Over the past several years, Washington courts have consistently reinforced the importance of ensuring employees receive the appropriate meal and rest breaks.
Washington Administrative Code section 296-126-092 states that employees must be allowed at least a 30-minute unpaid meal period commencing “no less than two hours nor more than five hours from the beginning of an employee’s shift.”
While this rule seems straightforward enough, some employers have trouble providing the requisite meal periods.
The latest example comes from the Hill v. Garda CL Northwest case, which was decided by the Washington Supreme Court on August 23, 2018.
Garda operates an armored transportation service delivering currency and other valuables throughout Washington State. Typically, two Garda employees, a driver and a messenger, guard these valuables during transport.
To ensure the safety of those employees and their cargo, Garda requires its drivers and messengers to remain vigilant at all times — even when they take rest breaks and meal periods.
Former Garda employees filed suit and argued that Garda’s policy of prohibiting drivers and messengers from taking “vigilance-free” rest breaks and meal periods violated WAC 296-126-092 (guaranteeing workers’ rest breaks and meal periods) and RCW 49.46.020 of the MWA (entitling employees to compensation for all hours worked). They requested compensatory damages under RCW 49.46.040, exemplary double damages under RCW 49.52.070, and prejudgment interest under RCW 19.52.010.
The trial court ruled that Washington law granted the employees the right to vigilance-free rest breaks and meal periods, and that this was made especially clear by the 2011 decision in Pellino v. Brink’s Inc.
In Pellino, the Washington Supreme Court held that a similar constant vigilance policy used by one of Garda’s competitors, Brink’s Inc., violated Washington law. Thus, the trial court in Garda granted summary judgment to the employees on the issue of liability. A bench trial followed on the issue of damages and double damages.
The employees sought double damages pursuant to RCW 49.52.050 and .070. Those statutes say that an employer who intentionally underpays its employees must pay exemplary double damages.
Garda opposed double damages. Garda argued that there was a bona fide dispute over the workers’ entitlement to vigilance-free rest breaks and meal periods and that such a dispute constitutes a defense to double damages. Garda also argued that even if there was no bona fide dispute, the workers knowingly submitted to the violation — another statutory defense to double damages.
The trial court rejected Garda’s arguments and granted the employees prejudgment interest and double damages for their missed rest breaks and meal periods.
Garda appealed several issues concerning liability, along with the employees’ recovery of both prejudgment interest and double damages for the same violations.
The Court of Appeals affirmed the trial court’s rulings on liability, but it reversed the trial court’s award of double damages for meal period violations.
Garda petitioned the Supreme Court for review and the employees cross-petitioned. The Court denied Garda’s petition, but granted the employees’ cross-petition on the issues of double damages and prejudgment interest. Thus, the only question before the Court solely related to Garda’s liability for double exemplary damages under RCW 49.52.050 and .070.
The standard for proving willfulness is low — Washington cases hold that an employer’s failure to pay can be deemed willful, unless it was a result of “carelessness or error.” But an employer can defeat a showing of willful deprivation of wages if it can show there was a “bona fide” dispute about whether all or part of the wages were really due.
In this case, the Court held there was no bona fide dispute about whether the employees waived their right to be paid for an on duty meal period. Indeed, even Garda acknowledged that the employees retained the right to a paid, on duty meal period. Instead, Garda argued that the employees waived their right to off duty meal periods and that there was no wage violation because the employees were paid for their on duty meal breaks.
Garda also argued that because the employees were paid for a full day, including for eating while working, they were paid as required by WAC 296-126-092.
The Supreme Court disagreed and affirmed the trial court’s ruling against Garda. The Court reinstated the award of double damages finding Garda had “willfully violated” state law by not providing vigilance-free meal breaks for its employees.
The Court held that an “on duty” meal period is one during which the employee is relieved of all work duties — the employee need only remain “on the premises or at a prescribed work site in the interest of the employer.”
Additionally, the Court found that the specific language of the employees’ collective bargaining agreements (“CBAs”) did not clearly waive an employee’s entitlement to “on duty” meal periods, which was the right the employees sought to enforce with their lawsuit.
The Court found Garda’s actions were also “willful” because the employees clearly maintained their right to a paid “on duty” meal period in their CBAs. Thus, even though Garda paid the employees for their meal periods, Garda was still liable for double damages because the Court held the employees were not provided a vigilance-free unpaid meal break.
The Court reaffirmed the award of double exemplary damages and prejudgment interest. The Court pointed out that the remedies of double damages and prejudgment interest serve two different purposes. Double damages are a penalty to deter employers from underpaying its employees, while prejudgment interest is designed to repay an employee for the ‘“use value’” of the money that the employee never received.
Thus, if an employee establishes a valid wage violation, the employee can recover attorneys’ fees, double damages, and prejudgment interest.
This case strongly reinforces an employee’s right to a vigilance-free, unpaid meal period. Thus, employers should avoid allowing employees to just work through their meal periods. If an employee wants to waive an unpaid meal period, then employers should have the employee sign a written waiver making such request. One caution — even if an employee signs a waiver, an employee can revoke the waiver at any time. The alternative is to just require all eligible employees to take a 30-minute unpaid meal break.
As many of you readers know, I have been with the law firm of Ogden Murphy Wallace for over 30 years providing primarily management side employment and labor law advice. This is likely my final article for the Wenatchee Valley Business World, but if you need legal advice, contact Erin McCool or me at 662-1954.