Are Prospective Meal Period Waivers Enforceable? YES – If Done Properly
Published: May 13, 2025
California Labor Code section 512 guarantees a thirty (30) minute, off-duty, meal period for employees after five (5) work hours, and a second thirty (30) minute, off duty, meal period after ten (10) work hours. Section 512 also provides that, for shifts between five (5) and six (6) hours, the first meal period “may be waived by mutual consent of both the employer and employee.” (§ 512(a).) Most Wage Orders issued by the Industrial Welfare Commission (IWC) similarly provide for meal periods and their waiver.
The question before the Court in the recent case, Bradsbery v. Vicar Operating, Inc. (2025) 110 Cal.App.5th 899, was narrow, and was a case of first impression. The question was: whether the mutual waiver of a meal period by an employer and employee can occur prospectively?
Background.
In 2014, La Kimba Bradsbery and Cheri Brakensiek (Plaintiffs) filed a class action lawsuit against their former employer, Vicar Operating, Inc. (Vicar), alleging, among other things, that Vicar failed to provide them with the meal periods required by Labor Code section 512 and IWC Wage Orders Nos. 4 and 5. Vicar defended against this claim by pointing to the fact that Plaintiffs signed a valid written agreement that prospectively waived all waivable meal periods throughout Plaintiffs’ employment with Vicar. The agreement expressly stated that Plaintiffs could revoke the agreement at any time.
Vicar moved for summary adjudication regarding the validity of the meal period waiver under Labor Code section 512 and the Wage Orders. The trial court determined the waivers were valid and granted summary adjudication in favor of Vicar. Plaintiffs appealed arguing that prospective waivers are invalid and essentially permit employers to circumvent the statutory meal break requirements and deny employees a meaningful opportunity to exercise their right to meal breaks.
Appellate Court’s Review and Ruling.
In reviewing the evidence in the record, the court of appeal found that Plaintiffs did not show that the waivers were unconscionable or that they impeded or discouraged workers from taking meal breaks. Specifically, the court of appeal pointed out that Plaintiffs did not present evidence or argue that: a) they unknowingly signed the waivers; b) Vicar coerced them into signing the waivers because it had greater bargaining power; or c) they could not freely revoke the waivers at any time.
Despite these factual deficiencies, the Plaintiffs argued that the Labor Code, Wage Orders, and the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), prohibited prospective meal period waivers. According to Plaintiffs, the following passage from the Brinker decision evidences that meal period waivers can only be entered into once an employee is actually employed for five, but no more than six hours:
When someone is suffered or permitted to work—i.e., employed—for five hours, an employer is put to a choice: it must (1) afford an off-duty meal period; (2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or (3) obtain written agreement to an on-duty meal period if circumstances permit. (Brinker, supra, 53 Cal.4th at p. 1039.)
The Bradsbery Court disagreed and said that Plaintiffs “overread Brinker,” especially when considering the Legislative and administrative history of Labor Code section 512 and the Wage Orders, which the Court found did not prohibit prospective waivers of meal periods even when they had not yet been earned or accrued. The Court said that:
Although Brinker addressed the nature of the meal period and when the meal period accrued, it did not address the timing or circumstances under which a meal period can be waived. Even if an employee’s right to a meal period arises after five hours of work, Plaintiffs do not explain why they cannot prospectively waive it.
The Court also rejected Plaintiffs’ reliance on another passage from the Brinker decision discussing the waiver of rest periods under Wage Order No. 5. That passage read:
Although the parties agreed rest breaks can be waived, “[n]o issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it.” (Brinker, supra, 53 Cal.4th at p. 1028.)
Plaintiffs argued that this observation supports their position that a meal break can only be waived after it has accrued. But the Bradsbery Court said that rest period requirements in Wage Orders Nos. 4 and 5 are contained in separate provisions from, and expressed in different language than, the meal period requirements and accompanying waiver provisions. Also, the Court pointed out that the Brinker Court did not address the requirements for the waiver of rest breaks. Thus, the Court did not find Plaintiffs’ reading of this passage from Brinker persuasive.
Ultimately the Bradsbery Court held that revocable, prospective waivers like the ones signed by Plaintiffs are enforceable in the absence of any evidence the waivers are unconscionable or unduly coercive. The Court reasoned that the prospective written waiver of a thirty (30) minute meal period for shifts between five (5) and six (6) hours does not conflict with the purpose of Labor Code section 512 or Wage Orders Nos. 4 and 5. Therefore, summary adjudication in favor of Vicar was affirmed.
Takeaway.
Based on the Bradsbery case, California employers can permit employees to voluntarily sign prospective meal period waivers provided the waivers comply with California law and make clear that the employee has the right to revoke the meal period waiver. Employers are encouraged to have their meal period waivers reviewed by counsel to ensure they are legally compliant.