Bradsbery v. Vicar Operating, Inc.

Facts

Labor Code section 512, subdivision (a) provides that an employer “shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” (Bradsbery, supra, 110 Cal.App.5th at p. 909.) Section 11(A) of Wage Orders Nos. 4 and 5 provides in materially identical terms that for a workday completed in no more than six hours, “the meal period may be waived by mutual consent of the employer and the employee.” (Ibid.) Neither text says when the waiver may be given or what form it must take. (Id. at p. 910.)

Vicar Operating runs a network of veterinary hospitals. La Kimba Bradsbery (a veterinary technician, September 2008 to February 2011) and Cheri Brakensiek (a veterinary assistant and technician, 2004 to August 2011) each signed a written meal period waiver in April 2009 — mid-employment, not at hire: “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.” (Bradsbery, supra, 110 Cal.App.5th at p. 905.) Brakensiek signed a second identical waiver in 2011. (Ibid.)

In 2014, the two filed a putative class action on behalf of Vicar’s veterinary assistants, technicians, kennel technicians, client service representatives, and similar workers, alleging Vicar required shifts between five and six hours without meal periods and without valid mutual-consent waivers, and owed meal-period premiums. (Bradsbery, supra, 110 Cal.App.5th at p. 905.) The parties stipulated to the facts and to a summary adjudication motion under Code of Civil Procedure section 437c, subdivision (t), on a single legal issue: “whether Vicar’s ‘blanket’ meal period waivers to prospectively waive meal periods on qualifying shifts are enforceable under California law.” (Id. at pp. 905–906.) Meal-period waiver is an affirmative defense on which the employer bears the burden. (Id. at p. 906, citing Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 75–76.)

Procedural history

The trial court granted Vicar’s motion, holding the plain language of section 512 and the wage orders “permit[] prospective ‘blanket’ waivers,” distinguishing Brinker as addressing what a meal period must be rather than when it may be waived, and setting aside the DLSE’s 2003 agricultural-wage-order opinion letter as inapplicable. (Bradsbery, supra, 110 Cal.App.5th at p. 906.) The Court of Appeal denied writ relief; the parties then settled the remaining claims, with plaintiffs reserving the right to appeal the summary adjudication ruling; judgment was entered for Vicar and plaintiffs appealed. (Ibid.) Division Seven affirmed. (Id. at p. 921.) Rehearing was denied and the opinion modified in May 2025, and the Supreme Court denied review on July 16, 2025 (S291014), leaving the decision final and citable.

Issue

“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.” (Bradsbery, supra, 110 Cal.App.5th at p. 904.) Concretely: does “waived by mutual consent” in section 512(a) and section 11(A) of Wage Orders Nos. 4 and 5 prohibit a standing, revocable written waiver signed before any particular qualifying shift is worked?

Holding

Reasoning

The text is silent — on both sides’ readings. The court began with the words: section 512 and the wage orders “are all silent regarding the timing (prospective or as-accrued) and form (written or oral) of a meal period waiver for shifts between five and six hours,” and neither defines “waived.” (Bradsbery, supra, 110 Cal.App.5th at p. 910.) The settled legal meaning of waiver — “‘the intentional relinquishment of a known right after knowledge of the facts’” — supplied no timing rule. (Ibid., quoting City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107.) Plaintiffs themselves conceded the texts are “silent as to when the first meal break can be waived,” leaving their reading without “a ‘textual basis in the wage order or statute.’” (Ibid., quoting Brinker.)

The negative-implication argument cuts the other way. Plaintiffs leaned on the wage orders’ neighboring provisions that do impose written-waiver formalities — section 11(D)’s health-care waiver (written, signed, revocable on one day’s notice) and section 11(A)’s on-duty meal agreements (written, revocable in writing). (Bradsbery, supra, 110 Cal.App.5th at pp. 910–911.) The court read those provisions as imposing mandatory formalities in specific higher-risk circumstances — waivers there “can apply prospectively to future meal periods, provided the employee may revoke the waiver with proper notice” (id. at p. 911) — which proves prospective waivers are a familiar, accepted device in this regulatory scheme, not a forbidden one. Because the text supported both readings, the court turned to history. (Ibid.)

Eighty years of administrative history treats written prospective waivers as employee protection. The court traced the meal-period waiver from the 1943/1947 orders through the 1952 first waiver provisions and the 1963 addition of “mutual consent” — always silent on timing and form. (Bradsbery, supra, 110 Cal.App.5th at p. 912.) Three IWC episodes did the persuasive work. In 1976, the IWC required written agreements for on-duty meal periods at the request of employee representatives, concluding “such documentation for mutual consent would also serve to protect employers in case of complaint” — “a protective measure benefiting both employees and employers.” (Id. at pp. 912–913.) In 1993, it authorized written, revocable prospective waivers for health care employees on long shifts as a “protective condition[],” describing waiver as promoting employees’ “freedom of choice.” (Id. at p. 913.) And in 1998 it extended that written-waiver option to all Wage Order 4 and 5 employees working over eight hours, to give them the “freedom to choose between leaving work one half-hour earlier or taking a second meal period.” (Id. at pp. 913–914.) The inference: “If a prospective written waiver agreement is appropriate under such circumstances, it is reasonable to infer there was no intent to prohibit such agreements when a shift is between five and six hours, which implicates reduced health and welfare concerns compared to longer shifts.” (Id. at p. 916.)

Section 512 codified, not condemned, the practice. Assembly Bill No. 60 (1999) added section 512 to codify the meal-period provisions of the existing wage orders and to create the new unwaivable second meal period for shifts over 12 hours. (Bradsbery, supra, 110 Cal.App.5th at pp. 914–915.) “[N]othing in the text of section 512 or its legislative history suggests the Legislature disapproved the practice of prospective written waivers”; the Legislature’s demonstrated concern was longer shifts, where it “spelled out in detail what is required” — “[b]ut it does not follow that when employees work fewer hours, here between five and six hours, that there was also an intent to prohibit a prospective written waiver.” (Id. at pp. 916–917.)

Revocability is the safety valve. The court emphasized that these waivers were revocable at any time, and connected that feature to DLSE guidance: an employee who refuses to sign, or revokes, a written meal-period authorization is protected from discharge or discrimination — backed by Labor Code section 98.6 — so “a written waiver provision complements the remedial worker protection framework by providing employees the right to refuse to sign and to revoke standing meal period waivers without adverse employment consequences.” (Bradsbery, supra, 110 Cal.App.5th at pp. 917–918.)

Brinker decided a different question. Plaintiffs read Brinker’s statement that after five hours of work an employer “is put to a choice” — provide the meal period, “consent to a mutually agreed-upon waiver if one hour or less will end the shift,” or obtain a written on-duty agreement — as meaning waiver is possible only after the meal-period right accrues. (Bradsbery, supra, 110 Cal.App.5th at p. 919, quoting Brinker, supra, 53 Cal.4th at p. 1039.) The court held they “overread Brinker”: that case fixed the nature and timing of the meal-period obligation, but “did not address the timing or circumstances under which a meal period can be waived,” and “‘cases are not authority for propositions not considered.’” (Id. at pp. 919–920.) The rest-break waiver passage fared no better — rest periods live in separate provisions with different language. (Id. at p. 920.)

The 2003 DLSE letter interprets a superseded, industry-specific standard. The DLSE opinion letter declaring that “blanket ‘waivers’ of meal periods … whether written or oral, will not be considered valid” construed Wage Order No. 14’s then-unique agricultural meal-period provision, which merely required employers to “authorize and permit” meal periods; it therefore “does not carry interpretive weight for Wage Orders Nos. 4 and 5.” (Bradsbery, supra, 110 Cal.App.5th at pp. 920–921.) DLSE letters receive “consideration and respect,” but construction of the wage orders “is ultimately the judiciary’s role.” (Id. at p. 920, quoting Harris v. Superior Court (2011) 53 Cal.4th 170, 190.)

Significance

Bradsbery answers, for the five-to-six-hour shift, the operational question Brinker left open: employers may collect standing, written, freely revocable first-meal-period waivers rather than negotiating waiver shift by shift. With review denied (July 16, 2025, S291014), it is the controlling published authority on prospective waivers under Wage Orders Nos. 4 and 5, and its reasoning — text silent, history protective, revocability essential — will be pressed by analogy across the other wage orders that use the same “mutual consent” formula. The decision also completes a practical triptych with Donohue: waiver remains an affirmative defense on which the employer bears the burden (Donohue, supra, 11 Cal.5th at pp. 75–76), Donohue polices the accuracy of meal-period records, and Bradsbery now defines what a facially valid waiver instrument looks like.

But the opinion is emphatically conditional, and the conditions are where future litigation lives. The panel twice cataloged what plaintiffs did not argue — unconscionability, impeding or discouraging breaks, unknowing signature, coercion born of “greater bargaining power,” inability to “freely revoke” — and twice said it “would hesitate” or have “serious reservations” about waivers presenting those facts. (110 Cal.App.5th at pp. 904, 918.) It reserved oral prospective waivers outright. (Id. at p. 916, fn. 9.) And its stipulated-record posture matters: there was no evidence here about how the waiver was presented, translated, explained, or administered in practice — the very facts that dominate real wage-and-hour discovery. A waiver buried in an onboarding packet, presented on a take-it-or-leave-it basis in an at-will relationship, or paired with any retaliation for revocation sits squarely inside the reservations, not the holding.

Key quotes

“We conclude the revocable, prospective waivers Plaintiffs signed are enforceable in the absence of any evidence the waivers are unconscionable or unduly coercive.” (Bradsbery, supra, 110 Cal.App.5th at p. 904.)

“The text of section 512 and the text of the wage orders are all silent regarding the timing (prospective or as-accrued) and form (written or oral) of a meal period waiver for shifts between five and six hours.” (Bradsbery, supra, 110 Cal.App.5th at p. 910.)

“We would have serious reservations regarding the validity of prospective written waivers of meal periods under such circumstances but the present case does not present them, and we need not reach these issues here.” (Bradsbery, supra, 110 Cal.App.5th at p. 918.)

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Practice pointer

Open questions

The reservations define the frontier. The court expressly declined to decide whether prospective oral waivers are valid (Bradsbery, supra, 110 Cal.App.5th at p. 916, fn. 9), and its enforcement holding is conditioned on the absence of unconscionability, coercion, unknowing execution, impediments to taking breaks, and restraints on revocation — none of which it defined or tested (id. at pp. 904, 918). What quantum of pressure converts an at-will employer’s “please sign” into undue coercion; whether a waiver presented as a condition of hire survives; and how the unconscionability framework of Sonic-Calabasas and OTO maps onto a non-arbitration workplace form are all unresolved. Also open: whether the same analysis governs wage orders beyond Nos. 4 and 5 (the court construed only these two, though the operative language recurs elsewhere), and how Bradsbery interacts with the second-meal-period waiver for shifts under 12 hours, which the opinion flagged but did not construe (id. at p. 909, fn. 4). Finally, because the case arrived on stipulated facts with no as-applied record, the decision says nothing about proof burdens when an employee testifies the “voluntary” waiver was anything but — the next published case in this line will almost certainly be that one.