Drivers and Overtime, Meal/Rest Breaks

I get a lot of questions about employment law issues. One of the most common is related to whether a driver is entitled or overtime and whether they have to take breaks.

California law regarding who is exempt (meaning they don't get paid overtime) and non-exempt (meaning they do) has developed over a long period of time. The rules are set forth by the Industrial Welfare Commission. For drivers, the issues of overtime pay and entitlement to take time for meals and breaks are separate.

To be considered exempt from overtime pay, an employee must be:

Executive, meaning they are involved in management, have power to hire and fire, or regularly exercise independent discretion and judgment. Drivers don't generally fall into this category, although they arguably exercise independent discretion and judgment when they are driving.

Administrative this is someone who works in an office, exercises regular discretion and judgment, and is under general supervision. Except for the office part, this could be a driver too.

Professional, meaning doctors, lawyers, etc. Clearly not drivers.

Not an easy call. The argument could be made that drivers regularly use independent judgment and discretion when they drive, but that is only one part of these criteria. It looks very much like a driver is entitled to overtime.

So are drivers subject to overtime? Answer: no.

The IWC has issued an exception for drivers. The reasoning is that drivers' hours of service are regulated by federal and state laws. Since these laws regulate how much a driver can work over a given period of time. So, drivers whose hours are regulated by federal and state law are not eligible for overtime pay.

What About Meal Breaks?

The exemption does not extend to meal breaks. Employers are required to permit their drivers to take their meal breaks (at least 30 minutes after five hours, unless the shift is six hours, another 30 minutes after 10 hours, unless the shift is 12 hours) and breaks (10 minutes for every four hours worked).

Drivers are not required to log their meal and break periods. While this may seem to make things easier, it can create problems later if a driver ever claimed his or her employers never let him or her take meals or breaks, and the employer has no documentation to back it up.

The challenge is for the employer and driver to devise a system where they can ensure that the meals and breaks are taken and recorded. That's a post for another time.