On October 5, 2015, Governor Jerry Brown signed into law a bill confirming that employees in the health care industry can waive one of their two meal periods when working a shift of over eight hours in a workday. This law clarifies confusion caused by a recently decided appellate case, Gerard v. Orange Coast Memorial Medical Center, 234 Cal.App.4th 285 (C.A. 4th, 2015) (review granted). The Gerard case is currently under review by the California Supreme Court.

The Gerald case was brought by health care workers against their hospital employer claiming that the hospital’s policy of allowing health care workers to waive their second meal periods when the employees worked shifts of more than twelve (12) hours was unlawful. The hospital’s policy allowed health care workers to voluntarily waive one of their two meal periods for shifts over twelve hours. The employees had signed written waivers agreeing that they could waive one of their two meal periods in that situation.

Labor Code section 516 gives the Industrial Welfare Commission (“IWC”) the power to enact Wage Orders regarding rest break periods, meal periods and days of rest for workers in California “consistent with the health and welfare of those workers.” Section 11(D) of Wage Order No. 5-2001 explicitly allows employees in the health care industry who work shifts of more than eight hours in a day to waive one of their two meal periods by written agreement signed by both the employee and the employer. Section 11(D) also requires that the employee be paid for all time worked including any on-the-job meal periods, and requires that the employee be allowed to revoke the meal period waiver with one day’s notice. The hospital’s policy was consistent with section 11(D).

In the Gerard case, the plaintiffs argued that the IWC’s Wage Order was invalid because it conflicted with Labor Code section 512 which governs meal period requirements. Labor Code section 512 does not allow for the waiver of one of two meal periods when a shift is longer than eight hours. The Gerard court agreed with the plaintiffs, finding that although the IWC has authority to enact wage orders consistent with section 512, the IWC does not have authority to enact wage orders that are inconsistent with it. Therefore, the Gerard court found that section 11(D) of Wage Order No. 5-2001 was invalid, and that healthcare workers could not waive one of their two meal periods for shifts over eight hours.

The new legislation expressly invalidates the Gerard court’s decision, amending Labor Code section 516 to expressly validate section 11(D) of Wage Orders No. 4 and 5, and confirms that the voluntarily meal period waivers allowed by those Wage Orders have been valid since their promulgation on October 1, 2000. The new law went to effect immediately.