must provide employees the ability to take uninterrupted 30-minute meal periods in which they are relieved of all duties and the employer does not discourage or impede employees from taking the meal period. For employees in the health care industry, the FLSA definition of hours worked as set forth in 29 C.F.R. section 785.19 applies to their meal period, which means that those employees can be required to remain on the premises. For employees not in the health care industry, the employer cannot exercise any control over their meal period and they must be permitted to leave the premises.
Rest Periods
Covered employees are entitled to one 10-minute paid rest period for every four hours worked or a major fraction thereof.
The rest period cannot be waived; however, if an employee works less than 3.5 hours total, the employer need not provide a rest period. An employee must be relieved of all duty during the rest period. The rest period time shall count as hours worked with no deduction in wages for taking a rest period.
Enforcement
If an employer fails to comply with the provisions of SB 1334, the employee will be entitled to an additional hour of pay at the employee’s regular rate of compensation for each workday that the employer does not provide a meal or rest period. Courts have interpreted this to mean that an employee is owed an additional hour of pay for every workday a meal period is missed and an additional hour of pay for every workday a rest period is missed. Thus, an employee will be entitled to two hours of pay for each workday that the employee misses both a meal break and a rest break.
Courts have interpreted the term “regular rate of compensation” for purposes of calculating the additional hour of pay to include the employee’s hourly rate and all non-discretionary forms of pay.
Collective Bargaining Exception
SB 1334 does not apply to employees who are covered by a valid collective bargaining agreement that provides for meal and rest periods. For this exception to apply, the collective bargaining agreement must include a monetary remedy equivalent to one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest period is not provided.
Considerations
Public agencies with general acute care hospitals, clinics, and/or public health settings should immediately begin looking into the various issues related to implementation of this new law.
To start, covered public agencies must examine existing meal and rest period policies and/or collective bargaining provisions that apply to covered employees. Further, policy makers must evaluate whether to negotiate changes to collective bargaining agreements to provide for meal and rest periods, including the monetary remedy for missed meal and rest periods. In addition, counsel for counties and charter cities should analyze whether SB 1334 is constitutional as applied to them. Moreover, payroll should establish new recordkeeping to track the provision of meal and rest periods and pay the compensation owed for each workday that a meal or rest period is not provided.
Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.