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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.