It is fairly common for sweeping employment law legislation to be introduced in the California legislature and I usually do not pay much attention to these bills because they usually do not become law.

One of two things almost always happens: (1) the republicans introduce a pro-employer bill that will never pass the democratically-controlled legislature or (2) the democrats introduce a pro-employee bill that passes but is then vetoed by Governor Schwarzenegger.

However, I gave an interview to a reporter this past week for law360.com to discuss some recently-introduced legislation aimed at severely limiting employees' rights to meal periods in California that led me to some interesting discoveries.

In researching one of the bills, SB 1192, which was introduced by State Senator Bob Margett on February 12, 2008, I was reminded why I try to ignore these bills, the people who introduce them and the political process in general.

The Details of SB 1192

SB 1192 proposes the following changes to existing law:

SOL Change

The bill changes the statute of limitations for recovering penalties for missed meal periods from four years (under Murphy v. Kenneth Cole) to one year. This would severely limit employees' right to recovery, which means an employer would have a lot less to lose by breaking the law.

The penalty is one hour of pay for each break not provided, but presumably an employer makes much more profit from one hour of an employee's work than they pay the employee. Therefore, employers might be willing to risk having to pay more later for that work.

For example, if an employee brings a lawsuit to recover one year of missed meal periods, the employer might have to pay another $12 of pay to an employee for each day worked that year, because they made $30 of profit from that hour of work by the employee.

Violation of California meal period laws is widespread, but only a small minority of employees do anything about it, which makes the small risk of paying one year of penalties worthwhile to an employer.

However, if faced with four years of penalties, an employer might think twice about taking the risk.

Anti-Employee Definition of "Provide"

SB 1192 modifies the law to state that an employer is only required to make a rest period available "without interfering with its use".

Under this interpretation, employers will argue that if an employee signs a document when they begin employment saying "you are provided with a lunch break" then their obligation is met.

Unless the employer actively prevents the employee from taking the break, such as instructing them not to take a lunch break they are in the clear. This would put the onus on employees who are too busy to take a lunch break to complain about it to their employer in order to get any relief.

Often employers are well aware that the requirements they place on employees mean that taking a lunch break is out of the question. However, they also know that employees are hesitant to complain about the situation because they do not want to seem like a "slacker" or "lazy", so they work through their lunch breaks.

Time for Taking Break Expanded

This bill changes the law to state that lunch breaks may be given "commencing at any time before the start of the sixth hour of work".

This would seem to allow employers to mandate that employees take their lunch breaks immediately upon starting work. Essentially employers would be able to get away with telling their employees to come to work 1/2 later than normal and count that as their meal period.

This change completely negates the rationale behind requiring employers to provide meal breaks in the first place.

Purpose of SB 1192 Misrepresented to the Public

After introducing the legislation, Senator Margett issued a press release entitled "Senator Margett Calls for Flexibility In Meal Periods For All California Employees and Employers".

The release only mentions the last change discussed above regarding the timing of meal periods and totally misrepresents its effect. He tries to pass this off as a bill that has the sole purpose of allowing employees to take their meal period during their 5th hour of work instead of before the 5th hour, which current law requires in most situations.

The Senator repeatedly tries to make it sound like the only reason he introduced SB 1192 is that "too many employees must take their lunch breaks at unreasonable hours". In fact, as I outlined above, this bill has the opposite effect, allowing employers to require that breaks be taken at unreasonable hours.

Senator Margett has essentially told the public he introduced a bill that expands employees' rights when it really destroys the rights they have under current law.