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Nasir and Matt discuss the recent conflict between the California Labor Code and Industrial Welfare Commission concerning a second meal period for healthcare employees working in excess of 12 hours.

Full Podcast Transcript

NASIR: All right. Welcome to our business law podcast. My name is Nasir Pasha. This is where we cover business in the news and add our legal twist, and it’s just me today, right?

MATT: I’m also here. I’m Matt Staub.

NASIR: Oh. Oh, okay. Well, Matt Staub joining us once again. Thank you for joining us.

MATT: Your intros remind me of – I’m going to have to explain this to you first. So, for baseball, typically, you have a line-up where you have your batting order and it stays fairly constant throughout the year. I mean, you have maybe your speed guys up front, your first one or two batters, and then your power hitters at three, four, five, and then maybe six and then, like, seven, eight, nine is your worst hitters. But, if you’re in a slump, if the team’s in a slump, sometimes the manager will just, like, throw everyone’s name in a hat and then, you know, you’ll pick a number and you’ll have, like, a random batting order. That’s how I see the intros. It’s the same nine pieces, but it’s always mixed around because you did, like, part seven then, you know, your name was one, but that came later so it was very, very interesting.

NASIR: Well, believe it or not, I actually put much more thought in it than you think. I spend the night before usually writing it and it actually comes out exactly how I write it up so it may seem random but it’s not. This takes skill.

MATT: Yeah, I’m not complaining about it. You always keep me guessing.

NASIR: I appreciate that.

MATT: Well, we have some California employment law that we’re going to discuss today.

NASIR: Nice.

MATT: Everybody, hold onto your seats because this is going to be a big one. I think it pertains to health care workers which, I imagine, the ones that are working these 12-hour-plus shifts probably aren’t listening to this podcast – or maybe they are if they’re doing this during their break.

NASIR: Or maybe on the job, yeah. I know some health care workers that do listen to our podcast. So, yeah, I think they’re listening to us right now and probably going to sue their employer after this episode, probably – hopefully not.

MATT: Hopefully not. So, we have the California Labor Code and then we have the Industrial Welfare Commission – the IWC. So, basically, what happened was there was a recent decision that health care workers cannot waive their second meal period when working in shifts of excess of 12 hours despite the IWC’s order saying that they could.
You know, typically, people work 8 hours. That’s, like, a standard work day. But, if you’re working in excess of that, you do get a second meal period after a certain amount of time. So, if you’re working in the health care industry and you work in excess of 12 hours, what they were recently saying was you can just waive that second meal period and keep on working because, typically, if you’re working those sort of shifts, they need you to be there and be working or else they’ll probably just send you home. So, that’s what workers were doing. But, now, they’ve decided that, “Hey, you actually can’t waive that second period and you’re going to have to work.” So, this is going to be a pretty challenging thing for hospitals and other health care companies, but this can pertain to other businesses as well. Typically, people aren’t working 12-hour shifts, but I think this can stretch possibly to other industries.

NASIR: I think for lawyers and even employers, it kind of puts you off a little bit because, okay, all of a sudden, okay, you have the Labor Code that specifies you have to have this second lunch after 12 hours or at 12 hours, that’s fine, right? But then, the IWC comes out with their wage order which typically what happens is this agency is usually assigned to kind of clarify some of these nuanced issues that may not be detailed, covered in the legislation, and sometimes that’s by design. Sometimes, the legislation in the Labor Code will provide that, “Okay, this is the rule and then the Industrial Welfare Commission can issue further regulations or what-have-you to help execute these rules.” And so, they have a bunch of wage orders that controls many aspects of rights of overtime pay, meal breaks, rest breaks, and other terms and conditions of employment that both employers and lawyers and employees all rely upon. And so, now, all of a sudden, the issue was, “Okay, this order now goes contrary to the Labor Code and so who’s correct?” And so, the Labor Code does say what the court says it says, but all the wage orders said was that this is waivable by the employee so long as there is an agreement in place. In fact, I have it right here, “notwithstanding other provision employees in the health care industry who works shifts in excess of 8 hours total in a work day may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both employee and employer,” and it goes on from there. So, now, okay, as an employer, as an attorney, you read that. “Okay. So, then let’s just write up a document that allows them to waive it.” But then, this case comes out and says, “Okay. They went beyond their scope. Their wage order was actually incorrect. They didn’t have the authority to do so because the Labor Code does not allow such waiver.” And so, now, all of a sudden, that changes.
What’s weird about this – and unfortunate – is that, in this particular case, the employee is being allowed to – in this particular employee, I guess it’s Gerard versus Orange Coast Memorial Medical Center and this is a California Court of Appeal so it could still go to the next level to the Supreme Court of California – but assume it stands, right? Gerard is going to be able to actually get some damages for missing these lunches and the implications of that is that, “Hey, wait a minute, we just relied upon this order so does that mean that now all these health care workers can now go back before this case and get damages?” That’s still uncertain, but the thought of that is pretty scary.

MATT: First things first, it was people working in excess of 5 hours.

NASIR: For lunch, right?

MATT: Yeah.

NASIR: By the way, that differs by state so everyone should know we’re talking about California law.

MATT: Yeah, and if the employee and the employer can mutually agree to this in waiving this, I don’t see the problem in that. But then, on the flip side, I guess, maybe it’s a “they came to an agreement” but there was really no option for the employee. They felt almost obligated to do so. So, I guess that’s why those protections are in place.
To me, if it’s someone who’s been there a while and they know the situation exactly and they really don’t mind and they’re going to get compensated for it as well, I don’t see the problem in being able to agree to waiving that.

NASIR: I think, to go to your point, right? How much control does an employee have to really make their own decisions in the sense that, if it’s practice wide and all health workers pretty much waive their second lunch, and I think in this particular industry, it’s not uncommon to have a 12-hour work shift that the employee can waive their second lunch then most employers are going to require that anyway. And so, the employee may not have an option. And so, now the question is, “What’s the negotiation power of that particular employee?” There’s a difference between a doctor who’s on-call at the hospital for a 12-hour shift which, I think, most of the time it’s longer than that, but let’s just say it’s a 12-hour shift, you know, they have a little bit more negotiating power to negotiate, you know, “Hey, I still need a second lunch because I need to be able to operate and so forth,” versus a nurse practitioner or a physician’s assistant or some other health care worker may have compared to that. And so, I kind of understand the concept of what the wage order was going for, but they should really differentiate between the real negotiating power of the employee which may or may not be there. I think the trend is changing, but I think culturally, when it comes to these health care workers, they work very hard. It’s expected of them that, if you have time for lunch, okay, take a lunch, but if there’s something that needs to be done at that moment and the so-called triage kind of approach to things then you have to react to the emergencies that are being put in front of you.

MATT: Yeah, we don’t want a Seinfeld “Junior Mint” situation where the employee is eating during a surgery.

NASIR: Yeah.

MATT: I guess, in that case, it was good because it magically healed the guy who had surgery. So, maybe we do want more of this.

NASIR: No, but I think I know doctors and health care professionals, they do carry little snacks in their pockets and so forth when they’re doing rounds because, you know, they just sometimes don’t have time to eat. So, on one hand, the law has to fit reality, too. So, if it’s practical, maybe it’s not practical for having a doctor or a nurse working those long hours without a second lunch, I don’t know.

MATT: A lot of the people that do work those 12-hour shifts, I think it’s a situation where it’s a 12-hour shift three days a week, isn’t that pretty common?

NASIR: I don’t know. I mean, I think it depends upon how senior you are and so forth. I mean, there’s a difference between working long hours and having to have very focused work and high stakes work in the sense that, if you make a mistake, people die – that has implications. I think, again, there’s been a little bit of a cultural shift in some areas of the country where they have an understanding that, “Hey, you can’t work a doctor or a nurse for 24 hours and expect them to be at their best,” you know?

MATT: Yeah.

NASIR: And to have continuous interrupted sleep, you know, even if they’re sleeping at the hospital and so forth. So, sometimes, the reality is that’s just how it is, you know? You have someone that needs to be operated on for a long period of time. I like how I’m pretending like I know what it’s like to be a doctor.

MATT: Tell me more!

NASIR: No, but my point is, like, I think, on one hand, the reality still has to be dealt with that lawyers who write up these laws are probably a little distant to how doctors actually or how health care professionals actually work in the work place. So, quick takeaway, the court declined to rule whether employees can retroactively apply this decision. In other words, employees that have been waiving their second lunches to go back and get damages for it, so that’s still up in the air, but I would say most people would be able to at least make a sensible argument that that shouldn’t be the case, for obvious reasons.

MATT: Yeah, I’d hope so, at least. But we’ll see. And, like we mentioned before, it’s the Court of Appeals so this could always get reversed again.

NASIR: Yeah.

MATT: Back to square one with the exact same thing. That’s why some people hate laws. There’ll be a decision and then it’ll be a huge crazy thing and everyone will go nuts and then it’ll just get reversed and then it’s like, “Oh…” like it didn’t even happen.

NASIR: That’s what happened with Proposition 8 in California, for sure. That’s a good example.

MATT: Oh, I mean, that’s the ultimate example, right?

NASIR: Yeah.

MATT: But that’s happened so many times. To keep it medical, it’s been like an EKG with, like, the reactions of the up and down reactions of everything.

NASIR: I think it’s pronounced “Eekage” but…

MATT: Yeah?

NASIR: Maybe that’s an alternative pronunciation, EKG.

MATT: When I worked in the medical records department, we called them EKGs.

NASIR: Okay. Yeah, I think it may be just different in that region.

MATT: I wasn’t working 12 hours a day though, that’s for sure – 11.5.

NASIR: 11.5. All right. Well, thanks for joining us, everyone.

MATT: Yeah, keep it sound and keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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