F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M I C K E Y L E E D I L T S ; R A

Y R I O S ; and D O N N Y D U S H A J , on behalf of themselves and all others similarly situated, Plaintiffs-Appellants
,

v

.

P E N S K E L O G I S T I C S , L L C; and P E N S K E T R U C K L E A S I

N G C O ., L .P., a Delaware corporation,

Defendants-Appellees
,
and

D O E S 1–125, inclusive, Defendants

. N o. 12-55705

D.C. No. 3:08-cv-00318- CAB -B L M

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the Southern District of California Cathy Ann B enciveng o, District J u dg e, Presiding

Arg ued and Submitted March 3, 2014—Pasadena, California

F iled J uly 9, 2014 Amended September 8, 2014D I L T S V

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B e fore: Alex Koz inski, Chief J udg e, Susan P. Graber, Circuit J udg e , and J ack Z ouhary
, * District J udg e.

Opinion by

J udg e Graber; Concurrence by

J udg e Z ouhary

SUMMARY * *

F ederal P reem ption

The panel filed an o r d er amending its previous opinion and concurrence, a

nd in t h e amended opinion the panel reversed the district court’s dismissal, based on federal preemption, of claims broug ht b y a certified class of drivers alleg ing v iolations of California’s m eal and rest break laws.

The p anel h eld that California’s meal and rest break laws

a s applied to the motor carrier defendants were not “rela t e d to” defendants’ prices, routes, or services, and therefore they

w e re not preempted by the F ederal Aviation A dministratio n Authoriz ation Act of 1994.

District J udg e Z ouhary concurred, a nd wrote separa t ely to emphasiz e that th e d efendant failed to carry its b urden o f proof on its preemption defense.

* T h e Ho n o rab le J ack Z o u h ary , Un ited States District J u d g e f o r th e No rth ern District o f

Oh io , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D I L T S V

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COUNSEL

Deepak Gupta (arg

ued), B r ian W olfman, Greg o r y A. B eck,

an d J onathan E. Tay lor, Gupta B e ck PL L C, Washing ton, D.C.; Michael D. Sing er a n d J

. J ason Hill, Cohelan Khoury & Sing er, San Dieg o, California, for Plaintiffs-Appellants.

J ames H

. Hanson (arg

ued), Scopelitis, Garvin, L ig ht, Hanson & F eary , P.C., I ndianapolis, I n diana; and Adam C. Smedstad, Scopelitis, Garvin, L ig ht, Ha n son & F eary , P.C., Chicag o, I llinois, for Defendants-Appellees.

J effr e y C lair (arg

ued) and Stuart F

. Delery
, Assistant Attorney s General, Civil Division, United States Department of J ustice; Kathry

n B

. Thomson, Acting General Counsel, Paul M. Geier, Assistant General Counsel for L itig ation, a nd Peter J

. Plocki, D eputy Assistant Ge n e r a l Counsel for L itig ation, United States Department o f Trans p ortation; a nd T.F

. Scott Darling
, I I I
, Chief Counsel, and Deb r a S. Straus, S e n i o r A t t o r n e y , F e d e r a l M o t o r C a r r i e r S a f e t y Administration, Washing ton, D.C., for A m i c u s C uriae United States of America.

Richard Pianka, A TA L itig ation Center, and Prasad Sharma, American Trucking Associations, I n c

. , Arling ton, Virg inia; Paul DeCamp, J ackson L ewi s L L P, Reston, Virg inia; Doug las J

. Hoffman, J ackson L ewis L L P, B oston, Ma s s a c h usetts; a

nd Robin S. Conrad and Shane B

. Kawka, National Chamber L itig ation Center, I nc., W ashing ton, D.C.; Guillermo Marrero, I nternati onal Practice Group, P.C., San Dieg o, California; and Andrew J

. Kahn a n d Richard G

. McCracken, Davis, Cowell & B o we, L L P, San F r ancisc o , California, for Amici Curiae.D I L T S V

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ORDER

The opinion f

iled on J uly 9, 2 014, and p ublished a t 2014 W L 3291749, are amended b y the opinion and concurr e n ce filed concurrently w ith this order.

W ith these amendments, Chief J udg e Koz inski and J udg e Graber h ave voted to deny the p etition for rehearing en banc, and J udg e Z ouhary

has so recommended.

The full court h as be e n advised of the petition for rehearing e n banc, and no judg e of the court has requested a vote on it.

The petition for rehearing en b anc i s D E N IED

. No further petitions for rehearing may be filed.

OP INION

GRAB ER, Circuit J udg e:
Plaintiffs, a certified class o f d rivers employ ed b y Defendants Penske L og istics, L L C, and Pens k e Truck L easing Co., L .P., appeal from a judg ment dismi s s i n g their claims under California’s meal and r est b reak laws. The district court held on su mmary judg ment that the F ederal Aviation A dministration A uthoriz a tion Act of 1994 (“ FAAAA”) preempts those state laws as applied to motor carriers. Reviewing de novo the interpre tation a nd construction of the F A AAA a n d the question of federal preemption, Tillison v. Gregoire
, 424 F

. 3 d 1 093, 1098 (9th Cir. 2005), w e hold that the state laws at issue are not “relatedD I L T S V

. P E N S K E L O G I S T I C S , I

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to” prices, routes, or services, and therefore are not p reempted by the F AAAA. According ly
, we reverse.

F ACTUAL

AND PROCEDURAL

HI STORY

Plaintiffs Mickey L ee Dilts, Ray Rios, and Donny Dushaj broug ht this class action ag ainst Defendants, which are motor

c a r r i e r s , a l l e gi n g that Defendants routinely v i o l a t e California’s meal a nd rest break laws, Cal. L a b. Code §§ 226.7, 512; Cal. Code Reg s. tit. 8
, § 11090. Plaintiffs

re p r e s e n t a certified class o f 349 delivery drivers a nd installers, all of whom are assig n ed to the Penske W hirlpool account. Plaintiffs w ork ex clusively on rout e s w i thin the state of California, ty

pically work more than 10 hours a day
, and frequently wor k i n p airs, w ith one driver and o ne deliverer/installer in each truck.

California law g enerally r equires a 30-minute meal break for every f

ive hours worked, Cal. L ab. Code § 512, a nd a p aid 10-minute rest break for every four hours worked, Cal. Code Reg s. tit. 8, § 11090. Plaintiffs alleg e that Defendants automatically prog ram 30-minute meal breaks into employ e es’ shifts while failing to ensure that empl o y ees actually tak e t h ose breaks and that Defendants create a working environment that d iscoura g e s e m p l o y e e s f rom taking their meal and rest breaks.

Plaintiffs initially filed this action in state court. Defendants removed the c ase to federal district court under the Class Action F airness Act, 28 U .S.C. § § 1 3 32(d)(2), 1441(b), 1 453. F ollowing removal, Defendants m o v e d for summary judg ment, claiming a p r eemption defense. Defendants arg

ued that the state meal and r est break laws as applied to motor carriers are preempted under the F AAAA,D I L T S V

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which provides that “States m a y n o t enact or enforce a law

. . . re l a t e d t o a price, route, or service of any motor carrier

. . . with re s p e ct to the transportation of property

. ” 49 U.S.C. § 14501(c)(1). Concluding that California’s meal and rest break laws impose “fairly rig id” timing requirements, dictating “ex actly

when” and “for ex actly

how long ” drivers must take breaks, and rest r icting the routes that a motor carrier m a y select, the district court held that California’s meal and rest break laws meet the F AAAA preemption standard and g ranted summa ry judg ment for Defendants. Dilts v. Penske Logistics L L C
, 8 1 9 F

. Supp. 2d 1109, 1119–20 (S.D. Cal. 2011). 1 Plaintiffs timely appeal.

1 S in ce Dilts w as d ecid ed
, eig h t o th er Calif o rn ia d istrict co u rt d ecisio n s h av e h eld th at t

h e FA A A A p reem

p ts Calif o rn ia’ s m eal an d rest b reak law s, w h ile f o u r h av e h eld th at it d o es n o t. T h e o th er cases th at f o llo w ed D i lts are: Ro d

rig u ez v. Old Do min io n Freig h t Lin e, In c. , No

. C V 1 3

- 8 9 1 DSF(RZ x )
, 2 0 1 3 W L 61 8 4 4 3 2
, at * 4 (C.D. Cal. No v

. 2 7
, 20 1 3 ); Pa rker v. D ea n T

ra n sp

. In c. , No

. CV 1 3

- 0 2 6 2 1 B RO(VB Kx ), 20 1 3 W L 7 0 8 3 2 6 9
, at * 9 (C.D. Cal. Oct. 1 5
, 2 0 13 ); Orteg a v. J.B. Hu n t Tra nsp ., In c. , No

. CV0 7

- 08 3 3 6 (B RO)(F M O x )
, 2 0 1 3 WL 5 9 3 3 88 9
, at * 7 (C.D. Cal. Oct. 2 , 2 0 1 3); Bu rn h a m v. Ru a n Tra n sp

. , No

. SA CV1 2

- 0 68 8 A G(A Nx ), 2 0 1 3 WL 4 56 4 4 9 6
, at * 5 (C.D. Cal. A u g

. 1 6
, 2 01 3 ); Co le v. CRS T, In c. , No

. EDCV0 8

- 1 5 7 0

- VA P (OP x ), 2 0 1 2 W L 4 47 9 2 3 7
, at * 4

– 6 (C.D. Cal. Sep t. 2 7
, 20 1 2 ) ; Ca mp b ell v. Vitra n Exp ress, In c. , No

. CV1 1

- 05 0 29

- RGK(SHx ), 2 0 1 2 W L 2 3 1 7 2 3 3
, at * 4 (C.D. Cal. J u n e 8
, 2 0 1 2 ); Ag u i a r v. Ca l. S i e r r a Exp ress, In c. , No

. 2 :1 1

- cv

- 0 2 8 2 7

- J A M- GGH, 2 01 2 W L 1 5 9 3 2 0 2
, at * 1 (E.D. Cal. May 4
, 2 0 1 2 ); Esq u ivel v. Vista r C o r p

. , No

. 2 :1 1

- cv

- 0 7 2 84

- J H N- P J W x , 2 0 1 2 W L 5 1 6 0 9 4
, at * 4

– 6 (C.D. Cal. Feb

. 8
, 2 0 1 2 ) (u n p u b l ish ed d ecisio n s ); see a lso Miller v. S w. Airlin es Co

. , 9 2 3 F. Su p p

. 2 d 12 0 6
, 1 2 1 2

– 1 3 (N.D. Cal. 2 0 1 3 ) (h o ld in g Calif o rn ia ’s b r eak law s p reem

p ted u n d er th e an alo g o u s p ro v i sio n o f th e A irlin e Dereg u latio n A ct); Held

e v. Kn i g h t Tra nsp ., In c. , 9 82 F. Su p p

. 2 d 1 1 8 9
, 1 1 9 5

– 9 6 (W .D. W ash

. 2 0 13 ) (ap p ly in g sim ilar an aly sis to W ash in g to n ’ s rest b reak p ro v isio n s an d h o ld in g th em p reem p ted u n d er th e FA A A A ). T h e cases h o l d in g th at Calif

o rn ia’ s m eal an d rest b reak law s are n o t p reem p t e d b y th e FA A A A are: Villa l

p a n d o v. Exel D irect In c. , No

. 1 2

- cv

- 0 4 1 3 7 J CS, 2 0 1 4 W L 1 3 38 2 9 7
, at * 1 2 (N.D. Cal. Mar. 2 8
, 2 0 1 4 ); Bro wn v. W a l-Ma rtD I L T S V

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D I SCUSSI ON

A. Calif ornia’s Meal and Rest Break Law s

California L abor Code sections 226

. 7 and 512, and the

r e l a t ed r e g u l a t i o n s f

o r t h e t r a n s p o r t a t i o n i n d u s t r y promulg a ted by California’s I ndustrial W elfare Commission

as California Code of Reg ulations title 8, section 11090, tog ether constitute the state’s meal and rest break laws.

Employ ers must provide a meal break of 30 minutes for

an employ ee who works more than five hours a day
, plus a second meal break of 30 minutes for an employ ee who works

more than 1 0 hours a day

. C a l

. L ab. Code § 512(a). F o r employ e es who w ork no more than six hours, the meal break may be waived by mutual consent of t h e employ e r a nd employ e e; for employ ees w ho work n o more than 12 h ours,
one of the two meal br eaks may be waived by mutual consent. Id. I f the nature of the work prevents an employ ee from taking a

n off-dut y meal break, the employ er a nd employ e e may a g r ee t o an on-duty meal break by mutual consent. Id. F or transportation wo r k ers whose d aily work time is at least three and one-half hours, employ ers must provide a p aid rest period of 10 minutes for every four hours “o r major fraction thereof.” Cal. Code Reg s. tit. 8,

S to res, In c. , No

. C0 8- 52 2 1 S I, 2 0 1 3 W L 1 7 0 1 5 8 1
, at * 3– 4 (N.D. Cal. A p r. 1 8
, 2 0 1 3 ); M

en d ez v. R+L Ca rriers, In c. , No

. C 1 1

- 24 7 8 CW
, 2 0 1 2 W L 5 8 6 8 9 7 3
, at * 4 –7 (N.D

. C a l. No v

. 1 9
, 20 1 2) (u n p u b lish ed d ecisio n s ); Rein h ard t v. Gemin i Mo to r Tra n sp

. , 8 6 9 F. Su p p

. 2 d 1 1 5 8
, 1 1 6 5

– 6 7 (E.D. Cal. 2 0 1 2 ).

T h is is th e f

irst tim e th at t

h e q u estio n is b ef

o re u s

. It is also b ef

o re u s in C a m p bell v. Vitra n Exp r ess , I n c

. , No

. 12

- 5 6 2 5 0
, w

h ich w e d ecid ed

co n cu rren t ly

in a m em o ran d u m

d i sp o sitio n

.D I L T S V

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§ 11090(12)(A). T he r e gulations g overning transportation workers are consistent with those g overning w orkers in other industries. See id. §§ 11010–11170.

An employ er may not require an e mploy e e to w ork during

a n y m e a l o r rest period. Cal. L ab. Code § 226.7(b). An employ e r must pay a

n e mploy ee for an a dditional hour o f work a t the employ ee’s r eg ular rate for each workday for which a meal or rest period is not provided. Cal. L ab. Code § 226.7(c). “[ S] ection 226.7 does not g ive employ ers a lawful choice b etween providing either meal and rest breaks

or a n ad ditional hour of pay

. . . . The failure to provide required meal and r est breaks is wh at t ri ggers a violation o f section 226.7.” Kirby v. Immoos Fire Prot., Inc.
, 274 P. 3 d 1160, 1168 (Cal. 2012). “The ‘additional hour of pay ’

. . . is the leg al remedy

. . . .” Id.

The California Supreme Court, in an opinion p u b l i shed after the order on summary judg ment iss u ed in this c ase, clarified that state laws allow some f lex ibility with respect to the timing and circumstances of meal breaks. Brinker Rest. Corp. v

. Superior Court
, 273 P.3d 513 (Cal. 2 012). I n the absence of a waiver, California law “ r e q u ires a first meal period no later than the en d o f a n e mploy ee’s fifth h our o f work, and a second meal p eriod no l a ter than the end of an employ e e’s 1 0 t h hour of work,” but “does not impose additional timing requirements.” I d. at 537. “[ A] n employ er must relieve the employ ee of all d uty for the desig nated [ meal] period, but n eed not ensure that the employ ee does no work.” Id

. a t 5 3 2. W h en the nature o f the work makes offduty meal breaks infeasible, the employ er and employ ee may , by mutual written ag reement, waive the off-duty meal break requirement. Id. at 533 (citing California’s I ndustrial W elfare Commission W ag e Order No. 5). F inally
, “as a g eneralD I L T S V

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m a tter, one rest break should f all o n e ither side of the m e al break. [ B u t s] horter or long e r shifts and other fa ctors that render such scheduling impracti cable may alter this g eneral rule,” and employ ers have f lex ibility in scheduling br e aks according to the n ature o f t h e work. Id. a t 531 (citation, brackets, and internal quotation marks omitted).

B. The “Related to” Test f or F AAAA P reem ption

I n considering the preemptive scope of a statut e, cong ressional intent “is the u ltimate touchston e

. ” Engine Mfrs. Ass’n v. S. Coast Air Qua l i ty Mgmt. Dist.
, 498 F .3d 1 0 3 1, 1040 (9th Cir. 2007) (internal quotation ma r k s omitted). “Cong ress’ intent

. . . primarily i s discerned from the lang uag e of the pre-emption st atute and the statutory framework surrounding it. Also rel e v a nt, however, is the

s t r u ct ure and purpose of the statute as a whole, as revea l e d

. . . throug h the reviewing court’s reasoned understanding o f the way in which Cong ress intended the statute an d i ts surrounding reg ulatory scheme to a ffect b usiness, consumers, and the law.” Medtronic, Inc. v. Lohr
, 518 U.S. 470, 486 (1996) (citations and internal quotation marks omitted).

“Preemption analy sis b eg ins with the presumption that Cong r ess does not intend to supplant state l a w

. A lthoug h Cong r ess cl e arly intended F AAAA to preempt some state reg ulations o f motor c arriers who transport pr o p e r t y , the

sc ope of the pre-emption must be tempered b y the presumption ag ainst the pre-emption of state p o l i c e power reg ulations.” Tillison
, 4 24 F .3d a t 1098 (citation and internal quotat i o n m arks omitted); Medtronic, Inc.
, 518 U.S. at 485;

see also W

yeth v. Levine
, 5 55 U.S. 555, 565 ( 2009) (noting th at the presumption ag ainst preemption applies “in all preemption cases” and is especially strong i n a r e as o fD I L T S V

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t r a ditional state reg u lation (internal quotation marks a n d b r a c k ets omitted). W a g e and hour laws constitute areas o f traditional state reg

ulation, althoug h that fact alone does not “immuniz e ” state employ ment laws f

rom preemption if Cong r ess in fact contemplated their p reemption. Cal. Div. of L a bor Standards Enforcement v. Dillingham Constr., N.A.
, 519 U.S. 316, 330–34 (1997).

“W here, as in this case, Cong re s s h as superseded state leg islation by statute, our task is to identify the domain

ex p ressly pre-empted. To d o so, we focus fir s t o n the statuto r y lang uag e, which necessarily contains the best evidence of Cong ress’ pre-emptive intent.” Dan’s City Used Cars, Inc. v

. P elkey
, 133 S. Ct. 1769, 1778 (2013) (citation and internal quotation m a rks omitted) (interpreting the F AAAA). The F A AAA’s preemption cla u s e provides, in relevan t p a rt: “States may not e nact or enforce a l a w

. . . related to a p rice, route, or service of a n y m o t o r
c a r r ier

. . . w ith respect to the transportation of property

. ” 49 U.S.C. § 1 4501(c)(1). The statutory “r e lated to” tex t is “deliberately ex pansive” and “conspi cu ous for its breadth.” Morales v. Trans W

orld Airlines, Inc.
, 504 U.S. 374, 383–84 (1992) (internal quotation marks om i t t e d )

. T h at said, the F AAAA does not g o so far as to preempt state laws that affect prices, routes, or services in “o n l y a tenuous, remote, o r peripheral manner, such as state laws forbidding g ambling

. ” Rowe v. N.H. Motor Transp. Ass’n
, 552 U.S. 364, 371 (2008) (internal quotation marks and a lteration omitted). As the Supreme Court recently

observed, “the breadth of the words ‘related to’ does not mean the sky is t h e limit.” Dan’s City Used Cars , 133 S. Ct. at 1778.

Be c a u se “every

thing is related to every thing else,” Dillingham Constr.
, 519 U.S. at 335 (Scalia, J
., concurring ),D I L T S V

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understanding the nua n c e s of cong ressional intent is particularly important in F AAAA preemption a n a l y s is. W e must draw a line between laws that are sig nificantly “related to” rates, routes, or services, even indirectly
, a nd thus a re p r eempted, and those that have “only a tenuous, r e mot e, o r peripheral” connection to rates, routes, o r services, an d t h u s
are n ot p reempted. Rowe
, 552 U.S. a t 371. To better discern cong ressional intent, we turn nex t to the leg islative history and b r o ad e r statutory f

ramework of the F AAAA. Lohr
, 518 U.S. at 486.

Enacted in 1994, the F AAAA w as modeled on the Airline D e reg ulation Act o f 1978. I n 2008, the Supreme Court summariz e d the history

behind the F AAAA:

I n 1978, Cong r ess “determi n [ ed] that ‘max imum reliance on competitive market forces’” w ould favor lower airline fares and better airline se rvice, and it enacted the Airline Dereg

ulation Act. M

orales [
, 5 04 U.S. at 378] (quoting 4 9 U.S.C. App. § 1302(a)(4) (1988 ed.)); see 92 Stat. 1705. I n order to “ensure that the States w ould not undo federal dereg ulation w ith reg ulation of th e i r own,” th[ e Airline Dereg

ulation] Act “inc luded a pre-emption provision” that said “no State

. . . s h a ll enact or enforce any law

. . . relati n g t o rates, routes, o r s e rvices of any air carrier.” Morales
, supra , at 378; 4 9 U .S.C. App. § 1305(a)(1) (1988 ed.).

I n 1980, Cong ress dereg ulated trucking

. See Motor Carrier Act of 1980, 9 4 Stat. 793. And a little over a d e c a d e later, in 1994,D I L T S V

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Cong r ess sim i l a r ly soug h t to pre-empt state trucking reg u lation. See F ederal Av i ation Administration A uthoriz at i on Act of 1994, 1 0 8 S t at

. 1 6 0 5

– 1 6 0 6 ; s e e a l s o I C C T e r mination Act of 1995, 109 Stat. 899. I n doing so, it borrowed lan gu a g e from the Airline Dereg

ulation Ac t of 1978 and wrote i n t o its 1994 law lang uag e that say s: “[ A ] State

. . . may n ot enact o r enforce a l a w

. . . r e l ated to a price, route, or service of any motor carrier

. . . w ith respect to the transportatio n of property .” 49 U.S.C. § 1 4501(c)(1); se e also § 41713(b)(4)(A) (similar provision for combined motor-air carriers).

Rowe
, 552 U.S. at 367–68.

B y using tex t nearly identical to the Airline D e reg ulation A c t’s, Cong r ess meant to create parity between freig ht services provided by a ir carriers a nd those provided by motor carriers. Californians for Safe & Compet i t i v e Dump Truck Transp. v. Mendonca
, 152 F .3d 1184, 1187 (9 t h C ir. 1998). Therefore, the analy sis from M o r ales and other Airline Dereg ulation Act cases is instructive for our F AAAA analy sis

as w ell. The one difference between the Airline D e reg ulation Act and the F AAAA is that the latter contains the additional phrase “with respect to the transportation of property , ” which is absent from the Airline Dereg u latio n Act and which “massively limits the scope of preemption ordered by the F AAAA.” D an’s City Used Cars
, 133 S. Ct. a t 1778 (internal quo t a tion marks omitted). Here, the parties do not dispute that the transportation o f property is involved, so our analy sisD I L T S V

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turns on the “ related to price, route, or service” e lement o f the F AAAA preemption test.

The principa l p urpose of the F AAAA was “to prevent States from undermining federal dereg ulation of interstate trucking ” throug h a “patchwork” of state reg u lations

. A m

. Trucking Ass’ns v. City of Los Angeles
, 660 F .3d 384, 395–96 (9th Cir. 2 011). The sorts of laws that C o n gr ess considered when enacting the F AAAA included b a r riers to entry , tariffs, pr i ce reg ulations, and laws g overning the ty pes o f commodities that a carrier could transport. H.R. Conf. Rep. No. 103-677, at 86 (1994), repr i nted in 1994 U.S.C.C.A.N. 1 7 1 5, 1758. The F AAAA ex pressly d oes n ot r eg ulat e a sta t e ’s authority to: enact safety reg ulations with respect to motor vehicles; control trucking routes based o n vehicle siz e , weig ht, and carg o; impose certain insuranc e, l i a bility
, o r standard transportation rules; r eg ulate the intrastate transport of househo l d g oods and certain a spects of tow-truck operations; or create certain uniform c a r go or antitrust immunity rules. 49 U.S.C. § 14501(c)(2), (3). This list was “not intended to be all inclusive, but merely to specify

some of the matters which are n ot ‘ pr i c es, rates or services’ a nd which are therefore n ot preempted.” H.R. Conf. Rep

. N o

. 103-677, at 8 4
, r eprinted in 1994 U.S.C.C.A.N. at 1756. According ly
, Cong ress d id not intend to preempt g enerally applicable state transportation, safety
, welfare, or business rules that do not otherwise reg ulate prices, routes, or services. Consistent with that instruction, w e have held that the F AAAA does not preempt a state’s preva i ling w ag e law, Mendonca
, 152 F

. 3d at 1189, or a state law requir i n g t h at towing services obt ain e x press authoriz ation to tow from pri v a t e property , Tillison
, 424 F .3d at 1099–1100, and that the Airline Dereg

ulation Act does not p reempt a g ene r ally applicable city

anti-discrimination law, Air Transp. Ass’n ofD I L T S V

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Am. v. City of San Francisco , 266 F

. 3d 1064, 1071 (9th Cir. 2001).

I n 2008, after reviewing t h e r e levant statutory tex t, leg islative history
, and j urisprudence, the Supreme Court identified four principles of F AAAA preemption: ( 1) “‘state enforcement actions having a connection with, or r e ference to,’ carrier ‘ rates, routes o r services’ are pre-empted”; (2) “ such p re-emption may occur e ven if a state law’s effect

on rates, routes or services ‘is only indirect’ ” ; (3) “ it makes

no difference whether a sta t e l aw is ‘consistent’ o r ‘inconsistent’ with federal reg ulation”; a nd ( 4) “ pre-emption

occurs a t least w h e r e state laws have a ‘sig nificant impact’ related to Cong ress’ dereg ulatory and pre-emption-related objectives.” Rowe
, 5 5 2 U .S. at 370–71 (brackets a nd emphasis omitted) (quoting the Airline Dereg ulation A ct analy sis in M

orales , 504 U.S. at 384, 386–87, 390).

Contrary to Defendant s ’ arg ument, Rowe did not represent a sig nificant shift in F AAAA jurisprudence. Nor d i d i t call into question o ur past F AAAA cases, such a s Mendonca
, 152 F .3d a t 1187–89. See a lso Miller v. Gammie
, 335 F .3d 8 89, 892–93 ( 9th Cir. 2003) ( en banc) (holding that

a three-judg e panel may ig nore binding circuit precedent only if it is “clearly

irreconcilable with the reasoningor theory of intervening hig her authority ”). Rowe instructs us to apply to

our F AAAA cases the settled preemption pri n c iples developed in Airline Dereg ulation Act cases, including the

r u l e articulated in Morales that a state law may “relate t o ” prices, routes, or services for preemption purposes even if its effect is only indirect, 504 U.S. a t 385–86, but that a state law connected to prices, routes, or services in “too te n u o us, remote, or peripheral a manner” is not preempted, id. at 390 (internal quotation marks omitted). S ee a lso H.R. Conf. Rep.D I L T S V

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No. 103-677, at 83, reprinted in 1994 U.S.C.C.A.N. at 1755 (noting that the drafters of the F AAAA did “not intend to alter the broad preemption interpretation adopt e d by the United States Supreme Court in Morales ” ). W e a pplied precisely that rule in Mendonca
, 152 F .3d at 1187–89. Rowe simply reminds us that, whether t h e effect is direct o r indirect, “the state laws w h o s e effect is forbidden under federal law are those with a significant impact on c arrier rates, routes, or services.” 552 U.S. at 375 (internal quotation marks omitted).

Rowe concerned a Maine law requiring tobacco retailers to use a delivery

service that provided recipient verification. The Supreme Court held t h a t the v erification r equirement interfered with the de-reg ulatory g oals behind the F AAAA’s preemption clause because it would “require carriers to offer

a sy stem of service s t h a t the market does not p rovide[ ,]

. . . would freez e into place services that carriers mig ht prefer to discontinue in the future,” and would d irectly substitute Ma i n e’s “own g o vernmental commands for competitive market forces in determining ( to a si gn i f icant deg ree) the services that motor carriers wil l provide.” 552 U.S. at 372 (internal quotation marks omit t ed ). The Maine statute also required that carriers prov i de a special checking sy stem to

re c e i v e any shipment orig inating f rom a known tobacco retai l e r

. Id. at 373. The Supreme Court held that requiring the car riers to check packag es in this w ay would “ reg ulate a si gn i f i cant aspect o f the motor carrier’s packag e pickup a nd delivery service” and, ag ain, could freez e into place services that the market would not otherwise provide. Id.

I n short, the Maine statute required carriers to provide o r
use certain speci a l s e rvices in order to comply with the law. The statute was, as we have described other preempted laws,D I L T S V

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one in which “the ex istence o f a price, route or service [was] essential to the law’s operation.” Air Transp. Ass’n
, 266 F .3d at 1071 ( i nternal quotation marks and brackets omitted). I n
an Airline Dereg

ulation Act case following Rowe
, we h eld that, in “‘borderline’ ca s e s ” in w hich a law does not refer directly to rates, routes, or services, “the proper inqu i r y i s whether the provision, d irectly or indirectly
, binds the carrier to a particular price, route or servic e a n d thereby interferes with the competitive market f orces w ithin the industry .” A m

. Trucking
, 660 F .3d a t 3 97 (emphasis added) (internal quotation marks and alterations omi t t e d ). Thus, laws mandating motor c ar r iers’ use (or non-use) of particular prices, routes, or services in o rder to comply with the law a re preempted.

L aws are more likely to be preempted when they operate

a t t h e point w here carriers provide services to customers at specific prices. I n Northwest, Inc. v. Ginsberg
, 134 S. Ct. 1422, 1431 (2014), the Supreme Court h e ld that a n airline customer’s claim ag ainst the airline for breach o f an implied covenant, stemming from the termination of his frequent fly er account, was “related to” prices, routes, and es p ecially services. The Court held that, because frequent fly er credits could be redeemed for services offered for free or a t reduced prices, t h e state law contract claim met the “related to” test, id.
, and, b ecause the s t a t e l aw claim soug ht to enlarg e the contractual relationship that the carrier and its customer h ad voluntarily undertaken, was p reempted under the Airline Dereg ulation Act, id. at 1433; see also S.C. Johnson & Son v

. Transp. Corp. of Am.
, 6 97 F

. 3d 5 44, 558 ( 7 t h C i r

. 2 012) (noting that Morales and Mendonca both s t a n d for the proposition that the Airline Dereg ulation Act and F AAAA do not preempt “laws that reg ulate . . . inputs [ that] operate one

or more steps away from the moment at which the firm offersD I L T S V

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its customer a service for a particular p rice”); DiFiore v. A m

. Airlines, Inc.
, 646 F .3d 81, 88 ( 1st Cir. 2011) (the p reempted law “directly reg ulates how an a irline service is performed and how its price is display ed to customers—not merely h ow the airline behaves as an employ er or proprietor”).

On the o t h e r hand, g enerally a pplicable backg r ound reg ulations that are several steps removed from prices, routes,

o r services, such a s prevailing wag e laws or s a f et y reg ulations, are not preempted, even if employ ers must factor those provisions into their decisions a bout the prices that they set, the routes that they use, or the services that they provide. Such laws are not preempted even if they rais e the overall

cos t o f doing business or r equire a c a rrier to re-direct or reroute some equipment. Mendonca
, 152 F .3d at 1189. I ndeed, many of the laws that Cong ress enumerated as ex pressly not related t o prices, routes, or services—such as transportation safety regu l a t i o ns or insurance and liability rules, 49 U .S.C. § 14501(c)(2)—are likely to increase a motor ca r r i er’s operating costs. B ut Cong ress c larified that t h i s f act alone d o es not make such laws “related to” prices, routes, o r services. Nearly

every form of state reg ulation carries some cost. The statutory

tex t tells us, thoug h, that in deregulating motor carrie r s and promoting max imum reliance on market forces, Cong ress did not intend to ex empt motor c arriers from every state reg u latory scheme of g e neral applicability

. 49 U.S.C. § 14501( c ) ; s e e a lso, e.g. , Rowe
, 552 U.S. at 375 (holding that a state law is not preempted when it “prohibits certain forms of conduct a nd affects, say , tr u ckdrivers, only in their capacity as members of the public”).

Nor does a state law meet the “related t o ” test for F AAAA preemption just because it shif t s i ncentives a

nd makes it more costly for motor carriers to choose some routesD I L T S V

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or services relative to others, leading the carriers to r eallocate

resources or make different b u siness decisions. F or ex ample,

a San F rancisco city ordinance requiring equal protection for domestic partners did not “c o m p e l o r b ind the Airlines to a particular route or service,” even thoug h it mig ht increase the cost of doing business at the San F rancisco airport relative to other markets. Air Transp. Ass’n
, 266 F .3d at 1074. Despite the potential cost increase a s s ociated with using the San F r a n c i s co airport as a result of the c ity ordinance, c arriers could still “make their own d ecisions about where to fly and how many resources to devote to each route and service.” Id.

I n short, ev e n i f state laws increase or chang e a motor carrier’s operating c osts, “broad law[ s] apply ing to hundreds of diff e r e n t industries” with no other “forbidden connection with prices[
, routes,] and services”—that is, those that do not directly or indirectly mandate, p rohibit, o r otherwise reg ulate certain prices, routes, or services— are not preempted by the F AAAA. Id. at 1072.

C. Calif or nia’s Meal and Rest Break Law s are Not P reem pted
Althoug h we have in the past confronted close cases that have r equired us t o s t ru g g le with the “related to” test, a nd refine our p rinciples of F AAAA p reemption, we do not think that this is one o f t h em

. I n lig h t of the F AAAA preemption principles outl i n e d above, California’s meal and rest break laws plainly a r e not the sorts of laws “related to” prices, routes, or services that Cong ress intended to preempt. They do not set prices
, m a n d a t e or prohibit c ertain routes, or tell motor carriers what services they may or may n o t pr o v ide, either directly or indirectly

. They are “broad law[ s] a pply ing to h undreds of different industries” with no other “forbiddenD I L T S V

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c o nnection with prices[
, routes,] and services.” Air Tran s p

. Ass’n
, 266 F .3d at 1072. They a re normal backg

round rules for almost all em p l o y e r s doing business in the state o f California. And while motor carriers may have to take into account the meal and rest break requirements when allocating

resources and scheduling routes—just as they must take into account state wag e laws, M endonca
, 15 2 F .3d at 1 1 89, o r
s p e e d l i m i t s a n d w e i g h t r e s t r i c t i o n s , 4 9 U

. S

. C

. § 1 4501(c)(2)—the laws do not “bind” motor c arriers to specific prices, routes, o r services, Am. Trucking
, 6 60 F .3d at 397. Nor do th e y “ f

r e e ze into place” prices, routes, o r services or “determin[ e] (to a sig nificant deg ree) the [ prices, routes, o r] services that motor car ri er s will provide,” R o we , 552 U.S. at 372.

F urther, apply ing California’s meal a nd rest break laws to motor carriers would not c ontrib u t e to an impermissible “patchwork” of state-specific laws, defeating Cong ress’ dereg ulatory objectives. The fact that laws ma y d i f fer from st a t e to state is not, on its own, cause for F AAAA preempt i o n

. I n the preemption provision, Cong ress was concerned only with those state l aw s t hat are sig nificantly “related to” prices, routes, or services. A state law g overning hours is, for the f

o r eg o ing reasons, not “related to” prices, routes, or services and therefore does not contribute to “a patchwork of state ser v ice-determining laws, r u les, a nd reg ulations.” Rowe
, 552 U.S. at 373 ( emphasis a dded). I t is instead more analog ous to a state wag e law, which may differ f rom the wag e law adopted in neig hboring states but nevertheless is permissible. Mendonca , 152 F .3d at 1189. 2

2 W e recen tly

n o ted th at it w as an “ o p en issu e” “ w h eth er a f ed eral law

can ev er p reem

p t state law o n an ‘ as a p p l i e d ’ b asis, th at i s, w h eth er it is p ro p er to f

in d th at f

ed eral law p reem

p ts a state reg u lato ry s ch em eD I L T S V

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Defendants arg u e that Califor nia’s meal and rest break laws are “related to” routes or services, “if n ot p rices too,” in six specific way s. None of those ex amples c onvinces u s that California’s laws are “related to” prices, routes, o r services in the way that Cong ress intended.

First, Defendants a

rg ue that the state break l a w s impermissibly mandate th a t no motor carrier service be provided d u r i n g certain times because the laws r e quire a cessation of work during

the break period. B ut the state law requires only

that e a ch individual employee take an off-duty break at some point within specified windows—not that a motor carrier suspend its service. Defendants are at liberty to schedule service wheneve r t h ey choose. They simply must hire a s u f f i c ient number of d

rivers and stag g er their breaks for any long period in which continuous service is necessary

.

so m etim es b u t n o t at o th er tim es, or th at a f ed eral law can p reem

p t state law w h en ap plied to certain p arties, b u t n o t to oth e r s

. ” C a l

. To w Tru ck Ass’n v. City o

f S a n Fra n cisc o , 6 93 F.3 d 8 4 7
, 8 6 5 (9 th Cir. 2 0 12 ). W e
n eed n o t reso lv e th at issu e h ere. Fo r t h e reaso n s d iscu ssed in th is sectio n , w e h o l d th at Calif

o rn ia’ s m eal an d rest b reak law s, as g en erally ap p lied to

m o to r carriers, are n o t p reem p ted

.

W ere w e to co n stru e D ef en d an t’ s arg u m en t as an “ as ap p l ied ” ch allen g e, w e w o u ld reach th e sam e co n clu sio n an d
, if an y th in g , f in d th e arg u m en t ag ain st p reem

p tio n ev en stro n g er. Plain tif f d ri v e r s w o rk on sh o rt- h au l ro u tes an d w o r k ex clu siv ely w ith in th e s tate o f Calif o rn ia. T h ey th eref

o re are n o t co v ered b y o th er state law s o r f ed er a l ho u r s

- o f

serv ice reg u latio n s, 4 9 C.F.R. § 3 9 5 .3 , an d w o u ld b e w ith o u t a n y h o u rso f

- serv ice lim its i f Calif

orn ia law s d id n o t ap p ly to th e m

. S e e H o u rs o f S ervice o f Drivers
, 7 8 Fed

. Reg

. 64 ,1 7 9

- 0 1, 64 ,1 81 ( O c t

. 2 8, 20 1 3) (am en d in g 4 9 C.F.R. § 3 9 5 .3 t o ex clu d e sh o rt- h au l d riv ers, in co m p lian ce

w ith Am. Tru ckin g Ass’n s v. Fed

. M o to r Ca rrier S

a fety Ad min

. , 72 4 F.3 d 2 4 3 (D.C. Cir. 2 0 1 3 ), cert. d en ied
, 1 3 4 S. Ct. 9 1 4 (2 0 1 4 )). Co n seq u en t ly
, Def en d an ts in p a rt i c u l a r are n o t co n f ro n ted w ith a “ p atch w o rk ” o f h ou r
an d b reak law s, ev en

a “ p atch w o rk ” p erm issib le u n d er th e FA A A A

.D I L T S V

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Second, Defendants arg ue that mandatory brea k s mean that drivers take long er to drive the same distance, providing less service overall. B ut that a r gu m e nt equates to nothing

more than a modestly increased cost o f doing business, which is not cause for p reempti o n, Air Transp. Ass’n
, 266 F .3d at 1071; Mendonca
, 152 F .3d at 1189. Motor carriers may have to hire additional drivers or reallocate resour c e s i n order to maintain a particular service level, but t h ey remain free to provide a s ma n y (or a s few) services as they wish. The law in question h as nothing to say about what services an employ e r does or does not provide.

Third, Defendants argu e t h at break laws r equire c arriers to alter “the frequency and scheduling of transportation,” which directly relates to s e rvices under Charas v. Trans W orld Airlines, Inc.
, 160 F .3d 1259, 1265–66 (9th Cir. 1 998) (en banc). Charas held that, under the A irline D e reg ulation Act, services include “such thing s as the frequency a nd scheduling of transportation, and

. . . the selection o f markets to or from w hich transportation is provided.” Id. Ag ain, this arg ument conflates requirements for i n d ividual drivers with requirements imposed on motor carriers. Motor carriers may schedule transportation as fre q u e n t ly o r as infrequently a s they choose, at the ti m e s that they choose, and still comply with the law. They simply must take drivers’ break times into account—just as they

must take into account speed limits or weig ht r estrictions, 49 U.S.C. § 14501(c), w hich a re not preempted by

the F AAAA.

F ourth, D efen d a

nts arg ue that California break laws require motor carriers to schedule services in accordance with state law, rather than in response to mark et forces, thereby interfering w ith the F AAA A ’s dereg u latory objectives. B ut t he mere fact that a motor c arrier must take into accoun t aD I L T S V

. P E N S K E L O G I S T I C S , I

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. 22

state r eg ulation w h e n planning services is not sufficient to require F AAAA preemption, so long as the law does not have

a n impermissible effect, such as binding motor carriers t o specific services, Am. Trucking
, 660 F .3d at 397, making the continued provision of p articular services essential to compliance with the law, Rowe
, 552 U.S. at 372; Air Transp. Ass’n
, 266 F .3d at 1074, or interfering at the point that a carrier p r ovides services to its customers, Nw., Inc.
, 134 S. Ct. at 1431. Moreover, all motor car r i ers in California a

re subject to the same laws, so a l l i ntrastate carriers like Defendants are equally subject to the relevant market forces.

Turning to routes, D efendants’ f ifth arg ument is that the requirement that drivers pull over and stop f o r each break period necessarily dictates that they alter their routes. To the

ex tent that compliance with California law requires d rivers to make minor d e viations from their r outes, such as pulling into

a truck stop, we see no indication that this is the sort of “route control” that Cong r e ss soug ht to p reempt. “ ‘[ R ] outes’ g enerally refer[ s] to

. . . point-to-point transport

. . . [ and]

courses of travel.” Charas
, 160 F .3d at 1265. The requirement that a driver briefly pu l l o n a nd off the road during the c ourse of travel do e s n o t meaning fully interfere with a motor carrie r’ s a b i lity to select its starting p o ints, destinations, and r outes. I ndeed
, C o ng ress has made clear that even more onerous route r estrictions, su c h as w eig ht limits o n particul a r r oads, a r e n ot “related to” routes a nd therefore are not preempted. 49 U.S.C. § 14501(c).

Six th, and relatedly
, D efendants arg u e that finding routes that a llow drivers to comply with California’s m e a l and r e st break laws will limit m o tor carriers to a smaller set o f possible r outes. B ut Def e n d a nts, w ho bear the burden o f proof in establishing the affirm ative d efense of preemption,D I L T S V

. P E N S K E L O G I S T I C S , I

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. 23

P L I VA, Inc. v. Mensing
, 131 S. Ct. 2567, 2587 (2011 ), submitted no evidence t o s h o w that the break laws in fact would decrease the availability o f routes t o s e rve the W h irlpool accounts, o r would meaning fully decrease the availability of routes to motor carriers in California. I nstead, Defendants submitted only very g eneral information about the difficulty of finding parking for commercial tr u c k s in California. A lthoug h compliance with California’s meal a nd break laws may require some m i n o r adjustments to drivers’ routes, the record fails to sug ge st that state meal and r e st break r equirements w ill so restrict the set of routes available

as to indirectly bind Defendants, or motor carriers g enerally
, to a limited set of routes, A m. Trucking , 660 F .3d at 397, or make the provision or use of specific routes n e ce s sary for compliance with the la w, A i r Transp. Ass’n
, 226 F .3d at 1074. Moreover, drivers already must incorporate into their schedule f

uel breaks, pick ups, drop offs and, in some cases, time to in s t a l l products or wait for their partner to complete an installation.

F inally
, in an a micus brief filed at our invi t a t i on, the Secretary of T ransportation arg ue d t h a t: (1) state laws like California’s, which do not directly reg ulate prices, routes, o r services, are not preempted by the F A AAA unless they have

a “sig nificant e ffect” on prices, routes, or services; (2) in the absence of ex plicit instructions fr o m Cong ress, there is a presump tion ag ainst preemption in areas of traditional state police power, including e mploy me n t; and (3) there is no
s h owing of a

n actual or likely sig nificant effect on pric e s , routes, or services, and so the California laws at issue a re not preempted. See a lso Meal Breaks and Re st B reaks for Commercial Motor Vehicle Drivers
, 73 F ed. Reg

. 79,204-01, 79,206 (Dec. 24, 2008) (d etermining
, in an order issued b y the Department of Transportation, that the ag ency lackedD I L T S V

. P E N S K E L O G I S T I C S , I

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jurisdiction to preempt California’s meal and rest break laws under another statute, 49 U.S.C. § 31141, because those state laws are not “law s [or] reg ulations on commercial motor safety ”).

A l t h o u gh t h e D e p a rt m e n t of Tr a n s p o r t a t i o n ’s i nterpretation of the F AAAA is not controlling
, we f i n d i t persuasive in lig ht of: (1) the ag enc y ’ s ge n e ral ex pertise in the field of transportation a nd r eg u lation, (2) the fact that the position taken in the brief repr e s ents the ag ency ’s reasoned consideration o f t he question, a nd (3) the fact that the g overnment’s position is g enerally consistent w ith i t s
a pproach to o ther preemption q uestions concerning C a l i fornia’s meal and rest break laws (althoug h this is t h e first time that the g o vernment has taken a position on F AAAA preemption specifically )

. See Skidmore v. Swift & Co.
, 323 U.S. 134, 140 (1944) (holding that a non-controlling ag ency opinion may carry persuasive w e i g ht, depending on “the thoroug hness evident in its consideration, the validity o f its reason ing
, its consistency with earlier and later pronouncements, and all those factors which g ive it power to persuade, if lacking

power to control”); see also Van Asdale

v. Int’l Game Tech.
, No. 11-16538, 2014 W L 3973388, at *3 (9th Cir. Aug

. 15, 2014) (apply ing Skidmore deference to the Department o f L ab o r ’ s view on the appropriate statutory interpretation of a damag es provision in the Sarbanes-Ox ley Act of 2002, as ex pressed in the ag ency ’s amicus brief).

F or the reasons discussed above, we a gr ee w ith the Department of Transportation. Althoug h we would reach the

sam e result in the absence of the ag ency ’s brief, the g overnment’s position provides a dditional support f o r our
co n c l u s ion that the F A AAA does n ot preempt California’s meal and rest break laws.D I L T S V

. P E N S K E L O G I S T I C S , I

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CONCL USI ON

The F A AAA does not preempt California’s meal and r e st break laws a s applied to Defendants, because those state laws

are n ot “related to” Defendant s ’ prices, routes, or services. The district court dismissed this action on summary judg ment because o f Defendants’ preemption defense, so it has n o t y et considered the merits of Plaintiffs’ c laims. According ly
, we
reverse and r emand f

or further proceeding s consistent with this opinion.

REVERSED and REMANDED.

Z O UHARY, District J udg e , concurring :

I write separately to emphasiz e several aspects o f t h i s
case. As the Majority n o tes, Penske bears the burden of proof on its preemption defense. See supra at 22. B ut Penske did not offer specific evidence of (for ex ample) the actual effects

o f the California law on Penske’s o wn routes or services

. I nstead, Penske relied on a g e neral hy p otheti c al likelihood that a Penske delivery driver, with limited flex i b i lity in traveling f

rom point A to p oint B
, is f u rther restricted to certain routes that would allow a dr i v er to park his or her truck and enter “off-duty

” status.

Penske failed to c arry its burden. I consequently ex press
no opinion, for ex ample, that the possibility a “ driver [ must] br i e f l y p u ll on and o ff the road during the course of travel does not meaningfully interfere with a motor carrier’s ability to select its s t arting points, destinations, and routes.” Id. (emphases added). May

be so. May

be not.D I L T S V

. P E N S K E L O G I S T I C S , I

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. 26

F urther, the Majority incorrectly p osits t h a t Defendants

are at liberty to schedule as they c h o o se, tempered only b y hiring more drivers and stag g ering breaks. Customer demands and practicalities must also be considered. A s in air and train transportation, s ubstitution crews may now be needed w hen hours of service are reached with some ex pense, delay
, and impact on service. W ith respect to costs-of-labor, Penske did produce specific evidence, r eflecting a n e stimated 3.4 percent increase in annual pricin g t o s e rvice a relevant account. W ithout more, that minimal increase in pricing is an insufficient b asis for preempting the decades-o ld meal a nd rest break r equirement. Mendonca
, 152 F .3d at 1189 (finding California’s prevailing wag e requirement, which increased a motor-carrier d efendant’s pr i c e s by 25 percent, “in a c ertain

sense

. . . ‘ related to’ [ the motor carrier-defendant’s] prices, routes a nd services,” but had an effect that was “no more than indirect, remote, and tenuous”).

F inally
, I note what this case is not about. This case is not

an occasio n for u s to reex amine prior precedent – the discussion of Rowe
, Northwest Airlines, Inc.
, and Gammie makes that c lear. Nor is this case about F AAAA preemption in the contex t of interstate t rucking – thoug h one g e ts the

sense that v arious amici w ish it w ere. On this record, and in t h e i n trastate contex t, California’s meal and rest break requirements are not preempted.