Many health care workers work 12-hour shifts, often as part of an alternative workweek arrangement. And many of this 12-hour shift workers prefer to keep the day 1/2 hour shorter, and, therefore, waive a second meal period. Otherwise, they are going to be at work for at least 13 hours for each 12-hour shift, because they have to take two meal periods of at least 30-minutes each. It seems to me the employer does not gain financially from permitting employees to waive the second meal period; the meal period is unpaid. Only the employee benefits, because the employee can go home 1/2 hour earlier.
Fortunately, the Industrial Welfare Commission Wage Orders include one applicable to the health care industry. This is Wage Order 5-2001. Section 11(D) of that Wage Order says:
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.”Relying on that provision, Orange Coast Memorial Medical Center issued a policy allowing health care workers to voluntarily waive second meal periods. Employees duly signed waivers authorizing this waiver. However, because of the language in Section 11(D), the waiver applied even when employees occasionally worked more than 12 hours.
So, what's the problem? Well, the Labor Code also contains meal period requirements, enacted as part of AB 60, that 1999 law that created the penalties for meal period violations, among other things.
Labor Code Section 512(a) provides in pertinent part:
“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.)
Furthermore, section 516 explains: “Except as provided in Section 512, 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.” (Italics added.)
That means
- if an employee has to work 12 1/2 hours, the meal period waiver is invalid, and
- the employee must either take a second meal period or be paid one extra hour of premium pay.
Given that employees' shifts sometimes will go longer than 12 hours because of unanticipated issues that arise after the 10th hour of work, employers will have to be nimble to schedule second meal periods or pay the one-hour premium.
More bad news, the hospital argued that the decision should not be retroactive, because the hospital relied on the Wage Order, which has the force of law. The Court of Appeal decided that prior decisions of the courts held that no Wage Order could grant any waivers or vary the meal period structure set forth in section 512. Therefore, Section 11(D) of the Wage Order was invalid from the beginning, waiting only for a court to expressly say so. The Court held that the hospital would be liable for meal period premiums resulting from its employing health care workers for more than 12 hours without providing a second meal period.
So, this case applies only to the health care industry, and only to meal period waivers allowing a waiver for shifts > 12 hours. But it's also precedent that precludes employers from relying on Wage Order provisions that are more employer-friendly than AB 60 allows.
This case is Gerard v. Orange Coast Memorial Med. Ctr. and the opinion is here.
