Gerard v. Orange Coast Memorial Medical Center: Cal. Supreme Court to Address Validity of Wage Order Allowing Second Meal Period Waivers for Employees in the Health Care Industry

This is one for the wage and hour wonks.

In Gerard v. Orange Coast Memorial Medical Center (2/10/15) 234 Cal.App.4th 285, the Court of Appeal held that section 11(D) of Wage Order No. 5 is invalid to the extent that it conflicts with Labor Code section 512. Section 512 requires two meal periods for work periods of more than than ten hours, but allows employees to waive their second meal periods if the total hours worked is no more than twelve hours. Wage Order 5, section 11(D), allows employees in the health care industry who work shifts in excess of eight total hours in a workday to waive their second meal periods. It is not limited to shifts of less than twelve hours. The Court held that the IWC exceeded its authority by creating an exception to section 512's the meal period requirements. Finally, the Court allowed the plaintiffs to seek Labor Code section 226.7 premiums for failure to provide second meal periods for the full three year statutory period. 

The California Supreme Court granted review on May 20, 2015. The Court stated the issues on review as follows:

(1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Wage Commission Order No. 5-2001 invalid under Labor Code section 512, subdivision (a)?  

(2) Should the decision of the Court of Appeal partially invalidating the Wage Order be applied retroactively?

Gerard v. Orange Coast Memorial Medical Center is case no. S225205, and the Court's web page for it is here. You can sign up for email updates from the Court here.