Responding to a California Court of Appeal decision disallowing a wage order provision permitting a waiver of certain meal periods for employees in the health care industry as conflicting with state statute, California has enacted legislation confirming that health care employee meal period waiver provisions in existing state Industrial Welfare Commission wage orders have been valid and enforceable since October 1, 2000. The new law, SB 327, signed by Governor Jerry Brown on October 5, 2015, is effective immediately.

In Gerard v. Orange Coast Memorial Medical Center, 234 Cal. App. 4th 285 (2015), the California Court of Appeal concluded that certain language in Wage Order 5 of the Industrial Welfare Commission allowing employees in the health care industry to waive one of their two meal periods regardless of shift length was invalid to the extent it conflicts with Labor Code section 512. Labor Code section 512 prohibits waiver of the second meal period when an employee works more than 12 hours. Wage Orders 4 and 5, section 11(d), however, has allowed such waivers for employees in the healthcare industry since 1993. The Court of Appeal nevertheless concluded that its ruling should be applied retroactively, which opened health care industry employers to liability for up to four years of premium pay for “missed” meal periods. Currently, Gerard is under review by the California Supreme Court.

The new legislation retroactively confirms the validity of these greater-than-12-hour meal period waivers and amends section 516 of the Labor Code is to read, “the Industrial Welfare Commission may adopt or amend working condition orders with respect to break periods, meal periods, and days of rest for any workers in California consistent with the health and welfare of those workers.”