Court Of Appeal Invalidates Portion Of IWC Wage Order Permitting Waiver Of Second Meal Period For Health Care Employees Working Shifts Longer Than 12 Hours

February 12, 2015 | Bulletin No. 1210681.1

In Gerard v. Orange Coast Memorial Medical Center, California's Fourth District Court of Appeal invalidated a portion of Industrial Wage Commission Order No. 5, the wage order applicable to employees working in hospitals, assisted living facilities, and similar health care establishments, which permitted those employees to waive their second meal period if they worked shifts of more than 12 hours in a workday.

Labor Code section 512 prohibits an employer from employing an individual for a work period of more than five hours per day without providing a meal break of at least 30 minutes.  If the employee works 10 hours in the workday, the employee must be provided with a second 30-minute meal break.  Section 512 also provides that if the total hours worked in the workday does not exceed 12 hours, the second meal period may be waived.  In contrast, section 11(D) of IWC Wage Order No. 5 provides that an employee in the health care industry who works a shift in excess of eight total hours in a workday may voluntarily waive one of their two meal periods.  Wage Order No. 5 does not restrict the meal period waiver provision to shifts of 12 hours or less.

Plaintiffs were health care workers employed at Orange Coast Memorial Medical Center.  They regularly worked 12-hour shifts but occasionally worked shifts longer than 12 hours.  The hospital at which they were employed had a policy by which employees who worked shifts longer than 10 hours could waive one of their two meal periods, even if the shifts lasted more than 12 hours.  Plaintiffs executed signed waivers of their second meal periods.  Nevertheless, they contended their employer’s practice of scheduling employees to shifts longer than 12 hours without providing a second meal period violated the requirements of Labor Code section 512.  To the extent the provisions of IWC Wage Order No. 5 conflicted with section 512, the plaintiffs further contended the wage order was invalid.

Plaintiffs brought an action under the Private Attorney General Act (Labor Code § 2698, et seq.) on their own behalf, as well as on behalf of other aggrieved employees, alleging violations of section 512.  The hospital moved for summary judgment relying on section 11(D) of Wage Order No. 5.  The trial court granted summary judgment finding the wage order authorized the waiver of the second meal period.  Plaintiffs appealed.

In its decision, the appellate court found a conflict between section 11(D) of Wage Order No. 5 and Labor Code section 512 because the former permitted health care workers to waive their second meal period even on shifts in excess of 12 hours, while the latter restricted waivers of second meal periods to employees working shifts of no more than 12 hours.  The court extensively reviewed the legislative history underlying both section 512 and Labor Code section 516, the section authorizing the IWC to promulgate wage orders, and concluded that legislative history "evinces the intent to prohibit the IWC from [adopting] 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."  On the basis of that conclusion, the Court of Appeal ruled the IWC exceeded its authority in enacting section 11(D) and found that section to be partially invalid to the extend it authorized health care workers to waive their second meal period on shifts longer than 12 hours.  The appellate court remanded the case back to the trial court to litigate whether its decision should be given retroactive effect.

While this decision specifically addresses health care workers, the lesson for all employers is that when conflicts arise between the legislatively enacted Labor Code and the administratively enacted wage orders, the former prevails.  Thus, employers should ensure they are administering wage and hour issues in the workplace consistent with the requirements of the California Labor Code.

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David W. Tyra | 916.321.4500