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New law will affect large employers in retail, hospitality and food service industries
The Oregon governor is expected to soon sign S.B. 828, which will impose predictable scheduling requirements on large employers in certain industries. Here are answers to some of the most frequently asked questions about the new law.
When will the law take effect? Most provisions of the law will take effect on July 1, 2018.
Which employers will be affected by the new law? The law applies to Oregon employers that employ 500 or more employees worldwide and that provide services relating to "retail trade," "hotels," "motels" or "food services," as those terms are used in the 2012 North American Industry Classification System.
Separate entities that constitute an "integrated enterprise" will be considered a single employer for purposes of determining the number of worldwide employees. The Oregon Bureau of Labor and Industries (BOLI) has been tasked with adopting rules to assist employers in determining whether they are part of an integrated enterprise.
Which employees are covered by the law? The law applies to nonexempt employees of covered employers. The law does not apply to salaried, exempt employees performing administrative, executive or professional work. The law also excludes workers supplied to an employer by a worker leasing company and employees of businesses that provide services to or on behalf of an employer.
Does the law apply to employees subject to a collective bargaining agreement? Yes. The law does not exempt employees subject to a collective bargaining agreement. However, the law states that it is not intended to create an additional remedy with respect to the right to rest between shifts and compensation for shift changes, if employees have an equal or better remedy under the terms of a collective bargaining agreement.
What will the new law require? The law is intended to enhance the predictability of work schedules for nonexempt employees and ensure at least 10 hours of rest between shifts. Covered employers will be required to give advance notice of work schedules and, once set, those schedules cannot be changed except as provided under the law. Among the law's requirements are the following:
What procedures must an employer follow if it makes changes to the schedule after the advance notice date?
If the employer requests changes to the work schedule after the date on which advance notice is required under the law, the employer must:
How can an employer deal with unexpected absences or changes in work needs outside the employer's control? There are several exceptions to the requirement that employees receive additional compensation for untimely changes to the schedule.
In particular, employers have the option of maintaining a voluntary standby list of employees who have requested or agreed in writing to be available to cover unanticipated absences or business needs. Employees on a standby list must be free to decline offers of additional hours; however, if they accept additional hours, they are not eligible for additional compensation as a result of an untimely change in their normal schedule.
Other exceptions to the compensation requirement include the following:
Does the law impose notice, recordkeeping, and anti-retaliation requirements? Covered employers will be required to display a poster in the workplace providing notice of employees' rights under the new law and must maintain records of their compliance with the law for three years.
It will be an unlawful practice for an employer to interfere with, restrain, deny or attempt to deny the exercise of any right under the law or to retaliate or in any way discriminate against employees because they have inquired about their rights. Beginning Jan. 1, 2019, employees will have a fee-bearing private cause of action to enforce their rights under the law, and BOLI will have the power to seek penalties of up to $1,000 per violation, depending on the type.
James M. Barrett is an attorney with Ogletree Deakins in Portland, Ore. © Ogletree Deakins. All rights reserved. Reposted with permission.
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