September 24, 2007
No. 2007-6

FOR OREGON EMPLOYEES, Time Worked During Rest Breaks
is Now Compensable

In Oregon, employees now have a private right of action for unpaid wages and penalties for missed rest breaks.

Under Oregon law, an employer must provide non-exempt employees with a 10-minute rest break for every four hours of work (and a second rest period for time in excess of six hours). More importantly, the 10-minute rest period is a paid break.

Until now, the prevailing wisdom was that no wages were lost by an employee denied a rest break.  In Gafur v. Legacy Good Samaritan Hospital, however, the Oregon Court of Appeals turned things upside down.  There, the court interpreted Oregon's rest break regulation to "entitle [employees] to receive four hours of wages for three hours and fifty minutes of work." The appeals court reasoned that an employee forced to work a full four hours without a break has "provided ten minutes of services for which they were entitled to be compensated but were not."

It’s not just ten minutes of wages, however.  Upon termination, employees not paid all wages due may sue for 30 days of penalty wages.  It is all important to realize that Gafur is a class action.  Thus, the back wages and penalty wages could become substantial.
In 2002, the Washington Supreme Court similarly held that employees had a right to claim back wages for missed breaks in Wingert v. Yellow Freight Systems, Inc.

Our recommendation:

Employers should have a clearly written and published policy requiring that employees take rest periods.  Such policies should include a mechanism for employees to report when unable to take a rest period, and employers should promptly pay for the rest period.  Employers will also want to consider disciplinary action, in appropriate situations, where employees fail to follow the published policy and take a rest break. 

If you have any questions, please contact us.