Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—9th Cir.: Amended opinion revives Jack in the Box employees’ unpaid breaks claims, (Apr 21, 2026)

By Jason Albright, J.D.

Athena v. Pelican Brewing Co., 345 Or. App. 172 (2025) suggests that Oregon law did require employers to pay employees for the full 30 minutes of shortened meal breaks even before the applicable state regulation was updated in 2010.

In an amended opinion accommodating a changed interpretation of Oregon law, the Ninth Circuit held that a federal district court abused its discretion in refusing to certify a class of employees who alleged that fast food employer Jack in the Box did not pay workers for interrupted meal periods more than 20 minutes long. Otherwise leaving substantially unchanged its prior conclusions in the case, the appeals court observed that the Oregon Court of Appeals held in Maza v. Waterford Operations, LLC, 300 Or. App. 471 (2019) that Oregon employers had to pay for shortened meal breaks, and that Oregon law required employers to pay employees for the full 30 minutes of shortened meal breaks even before the applicable Oregon wage-hour regulation was updated in 2010 (Gessele v. Jack in the Box Inc., Nos. 23-2522 and 23-2527 (9th Cir. Apr. 20, 2026)).

Employees of the Jack in the Box fast food restaurant chain sued the employer challenging three of its policies. Specifically, the employees alleged that the employer over-deducted from employees’ wages for a Workers’ Benefit Fund (WBF), did not pay employees for interrupted meal periods more than 20 minutes long, and deducted employees’ pay for non-slip shoes.

Ninth Circuit’s prior opinion. In a November 2025 opinion, the Ninth Circuit held that the federal district court below erred by rushing to summary judgment on the willfulness and benefit issues with respect to employee claims that the employer made over-deductions from their wages for the WBF. The appeals court also concluded that the district court erred in holding that the employees’ written authorization was a defense to all the “shoe” claims where employees were required to purchase non-slip shoes. As to the unpaid breaks claims, however, the appeals court held that the district court did not abuse its discretion in refusing to certify a class, nor in in granting the employer’s renewed motion for judgment as a matter of law against the named plaintiffs’ individual unpaid break claims.

Unpaid break time issue. During shifts longer than six hours, employees usually took unpaid 30-minute meal periods. When business was heavy, however, the employer would recall employees before their breaks ended. The employer treated breaks as meal periods and did not pay for them if the employee was on break for at least 20 of the 30 minutes. If a meal period was shortened, the employer paid for the time worked but not the other minutes.

Reversing course. Reversing course concerning the unpaid break time, the Ninth Circuit held in its amended opinion that the district court abused its discretion in refusing to certify the unpaid break class. Here, Jack in the Box and the employees disputed whether an employer was always liable when it cut meal breaks short, and if liable, whether the remedy was wages for the length of the shortened break.

Certification of unpaid break class. The appeals court found that Athena v. Pelican Brewing Co., 345 Or. App. 172 (2025) supported the employees’ argument that they were entitled to wages for shortened meal periods during their employment at Jack in the Box, despite the employer’s argument that the applicable state regulation at issue, Or. Admin. R. 839-020-0050, changed substantially in June 2010, after they had already left their employment, when Oregon specifically clarified that employers must pay for shortened breaks.

Maza. In Maza v. Waterford Operations, LLC, 300 Or. App. 471 (2019), the Oregon Court of Appeals held that Oregon employers had to pay for shortened meal breaks. And indeed, at all times relevant to the case, Oregon required that “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.” Or. Admin. R. 839-020-0050(2)(a) (2009). Jack in the Box argued that that Maza applied only prospectively to meal breaks after it was decided in 2019, but the appeals court was unpersuaded. “Maza cannot run purely prospectively because it interpreted a regulation,” observed the Ninth Circuit.

Athena. In June 2010, Oregon amended its meal break regulation, adding 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.” Or. Admin. R. 839-020-0050(2)(b) (2011). This language was not included before June 2010, and thus, though Maza required pay for shortened meal breaks, Maza relied on regulatory text added after the plaintiffs left Jack in the Box.

Here, however, the appeals court found an even more recent development in Oregon case law persuasive. In Athena v. Pelican Brewing Co., 345 Or. App. 172 (2025), the Oregon Court of Appeals analyzed whether the amount that an employer must pay an employee for a shortened meal period pursuant to Section 839-020-0050(2)(b) is a “penalty” or a “wage.” It concluded that such “pay” is indeed a wage, relying heavily on the Oregon Supreme Court’s decision in Gafur v. Legacy Good Samaritan Hospital and Medical Center, 344 Or. 525 (2008) (Gafur II) (en banc), which concluded that “an employee who takes a rest break does not stop working for wage and hour purposes.”

Citing Gafur II, Athena explained that “even when an employee is not performing their usual job duties, if that time is controlled by the employer such that an employee is unable to use that time for their own purposes, the employee is ‘working’ for purposes of wage and hour laws.” Thus, “an employee who is not relieved of their job duties for a continuous 30 minutes during the meal period is considered ‘working’ for wage and hour purposes.”

And although the Athena court relied on a post-2010 version of Or. Admin. R. 839-020-0050, it analyzed the regulation’s adoption history, concluding that, while “[p]rior to the current rule’s adoption, the rule did not expressly require an employer to pay an employee for a shortened meal period,” the 2010 amendment “did not substantively change the operation of the rule.” Rather, according to Athena, the 2010 amendment “specifically articulated, consistent with the Supreme Court’s treatment of the rest period in Gafur, that an employee who does not receive a full meal period is working for purposes of wage and hour law and is therefore entitled to their wage during that period.”

Athena’s interpretation of Gafur II thus supported the plaintiffs’ argument that they were entitled to wages for shortened meal periods during their employment at Jack in the Box. “JITB was required to pay for the full 30 minutes of shortened meal periods pursuant to Section 839-020-0050 before June 2010,” the Ninth Circuit concluded, reversing the district court’s denial of class certification and remanding.

Individual unpaid break claims. Finally, the appeals court found that the district court erred in granting the employer’s renewed motion for judgment as a matter of law against the named plaintiffs’ individual unpaid break claims. Specifically, the district court erred in finding that “before June 1, 2010, Oregon law did not require employers to pay employees for a 30-minute meal period when employees were called back to work before 30 minutes.” As the court previously discussed, Athena suggested that Oregon law did require employers to pay employees for the full 30 minutes of shortened meal breaks even before Section 839-020-0050 was amended in 2010, based on the rule’s definition of “work period” and Gafur II’s interpretation of that term.

The case is Nos. 23-2522 and 23-2527.

Judge: Smith, M., Jr.

Attorneys: Jon M. Egan (Law Offices of Jon M. Egan) and Jim W. Vogele (Law Offices of Jim W. Vogele) for Jessica Gessele, Ashley Ortiz, Nicole Gessele, Tricia Tetrault, and Christina Mauldin. David P.R. Symes (Symes Law Office) and Ian T. Maher, Douglas S. Parker, and Heather St. Clair (Ballard Spahr) for Jack in the Box Inc.

Companies: Jack in the Box Inc.

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