In California, laws and regulations with respect to employees are governed by various statutes enacted by the California State Assembly and what are called Wage Orders issued by the California Industrial Welfare Commission (“IWC”). Occasionally, California courts are required to decide which takes priority – the Labor Code or the Wage Orders. One such example involves employee meal breaks and waivers. All San Diego businesses should be aware of the laws and regulations if they have employees. An experienced San Diego corporate attorney can provide advice and counsel.

Under the Labor Code, in general, employees must be given an unpaid 30-minute meal break for every five hours of work; thus one meal break for a five-hour shift, two meal breaks for a 10-hour shift. However, employees can waive one meal break in six-hour increments of work (but not if they have worked more than the six hour increments). Thus, if an employee works for six hours, he or she can waive the meal break, but not if he or she works seven hours. Likewise, if the employee works for 12 hours, he or she can waive the second meal break but not if he or she has worked 13 hours. See Cal. Labor Code, § 512, subd. (a).

The conflict between the Labor Code and the Wage Order arose because the IWC enacted a regulation specific to health care workers allowing them to waive the second meal break even if they had worked longer than 12 hours. IWC Wage Order No. 5, sec. 11(D).

In the case of Gerard v. Orange Coast Memorial Medical Center, 234 Cal.App.4th 285 (Cal. App. 2015), a hospital worker challenged the Wage Order, arguing that it was in conflict with the Labor Code. The lower court agreed, holding that the Labor Code stands above any Wage Order and, where there is a conflict, the Wage Order must give way. The lower court held that the IWC exceeded its authority by enacting a regulation that was not in conformity with the Labor Code.

After the 2015 decision, the State Assembly changed the Labor Code to specifically affirm and allow the Wage Order provision. See Senate Bill No. 327 adding a subsection (b) to Labor Code § 512. That statutory revision stated that the waiver provisions in section 11(D) of the Wage Order was valid and enforceable.

The California Supreme Court recently affirmed the effect of the statutory revision. See Gerard v. Orange Coast Memorial Medical Center, Case No. S241655 (Cal. Supreme Court December 10, 2018). Thus, the general meal break rule still applies for most employees (30-minute break for every five hours with a possible waiver but only if they have worked less than six hours). But healthcare workers have a unique rule that applies to them: They can waive their second meal break even if they work longer than 12 hours.

Contact San Diego Corporate Law Today

For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard can help with employee-related matters such as employment contracts, drafting and/or reviewing company employee policies and procedures, creating and/or updating employee handbooks, and more.

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