California Court’s “Employer Friendly” Decision May Come Back to Bite

The employer won – this is true – but Bradsbury v. Vicar Operating, Inc. may yet prove to be a powerful tool in the hands of California employees and their attorneys.

No lunch for you!

La Kimba Bradsbery and Cheri Brakensiek, the two named plaintiffs, worked for a network of veterinary hospitals — Bradsbery as a veterinary technician from 2008 to 2011, and Brakensiek as a veterinary assistant and veterinary technician from 2004 to 2011. They alleged that Vicar required them and others to work five-to-six-hour shifts without providing a duty-free 30-minute meal period – and therefore should have paid them penalties for missed meal periods.

Bradsbery and Brakensiek, like the other workers included in the class, had signed written agreements at the beginning of their employment with Vicar that prospectively waived their meal periods throughout their employment. The waivers read:

“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 plaintiffs argued that these waivers were not enforceable because they were “one and done” agreements intended to apply during their entire period of employment. They argued that waivers should have been obtained on a per-shift basis and only after employees were scheduled to work a particular shift.

Meal and rest break rules under California labor law and wage orders

Under California law, meal breaks, unlike rest breaks, are not required to be paid. The law requires employers to offer two duty-free meal breaks, depending on the length of a shift. Section 512 of the California Labor Code codifies the right to a meal period after five work hours and creates the right to a second meal period after 10 work hours.

When a meal break is denied or interrupted with work duties (while you’re eating could you just pick up the phone if it rings etc.), California workers are entitled to premium pay of one hour of pay for all meal period violations. Premium pay must be calculated at the employee’s regular rate of pay, not just the base hourly rate.

The waiver issue

The law authorizes the parties to waive one meal period by mutual agreement. It also prohibits the waiver of any meal period for shifts over 12 hours. But it is silent on the question of whether an employer can enforce a blanket prospective waiver of the first meal period.

That is the question. The Court of Appeal’s answer is yes.

An employer may enforce a prospective waiver of the first meal period especially, as was the case in Bradsbery, where:

• the waiver is a standalone document not buried in a mountain of onboarding paperwork, and has been specifically explained;
• an employee can revoke the waiver; and
• there is no evidence of retaliation.

Time, money and family

Suppose that you are a wage worker, hired for a five-and-a-half-hour shift from 8:30 am until 2:00 pm. That’s perfect because you can pick up your kid from school or daycare on time.

But the circus will run even more smoothly if you can waive your lunch break and leave a half an hour early. So, you sign a permanent waiver of your lunch break. Logistics issue solved! Kid gets picked up and family is good.

Then your shift changes.

Now you work from 6:30 pm until midnight, and all your calculations are different, so you revoke the waiver. Can you unrevoke it when life changes again and you’d rather have a duty-free time to eat or some overtime?

What if your shift changes every week and you don’t know until the schedule comes out on Friday afternoon?

One step at a time

While still not quite attuned to the vagaries of shift work, the court did express some reservations and caveats. These may prove helpful to wage workers with meal break problems.

In a meal break Complaint, plaintiffs should specifically allege any fear of retaliation, coercion (including the withdrawal of a pending job offer) or discriminatory treatment if they do not waive meal breaks. The same is true about waivers they are pressured to sign without time to evaluate or about which all their questions have been answered. At a minimum, meal period waivers must be in writing and include language indicating they are voluntary and revocable.Los Angeles, CA – On April 21, the California Court of Appeal held that Vicar Operating, Inc. had not broken California law by holding workers to their prospective waiver of meal periods. The decision has been described as “surprisingly employer-friendly,” but the court has also carefully laid out what employees must plead to succeed in future class action lawsuits under Section 512 of the California Labor Code (California Labor).

The employer won – this is true – but Bradsbury v. Vicar Operating, Inc. may yet prove to be a powerful tool in the hands of California employees and their attorneys.