Here's the deal. Wage Order 5 is the industry order that applies to the health care industry. That Wage Order contains a special provision allowing health care workers to waive one or the other of their two meal periods when they are scheduled to work > 10 hour shifts. That provision is section 11(D):
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. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one day’s written notice. The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect.Seems pretty straightforward, right? The intent is to allow those health care workers who have 3 X 12 hour shifts or 4X 10 hour shifts (which are common) to have only one meal period so they can go home to their families a half hour earlier.
But Gerard, cited above, held that section 11(D) was not valid. That's because Gerard held that Labor Code 516 invalidated section 11(D) because section 516 is a statute that says that the Wage Orders have to be at least as generous as section 512. And section 512 does not permit waiver of either one of two meal periods by health care workers.
Confused? So were employment lawyers, hospitals and everyone except three judges in Gerard. Not to worry, Gerard is no more. Because the Legislature amended section 516, thusly:
(a) Except as provided in Section 512, the Industrial Welfare Commission 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.So, under (b), section 11(D) was is and will be valid. That means the plaintiff in Gerard probably will lose this case at the Supreme Court, and all will be well in health care once again.
(b) Notwithstanding subdivision (a), or any other law, including Section 512, the health care employee meal period waiver provisions in Section 11(D) of Industrial Welfare Commission 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.
This is an urgency statute, meaning it takes effect immediately.
