Earlier today, the Federal Motor Carrier Safety Administration (FMCSA) gave notice that it will consider petitions for waiver of the FMCSA’s decisions preempting California’s and Washington’s meal and rest break rules. In those decisions, the FMCSA concluded that federal law preempted California’s and Washington’s meal and rest break rules with respect to property-carrying and passenger-carrying drivers subject to the U.S. DOT hours of service regulations. In the notice, which will be officially issued tomorrow, the FMCSA indicated it will consider petitions to waive those determinations. Before the FMCSA preemption determinations, motor carriers frequently faced class actions seeking millions of dollars in penalties related to alleged meal and rest break violations in California and Washington.

The FMCSA indicated that California and Washington (and any other states) would not need to demonstrate that the FMCSA erred in its original preemption determination. Rather, the FMCSA “encourage[d] waiver petitioners to include arguments that do not depend on a conclusion that the Agency’s preemption determinations were erroneous.” The States need only demonstrate that “the waiver is consistent with the public interest in the safe operation of commercial motor vehicles.” The FMCSA’s Notice is particularly troubling as it appears to invite the states to opine that the non-enforcement of the meal and rest break laws has been detrimental to driver health and safety. Any such opinion would be directly contrary to the FMCSA’s prior determination that those laws did not provide any additional safety benefit over those provided by the hours of service regulations.

Petitions for waiver must be filed by November 13, 2023. The FMCSA will publish the petitions and provide the opportunity for public comment.
For more information, contact Greg Feary, Prasad Sharma, Jim Hanson, and Adam Smedstad.