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Background: The Department of Labor & Industries (L&I) has adopted separate regulations applicable to agricultural and non-agricultural labor. Regulations related to agricultural labor are in WAC 296-131, while regulations for non-agricultural labor are in WAC 296-126. See below for more details about these regulations.
Meal Periods: Employees are entitled to a 30-minute meal period when working at least five consecutive hours. The 30-minute meal period should begin no less than two hours, and not more than five hours, from the beginning of the shift. Employees working three or more hours longer than a normal work day (eight hours) must be allowed another 30-minute meal period during the overtime period. Meal periods are on the employee’s time and do not need to be paid by the employer.
Unlike non-agricultural employees, an agricultural employee likely cannot waive the right to a meal period. This stipulation is due to the differing language in the non-agricultural regulation. The best practice is to require all employees to take and record meal periods.
Rest Periods: Employees are entitled to a 10-minute rest period, on the employer’s time, for each four hours of work time. “On the employer’s time” means that the employee must be paid for the 10-minute rest period. Rest period requirements apply to overtime periods as well.
The agricultural regulation does not specify when the rest period must be scheduled, as long as it occurs in each four-hour period of work. A full 10-minute rest period is required.
Non-agricultural employers need not schedule rest periods when the nature of the work allows for intermittent rest periods equivalent to 10 minutes for each four-hour work period. However, the exception is omitted from the agricultural regulation. So regardless of your wishes or your employees’ desires, intermittent breaks do not apply to agricultural labor and are not allowed in agriculture.
Rest periods cannot be waived by employees and cannot be combined into one 20-minute break. The law does not allow for combining rest and/or meal periods.
Employers cannot require employees to use the restroom only during the rest periods. The Washington Industrial Safety & Health Act (RCW 49.17) requires that employers provide employees with reasonable access to restroom facilities. Such bathroom breaks are for safety and health reasons. Restricting restroom access to meal and/or rest periods would be viewed as interfering with both access to restrooms and the right to meal and rest periods. Though not required by law, we recommend scheduling a 10-minute rest break toward the middle of the 4-hour work period for worker health and safety reasons.
What consequences do I face if I don’t follow the law? Costly wage claims are possible if missed meal periods or rest breaks result in unpaid work time. Washington farmers have faced administrative enforcement actions and lawsuits in recent years for failing to keep records of employee meal and rest periods, failing to ensure employees are taking their breaks, and/or for failing to pay for rest periods.
What practices should I follow? The difficulty that all employers face is proving that the employees received the rest breaks to which they are entitled. Employers need to collect and retain documentation that is sufficient to defend themselves in an investigation or litigation. Traditionally, meal periods are recorded on time records, while rest periods may not be.
Employers must ensure breaks and meal periods are taken. Have a written policy on this topic and train your supervisors to follow this policy. Communicate clearly to employees that breaks and meal periods are mandatory. This means no adding breaks to lunch and no forfeiting breaks or lunch to arrive late or leave early.
Employers should document meal and rest periods. Record the rest breaks on the time cards or, at the very least, add language to the time card above the signature of the employee that says, “I certify that I have received all rest breaks to which I am entitled during this period.” Keep time cards, signed weekly or monthly statements, and supervisor logs. If an employee misses a break or meal period, document it and the reason why.
What laws, rules, and policies apply to agriculture? The rules related to meal and rest periods for agricultural labor are below. The Washington State Department of Labor & Industries has compiled pertinent laws and rules at the following webpage: http://www.lni.wa.gov/WorkplaceRights/Agriculture/Breaks/default.asp.
WAC 296-131-020 is silent regarding intermittent or “mini” breaks. The position of the Washington State Department of Labor & Industries is that agricultural workers must be given a full, uninterrupted 10-minute rest period in each 4-hour period of work on the employer’s time.
This information was included in L&I’s new Administrative Policy ES.C.6.2 Meal and Rest Periods for Agricultural Workers. That policy can be found here: http://www.lni.wa.gov/WorkplaceRights/files/policies/esc62.pdf.
RCW 50.04.150 – Employment—Agricultural labor.
Except as otherwise provided in RCW 50.04.155, the term “employment” shall not include service performed in agricultural labor by individuals who are enrolled as students and regularly attending classes, or are between two successive academic years or terms, at an elementary school, a secondary school, or an institution of higher education as defined in RCW 50.44.037 and in the case of corporate farms not covered under RCW 50.04.155, the provisions regarding family employment in RCW 50.04.180 shall apply.
Agricultural labor is defined as services performed:
(1) On a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wild life, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment; or
(2) In packing, packaging, grading, storing, or delivering to storage, or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations. The exclusions from the term “employment” provided in this paragraph shall not be deemed to be applicable with respect to commercial packing houses, commercial storage establishments, commercial canning, commercial freezing, or any other commercial processing or with respect to services performed in connection with the cultivation, raising, harvesting and processing of oysters or raising and harvesting of mushrooms or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
WAC 296-131-001 – Applicability.
These standards, adopted pursuant to sections 83 through 86, chapter 380, Laws of 1989, shall apply to persons employed in agricultural labor as defined in RCW 50.04.150 and WAC 296-131-005. The standards in this chapter beginning at WAC 296-131-100 shall apply only to minors employed in agricultural labor. The standards in this chapter do not apply to the immediate family members of the officers of any business engaged in agricultural production of crops or livestock.
[Statutory Authority: RCW 49.30.030. WSR 90-14-038, § 296-131-001, filed 6/29/90, effective 11/1/90. Statutory Authority: RCW 43.22.270, 1989 c 380 and chapter 49.46 RCW. WSR 89-22-015 (Order 89-15), § 296-131-001, filed 10/24/89, effective 11/24/89.]
WAC 296-131-020 – Meals and rest periods.
(1) Every employee employed more than five hours shall receive a meal period of at least thirty minutes. Employees working eleven or more hours in a day shall be allowed at least one additional thirty-minute meal period.
(2) Every employee shall be allowed a rest period of at least ten minutes, on the employer’s time, in each four-hour period of employment. For purposes of computing the minimum wage on a piecework basis, the time allotted an employee for rest periods shall be included in the number of hours for which the minimum wage must be paid.
[Statutory Authority: RCW 49.30.030. WSR 90-14-037, § 296-131-020, filed 6/29/90, effective 8/1/90.]
What laws, rules, and policies DO NOT apply to agriculture? Some resources cite WAC 296-126-092 as evidence that agricultural employers can provide intermittent or “mini” rest breaks. This WAC is promulgated under Chapter 49.12 RCW, the Industrial Welfare Act, and does not apply to agricultural labor. See RCW 49.12.185 below. Also, WAC 296-126-001(2)(c) states, “These rules do not apply to … agricultural labor as defined in RCW 50.04.150.” The meal and rest breaks rules for agriculture are found in WAC 296-131-020.
RCW 49.12.185 – Exemptions from chapter.
Chapter 16, Laws of 1973 2nd ex. sess. shall not apply to newspaper vendors or carriers and domestic or casual labor in or about private residences and agricultural labor as defined in RCW 50.04.150, as now or hereafter amended.
WAC 296-126-001 – Applicability.
(1) These rules apply to employers and employees in the state as defined in RCW 49.12.005 (3) and (4).
(2) These rules do not apply to:
(a) Newspaper vendors or carriers;
(b) Domestic or casual labor in or about private residences;
(c) Agricultural labor as defined in RCW 50.04.150; or
(d) Sheltered workshops.
Note 2: For a variance from the rules under this chapter, see WAC 296-126-130.
[Statutory Authority: Chapter 49.12 RCW. WSR 10-04-092, § 296-126-001, filed 2/2/10, effective 3/15/10; Order 74-9, § 296-126-001, filed 3/13/74, effective 4/15/74.]
Additional Information or Questions: Contact Scott Dilley at email@example.com or 360.581.8153 for more information.