Hospital employees in California are now allowed to waive one of their required meal periods, but risk managers should obtain proper consent before employees skip any meals.
The Fourth Appellate District reversed its previous February 2015 decision in Gerrard v. Orange Coast Memorial Medical Center and ruled that healthcare employees may waive one of their two required meal periods on shifts longer than eight hours, even if the shift exceeds 12 hours, says Diane Marie O’Malley, JD, partner with Hanson Bridgett in San Francisco.
On Feb. 10, 2015, the court invalidated the portion of California Industrial Welfare Commission (IWC) Wage Order No. 5 that permitted non-exempt healthcare employees to waive a second meal period for shifts longer than 12 hours. The decision was retroactive for four years, so California healthcare employers faced substantial liability for allowing employees to waive their rights to meals.
Then in October 2015, Gov. Jerry Brown signed SB 327 into law, allowing healthcare employees to voluntarily waive their right to one of their two meal periods in shifts of 12 hours or more. The appellate court revisited its decision in light of the new law, and reversed its earlier ruling.
“For years, healthcare employees working directly in patient care were waiving one of their meal periods, even when working more than 12 hours, mostly because if they were already working long hours they didn’t want to be there any longer. They preferred to just eat at their desk or whatever and get out sooner,” she explains. “Then there was a class action lawsuit in which the employees said it was in violation of the California labor code.”
Though the most recent decision is good news, hospitals in California still should tread carefully when allowing employees to waive their right to a required meal period, O’Malley says.
“This clarifies that eligible employees can continue what they were doing before this issue came up, which is waiving a meal period they’re entitled to,” O’Malley says. “But for the employer to be safe, there should be a written agreement that’s signed by the employee and the employer. Once you have that waiver, however, don’t forget that the employee is free to revoke it with just one day’s notice.”
SOURCE
- Diane Marie O’Malley, JD, Partner, Hanson Bridgett, San Francisco. Telephone: (415) 995-5045. Email: [email protected].
Hospital employees in California are now allowed to waive one of their required meal periods, but risk managers should obtain proper consent before employees skip any meals.
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