The 2017 Oregon legislature passed a “secure scheduling” or “fair work week” law that imposes significant requirements on certain categories of large employers. The law, available here, goes into effect July 1, 2018. We previously blogged about the law here.
Are You a Covered Employer?
The law applies to retail, hospitality, and food services employers with 500 or more employees worldwide.
Whether an employer is a retail, hospitality, or food services employer is defined by the 2012 North American Industry Classification System (retail, code 44-45; hospitality, codes 721110 and 721120; food services, code 722).
Chains and “integrated enterprises” are considered a single employer when determining whether the employer has 500 or more employees. Whether separate entities are considered an “integrated enterprise” is a fact-specific inquiry that depends on factors such (1) the “interrelation” between operations, (2) the degree to which the entities share common management, (3) the degree to which the entities have centralized control over labor relations, and (4) the degree of common ownership or financial control. Employers with questions about whether they are an “integrated enterprise” should consult with counsel.
If You Are a Covered Employer, What Do You Do?
The law requires covered employers to provide covered employees with (1) a good-faith estimate of work schedule at time of hire, (2) advance notice of work schedule, (3) at least 10 hours of rest between shifts, (4) a right to provide input into work schedules, and (5) penalty pay for short-notice schedule changes. There are also notice and record keeping requirements and an option of maintaining a “voluntary standby list.”
Good-Faith Estimate of Work Schedule:
Employers must provide new employees with a written good-faith estimate of the employee’s work schedule at time of hire. The good-faith estimate must (1) state the median number of hours the employee can expect to work during an average one-month period; (2) explain the voluntary standby list, if applicable; and (3) indicate whether an employee will be expected to work on-call shifts. The median number of hours must be a single number, not a range.
Advance Notice of Work Schedule:
Employers must provide employees with a written work schedule at least seven calendar days before the first day of the work schedule. Starting July 1, 2020, the work schedule must be provided at least 14 days in advance. The written schedule must include all work shifts and on-call shifts for the work period and the employee may decline (without adverse consequences) any additional shifts that are not included in the written work schedule.
New employees or employees returning from a leave of absence must be provided with a written work schedule that goes through the last day of the currently posted schedule on or before their first day of work.
Right to Rest Between Shifts:
Employees must be provided at least 10 hours rest between shifts. Employers cannot schedule or require an employee to work with less than 10 hours between shifts unless (1) the employee consents, and (2) the employee is paid time and a half for each hour worked during the 10-hour rest period.
Employee Right to Input into Work Schedule:
Employees have a right to identify any limitations or changes in their availability, and employers cannot retaliate against employees for requesting a change to their work schedule. However, employers are under no obligation to grant requests for work schedule changes.
Penalty Pay for Short-Notice Schedule Changes:
If an employer makes changes to an employee’s schedule after the advance notice period (seven days starting July 1, 2018 and 14 days starting July 1, 2020), then the employee must be paid penalty pay at the employee’s regular rate of pay as follows:
- Add more than 30 minutes to employee’s shift: one hour of penalty pay
- Change the date of the employee’s shift with no loss of hours: one hour of penalty pay
- Change the start or end time of the employee’s shift by more than 30 minutes with no loss of hours: one hour of penalty pay
- Subtract more than 30 minutes from the employee’s shift: half time for time that was lost
- Change the date of the employee’s shift, resulting in a loss of hours: half time for time that was lost
- Change the start or end time of the employee’s shift by more than 30 minutes, resulting in a loss of hours: half time for time that was lost
- Cancel the employee’s shift: half time for time that was lost
- Do not call the employee in when the employee is on call: half time for the time that the employee was scheduled to be on call but was not called in
No penalty pay is required if:
- The start or end time of the shift is changed by 30 minutes or less
- The employee mutually agrees to swap shifts with another employee
- The employee requests a schedule change and documents the request in writing
- An employer requests that an employee on a voluntary standby list work additional hours and the employee consents to work additional hours
- Hours are subtracted for disciplinary reasons (e.g., a suspension) and the incident leading to the discipline is documented in writing
- An employee’s shift cannot begin due to threats to employees or property or due to recommendation of a public official
- Operations cannot begin or continue because of a public utility failure (e.g., power outage)
- Operations cannot begin or continue due to a natural disaster or similar cause not within the employer’s control (e.g., a snowstorm)
- A ticketed event is canceled or rescheduled, or changes in duration are made due to circumstances outside the employer’s control
- An employer requests that an employee work additional hours to address unanticipated customer needs or unexpected employee absences and (1) the employee consents in writing to work the additional hours; (2) if the employer maintains a voluntary standby list, all employees on the voluntary standby list have been contacted and additional coverage is still needed; and (3) the employer makes the request through a group communication, or, if the employee is working at the time of the request, by group communication or individually
Voluntary Standby List:
Employers are allowed (but not required) to maintain a standby list of employees who may be requested to work additional hours to address unanticipated customer needs or unexpected employee absences.
Employees must agree in writing to be included on the standby list and told, in writing, that (1) the list is voluntary and how the employee can request to be removed from the list, (2) how the employer will notify a standby list employee of additional hours and how an employee may accept the additional hours, (3) that the employee is not required to accept the additional hours offered, and (4) that the employee is not eligible for penalty pay for short-notice schedule changes as a result of accepting additional hours.
Employers who have questions about whether they should maintain a voluntary standby list should consult with counsel.
Notice and Record Keeping Requirements:
BOLI has created a poster that advises employees of their rights under the law. The poster is available here. Employers should post the notice in a conspicuous place where workplace notices are customarily posted (e.g., the employee break room). If employees work remotely, the notice should be provided electronically.
For three years, employers must retain records demonstrating compliance (e.g., work schedules, documentation of employee-requested schedule changes, good-faith estimate provided at time of hire).
Possible Penalties for Non-Compliance
Starting January 1, 2019, employees can bring civil actions under ORS 659A.885 for injunctive and equitable relief, including but not limited to reinstatement with or without back pay. A prevailing employee is also entitled to reasonable attorney fees and costs. There is no right to compensatory or punitive damages and no right to a jury trial.
Employees can also file administrative complaints with BOLI for interference with their rights under the law or for retaliation for exercising their rights under the law. If BOLI finds a violation, it can issue statutory penalties of up to $1,000 for most violations (up to $2,000 per violation if BOLI finds an employee was coerced into being added to the voluntary standby list, with each day counting as a separate violation).
If you have any questions about the new law, please contact us.