A recent appellate decision provides a victory for California employers that seek to limit wage and hour liability. The Court in La Kimba Bradsbery, et al. v. Vicar Operating, Inc. recently ruled that revocable, prospective meal period waivers for employees that work between five and six hour shifts are enforceable if the waivers are not unconscionable or unduly coercive.
Meal Period Waiver Background
Under the California Wage Orders and Labor Code 512, employees must be provided with no less than a 30-minute meal period when the work period is more than five hours “except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.”
The law has been unsettled as to the ability of employers to implement an indefinite meal period waiver that covers all prospective shifts. HR consultants and legal commentators have suggested that a meal period waiver should only be valid for the specific workday of the signed waiver.
Vicar Operating Company
La Kimba Bradsbery and Cheri Brakensiek were employed as veterinary technicians by Vicar Operating, Inc., which operates several veterinary hospitals. They each signed a written meal period waiver at the outset of employment with Vicar which stated the following:
“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.”
Bradsbery and Brakensiek filed a wage and hour class action lawsuit against Vicar alleging that Vicar unlawfully required class members to work shifts between five and six hours without a meal period. Despite having signed a meal break waiver, they argued that the language of the Labor Code and wage orders prohibit prospective meal period waivers and employees could only waive a meal period for a given shift “after they were scheduled to work that shift.”
The company moved to dismiss the claims on the grounds that the language of the Labor Code and Wage Orders do not prohibit a one-time future waiver of future meal periods. Vicar reasoned that employees are able to prospectively waive all future meal periods with one blanket waiver. The court agreed and granted Vicar’s motion for summary judgment. Bradsbery and Brakensiek appealed.
Appellate Court’s Decision
The Appellate Court noted that Labor Code 512 and the text of the Wage Orders are “silent” regarding the timing of meal period waivers. The Court then analyzed whether the phrase “waived by mutual consent” in the Labor Code and Wage Orders prohibited a prospective written waiver that was applicable to future meal periods. The Court concluded that the phrase did not prohibit such waivers, finding there was no intention in the legislative history of the law to prevent prospective written meal period waivers for employees that work between five and six hour shifts.
The Appellate Court emphasized other requirements for a prospective meal period waiver to be enforceable. First, the waiver must be revokable. Revokable means that an employee has the right to cancel the waiver agreement at any time or decline to sign the waiver without being retaliated against by the employer. Second, the waiver cannot be unconscionable (i.e. unduly harsh, oppressive or one-sided) or have the effect of “impeding or discouraging workers” from taking a meal period.
Employer Takeaways
Employers should now feel more confident that a one-time written meal period waiver for employees that work between five and six hour shifts will be valid as to future shifts so long as (1) the employees can revoke their individual waiver at any time, (2) the waivers are not unconscionable, and (3) the employer does not retaliate against any employee that refuses to sign a waiver. While the Court only discussed waivers for employees that work five to six hour shifts, an argument exists that this ruling should apply to second meal period waivers (for employees working longer than 10 hours) as well. Please consult your Cook Brown, LLP attorney with questions on meal period waiver requirements.
