Blog: The California Workplace Advisor

California employers scored an important win last week when the California Court of Appeal enforced an employee’s “standing” prospective meal period waiver. That decision, in Bradsbery v. Vicar Operating, Inc., confirmed that meal periods for shifts between five and six hours can be “waived by mutual consent” even in a prospective (i.e., forward-looking) waiver.

Procedural History
The Bradsbery case asked the Court to decide whether a prospective meal period waiver for shifts between five and six hours could satisfy the “mutual consent” requirement of Labor Code section 512.

A group of employees seeking compensation for meal period penalties lost at the summary judgment stage when the court upheld a valid, written agreement that prospectively waived meal periods for shifts between five and six hours. On appeal, the employees argued that prospective waivers violated California’s meal period laws. The Court of Appeal concluded that despite the forward-looking nature of the waivers, they were still enforceable. Among other things, the Court of Appeal relied on the fact that the waivers were voluntary and revocable by the employees.

What Bradsbery Means for Employers
This decision is a major win for employers. It removes any uncertainty over whether an employee can maintain a standing meal period waiver. Employers can rest assured that these standing waivers are permitted in California and in turn, avoid the administrative burden involved with obtaining a new waiver each time a non-exempt employee works a shift between five and six hours.

Although the Bradsbery decision did not directly address standing second meal period waivers for shifts between ten and twelve hours, it signals that the Court of Appeal may be receptive to upholding such waivers under similar circumstances.

Meal Period Waiver Drafting Considerations
Employers should keep a few guiding principles in mind when drafting or revising written meal period waivers:

• Waivers should be standalone documents. They should not be embedded in employee handbooks.
• Waivers must be revocable at any time by the employee. Make sure employees know this and include clear language in the waiver itself about revocation, such as a statement like, “I understand that I can revoke this waiver at any time upon written notice.”
• As with any agreement, employers should review waivers for language that may be deemed unconscionable or coercive if later challenged in court. For example, do not include any language indicating that singing the waiver is mandatory as a condition of employment.
• Employers must not retaliate in any way against an employee who chooses to revoke a meal period waiver.

For more information, contact China Daly in the San Francisco office of Hirschfeld Kraemer LLP. She can be reached at 415-835-9027 or cdaly@hkemploymentlaw.com