Wednesday, March 22, 2017
Court of Appeal Tosses Suit Over Hospital Workers’ Meal Periods
Panel, on Remand From High Court, Reverses Course on Labor Code Provision
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 a 12-hour shift is valid, the Fourth District Court of Appeal has ruled.
Div. Three yesterday ordered publication of its March 1 opinion in case remanded by the state Supreme Court. The justices concluded that their 2015 opinion that the regulation violated a Labor Code amendment was wrong, and that the statutes actually authorize the rule, as Orange Coast Memorial Medical Center had argued.
The decision, in an opinion by Justice David A. Thompson, reinstates Orange Superior Court Judge Nancy Wieben Stock’s order upholding Industrial Welfare Commission Wage Order No. 5-2001 §11(d), declining to certify a class of workers claiming they were illegally induced to waive their second meal period, and granting the defendant summary judgment.
In his 2015 opinion in the case, Thompson 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 at that time 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.
In the latest opinion, however, Thompson said the defendant’s argument was persuasive.
“Upon reconsideration, it appears we erred in Gerard I,” he wrote. “The lynchpin of our analysis was the conclusion that section 11(D) conflicts with section 512(a). However, in reaching this conclusion we failed to account for a subtle but critical distinction in administrative law—the date an agency regulation or order is adopted is not the same as the date it becomes effective.”
2015 Law Cited
Thompson went on to cite SB 327, a 2015 law that explicitly responded to the court’s decision by saying:
“[T]he health care employee meal period waiver provisions in Section 11(D) of [IWC] Wage Orders 4 and 5 were valid and enforceable on and after October 1, 2000, and continue to be valid and enforceable. This subdivision is declarative of, and clarifies, existing law.”
While the Legislature’s declaration as to the meaning of its previous enactment is not binding on the court, the justice said, such declaration should be given effect where, as in this case, a “novel question of statutory interpretation” is at issue, the legislative intent is clear, and the Legislature states strong public policy reasons—in this case, avoiding disruption with what had become standard in the industry—for its view.
The case is Gerard v. Orange Coast Memorial Medical Center, G048039.
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