A wave of class-action employment cases is surging across Washington, including many alleging violations of the state’s meal and rest break requirements. 

Policies and practices thought to be compliant for decades no longer provide protection. Economics often make settlement the only rational option, and financial exposure is significant. 

The time for Washington’s employers to proactively evaluate their meal and rest break practices was yesterday. To minimize the threat of such litigation, employers must implement a structured, systematic approach to ensuring and recording compliant meal and rest breaks. 

A surge in filings 

I have defended a wide variety of employment claims over the past 40 years. Between 1995 and 2025, I defended two class-action wage-and-hour claims. In the last 12 months, I’ve defended five. Case filing data suggests that my experience is not unique. Ten years ago, King County reported 45 class-action wage-and-hour lawsuits — many of which were specific to the city of SeaTac’s new minimum wage. For the 12 months ending June 30, it reported approximately 250. King County is not alone; my recent cases have been filed in Walla Walla, Grant, and Snohomish counties, as well as King County. 

The new model class-action complaint employs a standard format. A former employee serves as the proposed class representative. The fact pattern is predictable: The plaintiff claims they were regularly denied meal and rest breaks, they were not provided breaks at times required by the law, and they were not paid for work before and after the recorded shift, among other things. The complaint asserts an array of claims, including violations of Washington state’s Minimum Wage Act, the Wage Payment Act, the Wage Rebate Act, the Industrial Welfare Act, and the Department of Labor & Industries’ wage-and-hour regulations. 

The common thread in these cases is the employer’s failure to require and document paid rest breaks and/or unpaid meal breaks in strict accordance with the law. Sometimes the employer’s employee handbook will even say that it's the “employee’s responsibility” to make sure they get their breaks. 

Economics favor plaintiffs 

Several facts make it economically impractical to defend these actions, even when the allegation of missed breaks is hotly disputed. The plaintiff has “free” contingent fee representation, whereas the employer must typically pay for its defense. The employee has no downside if they lose, but the employer must pay the plaintiff’s attorney fees if the action is nominally successful. The more rigorous the defense, the higher those fees will be. 

While arguments against class certification may reduce the number of claimants, they do not usually dispose of the case entirely. It's very difficult to prevail before trial — the plaintiff only needs a couple of declarations alleging that breaks were denied or noncompliant to give the court an issue of fact for trial. Damages may also be established by “just and reasonable inference.” 

Getting to trial does not ensure victory, even if you’re right — juries are not exactly bending over backward for employers of late — but even if you do prevail at trial, you will have incurred a substantial expense in defending the claim. 

On top of the economics, the law squarely favors employees. Regulations and case law require employers to keep accurate records of unpaid meal periods and to ensure those meal breaks comply with the regulations. The U.S. Supreme Court held long ago that employers cannot hide behind inadequate records as mitigating proof that employees did not work the hours they alleged. Washington has rejected arguments that employers are only required to “allow” employees to take rest and meal breaks by not standing in their way and held that employers have a duty to ensure employees take such breaks — and handbook instructions to the contrary are not helpful. 

Financial stakes of a class action 

The potential exposure in a class action alleging a breach of these duties is substantial. The law entitles an employee who goes without a required rest break to an additional 10 minutes of pay. If an employee worked more than 40 hours during the workweek, any rest break time owed must be paid at the applicable overtime rate. 

Additionally, a violation of the meal break requirement is a wage violation, entitling the employee to be paid for an extra 30 minutes on top of time worked. Accordingly, the plaintiff’s counsel in these wage-and-hour class actions will claim 30 minutes of pay for each meal break violation and 10 minutes for each undocumented rest break, then count it as overtime if hours already exceed 40 in a week. In Androckitis v. Virginia Mason Medical Center, the court sanctioned this approach. 

Multiply that time by all the employees in the class over a period of three years, and the numbers get large even before adding interest at 12%, potential double damages for “willful” violations, and plaintiff’s attorney fees. 

Protecting your business 

The lesson to be learned from all this is that an employer has an affirmative duty to maintain an adequate system for employees to record missed rest breaks. 

The Washington Supreme Court noted in its 2015 decision in Demetrio v. Sakuma Bros. Farms, “It is not enough for an employer to simply schedule time throughout the day during which an employee can take a break if he or she chooses. Instead, employers must affirmatively promote meaningful break time. A workplace culture that encourages employees to skip breaks violates (the law) because it deprives employees of the benefit of a rest break on the employer’s time.” 

I would go a step further — employers should look for workable ways to be able to prove that their break practices comply with the law. There are a number of ways to do that, but every workplace is different. It's important to get a sophisticated review of your policies and practices, then make an earnest investment in potential “suit-proofing” measures. It only takes one former employee to represent the class, and plaintiff’s lawyers are out looking for them now. 

John Nelson is a principal at Foster Garvey and a trial lawyer who represents clients in litigation involving intellectual property, contracts, real estate, employment defense, environmental law, and trespass and nuisance issues. He can be reached at [email protected].