On Monday, a California state appellate court upheld the dismissal of a proposed representative lawsuit under the Private Attorneys General Act that accused the supermarket chain WinCo Foods, LLC (“WinCo”) of forcing their employees to work through required meal breaks. As almost all employers are aware, an employer cannot force an employee to work more than five hours without providing a thirty minute meal period. The required meal period may be waived by mutual consent of both the employer and employee if the total work day is not more than six hours.

Two cashiers, who are union members, alleged that WinCo was in violation of the Labor Code because they were working shifts between five and six hours without being provided a meal period. Under the collective bargain agreement (“CBA”) between WinCo and the employees, employees who worked up to six hours were not entitled to a meal period. The employees alleged this was in direct violation of the Labor Code and that the inherent waiver in the CBA was not “clear and unmistakable,” as required by federal law.

It is well settled law that a union may lawfully waive statutory rights of represented employees in a collective bargaining agreement. Generally, a court will not infer from a general contractual provision that parties intend to waive a statutorily protected right unless the undertaking is “explicitly stated” and the waiver is “clear and unmistakable.” To be “clear and unmistakable,” a waiver must do more than speak in broad, general language. The waiver must be specific and mention either the statutory protection being waived or, at a minimum, the statute itself. As mentioned, the CBA specifically addressed meal periods and expressly stated that “when a work period of not more than six hours will complete the day’s work, a meal period is not required.” As such, the trial court held that the agreement waived workers' right to a meal break whenever they worked more than five but not more than six hours because the language of the CBA directly coincided with the Labor Code.

The appeals court agreed with the trial judge and ruled the waiver was “clear and unmistakable” because the CBA “specifically mentioned meal breaks and it was irreconcilable with the statutory right to a meal break during a shift of more than five but not more than six hours.” The employees tried to argue that the waiver was not “clear and unmistakable” because the word “waiver” or some derivate of the word was not utilized. However, the court rejected this argument and held that the CBA “clearly refers to a waiver by individual employees of meal breaks provided in the agreement.”


This decision is yet another win for employers and an example demonstrating that the terms of a CBA can supersede Labor Code obligations. Any waiver terms in a CBA must be clear and unmistakable. If the waiver terms are not clear and unmistakable then the statutory right that the company believes is “waived” will be deemed void and that in turn will open the floodgates to significant liability. Should you have questions regarding the terms of a CBA, contact the experts at The Saqui Law Group.

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