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Effective Immediately: California Urgency Legislation Confirms Second Meal Period Waiver for Healthcare Workers

Senate Bill 327 overturns Gerard v. Orange Coast Medical Center, confirming that healthcare workers can waive their second meal period.

On October 5, California Governor Jerry Brown signed into law Senate Bill 327 (SB 327)—enacted as urgency legislation and effective immediately—to declare that employees who work in the healthcare industry may waive their second meal period, even when they work shifts that exceed twelve hours.

California Labor Code Section 512 requires employers to provide two meal periods to employees who work more than ten hours per workday. Employees are permitted to waive their second meal period, but only if their shift does not exceed twelve hours. In 2000, the Industrial Welfare Commission (IWC) promulgated new regulations to Wage Orders 4 and 5, creating a special meal period waiver provision for employees in the healthcare industry that permitted such employees to waive their second meal period when they work more than eight hours per day, without further limitation.

In light of the potential conflict between the meal period waiver provisions in Section 512 and Wage Orders 4 and 5, the California Court of Appeal in Gerard v. Orange Coast Medical Center[1] determined that the IWC had exceeded its authority by creating an exception to Labor Code Section 512’s meal period waiver requirements for healthcare employees. The court thus held that the second meal period waiver provisions in Wage Orders 4 and 5 were invalid.

With the enactment of SB 327, however, the court’s decision in Gerard—currently pending review in the California Supreme Court—is no longer applicable. Therefore, the second meal period waiver provisions in Wage Orders 4 and 5 stand valid and enforceable. With the passage of SB 327, employers in the healthcare industry may once again implement and enforce second meal period waivers, including for employees who work shifts that exceed twelve hours.

[1] 234 Cal. App. 4th 285 (2015)

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About this Author

Michael D. Schlemmer, Morgan Lewis, Employment lawyer

Michael D. Schlemmer counsels businesses on all aspects of their employment law needs. Michael also defends clients in US federal and state courts and arbitration on class, collective, representative, and single-plaintiff employment litigation matters. His practice includes wage and hour class and collective actions, and discrimination, harassment, retaliation, wrongful termination, breach of contract, and leave issues. In addition, he handles employment-related aspects of mergers and acquisitions, and provides training on employment law compliance.

Carol R. Freeman, employment, labor issues lawyer, Morgan Lewis law firm

Employers turn to Carol R. Freeman for advice in connection with all aspects of labor and employment issues and related administrative claims and litigation. As part of her practice, she advises clients on employee relations, personnel policies, wage and hour laws, EEO compliance, leaves of absences, hiring, discipline, and termination. Clients also seek Carol’s counsel about internal investigations, restrictive covenants, whistleblower claims, contingent workforce, and reductions in force.