California’s Industrial Welfare Commission ("IWC") Wage Order 5 and the California Labor Code set forth meal and rest period requirements for non-exempt health care employees, and permit the waiver of a second meal period for employees who work lengthy shifts. There has been a dispute over whether the second meal period waiver could extend only to shifts up to 12 hours, or could apply to shifts in excess of 12 hours.

On December 10, 2018, the Supreme Court of California handed welcome news to both health care employers and employees. In Gerard v. Orange Coast Memorial Medical Center, the Court ruled that health care workers may lawfully waive a second meal period, "even if they have worked more than 12 hours." The state high Court’s decision affirms a 2017 Court of Appeals decision, and ends a decade of litigation stemming from competing interpretations of the meal period waiver provisions set forth in Wage Order 5.

Wage Order 5, which is known as the "Public Housekeeping Wage Order," covers the following employers:

Hospitals, sanitariums, rest homes, child nurseries, child care institutions, homes for the aged, and similar establishments offering board or lodging in addition to medical, surgical, nursing, convalescent, aged, or child care.

At issue was the enforceability of Section 11(D) in Wage Order 5, which permits health care employees to waive the second meal period, even if they work a shift in excess of 12 hours. The Court found that this provision was valid and enforceable as the Legislature declared when amended Labor Code § 516 (b) in October 2015.

"[T]he 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." 

Despite the Legislature’s clarification, Section 11(D) has been the subject of debate and litigation because it was adopted before, but not effective until shortly after, a conflicting Labor Code provision was adopted in 1999. The Court’s decision resolves this debate, finding that the second meal period exception for health care employers has been enforceable at all times since the changes to Wage Order 5 became effective. The Court further noted that the clarifying amendment to Labor Code §516 "was supported not only by hospitals and healthcare organizations but also by health care employee unions." The Court specifically quoted written support of the amendment to Labor Code § 516 from the United Nurses Association of California ("UNAC") in its decision. UNAC urged that the meal period waiver at issue be allowed to permit nurses to enjoy "greater staffing flexibility and better patient care." The Court’s decision is limited to Industrial Welfare Commission ("IWC") Wage Order 5, and does not apply to other industries, although the Supreme Court specifically noted that the that other categories of employees working more than 12 hours and who are covered by collective bargaining agreements are permitted to waive a second meal period (e.g., construction employees, security officers, commercial drivers). The Court’s decision, however, only definitively resolves the question of whether health care employees covered by Wage Order 5 can lawfully agree to waive a second meal period in a shift that extends beyond twelve hours, now giving them the flexibility to go home a 1/2 hour earlier, or work an extra ½ hour without a second meal period. 

Best Practices Regarding Waivers in Hospital and Other Health Care Provider Settings

While it now clear that waivers of second meal periods for shifts in excess of 12 hours are lawful, new or existing waivers must be carefully implemented to avoid legal snags. Employers are advised to: 

  • Review written waivers to make sure they expressly provide for waiver of the second meal period, and cover shifts extending beyond 12 hours.
  • Implement new or supplement existing waivers as needed, and consistent with any bargaining obligations or collective bargaining agreement requirements.
  • Train supervisors concerning meal and rest period requirements and lawful implementation and enforcement of waivers, including the right to revoke the waiver.