Employers Face New Liability for Skipping Rest Breaks
By Randall P. Sutton
Saalfeld Griggs PC
Give me a break! That’s what both employees and employers will be saying in light of a recent decision by the Oregon Court of Appeals that encourages employees to sue for missed rest breaks.
Requirements: As most employers know, an employee is entitled to a paid and uninterrupted 10 minute rest break for about every four hours of work, taken around the middle of each four hour period. However, in many jobs, employees take several short breaks throughout the day. Occasionally taking a minute or two to use the restroom, grab a cup of coffee, or make a personal phone call, ought to qualify as a rest break, but they don’t meet the legal requirement of an uninterrupted 10 minute break.
Penalties: Up until now, only the Bureau of Labor & Industries (“BOLI”) could enforce the rest break requirements. If an employer failed to provide rest breaks, BOLI could impose up to a $1,000 fine. However, when BOLI fines an employer, the State of Oregon gets paid, but the employee doesn’t receive anything. As a result, there was little incentive for employees to complain about missing their breaks, and no incentive for a plaintiff’s attorney to get involved.
New Incentive to Sue: The Court of Appeals has changed all of that. Employees who miss their breaks can now sue for unpaid wages, penalties and attorney fees. Plaintiffs’ attorneys now have a big incentive to market their services to your employees. In a class action lawsuit, even small wage and hour violations can add up to big liability company-wide. A similar change in the law in California led to a rash of class action lawsuits against employers.
What was the Court Thinking? So why did the Court decide that an employee who receives 4 hours of pay for 4 hours of work has a claim for unpaid wages? The Court found that an employee who is supposed to get a 10 minute rest break every 4 hours is really getting paid 4 hours of pay for 3 hours and 50 minutes of work. If the employee works through their 10 minute break, paying 4 hours of wages isn’t good enough, because the employee is really entitled to 4 hours and 10 minutes of pay. It’s unclear if the court would have felt the same way if the employee received lots of short breaks that added up to at least 10 minutes of time.
What’s an Employer to Do? To defend a lawsuit, you need to prove that your employees have taken all of their rest breaks. Because rest breaks are on-the-clock, there is usually no automatic record created when an employee goes on break. This puts the burden on you to create systems to document rest breaks. For example, have your employees acknowledge in writing that they have received their required breaks. Establish written policies for taking breaks and send reminders out. If an employee refuses to take a break, discipline the employee through write-ups or more severe sanctions. Make sure your supervisors also understand the consequences of not giving employees their rest breaks. When an employee terminates employment, try to confirm whether the employee ever missed any breaks, and try to reach an agreement if possible about how much may be owed.
Wage & Hour Audit: The wage and hour laws are complicated, strictly enforced, and the consequences of error are huge. Fortunately, wage and hour compliance is one of the few employment liability risks that is entirely under the employer’s control. We recommend our clients have us audit their pay practices every 1–3 years. Given the cost and difficulty in defending a wage and hour lawsuit, these preventative efforts can really pay off. If a review of your employment practices is overdue, or if you have questions or concerns, please contact Randy Sutton for consultation.