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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20070
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I run a service business in Oregon. We repair appliances in

Customer Question

I run a service business in Oregon. We repair appliances in restaurants and in customers homes so our techs go from job site to job site and the length of each job can vary anywhere from 45 minutes to as long as 4 hours. They work alone on each job site with no co workers to relieve them for a break. In a restaurant they can not leave a peice of equipment in peices in the middle of their kitchen to go take a break. My question is in Oregon in the service industry is it legal for our techs to not get regular breaks? They always still get a lunch and we even give them a longer lunch since they do not get regular breaks. How do breaks work in a service industry like ours?
Submitted: 3 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 3 months ago.

Hello,

Thank you for the information and your question. Oregon break laws are very technical and specific and too long to reproduce here in my answer. You can see the State's discussion of the law as to meal breaks and rest breaks and some very comprehensive FAQ by going to the following link: https://www.oregon.gov/boli/ta/pages/t_faq_meal_and_rest_period_rules.aspx

But, to summarize for you a bit, prior to you reading the complete rules and FAQ, an employer must provide a 10 minute break every segment of 4 hours the employee works and cannot combine it with their unpaid 30 minute meal period. The only exceptions are if ALL of the conditions below apply:

    • The employee is 18 years of age or older;
    • The employee works less than five hours in any period of 16 continuous hours;
    • The employee is working alone;
    • The employee is employed in a retail or service establishment, i.e., a place where goods and services are sold to the general public, not for resale; and
    • The employee is allowed to leave the employee’s assigned station when the employee must use the restroom facilities.

"...insofar as feasible considering the nature and circumstances of the work, rest periods are to be taken by an employee approximately in the middle of each four hour (or major part thereof) segment..."

If the employee does not get their paid 10 minute break as set out by the law and the State regulations, then the employer carries the burden (should there be a complaint filed) to show that there would be an undue burden on the business by giving them the break at the mandated times. The law doesn't say it must be exactly in the middle of the 4 hours, but as close as possible under the circumstances. There are no exceptions, per se, other than what I mentioned about undue burden, for your particular industry.

Please feel free to ask for clarification after you have read the information at the link completely. If none is needed, then if you could let me know if I answered your question and also take a moment to leave a positive rating in the ratings box above so that the Site will give me credit for assisting you today, I would be grateful. Thank you

Customer: replied 3 months ago.
I have already been to that sight and read all all of that info. All of those conditions apply in our company. The only condition I am unsure of is: "The employee works less than five hours in any period of 16 continuous hours" could you explain what this meaning to me? Also I know we have to give at least a 30 minute lunch (unpaid) but can we chose to make that an hour lunch unpaid? (This would not be including any breaks that are given or not given, we are just curious about the lunch period) the reason we are wanting to do an hour lunch is so that our employees will work until 5pm because that is when we need them to.
Expert:  Marsha411JD replied 3 months ago.

Thank you for your reply. I don't believe that your business qualifies as a "service establishment" under the law and that is why I mentioned that you would need to use the "feasibility" issue, and undue hardship, rather than meeting "all" of the conditions listed. You can certainly ask for an advisory opinion from the State on that issue, but the "service establishment" is generally like a restaurant, salon, medical office, etc., and not a business that goes out and provides services outside of their main place of business. So, in my opinion, your business does not qualify under the rules. Again though, you would want an advisory opinion from the State, which you can get fairly easily by simply writing them.

Assuming that you did fall within the exception to the rule based on being a "service" establishment though to answer your question about the less than 5 hours in a 16 continuous hour period, that is pretty straightforward. For example, say between 7 a.m. and 10 p.m. on a particular day, as long as the employee's total hours are less than 5 hours in that 16 hour period, they would not be entitled to the 10 minute break. This again assumes that all of the other factors are met. This language is there for employees that might have split shifts, and the like.

You can indeed give your employees a longer meal break than if required by the law and it can be unpaid as long as they are completely relieved of any work duties and free to do what they want on their lunch (meaning they don't have to stay at work).