Considering a question of first impression, a California appellate court held that the mutual waiver of a meal period by an employer and employee for work shifts between five and six hours can occur prospectively and in writing.
A pair of employees sued their former employer, Vicar Operating, on behalf of a class of Vicar veterinary assistants and technicians. They alleged that Vicar failed to provide them with meal periods as required by the state's Wage Orders 4 and 5.
Vicar pointed to written agreements with the employees that provided: "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."
The trial court granted summary judgment in favor of Vicar and the plaintiffs appealed.
The employees argued that prospective waivers permit employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise their right to meal breaks.
But the appellate panel disagreed, finding that the text and legislative and administrative history did not support the plaintiffs' arguments.
California Labor Code Section 512, which sets forth the 30-minute meal break, also provides that "the meal period may be waived by mutual consent of both the employer and employee." Both wage orders contain similar language.
The court recognized that the text of section 512 and the wage orders 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 Court rejected the plaintiffs' argument that such silence, and the fact that other provisions authorize prospective waivers, indicated the legislature did not intend to authorize such written waivers.
"The legislative history of section 512 further demonstrates the Legislature concurred with the IWC regarding written meal period waivers," the court wrote. "[W]e believe 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."
The court also emphasized that the waivers at issue are revocable by the employees at any time, and the plaintiffs made no argument that the waivers at issue were unconscionable or had the effect of impeding or discouraging workers from taking the meal periods to which they are entitled to. Nor did they assert 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.
"We would have serious reservations regarding the validity of prospective written waivers of meal periods under such circumstances but the present case does not present them, and we need not reach these issues here," the court said.
While the plaintiffs also relied heavily on Brinker Restaurant Corp. v. Superior Court, a 2012 California Supreme Court decision discussing Wage Orders 4 and 5 and meal periods, they "overread" the decision, the court said.
"Although Brinker addressed the nature of the meal period and when the meal period accrued, it did not address the timing or circumstances under which a meal period can be waived," the court wrote. "Even if an employee's right to a meal period arises after five hours of work, Plaintiffs do not explain why they cannot prospectively waive it."
To read the opinion in Bradsbery v. Vicar Operating, Inc., click here.
Why it matters: The court not only approvedprospective written meal period waivers but also provided a road map for employers seeking to implement and enforce such waivers.
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