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Update: California Health Care Workers Can Waive Meal Breaks

Published by and on May 9, 2017

It is confirmed that California health care industry employers may have certain employees (i.e. nurses, therapists, physician assistants, technicians) waive one of their two meal periods even if they are working shifts exceeding twelve hours.

A year and a half ago we had reported on emergency legislation that had been passed in California in response to a California Court of Appeal decision in Gerard v. Orange Memorial Medical Center, 234 Cal.App.4th 285 (2015), review granted May 20, 2015, S225205 (Gerard I)), which had invalidated the health care exception allowing employees to waive the second meal break during shifts more than twelve hours. That emergency legislation was California Senate Bill No. 327, effective October 5, 2015, which confirmed that employees in the healthcare industry (i.e. nurses, therapists, physician assistants, technicians) can waive one of their two meal periods when working a shift over twelve hours in a workday. Our previous Insight can be found here.

After the California Supreme Court granted the hospital’s petition for review in Gerard I, that court transferred the case back to California Court of Appeal with directions to vacate its decision in Gerard I and to reconsider the cause in light of the enactment of Senate Bill No. 327. Upon reconsideration, the California Court of Appeal concluded that Section 11(D) of Industrial Welfare Commission Wage Order Nos. 4-2001 and 5-2001, which explicitly allow employees in the health care industry who work shifts of more than eight hours in a day to waive one of their two meal periods by written agreement signed by both the employee and the employer, was valid and affirmed the trial court’s decision. A copy of the California Court of Appeal decision in Gerard v. Orange Coast Memorial Medical Center (Cal. App. 4th Dist., Div. 3, Mar. 21, 2017) 2017 Cal.App. LEXIS 255 can be found here.

Welter Insights

It is confirmed that California health care industry employers may have certain employees (i.e. nurses, therapists, physician assistants, technicians) waive one of their two meal periods even if they are working shifts exceeding twelve hours. Health care industry employers, however, must ensure that any such waiver be in a written agreement that is voluntarily signed by both the employee and employer. Health care industry employers must also be aware that an employee may revoke the waiver at any time by providing at least one day’s notice.

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