In a positive development for California employers, the California Court of Appeal, Second Appellate District, determined that revocable, prospective written waivers of 30-minute meal periods for shifts between five and six hours are enforceable in the absence of any evidence the waiver is unconscionable or unduly coercive.
Background
California Labor Code Section 512 requires employers to provide a 30-minute, off-duty meal period for employees who work at least five hours and a second meal period for those who work at least 10 hours. Section 512 also provides that, for shifts between five and six hours, the first meal period “may be waived by mutual consent of both the employer and employee.” However, Section 512 does not specify the form the waiver must take, or when or how it may be obtained. Likewise, wage orders issued by the California Industrial Welfare Commission are silent regarding the permissible scope, form, or timing requirements for such waivers. Accordingly, the enforceability of prospective, written waivers of meal periods for shifts between five and six hours has remained something of a gray area for California employers.
Appellate Decision
In Bradsbery v. Vicar Operating, Inc., employees brought a class action against their former employer alleging, in part, that their employer failed to provide meal periods for work shifts between five and six hours. In defense, the employer demonstrated that employees signed a written agreement prospectively waiving all legally waivable meal periods and permitting employees to revoke the agreement at any time. The waiver states:
I hereby voluntarily waive my right to a meal break when my shift is 6 hours or less. I understand that I am entitled to take an unpaid 30-minute meal break within my first five hours of work; however, I am voluntarily waiving that meal break. I understand that I can revoke this waiver at any time by giving written revocation to my manager.
Opposing this defense, the employees argued that prospective meal period waivers are prohibited, and employees could waive a meal period for a given shift only after they were scheduled to work that shift. Finding prospective, blanket meal period waivers to be permitted by Section 512 and the applicable wage orders, the trial court determined the waivers were valid.
On appeal, the Court of Appeal agreed, finding that such written waivers support employee protections by providing employees the rights to refuse to sign and to revoke standing meal period waivers without adverse employment consequences.
Although the Court of Appeal upheld the validity of the prospective, written waivers, it emphasized that it would have serious reservations regarding the validity of such waivers where there is evidence that the waivers were unconscionable, had the effect of impeding or discouraging employees from taking the meal periods to which they are entitled, were signed by employees unknowingly or under coercion, or were not freely revocable.
Additionally, the court did not consider or decide whether prospective oral waivers would be sufficient.
Tips For Employers
The Bradsbery decision provides much needed guidance to California employers in managing compliance with complex meal period requirements. Going forward, we strongly recommend employers review their meal period waivers for shifts between five and six hours to ensure compliance with the Bradsbery decision. In particular, we suggest employers make sure such waivers (1) are provided to employees for review in plain, concise language contained in a stand-alone document—and not buried in on-boarding or other documents—to avoid any assertion that the waiver was unknowingly signed; and (2) state clear directions for employees to revoke the agreement and emphasize that revocation will not result in any retaliation.
If you have questions about how this decision may impact your business or need advice implementing or revising meal period waivers, please contact us.
- Michael R. Minguet (mminguet@wilsonturnerkosmo.com)
- Katie M. McCray (kmccray@wilsonturnerkosmo.com)
Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.