Oregon’s new Fair Work Week Act (also known as the predictive scheduling law) adds significant challenges and costs for employers operating in the retail, food service, and hospitality industries where schedules and scheduling are often unpredictable. The new changes take effect on July 1, 2018. Oregon employers, who have not already done so, should begin implementing systems and processes for complying with the new predictive scheduling law.
This advisory is Part 1 in our series on the predictive scheduling law, and focuses on the requirements of the statute. After BOLI publishes its Final Rules, we will publish a Part 2 to flag additional issues for employers. On June 19, 2018 at 10:00 a.m. PT, Davis Wright Tremaine will present a complimentary, one-hour webinar, “Preparing for Predictive Scheduling: How to Get Your Business Ready for July 1,” featuring Leah Lively and Brent Hamilton. Please click here to RSVP.
The new law applies to large employers, franchises, and chains operating in Oregon’s retail, hospitality, and food service industries
Oregon’s predictive scheduling law applies to employers that have 500 or more employees worldwide and operate as a retail establishment, a hospitality establishment, or a food services establishment.
Notably, the 500 employee threshold includes “chains” and “integrated enterprises.”Thus, the law will apply to many national (and regional) chains and franchises that do not directly employ 500 employees, but that operate under a single trade name or in cooperation with other establishments.
Hourly employees are covered; salary exempt and temporary agency employees are not
Oregon’s predictive scheduling law applies to hourly employees who work in retail establishments, hospitality establishments, or food service establishments and who provide services relating to that establishment. The Act does not apply to white-collar salary exempt employees or employees supplied by a temporary employee agency.
New hires must be given a good faith estimated work schedule
For new employees hired starting July 1, 2018, an employer must provide an employee with a written, good faith estimate of the employee’s work schedule at the time of hire. The good faith estimate must: (i) include the median number of hours the employee can expect to work in an average one-month period; (ii) explain the voluntary standby list (described below); (iii) indicate whether an employee who is not on the voluntary standby list can expect to work on-call shifts and, if so, set forth an objective standard for when an employee not listed on the voluntary list may be expected to be available to work on-call shifts; and (iv) may be based on a prior year schedule if it is a good faith estimate of seasonal or episodic work.
Covered employees must be given advance notice of their work schedule
Employers must provide all covered employees with a written work schedule in advance of the first day of the scheduled work. Beginning July 1, 2018, notice must be given seven days before the first day of work. Beginning July 1, 2020, the notice period increases to fourteen days.
The advance notice of the employee’s work schedule must include all work shifts and on-call shifts for the work period. Employees may request additional work shifts or on-call shifts. Any changes to the employee’s written work schedule as a result of employee-requested changes are not subject to the advance notice requirements of the Act. Employers may change the written work schedule inside of the statutory notice period so long as the employee may decline any work shifts not included in the employee’s written work schedule. But employers may be required to pay extra compensation for those changes, as described below.
Employers may (and probably should) maintain a standby list of employees willing to work extra hours
Employers may maintain a voluntary standby list of employees whom the employer may request to work additional hours to address unanticipated customer needs or unexpected employee absences. Employees may only be included on the list if the employee requests to be on the list or if agreed upon in writing.
For employees on the voluntary standby list, the employer may request extra hours and, if the employee agrees to work those hours, the employee is entitled to their regular wages only.
For employees who are not on the voluntary standby list, if the employer requests the employee to work extra hours and that employee agrees to work the extra hours, that employee is entitled to payment of one extra hour of wages at the employee’s regular wages, as described below.
Standby list requirements
The employer must make the following disclosures in writing to each employee on the standby list: (i) the list is voluntary and how an employee may request to be removed from the list; (ii) how the employer will notify a standby list employee of additional hours available and how the employee may accept the additional hours; (iii) the employee is not required to accept the additional hours offered; and (iv) an employee on the standby list is not entitled to extra or premium compensation under the Fair Work Week Act (beyond the employee’s regular wages) resulting from the employee’s acceptance of additional hours as a result of being on the standby list.
An employer may not retaliate against an employee who does not request or agree to be added to the standby list, who requests to be removed from the standby list, or who declines an employer’s request that the employee work additional hours as a result of the employee being on the standby list.
Employee input on availability
At the time of hire and during the course of employment, an employee may identify any limitations or changes in the employee’s work schedule availability. The employee may also request not to be scheduled for work shifts during certain times or at certain locations. The employer is under no obligation to grant the employee’s request. However, the employer may not retaliate against an employee simply for making such a request.
Employers may require the employee to provide “reasonable verification of the need for a request.” Employers must pay any reasonable costs for required verification that is medical verification.
Change to an employee’s schedule with less than the required notice
To the extent that new hours are added to the employee’s established schedule without the required advanced notice, the employee may refuse to work those additional hours and employers may not discipline the employee (or otherwise retaliate against the employee) for refusing the additional hours. If the employee accepts those new hours, then the employee will be entitled to extra compensation beyond regular wages, as described below.
Extra compensation for schedule changes without advance notice
A. Additional hours without notice
When changes are made to the employee’s written work schedule without advance notice (as required by the Act, see Section 4, above), the employee is entitled to one hour of extra pay at the employee’s regular rate of pay when: (i) the employer adds time to an employee’s shift; (ii) the employer changes the date or time of the employee’s shift with no loss of hours; or (iii) the employer schedules the employee for an additional work shift or on-call shift.
For example, if an employee is scheduled to work a four-hour shift on January 3rd, but on January 2nd it becomes clear that the employer needs the employee to work an eight-hour shift, then the employer can request the employee work extra hours. If that employee is not on the voluntary standby list and if the employee agrees to work the extra hours, then on January 3rd the employee would earn nine hours’ wages (eight hours actually worked plus one extra hour, as required by the predictive scheduling law).
B. Reduction of hours without notice
When changes are made to the employee’s written work schedule without advance notice, the employee is entitled to one-half of the employee’s regular wages (i.e., half-time) for each scheduled hour that the employee does not work when: (i) the employer subtracts hours from the employee’s work shift before or after the employee reports for duty; (ii) the employer changes the date or time of the employee’s work shift, resulting in a loss of work shift hours; (iii) the employer cancels the employee’s work shift or the employer does not ask the employee to perform work when the employee is scheduled for an on-call shift.
For example, if an employee is scheduled to work a four-hour shift on January 3rd, but on January 2nd it becomes clear that the employer does not need the employee to work at all, then the employer can subtract those hours. However, the employee will still be entitled to two hours’ wages (one-half of the wages for four hours), even though that employee did not work any hours on January 3rd.
An employer may make changes to the employee’s schedule without making additional compensation when: (i) an employer changes the start or end time of an employee’s work shift by 30 minutes or less; (ii) an employee agrees with another employee to employee-initiated work shift swaps (although the employer may require preapproval for such swaps); (iii) an employee requests a change and that request is documented in writing; (iv) an employer subtracts hours for disciplinary reasons; (v) health, safety, or event changes that are outside of the employer’s control necessitate a change; or (vi) requests are made of employees pursuant to the voluntary standby list policy and requirements.
Employees have a right to rest between shifts
An employer may not schedule or require an employee to work for a period of ten hours following the end of the employee’s previous shift unless an employee requests or consents to work such hours. Employers who require their employees to work during such rest periods must pay their employees at one and one-half times the employee’s regular rate of pay.
Employers are required to display a poster and retain records for three years
Each employer must display a poster (written in English and in the language the employer typically uses to communicate with employees) giving notice of the rights described in the Act. BOLI will prepare and make available a template of a poster giving such notice. Additionally, each employer must retain records that demonstrate the employer’s compliance with the Act for three years.
Private cause of action for failing to comply
Beginning on January 1, 2019, the Act provides employees with a private cause of action for interference with, restraint of, denial, attempted denial, retaliation, or discrimination against an employee who invokes or enquires about the provisions of the Act.
Civil penalties for failing to comply
Oregon’s Bureau of Labor and Industries (BOLI) may assess statutory penalties ranging from $500 to $1,000. However, if an employer pays the full remedy due (not including statutory penalties) within fourteen days, the Commissioner of BOLI is required to waive 50 percent of the amount of any statutory penalty imposed.
Separately, BOLI may assess civil penalties of up to $2,000 against an employer that the commissioner finds has coerced an employee into requesting or agreeing to be added to the standby list. Each violation is a separate and distinct offense.
And, in the case of a continuing violation, each day’s continuance is a separate and distinct violation.