Oregon Predictive Scheduling Bill Passes

July, 2017


By By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
rorr@cascadeemployers.com

The Oregon Legislature passed a predictive scheduling law, which is awaiting the governor’s signature. If signed into law, this would place requirements on certain large employers in certain industries regarding how they schedule their workers. It would also create penalty wages for employees if their employers need to deviate from these scheduling rules.

Covered Employer

The first step to understanding this new law is to figure out if your organization is a covered employer. The law covers retail, hospitality, and food service establishments with 500 or more employees worldwide, including but not limited to, chains or integrated enterprises. There are a lot of terms in that sentence that need defining, and the law defines them as follows:

Retail Establishment – A fixed point of sale location for an establishment defined in the 2012 North American Industry Classification System (NAICS) under codes 441110 to 453998 as a retail trade establishment.

Hospitality Establishment – Has the meaning provided in the 2012 NAICS under code 721110 for hotels and motels and code 721120 for casino hotels.

Food Service Establishment – A fixed point of sale location for establishments defined in the 2012 NAICS under code 722 as food services and drinking places.

Chain – An establishment that is part of an affiliation of two or more establishments within the United States, each of which is owned by the same person or entity and operate under identical or substantially similar trade names or service marks, both as defined in ORS 647.005.

Integrated Enterprise – An integrated enterprise will be determined by a factor test to determine whether separate entities are interrelated enough to be considered a single employer. The factors that will be considered are:

  • The degree of interrelation between the operations of multiple entities;
  • The degree to which the entities share common management;
  • The degree to which the entities have centralized control of labor relations; and
  • The degree of common ownership or financial control over the entities.

If your organization is a covered employer, read on to learn about the new obligations that must be taken into account when scheduling.

Covered Employee

While the new law covers most employees, it does provide a few exclusions. First, the law excludes individuals who are exempt under the administrative, executive, or professional exemption. It also excludes employees who are provided by worker leasing companies or employees of a business that provides services to the employer.

Good-Faith Estimate of Work Schedule

Covered employers must provide all new hires who meet the above definition of employee with a written good-faith estimate of the employee’s work schedule upon hire. The estimate must include the median number of hours the employee is expected to work in a one-month period, explain the employer’s voluntary standby list if it has one (see below), and must indicate whether an employee who is not on the voluntary list may be expected to work on-call shifts, and if so, how employees are selected for on-call work. Employers may base this good-faith estimate on schedules from prior years.

Voluntary Standby List

Covered employers may choose, but are not required, to maintain a voluntary standby list. Any employee who chooses to be on the list must be notified of the following:

  • The list is voluntary;
  • The employee can request to be removed from the list at any time;
  • How the employer will notify employees of additional available hours;
  • The employee is not required to accept any additional hours offered;
  • An employee on the standby list is not eligible for additional compensation for work schedule changes, as required by the predictive scheduling law.

Employers who maintain voluntary standby lists are prohibited from retaliating against employees for refusing to be on the standby list, for requesting to be removed from the standby list, or for declining to work additional hours offered as a result of being on the standby list. The penalty for each violation of this section is as much as $2,000.

Advance Notice of Work Schedule

Covered employers must provide employees with a written work schedule at least seven calendar days before the first day of work on the schedule. The employer must also post the schedule in a conspicuous and accessible place in the work area in English and any other language used to communicate with employees. Employers must provide “timely notice” (this term is not defined) if requesting deviations from the work schedule after posting and providing it to employees, and an employee may decline any employer-requested changes. Employees may also request to work additional shifts.

New employees must be provided with the work schedule on or before their first day of work, and employees returning from a leave of absence must be provided with the work schedule on their first day back from a leave of absence.

On January 1, 2020, the advanced notice required by the law will change from seven calendar days to fourteen calendar days.

Right to Rest Between Work Shifts

Generally speaking, covered employers may not schedule employees to work without providing at least 10 hours between shifts. If an employee does work during the 10-hour rest period, an employer must pay the employee at one and one-half the employee’s regular rate of pay. Rest periods do not apply to employees providing roadside assistance services.

Employee Right to Input into Work Schedule

Employees have a right to provide input regarding their work schedule. However, an employer also is not obligated to grant an employee’s request. Employers may require verification supporting an employee’s request, and if there is any cost associated with that, the employer must pay that cost.

Compensation for Work Schedule Changes

Employers who change their employees’ schedules after providing them in advanced (as described above) are subject to a variety of potential penalty wages as follows:

  • One-hour penalty pay when:
    • Adding more than 30 minutes of work to the employee’s work shift;
    • Changing the date or start or end time with no loss of hours to the employee; or
    • Scheduling the employee for additional work or on-call work.
  • Half-rate penalty for each hour not worked when:
    • Employer subtracts hours from employees’ shift;
    • Changes the date or start or end time resulting in loss of hours to the employee;
    • Cancels the employee’s work shift; or
    • Does not ask an employee to work when scheduled for an on-call shift.
  • Safe Harbor (no penalty):
    • Changing the start of end time of a shift by 30 minutes or less;
    • Mutual agreement for change between employer and employee;
    • Disciplinary suspensions;
    • Public threats, emergencies, natural disasters, and utility outages;
    • Employee volunteers to work from the voluntary standby list.

Notice and Recordkeeping Requirements

BOLI will be developing a poster that employers must post. There is a three-year recordkeeping requirement for all documentation required by the law or related to compliance with the law.

Penalties, Enforcement, and Effective Date

There is a $500 penalty for failing to display the required poster, and a $1,000 violation for violations of any other provision of the law.

The majority of the law will go into effect on January 1, 2018. The law will not be enforced, and employees will not be able to bring a private lawsuit or an administrative claim through BOLI until January 1, 2019.

For questions about how the predictive scheduling law may affect your organization, give us a call today.

 

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