No strict liability, but Wash. employees can show prima facie case with missed timely mean break
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Monday, July 10, 2017

No strict liability, but Wash. employees can show prima facie case with missed timely mean break

By Ronald Miller, J.D.

In answer to two certified questions from a federal district court concerning a regulation addressing how meal breaks should be applied, the Washington Supreme court held: (1) that an employer is not automatically liable if a meal break is missed because an employee may waive the meal break; and (2) that an employee asserting a meal break violation can establish a prima facie case by providing evidence that he or she did not receive a timely meal break. In answering the second question and interpreting the regulation governing meal breaks, WAC 296-126-092, the Washington high court opted for greater protection for workers (Brady v. Autozone Stores, Inc., June 29, 2017, Madsen, B.).

An Autozone employee filed a class action in state court seeking unpaid wages for meal breaks that the employer allegedly withheld from employees. In response, the employer removed the action to federal court. Later, the employee moved to certify a class action concerning meal and rest breaks under Washington law. After reviewing the Washington Administrative Code; Administrative Policy ES.C6., and decisions from various courts, the district court concluded that employers met its obligation under the law if they ensure that employees have the opportunity for a meaningful meal break, free from coercion or any other impediment.

The district court expressly rejected the notion that Washington has adopted a strict liability approach to the taking of meal breaks. In doing so, it found that class certification would be inappropriate considering the unique fact scenarios associated with each potential violation of the meal break statute. Accordingly, the court denied the employee’s motion for class certification. Thereafter, it denied the employee’s attempt to seek review of this denial.

Certified questions. Subsequently, the employee filed a motion in the district court seeking to certify two questions to the Washington Supreme Court. The district court certified the following two questions: (1) is an employer strictly liable under WAC 296-126-092; and (2) if the employer is not strictly liable, does the employee carry the burden to prove that his employer did not permit the employee an opportunity for a meaningful meal break as required by WAC 296-126-092?

Missed meal break. Under the relevant regulation, WAC 296-126-092, employees shall be allowed a meal period of at least 30 minutes. Moreover, the meal period is on the employer’s time if the employee is required to remain on duty on the premises or at a prescribed worksite. However, the policy statement addressing how the regulation is to be applied provides that “employees may choose to waive the meal period requirements.” It is recommended, but not required, that the waiver be obtained in writing. With respect to the first question, the Washington high court found that the presence of the waiver option compelled a finding that an employer is not automatically liable if a meal break is missed.

Burden of proof. The Washington court next turned to consider the second question. Relying on Pellino v. Brink’s, Inc., the employee argued that employers have an affirmative duty to ensure their employees take their meal breaks. Further, he argued that while meal periods may be waived, the waiver must be knowing and voluntary, and waiver is an “affirmative defense” on which the employer bears the burden of proof. In contrast, the employer argued that the district court applied the correct standard, relying in part on the California Supreme Court’s decision in Brinker Restaurant Corp v. Superior Court of San Diego County.

Here, the Washington high court found that Pellino provided the better approach. Because Pellino provides greater protection for workers, it is more in tune with other Washington case law addressing employee rights. Accordingly, the court concluded 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 timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or a valid waiver existed.

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