Washington’s Rest Break Laws
One common issue that we see happens when an employer does not provide employees with proper rest breaks. Employees must know their rights. We have put together a simple primer on Washington’s rest break laws. This is just a basic summary of the Washington’ employment laws addressing rest breaks. Each case has unique facts and may make a difference when applying the law to specific facts. Laws change over time, so make sure to review or check with a lawyer to make sure you have the most up to date laws.
Length and Frequency of a Rest Break
Washington employment laws require Employers to provide employees with a 10 minute paid rest break every four hours. The rest break must happen no later than the 3rd hour of work.
Scheduling Rest Breaks
Employers do not need to schedule rest breaks for employees. But employers do need to affirmatively promote meaningful break time. Employers need to make sure employees are taking rest breaks. Taking 10 – one minute breaks is probably not meaningful break time. Its not enough for an employer to tell an employee to take a break if they able. Often times employees are overworked or the workplace is understaffed and therefore employees can not take breaks. The employer is in control of the workplace and must make sure that its employee’s are taking rest breaks as required by law.
Are Rest Breaks Voluntary?
Rest breaks are mandatory. Employees cannot waive their right to take rest breaks. Employers shouldn’t pressure employees into missing rest breaks.
What is a Rest Break?
A rest break is a time for personal rest and relaxation. The employer must completely relieve the employee is of all work duties. An employer can require you to stay on the premises, but the employee must be free from all work duties.
Should I get Paid for Rest Breaks
Yes! An employer must pay for a 10 minute rest break for every four hours of work. If you work on piece rate basis, then you must be paid separately for rest breaks. For example, if you are paid per mile or paid for a unit of production (think being be paid for a basket of berries picked, or per square foot of install).
Why do some employers choose to “nickle and dime” their employees? Its not uncommon. The simple fact is that for most employers, their single greatest expense is their labor – meaning the employee. Unscrupulous employers have a strong incentive to cut labor costs, even by violating wage laws. They hope that they don’t get caught violating Washington employment laws, and even if they do, they might have to only pay one or two employees their back pay instead of all the back pay owed to their entire labor force. This is where class actions can helpful to the employee taking on the powerful employer.
Class actions have been the best tool for many workers to recover their unpaid wages. By their very existence, these lawsuits help keep certain employers honest. But now Congress wants to pass a bill that would radically diminish the effectiveness of class actions nationwide.
As a back pay lawyer working to recover unpaid wages for Washington workers, I have seen many schemes by employers to steal wages from their employees. Recently, we settled four class action lawsuits where Class members recovered significant wages. These class actions allowed the workers to work together to get their unpaid wages instead of bringing numerous individual suits which are expensive and time consuming.
Indeed, if the unscrupulous employer is smart they will only try to steal a modest amount of wages at a time. This creates a problem for workers trying to get their illegally withheld back pay under Washington employment laws. For a employment lawyer, initiating a lawsuit for a single worker who is “only” owed $1000-$2000 is inefficient. It is hard to fight against employers that often have more money to pay for lawyers than the employee. Instead, by using class actions as a vehicle to represent all affected workers and by filing one lawsuit to benefit an entire group of workers is better use of the Court’s time, the lawyers time and helps make the cost of fighting a lawsuit affordable. It just makes more sense to bring one lawsuit to fix the employers unlawful pay policies than 100 lawsuits.
Some critics of class actions point to the contrast in fees that back pay lawyers earn in comparison to the relatively small amounts recovered by the individual workers. But back pay lawyers, including us, generally earn a smaller percentage of our fees on class actions than we do on other cases. Plus, class actions are very time consuming and risky. Moreover, judges review each back pay lawyer’s fee application and only approve their fees after careful scrutiny. Class members and the employers are also free to object to the back pay lawyer’s request for fees. We have never had our request for fees challenged. In fact, our clients have always been thrilled with the results.
But Congress is working to pass HR 985 that will make employers far less accountable for their wage theft. The bill aims to eliminate most class actions by creating unnecessary hurdles that protect employers, but does nothing to protect the workers. For example, in an unpaid wage case, it means that all the class members have the same amount of unpaid wages. We know that most employees do not get paid the same rate or work the same hours. They are not likely to have the exact same damages as all other employees. It also adds an automatic appeal in the middle of every case, which causes needless delay and expense, often sometimes in excess of a year. These draconian measures go on and on. For more information on this bill, simply google “H.R. 985” and/or the Orwellian named “Fairness in Class Action Litigation Act.”
If you begin dealing with a possible employment dispute, one of the first things you need to do is to figure out which state’s employment laws apply to your issue. Often times the answer to this question is easy. For example, if you live in Washington, work for a company based in Washington, and are physically located in Washington, then Washington employment laws apply.
The question becomes more difficult in real life. For example, what if an employee resides in Washington but also works in other states for an employer that is not headquartered in Washington. This issue came up recently in one of our cases.
Whether an employee is “Washington-based” depends on a number of different factors. Washington courts will apply a two-step approach to determine which state law applies. First, the court will see if there is any conflict between the applicable state laws. For example, Washington employment laws relating to rest breaks offer better protection to employees than Oregon State rest break laws. In that scenario a conflict exists.
Second, if there is a conflict, the court will try to determine which state employment laws have the most significant relationship with the employee. For example, If you live in Washington, are paid in Washington, but physically begin your work in another state, then Washington law will likely apply because it has the more significant relationship with the employee.
In the recent issue mentioned above, the federal District Court in Western Washington found that Washington employment wage laws apply to a class of truck drivers when: 1) the employees are Washington State residents; 2) they have commercial driver licenses issued by Washington; and 3) they were getting paid in Washington (the employer has also been deducting Washington state tax obligations from their wages).
If the contacts are evenly balanced, courts evaluate the interests and public policies of the concerned states, to determine which state has the greater interest in determination of the particular issue.
It is always best to consult with an employment lawyer to help with these issues. These issues are very fact specific and could have big impact on the outcome of your case.
In December 2015, along with the Hanley Law Firm, Rekhi & Wolk filed a class action in King County Superior Court on behalf of employees who were employed by Recovery Centers of King County (RCKC) from December 2012. The lawsuit is known as Rogers, et al. v. Recovery Centers of King County, King Co. Case No. 14-2-32248-8 SEA.
In May 2015, RCKC filed a petition for Chapter 11 bankruptcy. By filing the petition, the King County case was automatically stayed. In August 2015, the Bankruptcy Judge ordered that the automatic stay be lifted so that the King County Judge could determine whether or not to certify the proposed class.
On March 22, 2016, Judge Bradshaw certified the proposed class which includes “all employees who worked for Recovery Centers of King County at any time from December 1, 2011 through the date of final disposition of this action.”
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This is a brief primer on “wrongful termination” under Washington law. (As always, the advice contained herein is for general educational purposes only. It should not be construed or acted upon as legal advice for your particular situation. You should consult with an attorney prior to acting on any information contained in this blog.)
Generally, speaking employment is “at-will,” meaning an employer can terminate the employment relationship at any time for any reason.
However, this is not exactly true. Employers can agree to only terminate an employee for cause: then, if they terminate an employee without cause, they may be liable for breach of contract. So, if you were laid off and have an employment contract, review it and see if there is a “termination for cause” provision.
Moreover, various laws make it illegal to terminate an employee for various reasons: namely for discriminatory or retaliatory reasons. This means that if you believe your employer may have targeted you specifically for termination based on how you look, or who you are, or what you said, then you may have a valid discrimination or retaliation claim under the law.
In order to be protected from “wrongful termination” under Washington’s discrimination law, you must fall within a specified “protected class” of people. The list includes your gender, race, color, age, disability, religion, marital status, veteran status, and sexual orientation and/or identity.
The critical issue for any discrimination case is how to show that your “protected class” played a “substantial factor” in your termination. Obviously, most employers aren’t going to tell you that you are being fired because you are too old, etc. Most of the time, you have to show that the reason provided for your termination was false and untrue. You can also look at the people outside of your protected class and argue that such people were not fired even though they performed similarly or even worse. It will likely be important to get support from colleagues who can attest that the reason for your termination is false, etc.
Likewise, employers cannot fire you because you said something that is protected by law. For example, if you complain about workplace safety, or that a supervisor is discriminating against you or another employee, then you have likely engaged in “protected activity.” This means that your statements are protected under Washington law.
However, in addition to proving you engaged in “protected activity” you will also need to prove that the “protected activity” played a “substantial factor” in your termination. Again, proving causation means looking at the reason for the termination and proving it is false (unless the employer admits it is firing you because of your complaint).
If your believe you may have been fired because of a “protected activity” or because of your “protected class” then you should contact an employment attorney ASAP to see if he or she can help.