- Intermittent Rest Periods in Washington: An Underutilized Option
- October 15, 2009 | Authors: Michael J. Killeen; Sheehan Sullivan Weiss
- Law Firm: Davis Wright Tremaine LLP - Seattle Office
Nonexempt employees in Washington state must be allowed at least 10 minutes of paid rest for every four hours worked. That means a total of 10 minutes of break time; it does not mean that each rest break has to be 10 consecutive minutes. It is acceptable under Washington law to allow a series of short “intermittent breaks.” Intermittent breaks, also referred to as “mini-breaks,” are small breaks of a few minutes each that total 10 minutes every four hours.
According to the Washington Department of Labor & Industries (L&I) “[e]xamples of mini-breaks are personal phone calls, eating a snack, personal conversations, smoke breaks, and whenever there is no work to do for a few minutes during a work shift.”
The purpose of this advisory is to make more Washington employers aware of the advantages of relying on intermittent rest breaks as their primary method of compliance.
Intermittent rest breaks are legal and acceptable
Under Washington law, mini-breaks satisfy the state rest break law requirement “where the nature of the work allows employees to take intermittent rest periods equivalent to 10 minutes for each four hours worked.” WAC 296-126-092(5). In today’s economy, the vast majority of employees work in situations where the nature of the work allows for intermittent rest periods. In such circumstances, “scheduled rest periods are not required.” Employers are required to schedule a full 10-minute rest period only when work is continuous and unbroken, such as on a production line.
L&I has underscored that employers can safely rely on intermittent rest period policies to satisfy Washington requirements. In an Administrative Policy, the department includes the following question and answer:
What are intermittent rest periods?
“Employees need not be given a full 10-minute rest period when the nature of the work allows intermittent rest periods equal to 10 minutes during each four hours of work. Employees must be permitted to start intermittent rest breaks not later than the end of the third hour of their shift. An ‘intermittent rest period’ is defined as intervals of short duration in which employees are allowed to relax and rest, or for brief personal inactivities from work or exertion.”
Is there any minimum length required for an intermittent break?
The state regulation does not specify a minimum length for each mini-break. However, L&I, in its Administrative Policy, states, “A series of 10 one-minute breaks is not sufficient to meet the intermittent rest break requirement.”
While this advice is debatable, to avoid being a test case, an employer should try to ensure that the nature of the work allows employees to take a total of 10 minutes of rest break in as few as two, three or four mini-breaks every four hours.
Scheduled rest breaks are often superfluous
If the nature of the work allows for a total of 10 minutes of intermittent rest periods, the employer’s policy of also allowing set or scheduled breaks is unnecessary from the standpoint of compliance with Washington law. In effect, employers are allowing employees to take a total of 20 or more minutes of rest period time (10 minutes or more of intermittent breaks together with 10 minutes or more of set or scheduled breaks).
Employers are not required to expressly adopt intermittent rest period policies
There is no requirement that a Washington employer adopt a written policy on rest periods, even though many employers have one. Thus, an employer need not have a written policy on either intermittent rest periods or scheduled rest periods to be in compliance with the Washington rest period regulation. As long as the employer can demonstrate that the nature of the work allows employees to take intermittent rest periods, the employer is safe in relying on intermittent rest periods to satisfy its obligation.
Nevertheless, we strongly recommend that employers include an express written policy on intermittent rest periods in their employment policies or handbooks to educate their employees that not only are intermittent rest periods allowed by the nature of the work, but that they comply with state law rest period requirements.
By omitting any discussion of intermittent breaks, the employer is giving employees the misunderstanding that intermittent breaks do not count toward rest periods. The employer may also inadvertently create an argument that set or scheduled rest periods are a contractual obligation above and beyond the legal minimum.
Best practices for Washington employers
Washington employers should examine their workplaces to determine whether the nature of the work allows nonexempt employees to take intermittent rest periods totaling 10 minutes every four hours.
- If so, and the employer intends to rely on intermittent rest periods to satisfy its legal obligations, the employer’s written policy should explain to employees that the nature of the work allows for intermittent rest periods totaling 10 minutes or more during any four-hour shift. If employees do not think the nature of their work allows for such intermittent breaks, they should notify their supervisor.
- If the nature of the work does not allow for intermittent breaks, the employer must implement scheduled 10-minute breaks.
- Employers who have customarily relied on set or scheduled rest breaks to comply with state regulatory requirements could create an employee relations issue by going “cold turkey” and eliminating set or scheduled rest periods in favor of expressly relying on intermittent breaks only. Employers who do so should consider the employee relations ramifications. They may need to experiment with a hybrid approach, in which employees are allowed to continue the status quo of taking both intermittent rest periods and set or scheduled rest periods, but with the recognition that this is above and beyond what state law requires, is not a contractual entitlement, and that scheduled breaks can be reduced or eliminated at the employer’s discretion (absent a union contract that requires scheduled rest breaks).
- Where employees are covered by a collective bargaining agreement, rest periods are a mandatory subject of bargaining. A good starting point for the employer’s proposal on this subject is to refer to the intermittent break regulation under Washington law.
- Regardless of whether breaks are intermittent or scheduled, employers should provide communication that allows and encourages nonexempt employees to report missed breaks. For example: Any nonexempt employee who is unable to take or misses a rest or meal period must promptly notify their supervisor so the company can ensure the employee receives the time off or otherwise ensure the employee receives proper compensation.
No matter what type of rest breaks are involved, the employer should make clear that its rest period policy is intended to comply with state regulatory requirements only and is not a separate contract. To the extent that its policies or practices result in an employee enjoying longer or more frequent rest periods than state law requires, such benefits are solely within the employer’s discretion for administrative convenience and employee relations purposes. Revisions to or elimination of such excess benefits can be made at any time without prior notice.
Why are you bringing this to our attention now?
Prior to the mid-1990s, complaints about alleged rest period violations were relatively rare and seldom litigated. During the past decade, there have been an increasing number of class action lawsuits in which alleged violations of rest period requirements were either a significant issue or the exclusive focus of the class action. Because employees seldom clock in and out for rest periods (it is not required by law and is problematic for employers to administer accurately), it is difficult for an employer to quickly dismiss such lawsuits. Thus employers are pressured into large settlements to avoid even larger litigation costs.
Although formally adopting intermittent rest periods as the employer’s policy for complying with state regulatory requirements is not a panacea, it does provide many employers with an easier-to-prove defense, i.e., that the nature of the work allows for intermittent rest periods, rather than debating recollections as to whether an employee did or did not take set or scheduled breaks many months or years ago.