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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.

Should large retail stores have portable defibrillator units on hand?

While portable defibrillator units do save lives, they can also backfire, causing unnecessary harm. For more than 20 years, the percentage of public locations, including airports and bus stations, with automated external defibrillator units has grown steadily.

But should retail stores carry them as well?

The California Supreme Court, in hearing arguments in a wrongful death lawsuit against Target, appears reluctant to mandate that large retail operations keep such a defibrillator unit in their stores. Lawmakers are concerned that store clerks, even if trained, may not be able to distinguish a heart attack from another condition. Misidentification of symptoms and/or incorrect use of the devices could exacerbate an already dangerous situation. 

And once medical intervention by store clerk is permitted, would stores be required to deal with other medical emergencies?

The lawsuit facing the Supreme Court involves the death of 49-year-old Mary Ann Verdugo at a local Target store. Verdugo’s family filed a wrongful death lawsuit, suggesting that she would still be alive had a defibrillator unit and trained worker been available. Verdugo was shopping in Target in 2008 when she suffered a cardiac arrest.

The family’s attorney has argued that the units are easily used by lay people, as they are capable of issuing voice commands and carry special sensors that only supply electricity when necessary.

The Court plans to issue its judgement within 90 days. Should the court rule in favor of the plaintiff family, retailers will need to support their customers in a drastically different way.

Daughter of Man Shot by California Deputies Sues for Wrongful Death

Several years ago, a Californian man was shot by two San Diego deputies. Allegedly, the man was suffering from depression and displaying suicidal risk signs. During a domestic dispute, his girlfriend called for police assistance. Two officers responded, arrived at the scene and asked him to raise his hands. He did so, showing that he was holding a knife. As he stepped toward the officers, they both shot him twice, killing him.

His daughter was 12 years old at the time. Now, she has filed a wrongful death lawsuit against the police force. At trial, the plaintiff claimed that her father was not rushing the officers and had a vacant look on his face as he stepped forward.

The man’s daughter originally filed for wrongful death, negligent hiring/supervision of the officers named as defendants and further violations of the 14th and 4th Amendment rights of her father. Initially, a federal court granted summary judgment to the deputies. The 9th Circuit court later asked the California Supreme Court if the officers would be found liable under state law. The Court answered that they could be, so the case was remanded back to the lower court in order to determine whether the daughter could file a survivorship claim as the result of the possible violation of her father’s 4th Amendment rights. The court found that the officers had fired only in self-defense, and that they did not need to wait to be attacked to take action. However, they allowed the daughter to proceed with the wrongful death portion of her claim.

Wrongful death cases are difficult for everyone involved, and this case is no exception. Each may take a number of years to be resolved. Often, cases involve larger issues and complex circumstances, so it is imperative to discuss any wrongful death situation with an experienced personal injury attorney. Do not wait to speak to a lawyer. All states have wrongful death statutes that limit when such a lawsuit may be filed. If you miss the deadline, you will no longer be able to pursue your claim.