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A retroactive court ruling on waiving a second meal break may change the legal landscape

Health care employers may face a flood of lawsuits based on a recent court ruling relating to Industrial Wage Commission (IWC) Wage Order 5.

Wage Order 5 has been interpreted by employers to mean workers are allowed to waive their right to a second meal break even when they work shifts that are longer than 12 hours. The California Court of Appeal ruling also made this decision partially retroactive, and this may mean employees can sue for missing their second meal break before the decision was handed down.

Three health care workers employed by Orange Coast Memorial Medical Center launched the lawsuit that ended up changing the second meal break waiver policy. All three worked shifts longer than 10 hours and sometimes worked more than 12 hours. The employees signed a second meal break waiver and thus when they did happen to work more than 12 hours, they were not provided with a second meal break.

The lawsuit alleged that the waiver violated California Labor Code (CLC) Section 512(a). This section bans waivers for workers on shifts of longer than 12 hours. The defendant said IWC Wage Order 5, Section 11(D), was an exception and provided employees working shifts longer than 8 hours with the ability to waive their right to one of two meal periods. When the the case was appealed after first being dismissed without a trial, the appeals court ruled that the CLC overrides IWC Wage Order 5.

According to the appeals court, the employer, “having received the benefit of its employees working without the statutorily mandated second meal periods, there is nothing unfair about requiring [the] hospital to compensate them for that time in accordance with the formula prescribed by the legislature.”

An urgent review of all meal break policies is likely needed. If workers pulling shifts of longer than 12 hours have waived their rights to a second unpaid meal period, that would suggest that the policy needs to be rewritten. How employers are going to tackle any potential lawsuits will be another contentious matter.

If the appeals court decision is appealed to the California Supreme Court, employees who have a signed waiver for their second meal break for a shift longer than 12 hours need to speak with an experienced employment attorney as soon as possible. This is even more important due to the fact that the decision applies retroactively.

Harvard Is Clarifying Its Sexual Harassment Policies

Harvard University is one of numerous educational institutions to come under investigation for how its administration handles accusations of sexual harassment and assault.

Initially, their existing policy relating to relationships between students and teaching staff stated that professors couldn’t have romantic or sexual relationships with students in their classes. The policy was silent on whether they may have relationships with students they do not teach.

Harvard has had difficulties in this regard since the 1990s, when the courts found that educational institutions, such as universities, could be held financially liable for sexual harassment. After several eye-opening decisions, many teaching institutions, such as Yale University and the University of California, drafted stringent formal policies banning romantic and sexual liaisons between students and teaching staff.

This type of sexual harassment policy attempts to address the unequal power dynamics at play if a student and teacher get involved in a sexual relationship. Consent becomes a thorny and hard to distinguish issue.
Interestingly, the American Association of University Professors (AAUP) does not recommend that colleges ban such relationships. However, they have admitted that such relationships are “fraught with the potential for exploitation.”

Harvard has changed its policy to reflect a clear prohibition of any sexual relationship between any professor and any student, including students under supervision, being evaluated or graded as well as graduate teaching assistants. The refinement of Harvard’s policy brings it more into line with Title IX (the federal sex discrimination in education law). This move may well be duplicated at other U.S. colleges and universities in the months to come.

One sticking point about getting clear consent or “Yes means yes” is that consent may include gestures and other nonverbal cues. Gestures and nonverbal clues can be anything but clear, particularly when someone has been drinking or doing drugs.

Does “yes mean yes” in high school?

“Yes means yes” (affirmative, conscious and voluntary consent to sexual activity) is intended to replace the saying “No means no,” but how far does this new maxim extend? Is it only relevant to college students? Is there any clear way to draw a line between consensual sex and rape? These are important questions. Nationally, several federal complaints have been filed alleging that numerous campuses virtually ignored such issues and in doing so, created a hostile campus environment for victims.

The topic of consent has been on many people’s minds since the vociferous debate over campus sexual harassment and how universities have been handling sexual assaults. There have been many complaints about schools failing to protect victims, often allowing their assailants to remain on campus in the aftermath of accusations and counter-accusations. Eventually, under national furor over campus non-consensual sex, a new motto was born: “Yes means yes.”

California State Senator Hannah-Beth Jackson and Senate President pro Tempore, Kevin de León proposed Bill 695 in the legislature. The bill suggests that it may be a fine idea for schools to teach children the new motto. Adding sexual violence and affirmative consent to the curriculum would expand and supposedly enhance the heath education component of graduation. Most students already learn about bullying, setting boundaries, rape and sexual harassment.

Now, there is a push to educate high school students about new expectations for considering having sexual relations.

But is it really appropriate to teach high school students that “yes means yes?” This is one of those dicey areas where some parents are likely to have serious issues with someone else teaching their children that “yes mean yes.”

Do schools have a role to play in teaching children how to harness their hormones, dictate their partner choices and explain that drunk or drugged sex without consent is not acceptable?

Where are the legal boundaries on this issue — or are there any? Legal scholars have already said they have no idea how the new “Yes means yes” rubric is going to translate in a court of law. We are poised on the cusp of forging new interpretations of the affirmative consent law and many are wondering where it may lead.