Gerard v. Orange Coast Memorial Medical Center (Dec. 10, 2018, No. S241655) ___ P.3d ___ [2018 WL 6442036]
Labor Code section 512 requires employers to provide a second meal period to employees working more than ten hours. Section 512 also prohibits employees working more than twelve hours from waiving this second meal period. Soon after section 512 was enacted, the Industrial Welfare Commission (IWC) issued Wage Order 5, which allows health care workers working more than twelve hours to waive their second meal period. After the IWC adopted Wage Order 5, the Legislature enacted a law mandating that all new Wage Orders comply with section 512.
In this case, health care workers who often worked more than twelve hours per day sued their employer for permitting them to waive their second meal period, claiming that it violated section 512 and that they were entitled to unpaid wages. While the litigation was pending, the Legislature again amended the Labor Code to authorize Wage Order 5. The Court of Appeal then held that the employer’s policy of allowing a second meal period waiver was permissible.
The Supreme Court granted review and affirmed, holding that Wage Order 5 permits health care workers working more than twelve hours per day to waive their second meal period. The Legislature’s most recent amendment was not retroactive, meaning that it applied only to new Wage Orders adopted after Wage Order 5. Because the Legislature had previously granted the IWC authority to issue any order consistent with worker health and welfare—“notwithstanding any other provision of law”—Wage Order 5 (allowing second meal period waiver) remained in effect.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
1215 K Street, Suite 800
Sacramento, CA 95814
T 916.552.7605 | F 916.552.2607
