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In a November 14 decision, the Oregon Court of Appeals held that state employers may be held liable not only for failing to allow employees to take meal breaks, but also for failing to ensure that employees take meal breaks to which they are entitled. The decision in Maza v. Waterford Operations, LLC clarifies that Oregon employers have a legal duty to police their employees to ensure that they take their full meal breaks; merely providing employees with the opportunity to take such breaks is insufficient. As an employer in the wake of this decision, if you fail to force an employee who works six or more hours to take a duty-free meal period for a continuous, uninterrupted 30 minutes, you might be responsible for paying the employee for the full 30 minutes.
What Does the Law Say?
The Oregon Bureau of Labor and Industries (BOLI) has long required that Oregon employers provide employees who work a shift of more than six hours with a 30-minute, unpaid meal period (and, if the employee works 14 or more hours, the employer must provide a second such unpaid meal period). Prior to amendments to that regulation in 2010, the Oregon Supreme Court held that employees could sue employers who required work during an unpaid meal period (i.e., did not pay employees for work performed), but did not have a right of action against employers who paid employees for all time spent working but failed to provide a full 30-minute, continuous meal period.
In 2010, BOLI amended the law to expressly provide that “if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.” Most employers reasonably read this regulation to require that they give employees the opportunity to take a meal break, but not that they are required to monitor employees to ensure they took such breaks.
Maza Decision Adds to Employer’s Burdens
In Maza, the defendant relied on this same argument. In fact, the employer not only permitted its employees with the opportunity to take meal breaks, its employee handbook expressly informed employees that taking their meal breaks was mandatory and could not be waived. It further proved that employees were required to notify human resources if an employee was ever required to forego a meal period or work off the clock. Based on these facts, the employer posited that it “provided” meal breaks under the plain language of the regulation. The Oregon Court of Appeals, however, rejected this argument.
Instead, the court held that employers are strictly liable to pay for the full 30 minutes if the employee fails to receive an uninterrupted, 30-minute meal period, regardless of the reason the employee did not receive his or her full meal break. Therefore, even if an employee voluntarily returns to work one minute shy of 30 minutes, and even if the employer is unaware that the employee has returned to work before the full 30-minute period has expired and did nothing to require or encourage the employee to return early, the employee may sue the employer to recover a full 30 minutes of pay.
If there is a silver lining to this decision, it does not appear to provide employees who receive paid meal periods with a cause of action for failure to provide a continuous, 30-minute meal period.
What Should Oregon Employers Do?
Considering this decision, it is imperative that you take steps to ensure that non-exempt employees take uninterrupted, 30-minute meal periods if they work six or more hours and that you can prove that the employees took said breaks. You should consider requiring employees to clock out for meal periods if such periods will be unpaid.
If possible, you should implement systems prohibiting employees from clocking back in from a meal period before the full 30-minute time has passed. You should also seek to remove employees from work areas and otherwise preclude them from doing any work during unpaid meal periods. Such breaks should be taken in break rooms.
Further, if you have remote employees or employees who commonly use devices like cell phones to perform work, you should take steps to ensure that these employees are not performing work during their meal periods. This may require periodic audits of employees’ emails to ensure they are not working during meal periods.
While policing employees in this manner is a significant burden, this recent decision requires you to undertake this burden or face potential exposure to crippling class action litigation.
Alexander A. Wheatley is an associate in the Portland office of employment law firm Fisher Phillips. He may be reached at awheatley@fisherphillips.com
