Summer is almost here, and for many Oregon employers that means hiring a wave of seasonal workers. The time of onboarding new employees, especially younger ones or part-time workers, is an excellent opportunity for employers to review their practices and ensure compliance regarding the various breaks provided under Oregon law. Here is a discussion of rules that apply to private employers’ nonunion employees.

Rest breaks (paid)

Nonexempt employees are entitled to paid rest breaks of least 10 minutes for each work segment of four hours or “major part thereof” (meaning any segment greater than two hours worked). Minors get 15 minutes. Rest breaks are to be taken as close as possible to the middle of each four-hour work segment. Rest breaks cannot be used to shorten a work period or combined to lengthen breaks.

For example, Luisa cannot take her rest break at the very end of the day and leave 10 minutes early, nor can an employer allow Luisa to take 10 extra minutes at lunch and consider that additional time as her break — even if she is the one making the request. Employees who work more than six hours are entitled to two rest breaks, and those who work more than 10 hours are entitled to additional breaks.

There is only one exception to Oregon’s rest break rules that applies to employees who work for a retail or service establishment. Such an employer is not required to provide a rest break to an employee who is at least 18 years old, working alone, working for less than five hours in any continuous 16-hour period, and is allowed to use the restroom when necessary.

Meal breaks (unpaid)

Nonexempt employees who work six hours or more must be given an unpaid meal break of not less than 30 minutes. Generally, meal breaks should be taken between the second and fifth hour of work. Employees who work more than seven hours should take their meal break between the third and sixth hour of work. Employees who work 14 hours or more are entitled to a second meal break. Employees must be completely relieved of all duties during meal breaks. If — for any reason — the employee is not completely relieved of their duties for the full meal break, the employee must be paid for the entire 30-minute period.

For example, if Bridget is eating lunch in the break room, and her supervisor pops in to ask a work-related question that Bridget answers, she is no longer fully relieved of her duties. In this situation, Bridget must be paid for her entire 30-minute meal period.

One exception to Oregon’s meal break rules is that some tipped food and beverage servers are allowed to voluntarily waive their meal period. To be eligible, the employee must be at least 18 years of age, employed to serve food or beverages, and receive and report tips to their employer.

The employee must voluntarily request to waive the meal period. However, newly hired employees cannot request to waive meal periods until they have worked for the employer for at least seven days. The request to waive the meal period must be in writing on a form provided by the Oregon Bureau of Labor & Industries (BOLI) and signed and dated by the employer and employee. The meal waiver form can be found on BOLI’s website, along with the full list of conditions for a valid meal waiver, and information on the other three exceptions to the meal break rules.

Lactation breaks (paid or unpaid)

In addition to meal and rest breaks, nonexempt employees are entitled to additional rest breaks for the expression of milk (“lactation break”) for children up to 18 months of age. The frequency and duration is not defined. Rather, employers should provide employees with a reasonable lactation break each time the employee requests to do so. Lactation breaks are only required to be paid when they overlap with another paid break.

For example, if Haley takes her paid rest breaks at 10 a.m. and 3 p.m., but she takes a lactation break for 15 minutes at 11:30 a.m., that time is not compensable. However, if Haley takes her paid rest breaks as usual but uses that time to express milk, then that time is compensable. Employers are allowed to let employees make up any unpaid time taken to express milk, but employees are not required to do so, and employers cannot require employees to substitute paid time off for unpaid lactation breaks.

Final note

Oregon law regarding employee meal and rest breaks is strict. Employers should ensure not only that employees are informed of their right to breaks but also that they take their required breaks. Clear policies and supervisor training can help reduce compliance risks.

Missy Oakley is an attorney with Barran Liebman LLP. She represents employers in a variety of matters. Contact her at 503-276-2122 or moakley@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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The shortcomings of underperforming employees may show up as missed deadlines, lack of initiative, chronic lateness, or poor communication. While these behaviors are not necessarily egregious policy violations, they still carry consequences for employers. Underperformance can drain team productivity, lower morale, and signal to other employees that mediocrity is acceptable. It can also jeopardize business outcomes and drive away high-performing employees. The key for employers is knowing when to act and how to do so without inviting legal trouble.

Progressive discipline: helpful, but not always necessary

Many employers rely on progressive discipline to guide their actions prior to termination. An example of progressive discipline might be verbal warning, followed by written warning, a final warning, and finally termination. Progressive discipline can be helpful, especially when applied consistently. Employees often perceive the structured process as fairer and more transparent, while it helps employers establish a paper trail.

However, progressive discipline is not legally required in most at-will employment situations and is not always the best fit. Progressive discipline is also time-consuming, which can allow the workplace problems to fester. Employers may benefit from adopting disciplinary policies that allow for more flexibility.

Protected activities: timing is everything

Another consideration is that the longer an underperformer stays around, the greater the chance that the employee’s performance will overlap with legally protected activity. This overlap can complicate an employer’s decision to terminate.

Protected activities refer to certain actions that employees can take without fear of retaliation from their employer. For example, reporting discrimination or harassment, requesting disability accommodations, taking protected leave (e.g., FMLA, OFLA, Paid Leave Oregon, ADA, or workers’ compensation), discussing wages, working conditions, or the company’s compliance with laws or other regulations (such as OSHA compliance), or participating in an internal workplace investigation.

Terminating an employee shortly after the person has engaged in protected activity, even for lawful reasons, can trigger retaliation claims. Timing alone is enough to raise suspicion that the employer acted unlawfully.

Consider this hypothetical: Late Larry has arrived late four times in the past two months. On Monday, his supervisor gives him a verbal warning for his tardiness. On Wednesday, Larry is late again, and his supervisor gives him a written warning. On Friday, he is late once more, and his supervisor is ready to let him go; however, Larry also goes to Human Resources that day to raise concerns about his wages (a protected activity). While the supervisor may have already made up his mind to terminate Larry for his tardiness, the timing of that decision just made the case a little murkier.

When considering termination after a protected activity, employers should act with caution but not feel paralyzed. Each termination is different and requires a fact-specific analysis.

Documentation: employers’ strongest legal defense

As with all employee matters, documentation is essential, but especially so when it comes to employee termination. In the event a termination results in a lawsuit or administrative charge, documentation can help show that the employer had concerns about the employee’s performance long before the employee engaged in protected activity. In Late Larry’s case, documentation of his tardiness and prior warnings would help demonstrate that his termination was based on legitimate, non-retaliatory reasons, unrelated to his wage complaint.

Courts and government agencies often rely heavily on written records when evaluating whether an employer acted lawfully. Documentation also helps defend against discrimination claims by showing that the employer treats employees fairly and consistently. Finally, from a practical standpoint, documentation creates a reliable record of events or details that can be difficult to recall when a lawsuit or administrative charge is filed months or even years later.

Employer takeaways

If left unchecked, underperformers can quietly erode a company’s culture, morale, and results. By taking thoughtful action, documenting consistently, and applying policies uniformly, employers can make termination decisions that are lawful, defensible, and necessary for the health of their business.

To learn more about the most cutting-edge employment law topics, register for Barran Liebman’s annual Employment, Labor, Benefits & Higher Education law seminar at www.barran.com.

Missy Oakley is an attorney with Barran Liebman LLP. She represents employers in a variety of matters. Contact her at 503-276-2122 or moakley@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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