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California Wage Order No. 5-2001 Partially Invalidated: Healthcare Workers Cannot Waive Their Second Meal Period When Working More Than 12 Hours

In a recent turn of events, the California Court of Appeal ruled in Gerard v. Orange Coast Memorial Medical Center (Feb. 10, 2015) that healthcare workers cannot waive their second meal period when working shifts in excess of 12-hours despite the Industrial Welfare Commission’s (“IWC”) order to the contrary. The court found that the IWC lacked authority to circumvent the California Labor Code and, therefore, partially invalidated Wage Order No. 5-2001, which governs the healthcare industry.

Applicable Law

Employers in California must provide non-exempt employees with meal breaks. If employees are not provided compliant meal periods, they must be paid a penalty for any such violations. Labor Code § 226.7(b), (c).

While the law requires that employers provide non-exempt employees with meal breaks, employees are permitted to waive their meal periods in limited circumstances. For example, if the workday is “no more than six hours, then the meal period may be waived by mutual consent of both the employer and the employee.” Cal. Lab. Code § 512(a). Moreover, Labor Code Section 512(a) also 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. (Emphasis added.)

Wage Order No. 5-2001 Is Invalid in Part

The IWC has the authority to regulate wages, hours and working conditions for non-exempt employees in California. Pursuant to Labor Code Section 516, the IWC may “adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers in California consistent with the health and welfare of those workers.” However, the law expressly states that the IWC may not promulgate wage orders that violate Labor Code Section 512. Wage Order No. 5-2001 does expressly that.

Wage Order No. 5-2001, Section 11(D) provides: “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.” (Emphasis added.) As the court noted, this provision ultimately “sanction[ed] second meal period waivers for health care employees who work shifts of more than 12 hours, while [Labor Code Section 512(a)] allows such waivers only if the total hours worked is no more than 12 hours.”

The court found no reasonable justification for extending the waiver provision to healthcare employees working shifts longer than 12-hours. Rather, the court determined that the legislative history intended to “prohibit the IWC from amending its wage orders in ways that conflict with meal period requirements in section 512, including the proviso second meal periods may be waived only if the total hours worked is less than 12 hours.”

Going Forward

While the court declined to rule on the retroactive application of its decision, it did state that Labor Code Section 226.7 violations would still apply. That is, the court held that healthcare workers are entitled to seek penalty pay under Labor Code Section 226.7(c) for any failure by their employers to provide mandatory second meal periods within the requisite statute of limitations. Going forward, healthcare employers should immediately review their meal waiver policies.

Jackson Lewis P.C. © 2023National Law Review, Volume V, Number 50
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About this Author

Carly B. Plaskin, jackson lewis, los angeles, labor, employment, litigation
Associate

Carly B. Plaskin is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Ms. Plaskin was the Senior Comments Editor for theJournal of International Law. She also interned for the Equal Employment Opportunity Commission in San Jose and served as an extern at the Superior Court of California County of Santa Clara. Ms. Plaskin was the recipient of the Emery Merit Scholarship and the Herman M....

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