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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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i work as a registered nurse in a southern california hospital.

Customer Question

i work as a registered nurse in a southern california hospital. my regular work schedule consists of three 12 hours shifts per week, and the pay period is two weeks. this is considered full-time employment at this facility.

our employer states the they do not have to give us a meal break within the 6 hours of our start time because we have, through a signed consent form, waived our second meal break. the 8 hour employees have to take their meal break before the start of their 6th hour. if the 8 hour employees clock out for their meal break at 6 hours and 1 minute they get a "missed lunch" premium pay. this "missed-lunch" premium pay is not offered to us until we have worked 10 hours. if we work 9 hours and 59 minutes straight, we get no premium pay because of the second meal waiver form.

if the 8 hour employees have their meal break at no later than 6 hours, is it legal for the employer to make us wait until we have worked 10 hours before we get the "missed lunch" premium? we waived our second meal break, not our first...
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.

Hello,

The answer to your question is controlled by Title 8 Cal. Code Regs. 11050 subd. 11(D), which provides:

  • (D) Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday 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 the employee and the employer. The employee may revoke the waiver at any time by providing the employer at least one day’s written notice. [emphasis added] The employee shall be fully compensated for all working time, including any on-the-job meal period, while such a waiver is in effect.

 

 

The above-described waiver is an individual right. It has nothing to do with the alternative workweek schedule. If the employer is not giving you what you want, then revoke the waiver and demand two meal breaks. If the employer hassles you, then file a retaliation claim with the DLSE.

 

I realize what you want here is money. Unfortunately, the law is gray on the issue that the employer is pushing. So, revoke the waiver entirely, and then the employer will have a different problem. Because when you're not working, the employer will have to staff someone else, and that will cost time and money. Maybe that will give you some negotiating leverage.

 

Hope this helps.

Customer: replied 1 year ago.

no you really did mot answer my question....bluntly is it ok for my employer to think that because I work 12 hours its ok to make me work 10 hours before they are required to give me lunch? i have worked in her hospitals in this state as a 12 hour employee and they all made sure i had my lunch before the start of my 6th hour and i had signed the same waiver waiving my second meal break. i do not understand why the 6 rule applies to dome hospitals but not the current one i work at. plus they have changed the miss break rule this year to state that if we get all 3 of our ten minute breaks say in our 11th hour we still cannot get a missed break premium because tho they were not given to us thru out the day we did eventually get them


 

Expert:  socrateaser replied 1 year ago.
bluntly is it ok for my employer to think that because I work 12 hours its ok to make me work 10 hours before they are required to give me lunch?

A: I apologize if my answer was not clear. The California labor regulation that I provided in my first answer permits an employee in the health care industry who works a shift in excess of 8 hours, to waive one of his/her meal breaks, by providing the consent waiver to the employer in writing.

This exactly fits with your stated facts. Your employer apparently believes that you signed a consent to a waiver of your first meal period. If you did, then the employer can make you work through the first 5 hours, and then not provide a lunch break until hour 10.

If you wish to avoid this outcome, you can revoke the waiver in writing, as described in my original answer. Once you revoke the waiver, your employer must give you a meal break no later than hour five (5) of your work day.

Now, if you signed a waiver of your second work break, and your employer has been forcing you to work through the first 10 hours without a break, then you are entitled to one hour of additional wages for every day that this has occurred, and you can recover those additional wages, retroactive to the beginning of the statute of limitations, which is 3 years. Code Civ. Proc. § 338(a).

If you find that your waiver is in fact for the first meal break, then you can file a claim with the DLSE.

Please let me know if I can clarify anything or assist you further.

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