Labor Code Trumps Wage Order 5, Prompting Change in California Meal Periods


All California Employers


February 10, 2015


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There are a number of laws setting down rules on the length and timing of employee meal breaks. Thanks to a suit brought by three healthcare workers in Orange County, California, the provisions of Wage Order 5, set forth by the Industrial Welfare Commission (IWC), have been invalidated by the CA Labor Code Sections 512(a) and 516.

Gerard, et al. v. Orange Coast Mem. Med. Ctr. was brought forth by plaintiff Jazmina Gerard and two other healthcare workers employed at Orange Coast Memorial Medical Center, who sometimes worked for over 12 hours providing patient care. Under hospital policy, the workers signed a written second meal period waiver, allowing the workers to waive their right to a second meal period when the shift lasted longer than 10 hours.

The three workers sued Orange Coast, alleging that the second meal period waiver violated CA Labor Code Section 512(a), which prohibits waiver of a second meal period when a shift exceeds 12 hours in length. In response, the hospital argued that the IWC Wage Order 5, Section 11(D), afforded an exception to this rule: employees of the healthcare industry working in excess of 8 hours could voluntarily waive their second meal period.

Because Section 512(a) and Wage Order 5, Section 11(D) contradict each other, the California Appeals Court had to examine legislative history. They ultimately came to the decision that the Labor Code would trump Wage Order 5, owing to another provision laid down in Labor Code Section 516. Section 516 stated that wage orders could make or modify working conditions regarding meal and rest breaks, except as provided in Section 512. Section 512 therefore trumps any wage order that conflicts with it.

Bottom Line

With this finding, it was ruled that healthcare industry employers must provide a second meal period, or compensation for the lack of, when employees work longer than a 12-hour shift. Employers must pay an additional hour at the regular rate of pay for each 12-hour plus shift a second meal period was not provided. Furthermore, this decision is partially retroactive, on the basis that hospitals had clear notice of their duty to comply with Labor Code Section 512. Retroactive claims for unpaid wages due to the violation of Section 512 can now be litigated, on the condition that unpaid wages occurred within a three year range of the Court’s decision date of February 10, 2015.

Although this legislative change is focused on the California healthcare industry, all employers would do well to thoroughly review Labor Code and Wage Orders on meal and rest periods in their specific industries and states.


Action Items:

  1. Review meal and rest period policies for compliance with state and industry laws, specifically Section 512.
  2. Work with counsel to address potential claims from current or former employees, if applicable.
  3. For further guidance, subscribers should call our HR On-Call Hotline at (888) 378-2456.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2015 ManagEase, Incorporated.

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