A high-stakes battle over when health care workers in Oregon get to take meal breaks is heating up in federal court.
In April, Legacy Health launched an effort in federal court to overturn Oregon’s long-established rules spelling out when an employer must provide meal breaks.
At stake is potentially more than $100 million in fines for Legacy, a Portland-based health system of six hospitals around the state, based on violations found by the state Bureau of Labor and Industries.
Now, however the state has asked the judge to throw out Legacy’s case, saying it is premature and that state regulatory matters are not matter for the federal court to take on.
Legacy’s lawyers, it says in its motion to dismiss, “assert a panoply of federal and state defenses to administrative enforcement actions that must be raised in the ongoing state proceedings and cannot be adjudicated by this Court.”
Legacy’s lawsuit filed in the U.S. District Court in Portland caps years of dispute with the Oregon Bureau of Labor & Industries. It argued that the National Labor Relations Act preempts parts of Oregon’s meal break law and rules, and that the state rules impose an “onerous” burden on the 14,000-employee system.
BOLI last December threatened Legacy with $8.7 million in fines for failing to follow the detailed meals rules as well as rest period rules in 5,766 instances at four of its hospitals in 2016 and 2017. That proposed fine is pending.
The state rules spell out at what times in a worker’s shift the employer must provide the meal break. The rules are based on eight-hour shifts, but in today’s workplace, nurses are working 12-hour shifts.
“Some employees are forced to take a meal break in mid-morning at a time that is unhealthy for them, inconvenient for them, uncomfortable for them, and at times leads to physical discomfort and hunger during the remaining eight or more hours of their shift,” Legacy’s lawyers argued, adding that under the rules, many nurses must take their meal break at roughly the same time, which jeopardizes patient care.
Legacy’s violations consist mainly of providing nurses and other clinical workers with meal breaks outside the window specified by the rules.
BOLI's fine notifications show that the hospitals also allegedly failed to provide some workers any meal breaks at all, or provided shorter meal breaks than the 30 required minutes. And some hospitals failed to provide required rest breaks, according to the notifications.
The fines in theory could exceed $100 million, Legacy argued, and that “could force Legacy Health into a financially unsustainable operation and require the reduction of essential services, (and) an increase in the cost of healthcare which would be passed on to patients.”
Legacy nurses and other employees, in complaints to BOLI from 2015 to 2017, said Legacy was not doing enough to ensure employees had the staffing backup so they could take meal and other breaks as spelled out by the rules.
A sampling of the nurses’ complaints to BOLI were described in a 2017 Portland Tribune article:
- An operating room employee in 2015 complained, “Not receiving breaks. Can be stuck without breaks for 8 hours. ... Please help.”
- In 2016 a nurse wrote, “The nurses do eat during their shift. Unfortunately they are eating in the nurses station next to the tube station where we send patients’ blood, urine samples, etc. OSHA violation. They eat in the nurses station because they do not get an actual meal period and they clock out although they are still caring for their patients. ... We work hard and should not have to put our health at risk by eating in the nurses station.”
- In 2016, a Legacy employee told a BOLI investigator that if employees ask for a break, “they are told or made to feel that they are ‘not a team player.’"
In 2018, BOLI levied a $5.1 million fine against Legacy for allegedly denying more than 5,000 break and meal periods to hundreds of employees at Good Samaritan Hospital, Mount Hood Medical Center and Meridian Park Hospital. The fine was by far the biggest ever levied by the agency. But BOLI never collected. The agency withdrew that proposed fine in October 2019 and the sides began negotiations, Legacy’s lawsuit said.
In March 2021, Legacy petitioned BOLI to change the meal break rules so that hospitals could exempt themselves from it. BOLI rejected that after an outpouring of public comment, mostly from nurses, opposed the change.
Then, last December, BOLI quit the negotiations over the $5.1 million fine, Legacy said. And the next day, the state sent a notice that it would fine Legacy a lot more — $8.7 million — for meal and rest break violations in five departments at Good Samaritan, Mount Hood, Meridian Park and Legacy Emanuel hospitals. The alleged violations include 331 instances of an employee being given no meal break, 135 instances where the meal break was too short, 4,747 instances where it was at the wrong time in the shift, and 553 instances in which the employee was not given the required rest break.
The state, in its motion, said that since the administrative proceedings are not complete, Legacy has not yet been “injured,” and therefore has no basis on which to seek federal intervent
The state lawyer’s also responded to Legacy’s contention that the rules, which exempt union-negotiated meal break schedules, are unfair. The health system contends that its nurses, met with Deputy BOLI Commissioner Duke Shepard, and he provided “inaccurate or incomplete information that caused the nurses to understand that the only remedy for their concerns was to unionize.”
The state’s lawyers said the claim was unfounded and included a thank you note emailed to Shephard in March 2019 by the nurses afterward. It says nothing about unionizing, instead vowing to keep pursing ideas to “change the rules around meal and break periods to make them safer and more feasible for our work environment.”
You can reach Nick Budnick at [email protected] or at @NickBudnick on Twitter.