In Bradsbery v. Vicar Operating, Inc., a California Court of Appeal answered a question that many California employers may not have known even needed to be answered—whether California employees can prospectively waive their mandatory meal periods.  Given the almost universal use of such waivers by employers (based on the assumption that the waivers are revocable, not unconscionable, and free of coercion), the Court’s ruling had the potential to create significant exposure to employers up and down the Golden State.  Fortunately, however, the Court of Appeal confirmed the legality of these waivers thereby allowing their continued use. 

California law guarantees employees a 30-minute, off-duty meal period after five work hours and a second meal period after 10 work hours.  The question before the Court concerned the laws providing for waivers of these meal periods in certain circumstances.  Specifically, the law (California Labor Code section 512) 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.”  Many employers have interpreted this to allow a one-time written waiver signed at the time of hire instead of requiring employees to execute this waiver on a shift-by-shift basis.  But until Bradsbery, no published appellate decision had confirmed the legality of this approach. 

The facts in Bradsbery were simple.  Plaintiff La Kimba Bradsbery (“Bradsbery”) worked as a veterinary technician for Vicar Operating, Inc. (“Vicar”), from September 2008 through February 2011.  In April 2009, Bradsbery signed a written waiver stating:

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.

In July 2014, Bradsbery filed a putative class action in Los Angeles County Superior Court, alleging that Vicar had failed to provide statutorily mandated meal periods for shifts between five and six hours.  Specifically, Bradsbery argued that Vicar’s meal period waivers were improper and should have been secured on a shift-by-shift basis.

The trial court rejected Bradsbery’s argument and she appealed.  The Court of Appeal affirmed the trial court’s decision on the grounds that plaintiff’s interpretation was supported by neither the text of the relevant statutes and orders nor the legislative and administrative history.  The Court also rejected Bradsbery’s reliance on both (1) a prior decision by the California Supreme Court and (2) an opinion letter issued by the Division of Labor Standards Enforcement.

In the end, the Court of Appeal’s decision does not change much.  Employers may continue to use prospective, written meal period waivers for their employees.  To maximize enforceability, California employers should ensure that each waiver satisfies the following requirements:

• The waiver is in writing and in a stand-alone document;
• The waiver is secured voluntarily, noting that the employee’s execution is optional;
• The waiver is revocable at any time by either the employee or the employer;
• The waiver specifies the types of shifts employees may waive meal periods for; and
• The waiver is signed by the employee.

As always, this case is an important reminder that California employers can never take anything for granted but greatly appreciate the wins when they come.