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May 4, 2015

California Court of Appeal Decision Exposes Healthcare Employers to Litigation if They Relied upon Wage Order for Meal Period Waivers

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Employment Law Update

By Douglas Melton and Andrew Massara

In, Gerard v. Orange Coast Memorial Med. Ctr., the Fourth District Court of Appeals recently held that health care workers cannot waive their second meal break during shifts longer than 12 hours notwithstanding that Wage Order No. 5 expressly authorized healthcare workers to waive one of their two required meal periods on shifts longer than 12 hours.  The decision is a troubling development for California healthcare employers that have relied upon Wage Order No, 5 and that may now face class action lawsuits precisely because they did so.

The plaintiffs in Gerard were employed as health care workers at Orange Coast Memorial Medical Center (“Orange Coast”).  Periodically, the plaintiffs worked shifts longer than 12 hours without being provided a second meal period.

Orange Coast policy (like that of many healthcare employers) provided that health care workers working shifts longer than 10 hours could voluntarily waive their second meal period during those shifts.  The plaintiffs all signed such waivers.  Nevertheless, the plaintiffs claimed the waivers were invalid and that Orange Coast violated Labor Code §§ 226.7 and 512(a) by failing to provide a second meal period in shifts longer than 12 hours.

Orange Coast successfully moved for summary judgment arguing that Industrial Welfare Commission Wage Order No. 5 § 11(d) authorized health care employees to waive one of two meal periods on shifts longer than 8 hours.  The Fourth District Court of Appeal reversed, holding that the Wage Order is partially invalid to the extent it is inconsistent with Labor Code § 512(a).  Section 512(a) provides: “An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”  The Court of Appeal determined that the IWC had no authority to adopt a regulation that conflicts with the express language of California Labor Code.

2015MCLEMultipleActivityProviderRenewal0914_RThe decision came as a shock.  For years, California employers have generally viewed the IWC Wage Orders as legally binding — both in what the Wage Orders require and in what they allow. Healthcare employers in particular have relied on IWC Wage Order No. 5 and its provision authorizing healthcare employees to waive one of the two meal periods that are ordinarily required of non-exempt workers. This recent Court of Appeal ruling is a very troubling reversal of the rule on which health care employers have long relied.


Practice Area: Employment
Attorney: Douglas J. Melton

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