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Health Care Industry Employees — Do you work 12+ Hour Shifts?

IWC Wage Order No. 5 has permits employees in the “health care industry” who work shifts in excess of eight total hours in a workday to “voluntarily waive their right to one of their two meal periods. . . . in a written agreement that is voluntarily signed by both the employee and the employer.”

Specifically, 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.”

However, 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.”

In apparent reliance on the IWC Wage Order, Orange Coast Memorial Medical Center maintained a policy that allowed health care employees who worked shifts longer than 10 hours caring for patients to voluntarily waive one of their two meal periods, even if their shifts lasted more than 12 hours.

The Plaintiffs in Gerard v. Orange Coast Memorial Med. Ctr. alleged they all signed second meal period waivers, and occasionally worked shifts longer than 12 hours without being provided a second meal period.

On February 10, 2015, in Gerard v. Orange Coast Memorial Med. Ctr., the Court of Appeal (4th Dist.) held that A hospital policy allowed health care employees who worked shifts longer than 10 hours caring for patients to voluntarily waive one of their two meal periods, even if their shifts lasted more than 12 hours. Plaintiffs allege they all signed second meal period waivers, and occasionally worked shifts longer than 12 hours without being provided a second meal period.

The Court of Appeal held that Section 512 of the California Labor Code was controlling over the issue and not Section 11(D) of the Wage Order. Under Section 512 and 11(D) employees could waive second meal periods. But, because of Section 512’s limitations, the waiver was valid only if the total hours worked were 12 or less.

Therefore, if a health care industry 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.