Renee MAZA, Jodi Real, and Steve Price, individually and on behalf of all similarly situated, Plaintiffs-Appellants,
WATERFORD OPERATIONS, LLC and Coos Bay Rehabilitation, LLC, domestic limited liability company, Defendants-Respondents. 300 Or.App. 471
and submitted December 10, 2018
Jackson County Circuit Court 14CV03147; Timothy C. Gerking,
T. Hunt argued the cause for appellants. Also on the briefs
were Law Offce of Lisa T. Hunt, LLC; David A. Schuck and
Schuck Law LLC.
William E. Gaar argued the cause for respondents. Also on the
brief were Jillian Pollock and Buckley Law, P.C.
T. Barish and McKanna Bishop Joffe, LLP, fled the brief
amicus curiae for Oregon AFL-CIO.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Sharia Mayfeld, Assistant Attorney General, fled
the brief amicus curiae for Bureau of Labor and
W. Sondag, Paul M. Ostroff, Peter D. Hawkes, and Lane Powell
PC fled the brief amicus curiae for Health Care
Association and Oregon Business & Industry.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Or.App. 472] Case Summary: In this putative class-action
claim arising under ORS 653.055, plaintiffs sought wages and
penalty wages for meal periods that were shorter than 30
minutes, contending that the 30-minute meal period required
by OAR 839-020-0050, an administrative rule of the Bureau of
Labor and Industries, is mandatory and that, if it is not
taken, the employer must pay wages for the full 30-minute
meal period. Employer contended that, under the
administrative rule, an employer need only make available a
30-minute meal period, but is not required to monitor whether
employees take the full 30-minute meal period or pay wages
for the meal period if the employee voluntarily chooses not
to take the full 30 minutes. The trial court agreed with
employer's interpretation and, based on that
interpretation declined to certify the class under ORCP 32 A,
because a claim would be factually dependent on the reason
the employee did not take the full 30-minute meal period.
But, pursuant to ORS 19.225, the trial court allowed
plaintiffs' interlocutory appeal seeking an
interpretation of OAR 839-020-0050. Held: The
minimum meal period prescribed by OAR 839-020-0050 is
mandatory and, in the absence of a waiver of the meal period
as provided in OAR 839-020-0050(8), an employer who is not
exempt must require a 30-minute meal period without work
duties and pay wages to an employee who is not relieved of
duties during the entirety of the required minimum 30-minute
meal period. The court's conclusion requires the trial
court to reconsider its rulings regarding the certification
of a class under ORCP 32 A.
Or.App. 473] TOOKEY, J.
putative class-action wage claim arises under ORS 653.055,
providing for the liability of an employer "who pays an
employee less than the wages to which the employee is
entitled," and OAR 839-020-0050, an administrative rule
of the Commissioner of the Bureau of Labor and Industries
(BOLI), describing when employees must be paid for otherwise
unpaid meal periods. Plaintiffs sought to certify a class of
plaintiffs who they alleged had not been paid wages for meal
periods under OAR 839-020-0050. The trial court declined to
certify the class under ORCP 32 A. But, pursuant to ORS
19.225, the trial court has allowed plaintiffs'
interlocutory appeal seeking an interpretation of OAR
839-020-0050. We provide that interpretation, vacate the
trial court's rulings under ORCP 32 A, and remand the
case for further proceedings.
provide the following underlying legal, factual, and
procedural background: ORS 653.26l(1)(a) authorizes BOLI to
adopt rules prescribing minimum conditions of employment,
including minimum meal periods, "as may be necessary for
the preservation of the health of employees." Pursuant
to that authority, BOLI promulgated OAR 839-020-0050, which
provides, as relevant:
"(1) The purpose of this rule is to prescribe minimum
meal periods and rest periods for the preservation of the
health of employees.
"(2)(a) Except as otherwise provided in this rule, every
employer shall provide to each employee, for each work period
of not less than six or more than eight hours, a meal period
of not less than 30 continuous minutes during which the
employee is relieved of all duties.
"(b) Except as otherwise provided in this rule, if an
employee is not relieved of all duties for 30 continuous
minutes during the meal period, the employer must pay the
employee for the entire 30-minute meal
applied to the issue here, the rule requires that, for each
work period between six and eight hours in length, an [300
Or.App. 474] employer must provide a minimum unpaid meal
period of 30 minutes. If the employer does not relieve the
employee of work for an unpaid meal period of 30 continuous
minutes, then the employer must pay the employee a penalty
wage for the entire 30-minute period.
undisputed that defendants have authorized their hourly
employees to take an unpaid 30-minute meal period. An
employee handbook advises employees that, "[i]n some
states these lunch and meal periods are mandatory and may not
be skipped even with your consent." The handbook also
explains the availability of a process for hourly employees
to report meal-period issues, and employees were required to
notify a manager or employer's human resources department
if a meal period was not provided or if the employee
performed work off the clock.
named plaintiffs and the putative class-action plaintiffs in
this case are defendants' hourly employees. As alleged by
plaintiffs, defendants' records show that, between
certain dates, defendants' hourly employees took unpaid
meal periods that were shorter than 30 minutes.
brought this wage claim under ORS 653.055, seeking
certification of a class consisting of defendants' hourly
employees, who plaintiffs allege are entitled to wages and
penalty wages under OAR 839-020-0050(2)(b) for the shortened
meal periods. The trial court initially certified the class
under ORCP 32 A. But the court then reconsidered its ruling
in response to the parties' arguments. Defendants argued
that a class action was inappropriate because the claim of
each employee was fact-dependent. See ORCP 32 A(2)
(requiring that the class have common questions of law or
fact). The view that the claims were fact-dependent derived
from defendants' understanding that, under OAR
839-020-0050(2)(a) and (b), if an employer has authorized a
30-minute meal period, no liability for wages or penalty
wages will attach for a shortened meal period, unless the
employee was forced to return to work early. Thus, defendants
contended, each employee's claim depends on the
circumstances of the shortened meal period.
Or.App. 475] Plaintiffs responded that the circumstances of
each employee's shortened meal period are not material to
the dispute. Plaintiffs' view depends on their
understanding that the requirement to pay wages under OAR
839-020-0050(2)(b) attaches if the record shows that a meal
period was shortened, regardless of the cause.
trial court agreed with defendants' interpretation and
decertified the class after concluding that a determination
of liability under OAR 839-020-0050(2Xb) would require a
fact-specific inquiry regarding the circumstances of each
employee's shortened meal period. The court also denied
plaintiffs' motion for partial summary judgment on the
issue of liability.
court subsequently denied plaintiffs' motion to recertify
the class, but authorized this interlocutory appeal, pursuant
to ORS 19.225,  to address the following question:
"Whether an employer can be found strictly liable under
OAR 839-020-0050(2) where an employee, regardless of the
circumstances, takes less than the entire duty-free 30-minute
lunch break to which the employee is otherwise
exercised our discretion to allow the interlocutory appeal to
address the trial court's question.
question presented requires an interpretation of OAR
839-020-0050. In aid of that, the parties reprise their
interpretations offered in the trial court. Plaintiffs
contend that OAR 839-020-0050(2Xb) is correctly understood to
require that, with certain exceptions not relevant here, to
[300 Or.App. 476] avoid the requirement to pay meal-period
wages, employers must not merely authorize but must actually
require that employees take a duty-free meal period for a
full 30 minutes; if, for whatever reason, an employee takes a
shorter meal period, then, pursuant to OAR
839-020-0050(2)(b), plaintiffs contend that wages must be
paid for the entire meal period. That outcome is what
defendants and the trial court have characterized as
defendants' view, the requirement in OAR
839-020-0050(2)(a) to "provide" a meal period
means, simply, that a 30-minute meal period must be made
available for use, and that employers have no duty
to enforce the use of the full 30-minute break. Further,
defendants assert that its written policies set out in the
employee handbook satisfy the requirement that it made the
requisite meal period available. Under defendants'
interpretation, OAR ...