2017 Manufacturing Employment Law Update

by Schwabe, Williamson & Wyatt PC

Schwabe, Williamson & Wyatt PC

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.

© Schwabe, Williamson & Wyatt PC | Attorney Advertising

Written by:

Schwabe, Williamson & Wyatt PC

Schwabe, Williamson & Wyatt PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.