Full Opinion (html_with_citations)

                                       471

 Argued and submitted December 10, 2018, rulings under ORCP 32 A vacated
                    and remanded November 14, 2019


                          Renee MAZA,
             Jodi Real, and Steve Price, individually
              and on behalf of all similarly situated,
                      Plaintiffs-Appellants,
                                 v.
               WATERFORD OPERATIONS, LLC
               and Coos Bay Rehabilitation, LLC,
               domestic limited liability company,
                    Defendants-Respondents.
                  Jackson County Circuit Court
                      14CV03147; A165030
455 P3d 569

    In this putative class-action claim arising under ORS 653.055, plaintiffs
sought wages and penalty wages for meal periods that were shorter than 30 min-
utes, contending that the 30-minute meal period required by OAR 839-020-0050,
an administrative rule of the Bureau of Labor and Industries, is mandatory and
that, if it is not taken, the employer must pay wages for the full 30-minute meal
period. Employer contended that, under the administrative rule, an employer
need only make available a 30-minute meal period, but is not required to moni-
tor whether employees take the full 30-minute meal period or pay wages for the
meal period if the employee voluntarily chooses not to take the full 30 minutes.
The trial court agreed with employer’s interpretation and, based on that inter-
pretation declined to certify the class under ORCP 32 A, because a claim would
be factually dependent on the reason the employee did not take the full 30-min-
ute meal period. But, pursuant to ORS 19.225, the trial court allowed plaintiffs’
interlocutory appeal seeking an interpretation of OAR 839-020-0050. Held: The
minimum meal period prescribed by OAR 839-020-0050 is mandatory and, in
the absence of a waiver of the meal period as provided in OAR 839-020-0050(8),
an employer who is not exempt must require a 30-minute meal period without
work duties and pay wages to an employee who is not relieved of duties during the
entirety of the required minimum 30-minute meal period. The court’s conclusion
requires the trial court to reconsider its rulings regarding the certification of a
class under ORCP 32 A.
    Rulings under ORCP 32 A vacated and remanded.



    Timothy C. Gerking, Judge.
   Lisa T. Hunt argued the cause for appellants. Also on
the briefs were Law Office of Lisa T. Hunt, LLC; David A.
Schuck and Schuck Law LLC.
472                    Maza v. Waterford Operations, LLC

   William E. Gaar argued the cause for respondents. Also
on the brief were Jillian Pollock and Buckley Law, P.C.
   Noah T. Barish and McKanna Bishop Joffe, LLP, filed
the brief amicus curiae for Oregon AFL-CIO.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Sharia Mayfield, Assistant Attorney
General, filed the brief amicus curiae for Bureau of Labor
and Industries.
  Thomas W. Sondag, Paul M. Ostroff, Peter D. Hawkes,
and Lane Powell PC filed the brief amicus curiae for Health
Care Association and Oregon Business & Industry.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
  TOOKEY, J.
  Rulings under ORCP 32 A vacated and remanded.
Cite as
300 Or App 471
 (2019)                                       473

          TOOKEY, J.
          This putative class-action wage claim arises under
ORS 653.055, providing for the liability of an employer “who
pays an employee less than the wages to which the employee
is entitled,” and OAR 839-020-0050, an administrative rule
of the Commissioner of the Bureau of Labor and Industries
(BOLI), describing when employees must be paid for other-
wise unpaid meal periods. Plaintiffs sought to certify a class
of plaintiffs who they alleged had not been paid wages for
meal periods under OAR 839-020-0050. The trial court
declined to certify the class under ORCP 32 A. But, pur-
suant to ORS 19.225, the trial court has allowed plaintiffs’
interlocutory appeal seeking an interpretation of OAR 839-
020-0050. We provide that interpretation, vacate the trial
court’s rulings under ORCP 32 A, and remand the case for
further proceedings.
        We provide the following underlying legal, factual,
and procedural background: ORS 653.261(1)(a) authorizes
BOLI to adopt rules prescribing minimum conditions of
employment, including minimum meal periods, “as may be
necessary for the preservation of the health of employees.”
Pursuant to that authority, BOLI promulgated OAR 839-
020-0050, which provides, as relevant:
      “(1) The purpose of this rule is to prescribe minimum
   meal periods and rest periods for the preservation of the
   health of employees.
      “(2)(a) Except as otherwise provided in this rule, every
   employer shall provide to each employee, for each work
   period of not less than six or more than eight hours, a meal
   period of not less than 30 continuous minutes during which
   the employee is relieved of all duties.
      “(b) Except as otherwise provided in this rule, if an
   employee is not relieved of all duties for 30 continuous min-
   utes during the meal period, the employer must pay the
   employee for the entire 30-minute meal period.”1
As applied to the issue here, the rule requires that, for
each work period between six and eight hours in length, an

    1
      We provide the full text of OAR 839-020-0050 as an appendix to this
opinion.
474                         Maza v. Waterford Operations, LLC

employer must provide a minimum unpaid meal period of
30 minutes.2 If the employer does not relieve the employee
of work for an unpaid meal period of 30 continuous minutes,
then the employer must pay the employee a penalty wage for
the entire 30-minute period.
        It is undisputed that defendants have authorized
their hourly employees to take an unpaid 30-minute meal
period. An employee handbook advises employees that, “[i]n
some states these lunch and meal periods are mandatory
and may not be skipped even with your consent.” The hand-
book also explains the availability of a process for hourly
employees to report meal-period issues, and employees were
required to notify a manager or employer’s human resources
department if a meal period was not provided or if the
employee performed work off the clock.
         The named plaintiffs and the putative class-action
plaintiffs in this case are defendants’ hourly employees. As
alleged by plaintiffs, defendants’ records show that, between
certain dates, defendants’ hourly employees took unpaid
meal periods that were shorter than 30 minutes.
         Plaintiffs brought this wage claim under ORS
653.055, seeking certification of a class consisting of defen-
dants’ hourly employees, who plaintiffs allege are entitled to
wages and penalty wages under OAR 839-020-0050(2)(b) for
the shortened meal periods. The trial court initially certified
the class under ORCP 32 A. But the court then reconsidered
its ruling in response to the parties’ arguments. Defendants
argued that a class action was inappropriate because the
claim of each employee was fact-dependent. See ORCP 32
A(2) (requiring that the class have common questions of
law or fact). The view that the claims were fact-dependent
derived from defendants’ understanding that, under OAR
839-020-0050(2)(a) and (b), if an employer has authorized
a 30-minute meal period, no liability for wages or penalty
wages will attach for a shortened meal period, unless the
employee was forced to return to work early. Thus, defen-
dants contended, each employee’s claim depends on the cir-
cumstances of the shortened meal period.
    2
      There are exemptions from the meal-period requirement that are not
asserted to be applicable here. OAR 839-020-0050(3).
Cite as
300 Or App 471
 (2019)                                               475

        Plaintiffs responded that the circumstances of each
employee’s shortened meal period are not material to the
dispute. Plaintiffs’ view depends on their understanding
that the requirement to pay wages under OAR 839-020-
0050(2)(b) attaches if the record shows that a meal period
was shortened, regardless of the cause.
        The trial court agreed with defendants’ interpreta-
tion and decertified the class after concluding that a deter-
mination of liability under OAR 839-020-0050(2)(b) would
require a fact-specific inquiry regarding the circumstances
of each employee’s shortened meal period. The court also
denied plaintiffs’ motion for partial summary judgment on
the issue of liability.
         The court subsequently denied plaintiffs’ motion to
recertify the class, but authorized this interlocutory appeal,
pursuant to ORS 19.225,3 to address the following question:
   “Whether an employer can be found strictly liable under
   OAR 839-020-0050(2) where an employee, regardless of
   the circumstances, takes less than the entire duty-free
   30-minute lunch break to which the employee is otherwise
   entitled?”
We have exercised our discretion to allow the interlocutory
appeal to address the trial court’s question.
         The question presented requires an interpretation
of OAR 839-020-0050. In aid of that, the parties reprise
their interpretations offered in the trial court. Plaintiffs con-
tend that OAR 839-020-0050(2)(b) is correctly understood to
require that, with certain exceptions not relevant here, to
    3
      ORS 19.225 allows an interlocutory appeal in a case brought as a class
action under ORCP 32, even when the court has not yet decided that the action
shall be maintained as a class action. The statute provides:
       “When a circuit court judge, in making in a class action under ORCP 32
   an order not otherwise appealable, is of the opinion that such order involves a
   controlling question of law as to which there is substantial ground for differ-
   ence of opinion and that an immediate appeal from the order may materially
   advance the ultimate termination of the litigation, the judge shall so state
   in writing in such order. The Court of Appeals may thereupon, in its discre-
   tion, permit an appeal to be taken from such order to the Court of Appeals if
   application is made to the court within 10 days after the entry of the order.
   Application for such an appeal shall not stay proceedings in the circuit court
   unless the circuit court judge or the Court of Appeals or a judge thereof shall
   so order.”
476                           Maza v. Waterford Operations, LLC

avoid the requirement to pay meal-period wages, employers
must not merely authorize but must actually require that
employees take a duty-free meal period for a full 30 min-
utes; if, for whatever reason, an employee takes a shorter
meal period, then, pursuant to OAR 839-020-0050(2)(b),
plaintiffs contend that wages must be paid for the entire
meal period. That outcome is what defendants and the trial
court have characterized as “strict liability.” 4
         In defendants’ view, the requirement in OAR 839-
020-0050(2)(a) to “provide” a meal period means, simply,
that a 30-minute meal period must be made available for
use, and that employers have no duty to enforce the use of
the full 30-minute break. Further, defendants assert that
its written policies set out in the employee handbook sat-
isfy the requirement that it made the requisite meal period
available. Under defendants’ interpretation, OAR 839-020-
0050(2)(b) does not impose liability for wages when an
employee voluntarily returns to work before the 30 minutes
have passed.5
         In interpreting an administrative rule, we apply
the same general principles applicable to an interpretation
of statutes to determine the intention of the administrative
agency that adopted the rule, in this case, BOLI. Marshall’s
Towing v. Department of State Police,
339 Or 54, 62
,
116 P3d 873
 (2005); see Perlenfein and Perlenfein,
316 Or 16, 20
,
848 P2d 604
 (1993) (applying principles). We begin our analysis
with the relevant statutory and administrative texts and
contexts. Marshall’s Towing,
339 Or at 62
. As noted, the
statutory authorization for OAR 839-020-0050(2)(a) is found
in ORS 653.261(1)(a), which provides:
       “The Commissioner of the Bureau of Labor and Indus-
   tries may adopt rules prescribing such minimum conditions
   of employment, excluding minimum wages, in any occupa-
   tion as may be necessary for the preservation of the health
   of employees. The rules may include, but are not limited to,
   minimum meal periods[.]”

     4
       Two amici curiae, BOLI and the Oregon AFL-CIO, have provided briefs
supporting plaintiffs’ interpretation.
     5
       The Oregon Health Care Association and Oregon Business & Industry have
filed an amicus curiae brief supporting defendants’ interpretation.
Cite as
300 Or App 471
 (2019)                               477

(Emphases added.) The statutory text authorizes the adop-
tion of rules prescribing minimum conditions of employ-
ment, including minimum meal periods. In adopting OAR
839-020-0050, BOLI mirrored the text of ORS 653.261(1)(a)
and stated that the purpose of the rule “is to prescribe min-
imum meal periods * * * for the preservation of the health
of employees.” OAR 839-020-0050(1) (emphasis added).
OAR 839-020-0050(2)(a) then states that, with exceptions
not applicable here, “every employer shall provide * * * a
meal period of not less than 30 minutes during which the
employee is relieved of all duties.” (Emphasis added.) In
ordinary usage, “shall” connotes a mandatory duty. Friends
of Columbia Gorge v. Columbia River (S055915),
346 Or 415, 426
,
212 P3d 1243
 (2009). And OAR 839-020-0050
(2)(b) states that, “if an employee is not relieved of all duties
for 30 continuous minutes during the meal period, the
employer must pay the employee for the entire 30-minute
meal period.” It is undisputed by the parties that a meal
period of not less than 30 minutes must be “provided,” and
that, if the employee is not relieved of all duties during that
30-minute meal period, the employer must pay wages for the
entire 30-minute period.
        What is disputed on appeal is whether the employer
has an obligation to ensure that the 30-minute meal period
is actually taken. Defendants are of the view that as long
as a meal period is offered they have fulfilled their obliga-
tion under the rule. Plaintiffs assert that the rule requires
employees to actually take a 30-minute meal period, and
that it is the employer’s responsibility to enforce that
requirement or to pay wages if a meal period is shortened.
         We agree with plaintiffs, and we conclude that the
rule’s text and context support plaintiffs’ interpretation that
the requirement to provide “a meal period of not less than
30 minutes during which the employee is relieved of all
duties” means that a 30-minute meal is mandatory and, if
not taken, the employer must pay the employee’s wages for
the full 30-minutes. This is plain from the text of OAR 839-
020-0050(2)(b), which explicitly requires that “if an employee
is not relieved of all duties for 30 continuous minutes during
the meal period, the employer must pay for employee for the
entire 30-minute meal period.”
478                             Maza v. Waterford Operations, LLC

          It is true, as defendants assert, that the word “pro-
vide” as used in OAR 839-020-0050(2)(a), can be understood
as a synonym for “to make available.” See Webster’s Third
New Int’l Dictionary 1827 (unabridged ed 2002) (defining
“provide” as “to supply for use” and noting synonyms). But
the rule’s context shows an intention to make the meal period
mandatory. As noted, OAR 839-020-0050(1) states that it
“prescribes” minimum meal periods. To “prescribe” means
to “to lay down a rule : give directions : DICTATE.” Webster’s
at 1792 (as synonym, “PRESCRIBE indicates authoritative
dictating or commanding”). A “minimum” is defined as “the
least quantity * * * possible in a given case.” Id. at 1438. In
light of the rule’s stated purpose to prescribe a minimum
meal period, we think that BOLI’s intention in stating that
employers shall provide a minimum 30-minute meal period
was to require the meal period, i.e., to make it mandatory.
          OAR 839-020-0050(2)(b) states that, if an employee
is not relieved of all duties during “the meal period,” the
employer must pay for the entire 30-minute period. “The
meal period” is a reference to the minimum 30-minute meal
period prescribed in OAR 839-020-0050(2)(a), and under
OAR 839-020-0050(2)(b), the employee must be relieved of
all work duties during that time. If, as defendants contend,
taking a minimum meal period were voluntary, then the
obligation to pay wages for the meal period would apply only
when the employer forces the employee to return to work
during the 30-minute period against the employee’s will.
But the rule on its face does not include that limitation. We
conclude that, if an employee is not relieved of all duties for
the prescribed minimum 30-minute meal period, OAR 839-
020-0050(2)(b) requires that the employer pay the employ-
ee’s wages for that period of time.6
    6
      We note that our interpretation is consistent with BOLI’s interpretation of
the rule since at least 2008, when it issued a “Technical Assistance for Employers”
publication stating:
    “It is not the employee’s choice whether or not to take the required breaks.
    To be in compliance, you must require your employee to take all mandated
    breaks. * * * Since rules adopted in 1997 allow for penalties of up to $1000
    per violation, employers should be more vigilant than ever in enforcing break
    rules and should never permit an employee to skip required breaks.”
And in 2009, BOLI issued a “BOLI ALERT” regarding revisions to OAR 839-
020-0050(2)(b) stating: “The major provisions of the Oregon meal and rest period
rule * * * require a basic 30-minute, unpaid meal period for every work period (six
hours or greater) in which the employee is relieved of all duties.”
Cite as
300 Or App 471
 (2019)                                            479

         OAR 839-020-0050(8) reinforces our interpretation
of OAR 839-020-0050(2). That paragraph implements ORS
653.261(4) and describes conditions for a food or beverage
service employee’s voluntary “waiver” of a meal period, by
which an employee may become authorized to work up to
eight hours without a meal period. The waiver must be in
writing, OAR 839-020-0050(8)(a)(D), and must satisfy many
additional conditions. OAR 839-020-0050(8)(a)(A) - (J). If, as
defendants contend, BOLI’s intention was that a 30-minute
meal period must only be made available but may be volun-
tarily skipped by the employee without consequence for the
employer, then there was no need for the legislature and for
BOLI to also require a written waiver of a meal period for
certain types of employees. The existence of requirements
for a food or beverage service employee’s written waiver of a
meal period supports the interpretation that the 30-minute
meal period prescribed by OAR 839-020-0050(2)(a) is man-
datory.
         Finally, our conclusion that BOLI intended that
meal periods be mandatory is consistent with our observa-
tion that both ORS 653.261 and OAR 839-020-0050 include
statements that the conditions of employment, including
minimum meal periods, are to be prescribed “as may be
necessary for the preservation of the health of employees.”
It seems to us that permitting employees to skip unpaid
meal periods necessary for the preservation of health and
to continue to work despite risks to health would defeat that
objective. And employers, because of their authority over the
workplace, are in a unique position to enforce mandatory
meal periods necessary for the preservation of the health
of employees. Indeed, OAR 839-020-0040(4) recognizes
the employer’s unique role in monitoring the workplace to
ensure that work is not performed when it is not requested
and that breaks are taken. The rule provides:
       “It is the duty of the employer to exercise control and see
   that the work is not performed if it does not want the work
   to be performed. The mere promulgation of a policy against
   such work is not enough.”

    The parties have argued extensively about whether deference to BOLI’s
interpretation is appropriate here, but, in light of our interpretation, which
agrees with BOLI’s, we do not need to address that issue.
480                      Maza v. Waterford Operations, LLC

In other words, given the requirement for the mandatory
meal period, it is not sufficient for employers to merely
require in a handbook that employees not work during meal
periods. It is the employer’s duty to monitor employees’ work
and meal periods to ensure that full meal periods are taken.
          Based on our review of the text and context of OAR
839-020-0050, we conclude that, in the absence of a waiver
of the meal period as provided in OAR 839-020-0050(8), an
employer who is not exempt must require a 30-minute meal
period without work duties and, under OAR 839-020-0050
(2)(b), pay wages to an employee who is not relieved of duties
during the entirety of the required minimum 30-minute
meal period. Because our conclusion requires the trial court
to reconsider its rulings regarding the certification of a class
under ORCP 32 A, we vacate and remand the case to the
trial court.
        Rulings under ORCP 32 A vacated and remanded.
Cite as
300 Or App 471
 (2019)                                481

                          APPENDIX
OAR 839-020-0050 provides:
     “(1) The purpose of this rule is to prescribe minimum
  meal periods and rest periods for the preservation of the
  health of employees.
     “(2)(a) Except as otherwise provided in this rule, every
  employer shall provide to each employee, for each work
  period of not less than six or more than eight hours, a meal
  period of not less than 30 continuous minutes during which
  the employee is relieved of all duties.
     “(b) Except as otherwise provided in this rule, if an
  employee is not relieved of all duties for 30 continuous min-
  utes during the meal period, the employer must pay the
  employee for the entire 30-minute meal period.
     “* * * * *
     “(3) If an employer does not provide a meal period to
  an employee under section (2) of this rule, the employer has
  the burden to show that:
      “(a) To do so would impose an undue hardship on the
  operation of the employer’s business as provided in section
  (4), and that the employer has complied with section (5) of
  this rule;
     “(b) Industry practice or custom has established a
  paid meal period of less than 30 minutes (but no less than
  20 minutes) during which employees are relieved of all
  duty; or
     “(c) The failure to provide a meal period was caused
  by unforeseeable equipment failures, acts of nature or
  other exceptional and unanticipated circumstances that
  only rarely and temporarily preclude the provision of a
  meal period required under section (2) of this rule. If an
  employee is not relieved of all duties for 30 continuous min-
  utes during the meal period, the employer must pay the
  employee for the entire 30-minute meal period.
     “(4) As used in section (3)(a) of this rule, ‘undue hard-
  ship’ means significant difficulty or expense when consid-
  ered in relation to the size, financial resources, nature or
  structure of the employer’s business. For the purpose of
  determining whether providing a meal period requires
482                       Maza v. Waterford Operations, LLC

  significant difficulty or expense, the following factors may
  be considered:
    “(a) The employer’s cost of complying with the require-
  ment to provide a meal period under section (2) of this rule.
      “(b)   The overall financial resources of the employer.
     “(c) The number of persons employed at the particular
  worksite and their qualifications to relieve the employee;
  the total number of persons employed by the employer;
  and the number, type and geographic separateness of the
  employer’s worksites.
      “(d) The effect of providing the meal period required
  under section (2) of this rule on worksite operations
  involving: the startup or shutdown of machinery in con-
  tinuous-operation industrial processes; intermittent and
  unpredictable workflow not in the control of the employer
  or employee; the perishable nature of materials used on the
  job; and the safety and health of other employees, patients,
  clients or the public.
      “(5) When an employer does not provide a meal period
  to an employee under section (2) of this rule, and is able to
  make the required showing under section (3)(a) of this rule:
     “(a) The employer shall instead provide the employee
  adequate paid periods in which to rest, consume a meal,
  and use the restroom; and
      “(b) The employer shall first provide to each employee
  a notice provided by the commissioner of the Bureau of
  Labor and Industries regarding rest and meal periods in
  the language used by the employer to communicate with
  the employee. The employer shall retain and keep available
  to the commissioner a copy of the notice for the duration of
  the employee’s employment and for no less than six months
  after the termination date of the employee. Notices that
  comply with this subsection are available upon request
  from the bureau. This subsection takes effect on March 16,
  2009.
      “* * * * *
      “(8)(a) Pursuant to the provisions of ORS 653.261[4], if
  an employer agrees, an employee may waive a meal period
  if all of the following conditions are met:
Cite as
300 Or App 471
 (2019)                              483

     “(A) The employee is employed to serve food or bever-
  ages, receives tips, and reports the tips to the employee’s
  employer;
     “(B) The employee is at least 18 years of age;
     “(C) The employee voluntarily requests to waive the
  employee’s meal periods no less than seven calendar days
  after beginning employment;
     “(D) The employee’s request to waive the employee’s
  meal periods is in writing in the language used by the
  employer to communicate with the employee, on a form pro-
  vided by the commissioner, and is signed and dated by both
  the employee and employer;
      “(E) The employer retains and keeps available to the
  commissioner a copy of the employee’s request to waive the
  employee’s meal period during the duration of the employ-
  ee’s employment and for no less than six months after the
  termination date of the employee;
     “(F) The employee is provided with a reasonable oppor-
  tunity to consume food during any work period of six hours
  or more while continuing to work;
     “(G) The employee is paid for any and all meal periods
  during which the employee is not completely relieved of all
  duties;
     “(H) The employee is not required to work longer than
  eight hours without receiving a 30-minute meal period
  during which the employee is relieved of all duties;
     “(I) The employer makes and keeps available to the
  commissioner accurate records of hours worked by each
  employee that clearly indicate whether or not the employee
  has received meal periods; and
     “(J) The employer posts a notice provided by the com-
  missioner regarding rest and meal periods in a conspicuous
  and accessible place where all employees can view it.
     “(b) Either the employer or employee may revoke the
  agreement for the employee to waive the employee’s meal
  periods by providing at least seven (7) calendar days writ-
  ten notice to the other.
    “(c) Notwithstanding subsection (b) of this section, an
  employee who has requested to waive meal periods under
484                        Maza v. Waterford Operations, LLC

  this section may request to take a meal period without
  revoking the agreement to waive such periods. The request
  to take a meal period must be submitted in writing to the
  employer no less than 24 hours prior to the meal period
  requested.
     “(d) An employer may not coerce an employee into
  waiving a meal period.
     “(e) An employer will be considered to have coerced an
  employee into waiving the employee’s meal period under
  the following circumstances:
     “(A) The employer requests or requires an employee to
  sign a request to waive meal periods;
     “(B) An employee is required to waive meal periods as
  a condition of employment at the time of hire or at any time
  while employed;
     “(C) The employer requests or requires any person,
  including another employee, to request or require an
  employee to waive meal periods; or
     “(D) The employee signs a form requesting to waive
  meal periods prior to being employed for seven calendar
  days.
     “(f) Employee waiver forms and notices regarding rest
  and meal periods that comply with this section are avail-
  able upon request from the bureau.
      “* * * * *
      “(11)   As used in this rule:
     “(a) ‘Work period’ means the period between the time
  the employee begins work and the time the employee ends
  work.
     “(b) ‘Work period’ includes a rest period as provided
  in section (6) of this rule, and any period of one hour or
  less (not designated as a meal period) during which the
  employee is relieved of all duties.
      “(c) ‘Work period’ does not include a meal period unless
  the meal period is paid work time as provided in section (2)
  or (5) of this rule.”