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.

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