Second Meal Period Waivers For California Healthcare Workers Are Legal

The California Court of Appeal recently resolved in the affirmative the legality of second meal period waivers for healthcare employees who work shifts longer than twelve (12) hours. Gerard v. Orange Coast Memorial Medical Center (“Gerard II”) (Case No. G048039, filed 3/1/17). The Court of Appeal concluded that second meal period waivers for healthcare workers who work longer than 12-hour shifts ARE indeed valid and legal. The court reached this conclusion only after the California state legislature passed emergency legislation to clarify the Labor Code statutes and confirm the enforceability of the second meal period waiver.


In 2008 three California healthcare workers (two nurses and a respiratory therapist) sued their hospital employer, Orange Coast Memorial Medical Center, for various Labor Code violations. The plaintiffs alleged that they routinely worked shifts longer than twelve hours in which they were not allowed to take a second meal period. Per the hospital’s policy, health care workers who worked shifts longer than ten hours could voluntarily waive one of their two meal periods. The plaintiffs had signed second meal period waivers. As a result, when working shifts longer than twelve hours, the plaintiffs did not receive a second meal break because of the waiver.

The plaintiffs alleged that the hospital’s meal period policy violated Industrial Welfare Commission (IWC) Order No. 5-2001 and California Labor Code sections 226.7 and 512. IWC Wage Order Nos. 4 and 5 both state as follows:

“employees in the health care industry who work shifts in excess of eight (8) hours in a workday may voluntarily waive their right to one of their two meal periods.”

However, Labor Code section 512 allows waivers of second meal periods only when the first meal period has not been waived and the employee works no longer than twelve (12) hours in a work day. The plaintiffs argued that the section of the Wage Order that authorized second meal period waivers for healthcare employees conflicted with Labor Code section 512 and was invalid to the extent it allowed meal period waivers for employees working shifts longer than twelve (12) hours.

The trial court granted summary judgment in favor of the hospital because the plaintiffs voluntarily signed the meal period waiver. In February 2015, on appeal in Gerard I, the court reversed summary judgment and held that the IWC Wage Order was invalid to the extent that it authorized a second meal break waiver on shifts longer than twelve hours. This decision raised huge concerns for healthcare employers who had relied on the IWC Wage Order provisions authorizing second meal period waivers for healthcare employees. Without further clarification, hospitals and other healthcare employers would be required to make major changes to their scheduling practices.

As a result of Gerard I, and at the urging of the California Hospital Association, the California state legislature enacted emergency legislation SB 327 to confirm that healthcare workers could voluntarily waive their right to one of their two meal periods even for shifts that lasted longer than twelve hours. This law only applied to meal period waivers entered after October 2015.

After the passage of SB 327, the California Supreme Court directed the Court of Appeal to vacate its decision in Gerard I and reconsider the matter in light of SB 327. On March 1, 2017, in Gerard II, the Court of Appeal reversed its initial decision and held that SB 327 applied retroactively and, therefore, the second meal period waivers signed by the plaintiffs were valid and enforceable.  The court’s new ruling extinguished the hospital’s potential exposure to liability for waivers signed before October 2015.


The decision in Gerard II confirms that second meal period waivers for healthcare employees are valid and enforceable, even when applied to shifts longer than 12 hours. Healthcare employers must make sure that such meal period waivers are voluntary, in writing, and signed by both the employer and employee. Of course, an employee must be fully paid for all working time, including any on-the-job meal period, while such waiver is in effect.

Contact us for any questions regarding your company’s meal period waivers.

About Cabada & Hameed LLP

Cabada & Hameed LLP is a law firm serving the greater Southern California region. Formed by “big firm” veterans in 2009, the firm offers exceptional legal representation with experienced attorneys handling Labor & Employment and Business Litigation matters. Partners and co-founders Francisco Cabada and Sayema Hameed bring nearly two decades of legal experience to every matter and ensure that clients receive individualized counsel, around-the-clock availability, the utmost discretion and maintenance of the highest professional and ethical standards. For more information, please visit the website

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