Companies who employ healthcare employees on shifts longer than 12 hours need to change their meal period rules immediately. It would be even better if they can go back in time three years and change them then. That’s because yesterday, in Jazmina Gerard v. Orange Coast Memorial Medical Center, the court of appeal said that the wage orders healthcare companies have been following for years were wrong and contrary to statute.

Wage Orders 4 (Professional, Technical, Clerical, Mechanical & Similar Occupations) and 5 (Public Housekeeping Industry – which includes hospitals) specifically allow employees who work over eight hours to waive one of their meal periods. Since the right to a third meal period doesn’t kick in until 15 hours, plenty of healthcare employees were working 12 – 15 hours without receiving a second meal period. But they’d waived the meal period in writing, had the right to revoke the waiver at any time, and were paid for the time they worked. And their employers were following the wage orders, which they’re supposed to do, right?

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Wrong, wrong, wrong!!! According to the appellate court, those employers have been on “clear notice” that they should have been providing two meal periods to employees who work more than 12 hours. Therefore, the rule should apply retroactively. The Industrial Welfare Commission in enacting those wage orders didn’t realize they were illegal, but the employers who followed them should have known, and now they must pay!

If you have healthcare workers who work more than 12 hours, here are your takeaways:

  • Ignore any waivers they signed and make sure they get two meal periods OR make sure they’re clocked out before 12 hours.
  • Prepare for a new wave of class actions.

Here’s a link to the Orange Coast decision.

Update: On May 21, 2015, the California Supreme Court agreed to hear the case. So the law remains unsettled.

Update: New legislation (SB 237), signed on October 5, 2015, preserves the status quo. So we’re back where we started.