State Agency's Opinion Letters Regarding Off-Duty Meals May Have Been Invalid "Underground Regulations"
Westside Concrete Co. v. Dep't of Indus. Relations, 123 Cal. App. 4th 1317 (2004)
Westside Concrete Company sought a judicial declaration that the Division of Labor Standards Enforcement's opinion letters interpreting Wage Order 1 regarding off-duty meal periods were "administrative regulations" subject to the rulemaking provisions of the Administrative Procedure Act (APA). In response, the DLSE successfully demurred to the complaint on the ground that the opinion letters are not subject to the procedural requirements of the APA. However, the Court of Appeal agreed with Westside Concrete that there is a factual dispute as to whether the letters in question were intended by the agency to be of general application to the statewide ready-mix concrete industry and, therefore, reversed the dismissal on demurrer entered by the trial court. Cf. Clark v. United Emergency Animal Clinic, 390 F.3d 1124 (9th Cir. 2004) (veterinarians are exempt employees under the FLSA).
