A recent court decision has made it easier for employers to protect themselves from meal period lawsuits by having employees sign a compliant meal period waiver.
Background to the issue
As a reminder, the general rule is that an employer must provide each employee with a first off-duty meal period of at least 30 minutes starting no later than the end of the fifth hour of work, and a second off-duty meal period of at least 30 minutes starting no later than the end of the tenth hour of work. Under the general rule, the employer need only offer a meal period, and need not force the employee to take it.
So how can a meal period waiver help an employer?
To begin with, it’s important to clear up confusion, because there are two distinct practices referred to by the same term. In the first sense, the term “waiver” is used to mean that an employer offered a meal period in accordance with the above rule, and the employee “waived” the offer by choosing to work through the meal. In the second sense, the term “waiver” refers to the waiver at issue in Labor Code section 512. Labor Code section 512 provides that the first meal period may be waived if the total hours worked in the day is no more than six hours, and that the second meal period may be waived if the total hours worked in the day is no more than 12 hours and the employee took a compliant first meal period. The difference is significant. If an employee agrees to a waiver in the second sense, the employer’s legal obligations are reduced. The employer has no obligation to offer a first meal period if the day is 6 hours or less, and has no obligation to offer a second meal period if the day is 12 hours or less and the employee took a compliant first meal period.
So it has long been the case that there are good reasons to have employees agree to a meal period waiver in the second sense. But there has been a lack of clarify from the courts about what is needed to show that the employee agreed to such a waiver. For example, it has not been clear whether such a waiver needed to be in writing. Nor has it been clear whether it could be obtained on a one-time basis or whether it needed to be obtained each day.
The court decision
On April 21, 2025, the California court of appeal provided some much needed clarity. In Bradsbery v. Vicar Operating, the court considered a written waiver of a first meal period that applied on a going forward basis and that stated it could be revoked at any time. The court held that such waivers were enforceable “in the absence of any evidence the waivers are unconscionable or unduly coercive.”
Steps employers should take right now
With the added clarity provided by Bradsbery, employers are encouraged to offer employees the opportunity to sign meal period waivers. Providing such waivers are properly implemented, they can reduce potential liability. Such waivers should always be handled by consultation with counsel. If you need help with implementing a waiver policy, contact WorkWise Law.