How California Made The Night Shift Worse For Healthcare Employees [e231]

October 19, 2015

Nasir and Matt discuss the new legislation thatallows for healthcare workers in California to waive a meal period on longer shifts.

Full Podcast Transcript

NASIR: Welcome to Legally Sound Smart Business, our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Hello!

MATT: Hi.

NASIR: So…

MATT: So, you jinxed the Houston Astros.

NASIR: I know.

MATT: Actually, the whole state of Texas because both Texas teams just full-on collapsed the last couple of days – Houston in Game 4 and then the Rangers in Game 5, the deciding game.

NASIR: Oh, the Rangers, yeah.

MATT: Yeah, both of them just full-on collapsed, pretty much your fault, I’m assuming.

NASIR: I actually, yeah, I definitely caused that. I’ll take credit for that.

MATT: There was a period of time it was looking like an all-Texas ALCS and then, like I said, both teams just blew it.

NASIR: Yeah. Sorry to hear.

MATT: Did you see the thing with… I think it was the governor? I don’t know. He posted something.

NASIR: Abbott?

MATT: Yeah, that’s who it was. He posted something. I know you didn’t watch or I’m assuming you didn’t.

NASIR: No.

MATT: Game 4, the Astros had a big lead at home, like, four runs with a couple of innings left so they had a very good chance of winning. And so, the governor posted something about like, “Congrats on advancing to the next round!” and then they ended up losing. So, it was a big thing.

NASIR: I’m reading it now, yeah. “Hoping for an all-Texas ALCS. Looking at you, Rangers.” Why would he do that? I mean, especially in baseball, you never know.

MATT: Someone else probably wrote that for him but I don’t know.

NASIR: Yeah, most likely, and I guess he deleted it, of course.

MATT: I think he should have just doubled down on it and owned up to it and posted it again at the beginning of Game 5 but a pretty rough one for Houston.

NASIR: Yeah, I’m seeing if he apologized or something. What was the explanation? Is Sam Brownback someone significant? Is he the governor?

MATT: Maybe.

NASIR: Kansas governor Sam Brownback, he was like, “Congrats to the Royals. Not so fast, my friend, Gov. Abbott. See you Wednesday. #takethecrown” which I assume is some kind of code word for an assassination attempt on our Queen in England.

MATT: I think you pieced it together. Well, just like baseball is a very number-intensive game, this is going to be a number-intensive podcast. There’s lots of numbers that are going to be thrown out so get your calculators out – well, probably not calculators but get something out – pen and paper, only if you’re in California, though.

NASIR: Actually, you just need to have the numbers 30, 8, 12, and maybe 6 memorized and you’ll be good. Basically, there was recent legislation about two weeks ago that was signed by Governor Jerry Brown. He signed a bunch of bills that day but this is one of them. It basically made clear this very kind of confusing period for healthcare workers – or I should say “healthcare employers” – in California because, basically, there’s this laws in California that require meal periods and we can kind of talk about how that works but there was also a wage order created by an administrative body that basically said, “Okay, for healthcare workers, if an employee works for more than twelve hours, you can actually waive that second meal period or one of the two so long as it’s a written agreement signed and voluntarily waived by the employee.” And so, this case back in I think early this year or late last year, some healthcare worker sued basically saying, “Hey, the law states in statute that you can only waive it if it’s less than twelve hours – not more than twelve hours – so this is in conflict. I don’t care what this other administrative body of California says, that’s not proper.” The court ended up agreeing and it was appealed and they actually won. Now, it basically created this very strange circumstance for these healthcare workers. For 22 years, this has been kind of the standard in the industry and now it was, all of a sudden, illegal. And so, it was actually emergency or urgent kind of legislation that basically created and confirmed that, “Okay, now this is okay.”

MATT: Yeah. I mean, I think the urgency part of it was dealing with… you mentioned that case and I don’t know the exact date but it was 2015 that the Court of Appeals heard on it and it was appealed to the California Supreme Court so I think the idea was the urgency behind signing this bill was to just cut that out completely and have it be irrelevant.

NASIR: Yeah, because it sounds like the Supreme Court would have agreed with the healthcare workers and now, all of a sudden, you have a longstanding kind of tradition, and I hate saying that because it seems like, obviously, the California legislator seems to think that this is a proper thing but what seems strange is why would we want our healthcare workers working more than twelve hours with only one lunch break? Like, why is that such an urgency. I know there are hospitals and I talk to some of my physician friends – obviously, by the way, this doesn’t apply to physicians because they’re exempt but some of their support staff at least, they seem to think it really depends on certain hospitals whether the resource utilization and the resource for each particular hospital may be different. It just seems a little strange to me why this is a good public policy.

MATT: Yeah. I mean, I guess my thought would be that, you know, we’re undersupplied with workers.

NASIR: Yeah.

MATT: Even then, it doesn’t seem like it would make that much sense. I would think – this is just common sense thought – you know, if I haven’t eaten or if I’ve only eaten once in twelve hours, I’m probably just not even going to… I guess that’s a full meal but…

NASIR: Yeah.

MATT: Yeah, for me, two full meals in twelve hours while working, I mean, you’re just going to be kind of out of it and hospitals are already high-stress, high-leverage situation. You don’t want people not working at 100 percent.

NASIR: Yeah. First of all, this is voluntarily waived in theory but I was kind of thinking that’s somewhat false because, if it’s industry standard and you don’t waive it, then it’s like, “Okay, well, how are you supposed to work in that kind of environment if everyone does it?” On one hand, I question the voluntary-ness of it but nonetheless… you have this standard but then you have a worker working twelve hour – or I should say more than twelve hours – and they’re non-exempt so they’re probably getting overtime and then they have a 30-minute minimum lunch and that’s not crazy. I don’t know about you, Matt. We’ve done that on our own.

MATT: Well, it’s a combination of typically hospitals have a cafeteria or something and they can eat there. Or, speaking from another experience, a lot of times, if you work on the clerical side, there’s medical sales will come in every day and bring a lunch for the entire group of people. Maybe it was just my experience but they would bring in the free lunch for everyone – like, tons of people. I would go in and eat first because they would need someone to always go out there and talk with them and then I would let everyone else eat and then I would eat a second time so it worked out really well – double the lunch.

NASIR: Yeah. Let’s talk about waiver in general because the healthcare industry is not the only industry that’s allowed waiver in California. Basically, here’s the rule. If you have an employee that works at least five hours, then they’re entitled to a 30-minute lunch break. But, if it’s less than – I think it’s no more than – six hours, they can voluntarily waived by mutual consent by both employer and employee which seems kind of strange but, okay, if you’re in that five to six-hour marker – I should say less than six-hour mark – then that may apply which seems very unique.

MATT: Yeah, very small number of people.

NASIR: Yeah, very small number of people.

MATT: If you’re the employer, you can figure that out to get around that.

NASIR: Yeah, exactly. Now, second meal period is required – or at least thirty minutes – if the employee works for more than ten hours per day. But, if it’s between ten and twelve hours, then the worker and the employer can also waive it.

MATT: If they haven’t waived the first.

NASIR: If they haven’t, yeah. You can only waive one of them which makes sense, obviously.

MATT: They should have just done it like the paid sick leave accrual method so that, for every hour you work, you get four minutes of lunch or four minutes of a meal.

NASIR: Yeah, I should specify this as once in a day. You can’t carry over and just have eight hours in one week or I should say five hours in one week for a lunch.

MATT: Yeah, and bringing back up a couple of things you mentioned previously – the voluntary aspect of it and that, in other industries, not just the healthcare industry this happens even though we were talking about the healthcare industry before – you know, I think a big one is working at a restaurant, specifically in the back-end of the restaurant – the cooks – because I’ve talked to people that have worked in those positions before and, basically, the thought is, if you get a job at a good restaurant, you’re pretty much expected to waive – and it’s just ironic because you’re working in a restaurant making food which probably makes it works but you’re basically expected to waive your meal period and then work these long shifts or else you’re not going to be able to keep the job that you have at this good restaurant and you’ll have to go somewhere else. That’s just kind of the going offer that’s out there for a lot of these cooks to try to work their way up. I mean, it’s not fair but, first of all, I mean, I think you could just eat the food that’s there. That’s what I would do but I’d probably get fired.

NASIR: Well, what’s crazy is that, in some states like Texas – I think it’s crazy – in Texas, there’s actually no requirement of any kind of meal or rest periods. I mean, it’s basically the federal standard. The only basic requirement is that, okay, if you do have a meal period and they’re truly off duty, then it can be unpaid. But, if they have any responsibilities and so forth, then it has to be a paid break. There are some nuances to that. There’s about it basically twenty minutes or what-have-you and then how long the actual break is and so forth. But the point is that, in Texas, it’s pretty free rein. Compared to California, if you work an eight-hour shift, you can’t waive – whatever industry you’re in in California.

MATT: Yeah, and that’s the big thing. Every state is different and they have all these different laws. I mean, even the way they word things in some of these states, it’s much different state by state. It’s truly, if you’re an employer that has people working, employees working in different states, you’re going to need to figure that out I guess.

NASIR: Oh, that’s a nightmare, for sure.

MATT: Yeah. But, like you said, in Texas, there’s no requirement, really. I don’t think you can have a situation where an employer didn’t allow some sort of break. No one would work there.

NASIR: Exactly, and I think that’s kind of the concept – the market kind of takes care of itself and people have to eat, right?

MATT: Yeah. I couldn’t do it because I’m not there but you should start a business where you just don’t allow – that’s a reality show. You could just start it and see how many days people last without eating a meal.

NASIR: See how long they last?

MATT: I’ll visit you in prison, that’s fine. I probably won’t but we can do the Skype like we do now.
So, I mean, the takeaway here is I guess very specific to the healthcare in California. I don’t know how many people we’re going to have listening under those guidelines but another takeaway we can come up with is just make sure that you know and stay aware of any new laws involving the meal periods – and not just meals, just employment laws in general – because, this time every year, we talk about new laws that are going to go into effect and there’s a lot of employment related ones that get shifted around. It’s just something you have to stay on top of.

NASIR: Every January, that comes out, and meal breaks are always tricky because the hard part in California is that, if you mess it up, then there’s the basically hour penalty that gets tacked on for every meal break that you miss or misconstrue and it’s easy to fall into that trap, you know, whether it’s your employee that just doesn’t take meal breaks or you bother them and are expected to take phone calls during those breaks – all these little things. Of course, there’s exceptions and defenses and so forth but always a risk.

MATT: You reminded me of something. That was the crazy thing about the Court of Appeals decision that this law just shut down was the Court of Appeals concluded that their previous law be applied retroactively I believe four years going back.

NASIR: Oh, I know. Yeah, exactly, because basically they said that, and what I was unclear because I know this particular law went into effect immediately and I honestly think that it wasn’t clear when I actually looked at the statute and I’ll look again but it seemed to not necessarily invalidate that opinion because the idea is, okay, the court said that, to what year? 2004? Is that what they said? Or four years back, you said, right?

MATT: Four years back, yeah.

NASIR: Basically, they said that this wage order is basically illegal and we can go back this amount of time so all these times that there was no lunches waived or these lunches were waived, they’re improper. And then, now, we have a new law that comes in to say, okay, it is proper effective immediately. At least, to me, there’s a little ambiguity until that’s kind of resolved. But, luckily, I don’t have to deal with that.

MATT: I am reading a summary but this isn’t the actual law itself but it says the new legislation retroactively confirms the validity of these greater than twelve-hour meal periods, but there’s no, I mean, I guess that would be sufficient – the four-hour thing or the four-year thing would just be taken out by that. Like I said, I’m not reading the law. This is just a summary.

NASIR: Someone’s conclusion which probably makes sense because I think that’s what the legislator wanted to do because the California state government is the one that messed up. California legislation passes the law. California state agency creates this regulation that everyone depends upon and follows. The court says, “Hey, that’s not correct, you guys messed up.” I think that made sense. Well, that’s what’s coming into the healthcare industry in California. Thanks for joining us.

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

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.

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