Seyfarth Synopsis: A collective bargaining agreement, to permissibly waive a negotiable statutory right, must do so in a clear and unmistakable manner, by mentioning either the statutory protection being waived or the statute itself. The Court of Appeal has sensibly applied that standard in upholding a CBA's waiver of a first meal period for shifts not exceeding six hours.

The Facts

The California Labor Code states that an employee working more than five hours in a shift is entitled to a meal period unless the employee and employer mutually waive the requirement to provide a first meal period for a shift that does not exceed six hours. Thus, while a meal-period is a statutory right, and while statutory rights generally are unwaivable, the statute itself makes a first meal period waivable within the circumstances just specified.

Kristina Ehret and Elmer Gillett were cashiers at a WinCo Foods store. WinCo's hourly employees belonged to a collective bargaining unit represented by an employee association. Gillett, as chair of the association, negotiated a collective bargaining agreement with WinCo. The CBA stated that "when a work period of not more than 6 hours will complete a day's work, a meal period is not required."

After the employees sued WinCo for failing to provide meal periods, WinCo, represented by Seyfarth Shaw, moved for summary judgment, arguing that the CBA had waived the employees' statutory right to a meal period. The trial court granted WinCo's motion, and the employees appealed.

The Appellate Court Decision

On appeal, the employees argued that the CBA failed to qualify as a valid waiver of statutory rights because its language was not "clear and unmistakable." The Court of Appeal rejected the argument and affirmed the trial court's decision. Ehret v. Winco Foods, LLC.

The Court of Appeal began its analysis by confirming that an employee—and a union on behalf of represented employees—may lawfully waive negotiable statutory rights. (The Court of Appeal expressed doubt, however, that employees could ever waive nonnegotiable statutory rights.) But any such waiver of a negotiable statutory right in a CBA must be "clear and unmistakable," meaning that the CBA must do more than speak in general language: the language must specify either the statutory protection being waived or the statute itself.

The employees argued that the CBA flunked this test for a valid waiver because the CBA did not use the word "waive," and did not cite the statute addressing meal periods. The Court of Appeal rightly rejected these hypertechnical arguments. Even though the CBA did not cite any statute addressing meal periods, the CBA—by saying when "a meal period is not required"—did use language that was "flatly irreconcilable" with the statutory right, and in a context in which the statute, by its terms, made that right negotiable.

What Ehret Means For Employers

Although Ehret addressed only the enforceability of a meal period waiver in the context of a CBA, its analysis is useful generally. California famously protects employees' rights. One right so protected, however, is the employee's right to waive negotiable statutory protections. One such protection is a meal period—subject to negotiation under the limited circumstances existing here. That protection can be waived either individually or, as here, through collective bargaining. (Another negotiable right, subject to waiver only through collective bargaining, is the right to receive vested vacation pay upon termination of employment, under Labor Code section 227.3.)

Ehret champions reason and common sense by making it clear that a waiver, to be valid, need not use magic words such as "waive" and need not legalistically cite the statutory provision at issue. Language suffices to accomplish a waiver if the language simply makes clear that the employee is giving up a negotiable right that the statute, absent a waiver, would protect.

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