California Court of Appeal approves prospective written meal period waivers in Bradsbery decision
For over a decade, many California employers have issued written meal period waivers that permit employees to voluntarily agree to prospectively waive 30-minute meal periods throughout their employment and under certain circumstances.
The meal period waivers stem from California Labor Code Section 512 and the California wage orders, which permit employees to waive a meal period on shifts longer than five hours but no longer than six hours "by mutual consent of the employer and employee." Section 512 further provides that "if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived."
This approach has now officially been approved in the first published appellate decision to address the issue of the legality of these prospective written meal period waivers. On April 21, 2025, a California Court of Appeal issued a published decision expressly upholding the legality of these prospective written meal period waivers in Bradsbery v. Vicar Operating, Inc. ("Bradsbery").
What Happened?
In Bradsbery, two former employees of Vicar brought a class action alleging that the company failed to provide meal periods as required under California Labor Code Section 512 and two California wage orders. Vicar successfully defeated the plaintiff's claims in the trial court, and on the plaintiffs' appeal of their loss, the California Court of Appeal upheld the trial court's decision.
Vicar had obtained voluntary and signed written agreements from these former employees prospectively waiving their 30-minute meal period on shifts lasting six hours or less. The written agreements permitted the employees to expressly revoke (cancel) their waivers of the 30-minute meal period at any time.
Significant Points from the Court of Appeal
- Prospective meal period waivers are lawful if certain conditions are met. In analyzing Labor Code Section 510 and the relevant wage orders, the Court of Appeal found that nothing in the statute or wage orders prohibits the use of revocable, prospective written meal period waivers to effectuate mutual consent. In doing so, the Court rejected the plaintiffs' position that meal period waivers are only valid if given on a shift-by-shift or schedule-by-schedule basis. This means that there is sound legal authority validating the use of prospective meal period waivers for both the first and second meal periods, if drafted and implemented correctly.
- Prospective meal period waivers must be conscionable or they are not valid. The Court in Bradsbery noted that there could be circumstances in which a meal period waiver would not be upheld as valid. For instance, the Court noted that the plaintiffs failed to allege that they unknowingly signed waivers, that they were coerced into doing so, or that they did not understand that they could revoke the waivers at any time.
Thus, it is critical that employers use specific language in their meal period waivers and implement them in such a way as to leave no doubt that employees agree to the waivers voluntarily. As important, the meal period waiver must make clear that the employee may revoke (cancel) the meal period waiver at any time.
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