Second meal period

May employees waive a second meal period for shifts longer than 12 hours?

The Fourth District Court of Appeal recently addressed the issue of whether employees who work shifts longer than 12 hours may waive a second meal period. On February 10, 2015, in Gerard v. Orange Coast Memorial Medical Center (Cal. App. 4th Dist. Feb. 10, 2015) 2015 Cal. App. LEXIS 132, the court determined that an Industrial Welfare Commission Wage Order authorizing such waivers is invalid.

In Gerard, health care workers sued their hospital employer. One of the issues concerned the hospital’s policy allowing employees to voluntarily waive a second meal period for shifts longer than 10 hours, including those exceeding 12 hours. The employees alleged they signed second meal period waivers and occasionally worked longer than 12 hours without a second meal period. The trial court dismissed the meal period claim on grounds the employees were provided meal periods as required by law.

On appeal, the employees asserted that the second meal period waiver violated Labor Code provisions governing meal periods (sections 512(a) and 516) and that an IWC Wage Order is invalid to the extent it authorizes employees to waive second meal periods for shifts longer than 12 hours. The appeals court in Gerard agreed.

The court of appeal first looked to Labor Code section 512(a). That law requires employers to provide two meal periods for employees who work shifts longer than 10 hours, except when the shifts are no more than 12 hours and the employer and employees mutually consent to waive the second meal period. Next, the court discussed Labor Code section 516, which allows the IWC to adopt orders concerning meal periods except as provided in section 512. Finally, the court considered the Wage Order at issue (No. 5, section 11(D)). That order allows health care workers who work longer than eight hours per day to voluntarily waive a second meal period.

The court in Gerard determined that Labor Code section 512(a) and the Wage Order conflict: the Labor Code permits second meal period waivers for shifts of 12 hours or less, but the Wage Order allows such waivers for shifts longer than 12 hours. It also found that the legislative history of sections 512 and 516 of the Labor Code demonstrates an intent to prohibit the IWC from making wage orders in conflict with the requirements set forth in section 512. Ultimately, the court concluded that the IWC exceeded its authority and declared that the Wage Order at issue is invalid to the extent it authorizes waivers of second meal periods for shifts longer than 12 hours.

Posted by deanroyerlaw