In Gerard v. Orange County Memorial Medical Center, 2015 Cal.App. LEXIS 132, the Court of Appeal found Wage Order No. 5, Section 11(D) of Industrial Welfare Commission (“IWC”) wage order No. 5-2001 (Cal. Code Regs., title 8, §1150) (“Section 11(D)”) is partially invalid to the extent it allows employees to waive their second meal periods on shifts longer than 12 hours.
The Court concluded that Section 11(D), which sanctions second meal period waivers for health care employees who work shifts of more than 12 hours, conflicts with Labor Code §512(a). The statute states that an “employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent only if the first meal period was not waived.”
Plaintiffs are health care workers who worked 12-hour shifts, but from time to time worked shifts longer than 12 hours. Plaintiffs sued their hospital employer in this putative class and PAGA action for alleged Labor Code violations. A hospital policy allowed health care employees who worked shifts longer than 10 hours caring for patients to voluntarily waive one of their two meal periods, even if their shifts exceeded 12 hours. Plaintiffs alleged that they all signed second meal period waivers, and occasionally worked shifts longer than 12 hours without being provided a second meal period.
Plaintiffs’ primary contention is that section 11(D) is partially invalid because it conflicts with section 512(a). Plaintiffs also contend that the IWC is invalid because it creates an additional exception for health care workers, beyond the second meal period waiver exception in section 512(a), all in violation of Labor Code §516 which provides “Except as provided in section 512, the [IWC] may adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers in California consistent with the health and welfare of those workers.”
In light of the remedial nature of the legislative enactments authorizing the regulation of wages, hours and working conditions for the protection and benefit of employees, the Court of Appeal liberally construed the statutes with an eye to promoting such protection. In so doing, it concluded that “section 516, as amended in 2000, does not authorize the IWC to enact wage orders inconsistent with the language of section 512. Furthermore, ‘the broad powers granted to the IWC do not extend to the creation of additional exemptions from the meal period requirement beyond those provided by the Legislature.'”
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