A California Appeals Court last month issued a ruling that clarifies the permitted use of meal period waivers, which should result in less administrative work for employers.
In California, employers cannot permit employees to work for more than five hours a day without providing a meal period of at least 30 minutes unless the employee (1) works no more than six hours and (2) the employer and employee waive the meal period by mutual consent.
But a class action suit filed against a California employer in 2014 raised the question: Can mutual consent take the form of a written and signed “blanket” or prospective waiver signed at the onset of employment rather than obtained newly for each qualifying shift?
The lawsuit made its way to a California Court of Appeal that ruled in an April 21 decision that, yes, signed blanket/prospective waivers of meal periods are permitted and enforceable — but only if they are freely revocable and without the risk of retaliation. In fact, the written agreement must explicitly state as much in clear language. Employees cannot be coerced into waiving their allowable meal period.
Document use of waiver and any revocations; revisit it periodically
Michelle Coker, employment analyst at CDA, says employer-dentists with employees who waive eligible shifts but not through a written waiver should start using written meal period waivers now.
“Do make sure employees agree to and know what they are consenting to and that the waiver is fully revocable,” Coker said.
She also strongly encourages employers to document any waiver revocations as part of the employee’s personnel files. “These records would show you are following the law should you ever need to demonstrate it in court.”
If employers are using a blanket waiver, they may want to revisit it periodically, especially for long-term employees. “This is a way to remind employees of the terms of the waiver, including its revocability.”
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