A California Court of Appeal recently provided employers with a wage and hour victory and meal period guidance in Bradsbery v. Vicar Operating, Inc. As a matter of first impression, the Court held that upon hire, employees can prospectively waive all meal periods owed during any five-to-six-hour shifts they will work throughout the course of their employment. This decision provides helpful guidance for employers seeking to implement enforceable meal period waivers.
As background, California Labor Code section 512 guarantees a 30-minute, off-duty meal period for employees after five work hours and a second meal period after 10 work hours. Section 512(a) 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.” Industry-specific Industrial Welfare Commission (IWC) Wage Orders also govern meal periods; here, Wage Orders Nos. 4 and 5 applied.
The plaintiffs in Bradsbery filed a class action alleging Vicar failed to either provide compliant first meal periods or provide meal period premiums owed for these meal period violations based on the theory that the prospective, written, revocable meal period waivers they signed for all five-to-six-hour shifts were unenforceable. Vicar asserted an affirmative defense based on the validity of these waivers. Plaintiffs argued that prospective waivers improperly allow employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise their right to meal breaks. Instead, they argued that employees can waive a meal period for a given shift only after they are scheduled to work that shift.
Both the text of section 512 and the text of the wage orders applicable in this case are 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. The text also does not define “waived” or “waiver.” Given this lack of statutory guidance and the court’s conclusion that the plain text was susceptible to multiple interpretations, the court examined relevant legislative and administrative history and found that section 512 and Wage Order Nos. 4 and 5 were not intended to prohibit prospective written waivers of meal periods. The history indicated that the ability to execute meal period waivers was requested by employees on wage boards and that meal period waivers provide employees the freedom to either take a meal period or end their shift early.
The Court expressly did not rule on the validity of prospective oral waiver of meal periods under section 512 and the wage orders. It also warned that it would “have serious reservations regarding the validity of prospective written waivers of meal periods” that were unconscionable, irrevocable, signed either unknowingly or by coercion due to the employer’s greater bargaining power, or if the court found the waivers impeded or discouraged workers from taking meal breaks. With the guidance set forth in Bradsbery in hand, California employers that utilize or would like to utilize meal period waivers would do well to review their meal period waiver practices and ensure that their waivers are written, voluntary, and do not run afoul of the cautionary circumstances set forth by the Court. With these guardrails in place, employers can take new comfort when implementing prospective written meal period waivers for five-to-six-hour shifts for their California employees.
For further information, please contact:
Christopher J. Banks, Partner, Crowell & Moring
cbanks@crowell.com
