Oregon to Enact Predictive Scheduling Law Affecting Retail, Hospitality, and Food Service Employers
Author: James M. Barrett (Portland, OR)
Published Date: July 13, 2017
The Oregon governor is expected to soon sign Senate Bill 828, which will impose predictive 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 who 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 a covered employer's nonexempt employees who are engaged in providing services relating to retail trade, hotels and motels, or food services. 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:
Employers must provide new hires with a written, good faith estimate of the employee’s work schedule at the time of hire, i.e., on or before the commencement of employment. The estimate must state the median number of hours the employee can expect to work in an average one-month period and must explain whether the employee can be included on a voluntary standby list for additional hours.
Employees have a right to identify limitations or changes in their availability and request not to be scheduled for work shifts during certain times or at certain locations. Employers are prohibited from retaliating against employees for requesting a particular schedule or work location but are also under no obligation to grant any such request and may require the employee to provide reasonable verification of the need for a particular schedule.
Employers must provide employees with a work schedule in writing at least seven calendar days before the first day of the work schedule. Beginning July 1, 2020, the written work schedule must be provided at least 14 days in advance.
Employers must provide a rest period of at least 10 hours between shifts unless an employee consents to work during the rest period, in which case the employer must pay the employee one-and-a-half times the employee’s normal rate of pay.
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:
provide the employee with timely notice of the change, and the employee may decline any work shift not included in his or her written work schedule;
pay the employee an additional hour of pay at his or her regular rate, in addition to wages earned, if the schedule change results in the addition of more than 30 minutes of work to the employee’s shift, changes the date or start or end time of the shift with no loss of hours, or schedules the employee for an additional work shift or on-call shift; or
pay the employee one-half times his or her regular rate for each scheduled hour that the employee does not work if the schedule change results in the subtraction of hours from the employee’s work shift, changes the date or start or end time of the shift resulting in a loss of work shift hours, cancels the work shift, or does not ask the employee to perform work when the employee is scheduled for an on-call shift.
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:
The employer changes the start or end time of the employee’s work shift by 30 minutes or less
Shift swaps mutually agreed to by employees
A schedule change made at an employee’s written request
A subtraction of hours from an employee’s work schedule for disciplinary reasons for just cause, provided that the employer documents the incident leading to discipline in writing
The cancellation or cessation of a work shift due to threats to employees or property or due to the recommendation of a public official
The cancellation or cessation of a work shift because of a public utility failure (e.g., electricity, water, gas, sewer) or a natural disaster, or because a ticketed event is canceled, rescheduled, or is changed in duration due to circumstances outside the employer’s control
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 January 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 Barrett represents private and public employers in all aspects of employment-related disputes. He has defended clients against single plaintiff and class action lawsuits involving claims relating to wage and hour disputes, drug testing, whistleblowing, discrimination, and retaliation. He has also successfully obtained injunctive relief to enforce non-competition agreements against a client’s former employees. Prior to joining Ogletree, James was a partner at Ater Wynne LLP in Portland,...