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Second Meal Period Waivers for Health Care Employees

The California Labor Code generally requires employers to provide employees who work more than five hours with a 30-minute meal period, and to provide employees who work more than 10 hours with an additional 30-minute meal period. An employee who works no more than six hours may waive the meal period, and an employee who works no more than 12 hours may waive the second meal period. (Cal. Lab. Code, § 512.)

The wage orders promulgated by the Industrial Welfare Commission also regulate meal periods. In 1993, the IWC added a provision to Wage Order 5 (which applies to the “public housekeeping industry,” defined to include health care institutions) that allowed health care employees to waive one of their meal periods even if they worked more than 12 hours. Although the California Legislature had validated the wage order’s exception to the general meal period requirements in 2015 (see Cal. Lab. Code § 516), questions remained about whether there was a period of time that the exception conflicted with the general rule.

The California Supreme Court resolved those questions in Gerard v. Orange Coast Memorial Medical Center, Case No. 241655 (Dec. 18, 2018). It ruled that the wage order provision that allowed health care employees to waive one of their meal period even if they worked more than 12 hours was valid from inception to the present.