Oregon Employers Must Pay for Meal Breaks Less Than 30 Minutes, Regardless of Reason

The Oregon Court of Appeals recently clarified in a 3-0 decision that Oregon employers have an affirmative duty to ensure that non-exempt employees who work over six (6) hours in a shift take at least 30 minutes of uninterrupted meal time. If an employee's meal period is less than 30 minutes for whatever reason, the entire meal period must be paid regardless of whether the employer knew or should have known that the employee skipped or took a short meal period.

Employers that currently pay employees only for the portion of their meal period during which they actually work must reevaluate their policies and practices given the significant exposure to wage claims as a result of the new appellate decision. The statute of limitations for unpaid wages in Oregon is six (6) years.

Not All Oregon Employers Proactively Enforced Meal Periods

The Oregon Bureau of Labor and Industries (BOLI) meal period regulations require that "every employer shall provide to each employee, for each work period of not less than six or more than eight hours, a meal period of not less than 30 continuous minutes." Such meal periods can be unpaid.

However, "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." OAR 839-020-0050(2)(a) and (b). Some interpreted these rules to mean that the employer could rely on a policy making the 30-minute meal period available for employees and that unless they had knowledge that breaks were not being taken, they were not liable for the missed break time.

For example, in 2013, in a case argued by Davis Wright Tremaine, an Oregon federal district court held that an Oregon employer was not required by Oregon law to police meal periods.  "To require an employer to police when an employee clocks in and out would be an unreasonable burden on the employer. The outcome would be an employee who could take a proper meal break, but then demand that it paid simply by clocking in early." Weir v. Joly, No. 3:10-CV-898-HZ, at *14 (D. Or. Dec. 23, 2011).

However, this decision has been effectively undercut by the new Oregon Court of Appeals decision, which binds Oregon employers unless and until the opinion is overturned by the Oregon Supreme Court or the BOLI regulation is changed. 

Oregon Employers Have a "Duty to Monitor" Employee Meal Periods

In Maza v. Waterford Operations, LLC, 300 Or App 471 (2019), the Oregon Court of Appeals held that Waterford Operations, LLC, can be sued for unpaid wages by its employees who return from a meal period before 30 minutes elapse and who are not paid for the entire 30-minute meal period, regardless of why they returned early.

"It is the employer’s duty to monitor employees' work and meal periods to ensure that full meal periods are taken." 300 Or App at 480 (emphasis added). According to the Court, for an employer to comply with the BOLI regulation, "it is not sufficient for employers to merely require in a handbook that employees not work during meal periods." Id. Instead, "it is the employer’s responsibility to enforce [the taking of a 30-minute meal period] or to pay wages if a meal period is shortened." 300 Or App at 477.

What Can Employers Do?

In light of this ruling, Oregon employers should take immediate steps to monitor and enforce policies requiring meal periods be at least a continuous 30 minutes and pay wages if an employee's meal period is less than 30 minutes for whatever reason.

This leaves an open question as to what steps an employer can or should take to "monitor" employee meal periods to ensure that full meal periods are taken or to reduce the risk of exposure to wage claims. The answers may be different for each employer.

Here are a few ideas for employers to consider:

• Ensure that the meal period policy provides that a meal period must be at least 30 uninterrupted minutes and that employees have a mechanism for reporting inability to take a full 30-minute meal period on any particular occasion.
• Consider advising employees they may be subject to discipline for voluntarily returning to work prior to the end of a 30-minute meal period, or for failing to report missed or shortened meal periods.
• Train managers and human resources to properly schedule work so that all non-exempt workers are able to take a 30-minute meal period without interruption and to immediately resolve situations where an employee claims not to have been able to take a full 30-minute lunch.
• If employees are required to clock out and back in for meal periods, program the timekeeping software to pay meal periods that are less than 30 minutes, and issue an alert to managers so appropriate counseling and scheduling can be immediately addressed.
• Require an acknowledgment or certification (such as through a scheduling app, timekeeping system, or payroll system) in which the employee certifies that they took a meal period that was at least 30 minutes long on each day covered by the acknowledgment or certification.
• Periodically review employee timecards to ensure that meal periods are sufficiently long.