A couple of years ago, in 2015, the California Court of Appeal in Gerard v. Orange Coast Memorial Medical Center, threw the healthcare industry a vicious knuckleball. (Welcome back spring training!)  The healthcare industry’s wage order, Wage Order 5, Section 11(D) contains a special meal period waiver for “employees in the healthcare industry.” 

“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.” (Italics added.)

That waiver’s different from the second meal period waiver that applies to employers generally, contained in Labor Code section 512(a):

“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.” (Italics added.)

But the Court of Appeal in invalidated the special section 11(D) waiver, deciding that the legislature had precluded the Industrial Welfare Commission from lawfully issuing section 11(D).  

The legislature responded with a bill, SB 372, that overturned Gerard:

“Notwithstanding subdivision (a), or any other law, including Section 512, the health care employee meal period waiver provisions in Section 11(D) of [IWC] Wage Orders 4 and 5 were valid and enforceable on and after October 1, 2000, and continue to be valid and enforceable. This subdivision is declarative of, and clarifies, existing law.”1 (SB 327, § 2.)

The California Supreme Court then granted review of the Court of Appeal’s original ruling,  and vacated the judgment. The Court, without opinion, sent the case back to the Court of Appeal to reconsider its ruling in light of SB 327, quoted above.  

And that brings us up to date.  The Court of Appeal how has issued a new, unpublished, opinion, upholding the Wage Order’s second meal period waiver for healthcare industry employees. 

In short, section 11(D) is valid—not invalid. It was specifically authorized by the AB 60 version of section 516(a) in effect on the date it was adopted, even though it conflicts with section 512(a) to the extent it sanctions second meal period waivers for health care employees on shifts of more than 12 hours. (See also § 517, subd. (a) [IWC shall adopt by July 1, 2000, “wage, hours, and working conditions orders consistent with this chapter . . . .”) Therefore, the IWC did not exceed its authority by adopting section 11(D), and hospital’s second meal period waiver policy does not violate section 512(a).

Theoretically, the first Gerard holding might have been retroactive and unaffected by SB 327. But the Court shut that argument down as well.

So, healthcare employers can breathe. Employees defined as “in the healthcare industry,” primarily related to patient care, can waive one of two meal periods, regardless of whether it’s the “first” or “second” meal period. 

All other employers must follow one of the traditional meal period waivers applicable in section 512(a) or the wage orders. The < 6 hour meal period waiver, or the second meal period waiver for employees who work between 10 and 12 hours. 

The second Gerard opinion is here.  

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