CACI No. 2770. Affirmative Defense - Meal Breaks - Waiver by Mutual Consent

Judicial Council of California Civil Jury Instructions (2023 edition)

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2770.Affirmative Defense - Meal Breaks - Waiver by Mutual
Consent
[Name of defendant] claims that there was no meal break violation
because [name of plaintiff] gave up [his/her/nonbinary pronoun] right to a
meal break on one or more workdays. This is called “waiver.” To
succeed on this defense, [name of defendant] must prove all of the
following:
1. That [name of plaintiff] worked no more than six total hours in a
workday; and
2. That [name of plaintiff] and [name of defendant] freely, knowingly,
and mutually consented to waiving the meal break of that
workday.
[or]
[Name of defendant] claims that there was no meal break violation
because [name of plaintiff] gave up [his/her/nonbinary pronoun] right to a
second meal break on one or more workdays. This is called “waiver.” To
succeed on this defense, [name of defendant] must prove all of the
following:
1. That [name of plaintiff] worked no more than twelve total hours in
a workday;
2. That [name of plaintiff] did not waive [his/her/nonbinary pronoun]
first meal break of that workday; and
3. That [name of plaintiff] and [name of defendant] freely, knowingly,
and mutually consented to waiving the second meal break.
New December 2022
Directions for Use
This instruction sets forth the affirmative defense of waiver of a meal break by
mutual consent. Employees in most industries can waive their first or second meal
break but not both. (Lab. Code, § 512(a).) Give only the paragraph of the instruction
that applies to the meal break waived under the applicable wage order. (See, e.g.,
Cal. Code Regs., tit. 8, § 11010, subd. 11(A) & (B).)
For an instruction on waiver of off-duty meal breaks, see CACI No. 2771,
Affırmative Defense - Meal Breaks - Written Consent to On-Duty Meal Breaks.
Sources and Authority
Meal Periods. Labor Code section 512.
Meal Periods. Cal. Code Regs., tit. 8, §§ 11010-11030, 11060-11110,
101
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11130-11150, 11, § 11160, 10, § 11170, 9.
“Workday” Defined. Labor Code section 500.
“An employers assertion that it did relieve the employee of duty, but the
employee waived the opportunity to have a work-free break, is not an element
that a plaintiff must disprove as part of the plaintiff’s case-in-chief. Rather, as the
Court of Appeal properly recognized, the assertion is an affirmative defense, and
thus the burden is on the employer, as the party asserting waiver, to plead and
prove it.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004,
1052-1053 [139 Cal.Rptr.3d 315, 273 P.3d 513], internal citations omitted (conc.
opn. of Werdegar, J.), approved in Donohue v. AMN Services, LLC (2021) 11
Cal.5th 58, 74-75 [275 Cal.Rptr.3d 422, 481 P.3d 661].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 390, 391
1 Wilcox, California Employment Law, Ch. 2, Applicability of Rules Governing
Hours Worked, §§ 2.08, 2.09 (Matthew Bender)
1 Wilcox, California Employment Law, Ch. 9, Wage and Hour Class Claims, § 9.02
(Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.14, 250.34 (Matthew Bender)
California Civil Practice: Employment Litigation, § 4:4 (Thomson Reuters)
CACI No. 2770 LABOR CODE ACTIONS
102

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