California Permits Waiver Of Second Meal Period For Health Care Employees


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Ross Boughton

Executive Summary

In Gerard v. Orange Coast Memorial Medical Center, 2018 Cal. LEXIS 9500 (Dec. 10, 2018), the final chapter of long-running saga that has produced multiple published decisions, the Supreme Court of California finally brought clarity to an unresolved question for California’s health care employers: can health care employees lawfully waive their second meal period for shifts longer than 12 hours?  In Gerard, the Supreme Court of California answered with a clear “yes.” 

Case Background

As many employers know, meal period litigation has been a hot topic in California for years.  While many aspects of California’s meal period requirements have been pinned down by the Courts over the past decade, a few unresolved issues still remain.  That list, however, got shorter this month with Gerard, which provided clarity on a narrow meal period issue unique to the health care realm.

Specifically, Gerard addressed whether health care employees could lawfully waive their second meal period for shifts longer than 12 hours.  That question hinged on the interplay between the two main sources of California’s wage and hour requirements: California’s Labor Code and the Industrial Welfare Commission’s (“IWC”) Wage Orders.  The Labor Code is comprised of statutes, all of which are passed by the Legislature.  The Wage Orders, on the other hand, were adopted by the IWC pursuant to authority provided by the Legislature.  Accordingly, the Wage Orders carry regulatory authority, but they are not statutes.  As the Labor Code is statutory (passed directly by the legislature) and the Wage Orders are regulatory (adopted by the IWC), when the two are in conflict, the Labor Code prevails.

In Gerard, the high court addressed a waiver that was explicitly permitted in the Wage Orders, but on which the Labor Code was silent.  Specifically, Wage Order Nos. 4 and 5, permit health care workers to waive their second meal period, stating:

“Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods.  In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one day’s written notice.”

Labor Code § 512, on the other hand, generally permits all employees (not just health care employees) to waive their second meal period for shifts that are between 10 and 12 hours (a second meal period is only required on shifts longer than 10 hours), but does not explicitly permit the waiver of meal periods for shifts that are longer than 12 hours, providing:

Wage Hour - social, small“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.”

Like many health care facilities, Orange Coast Memorial Medical Center (“Orange Coast”) had a longstanding policy of permitting employees to waive their second meal period, pursuant to the clear language of the Wage Orders.  Jazmina Gerard, Kristiane McElroy, and Jeffrey Carl were employees of Orange Coast Memorial.  They sued, claiming that the waiver of second meal periods for shifts longer than 12 hours violated Labor Code § 512 because that section only permitted a second meal period waiver for shifts between 10 and 12 hours and does not specifically authorize waiver for shifts over 12 hours.

After exhaustively addressing the applicable legislative and regulatory history, the high court concluded that the waiver established in the Wage Orders did not conflict with Labor Code § 512 or exceed the regulatory power of the IWC.  While that conclusion was based on a full review of the legislative history, it was based, in large part, on emergency legislation (SB 327) that was passed during the pendency of the case, which both explicitly authorized the waiver of a second meal period and suggested that the long standing waiver had always been permissible since it was adopted by the IWC years earlier.

Of note, this case was a rare instance where employee unions and management were on the same page, with both sides lobbying for the validity of the waiver.  Both sides favored the permissive waivers, as they granted health care workers flexibility in their shifts and consistency of care for their patients.

Employer’s Bottom Line

California employers operating in the health care realm may now confidently permit their employees to waive their second meal period for shifts longer than 12 hours.  However, employers should be aware that the waiver is relatively limited, applying only to qualifying health care employees and only where the waiver is 1) voluntary, 2) in writing, and 3) revocable.  As there are technical requirements for the waiver, any employers considering instituting the waiver are encouraged consult with employment counsel.

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