In October 2015, the California Legislature enacted SB 327, amending California Labor Code section 516 to specifically include within the Labor Code the waiver of the second meal period that had previously been contained in Section 11(D) of Wage Orders 4 and 5, and which the California Court of Appeal had invalidated in the original Gerard v. Orange Coast Medical Center decision; consequently, the  discussion in the advisory below is no longer relevant except for historical purposes. SB 327 included a statement that the waiver of the second meal period has been valid and enforceable since October 2000. On March 1, 2017, the California Court of Appeal issued an unpublished, second decision in the Gerard case, confirming that SB 327 applies retroactively.

As a result, the ruling striking down the waiver of the second meal period for health care employees is no longer the law in California and where the criteria in section 11(D) of Wage Orders 4 and 5 are met, health care employers may utilize its second meal period waiver procedure.

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Narrowly construing the California Labor Code provisions on meal periods, the California Court of Appeal struck down a provision in the Industrial Welfare Commission Wage Orders that allows health care employees working 12-hour shifts to waive their second meal period on days when they work more than 12 hours. Gerard v. Orange Coast Memorial Medical Center, issued on Feb.10, 2015.


Meal periods for California employees are governed both by the California Labor Code and by Wage Orders of the Industrial Welfare Commission.

Labor Code Section 512 establishes the timing requirements for meal periods. The Wage Orders then spell out more specific rules for meal periods applicable to specific industries and occupations. In most cases, an employer is required to provide a 30-minute, duty-free meal period beginning no later than the end of the fifth hour of work, although the employee and the employer may agree to waive that meal period if the employee’s total workday is shorter than six hours. When an employee works more than ten hours in a workday, the employer must provide a second, 30-minute meal period, which may be waived if the employee’s total workday is not longer than 12 hours and the first meal period was not waived.

Wage Order 5 applies to hospitals and other healthcare employers, and Wage Order 4 may apply to certain other employees who perform health care work but are not employed by hospitals. Section 11(D) in Wage Orders 4 and 5 provides that health care employees who provide patient or veterinary care or who work in a clinical department and who work in excess of eight hours in a workday “may voluntarily waive their right to one of their two meal periods” provided certain requirements are met. Section 11(D) of Wage Orders 4 and 5 applies to health care industry employees regardless of whether they are covered by a collective bargaining agreement.

The Gerard Decision

The plaintiffs were three former employees of Orange Coast Memorial Medical Center who worked 12-hour shifts on patient care teams. Occasionally they worked longer than 12 hours. They each had agreed to waive their second meal period by signing written agreements that met the requirements of Section 11(D). They sued on behalf of a class of employees who were scheduled to work 12-hour days, claiming that the policy of allowing employees to waive the second meal period violated Labor Code Section 512 on those days when the employees ultimately worked longer than 12 hours, because Labor Code section 512 only permits a waiver of the second meal period if the workday does not exceed 12 hours.

The trial court granted summary judgment in favor of the Medical Center. The Court of Appeal reversed, finding Section 11(D) to be invalid to the extent that it purports to permit employees to waive their second meal period when the workday exceeds 12 hours. The Court explained that, although the Wage Orders are ordinarily to be treated as binding regulations, this is not the case when a Wage Order provision directly contradicts a requirement of the Labor Code.

The Medical Center argued that it had reasonably relied on the Wage Order, so the Court’s ruling should be applied prospectively and it should not be liable to the plaintiffs. The Court rejected that argument and ordered that its decision be treated as retroactive for purposes of determining whether the employer owes an additional hour of pay under Labor Code section 226.7, which provides that on any workday when an employer fails to provide a legally mandated meal period, the employer must pay an additional hour’s wages to the employee.

Practical Advice

Unless the Supreme Court grants a review of the case (the petition for review would be due by late March), the Girard decision is binding law in California. As a result, health care employers that have employees working 12-hour shifts should revisit their meal period policies right away to ensure that they take into account the likelihood of occasional overtime. Health care employers and employees may still agree to waive the second meal period on days when the employee’s total work time does not exceed 12 hours. To account for the fact that employees may occasionally work longer than the scheduled shift, however, 12-hour shifts should be shortened, or a meal period should be built in – or the extra hour’s pay for a missed meal period should be paid on any day when a 12-hour employee works overtime. In addition, health care employers who use second meal period waiver agreements should review their form agreements and ensure that they do not allow the second meal period to be waived when the employee works for more than 12 hours.