In an important decision for California health care employers, the California Supreme Court recently confirmed that certain health care employees are allowed to waive their second meal breaks even if they work more than 12 hours in a shift.
History of the Gerard litigation
In 2015, the California Court of Appeal shocked health care employers throughout California by invalidating section 11(D) of Wage Order 5, which permits many health care employees (for example, nurses involved in patient care, pharmacists, etc.) to waive second meal breaks even when their shift exceeds 12 hours, Gerard v. Orange Coast Mem’l Med. Ctr., 234 Cal. App. 4th 285 (2015) (Gerard I). The Court concluded that section 11(D) was inconsistent with Labor Code section 512, which only permits a second meal period waiver “if the total hours worked is no more than 12 hours.” Lab. Code § 512(a). The same court reversed itself in 2017 after the California Supreme Court instructed it to reconsider Gerard I in light of subsequent legislative enactments seeking to nullify the decision and clarify existing law, Gerard v. Orange Coast Mem’l Med. Ctr., 9 Cal. App. 5th 1204 (2017) (Gerard II).
On December 10, 2018, after a decade of litigation, the California Supreme Court affirmed Gerard II, concluding that section 11(D) is not inconsistent with the Labor Code, Gerard v. Orange Coast Mem’l Med. Ctr., 2018 WL 6442036 (Cal. Dec. 10, 2018). Thus, health care employees can waive their second meal breaks even on workdays when their shift exceeds 12 hours.
What this means for employers
The California legislature codified and affirmed the validity of section 11(D) in 2017. See Lab. Code § 516(b) (“Notwithstanding … 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.”). Thus, health care employers received statutory relief from the impact of Gerard I on a going forward basis in 2017.
However, until the California Supreme Court’s decision, it remained an open question whether health care employers would face substantial exposure (perhaps on a classwide basis) for violations predicated on their compliance with the explicit direction of the Wage Order prior to this 2017 legislative enactment. In this regard, the California Supreme Court was clear: section 11(D) is not and never was inconsistent with section 512. So long as employers utilize legally compliant waivers and otherwise provide compliant meal breaks, health care employers can breathe a bit easier knowing that uncertainty regarding this past exposure is “off the books.”
Finally, the Court’s decision may provide desired scheduling flexibility for health care employees and employers alike. Health care employers hoping to utilize the flexibility the Gerard decision provides should consult with counsel and/or experienced human resources professionals to consider the use of second meal period waivers.