On the heels of Gerard I, the Legislature enacted SB 327 to clarify Labor Code Section 512 and to confirm the enforceability of the health care industry employee meal period waiver provisions of IWC Wage Orders 4 and 5. Following the enactment of SB 327, the California Supreme Court directed the Court of Appeal to vacate its decision in Gerard I and to reconsider the case in light of SB 327. On March 1, 2017, the Court of Appeal in Gerard II held that SB 327 was effective retroactively and, accordingly, the second meal period waivers signed by plaintiffs were valid and enforceable. The Gerard II court also affirmed the trial court’s order granting summary judgment, denying class certification, and striking the class allegations.
While Gerard II makes clear that the waivers set forth in Wage Orders 4 and 5 can be enforced, employers must still confirm that any employees for whom a waiver is sought are, in fact, health care industry employees as defined by the applicable Wage Orders, and that the waiver is voluntary, in writing, and signed by the employee and the employer. Employers are encouraged to consult with counsel in creating a waiver form, confirming the validity of any waiver, and with questions regarding the scope of this exception.