Washington Supreme Court Decides Two Meal Period Issues: Waivers, and the Extent of an Employer’s Meal Period Compliance Obligations
A 1976 Washington State regulation establishes separate meal period and rest period requirements for non‑exempt employees. WAC 296-126-092. Despite being on the books for more than 40 years, break issues were not frequently litigated in Washington courts until the 1990s. However, class action litigation over meal and rest break issues has become commonplace since then, particularly after the Washington Supreme Court held that a damages remedy is available for violations of the regulation’s paid rest break requirements. Wingert v. Yellow Freight Systems, Inc., 146 Wn.2d 841, 50 P.3d 256 (2002).
The regulation’s separate meal period provisions are more flexible than the rest break provision, permitting both unpaid and paid meal periods. Further, the Washington Department of Labor & Industries (L&I) has long interpreted its break regulation as permitting individual employees to voluntarily waive their meal periods, even though L&I simultaneously has said that employees may not waive their rest periods. These differences created uncertainties about the extent to which rest period principles could be applied to the meal period context.
The Washington Supreme Court chose to answer two such questions, at the request of a federal court in which a meal period lawsuit was pending:
- “Is an employer strictly liable under WAC 296-126-092” for meal period violations?
- “If an employer is not strictly liable under WAC 296-126-092, does the employee carry the burden to prove that his employer did not permit the employee an opportunity to take a meaningful break as required by WAC 296-126-092?”
Brady v. Autozone, No. 93464-5 (June, 29, 2017), Slip Op. at 3. Relying on L&I’s position about meal period waivers, the Court easily answered the first question, stating “The employer is not automatically liable if a meal break is missed because the employee may waive the meal break.” Id. at 8.
The second question required more discussion and analysis. The federal court had relied on a prominent California break case, Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 273 P.3d 513, 139 Cal. Rptr. 3d 315 (2012), interpreting California’s similar meal period requirement. The federal judge was persuaded by the California court’s reasoning that an employer need not ensure an employee does no work during off-duty meal periods — an employer's obligation is only to “provide a meal period to its employees” by offering them a “reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” Id. at 1040. Further, under Brinker, an employer must not “undermine a formal policy of providing meal breaks” by “creating incentives to forgo, or otherwise encouraging the skipping of[,] legally protected breaks.” Id.
The employee’s counsel sought a more stringent approach to meal period compliance, urging the Supreme Court to adopt the approach taken by the Washington Court of Appeals in Pellino v. Brink’s Inc., 164 Wn. App. 668, 267 P.3d 383 (2011). Relying on Pellino, the employee argued that employers have “an affirmative duty to ensure their employees take their meal breaks.” Slip Op. at 5. The Supreme Court was persuaded that this approach is superior to the Brinker interpretation, “because Pellino ultimately provides greater protection for workers,” and thus “is more in tune with other Washington case law addressing employee rights.” Id. at 6.
The end result is that:
an employee asserting a meal break violation under WAC 296-126-092 can establish his or her prima facie case by providing evidence that he or she did not receive a timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or that a valid waiver exists.
Id. at 7. The Court viewed this burden on employers as “not…onerous,” in light of employers’ wage and hour recordkeeping obligations. The Court specifically rejected the employer’s reliance on “the general rule requiring the plaintiff to prove all elements of the cause of action,” citing employers’ “mandatory obligation…to provide meal breaks and to ensure those breaks comply with the requirements of WAC 296-126-092.” Id. at 7-8.
Upshot: What Brady v. Autozone Means for Washington State Employers
The Brady ruling underscores the importance for employers of developing, maintaining and following meal period policies that ensure employees take their meal breaks unless an individual employee voluntarily decides to waive such a break. Although the Court appears to have accepted L&I’s view that written meal break waivers are not required, employers still should consider whether it's wise to adopt a practice of using written waivers. Further, given supervisors’ pivotal role in administering day-to-day break requirements, employers may wish to provide supervisory guidance or training on how to ensure compliant meal periods. Supervisors must understand employees’ break entitlements, and they must not create a workplace culture that pressures or encourages employees to forego their breaks. Employers risk costly class action litigation if their policies and practices permit meal period violations.
Seattle employment attorney Karen Kruse counsels and represents employers throughout the State of Washington, with a focus on compliance with Washington State and local employment laws.
