January 22, 2019

California Supreme Court Rebuffs Plaintiffs’ Attempt to Undo Their Agreements Waiving Second Meal Period

The California Supreme Court has upheld the ability of California health care workers who work more than twelve hours a day voluntarily to waive their second meal period, rebuffing plaintiffs’ argument that their voluntary waivers were unenforceable.  (Gerard v. Orange Coast Memorial Medical Center (Dec. 10, 2018) Case No. S241655.) 

The Labor Code generally provides that employees who work more than five hours in one day must be provided with a 30-minute meal period, and that employees who work more than 10 hours must be provided with an additional 30-minute meal period.  The Labor Code provides further that an employee who works no more than six hours may waive the meal period (to permit him to earn more or work a shorter shift), and an employee who works no more than 12 hours may waive the second meal period if he has taken the first.  A wage order of the Industrial Welfare Commission (“IWC”), however, permits health care employees to waive the second meal period even if they have worked more than 12 hours.  Consistent with the wage order, the plaintiffs in Gerard had worked more than 12 hours and had voluntarily waived their second meal period.  However, they nonetheless sued for penalties and other remedies, contending that the wage order violated the Labor Code and their waivers were therefore unenforceable. 

In a unanimous opinion, the Supreme Court rejected the plaintiffs’ contention, concluding that the Legislature had authorized the IWC to depart from the 12-hour maximum for waiving the second meal period.  The Supreme Court relied in part on a fairly technical analysis of various versions of key Labor Code provisions.  However, the Supreme Court also noted that, after the court of appeal had initially held in favor of the plaintiffs, both employers and employee unions had successfully supported legislation purporting to reverse the decision.  For example, the Supreme Court noted that the United Nurses Association of California had urged the Legislature, “UNAC members have for years enjoyed the flexibility of alternate work schedules, which allows for greater staffing flexibility and better patient care.  Patient outcomes are dramatically improved in environments where the nurses and other health care professionals can place priority on the needs of their patients without interruption by an arbitrary meal period when the shift runs long.  (RNs are generally able to eat during work time in break rooms.)… [defeating the bill] will result in a severe disruption of the lives of our members, many of whom have built a schedule of work, child care, and other obligations around the ability to waive a second meal period.”

Accordingly, Gerard may indicate a broader willingness by the Supreme Court to view employee choice, in addition to mandatory commands and prohibitions, as conducive to the public interest in the field of workplace regulation.

Jackson Lewis P.C. © 2019

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About this Author

Dylan B. Carp, Jackson Lewis, unfair competition lawyer, trade secrets law attorney
Principal

Dylan B. Carp is a Principal in the San Francisco, California, office of Jackson Lewis P.C. He is a Certified Specialist in Appellate Law by The State Bar of California Board of Legal Specialization.

Mr. Carp has argued 10 appeals before federal and state courts. In addition to appeals and writs, Mr. Carp focuses his practice on unfair competition and trade secrets law, having second chaired a three-month unfair competition jury trial.

Mr. Carp also handles all aspects of litigation in...

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