One of the more troubling types of employment claims an Employer can face is a claim by employees that they did not receive their meal periods or rest periods.
Meal and rest period claims are often added to other employee complaints and lawsuits, such as complaints involving discrimination, retaliation, and whistleblower claims. This is because attorneys for employees are well aware of the inherent proof problems that Employers face with meal and rest period litigation. As a result, meal and rest period claims can be used as a weapon by the employee-plaintiffs to attempt to exact a larger settlement from the Employer in the unrelated litigation. Meal and rest period claims can arise not just from current employees, but from disgruntled former employees bringing an emotionally-driven lawsuit against their former Employer.
The damages for meal and rest period violations are like the damages for other wage claims, such as claims for payment of minimum wage, overtime, and nonpayment of wages. Generally, the underlying damage amount is a wage payment for the meal and rest period time that the employee was entitled to each day that the employee worked. In Washington, claims for wages that are not based upon a written contract, such as meal and rest period claims, can allow damages going back for up to three years prior to the filing of the lawsuit. This means that an Employer may face claims for damages of up to three years of work for each employee who alleges he or she missed meal periods and rest periods. In addition to these wage payment damages, an Employer may also end up liable for double damages, the attorney fees of the employee(s) bringing the lawsuit, interest, and litigation costs.
It is not unusual for a number of employees, or even an entire workforce to become plaintiffs in meal and rest period litigation. The damages for such litigation can be surprisingly large. Risk prevention, planning, and proper communication are keys to avoiding and minimizing the possibility of an Employer becoming embroiled in meal and rest period litigation.
As for compliance, the general Washington law can be summarized as 10 minutes and 30 minutes. Specifically, with respect to rest periods, Washington generally requires that employees be allowed a rest period of not less than ten minutes on the Employer’s time in each four hours of working time, which should be provided no later than the end of the third working hour. As for meal periods, Washington generally requires that employees working over five hours be allowed a 30 minute meal period between the second and fifth working hour.
There are different legal principles for rest periods and meal periods are under Washington law. The Washington State Department of Labor and Industries (“L&I”) takes the position that rest periods must be paid and cannot be waived an employee. In contrast, L&I allows for meal periods to be unpaid so long as the employees are relieved from duty and receive 30 minutes of uninterrupted mealtime. L&I views interrupted meal periods as lawful, so long as the employee receives 30 minutes total of mealtime and is paid for the entire meal period. L&I also allows for intermittent rest periods when the nature of the work allows for such rest periods equal to ten minutes during each four hours of work. L&I’s interpretation of the law allows employees to waive a meal period but not a rest period. L&I recommends that an Employer obtain a voluntary written waiver from any employee who wishes to waive their meal period.
To avoid litigation, Employers should strive to be able to show that employees knew to take their breaks, were told to take their breaks, were subject to discipline if they did not take their breaks, and did in fact take their breaks. Even though employees may have actually received a lawful meal and rest periods during the time period in question in the lawsuit, responding to claims by employees and ex-employees that such periods were not provided can be extremely problematic for an Employer from a proof standpoint. This is especially true if due to the nature of the industry the Employer’s management is not in a position to track each employee’s day-to-day activities.
For example, it is not uncommon, especially in industries where the employees travel on behalf of the employer such as delivery industries, for an Employer to rely upon the employee to take breaks and to communicate when a meal and rest period issue has arisen. When a lawsuit is filed, however, it is not uncommon for the plaintiff-employees to testify, based upon faulty memory and inexact estimates, that they did not receive a lawful meal or rest period. If an Employer lacks clear policies, data, and documentary evidence to rebut such employee claims, defending against the complaint becomes difficult for the Employer.
Best practices for an Employer to insulate it from some of the proof problems inherent in meal and rest period claims include the following. The Employer should have written policies in the company handbook clearly stating: 1) the meal and rest period requirements, 2) the employee’s obligation to ensure such meal and rest periods are taken by the employee, and 3) directing that employees communicate immediately to management any issue or occurrence that could lead to a missed rest period or meal period. If the Employer anticipates allowing employees to waive meal periods, the Employer should take L&I up on its recommendation and obtain voluntary written waivers from any such employees.
The Employer should have the employees acknowledge receipt of company handbook, including the meal and rest period policies. Similarly, if the employee reviews or signs a time card prior to submission to management, it can be helpful to include on the time card a signed affirmation by the employee that he or she followed company policy and received his or her required meal and rest periods for the time period in question. Reminders and training on these requirements should also be conducted and attendance at that training documented. In addition, management periodically checking with employees to ensure compliance is a solid practice.
The Employer should also make an employee’s violation of the company rest and meal period policy conduct subject to discipline. The liability that can flow to an Employer from even a factually sketchy meal and rest period claim is far too great for an Employer to not communicate to its workforce the important of ensuring proper meal and rest periods. Though Employers generally do not want to impose discipline on their workforce unless necessary, the Employer should state in its policy that failing to take a meal and rest periods, or to communicate an issue or occurrence that could lead to a missed rest or meal period, will result in discipline of the employee up to and including termination.
These are some of the best practices an Employer may follow to avoid meal and rest period litigation. If the Employer takes action of this type, first and foremost the Employer will have documentary proof showing that the meal and rest periods were lawfully provided. More importantly, by communicating such information directly to employees, the chances of employees erroneously believing they did not receive a lawful meal period or rest period are greatly reduced making a subsequent lawsuit less likely. Clear policies, communication and strategic risk avoidance is a key to Employer success with lawsuits such as meal and rest period claims.
Brian P. Lundgren is a Washington and Minnesota licensed attorney representing Management in labor and employment. For more information contact Brian at email@example.com, or (206) 447-0182.