by Laura L. Edwards and Jeffrey A. James
The Washington Minimum Wage Act (“MWA”) sets forth the state law requirements for employee meal and break times in the workplace. Recent litigation by the Washington State Nurses Association (“WSNA”) highlights the importance of ensuring meal and break periods are carefully tracked—and the risks associated with noncompliance.
Meal and Break Regulations
Regulations promulgated by the Department of Labor and Industries (“L&I”) to enforce the MWA provide that non-exempt employees working a shift of more than five hours must receive a 30-minute meal period between hours two and five of their shift. Meal periods are not considered “hours worked” and may be unpaid if the employee is completely relieved from duty and receives a full 30 minutes of uninterrupted time. Employees may also expressly waive their meal period.
The regulations provide that non-exempt employees must also receive a rest period of at least ten minutes for every four hours of work. Rest periods should be scheduled as near as possible to the midpoint of the four-hour work period, and must occur before an employee works more than three hours. Rest periods are considered “hours worked” and must be paid. Employees need not be given a full ten minute rest period when the nature of the work allows for intermittent rest periods equal to ten minutes during every four hours of work. Employees must be permitted to start intermittent rest breaks not later than the end of the third hour of their shift. Also, some employers have a business need to require employees to remain on call during their paid rest periods. Under such circumstances, if an employee is called to duty while on his or her break, he/she must receive the remainder of the break at some other time during that four-hour work period. Otherwise, employees must be compensated for missed breaks.
The MWA also requires employers to keep accurate records of the hours an employee works, including overtime. Penalties may be assessed against an employer for failing to maintain such records.
The WSNA Lawsuits
The WSNA represents more than 16,000 registered nurses in Washington State. In October, the WSNA filed lawsuits against four hospitals alleging that each failed to provide nurses with appropriate rest and meal breaks. In each lawsuit, the WSNA alleges that the hospital does not pay its registered nurses overtime as required by the MWA when a missed rest break pushes a nurse into earning overtime hours. The WSNA seeks back pay for each such nurse as well as improved recordkeeping practices for tracking missed rest breaks.
These lawsuits follow the WSNA’s recent victories in two other cases addressing nurse rest and meal breaks. In August, the Spokane County Superior Court ruled that Sacred Heart Medical Center violated the MWA by failing to pay nurses wages owed for missed rest breaks. The court held that the Medical Center must pay the nurse-plaintiffs $104,722 in unpaid wages associated with missed breaks. Also in August, an arbitrator ruled that the University of Washington Medical Center was required to provide its nurses with full, uninterrupted 15-minute rest breaks (and not intermittent breaks) pursuant to the Collective Bargaining Agreement (“CBA”) between the parties. Both decisions stated that a nurse’s rest break must be full, uninterrupted time away from work duties rather than short breaks that could be interrupted by work duties.
There are presently several proposals addressing meal and rest periods before the Washington State legislature. One bill, HB 3024, applies only to hospital employees. If passed, it would require that certain hospital employees receive uninterrupted meal and rest periods, as opposed to intermittent or on-call breaks. Another bill, HB 2737, would ban intermittent rest periods if passed, with the caveat that any employer seeking to continue to use intermittent breaks must obtain a waiver from L&I. Neither of these measures was passed in the 2010 regular or first special session, but they demonstrate that unions are mobilized to make changes to Washington wage and hour laws through the legislature.
Advice for Employers
Although the recent litigation by the WSNA serves to highlight the issue of meal and rest breaks, the issue is not limited to healthcare employers. Every employer in Washington that employs non-exempt employees is required to comply with the MWA. Depending on the nature of your business, the MWA provisions addressing meal and rest periods can be difficult to follow, and even more difficult to accurately track. However, in light of recent litigation and activity in the legislature, it is more important than ever to ensure compliance with these provisions. Make sure your organization is giving non-exempt employees a 30-minute meal break for each five hours of work and the equivalent of a ten-minute break for every four hours worked. You may want to conduct an internal audit of your recordkeeping procedure for meal and break times in order to ensure accuracy. Remember, non-exempt employees may expressly waive unpaid meal periods, but this should be done in writing to avoid future disputes. Rest periods, however, can never be waived and must always be paid. If you intend to permit intermittent breaks, it is advisable to have a written policy authorizing and instructing employees to take intermittent breaks.
Also, if your organization is a unionized environment, consider whether it makes sense for your organization to prospectively address whether intermittent or interrupted breaks are allowed when negotiating your next CBA. Employers in unionized workplaces should be aware that provisions of a CBA covering meal and rest period requirements must generally be at least equal to or more favorable than the MWA provisions, with certain exceptions.
This Employment Law Note is written to inform our clients and friends of developments in labor and employment relations law. It is not intended nor should it be used as a substitute for specific legal advice or opinions since legal counsel may be given only in response to inquiries regarding particular factual situations. For more information on this subject, please call Sebris Busto James at (425) 454-4233.