Changes Proposed to Rules for Employee Rest & Meal Breaks

ONSA Members encouraged to send comments before Dec. 2, 2008

The Bureau of Labor and Industries (BOLI) is proposing modifications to its administrative rules governing employee meal and rest breaks. ONSA Members are encouraged to provide written comments. Written comments must be submitted to the agency on or before December 2, 2008 and should be addressed to:

                        Oregon Bureau of Labor and Industries
                        Attn: Marcia Ohlemiller, Rules Coordinator
                        800 NE Oregon Street
                        Portland, Oregon 97232

The following background information and talking points are provided to assist ONSA Members who wish to submit written comments regarding the proposed rule changes.

Background

For many years BOLI administrative rules permitted employees to remain on duty during meal breaks when the “nature and circumstances” of the job so required, provided the employee was paid for the time. In July of 2008, unbeknownst to ONSA and other stakeholders, BOLI modified its administrative rules to require that employees be provided with 30-consecutive, uninterrupted minutes of meal break time. Under the new rules, employees could only perform duties or remain on duty during meal periods if the employer could demonstrate the existence of “exceptional and unanticipated circumstances”. This new rule was adopted without the assistance of a Rule Advisory Committee or other participation from interested parties.

Upon learning of the new administrative rule, ONSA organized a coalition of interested parties to persuade BOLI to temporarily suspend the new administrative rule for a period of 180 days, which BOLI did in October. The purpose of suspending the new administrative rule was to maintain the status quo, while ONSA and other interested parties participated on a Rules Advisory Committee to develop a rule that would be more workable for business and still meet the interests of labor.

The Rules Advisory Committee met on several occasions in October and no clear consensus between business and labor was reached. Nevertheless, BOLI staff considered the issues that were discussed in the Rules Advisory Committee meetings and prepared a new administrative rule for BOLI’s consideration. This is the rule ONSA Board Members are now being asked to comment upon.

New Proposed Rule

The new proposed rule establishes a default requirement that employees be granted 30 consecutive, uninterrupted minutes of meal break time, during which the employee is relieved of all duty. The rule then proceeds to establish four exceptions where the employee does not have to be relieved from all duty during meal breaks. These exceptions are as follows:

Emergency Exception: In “exceptional and unanticipated circumstances”, an employer may provide a paid 30-minute meal period where employees continue to perform duties.

Non-Retail Qualified Employee Exception: Allows employers to provide “qualified employees” in non-retail establishments with a 30-minute uninterrupted meal period during which the employee may be on call, but is not required or usually called upon to perform duties. The exception only applies where “no other qualified employee” is available to relieve the employee for a meal period. The rule defines “no other qualified employee available” to mean that either there is no other employee available with the requisite training to relieve the other employee from duty, or there are other employees available but these employees are unable to leave their assigned workstations to relive other employees from duty. 

Retail Qualified Employee Exception: Allows employers in retail establishments (i.e. small storeowners) the ability to provide employees with the equivalent of 30-minutes of uninterrupted time for a meal period in which the employee is on call but is not required to perform duties. The 30-minutes of equivalent time would need to be provided in minimal periods of consecutive time, such as two periods of 15 minutes or three periods of 10 minutes. 

Industry Practice Exception: This exception would authorize employers to provide 20 minute paid meal periods during which the employee is relieved of all duties. This would only be permitted in situations where the employer can show that industry practice or custom has established such a meal period to be retained. 

The proposed rule also establishes new rest break requirements, which are in addition to the meal break requirements described above. Under the new proposed rule, employees are required to receive ten consecutive minutes of rest break time for every four hours worked. Under the pre-existing rule, employees were entitled to ten-minutes of rest-break time, but the rest break did not have to be ten-consecutive minutes of uninterrupted time. If an employer could demonstrate the “nature and circumstances so required” and paid the employee for the rest break time, the rule was satisfied so long as the employee received at least ten-minutes of rest during each four hours of work. Thus, for example, the old rule would be satisfied if a convenience store owner paid a clerk for ten minutes of rest-break time, and the clerk received various periods of rest totally ten-minutes between servicing customers.

Under the new rule, employers are responsible for ensuring that employees take the meal and rest break time they are entitled to under the law. As the rule is presently drafted, it is not enough for an employer to make meal and rest periods available. The employer must also audit employees to ensure the time is actually taken.

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