Sanity prevails, as employer and employee may prospectively waive 30-minute lunch break after five hours
The Second District of the Court of Appeal for the State of California has decided the rule that employees are entitled to a 30-minute lunch break after five hours may be waived, in writing and in advance of the actual work day, as long as the waiver is not coerced. (Bradsbery v. Vicar Operating Inc. (April 21, 2025) case no. B322799.) The appellate court put the question succinctly, noting that the issue involved a written waiver of the statutory right of an employee working but less than six hours or more to have a 30-minute rest period to occur after five hours of work. While the statute provides that employees working more than five but less than six hours may “waive” their meal period, the statute is silent as to whether this waiver may occur in advance and in writing, as opposed to being waived orally on an ad hoc basis, thus creating the ambiguity that the Court of Appeal addressed:
The Legislature and the Industrial Welfare Commission (IWC) have determined a meal period for work shifts between five and six hours may be waived. The question before us is narrow and of first impression: whether the mutual waiver of that meal period by an employer and employee can occur prospectively and in writing. 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. Section 512 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.”
(Id., p. 1.)
The Court found against the employee's argument that the waiver the employee signed violated California law:
We conclude the revocable, prospective waivers Plaintiffs signed are enforceable in the absence of any evidence the waivers are unconscionable or unduly coercive. The prospective written waiver of a 30-minute meal period for shifts between five and six hours accords with the text and purpose of section 512 and Wage Order Nos. 4 and 5. (Id., p. 2.)
Key to this conclusion was the Court’s analysis as to legislative intent, noting that the legislative history did not suggest an intent to prohibit prospective waivers of meal periods:
Our fundamental task is to ascertain the purpose of section 512 and the wage orders, with an eye to promoting “‘“the protection and benefit of employees.”’” (McLean v. State of California (2016) 1 Cal.5th 615, 622; accord, Stone, supra, 16 Cal.5th at p. 1052; Brinker, supra, 53 Cal.4th at pp. 1026-1027.) We conclude the text of section 512 and Wage Order Nos. 4 and 5, as well as the legislative and administrative history, indicate the Legislature and IWC did not intend to prohibit prospective written meal period waivers.
(Id., p. 21.)
This decision is important because not only do certain employers encourage these written waivers, but other employers force their employees to take a 30-minute meal period after five hours even if the employee is strongly against doing so, fearing the employee will later claim they were denied their lunch or dinner break.
