Thursday, May 21, 2015
S.C to Rule on Whether Hospital Workers May Waive Meal Breaks
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday agreed to rule on the validity of a state regulation allowing health care workers to waive one of the two meal breaks that they are entitled to when working more than eight hours at a time.
The justices, at their weekly conference in San Francisco, unanimously agreed to review a Feb. 11 ruling of the Fourth District Court of Appeal, Div. Three. That panel said the Industrial Welfare Commission had no authority to permit such waivers by those working more than 12 hours.
Div. Three said an Orange Superior Court judge erred in upholding waivers given by former employees of Orange Coast Memorial Medical Center. It reinstated their lawsuit and ordered that the trial court reconsider whether to certify a class.
Judge Nancy Wieben Stock had ruled for the hospital on the basis of IWC Wage Order No. 5-2001 §11(d).
Justice David Thompson, however, writing for the Court of Appeal, agreed with the plaintiffs that §11(d) violates Labor Code §512(a)—limiting the right to waive a second meal break to employees who work no more than 12 hours—and §516, which says the IWC may regulate meal breaks “[e]xcept as provided in Section 512.”
The justice rejected the hospital’s arguments that the language of the wage order can be reconciled with that of the statutes, and that the wage order was enacted prior to the amendment of §516 and is grandfathered in.
Thompson pointed out that while the wage order was promulgated before the statute was amended, it did not take effect until Oct. 1, 2000, while the amendment took effect on Sept. 19 of that year as an urgency measure. He also rejected the hospital’s contention that Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, which—among other things—noted that §11(d) permits waivers of second meal periods and held that it did not require that the meal periods be allowed at specific times, was controlling.
“Brinker did not discuss, let alone decide, whether the IWC exceeded its authority by enacting section 11(D) to the extent that it authorizes health care workers to waive their second meal periods on shifts longer than 12 hours,” the jurist wrote.
The case is Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal. App. 4th 285.
In other conference action, the justices:
•Left standing a ruling by the Fourth District’s Div. Two that a policy insuring a food manufacturer against losses from “contamination” did not cover losses incurred as a result of recalling its products because they contained possibly contaminated beef purchased from a third party.
The court held 2-1 in Windsor Food Quality Co. v. The Underwriters of Lloyds of London, E058324 that summary judgment was properly granted to Lloyds of London against its insured, Windsor Food Quality Company, Ltd., manufacturer of Jose Ole frozen food products.
Windsor incorporated in some of its frozen dishes beef purchased from Westland/Hallmark Meat Company. The meat was recalled in 2008 by the United States Department of Agriculture for fear that the cattle had mad cow disease.
In response, Windsor recalled its products containing Westland beef, sustaining a loss of about $3 million.
When Lloyds of London refused to pay under the contamination policy, Windsor brought suit in San Bernardino Superior Court.
At issue was the how the definition in the policy of “Insured Products” was to be construed. The definition was: “all products including their ingredients and components once incorporated therein of the Insured that are in production or have been manufactured, packaged or distributed by or to the order of the Insured.”
Justice Carol D. Codrington said “the policy’s definition of what constitutes an insured product clearly does not encompass an ingredient obtained from a supplier, like the ground beef supplied by Westland.”
Justice Art McKinster joined in Codrington’s opinion, while dissenting Justice Jeffrey King said “the more reasonable reading of the policy is that the product, and all of its ingredients, are insured for adulteration regardless of when the adulteration occurs.”
•Denied a request to publish the Fourth District, Div. Three’s opinion in Wedgeworth v. City of Newport Beach, G048902 holding that an Orange Superior Court judge did not abuse his discretion in denying attorney fees and expert witness fees that Newport Beach sought from the widow of a man who hanged himself in police custody.
The city’s motion, brought under a statute that allows a public entity to recover fees for the successful defense of a frivolous lawsuit, and the appeal from Judge William Monroe’s denial of the motion, “are without merit and close to frivolous,” Justice Richard Fybel wrote for the court.
•Denied review of a ruling by this district’s Div. Three that a mayor’s purported refusal to sign a contract duly approved by the city council does not authorize the mayor pro tem to sign the contract in the mayor’s “absence” under Government Code §40601.
The ruling was an outgrowth of a dispute between Arakelian Enterprises, Inc., doing business as Athens Services, and the Montebello City Council. The waste-hauling agreement was approved by a 3-2 vote, but all three of the members who voted for it were eventually ousted by the voters, and the newly constituted council voted to sue its former members, and the former city administrator, for conflict of interest based on the alleged trading of their votes for campaign donations.
The appellate panel agreed with Los Angeles Superior Court Judge James Chalfant that the contract was invalid without the signature of Mayor William Molinari, who voted against it and refused to sign it. The city attorney, who advised the pro-Athens mayor pro tem, Rosemarie Vasquez, that she could sign the pact if the mayor didn’t, was wrong, Chalfant and the appellate court said.
The case is Torres v. City of Montebello (Arakelian Enterprises, Inc.) (2015) 234 Cal. App. 4th 382
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