WAGE AND HOUR UPDATE
On January 12, 2009 the Oregon Bureau of Labor and Industries (BOLI) issued a new rule of particular interest to employers and employees for whom a 30-minute meal period is either occasionally or regularly not possible. The new rule clarifies the requirements for meal periods in that situation and the obligations for employers who do not provide a 30-minute meal period.
Basic Meal and Rest Break Rules Unchanged
The basic requirements for meal periods remain unchanged. An employer is not required to provide a meal break to an employee working fewer than 6 hours (although the 10-minute rest break rules will apply if the employee works more than 3 hours). Further, under normal circumstances, where an employee works more than 6 hours, the employer must provide the employee a 30-minute unpaid meal period during which the employee is relieved of all duties. Additionally, it continues to be the case that the normal rules on rest breaks and meal periods are modified where a CBA specifically prescribes rules concerning meal periods and rest periods.
New Rule Applies Where “Relieved From All Duty” Meal Break Is Not Possible
Employers have long argued that the nature of some work is such that it necessitates keeping employees on-call during a meal period. Responding to these arguments, BOLI both convened a Meal and Rest Period Advisory Committee to provide recommendations and sought public comments. BOLI used this input to fashion a new rule that applies to situations where the employer does not offer, or is unable to provide, a 30-minute meal period during which the employee is relieved of all duties. BOLI describes the new rule as a way to balance the legitimate employer needs with the understanding that all employees should receive an adequate time to rest and eat.
Under the old rule, employers could avoid providing 30-minute off-duty meal periods in “exceptional or unanticipated circumstances” or where the “ordinary nature of the work” prevented an employee from receiving regular meal periods, for instance when an employee remained “on-call.” BOLI stated that this language did not make it clear that employees must still be provided time to rest and consume a meal when a full 30-minute period was not possible.
BOLI’s new rule provides three exceptions to the 30-minute, uninterrupted, off-duty requirement. An employer now must pay the employee for the time worked and be able to show that:
- Unforeseeable equipment failures, acts of nature, or other unanticipated circumstances rarely or temporarily preclude the employer from providing a meal period (as distinguished from regular understaffing of key positions);
- Industry practice or custom has established a paid meal period of less than 30 (but no less than 20) minutes, during which the employee is relieved of all duties; or
- Providing a 30-minute unpaid meal period where the employee is relieved of all duties would impose an undue hardship on the operation of the employer’s business. Undue hardship may be established by the employer’s financial and economic circumstances, the number of employees, the effect of meal periods on worksite operations, or a combination of factors.
As under the previous rule, an employee must be allowed to eat a meal while on-duty or on-call if the 30-minute meal period is not provided. Moreover, BOLI’s rule clarification does not materially affect the requirements related to the provision of paid 10-continuous minute rest breaks.
The new rule is more definite and offers more flexibility for employers in exceptional, temporary circumstances. For instance, where an employee calls in sick and only one other employee on-site is qualified to run certain machinery, the employer may require that employee, on that day, to forego a 30-minute meal period so long as the employee is given appropriate rest breaks and an opportunity to eat despite not being relieved of all duties. Note that the employer must be able to show that this is a rare or temporary situation; regular understaffing of key positions will not meet the standard for invoking the exception.
Employers claiming an undue hardship exception must both provide the employee “adequate periods in which to rest, consume a meal, and use the restroom” and notify employees via a form prescribed by BOLI, beginning March 16, 2009. While the new rule is clearer than the old rule, the threshold for invoking an exception, particularly the “undue hardship” exception, may be higher.
Exception Related to Tipped Employees Over Age 18
Although not a part of this rule change, one more narrow exception to the meal period requirement applies to tipped employees over age 18. A food service worker may elect to complete a waiver form, which certifies that s/he wishes to waive the taking of a 30-minute unpaid meal period (the employee may not waive the taking of paid 10-minute rest breaks). Importantly, employers may not require or coerce employees to complete this form, and either the employer or the employee can revoke the waiver by written notice. The waiver form is available on the BOLI website in both English and Spanish. (See http://www.oregon.gov/BOLI/WHD/Meal_Waivers.html
Please feel free to contact Bullard Smith Jernstedt Wilson for more information on how BOLI’s rule change might apply to your workplace, or if you have any questions on meal and rest breaks or other labor, employment and benefits issues.
- Sarah M. Petersen