By Calvin L. Keith, Perkins Coie LLP

A decision by the Oregon Court of Appeals raises the bar for Oregon employers on meal breaks. It makes employers liable for missed meal breaks even if they make every effort to provide them.

Them’s the Breaks

The Oregon Court of Appeals was asked to review a decision by a trial court refusing to allow a wage and hour class action for unpaid meal breaks. Oregon requires a 30-minute, uninterrupted meal break after 6 hours of work. The employer argued it provided for meal breaks in its policies and required that they be taken. It also provided a process for employees to report any meal break issues and required them to notify supervisors if they missed a meal period or performed unpaid work.

The trial court reasoned the case couldn’t be tried as a class action because each meal break had to be individually examined to see why it was missed. A class action requires the individual claims to be factually similar.

The employees appealed to the Oregon Court of Appeals. After reviewing Oregon law and its interpretation by the Oregon Bureau of Labor and Industries (BOLI), the appeals court reversed the trial court.

Under Oregon regulations, employers must require employees to take a 30-minute, duty-free meal period. The court rejected the employer’s position that it needed only to make the meal period available and had no duty to ensure it was taken. It concluded that “a 30-minute meal period is mandatory and, if not taken, the employer must pay the employee’s wages for the full 30 minutes.”

Noting that the law stated the meal period is intended for employees’ health, the appeals court found it would be inconsistent with that intent to allow employers to avoid liability for missed meal periods.

Under the “strict liability” standard, the reasons why an employee missed a full 30-minute break may no longer be relevant, and therefore the case could be filed as a class action. The appeals court sent the case back to the trial court to redetermine class action status based on its decision. Maza v. Waterford Operations LLC, 300 Or. App. 471 (November 14, 2019).

Bottom Line

It’s highly likely this case will be appealed. It presents a heightened standard for liability—“strict liability.” No matter what efforts you make to ensure employees take a full 30-minute break, if a break is interrupted or if an employee fails to take a break, you will be liable.

A significant and potentially unavoidable result of this decision is that it will make it easier for employees to join together in a class action for missed breaks. Regardless of the merits, a class action is often time-consuming and expensive to defend.

You should reevaluate—and potentially revise—your break policies. Some things to be considered include:

• Managers should be trained to enforce meal breaks and held accountable for missed breaks.
• Your policies should make it clear employees must take breaks, and if the failure to take a break is without permission, they may be subject to discipline.
• You should provide mechanisms for employees to timely report missed or interrupted breaks and require them to report missed or interrupted breaks.
• Employees should be required to review and approve their weekly timecards, including meal breaks.

The above actions won’t avoid a strict liability analysis, but they may allow you to have better control over missed and interrupted breaks and a better argument that a break must not have been missed or interrupted because it wasn’t reported.

Calvin L. Keith is with Perkins Coie LLP in Portland, Oregon, and he can be reached at ckeith@perkinscoie.com.