Oregon has become the first state in the nation to regulate employer scheduling practices in the food service, hospitality, and retail industries. The new law, Senate Bill 828, will take effect on July 1, 2018.
Coverage
Senate Bill 828 applies to employers in the food service, hospitality, and retail industries who operate in Oregon and have at least 500 employees worldwide. It applies to chains and franchises to the extent an individual or entity shares ownership in more than one establishment and has 500 employees worldwide.
Employees covered by the new law include non-exempt employees who perform services relating to food, hotels, motels, casino hotels, and retail trade. The new law does not cover consultants, leased workers, and salaried employees covered by the administrative, executive, and professional exemptions under the Fair Labor Standards Act.
Good Faith Estimate of Work Schedule
At the time of hire, employers must provide a written, good faith estimate of the employee’s work schedule in the language ordinarily used to communicate with employees. The estimate must include: (1) the median number of hours the employee can expect to work in an average one-month period; (2) a description of the “voluntary standby list” (discussed below); and (3) whether an employee who is not on the voluntary standby list can expect to work on-call shifts an objective standard for when such an employee may be expected to be available to work an on-call shift.
Voluntary Standby List
Employers may create a “voluntary standby list” of employees who will be asked to work additional hours because of unanticipated customer needs or unexpected employee absences. Employees must request or agree to be included on the list in writing.
Employers who establish a voluntary standby list must notify all employees of the following:
- That the list is voluntary and how employees can be removed;
- How employees will be notified of available work and how the employee can accept the additional hours;
- That the employee is not required to accept the additional hours offered; and
- That an employee on the list is not eligible for additional compensation for changes to the employee’s schedule resulting from the employee’s acceptance of additional hours.
Employees may decline the additional work offered and may ask to be removed from the list at any time. Employers may not retaliate against any employee who does not want to be included on the list, requests to be removed, or turns down work.
Advance Notice of Work Schedule, Ability to Refuse Schedule Change
Employers must give all covered employees a written work schedule at least seven calendar days before the first day of the schedule. The written work schedule must include all work shifts for the work period. The advance notice period increases from 7 days to 14 days on July 1, 2020.
If the employer changes the written work schedule, it must notify affected employees in a timely manner. Employers cannot require an employee to work any shift that was not included in the employee’s written work schedule. Employees do not need to provide advance notification of employee-initiated schedule changes.
Employers must post the written schedule in a conspicuous and accessible location in English and in the language the employer typically uses to communicate with employees.
Right to Schedule Input
At any time, an employee may identify limitations or changes in the employee’s ability to work and may request not to be scheduled for certain work shifts or at certain locations. The employer is not required to grant the request.
Compensation for Changes to Work Schedule
Employers will be required to pay additional compensation for changes to an employee’s work shift without advance notice.
When changes to an employee’s shift do not result in a loss of pay, the employee is entitled to one hour of pay in addition to wages earned when:
- The employer adds more than 30 minutes of work to the employee’s work shift;
- The employer changes the date or start or end time of the shift, but no hours are lost; or
- The employee is scheduled for an additional shift or on-call shift.
For changes that result in a loss of hours for an employee, the employee is entitled to receive one-half-times the employee’s regular rate of pay for each scheduled hour that the employee does not work when:
- The employer subtracts hours from the employee’s work shift;
- The employer changes the date or start or end time of the shift and the employee loses hours;
- The employer cancels the employee’s work shift; or
- The employee is not required to work when scheduled for an on-call shift.
Employers do not owe compensation for changes when:
- The employer changes the start or end time of a work shift by 30 minutes or less;
- The employee agrees to swap shifts with another employee;
- The employee initiated the change and the request is in writing;
- The employee asks for additional work;
- The employer subtracts hours from a shift for disciplinary reasons and documents the incident;
- Standby employees accept available work; or
- Operations are effected by threats to employees, utility failure, natural disaster, or cancellation of a ticketed event.
Right to Rest
All employees must be given a 10-hour rest period between shifts, unless the employee requests or consents to work. If an employee is required to work within the 10-hour rest period, the employee is entitled to one-and-one-half times the employee’s regular rate of pay for such work, unless the employee is engaged in roadside assistance services.
Anti-Retaliation, Enforcement
Employers are prohibited from discriminating or retaliating against any employee who exercises his or her rights under the statute. Employees may pursue a civil action for discrimination or retaliation and complaints for failure to provide a good faith estimate, a ten-hour rest period, or compensation for shift changes must be pursued through BOLI.
Coverage: Oregon employers with employees in the in the food service, hospitality, and retail industries.
Effective: July 1, 2018
Action Required: If you are an affected employer, you should familiarize yourself with the requirements of the law and prepare for the enactment of the new law by taking steps to determine your long-term scheduling and staffing needs. You should also contact your Human Resources Business Partner if you have any questions.
Produced in cooperation with Jackson Lewis P.C.