In a rare win for California employers, a state appellate court has ruled that employees may waive their right to a meal break prospectively.
In other words, an employee does not necessarily need to waive their meal break before every shift. Instead, the employee and their employer may agree in advance to waive meal breaks at the onset of employment or any other date, and that waiver may remain in place indefinitely as long as certain conditions are met.
“I know companies that were getting waivers on a daily basis because they weren’t sure if a one-time prospective waiver would work or not,” said Spencer W. Waldron, a partner in Fisher Phillips’ Irvine, California, office. The new ruling “will save those employers a lot of time and hassle,” he added.
California’s Meal Break Waivers
In California, nonexempt employees must be provided a meal break of at least 30 minutes if they work more than five hours a day. The meal break must begin no later than the end of an employee’s fifth hour of work. A second meal break is due after 10 hours worked in a single day
California law allows these meal breaks to be waived “by mutual consent.”
Waivers are often used in the hospitality and retail sectors, according to Waldron.
A common scenario is that an employee is working a five-hour shift. If they work five hours and 2 minutes, the employee does not want to stop and take a 30-minute break, come back to work and then work only two or three more minutes before going home. It benefits both the employer and the employee to waive the meal break.
The Bradsbery Ruling
In the case Bradsbery v. Vicar Operating, the plaintiff employees claimed that the prospective meal break waivers they signed were prohibited. Among other things, they argued that they could waive a meal break for a given shift only after they were scheduled to work that shift.
In a ruling issued last week, the California Court of Appeal rejected their claims. Neither the text of the law nor its legislative and administrative history support an inference that prospective waivers are prohibited, it said.
However, the Bradsbery ruling offers the following details about ways employers can help ensure their meal break waivers hold up in court:
- There should be no evidence the waivers are “unconscionable or unduly coercive”;
- Employees should knowingly sign the waivers;
- The employer must not coerce employees into signing the waivers; and
- Employees must be able to freely revoke the waivers at any time.
There is no requirement that waivers be in writing or include any particular language, the court noted. Nevertheless, Waldron recommends that his clients put waivers in writing to memorialize the agreement and make sure it’s clear to employees how they can revoke them.
