For nearly 22 years, IWC Wage Order No. 4 and IWC Wage Order No. 5 have permitted employees in the “health care industry” who work shifts in excess of eight total hours in a workday to “voluntarily waive their right to one of their two meal periods. . . . in a written agreement that is voluntarily signed by both the employee and the employer.” In apparent reliance on the IWC Wage Orders, Orange Coast Memorial Medical Center maintained a policy that allowed health care employees who worked shifts longer than 10 hours to waive one of their two meal periods.

Three of the Medical Center’s former employees brought a putative class action against the Medical Center on the grounds that its meal break policy was unlawful because California Labor Code Section 512(a) states that a second meal period may be by mutual consent “if the total hours worked [by the employee] is no more than 12 hours” and because the Medical Center’s policy permitted employees to “waive” their second meal period even if they worked a shift longer than 12 hours.

Reversing a grant of summary judgment in favor of the Medical Center, the California Court of Appeal for the Fourth Appellate District unanimously held in Gerard v. Orange Coast Mem’l Med. Ctr. that IWC Wage Order Nos. 4 and 5 are partially invalid to the extent they create an  “unauthorized additional exception . . . beyond the express exception for waivers on shifts of no more than 12 hours.”

More significantly (and more concerning for employers), the Court also held that its decision had at least some retroactive effect in that the authorization for waiver of a second meal period in the current IWC Wage Orders was partially invalid from the moment it was promulgated because California Labor Code Section 516 states that the IWC’s authority to issue wage orders is limited by the specific terms of California Labor Code Section 512. Accordingly, the Court of Appeal held that the Medical Center’s former employees were entitled to seek premium pay under California Labor Code Section 226.7 for any failure by the Medical Center to provide mandatory second meal periods predating the Court’s decision and within the three-year statute of limitations period.

In light of Gerard, California employers in the health care industry should immediately review and revise their meal period policies to ensure that employees who work shifts in excess of 12 hours in length retain their right to unpaid, off-duty meal period of at least 30 minutes. And since Gerard authorizes the recovery of meal period premiums predating its decision, employers should be prepared for a flood of new litigation.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.