Oregon has boldly gone where no state has gone before … and enacted scheduling legislation!
On August 8, 2017, Oregon Governor Kate Brown signed Senate Bill 828 into law. This new law employer scheduling practices in the food service, hospitality, and retail industries and goes into effect on July 1, 2018.
Under the new law, employers in the food service, hospitality, and retail industries who
- operate in Oregon and
- have at least 500 employees worldwide
- NOTE: For the purposes of employee count, individual entities that comprise an Integrated Enterprise are considered a single employer. In other words, a locally owned franchise (like McDonalds) will need to follow these rules although the franchise may only employ 30 employees.
will be required to provide their employees with a “written good faith estimate of the employee’s work schedule” at the time of hire. The estimate must be in the language the employer ordinarily uses to communicate with its employees and must include the following information:
- The median number of hours the employee can expect to work in an average one-month period;
- An explanation of the “voluntary standby list” (if the employer chooses to have one)
- Indicate whether an employee who is not on the voluntary standby list can expect to work on-call shifts. If so, the estimate must set forth an objective standard for when an employee not listed on the voluntary standby list may be expected to be available to work on-call
The estimate may be based on a prior year schedule if it is a good faith estimate of seasonal or episodic work.
What is the “voluntary standby list”?
Under the law, employers may choose to implement a “voluntary standby list.” This is a list of employees who the employer will request to work additional hours to address unanticipated customer needs or unexpected employee absences. Before creating this list, the employer must notify each employee in writing:
- That inclusion on list is voluntary;
- How an employee may request to be removed from the list;
- How the employer will notify a standby list employee of additional hours available
- How an employee may accept the additional hours;
- That the employee is not required to accept the additional hours offered; and
- That an employee on the standby list is not eligible for additional compensation (provided under this law) for the changes to the employee’s written work schedule resulting from the employee’s acceptance of additional hours offered to the employee as a result of being on the standby list.
Employees must “volunteer” (i.e. request in writing) to be included on the list following receipt of this notice. Employees can also request to be removed from the list at any time. Employers cannot retaliate against an employee not participating in the voluntary standby list.
When extra shifts become available, an employer may notify employees on the standby list through an in-person conversation, telephone call, email, text message, or other means of electronic or written communication of the opportunity. Employees on the list may decline the extra shift and an employer cannot retaliate against an employee for declining an extra shift.
Advance Notice of Scheduling
In addition to the initial estimate, employers are also required to give employees a written work schedule at least 7 calendar days prior to the first day on the schedule. NOTE: The advanced notice period changes to 14 calendar days advanced notice on July 1, 2020.
This schedule must contain all of the shifts an employee is required to work during the work period – including on-call shifts – and must also be posted in a conspicuous place in the workplace in English and in the language the employer typically uses to communicate with its employees.
If the employer makes changes to the to the written work schedule after the advance notice period (i.e. 7 calendar days prior to the first day of the work period), the employer must provide the employee with timely notice of the change by:
- in-person conversation,
- telephone call,
- electronic mail,
- text message or
- other accessible electronic or written format.
The employee may decline any work shifts not included in the employee’s written work schedule. Employees may also submit written requests to be added to the written work schedule. These requests are not subject to the advance notice requirements.
If an employer makes changes to the written schedule after the advanced notice period, the employer will be required to pay additional compensation to the affected employees as follows:
- One hour of pay at the employee’s regular rate 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 or start 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.
- 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 or start or end time of the employee’s work shift, resulting in a loss of work shift hours;
- Cancels the employee’s work shift; or
- Does not ask the employee to perform work when the employee is scheduled for an on-call shift.
The above penalties do not apply where:
- An employer changes the start or end time of an employee’s work shift by 30 minutes or less;
- An employee mutually agrees with another employee to employee-initiated work shift swaps or coverage. (Employers may require that work shift swaps or coverage be preapproved by the employer);
- An employee requests changes to the employee’s written work schedule, including adding or subtracting hours, and the employee documents the request in writing;
- An employer makes changes to an employee’s written work schedule at the employee’s request;
- An employer subtracts hours from an employee’s work schedule for disciplinary reasons for just cause, provided the employer documents the incident leading to the employee’s discipline in writing;
- An employee’s work shift or on-call shift cannot begin or continue due to threats to employees or property or due to the recommendation of a public official;
- Operations cannot begin or continue because public utilities fail to supply electricity, water or gas or there is a failure in the public utilities or sewer system;
- Operations cannot begin or continue due to a natural disaster or a similar cause not within the employer’s control, including when the natural disaster or similar cause physically affects the work site;
- Operations hours change or are substantially altered because a ticketed event is cancelled, rescheduled or changes in duration due to circumstances that are outside the employer’s control and that occur after the employer provides the written work schedule;
- An employer requests that an employee on a voluntary standby list work additional
- hours and the employee consents to work the additional hours.
Required Periods of Rest
The new law also mandates periods of rest between shifts as follows:
- 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.
If an employee is required to work through the rest period, the employee must be paid at 1.5 times the employee’s regular rate of pay for each hour or portion of an hour that the employee works during a rest period. However, the penalties do not apply if an employee requests or voluntarily agrees to work during the period od rest.
The Oregon Bureau of Labor and Industries will be publishing a poster regarding the new law that employers will be required to post in a prominent location in the workplace.
Take Home For Employers
It is recommended that all affected Oregon employers review the scheduling rules under the new law.