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A recent California Court of Appeal decision confirms that employers can use a single, prospective waiver for meal breaks, a significant shift from the previous practice of obtaining daily waivers. This ruling in Bradsbery v. Vicar Operating clarifies that a waiver signed at the start of employment can remain valid indefinitely if specific conditions are met, saving time and reducing administrative burden for businesses.
In the case of Bradsbery v. Vicar Operating, the California Court of Appeal ruled that prospective meal break waivers are permissible. This means an employee does not need to waive their right to a meal break immediately before or during each shift. Instead, an employer and employee can agree in advance—such as at the time of hiring—that the employee will waive their meal break for qualifying shifts. Based on our assessment experience, this provides much-needed clarity for employers in sectors like hospitality and retail, where shifts often hover around five hours.
Under California law, nonexempt employees—those entitled to overtime pay—must be provided with a 30-minute, unpaid meal break if they work more than five hours in a day. This break must start before the end of the employee's fifth hour of work. A second meal break is required after 10 hours of work. The law allows these breaks to be waived, but only by mutual consent of the employer and employee. This waiver is practical in scenarios where an employee works just over five hours; taking a full 30-minute break only to work a few more minutes is inefficient for both parties.
The court outlined specific conditions to ensure a waiver is enforceable and not considered coercive. To be valid, a prospective meal break waiver must meet the following criteria:
| Condition | Description |
|---|---|
| No Coercion | There should be no evidence the waiver is "unconscionable or unduly coercive." Employers cannot pressure employees to sign. |
| Knowingly Signed | The employee must understand what they are signing. The terms and implications of the waiver should be clear. |
| Freely Revocable | The employee must be able to revoke the waiver at any time, without penalty. The process for revocation should be straightforward. |
While the court noted that waivers do not need to be in writing, legal experts like Spencer W. Waldron of Fisher Phillips recommend putting the agreement in writing. This documents the mutual consent and clearly explains how an employee can revoke the waiver, strengthening the employer's legal position.
In practice, employers should:
To implement compliant prospective waivers, employers should focus on clear communication and documentation. The waiver should be a separate document, not buried in a general employment agreement. It must explicitly state that the employee voluntarily gives up their meal break for shifts of a certain length (e.g., shifts lasting no more than six hours) and detail how the employee can revoke the agreement. This proactive approach, based on the Bradsbery ruling, helps build a defensible record of mutual consent.
The key takeaway from the Bradsbery ruling is that a single, well-drafted prospective waiver can replace the need for daily waivers, but it must be implemented with clear, voluntary, and revocable conditions to be legally sound.
