WAC 296-126-092 states in relevant part: "( 1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer."
The Washington Supreme Court issued this directive for cases that involve claims of failure to allow meal breaks: "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 a timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or that a valid waiver exists." The Court reasoned that "this should not be an onerous burden on the employer, who is already keeping track of the employee's time for payroll purposes."
I'm not sure I agree that it is going to be easy for employers to prove waiver simply because it keeps track of hours worked. Under Washington law, waiver is the intentional and voluntary relinquishment of a known right; waiver can result from an express agreement or be inferred from circumstances indicating an intent to waive. To constitute implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive; waiver will not be inferred from doubtful or ambiguous factors. This is a pretty high standard, and it is not that easy to meet this burden.
- Employers that keep track of employee time worked and have employees sign a time card, should add language to this form that states something like, "I was allowed and offered timely meal breaks and the days I did not take a meal break, I knowingly and voluntarily waived my right to a meal break."
- Employers that have employees "clock in and clock out" should require their workers to clock out for their meal break and clock back in after the break.
- Employers who do not keep track of time, or do not have employee sign time cards, should update their Employee Manuals and add language that can be used to attempt to prove waiver of meal breaks if and when they need to do so. But, even this language will not guarantee employers can meet the waiver standard.
Brady v. AutoZone Download
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