While the proportion of private sector employees represented by unions is down, unions retain an important workplace role, and the terms of collective bargaining agreements can both affect and be fatal to wage and hour litigation. That was the lesson learned by the plaintiffs in Ehret v. Winco Foods, LLC, Case No. E067575 (4th Dist. Cal., Aug. 13, 2018). In Ehret, grocery cashiers brought California Private Attorney General Act claims against their employer on the basis that they and their coworkers were not offered meal periods during shifts that were between five and six hours long.

California Labor Code Section 512(a) does provide that nonexempt employees should be given a meal period if they work more than five hours, but here’s the rub – that same section provides that if the employee works six hours or less the same day, “the meal period may be waived by mutual consent.” In this instance, the plaintiffs were represented by a union, and the labor agreement provided that “when a work period of not more than 6 hours will complete a day[’]s work, a meal period is not required.” The question arose whether, under Section 512(a), the labor contract constituted the requisite “mutual consent.”

While the language of the agreement will never win a poetry contest, the court found that it did constitute a “clear and unmistakable” waiver of a meal period for shifts of six hours or less, and it barred the plaintiffs’ claims. It likewise rejected the plaintiffs’ argument that a waiver must explicitly cite the statute.

It is not clear from the opinion whether the plaintiffs’ attorneys were aware of the labor contract when they brought the case. But this case reflects one way in which a collective bargaining agreement may affect wage and hour litigation, particularly in the manner in which breaks or meal periods are handled. Similarly, even outside of the wage and hour context, the terms of a union contract can shape or even be fatal to class action suits, such as challenges to hiring practices that are in fact governed by contract-mandated considerations such as seniority.

The bottom line:

The terms of collective bargaining agreements may be highly relevant to class action litigation brought by unionized employees.