This article was originally published as one of Miller Nash Graham & Dunn’s News You Can Use e-flashes, our occasional e-mail newsletter focusing on the latest developments in employment law and labor relations. From The Ground Up editor George Kaai felt that this information would be useful to those in the development industry. If you are interested in receiving periodic employment law updates, please notify us at clientservices@millernash.com.

Yes, nonexempt employees in Washington may voluntarily waive their right to take a 30-minute unpaid meal break.

It has been an open question whether employees could waive their 30-minute meal break mandated by state regulations. The Washington Department of Labor & Industries (“DLI”) previously provided a guidance stating that meal breaks could be waived, but that interpretation appeared to conflict with the mandatory language of the regulation. Until recently, we did not have court approval of DLI’s guidance.

That uncertain situation changed on June 29, 2017, when the Washington Supreme Court issued its decision in Brady v. AutoZone, articulating two key holdings. First, the Court held that employers are not strictly liable for damages if an employee does not actually take a meal break that complies with all the requirements of the regulation. Second, the Court held that if an employee submitted evidence that he did not take a regulation-compliant meal break, the burden shifted to the employer to prove that either the employee had taken the break or had voluntarily waived his right to take the break as required by the regulation.

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