Labor & Employment Law Daily Wrap Up, WAGE-HOUR—Cal. App.: Revocable, prospective waivers of meal breaks after 5-6-hour shifts may be enforced, (May 22, 2025)

By Nadine E. Roddy, J.D.

Absent evidence of unconscionability or coercion, such waivers are valid under the California Labor Code and relevant Wage Orders.

In a suit under the California Labor Code brought by employees of a veterinary hospital regarding meal breaks that had not been provided, a California Court of Appeal, ruled that prospective, written waivers of meal breaks the employees had signed at the start of their employment were valid and enforceable (Bradsbery v.Vicar Operating, Inc., No. B322799 (Cal. App. Filed Apr 21, 2025, modified May 21, 2025)).

Meal breaks not provided. Two former employees brought suit against their former employer, on behalf of themselves and others similarly situated, seeking premium pay for meal breaks required by California law but not provided by the employer. The employer operated a network of veterinary hospitals, and the employees were veterinary assistants and technicians. At the start of their employment, each employee had signed a written meal period waiver, which 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.

The employer asserted as an affirmative defense to liability that the employees had validly waived the disputed meal periods pursuant to the Labor Code and relevant Wage Orders issued by the Industrial Welfare Commission (IWC). Labor Code Section 512 guarantees a 30-minute, off-duty meal period for employees after five work hours, and a second meal period after 10 work hours. Subdivision (a) also provides that, for shifts between five and six hours, the first meal period “may be waived by mutual consent of both the employer and employee.” Wage Order Nos. 4-2001 and 5-2001 similarly provide for such meal periods and their waiver. The employer asserted that its prospective meal period waiver was valid because neither the Labor Code nor the Wage Orders specified what form the waiver had to take, or when or how it could be obtained.

The employer moved for summary adjudication regarding the validity of the waiver, and the trial court determined that the waivers were valid under the Labor Code and the Wage Orders. The employees timely appealed.

Revocable, prospective waivers. The court of appeal noted the employees’ contention that prospective waivers, such as the one they had signed, permit employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise this statutory right. They did not argue, however, that such waivers are unconscionable, or that they impede or discourage workers from taking meal breaks. Nor did they argue that they had unknowingly signed the waivers, that the employer coerced them into signing the waivers because it had greater bargaining power, or that they could not freely revoke the waivers at any time.

As the court explained, the issues for decision were (1) the meaning of the phrase “waived by mutual consent” of the employer and employee in Section 512 and the two Wage Orders, and (2) whether that meaning prohibited the prospective written waivers the employer had its employees sign. After reviewing the statutory language and context, the legislative and administrative histories, and the relevant case law, the court held that the revocable, prospective waivers the employees had signed were enforceable in the absence of any evidence that the waivers were unconscionable or unduly coercive.

Statutory language, history. The court observed that Section 512 and the Wage Orders are silent regarding the timing (prospective or as-accrued) and form (written or oral) of a meal period waiver for shifts between five and six hours. Neither define the term “waived” or “waiver.” The court’s review of the legislative and administrative histories, however, did not reveal a legislative intent to prohibit prospective written waivers of meal periods. Through Section 512, the legislature intended to codify the meal period waiver provisions from existing wage orders, including Nos. 4 and 5, thus authorizing (with mutual consent) a shift of less than six hours without a meal period and a shift of less than 12 hours with one meal period.

Case law. The court then distinguished the California Supreme Court’s 2012 decision in Brinker Restaurant Corp. v. Superior Court, which held that an employer must provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work. Although Brinker addressed the nature of the meal period and when the meal period accrues, it did not address the timing or circumstances under which a meal period can be waived.

For these reasons, the court affirmed the trial court’s grant of summary adjudication for the employer.

The case is No. B322799.

Judge: Martinez, P.

Attorneys: Melissa Grant (Capstone Law APC) for La Kimba Bradsbery. Gary McLaughlin (Mitchell Silberberg & Knupp LLP) for Vicar Operating, Inc.

Companies: Vicar Operating, Inc.

Cases: WageHour ClassActions WorkingTime StateLawClaims CaliforniaNews