• Oregon Employees May Now Sue for Time Worked During Rest Breaks: Miss One Minute of Rest -- Get Paid 30 Days' Wages!
  • June 21, 2007 | Authors: Calvin L. Keith; Helen P. Starr
  • Law Firms: Perkins Coie LLP - Portland Office ; Perkins Coie LLP - Washington Office ; Perkins Coie LLP - Portland Office
  • In a decision that could have far-reaching effects on employers throughout Oregon, the Oregon Court of Appeals ruled recently that employees have a private right of action for unpaid wages and penalties attributable to missed rest breaks.

    Ten Minute Paid Rest Periods

    Oregon wage and hour regulations require employers to provide non-exempt employees with a 10-minute rest break for every segment of four hours or major part thereof worked in one work period. The 10-minute rest period is a paid break because it must be provided "without deduction from the employee's pay."

    Employers and employees have long wrangled over what legal effect arises if an employee works through a rest break. Employers argued, and Oregon courts consistently agreed, that an employee had no wage claim for missing a portion of the rest break because the break was paid—in other words, an employee who missed her break had worked for four hours, but she was still not due any wages since she was paid for four hours of work.

    In Gafur v. Legacy Good Samaritan Hospital, the Oregon Court of Appeals adopted an interpretation of Oregon's rest break regulation that radically alters the wage and hour landscape in Oregon. Specifically, the appeals court interpreted Oregon's rest break regulation as actually "entitl[ing] [employees] to receive four hours of wages for three hours and fifty minutes of work." Based on this novel interpretation (which even the Oregon Bureau of Labor and Industries likely did not foresee), the appeals court reasoned that if an employee is forced to work a full four hours without a break, the employee has "provided ten minutes of services for which they were entitled to be compensated but were not."

    But It’s Only 10 Minutes of Wages . . .

    As most Oregon employers are aware, Oregon law requires that all wages be paid at termination. If an employee is not paid all wages due at termination, the employee may be entitled to as much as 30 days' wages as penalties. Under the Gafur ruling, employees who work through rest period breaks will have claims for at least one and up to 10 minutes of wages. Moreover, those extra minutes of pay may be at the overtime rate (time and a half) if the employee has already worked more than 40 hours in the workweek. The penalties can turn a single 10-minute break for a minimum wage employee earning $7.80 per hour, into a $1,873.30 legal claim against the employer, plus attorneys’ fees. Imagine the multiplied results if you had100 employees working through multiple breaks during the past six years!

    What Should Employers Do?

    Employers may find the prospect of perfect compliance with this ruling to be daunting. The key for employers will be twofold: (1) employers must devise processes by which employees are required to take all breaks to which they are entitled under the law and (2) employers must insure that employees are required to report those instances where rest breaks are missed so that the employee may be timely compensated for that time as hours worked. Of course, employers will also want to consider appropriate disciplinary action for any employee who works through a rest break for unauthorized reasons,

    Please visit http://www.publications.ojd.state.or.us/A130070.htm to read the entire opinion. (Case No. A130070 (Or. App. Jun. 13, 2007) (slip. op.) )