When meal waivers don’t apply
SOME employees work 12-hour shifts, such as nurses, therapists, technicians, or even caregivers and domestic employees. Because of the realities of their job, especially for those who work in hospitals or skilled nursing facilities, they may find themselves working continuously without being provided their mandated breaks. Hourly employees are entitled to a 30-minute uninterrupted meal break for every 5 hours of work. Thus, those on a 12-hour shift are entitled to a second 30-minute meal break. If the meal break is not provided as required by law, the employer shall pay the employee one additional hour of pay at the employee’s regular rate for each workday that the meal break is missed.
Twelve-hour shift employees may voluntarily waive their right to one of their two meal periods but only in writing. However, these 12-hour shift employees may be required by the employer to work beyond 12 hours. If so, how many breaks should they have?
The Court of Appeal recently tried to resolve this question in the case of Gerard v. Orange Coast Memorial Medical Center. Here, the employees of the hospital usually worked 12–hour shifts, but from time to time they worked shifts longer than 12 hours. A hospital policy allowed employees who worked shifts longer than 10 hours to waive one of their two meal periods, even if their shifts lasted more than 12 hours. The employees all signed second meal period waivers, and occasionally worked shifts longer than 12 hours without being provided a second meal period.
The employees contend that the hospital’s second meal period waiver policy violates the Labor Code, which states that an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes. If the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
The employer argued that it is still following the law because the Industrial Wage Commission (IWC) created the Wage Order governing employees in the healthcare industry. The Wage Order allows these employees who work shifts in excess of eight (8) total hours in a workday to voluntarily waive their right to one of their two meal periods. The employer then presented the written agreement that the employees signed waiving their meal period for work beyond 12 hours.
The Court of Appeal ruled that the waiver signed by the employees does not apply if they work more than 12 hours during the shift. The Wage Order is partially invalid to the extent it allows employees to waive their second meal periods on shifts longer than 12 hours. The Labor Code does not authorize the IWC to enact wage orders inconsistent with the Labor Code.
For employees who work beyond 12 hours per day, they must be provided another 30-minute meal period. If they are not provided this meal period, they must be paid an additional one-hour of their regular rate.
Employees who work longer shifts at work must be mindful of this recent interpretation of the law, as this may mean extra money in their paycheck.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.