Can a Meal Period be Mutually Waived Prospectively and in Writing in California?
As discussed in the recent California appellate decision in Bradsbery v. Vicr Operating, Inc., the California Legislature and the Industrial Welfare Commission (IWC) have determined a meal period for work shifts between five and six hours may be waived.
The question on this appeal was narrow and of first impression: whether the mutual waiver of that meal period by an employer and employee can occur prospectively and in writing?
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.” (§ 512, subd. (a).)
The relevant wage orders issued by the IWC similarly provide for meal periods and their waiver.
In 2014, La Kimba Bradsbery and Cheri Brakensiek (collectively, 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 Orders.
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.
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.
Plaintiffs argue prospective waivers permit employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise their right to meal breaks.
The appellate court ruled the text and legislative and administrative history do not support those arguments.
Further, Plaintiffs did not argue the waivers are unconscionable or that they impede or discourage workers from taking meal breaks.
Nor did Plaintiffs argue that they unknowingly signed the waivers, that Vicar coerced them into signing the waivers because it had greater bargaining power, or that they could not freely revoke the waivers at any time.
While the appellate court would hesitate to uphold a prospective written waiver under such circumstances, this case did not present them.
Revocable, prospective waivers Plaintiffs signed were enforceable in the absence of any evidence the waivers are 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 Orders.
The legislative and administrative history confirms the Legislature and IWC determined such waivers are consistent with the welfare of employees.
Plaintiffs filed a putative class action in July 2014, alleging claims on behalf of all individuals who worked for Vicar in California as a veterinary assistant, veterinary technician, surgery technician, kennel technician, client service representative, or similar position in the four years before the complaint was filed.
As relevant here, Plaintiffs alleged Vicar violated section 512, subdivision (a), by requiring Plaintiffs and class members to work shifts between five and six hours without a meal period and without waiving their legally mandated meal periods by mutual consent.
In April 2009, Plaintiffs each signed a written meal period waiver with Vicar.
The waiver 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.
Brakensiek also signed a second identical meal period waiver in 2011.
Vicar asserted as an affirmative defense to liability that Plaintiffs validly waived the disputed meal periods.
Vicar argued the prospective meal period waiver was valid because neither the Labor Code nor the wage orders specify what form the waiver must take, or when or how it may be obtained.
Plaintiffs opposed, arguing prospective waivers were prohibited, and that employees could waive a meal period for a given shift only after they were scheduled to work that shift.
In California, wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC.
The IWC is the state agency empowered to formulate wage orders governing employment in California.
The IWC possesses broad statutory authority to investigate and regulate the comfort, health, safety, and welfare of the California employees under its aegis.
At issue in this case is the meaning of the phrase “waived by mutual consent” of the employer and employee in section 512 and the two wage orders, and whether that meaning prohibits the prospective written waivers Vicar had its employees sign.
In those written waivers, employees expressly waived their right to a 30-minute meal period for work shifts between five and six hours.
Plaintiffs conceded the plain language of section 512 and the wage orders is silent as to when the first meal break can be waived.
The requirement of a written agreement in these provisions imposes specific requirements in the particular circumstances in which they apply. Waivers “must” be made in writing and can apply prospectively to future meal periods, provided the employee may revoke the waiver with proper notice.
The meal period waiver provisions at issue here in section 512 and section 11(A) of the wage orders do not require a written waiver (let alone in mandatory language).
Plaintiffs argued the absence of a written waiver requirement for shifts between five and six hours supports an inference that prospective waivers are not authorized.
Vicar argued that “the unambiguous language of the Labor Code and Wage Orders places no restrictions on the timing of meal waivers, and thus no prohibition on prospective meal waivers.”
The history and purpose behind section 512 and Wage Orders indicates these laws do not reflect an intent to prohibit prospective written waivers of meal periods.
The text of section 512 and the text of the wage orders do not support Plaintiffs’ claims.
Plaintiffs did not address the legislative and administrative history. Instead, they asserted that an ongoing, prospective blanket waiver does not provide any protection to the employee and only favors the employer, and allowing such waivers would eviscerate the robust meal period protections that California has enacted.
It is reasonable to infer the Legislature and IWC wanted to be more protective of employees who worked longer shifts and for that reason spelled out in detail what is required to waive a right to a meal break for shifts over eight hours for health care employees and over 12 hours for all other covered employees.
But it does not follow that when employees work fewer hours, here between five and six hours, that there was also an intent to prohibit a prospective written waiver.
Further, the waivers at issue here are revocable by the employees at any time.
The DLSE has emphasized employees have the right to revoke a written meal period waiver (or to decline to sign a waiver) without retaliation from their employer.
In sum, Plaintiffs did not demonstrate Vicar’s use of prospective written waivers violates the Labor Code or the applicable wage orders at issue in this case.
LESSONS:
1. Employers should request and obtain, if employees consent, a written waiver of the meal period to protect from any employee claims based on missed meal periods.
2. 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.
3. 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.