Business Law

Business Law News 2017, ISSUE 2

California Court of Appeal Reverses Previous Decision and Affirms the Use of Second Meal Period Waivers for Healthcare Employers

Kevin D. Sullivan

Kevin Sullivan is an associate in the Los Angeles office of Epstein Becker Green. He litigates all forms of employment cases, with a concentration on wage and hour class and collective actions. He also counsels clients throughout a number of industries.

Employers in California—and healthcare employers in particular—have been besieged by wage-hour class actions for more than a decade. They have been sued repeatedly on claims that they failed to comply with the terms of California’s Labor Code and Industrial Welfare Commission ("IWC") wage orders. The IWC issues industry-specific wage orders with which employers are expected to comply. The California Supreme Court has confirmed that "wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of eighteen wage orders, adopted by the IWC."1 Consequently, the failure to comply with the Labor Code or an IWC wage order may lead not only to agency investigations, but to class action lawsuits seeking damages, a variety of penalties, interest, and attorney’s fees.

In 2012, the California Supreme Court held that Labor Code section 512 generally requires employers to provide an uninterrupted meal period of at least thirty minutes when an employee works more than five hours in a single workday.2 An employee may waive that meal period if no more than six hours are worked in that day.3And when an employee works more than ten hours in a single workday, California law generally requires employers to provide a second uninterrupted meal period of at least thirty minutes, "except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived."4(Moreover, "absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work."5)

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