Over two years ago, we issued an advisory reporting on the potential litigation firestorm created by Gerard v. Orange Coast Memorial Medical Center, 234 Cal. App. 4th 285 (4th App. Div., 2015) (Gerard I) In Gerard I, a California Court of Appeal dealt with the novel question of whether a meal period waiver set forth in the applicable wage order for healthcare industry employers, Wage Order 5, was enforceable despite a more restrictive requirement set forth in Labor Code Section 512. Wage Order 5 authorizes “employees in the health care industry who work shifts in excess of eight (8) hours in a workday (to) voluntarily waive their right to one of their two meal periods.” In Gerard I, the court held that this provision was invalidated by Labor Code 512, which allows waiver of a second meal period only when the first meal period has not been waived and the employee works no more than twelve (12) hours in a work day. The employees at issue in Gerard I worked more than 12 hours in a workday.

On the heels of Gerard I, the Legislature enacted SB 327 to clarify Labor Code Section 512 and to confirm the enforceability of the health care industry employee meal period waiver provisions of IWC Wage Orders 4 and 5. Following the enactment of SB 327, the California Supreme Court directed the Court of Appeal to vacate its decision in Gerard I and to reconsider the case in light of SB 327. On March 1, 2017, the Court of Appeal in Gerard II held that SB 327 was effective retroactively and, accordingly, the second meal period waivers signed by plaintiffs were valid and enforceable. The Gerard II court also affirmed the trial court’s order granting summary judgment, denying class certification, and striking the class allegations.

While Gerard II makes clear that the waivers set forth in Wage Orders 4 and 5 can be enforced, employers must still confirm that any employees for whom a waiver is sought are, in fact, health care industry employees as defined by the applicable Wage Orders, and that the waiver is voluntary, in writing, and signed by the employee and the employer. Employers are encouraged to consult with counsel in creating a waiver form, confirming the validity of any waiver, and with questions regarding the scope of this exception.