Employer Alert: Prospective Meal Waivers are enforceable in CA
Do your workplace onboarding documents for new hires include a voluntary meal period waiver? If so, you may find the latest California appellate court decision of Bradsbery v. Vicar Operating, Inc. both informative and reassuring.
The Law. The Legislature and the Industrial Welfare Commission (IWC) have determined a meal period for work shifts between five and six hours may be waived. 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 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." The relevant wage orders issued by the IWC similarly provide for meal periods and their waiver.
The Issue. Can the mutual waiver of that meal period by an employer and employee occur prospectively and in writing?
The Facts in Bradsbery. In 2014, La Kimba Bradsbery and Cheri Brakensiek (Plaintiffs) sued their former employer, Vicar Operating, Inc. (Vicar), alleging claims on behalf of a class of Vicar employees. Plaintiffs alleged Vicar failed to provide them with the meal periods required by section 512 and IWC Wage Order Nos. 4-2001 (Wage Order No. 4) and 5-2001 (Wage Order No. 5). Vicar asserted Plaintiffs signed a valid written agreement that prospectively waived all waivable meal periods throughout Plaintiffs' employment with Vicar. The agreement provided Plaintiffs could revoke the agreement at any time. The waiver read:
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 moved for summary adjudication regarding the validity of this waiver under section 512 and the wage orders. The trial court determined the waivers were valid and ruled for Vicar.
Appellate Court Conclusion. The revocable, prospective waivers Plaintiffs signed were enforceable in the absence of any evidence the waivers were unconscionable or unduly coercive. The prospective written waiver of a 30-minute meal period for shifts between five and six hours accords with the text and purpose of section 512 and Wage Order Nos. 4 and 5. The legislative and administrative history confirms the Legislature and IWC determined such waivers are consistent with the welfare of employees. In addition, the case of Brinker Restaurant Corp. v. Superior Court (2012) does not require a contrary result.
Application of Bradsbery to your Workplace. Knowing what we know with the outcome in Bradsbery, this is a good time to review the details of the case to ensure that the language of your existing waiver along with your administrative processes in presenting the agreement are up to par. Here are a few takeaways from the case for employers to keep in mind:
· Evaluate Your Workplace Waiver Agreements – Ensure they are written clearly and state that employees can revoke them at any time. Remember, the above quoted waiver language in Bradsbery was considered enforceable by both the lower and appellate courts.
What about oral waivers? What about waivers in employee handbooks? The court was silent as to their enforceability, so let’s follow the court’s strategy regarding waivers: (1) they should be signed upon hire and (2) they should be produced as a separate agreement, not buried within a handbook.
What about waivers for the second meal period? The Bradsbery court only addressed the first meal period, but the reasoning could be extended to the second meal period. Perhaps separate waivers for each meal period would be helpful in this scenario.
Please consult Rosasco Law Group for details as the requirements may vary by industry depending on the wage order.
· Review Time Records – There are only two options. Each employee should either be given a meal break or have a valid and documented waiver for their shifts.
· Educate Managers/HR on the law – Hiring staff and supervisory employees should be instructed that waivers are voluntary and that employees can revoke them without any retaliation.
For questions on meal periods, general onboarding procedures, employee handbooks and more, please contact Rosasco Law Group for expert legal advice on these and other employment matters.
