We are happy to report some positive wage and hour news for employers! Revocable prospective meal period waivers signed by employees are enforceable on a prospective and ongoing basis, provided they are voluntary and not unconscionable or coercive.

Existing Law, and What’s New

As you know, California law requires employers to provide non-exempt employees with a duty-free unpaid 30-minute meal period for shifts over five hours. Employees have always had the ability to waive this meal period if their shift is six hours or less. Until now, it was unclear whether employers could rely on prospective, one-time waivers signed at the start of employment or whether a waiver had to be obtained on a per-shift basis.

In Bradsbery v. Vicar Operating, Inc. the California Court of Appeal ruled that revocable, prospective meal period waivers signed by employees are enforceable, provided they are voluntary and not unconscionable or coercive. This decision gives employers clarity and a practical way to reduce the risk of premiums for missed meal periods (or litigation on that topic).

More on the court decision and prospective meal waivers

In Bradsbery, two former employees alleged they were denied meal periods during their five-to-six-hour shifts, and they sought premium pay for the days they were denied meal periods. Their employer defended itself by pointing to written waivers signed by these employees at the start of their employment and arguing that the employees had waived their meal periods (and any premiums) in accordance with California law (because they worked shifts of six hours or less). In response, the employees argued that because they had only signed the one waiver at the start, it should not apply to future shifts. They argued that the Company should have obtained a waiver for each shift on which no meal was given.

The Court of Appeal ruled for the Company, holding that prospective waivers (like those signed at the start of employment) are valid if (1) employees can revoke them at any time and (2) the waiver is voluntary. No appeal to the California Supreme Court is currently pending or expected. For now, this ruling stands as binding precedent for California employers.

What this means for your workplace

If you have employees who consistently work shifts of fewer than six hours, and those employees would prefer to work straight through without a lunch, they can do so, so long as you have a valid, voluntary and rescind-able waiver in place. And with an enforceable waiver in place, you will not be required to pay premiums for employees who choose in this case not to take meal periods.

Potential next steps in light of this decision

• We recommend you introduce the possibility of waivers where you are allowed to do so. You can offer employees who work fewer than six hours the opportunity to not take a lunch (makes sense, who wants to stay 6.5 hours if they don’t need to) if you do so lawfully.

• In doing so, you must implement written waivers. For these waivers to be enforceable, they must be in writing. Oral waivers or handbook language may not suffice.

• Make sure the waiver on its face is legally compliant. The waiver needs to be clear that the employee is relinquishing their right to a meal period, and needs to expressly include that the employee may rescind their agreement to the waiver at any time, with no negative consequence. Make sure the signature is voluntary: don’t do anything like offer a benefit in exchange for their signature or otherwise pressure them to sign.

• While you’re at it: have you considered offering a second-meal period waiver? Employees who work shifts in excess of ten (10) hours and less than 12 hours can waive their second meal period, so long as they haven’t waived the first meal period (again, makes sense, who wants to be at work 11 hours if they can leave after being there 10.5). The Bradsbery case does not expressly address prospective waivers in this context, but the same logic should apply. The same caveats about the content of the written waiver apply.

• Be careful: employees who revoke or decline to sign a waiver must not face adverse treatment. Meaning, do not retaliate against employees who choose not to sign the waiver or who change their mind after signing.

• Remember: waivers are not available for rest periods, nor are you allowed to clump meal and rest periods together to extend break times

Exercise caution in drafting and implementing these waivers

The devil is in the details, and you will want to be sure you have the right document in place when you decide to implement meal period waivers. Please let me know if I can help you create an enforceable meal waiver, or other documents that can protect your workplace from wage and hour litigation.

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