Last September, we issued an e-mail advisory (2007-6) commenting on the Oregon Court of Appeals decision that Oregon employees had a private right of action to sue in court for wages and penalties for missed rest breaks. At the time, we noted that the Court of Appeals decision was contrary to the “prevailing wisdom”. The Oregon Supreme Court has now sided with the “prevailing wisdom” and unanimously decided there is no private right of action after all. Gafur v. Legacy Good Samaritan Hospital - Case No.: S055175. This decision is very welcome news for employers, as wage and hour claims are notoriously expensive, especially since penalties and attorney fees are recoverable in addition to any wages found owing.

However, employers must remember that the Oregon Bureau of Labor and Industries (BOLI) has the authority to impose fines of up to $1000 per day for wage and hour violations and to seek criminal prosecution as well. Moreover, it would come as no surprise if BOLI or the Oregon Legislature tries in the near future to create the private right of action which the Supreme Court has said does not currently exist.

The bottom line remains that employers must still be vigilant in seeing that their employees take their required breaks. All managers, especially first-line supervisors, should be trained to make sure employees take their breaks and discipline them if they fail to do so.