Oregon Break and Lunch Laws Overview
Numerous laws regulate how and when employers provide Oregon nonexempt employees breaks and rest periods (which we will refer to collectively as "breaks" in this article) and lunch or meal periods (which we will refer to as "lunch"). However, the specifics of the law often depend upon the employer’s size and whether the employer is covered by a collective bargaining agreement. In addition, Oregon law does not provide employers with many guidelines on what is required or what employers must do to be in compliance with Oregon break and lunch laws.
Many Oregon employers still set policies and procedures for breaks and additional time off very liberally. For example, while some employers provide employees 15 minutes of paid time to take a break for every four hours worked, other employers provide breaks at supervisor discretion. Similarly, after four hours of work employers may provide 30 minutes of paid time to take a lunch, or they may provide 60 minutes of unpaid time for a meal, with the time for taking such breaks and lunch left to the employee’s discretion. Often, these types of differences are driven by an employer’s understanding of its obligations under Oregon laws, which are not as specific with respect to breaks and lunches as employers might expect. Although some employers act under their best guess and therefore guess wrong as to their obligations, others explicitly tell employees they do not have breaks and lunches. Although both confound an employee’s ability to take breaks or a lunch, if an employer does not understand its obligations and wrongly tells an employee there are no breaks and lunches, that is an unethical but excusable mistake for which the employee should engage legal counsel to help obtain what is required by law . If, however, an employer expressly tells every employee the company policy provides breaks at the employee’s discretion, that employer cannot later rely on the fact that this is not what is legally required in Oregon to defeat a claim. That said, it is critical to understand the law and comply with what is legally required to avoid any argument that an employer affirmatively waived the right to take a break or lunch. Because the law is written broadly and generally, knowing exactly what is required is key to compliance.
Nonexempt employees are entitled to one 15-minute rest period for every four hours of work, or substantial equivalent. BOLI General Employment Rules, OAR 839-020-0040(2). Rest periods may not be counted toward an employee’s work time, and all rest periods must be scheduled by the employer. Id. An employee is also entitled to a meal or "lunch" period of at least 30 minutes for every work period of more than 5 consecutive hours. OAR 839-020-0045(1). However, if the work day is no longer than six hours, the employee and employer may agree to waive the meal period. Id. A lunch period is unpaid unless the employee is required to work or be on call during the meal period. In that case, the time must be compensated. Id.
In Oregon, employees of manufacturers and establishments for maintenance and repair (including mechanics, laborers, watchmen, porters, janitors and truck drivers) are entitled to two 10-minute breaks for each 8-hour shift they work. OAR 839-020-0040(A). Again, like the general rule, these breaks are not considered compensable work time. Employers should be aware that, as a result, an employee in these industries who works less than a full 8-hour shift is entitled to the full 20 minutes of these breaks, regardless of the length of time actually worked.
Break Requirements For Oregon Employers
Hirsch & Westheimer, P.C. has represented employers in employment litigation in Oregon since 1979.
Oregon employers are required to provide employees with one 10-minute paid rest break for every four hours of work performed. This means that most employers will be required to provide at least two paid rest breaks in each shift worked.
For a standard eight-hour shift, the employer may designate when the breaks will occur as long as it occurs within the first four hours and the second four-hour period of the day. Alternatively, employers can authorize earlier breaks as long as the total amount of break time provided does not exceed 20 minutes and applies to all similarly situated employees.
Employers cannot require employees to take a short break immediately before or after a shift. State law also prohibits employers from establishing more than one 30-minute unpaid meal period. Employers should provide employees with a 30-minute unpaid meal period for every five hours worked. Unlike the paid rest breaks, employees are completely relieved of their work duties during a meal period. Employers should inform employees that they should not work during a meal period, and failure to adhere to this may result in disciplinary action.
Adult vs. Minor Break Laws
The break and meal period protections also apply to minor employees, but there are a few important distinctions that employers should be aware of. The most significant difference is that minors are entitled to a 15 minute rest for each four hour period of work, even if that means the break occurs midway through work on a meal. There is also a requirement that working minors need to have a certain number of hours of school instruction before they are allowed to work longer hours. There are also some additional protections that apply specifically to minors working in agriculture: For minors who have not completed the sixth grade, at least one hour between start of work and the first break, plus a five minute break for every hour worked after the first hour. For minors who have completed the sixth grade, one hour between the start of work and the first break, plus a ten minute break for every three hours worked. No minor shall work more than nine hours per day or five consecutive hours without a one hour break. Federal law also imposes additional protections, limiting the hours minors may work. These differ depending on their age and whether they are working in hazardous occupations. Supervising adults must be aware of both federal and state requirements when scheduling minor workers.
Violations of Break and Lunch Laws
Lack of clarity concerning the various requirements for breaks and meals can lead to major headaches for employers. Employers and employees alike are often confused about how these laws actually work in practice. Even if you think you’re in compliance, it can be a good idea to have your practices reviewed by an attorney to ensure that you’re avoiding traps for the unwary.
If employers fail to follow the break and meal requirements, there are several consequences. First, employees may bring wage claims in administrative court or file lawsuits in civil court. If penalties are awarded in these proceedings, employers will be ordered to pay applicable back pay, interest and penalties, attorneys’ fees, and costs to the aggrieved employee.
As a general rule, penalties are assessed under the state’s minimum wage law, which is interpreted to mean one hour’s pay at the employee’s regular rate for each missed meal or rest period.
However, as tempting as it may be to ignore these laws for vices such as Starbucks or Pepsi, the more severe risk is class action litigation.
Unlike under the state’s minimum wage law, no "liquidated damages" are assessed under the break and meal law. However, under the wage claim law, a business can be assessed civil penalties for each violation of that law, plus the usual statutory damages, interest, attorneys’ fees , and costs. Civil penalties are assessed for each claim.
In one case, an employee brought a state wage claim against her employer, alleging unpaid overtime, and later added a claim alleging that she had not been provided meal and rest breaks. The Oregon Bureau of Labor and Industries (BOLI) found in favor of the employee on the meal and rest period claims. Specifically, BOLI determined that the employer had improperly rounded down the time employees began and ended their breaks, instead of rounding these times to the nearest quarter hour. Because it had failed to pay employees for the full amount of time for such breaks, the civil penalty was assessed for $45.00 per employee for 26 days, or $1,170.00. When multiplied by the number of employees, the total civil penalty amounted to $58,500.00.
Critically, an employer cannot undo the damage done due to violations of these laws by providing employees with meal and break periods or pay retroactively. All too often, when clients come to me, they tell me they are providing the employees what they are entitled to under the law, but just doing it after the fact. This is not a cure for having already violated one of these laws.
In contrast to the state’s $14.00/hour minimum wage, the maximum civil penalty for failure to pay the legal prevailing wage on a public contract can be as high as $90.00/hour, with no limit on the number of hours.
Employee Rights and Reporting Violations
Oregon law grants employees the right to at least one 30-minute unpaid meal period for every 5 hours of work. The meal period, however, is not required to be paid if you are completely relieved of all duty. If you have to answer emails, texts, and calls during your meal period, even a little, then you are not relieved of all duty and your employer must pay you for that time. Of course you have the right to refuse your meal period or any part thereof. However, refusing your meal break will entitle you to a shorter shift of less than 6 hours of work, or an uninterrupted break of 10 minutes for every 4 hours of work. An example: you are scheduled for 7 hours of work, but you refuse your meal time. Your employer must then either pay you for 6 hours of work or pay you for 6.5 hours of work (1 hour of work and 10 minutes of break) as long as you are off the clock for all or most of the meal period. If you are still on the clock you must be paid for the 10 minutes of break. If any of your breaks were unpaid, your employer may have violated Oregon law. You have the right to complain, whether you have suffered damages or not, without retaliation. Violations of the break laws are fairly common, and a potentially strong basis for filing a class action lawsuit for additional unpaid wages.
Recent Updates and Changes in the Law
Over the past few years, there have been a few noteworthy changes and clarifications in the courts and in the Oregon legislature that affect rest breaks and meal periods for employees.
Paid Rest Breaks
The 2017 Oregon Legislature passed SB 828, effective Jan. 1, 2018. The bill amends ORS 653.297 to provide that any employer with ten or more employees must "provide and permit" rest breaks at the rate of no less than ten minutes for everyone four hours worked, or for those working more than 2 hours more than the length of their shift. Employers may not impede or interfere with an employee’s ability to take a rest period as defined by law. No offset to the time worked shall be made for a rest period.
Rest breaks may not be combined with a meal period (meal periods being a separate legal requirement). Neither preceding nor following a meal period may be included in the required rest break. As with the previous version of the statute, all rest periods must be compensated as time worked.
Meal Periods
In 2015, Employers filed a lawsuit against the State of Oregon in which they sought a declaration that the Oregon Bureau of Labor and Industries’ meal period rules conflict with state statute (OR Minimum Wage Order – OAR 839-020-0050). The rule, OAR 839-020-0050(3), along with its implementation of ORS 653.262(2) and (4) are invalid as a matter of law, they argued. In particular, the lawsuit alleged the rule conflicts with the statutory requirement for a meal period to be provided to nonexempt employees "after five consecutive hours of work." Some employers further included that the Bureau’s decision to regulate meal periods is unlawful because the statute does not authorize rulemaking. At the end of 2017, this case was settled.
The Bureau’s clear authority to issue a meal period regulation that is subject to waiver under the "needs of the workplace" exception found in Oregon law was upheld each time it was considered over the 20 years the rule has long been since adopted .
The Court of Appeals affirmed the trial court’s ruling that the Bureau had the authority to interpret the statute to provide that employers must provide a nonwaivable meal period of at least 30 minutes after no more than six hours of work. This was the same rule the Bureau lifted from the federal Fair Labor Standards Act (which provides meal periods to be taken after five hours of work). In upholding the Bureau’s interpretation, the Court stated: "The Bureau is entitled to deference when interpreting the [statute] unless the interpretation is clearly erroneous," and "the Bureau’s conclusion of legislative intent is supported by text, context, and legislative history."
However, the Bureau also was required to revise its rule to clarify that there can be an overtime waiver. The Department tripped into litigation because the rules did not provide a clear mechanism for the waiver.
The rule now provides that an employee who works seven-and-a-half or more consecutive hours shall not work without a meal period. The employee may waive the meal period by a knowing, voluntary and written statement; and such waiver must be renewed every 60 days.
Litigation continues over meal periods. The most recent case is Rodriguez v. Tri-Met, Inc., a putative class action filed this spring. The complaint alleges that Transit Union members are owed up to $125 million in damages due to Tri-Met’s "unlawful policy" of requiring its workers to work excessive hours without a meal period, bid jobs with little to no break time, work back-to-back shifts without adequate intervening off duty periods, work too far apart on consecutive scheduled days to be able to return home for a meal period without using personal time, and have paid time deducted for off duty meal periods that they thus far have been unable to return home to utilize.
Employers should audit compliance with the recent requirements for paid rest and meal periods in Oregon.