Can work breaks be broken?

Byline: ON THE JOB by Bureau of Labor and Industries For The Register-Guard

Question: We operate a nursing home and there are times, though not often, that an urgent situation with a resident necessitates all the staff on the premises to respond. For that reason, we require many of our employees to carry a pager during their breaks, including their lunch breaks.

On those occasional situations where everyone is needed, employees are paged and we expect them to leave the break room even when they are in the middle of an unpaid lunch break. One of our new employees informed us that she did not have to wear a pager during lunch or breaks at her old job, which was also in a nursing home, and she claims that we are not allowed to require her to respond if she is on a break. Is she correct?

Answer: She is not correct if she is claiming that you are not allowed to call her away from a break, whether paid or unpaid, to respond to an emergency situation.

Oregon wage and hour rules provide that employees are entitled to a paid, 10-minute rest break for every four hours of work or "major portion thereof." This is interpreted to mean that if an employee works only two hours and one minute, the "major portion" of four hours, he is entitled to a 10-minute (or longer), paid rest break.

In addition to rest breaks, employees are entitled to a meal period, which may be unpaid (in contrast to the 10 minute rest breaks), if a work shift is six hours or longer. This meal period is to be taken between the second and fifth hours on shifts of six to seven hours, and between the third and sixth hours on shifts of more than seven hours.

The meal period may be unpaid only if the employee performs no duties. If the nature and circumstances of the work occasionally prevent relief from duty, the meal period must be paid. Factors to be considered in determining whether nature and circumstances prevent an employee from being relieved of all duty are:

Safety and health considerations; availability of personnel to provide relief; qualifications (or lack thereof) of available personnel; shutdown/start up costs of machinery in continuous operation industrial processes; and unforeseeable equipment failures, emergencies or acts of nature.

Applying the state rules to your situation, it sounds as if the nature and circumstances existing in the nursing home occasionally result in interruption to employees' meal breaks. This is acceptable as long as it does not become a routine occurrence, and as long as employees are paid for the meal break when they must return to work.

Further, employees do not need to be paid for uninterrupted meal breaks even if the employer requires employees to wear pagers to facilitate their response to emergencies, as long as the employees are paid for the meal break on those occasions when a meal period is interrupted when an employee is paged to return to work to respond to an emergency. This is assuming, of course, that the employer can demonstrate that the nature and circumstances prevented an uninterrupted meal period.

In other words, if an employee is required to wear a pager during a meal break but is not interrupted because the pager is not activated, the meal break may be unpaid.

On The Job is written by the staff of the Oregon Bureau of Labor and Industries. Contact BOLI at [phone], or BOLI, 800 N.E. Oregon St., No. 32, Portland, OR 97232.

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