New Guidance (and Approval) for 6-Hour Meal Break Waivers

California employers often face individual and class-action claims for failure to provide uninterrupted 30-minute meal periods to non-exempt employees.  Failure to provide meal periods results in a one-hour wage penalty per day and can be based on several different issues such as not providing a break, not providing it at the required time, providing shorter breaks than are required, and allowing interruptions – or even the possibility of an interruption – during the break.

The problem is even worse under recent state Supreme Court authority holding that, if time records do not show a proper meal break for an employee working at least five hours, the employer is presumed to be liable even if an employee chose not to take the break.

There is one employer-friendly rule: when employees work more than five hours, but not more than six, the meal period “may be waived by mutual consent of the employer and the employee.” This is incredibly important for many employers, especially those in industries with five to six-hour shifts. 

Employers with comprehensive onboarding materials frequently include a written waiver as part of their hire package, and attorneys often use these to dramatically reduce potential meal-period penalty claims - everywhere from individual Labor Commissioner claims to class-action and PAGA litigation.

Unfortunately, the relevant legal language has not been as to whether waivers may be made in advance, whether they may be in writing, and how they can be revoked. 

This week, one California appellate court upheld the validity of advance written meal periods waivers for employees working six hours or less in a single workday.  Rejecting arguments that advance waivers are prohibited, the court allowed them “in the absence of any evidence the waivers are unconscionable or unduly coercive.”  The case, La Kimba Bradsbery v. Vicar Operating, can be viewed here. 

Vicar Operating and other cases suggest a few points that could help ensure the validity of written meal break waivers, such as:

• The waivers do not apply to shifts longer than six hours: if employees do not always clock out at exactly six hours or less (even by a few minutes), employers may need to schedule shifts for something less than six full hours.

  
  

• The waivers ought to be in a separate written document rather than contained in a larger handbook or acknowledgment form.

• There should be language verifying that the waiver is voluntary and that refusal to sign it will not result in retaliation.

  
  

• Waiver should be revocable at any time.

  
  

• Materials should be provided to employees in a language they readily understand.

A draft format of a written waiver we developed (for demonstration purposes only) can be viewed here.   

This is only one appellate case that could be contradicted by other appellate courts or changed by the Supreme Court.  For now, however, employers can take satisfaction in a well-reasoned case approving the written waivers long used throughout the state.

Handbook Changes Happen (Again) in California

Employment law changes come about in several ways: new laws, significant new court cases, new regulations, and even new enforcement policies by agencies such as the National Labor Relations Board (“NLRB”) or the California Division of Labor Standards Enforcement (“Labor Commissioner”).

Changes do not always require updates to employee handbooks. But they usually do.  And with one of the most active legislatures in history, California provides some of the nation’s most rapidly changing employment-law landscapes.

The problem is magnified by the fact that, whenever any Fair Employment and Housing Act (“FEHA”) category changes, employment policies must change as well. State regulation requires employers to distribute a “harassment, discrimination, and retaliation prevention policy” to all employees (in all languages spoken by ten percent or more of the workforce) including “all current protected categories covered under the Act.”  (See the regulation here.)

This year is no exception.  Several employment-law changes require handbook revisions for just about every employer, of any size.  Some of the changes include: 

Additions to the Fair Employment & Housing Act (“FEHA”).    This year, there were multiple changes to FEHA-protected categories such as removing ‘historically’ from traits associated with race and inclusion of victims of qualifying acts of violence, as well as expansion of all categories to include “intersectionality” (any combination of multiple traits). 

Paid Family Leave Benefits.  Policies must not require employees to use vacation or sick leave prior to obtaining benefits under the state Paid Family Leave program.

Leaves of Absence.  Prior Crime and Abuse Victim Leave has been amended to cover Victims of Qualifying Acts of Violence and moved to the FEHA (unlike leaves for Victims of Violent Felony, Serious Felony, or Felony Theft).

Paid Sick Leave.  Sick leave may be used by agricultural workers for certain smoke, heat or flooding emergencies and by individuals who are victims, or whose family members are victims, of certain crimes.

Different rules apply to employers of different sizes.  There also are many other requirements that may not appear in handbooks but require active policy preparation, such as Workplace Violence Prevention programs (discussed previously in the blog here).

In today’s environment, employee handbooks and policies should be reviewed every year.  Employers can keep an eye on changes via their own industry associations or, better, groups focusing on California law and state-compliant policies.  Handbooks and policy manuals are front-and-center in almost every type of employment litigation (especially class and PAGA suits), so monitoring continued compliance is essential.

Cal-OSHA Provides Model Workplace Violence Prevention Program

Cal-OSHA has required almost all California non-healthcare employers to adopt a Workplace Violence Prevention Plan (“WVPP”) since July 1, 2024.  Covered employers must establish, implement, and maintain an “effective” plan including:

• Identifying who is responsible for implementing the plan;

• Involving employees and their representatives (i.e., unions);

• Accepting and responding to reports of workplace violence and prohibit employee retaliation;

• Communicating with employees regarding workplace violence matters;

• Responding to actual and potential emergencies;

• Developing and providing effective training;

• Identifying, evaluating, and correcting workplace violence hazards; and

• Performing post incident response and investigations.

Creating a plan requires more than adopting a policy or filling out a few forms: the above factors require employers to invest time assessing the workplace, working with employees, and tailoring their WVPP to each individual location.

Very little guidance was provided for employers, leaving many either confused or reliant on often-expensive outside consultants.

Fortunately, the California Division of Occupational Safety and Health (“DOSH”) has now created a model format employers may use for guidance.  While the model still requires management to assess their workplace individually, and to interact with employees while doing so, it provides a much easier route to creating compliant plans (and ones DOSH is likely to acknowledge as well!).

The Division’s model program can be found on the DOSH website at this link.  Further guidance and discussion can be found here as well. 

Creating a WVPP is not the end of the story, as employers must provide regular training (discussed here) in addition to updating the plan periodically.  Covered employers should monitor the DOSH site, and relevant industry and human resource sources, to stay atop these important new developments.