Employers in California often offer employees the ability to sign “meal period waivers,” usually at onboarding. These written waivers reflect the employee’s agreement, on a going-forward basis, to waive their first meal periods when they work shifts between five and six hours, and their second meal periods when they work shifts between 10 and 12 hours (and have not already waived their first meal period).
Until today, the California courts had never passed on whether these so-called “prospective” meal period waivers are valid.
In a big win for employers, the California Court of Appeal held today, in Bradsbery v. Vicar Operating, Inc., No. B322799, that prospective meal period waivers are legally permissible, so long as they are not unconscionable or coerced.
The Facts
In July 2014, Plaintiffs La Kimba Bradsbery and Cheri Brakensiek filed a wage-and-hour class action against Defendant Vicar Operating, Inc. Among the claims was one for violation of Labor Code section 512, which requires an employer to provide an employee with a 30-minute, off-duty meal period when the employee works at least five hours, and with a second 30-minute, off-duty meal period when the employee works at least 10 hours.
In April 2009, Plaintiffs had each signed a written meal period waiver, which stated:
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.
Vicar filed a motion for summary adjudication to decide the legal question “whether Vicar’s ‘blanket’ meal period waivers to prospectively waive meal periods on qualifying shifts are enforceable under California law.” The trial court granted Vicar’s motion, finding the waivers enforceable. The parties settled the remaining claims, but Plaintiffs reserved the right to appeal the summary adjudication order. After judgement was entered in Vicar’s favor, Plaintiffs appealed.
The Decision
The court of appeal affirmed. It first looked to the language of Labor Code section 512 and section 11(A) of IWC Wage Order Nos. 4 (professional, technical, clerical, mechanical and similar occupations) and 5 (public housekeeping), all three of which state that meal periods “may be waived by mutual consent of both the employer and employee.”
The court noted that section 512 and the two Wage Orders “are all silent regarding the timing (prospective or as-accrued) and form (written or oral) of a meal period waiver for shifts between five and six hours.” Nor do they define “waived” or “waiver.” And so the court turned to the legislative and administrative history of those provisions. The court’s “review of the history and purpose behind section 512 and Wage Order Nos. 4 and 5 indicates these laws do not reflect an intent to prohibit prospective written waivers of meal periods.”
Plaintiffs had argued that “[a]n ongoing, prospective ‘blanket’ waiver does not provide any protection to the employee and only favors the employer,” and that allowing such waivers “would eviscerate the robust meal period protections that California has enacted.”
The court disagreed. Based on its reading of the administrative history, it concluded that “the IWC has not viewed prospective written waivers as negatively as Plaintiffs suggest. . . . According to the IWC, the option to waive a meal period promoted ‘freedom’ for employees by giving them the choice of taking a meal period or ending their shift early.” And based on its reading of the legislative history, the court concluded that “the Legislature concurred with the IWC regarding written meal period waivers.”
Though it held that section 512 and Wage Order Nos. 4 and 5 do not prohibit prospective waivers, the court explained that it would have “serious reservations” about the enforceability of a prospective waiver that (1) was unconscionable, (2) had the effect of impeding or discouraging workers from taking meal periods to which they are entitled, (3) were signed unknowingly, (4) were signed as a result of coercion, or (5) could not be freely revoked at any time. The court also reserved on the question whether prospective oral waivers are valid.
What Employers Should Know
Bradsbery is a big win for employers. Though prospective meal period waivers have been in use for some time, and have been found enforceable by the federal courts, they have come under increasing attack from the plaintiff’s bar of late. Though there is always room for the California Supreme Court or a different panel of the Court of Appeal to disagree, this decision should provide employers who offer prospective written waivers with some comfort.
It is important to keep in mind the scope of Bradsbery’s holding — technically, the court only addressed first meal period waivers, and it only addressed them in the context of Wage Order Nos. 4 and 5. So, while the court’s reasoning would seem to apply equally to second meal period waivers and other Wage Orders that use similar waiver language, employers will want to consult with trusted employment counsel to determine the effect of Bradsbery on their unique circumstances.
