by Michelle Ferber and Ben McDonald
On October 5, 2015, the California legislature passed into law a codification of a provision in the Industrial Welfare Commission’s Wage Order No. 5 in response to litigation which threatened to invalidate the Wage Order’s protection of the meal breaks required to be provided to health care workers.
The California Department of Industrial Relations (DIR) regulates the wages and hours of non-exempt employees in California. The DIR established the Industrial Welfare Commission (IWC) to establish Wage Orders, which are basically declarations of how California workers must be treated by employers in regard to various subjects, including wages and hours. While the IWC is no longer in operation, the California Division of Labor Standards Enforcement (DLSE) now enforces those orders.
California Labor Code Section 512, as passed by the California Legislature, requires that healthcare industry workers be provided with two meal periods for workdays longer than ten hours. Section 512 allows the workers to waive their second meal period if the workday is no longer than twelve hours. Section 11(D) of Wage Order No. 5, as issued by the IWC, states that employees in the healthcare industry who work more than eight hours may waive their second meal period. The distinction is finite: the Wage Order is not limited to shifts of less than twelve hours, meaning a worker may be pressured to sign away his or her second meal break for a workday that is longer than twelve hours.
In Gerard v. Orange Coast Memorial Medical Center (2015) California courts have been asked to ferret out the confusion resulting from these conflicting sources of law. The California Court of Appeal held that Section 11(D) of Wage Order No. 5 is invalid to the extent that it conflicts with California Labor Code Section 512. The Court stated that the IWC exceeded its authority by carving out an exception to Section 512 in that the Wage Order allows for employees to waive a second meal period during shifts longer than twelve hours while the Labor Code section does not.
To understand the crux of the conflict, one must consider the sources of the law and the interaction of the bodies that promulgate both. The California Labor Code is a distinct body of law that governs California employers and workers. The distinction in the effect of the Labor Code and Wage Orders is, in most cases, more of form rather than function. Wage Orders are declared and enforced by the IWC/DLSE which has been charged to regulate California labor; the laws codified in the Labor Code are laws that have been passed into law by the state legislature. While both bodies of law coexist, however, Wage Orders cannot supersede the law that has been established through the state legislature (Section 512 of the California Labor Code).
While Gerard has been accepted for review by the California State Supreme Court, the California State Legislature stepped in on October 5 to amend the Labor Code to state that Section 11(D) of Wage Order No. 5 is and has been effective since its inception. Thus, the contents of Wage Order No. 5 have been codified into California Law so that those contents will survive even though the Supreme Court may uphold the Appellate Court ruling that the Wage Order was invalid insofar as it conflicted with California Labor Code Section 512.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.