Meal and Rest Breaks for Public Employees

By Sofia D'Almeida Mabee, Employment Attorney
Summit Law Group

There continues to be much confusion regarding meal and rest period obligations for public sector employees. Public employers in Washington State are required to provide meal and rest breaks for non-exempt employees (i.e., overtime-eligible employees.) However, unlike the situation for private employers, public employers can also have agreements with unions representing those employees to change the default meal and rest break rules, as long as the changes are spelled out in a collective bargaining agreement. Employers can also have agreements modifying the default rules with non-union employees.

What are the default meal and rest break rules?

In the absence of an agreement varying from these requirements, the default meal and rest break rules are listed in WAC 296-126-092:

Rest Breaks

• Rest breaks are paid.
• No employee is required to work more than 3 hours without a rest break.
• Employees must receive one 10 minute rest break for each 4 hours worked (for example, an 8 or 9 hour shift requires 2 rest breaks while a 12 hour shift requires 3 rest breaks, etc.)
• Scheduled rest breaks shall be as near as possible to the midpoint of the work period (for example, if an employee works from 8 a.m. – 12 p.m. and 1 p.m. – 5 p.m., the employee's scheduled rest breaks should occur as near as possible to 10 a.m. and 3 p.m.)
• Where the nature of the work allows an employee to take intermittent rest breaks equivalent to 10 minutes for each 4 hours worked, scheduled rest breaks are not required.

Meal Periods

• Employees must be offered one 30 minute meal period for each 5 hours worked.
• Meal periods must be provided between the second and fifth working hour (for example, an employee working 8 a.m. – 5 p.m. must have a meal period no earlier than 10 a.m. and no later than 1 p.m.)
• No employee is required to work more than 5 consecutive hours without a meal period.
• Employees who work at least 3 hours longer than they are regularly scheduled to work must be given at least one additional 30 minute meal period prior to or during the overtime period.

When are meal periods compensable?

Employees who remain on the premises during their meal period on their own initiative and are completely relieved from duty are not required to be paid when they keep their pager, cell phone, or radio on if they are under no obligation to respond to the pager or cell phone or to return to work. According to the Washington State Department of Labor & Industries, employers do not have to permit employees to leave the premises to avoid paying for meal periods, as long as the employee is completely free from duties. Determining when employees are entitled to be paid for meal periods is often determined on a case-by-case basis.

What if a rest break or meal period is interrupted?

If an employee is called to duty during a scheduled rest break, the break should be treated as intermittent and the employee should receive the remainder of the break once the task is complete. If an employee is called to duty during a meal period, the employee should attempt to take the remainder of the meal period upon completion of the task, and the meal period should likely be paid.

Based on a recent supreme court decision, WSNA v. Sacred Heart Medical Center, 175 Wn.2d 822 (2012), if a rest break is missed, both the missed rest break and the labor performed during the missed rest break constitute “hours worked” for overtime purposes. Therefore, a full-time employee who misses a rest break is entitled to 10 minutes of overtime. For further discussion of Sacred Heart Medical Center see “Employment Law Alert: Washington High Court Issues Important Decision on Rest Breaks and Overtime Pay,” by Joe Levan, Legal Consultant, MRSC, MRSC Insight, January 31, 2013.

How can public employers deviate from the default rules for union employees?

If a collective bargaining agreement specifically varies from or supersedes, in part or in total, the default meal and rest break rules, then the agreement trumps the rule (or the portion thereof) that would otherwise apply. For example, a collective bargaining agreement could state that rest breaks will be scheduled in one block and taken immediately following the meal period. Or the agreement could state that employees will only receive one meal period per day, regardless of whether they work beyond their regularly scheduled shift. Transit agencies can negotiate for language stating that they will provide rest breaks when drivers have a layover at a transit center.

What about non-union employees?

For non-exempt, non-union employees, a public employer can choose to comply with the default rules or it can enter into “mutually agreed to employment agreements” that specifically vary from or supersede the default rules, in the same manner as collective bargaining agreements.

Practical tips

Public employers should take a look at their work force. If they are already following the default rules, then they do not need to negotiate exceptions. Scheduled rest periods are not required for employees who are allowed to take intermittent rest periods throughout the work day. This is likely the case with most office employees and probably many field employees.

If an employer has already bargained meal and rest period provisions into collective bargaining agreements, then any default rules conflicting with the contract provisions are superseded. However, employers should be aware that portions of the rules that are not specifically superseded by the contract must continue to be followed.

If an employer's operations aren't a good fit with the default rules and its bargaining agreements are silent on the issue of meal and rest breaks, then the employer should negotiate with its unionized employees for meal and rest break provisions that differ from the default rules.

Tips for minimizing exposure

Exposure to overtime claims for missed rest breaks under Sacred Heart Medical Center makes it critical that employers ensure that employees are taking rest breaks and meal periods. Employers should have a mechanism for employees to report missed breaks to avoid years of wage claims building up. It is also critical for supervisors to be trained to ensure that meal and rest break requirements are being observed.

Is there anything else public employers should know?

Public employers with a resolution, ordinance, or rule in effect prior to April 1, 2003 that establishes meal and rest periods may be exempt from the default rules. Minors are covered by their own meal and rest break rules, which can be found at WAC 296-125-0285 and WAC 296-125-0287.

HR Advisor Authors

Mark Busto, Attorney with Sebris Busto James, Bellevue, is a seasoned employment law counselor and litigator with a strong professional background in labor-management relations. He has represented employers in discrimination cases before judges and juries in both state and federal court and has arbitrated many labor and employment matters. More.

Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More.

Eric Svaren, Principal, Groupsmith, Inc., specializes in helping leaders and teams get traction—by facilitating change, clarifying strategy, strengthening trust, and improving communication. He helps individuals, teams and entire enterprises achieve breakthrough results. Eric is particularly known for his intensive intervention with teams, as well as his facilitation of high-stakes conflict situations, including multiparty mediation and labor contract bargaining. More.

Cabot Dow is President of Cabot Dow Associates, Inc. He offers more than 25 years of experience representing public and private sector clients in the full spectrum of collective bargaining matters, including negotiations, mediation and arbitration proceedings. Prior to entering the labor relations consulting field in 1975, he was the Assistant City Manager and Labor Relations Director for the City of Bellevue, Washington. More.