By Christopher J. Eckhart, Partner at Scopelitis, Garvin, Light, Hanson & Feary, P.C.

Earlier this month, the Federal Motor Carrier Safety Administration (FMCSA) gave notice that it will consider petitions requesting a waiver of the FMCSA’s decisions preempting California’s and Washington’s meal and rest break rules.

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.

But in 2018, the FMCSA concluded federal law preempted California’s meal and rest break rules with respect to property-carrying drivers subject to U.S. DOT Hours of Service (HOS) Regulations. In 2020, the FMCSA made the same determination for Washington’s meal and rest break rules and also confirmed federal law preempted California’s meal and rest break rules for passenger-carrying drivers subject to the HOS Regulations. After unsuccessful appeals by California and the Teamsters, carriers saw a significant reduction in meal and rest break class actions. If the FMCSA grants the petitions for waiver, however, the class actions will return.

In the Notice, the FMCSA indicated that California and Washington would not even 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 drivers’ 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 HOS Regulations.

The Notice is also troubling given that, under the relevant statute, the states could have filed a petition at any time after the FMCSA issued its original determinations. The fact the FMCSA issued the Notice, which all but invites California and Washington to file petitions, signals the industry will have to fight hard to defeat the initiative. And by setting the deadline for the petitions as November 13, 2023, the FMCSA will likely be able to issue a decision on the petitions before the 2024 election.

Once the FMCSA publishes the petitions, carriers will be able to file public comments in opposition.