What happens in Washington when your employee fails to take a meal break?

Is the employer “strictly liable” for a statutory wage/hour violation?  NO.

This new Washington Supreme Court gives helpful guidance on avoiding wage/hour liability for missed meal breaks. Brady v. Autozone Stores, Inc., _ Wn. 2d _ (June 29, 2017).

FACTS: This class action in federal court sought unpaid wages (under Washington law) for meal breaks allegedly “withheld from employees.” The Washington Court accepted review of certified questions.

Washington Supreme Court HELD/RATIONALE:

  1. Is an employer automatically liable if an employee misses a meal break? NO.
  • “Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift….No employee shall be required to work more than five consecutive hours without a meal period.” Op. at 3-4. (WAC 296-126-092).
  • “[E]mployees may choose to waive the meal period requirements….The Department ‘recommends,’ but does not require, obtaining a ‘written request’ from an employee who chooses to waive the meal period.” Op. at 4.
  • But “[e]mployees may not waive their right to a rest period.” Op. at 4 (Emphasis in original). (Admin Policy ES.C.6, Section 9).
  1. Does an employer have an affirmative duty to ensure employees take their meal breaks? YES.
  • Washington law “imposes a mandatory obligation on the employer…to provide meal periods and rest breaks and to ensure the breaks comply with [Washington law].” Op. at 5.
  • The Court rejected California’s more employer-friendly standard (of a similar provision) that an employer merely has to provide a  reasonable opportunity to take the meal break, without impeding or discouraging the employee from doing so. Op at 7.
  • Instead, under Washington law, an employee establishes a prima facie case of a meal break violation if the employee “did not receive a timely meal break.” Op. at 7.
  • Then, the employer has the burden to prove that “no violation occurred or a valid waiver exists.” Op. at 7.

KEY TAKE AWAY: Washington is tougher than California on meal breaks. Employers should continue to ensure that employees take required meal breaks. If an employee elects to waive that right, then the best practice is to obtain a written waiver signed by the employee.

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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.