BOLI Issues Final Rules on Manufacturing Overtime and Maximum Hours Worked

January, 2018


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

On December 27, 2017, BOLI issued its final rules regarding the revisions to the manufacturing daily overtime and the new maximum working hours. The law and rules are effective January 1, 2018 – which gave us all lots of time to prepare for this over the holiday season. Thankfully, most of what is set out in the rule either repeats things stated in the statute or sets out expected requirements.

The biggest thing to note is the definition of machinery and manufacturing, which is essentially unchanged from the proposed rules. Those terms are defined as follows:

  1. “Machinery” means material-handling equipment and power-driven machines powered by electricity, nuclear or fossil fuels, hydroelectric power, geothermal power or another power source other than by human hand, foot or breath.
  2. “Manufacturing” means the process of using machinery to transform materials, substances or components into new products.

Forgetting for a moment the problem with the definition of machinery because it uses the word machine, this is a very broad definition. Remember, this entire issue came up as the result of a lawsuit against an industrial bakery. An oven likely meets this definition, so would that include restaurants as well? That probably isn’t what was intended, but the broad text of this rule makes it difficult to figure out exactly which businesses may be covered.

The rules set out who is excluded from the rule, with the most important exclusions being maintenance workers, supervisors/managers, administrative workers, workers not employed in a manufacturing establishment, workers not engaged in the direct processing of goods, or workers covered by a collective bargaining agreement that addresses daily overtime and/or maximum hours worked.

The rules provide more detail about how employers can get consent from employees to work up to 60 hours per week, as well as how manufacturers of perishable products can apply for an undue hardship exception. BOLI has created the templates for consent to work up to 60 hours, applying for an undue hardship notice, and obtaining consent to schedule employees in excess of 60 hours during an undue hardship period. One of the more notable parts of the rule is that it provides a notice requirement for employees to revoke their consent (7 days prior to the next workweek). Please note you are not required to use BOLI’s forms, so long as you use a form that contains all the information required in the rule. The rules require employers to keep consent forms for at least 1 year from the date the consent period expires.

The rules explain that if an employer fails to define a workweek or workday, those periods will be set from the time an employee begins work.

Finally, the rule provides some detail about when civil penalties may be assessed against an employer.

For additional assistance determining how these new rules affect your organization, give us a call.

 

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