2017 Manufacturing Employment Law Update

by Schwabe, Williamson & Wyatt PC
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Oregon Equal Pay Act

In June, Governor Brown signed the Oregon Equal Pay Act of 2017. Although many provisions of the Act do not take effect until January 1, 2019, employers should be aware of the changing legal landscape surrounding compensation. The Act will affect the hiring process as well as the compensation of current employees.

The first provision of the Act to take effect is a prohibition on asking candidates for salary history. This prohibition is effective on October 5, 2017. Employees cannot sue employers for violations of this provision until 2024, though. The 2019 changes to the hiring process will be more far-reaching. Employers will be unable to screen candidates based on compensation history or use the compensation history of candidates to determine the compensation level for a new position. The Act allows an employer to confirm a prospective employee’s prior compensation only after extending an offer of employment which includes a compensation amount.

The Equal Pay Act will also affect compensation for current employees. The Act expands equal-pay protections to include multiple protected classes — race, color, religion, sexual orientation, national origin, marital status, disability, age, gender, and veteran status. Beginning in January 2019, employers will face liability if they pay any employee a greater amount than the compensation paid to employees of a protected class who perform work of comparable character, or if they discriminate in the payment of wages or compensation against members of a protected class. Employers may, however, compensate differently those employees who perform work of comparable character if the entire difference stems from differences in education, training, experience, or required travel. Permissible reasons for differing compensation also include systems based on seniority, merit, or output. A combination of permissible factors can also excuse differences in compensation, but the combination of factors must explain the entirety of the difference in compensation.

Finally, the Equal Pay Act encourages employers to analyze their current compensation practices and correct any inequalities that such analysis uncovers. Employers that engage in this equal-pay analysis gain immunity from certain categories of damages in any equal-pay lawsuits filed within three years of the equal-pay analysis. In addition to performing the equal-pay analysis, an employer must show that it eliminated the pay differential for the plaintiff and made substantial progress towards eliminating pay differentials for the protected class asserted by the plaintiff. The results of an equal-pay analysis are not otherwise admissible evidence in court, nor can the lack of an equal-pay analysis be used against an employee.

Oregon Paid Sick Leave Amendments

Some amendments to Oregon’s paid sick leave laws are effective January 1, 2018. Employers can limit employee accrual of paid sick leave to 40 hours per year and 80 hours in total. Although employees may accrue more than 40 hours of paid sick leave, employers can limit employee usage of paid sick leave to 40 hours per year. If an employer provides more than 40 hours of paid time off, the employer needs to comply with the paid sick leave regulations with regard to the first 40 hours of PTO. An employer providing PTO no longer needs to track the reasons for PTO usage.

OSHA Regulatory Changes

OSHA 300 logs – Some employers must submit OSHA 300 logs electronically, with enforcement beginning December 1, 2017. Employers must submit OSHA 300 logs electronically if they employed (1) more than 250 employees at any point in the previous calendar year, or (2) less than 250, but more than 20, employees at any point in the previous calendar year and in specified industries listed in OAR 437-001-0700, Table 8.

Nondiscrimination policies – Work-related injury and illness reporting procedures must be reasonable. A procedure is not reasonable if it would deter or discourage a reasonable employee from reporting a work-related injury or illness. OSHA interprets this rule to bar automatic post-incident drug or alcohol testing. Any post-incident drug or alcohol testing must apply equally to employees who report injuries and do not report injuries, be capable of detecting impairment at the time of the incident, and must be calculated to determine the root cause of an incident. Post-incident substance testing is permissible where the employer has a reasonable basis to believe substance use could have contributed to the incident. For example, an employer likely could require drug testing after a motor-vehicle accident of an employee while on company-related travel, but not after an employee reports a bee sting or repetitive-stress injury.

Other employer policies also must not discriminate against employees who report workplace injuries or illnesses. OSHA considers as discriminatory programs that reward employees or groups of employees for injury-free periods of work. An employer may reward employees or groups of employees for affirmatively engaging in safe practices, though, so long as employers who report injuries or illnesses remain eligible for such rewards. OSHA considers as discriminatory rigid timelines for reporting workplace illnesses or injuries, such as policies requiring employees to immediately report injuries. Reporting policies must allow for injuries and illnesses which develop over time. Employers may, however, require employees to report work-related injuries and illnesses as soon as possible after the employee is aware of an injury or illness.

Overtime and Total Work Hours for Manufacturers

Overtime policy for specific workplaces – Employees in mills, factories, and manufacturing establishments must receive either daily or weekly overtime pay, whichever is greater. Overtime is required for employees working more than 10 hours in a day or 40 hours in a week. An employer may seek a BOLI waiver for overtime pay for two additional hours per day (i.e. the eleventh and twelfth hours). The BOLI waiver requires disclosure of information by the employee and an investigation by BOLI, including a tour of the workplace and confidential interviews with employees.

Daily/weekly hour caps – Employees in mills, factories, and manufacturing establishments may not work more than 55 hours per week, unless the employee consents in writing to work up to 60 hours per week. Coercing an employee to consent to work more than 55 hours per week is an unlawful employment practice. Employees may not work more than 60 hours per workweek or 13 hours per day in a mill, factory, or manufacturing establishment, regardless of consent to work additional hours. Unless necessary because of an emergency outside the employer’s control, an employer cannot require an employee to begin a shift less than 10 hours after the employee’s previous shift of eight or more hours ended. These hourly caps do not apply to specific employees working in mills, factories, and manufacturing establishments, such as administrative employees, employees who do not typically engage in the direct processing of goods, and employees who transport other employees to and from work.

Perishable-goods hardship exemptions – Employers may seek exemptions from the maximum-hour requirements when processing perishable products, such as agricultural products, meat, and fish. The exemption is available only if the employer processes perishable goods in the ordinary course of its business, and allows only consenting employees to work more than 55 hours per workweek. To claim a hardship-period exemption, an employer must provide to BOLI written notice of the hardship period and written consent from all employees who will work more than 55 hours per week at any time during the hardship period. BOLI will promulgate forms for both employer notice and employee consent. Employers may qualify for multiple hardship periods throughout the year, but may not invoke the hardship-period exemption for more than 21 weeks in one calendar year. While the employer qualifies for a hardship-period exemption or exemptions, employees may work up to 84 hours per week or up to four weeks in a calendar year, and up to 80 hours per week for the remainder of the hardship period or periods.

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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