Thursday, February 12, 2015
Court of Appeal Revives Suit Over Hospital Workers’ Meal Periods
Justices Say Regulation Allowing Employees to Waive Breaks Conflicts With Statute
By KENNETH OFGANG, Staff Writer
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 is invalid to the extent it permits such waivers by those working more than 12 hours, the Fourth District Court of Appeal ruled yesterday.
Div. Three held that an Orange Superior Court judge erred in upholding waivers given by former employees of Orange Coast Memorial Medical Center, in declining to certify a class, and in granting the defendant summary judgment.
The ruling, in an opinion by Justice David A. Thompson, sends the case back to the trial court with directions to deny summary judgment and reconsider the denial of class certification. Superior Court Judge Nancy Wieben Stock had ruled for the defendant on the basis of Industrial Welfare Commission Wage Order No. 5-2001 §11(d).
Thompson, however, 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.
On remand, he went on to say, the trial judge must determine the extent to which the decision will be applied retroactively to the plaintiffs’ claims. But retroactivity must be granted, he said, as to the claim for premium wages for missed meal breaks under Labor Code §226.7.
Since the Legislature adopted the present statutory language, Thompson explained, “employers in this state have been on clear notice they were required to provide health care workers with a second meal period when they worked more than 12 hours in a day.”
“The issue, then, is not whether hospital was on notice its failure to provide the required second meal periods was unlawful—it surely was—but whether it is somehow unfair to apply to hospital the particular remedy specified in section 226.7 for its actions prior to our decision today.”
The justice acknowledged the “reluctance to punish an employer for conduct apparently authorized by the IWC.” But the requirement that an employee receive an extra hour of pay as compensation for denial of a mandated break is remedial, justifying application of the presumption in favor of retroactivity, he said.
“Plaintiffs are entitled to seek premium pay under section 226.7 for any failure by hospital to provide mandatory second meal periods before today that falls within the governing three-year limitations period,” the justice concluded.
The denial of class certification, he went on to say, was an abuse of discretion because it was based on the erroneous legal conclusion that the plaintiffs lacked a viable claim.
The case is Gerard v. Orange Coast Memorial Medical Center, 15 S.O.S. 886.
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