California law requires employers to provide a 30-minute meal break to non-exempt employees who work between 5 and 6 hours in a single shift, unless the meal break is “waived by mutual consent of both the employer and employee.”  But the Labor Code, and the orders of the Industrial Wage Commission, the state agency which formulates California’s wage orders, don’t specify what form the waiver must take, or whether an employee can provide consent before working a particular shift.

In Bradsbery v Vicar Operating, a rare victory for employers in the wage and hour arena, the Court of Appeal found that meal period waivers by non-exempt workers will be valid and can apply to future meal periods, as long as the waivers:

  • are in writing and agreed to by the employer and employee.
  • can be rescinded by employees at any time, without fear of retaliation.
  • are not unconscionable or unduly coercive.

The plaintiffs in the case, La Kimba Bradsbery and Cheri Brakensiek, worked as veterinary assistants and technicians for Los Angeles-based Vicar Operating, Inc., at various Veterinary Centers of America locations owned by Vicar.

In 2014, Bradsbery and Brakensiek filed a class action against Vicar in Los Angeles Superior Court. They alleged, among other things, that Vicar had failed to provide them with the meal periods required by Section 512 of the California Labor Code and Wage Orders 4-2001 and 5-2001 of the Industrial Welfare Commission.  

Vicar sought summary adjudication of Plaintiffs’ meal break claim because Plaintiffs had signed a valid written agreement that prospectively waived all waivable meal periods throughout Plaintiffs’ employment 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.”

Plaintiffs contended the waiver was unenforceable because employees could only waive a meal period for a given shift after they had worked that shift.  According to Plaintiffs, prospective waivers impermissibly allow employers to circumvent the statutory requirements that workers be provided with meal breaks, and deny employees a meaningful opportunity to get those breaks.

Notably, however, the Plaintiffs did not claim that the waivers they had signed were unconscionable, that they discouraged workers from taking meal breaks, that workers signed them unknowingly, or that Vicar coerced employees to sign the waivers or prevented the workers from freely revoking them.

The trial court ruled in Vicar’s favor, determining that the waivers were valid. The employees then appealed.

The appellate justices noted that an issue in the case was the meaning of the phrase “waived by mutual consent” in the Labor Code provision regarding meal breaks, and whether – as the employees argued – those words prohibited the prospective written waivers which Vicar and its employees signed.

That was not the case. After an extensive review of the history of the statute, previous court cases, and other materials, the justices found that Vicar’s use of the prospective written meal break waivers was valid. 

They affirmed the decision of the trial court and awarded Vicar its costs on appeal.

By David Krol