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Overtime Ruling by Washington Supreme Court May Require Review of Pay Policies

Overtime Ruling by Washington Supreme Court May Require Review of Pay Policies
  • January 6, 2003

Earlier this year, the Washington Supreme Court issued an important ruling for employers with non-exempt employees who work overtime. In Wingert v. Yellow Freight System, over 80 employees sued their employer for refusing to give them break periods during the first two hours of overtime in violation of the Washington wage/hour law.

The Washington Administrative Code provision at issue in this case was WAC 296-126- 092(4): 'Employees shall be allowed a rest period of not less than 10 minutes, on the employer's time, for each 4 hours of working time. Rest periods shall be scheduled as near as possible to the midpoint of the work period. No employee shall be required to work more than three hours without a rest period.'

Under the collective bargaining agreement, employees worked two hours and then took a 15- minute break, worked an hour and 45 minutes and then took a 30-minute unpaid lunch, worked two hours and took a 15-minute break, and ended with an hour and 45 minutes of work. However, many employees regularly worked overtime. The agreement provided that employees who worked overtime were not entitled to a third break until they had worked two hours of overtime. This overtime provision resulted in employees working more than three hours without a rest period.

The Washington Supreme Court held that a collective bargaining agreement cannot abrogate the minimum rest break requirement. The court reasoned that the administrative provision does not distinguish between regular hours worked and overtime; it encompasses all hours worked in a day. As such, an employer must provide a 10-minute break every three hours regardless of whether that time is regular time or overtime. An employer cannot bargain that right away.

The repercussions can be far reaching. In addition, the court also held that employees have a private right of action for violations of the WAC 296-126-092(4) rest period provision. A violation of this provision can be considered "both a condition of labor violation and a wage violation," and an employee will be entitled to additional pay for rest period times, presumably at the overtime rate. An employer sued for such a violation could be liable for twice the amount of the wages unlawfully withheld, together with costs of suit and attorneys fees. Employees have three years in which to sue for rest period pay.

Employers with policies or collective bargaining agreements in violation of WAC 296-126- 092(4) need to consider changing those policies. As an example, Employer X has a handbook provision which reads as follows: 'For each 8-hour day, an employee shall receive two 15 minute paid rest periods and an unpaid one-half hour lunch period. If an employee works more than 8 hours, the employee shall receive an additional paid rest period of 15 minutes for each two hours worked.' Many provisions like the one above do not necessarily violate WAC 296-126- 092(4). However, because this provision does not state when employees should take their breaks, it leaves room for violations.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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