Oregon Is Set to Become the First State in the Nation Requiring Employers to Give Hourly Employees Advance Notice of Their Work Schedules

by K&L Gates LLP
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K&L Gates LLP

Following cities like San Francisco and Seattle, on June 29, 2017, the Oregon Legislature passed the Fair Work Week Act (the “Act”), becoming the first state in the nation to require advance notice of hourly employee work schedules and additional compensation for last-minute changes.

The Act, Senate Bill 828, states that retail, hospitality, and food services establishments that employ 500 or more employees worldwide, including chain or integrated enterprises, must provide new employees with a written good-faith estimate of the employee’s work schedule at the time of hire. The estimate must state the median number of hours the employee can expect to work in an average month and explain how an employee can voluntarily agree to be added or removed from an employee standby list in order to be called upon to fill unanticipated employee absences or work needs.

The Act further requires employers to provide employees with a work schedule in writing at least seven calendar days before the first day of the scheduled work week. The written work schedule must be posted in a conspicuous and accessible location, in English, and in the language the employer uses to communicate with the employees. Changes to the written work schedule must be timely communicated to the employee, and the employee may decline to work shifts not previously included in the written schedule.

Employees are afforded a 10-hour right to rest between work shifts or on-call shifts, unless the employee requests or consents to work such hours. The rest period is defined as the first 10 hours following the end of the previous calendar day’s work shift or on-call shift or the first 10 hours following the end of a work shift or on-call shift that spanned two calendar days. The Act requires compensation at one and one-half times the employee’s regular rate of pay for work performed during a rest period.

The Act also requires compensation to employees for each employer-requested change to the written work schedule at the rate of 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;
  • changes the date, start time, or end time of the employee’s work shift with no loss of hours; or
  • schedules the employee for an additional work shift or on-call shift.

Further, an employee must be compensated at one-half times the employee’s regular rate of pay per hour for each scheduled hour that the employee does not work when the employer:

  • subtracts hours from the employee’s work shift before or after the employee reports for duty;
  • changes the date, start time, or end time of the employee’s work shift, resulting in a loss of work shift hours;
  • cancels the employee’s shift; or
  • does not ask the employee to perform any work when the employee is scheduled for an on-call shift.

Importantly, the additional compensation requirement is subject to numerous exceptions, including if: (1) the work shift change is for 30 minutes or less; (2) the employee mutually agrees with another employee to an employee-initiated work shift swap or coverage; (3) the employee requests changes to his or her work schedule; (4) the employer subtracts hours from the employee’s work schedule for just-cause disciplinary reasons, which must be in writing; (5) the employee consents in writing to work additional hours, so long as standby employees have been contacted; or (6) other enumerated instances outside of the employer’s control.

The Act further makes it unlawful for an employer to retaliate against an employee for exercising any right protected under the Act or to discriminate against an individual with respect to hire, tenure, or other terms or conditions of employment because the individual has inquired about the provisions of the Act. The Act provides that employees may file a charge with the Bureau of Labor and Industries (“BOLI”) or file a civil action for violations of the law. Pursuant to the Act, the BOLI Commissioner may assess a penalty against employers of $500 or $1,000, depending on the violation.

Finally, the Act preempts local governments from enacting their own requirements relating to predictable work schedules.

The Oregon Legislature structured implementation of the Act beginning on July 1, 2018, when employers must comply with most of the written notice and scheduling requirements, including the seven-day advance notice. On January 1, 2019, the enforcement penalty and civil action provisions become effective, and on July 1, 2020, the seven-day advance notice requirement increases to 14 days.

Affected employers should start taking steps to update their scheduling, working shifts, and on-call employee policies to ensure compliance with the Act’s requirements.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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