United States: California Supreme Court Confirms Validity Of Meal Period Waivers For Healthcare Employees

On December 10, 2018, the California Supreme Court handed down its unanimous decision in Gerard, et al. v. Orange Coast Memorial Medical Center, affirming the Court of Appeal ruling that voluntary meal period waivers are permissible for healthcare employees who work long shifts, even if they work more than 12 hours. By allowing healthcare employees to waive one of their two meal periods, the Gerard decision preserves a choice for employees who work 12-hour shifts. They continue to have the flexibility to work shifts that span 12 ½ hours with one 30-minute meal period or shifts that span 13 hours and include two 30-minute meal periods.

Sheppard Mullin argued this case before the California Supreme Court and has represented Orange Coast Memorial Medical Center in the case since 2008.

Not only was this case hard fought throughout California courts for 10 years, but it also involved novel legislative action. Notably, it was the only wage-hour victory for an employer before the California Supreme Court in 2018.

Background on the Case and Relevant Laws

The lawsuit was filed in August of 2008 and initially alleged a variety of wage-hour claims, including meal period, rest period, regular pay, final pay, wage statement (pay stub), expense reimbursement, and unfair business practice claims. A claim under the Private Attorneys General Act ("PAGA") was also asserted. Sheppard Mullin successfully defended the lawsuit in the trial court by moving to deny class certification and obtaining summary judgment in favor of Orange Coast on all of the claims, including the PAGA claim.

The plaintiffs challenged the trial court's rulings, but directed the focus of their appeal on the meal period regulations contained in section 11 of Wage Order 5, a regulation issued by the California Industrial Welfare Commission ("IWC"). They argued that the meal period waiver regulation for healthcare employees differed in some respects from the Labor Code and was therefore invalid. It followed, they argued, that Orange Coast and any hospital that relied on the IWC's regulation faced liability for allowing employees to waive one their two meal periods on long shifts, even though they acted entirely in good faith and the voluntary waivers were revocable by employees at any time.

California's meal period rules for healthcare employees are the product of several overlapping legal schemes – the California Labor Code and the IWC Wage Orders. First, California Labor Code section 512 generally provides that employees who work over 10 hours are entitled to two 30-minute meal periods. However, employees can waive their second meal period if they work no more than 12 hours. Separately, Labor Code section 516 (which was added by AB 60 in 1999) permits the IWC to adopt or amend working condition orders with respect to meal periods, among other things.

Second, IWC Wage Order 5, section 11(D), permits healthcare employees to waive one of the two meal periods on long shifts, even if they work more than 12 hours. Wage Order 5 was adopted by the IWC on June 30, 2000, and became effective October 1, 2000.

After section 11(D) was adopted, but before it became effective, the Legislature enacted SB 88, which amended Labor Code section 516 to limit the scope of the IWC's authority after SB 88 took effect. It modified section 516 to state: "Except as provided in Section 512, the [IWC] may adopt or amend working condition orders with respect to break periods [and] meal periods." Before the SB 88 amendment, section 516 stated: "Notwithstanding any other provision of law, the [IWC] may adopt or amend working condition orders with respect to break periods, meal periods, and days of rest . . . ." It was therefore clear that SB 88 changed the law, including the IWC's authority.

The Plaintiffs' Challenge to the Wage Order

Plaintiffs claimed that, as a result of SB 88, section 11(D) of Wage Order was invalid because it created a form of "additional exception" to the meal period waiver standard that was not in Labor Code section 512. The trial court rejected this theory and each of the plaintiffs' claims. It granted Orange Coast's motion for summary judgment and its motion to deny class certification. The trial court found, among other things, that the plaintiffs were provided meal periods as required by California law.

Gerard I & II

After the trial court ruled in Orange Coast's favor, the plaintiffs appealed. In Gerard I, the Court of Appeal sided with plaintiffs and found that section 11(D) was invalid based on SB 88 and the new language of section 516 that was enacted on September 19, 2000. The court found that the IWC exceeded its authority by enacting section 11(D) because it allowed meal period waivers for healthcare employees who worked more than 12 hours, whereas Labor Code section 512 did not. Shortly after Gerard I was decided in February 2015, the California Supreme Court granted Orange Coast's petition that it review the case.

In a novel approach, an additional avenue was pursued to address the serious industry-wide concerns that arose from the Court of Appeal's incorrect conclusions in Gerard I. After Gerard I was decided in February of 2015, with the backing of the California Hospital Association and the healthcare industry, a legislative solution to the problems caused by the decision was explored. The Legislature responded by unanimously passing SB 327 as an urgency measure that was signed by Governor Brown in October of 2015 to amend section 516. A new subdivision (b) was added, stating: "Notwithstanding subdivision (a), or any other law, including Section 512, the healthcare employee meal period waiver provisions in Section 11(D)...were valid and enforceable on and after October 1, 2000, and continue to be valid and enforceable."

After SB 327 was enacted, the Supreme Court transferred the Gerard case back to the Court of Appeal in 2016. This time, in Gerard II – the Court of Appeal acknowledged in a March 2017 opinion that it had erred both in its analysis and conclusion by focusing on the date section 11(D) took effect (October 1, 2000, i.e., after SB 88 was enacted) rather than the date it was "adopted" (June 30, 2000, i.e., before SB 88 was enacted). On reevaluation, the Court of Appeal accepted arguments that Sheppard Mullin had made throughout the case and concluded that the IWC's action in adopting Wage Order 5 when it did on June 30, 2000 was valid. The Court of Appeal thus affirmed the trial court's judgment granting the hospital's motion for summary judgment and subsequent motion to deny class certification.

The Supreme Court Decision

After the plaintiffs appealed Gerard II, the Supreme Court heard oral arguments on October 2, 2018. The Supreme Court reviewed the history of the case and the evolution of the meal period rules in California. It traced the rules from 1993 (when the healthcare industry petitioned the IWC to allow 12-hour shifts with meal period waivers) through 1999 (when the Legislature enacted AB 60 to create the first statutory meal period requirements). As AB 60 authorized, the IWC adopted section 11(D) to allow employees working long shifts to voluntarily waive one of their two meal periods, even if they exceed 12 hours.

The Supreme Court agreed with the Court of Appeal in Gerard II and found that the timing of the IWC's adoption of Wage Order 5 on June 30, 2000, before SB 88 took effect, warranted the conclusion that the Wage Order was valid. Significantly, the Court also explained that this decision would have been the same whether or not SB 327 had been enacted. Thus, even though SB 327 supported the same conclusion, the validity of Wage Order 5 was determined based on the IWC's authority on the date it was adopted.

What the Decision Means for California Healthcare Employees and Employers

The Gerard decision will have a lasting impact on healthcare employers and employees throughout California. Healthcare employers can now be confident they can continue to use voluntary meal period waivers for healthcare employees, even when they work over 12 hours. This decision also means that healthcare employees can continue to benefit from flexibility with their shifts; shifts can be scheduled for 12 ½ hours with one 30-minute meal period, rather than 13 hours with two 30-minute meal periods, without violating California law. Collective bargaining agreements that incorporate these rules can also be used. In sum, the Gerard decision allows healthcare employees and employers to preserve the flexibility they fought to achieve 25 years ago.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
17 Jan 2019, Webinar, Los Angeles, United States

It’s a familiar story lately – you found the best and brightest to help you grow your company.

31 Jan 2019, Other, Los Angeles, United States

Invites you to join us for a private cooking class hosted by Parties that Cook!

31 Jan 2019, Conference, Los Angeles, United States

The Southern California Association of Corporate Counsel's In-House Counsel Conference

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions