California employers know to expect that the law sometimes takes some crazy turns. But the changes to the rules for healthcare worker meal waivers have been particularly insane. Try to keep up.

  1. In 2000, the legislature enacted AB 60, which included provisions saying that if you worked more than 12 hours, you could not waive a second meal period. The law also gave the Industrial Welfare Commission authority to issue regulations.
  2. The IWC issued amended Wage Orders that same year. Wage Orders 4 (Professional, Technical, Clerical, Mechanical & Similar Occupations) and 5 (Public Housekeeping Industry – which includes hospitals) specifically allow healthcare employees working 12–15 hours to waive a second meal period.
  3. A group of plaintiffs sued their employer arguing that the IWC exceeded its authority and that the Wage Orders were illegal to the extent that they allowed waiver of the second meal period. The case was Jazmina Gerard v. Orange Coast Memorial Medical Center. In that case, the trial judge granted summary judgment for the employer, the employees appealed, and the appellate court reversed. So as of February 2015, employers who had followed the Wage Orders were suddenly subject to class-wide liability going back at least three years.
  4. In October 2015, the state legislature enacted a statute specifically permitting healthcare workers working over 12 hours to waive the second meal period. Still, the litigation continued because it raised questions about how to interpret the law before that enactment.
  5. In March 2017, after being told by the California Supreme Court to take another look, the appellate court reversed itself. It recognized that it was mistaken on the timing and concluded that the IWC acted appropriately.
  6. The California Supreme Court agreed to hear the case. In a decision issued earlier this week, the California Supreme Court agreed that the IWC acted within its rights in issuing the Wage Orders. So we’re back where we started. Healthcare employees working 12-15 hours are allowed (and have been allowed since 2000) to waive a second meal period.

Throughout this process, healthcare workers and their employers both wanted the same thing. Neither benefited from a rule that said that, after working over 12 hours, you couldn’t go home until you took an unpaid, 30-minute meal break. It didn’t need to be this complicated.

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.

The NLRB decision in August in the case of Specialty Healthcare and Rehabilitation Center of Mobile radically changed the course of unit clarification decisions in non-acute health care organizations.  In their decision, the NLRB departed from the standard established in Park manor, which had adopted a special test for use in nursing homes and rehabilitation centers.  Instead, finding that the Park Manor approach was "obsolete", the panel found that a group of Certified Nursing Assistants were an appropriate bargaining unit, departing from the prior 20-year standard that had included other groups in the facility within the community of interest.   In making the decision, the panel stated that the employer will have the burden of showing an "overwhelming community of interest" should they object to the proposed unit on the grounds that it does not include the proper groups of employees.  Non-acute health care employers can now look forward to additional labor activity and organizing drives. 

However, the impact of this decision won’t stop with non-acute health facilities, or even within the health care industry as a whole.  This decision overturns a general policy of avoiding "fractured units" within a single employer, and ensuring that a union will represent them only when a majority of staff within an employer choose it.   This more difficult standard of "overwhelming community of interest" will be difficult to overcome for employers, and will likely be applicable to any type of employer facing union organizing efforts.  This decision continues the trend of pro-union decisions coming out of the NLRB, and further pushes the procedural scale in favor of labor unions.