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.