On April 25, 2018, the Oregon Bureau of Labor and Industries (BOLI) issued proposed rules implementing Oregon’s predictive scheduling law, Senate Bill 828, which will take effect on July 1, 2018. A link to the proposed rules is available on BOLI’s website.
The new law generally applies to Oregon employers with 500 or more employees worldwide that provide services relating to “retail trade,” “hotels,” “motels,” or “food services” as those terms are used in the 2012 North American Industry Classification System (NAICS).
The proposed rules clarify that to be covered under the law, an employer must be classified under an applicable NAICS code. This means that, for example, a hospital that operates a retail store on-site or offers food services is not covered. On the other hand, if the hospital contracts with another business to operate a retail store or food service operation, and the NAICS classifies that business as a covered employer, then the business’s employees are covered.
The proposed rules also provide that successor employers that are substantially the same entity are also covered. Whether an entity is “substantially the same” depends on a non-exhaustive list of factors including “(a) [s]ubstantial continuity of the same business operations (including the use of the same or similar business name); (b) [u]se of same business location, including use of the same telephone number, website, or other electronic media; (c) [p]eriod of time that elapsed between the employer’s cessation of operations and the successor employer’s initiation of operations; (d) [s]ubstantial continuity of the workforce . . . ; (e) [s]imilarity of products or services; and (6) [u]se of same machinery, equipment, or production methods.”
The predictive scheduling law applies to a covered employer's nonexempt employees who are employed in a retail, hospitality, or food services establishment. The law does not apply to salaried, exempt employees performing administrative, executive, or professional work.
The proposed rules clarify that only employees whose “primary duties” consist of performing activities relating to the retail, hospitality, or food service establishment are covered. As a general rule, “primary duty” means “the major part of an employee’s time.” For example, a cook and dishwasher employed at a chain restaurant would be covered, whereas a payroll clerk or bookkeeper would not be covered.
The law provides that separate entities that constitute an “integrated enterprise” will be considered a single employer for the purposes of determining the number of worldwide employees who provide services covered under the law.
The law also provides a list of nonexclusive factors that will be considered when determining whether two or more employers are an “integrated enterprise”:
- The degree of interrelation between the operations of the entities. The proposed rules state that evidence of such interrelation includes sharing of management services such as check writing; preparation of mutual policy manuals, negotiations, and business licenses; shared payroll and insurance; shared personnel and managers; shared office space, equipment, and storage; and the operation of the entities as a single unit.
- The degree to which the entities share common management. According to the proposed rules, this factor includes “the utilization of the same individuals to manage or supervise the different entities and the appointment of the same individuals to be officers and directors of the entities.”
- The degree to which the entities have centralized control of labor relations. This determination is based on the existence of a centralized source of authority for development of personnel policies; maintenance of personnel records by one entity over another (including screening and testing job applicants); shared human resources departments; frequency of transfers and/or promotions between entities; and the utilization of the same employment decision makers for the entities, among other factors.
- The degree of common ownership or financial control over the entities. The proposed rules state that evidence of common ownership or financial control includes “the exercise of ownership of the different entities by the same individuals and the ownership of the majority or all of the shares of one of the entities by the other; and the exercise of financial control of the different entities by the same individuals through required reporting of financial metrics, the determination of eligibility for expansion to new business locations, and requirements to meet sales or revenue targets.”
Joint Employer Standards
The proposed rule clarifies that BOLI intends to apply the predictive scheduling law to any covered joint employer, and that it will use the joint employment standards found in Title 29 of the Code of Federal Regulations Part 791, Section 2, as well as Part 825, Section 106, to determine which entities are joint employers.
Good Faith Estimate of Employee’s Work Schedule
The law requires employers to provide new hires 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 one-month period.
The proposed rules define “good faith estimate” as “a reasonable prediction which may be based on forecasts, prior hours worked by an employee or a similarly-situated employee, or other information.” For seasonal workers, employers may base the good faith estimate on the employee’s schedule during a previous year.
The proposed rules also clarify that the good faith written estimate must be provided “in the language the employer typically uses to communicate with the employee.” Also, the estimated median number of hours cannot be a range of hours; it must be a single number.
Work Schedule Posting Requirement
The law requires covered employers to post the written work schedule in a “conspicuous and accessible location.”
The proposed rules would allow employers to post the schedule electronically, provided all employees have access to the electronic schedule at the workplace. Note that employers must still display a physical poster at the workplace giving notice to employees of their rights under the new law.
The proposed rules set out different requirements for the amount of notice that is required for employees depending on whether they are returning from a leave of absence. A leave of absence includes one that is defined by law, the employer’s usual and customary policies, or a collective bargaining agreement. It also includes a leave of absence that is imposed by the employer for a bona fide disciplinary reason.
Existing employees who are not returning from a leave of absence must be given a written schedule at least 7 calendar days in advance of the first day of the work schedule. This will increase to 14 calendar days starting July 1, 2020.
For new hires and employees who are returning from a leave of absence, the employer may, on or before the employee’s first day, provide the employee with a schedule that runs through the last date of the currently posted schedule. Normal notice requirements apply for all subsequent schedules.
New employees and those returning from a leave of absence may include the following categories of employees: new employees at the time of hire; existing employees at time of transfer, promotion, or assignment to a new job classification; employees who are jointly employed; and any employee who returns from a defined leave of absence.
Changes to Written Schedule
The proposed rules also provide additional clarity for employers that want to make changes to a written schedule that has already been provided to an employee.
If the employer requests a change to the schedule, it must provide the employee with timely notice. Notice is timely when it represents “a good faith effort to contact the employee promptly and without undue delay after learning of the need for changing the employee’s work schedule.” The employee may decline work shifts not included in the employee’s written work schedule.
When an employer makes changes to a written work schedule more than 7 days before the first day of the schedule (or more than 14 days starting July 1, 2020), the rules state that this does not constitute a change to the employee’s schedule for which the employer must give timely notice or otherwise compensate the employee as prescribed in Oregon Revised Statutes (ORS) 653.436(5) or 653.455(2).
Timing of Payment
When an employer is required to compensate an employee for changes requested by the employer, the proposed rules provide that the employer must do so “no later than the regular payday for the pay period during which the compensation was earned.”
Employee Revocation of Consent to Working With Less Than 10 Hours Between Shifts
Under the law, employers cannot schedule employees to work within 10 hours following the end of a prior shift without the employee’s consent.
If an employee consents, the proposed rules clarify that the employee may revoke such consent by following the employer’s “usual and customary” procedures for making work schedule changes.
Mandatory Records Retention
The law requires employers to “retain records that document the employer’s compliance” with the predictive scheduling law.
The proposed rules expand on which records must be retained. They include:
- the written work schedules provided to the employees;
- an employee’s written requests to change his or her work schedule;
- a copy of the good faith estimate work schedule provided to new employees;
- if the employer maintains a voluntary standby list, the employer’s notification about the list and the employee’s agreement to be included on the list;
- a copy of the communication and/or materials provided to employees informing them of their rights under the law; and
- documents demonstrating the employer had “just cause” to subtract hours from an employee’s work schedule for disciplinary reasons. (“Just cause” is defined as “conduct that is of such a serious nature or extent that reducing the employee’s work hours may be considered an appropriate step to correct the behavior.”)
The proposed rules also make clear that employers must furnish these records to BOLI upon request.
Employees Covered by a Collective Bargaining Agreement
The proposed rules provide that unionized employees must be compensated under ORS 653.442 and 653.455 unless the collective bargaining agreement already provides a remedy equal to or better than that of the predictive scheduling law.
Unlawful Employment Practices
The law already prohibits employers from interfering with, restraining, denying, or attempting to deny any right afforded to employees under the predictive scheduling law.
Under the proposed rules, the list of protected activities include:
- inquiring about the predictive scheduling law;
- refraining from requesting or agreeing to be added to a voluntary standby list, requesting removal from a voluntary standby list, or declining an employer’s request to work more hours as result of the employee being on the standby list;
- declining to work shifts not included in the employee’s written work schedule;
- requesting to not be scheduled for work shifts during certain times or at certain locations; or
- declining to work with less than 10 hours between shifts.
The proposed rules allow BOLI to assess penalties up to $500 for failing to display the notice of rights.
The proposed rules also allow BOLI to assess penalties up to $1,000 for:
- failing to provide employees with a written schedule within the time required;
- failing to follow schedule posting requirements;
- failing to compensate employees as required when an employer requests a change to the schedule without advance notice;
- scheduling employees within the 10-hour rest period without the employee’s consent;
- failing to properly compensate employees for working within the 10-hour rest period;
- denying or attempting to deny an employee from exercising a protected right; or
- failing to follow the record retention requirements.
The proposed rules further allow BOLI to assess penalties up to $2,000 for:
- coercing employees into requesting or agreeing to be on the voluntary standby list;
- requiring placement on the voluntary standby list as a condition of employment; or
- requesting or requiring another person, including another employee, to require an employee to request or agree to be on the voluntary standby list.
The size of the penalty will depend on variety of mitigating and aggravating factors that will likely be assessed on a case-by-case basis.
No Impact on Calculating Employee’s “Regular Rate”
The proposed rules also amend preexisting overtime pay regulations to make clear that compensation received under the predictive scheduling law shall not be included in the employee’s regular rate for purposes of calculating overtime, absent an express written agreement between the employer and employee.
It bears reiterating that these proposed rules are not yet final, nor does this article cover every detail of the proposed regulations. Once the proposed rules are finalized, we will supplement this article. In the meantime, employers may want to start planning and preparing for the predictive scheduling law.