Employment Law Blog

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Apr 16, 2015

Waiver of 2nd meal period for shifts over 12 hours invalid in California

Wage and Hour 

A California appeals court struck down an Industrial Welfare Commission (IWC) order that allowed employees in the health care industry to waive a second meal period for shifts longer than 12 hours. California Labor Code 512(a) says employers generally must provide a second meal period for work periods of more than 10 hours, but employees may waive that second meal period if the employee doesn’t waive the first meal period and the total work period is 12 or fewer hours.

A California appeals court struck down an Industrial Welfare Commission (IWC) order that allowed employees in the health care industry to waive a second meal period for shifts longer than 12 hours. California Labor Code 512(a) says employers generally must provide a second meal period for work periods of more than 10 hours, but employees may waive that second meal period if the employee doesn’t waive the first meal period and the total work period is 12 or fewer hours.

In response to lobbying from the health care industry, the IWC inserted provisions in two wage orders allowing a more flexible option for health care employees. These employees could simply waive one of their two meal periods for shifts longer than 8 hours, according to IWC Wage Order 4 (Professional, Technical, Clerical, Mechanical and Similar Occupations) and IWC Wage Order 5 (Public Housekeeping Industry).

Not so fast, said the court. California Labor Code 512(a) puts a cap of 12 hours on shifts where a second meal period may be waived. The IWC didn’t have the power to ignore that cap. The court sent the case back down for trial to decide whether its decision should be applied retroactively, but ruled that as a matter of law, the employees may go ahead and demand a one-hour premium wage for each incident that occurred during the three-year statute of limitations (Gerard v. Orange Coast Memorial Medical Center, Cal App, Feb. 2015).

Tips: This employer thought it was safe by relying on the applicable IWC wage order and obtaining written waivers from employees who chose to skip their second meal periods. If you are currently allowing employees to waive their second meal period, talk with your Vigilant California employment attorney to ensure that your practice complies with the California Labor Code and applicable wage and hour laws. For more information, see our Legal Guide, “Breaks and Meal Periods--California” (2499).

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