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By Jean Ohman Back
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This week, Oregon Court of Appeals ruled that Oregon nonexempt employees have a private right of action to sue employers for damages, penalty wages, and attorneys’ fees based on an employer’s failure to provide a paid 10-minute rest break for every four hours of work or the greater part thereof. If this sounds like small potatoes … think again. A claim for failure to pay 10-minute rest periods can add up over time. Any nonexempt employee who misses breaks will be entitled to double payment (penalty wages), and to their attorneys' fees. A series of missed 10-minute rest breaks can set your company back thousands of dollars. Further, these claims will provide fertile ground for Plaintiff’s attorneys to bring wage and hour class actions against your company.
The Ruling
In Gafur v. Legacy Good Samaritan Hospital, Judge David Schuman, speaking for a unanimous court, ruled that Oregon wage and hour statutes provide employees with a private right of action to sue their employer when the employer failed to provide paid rest breaks. The Court also held that employees do not have a private right of action to sue for missed meal breaks. Although nothing in the Oregon statutes actually provides for paid rest breaks, the Court found that Oregon law allows the Bureau of Labor and Industries (BOLI) to promulgate rules regarding rest and meal breaks. The Court held that an Oregon statute that provides a private right of action to employees who are "paid less than the wages to which they are entitled" under other statutes worked in conjunction with a BOLI regulation that requires that employers give their employees paid rest breaks to provide a private right of action.
This decision represents a significant change in the law. Up to now, Oregon courts have routinely held that Oregon law did not provide a right for the employee to sue his or her employer over missed rest breaks.
This ruling marks the second major decision by the Oregon Court of Appeals that has given significant credence to a BOLI regulation. The other case was Yeager v. Providence Health Systems, issued by the Court in 2004. In that decision, the Court of Appeals held that the Plaintiff could sue her employer for retaliation based on the Oregon Family Medical Leave Act based on language in a BOLI regulation. In that case – as with the Court’s recent ruling on rest breaks no such claim appears in the Oregon Statutes.
When Must You Give Breaks, And How Many Per Day?
You must provide a paid 10-minute break for every four hours or greater part thereof. One minute over two hours is the greater part of four hours. You should provide the rest break in the middle of each work segment. For easy reference, refer to the chart below that is provided by BOLI.
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Length of work period |
Number of rest breaks required |
Number of meal periods required |
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2 hrs or less |
0 |
0 |
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2 hrs, 1 min-5 hrs, 59 mins |
1 |
0 |
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6 hrs |
1 |
1 |
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6 hrs, 1 min-10 hrs |
2 |
1 |
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10 hrs, 1 min-13 hrs 59 mins |
3 |
1 |
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14 hrs |
3 |
2 |
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14 hrs-1 min to 18 hrs |
4 |
2 |
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18 hrs, 1 min-21 hrs, 59 mins |
5 |
2 |
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22 hrs |
5 |
3 |
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22 hrs, 1 min-24 hrs |
6 |
3 |
What Should Employers Do To Protect Against Lawsuits?
• Require nonexempt employees to sign time cards, whether hard copy or electronic, with a statement on the time card that the employee’s signature or electronic signature verifies that he or she has received the required number of paid 10-minute rest breaks and appropriate meal breaks, unless otherwise indicated.
• Require employees to clock in and out for breaks if you have a clocking system.
• Update your employment manual to include language in the time card section that the employee’s signature or electronic signature on the time card verifies that the employee received his or her breaks.
• Make it clear in your handbook that breaks are mandatory for nonexempt employees.
• Work with your supervisors and managers to ensure that your nonexempt employees are taking his or her rest breaks. If you are a large employer with a workforce that must stay at their stations, consider hiring a person to act as a "breaker," whose job it is to take over the employee’s duties while on break, and who documents all breaks provided.
• If, for extenuating circumstances, an employee was not able to take a break, then pay it as wages.
• Document your conversations with employees regarding the requirement that they take a break. Discipline employees who do not take breaks.
• Conduct exit interviews with all employees. Ask employees at their exit interview whether they received their 10-minute rest breaks twice daily. Have them sign a statement that they received their rest breaks before they leave your employment.
• If feasible, require that employees who use a computer to shut down or log out during their 10-minute break to obtain a computer record of the break time.
These suggestions may not work for every employer. You need to find the mechanism that works well for your workforce and culture. The reality is that BOLI and Oregon law makes the employer responsible for ensuring that its employees receive his or her breaks. Failure to provide rest breaks or to compensate employees who cannot take his or her breaks is now very risky business. Employers should examine how they handle rest breaks to make sure that they can establish that employees were provided the required breaks.
If you have any questions regarding the Gafur decision, or Oregon’s rest and meal break requirements, please call one of Schwabe’s employment lawyers. We are here to assist you work through these questions.
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