Oregon Requires Predictive Scheduling For Certain Service/Retail Workers Beginning July 1 - Employee Rights/ Labour Relations

Retail Did You Know?

Similar to San Francisco, Seattle, New York City, and Emeryville, California, the State of Oregon has enacted a predictive scheduling law, SB 828, effective July 1, which regulates employer scheduling practices in the food service, hospitality, and retail industries. Similar legislation also is currently pending in Chicago. This edition of Morgan Lewis Retail Did You Know? is an update to our August 18, 2017 edition, and takes a current look at the new law.

The New Law

SB 828 covers all nonexempt employees in the food service, hospitality, and retail industries, including hotels, motels, casinos, and retail trade companies operating in Oregon that have at least 500 employees worldwide. Whether an employer is deemed a retail, hospitality, or food services establishment for the purposes of the statute turns on the 2012 North American Industry Classification System (NAICS). Separate companies that form an integrated business are considered a single employer where one entity controls the operation of the other.

Consultants, leased workers, and certain salaried employees exempt from the Oregon minimum wage law under Or. Rev. Stat. Section 653.020(3) are not covered by SB 828. A salaried employee is exempt from the Oregon minimum wage law under Or. Rev. Stat. Section 653.020(3) if the employee is engaged in administrative, executive, or professional work and (1) performs predominantly intellectual, managerial, or creative tasks and (2) exercises discretion and independent judgment, including, for example, most store managers.

Oregon Issues Regulations

This month, Oregon provided its final regulations providing additional guidance on SB 828. The administrative rules are fairly similar to the proposed regulations issued earlier this year but clarify several points, including the application of the 10-hour rest period to split shifts that take place within one calendar day (discussed below).

Good-Faith Estimate of Work Schedule

At the time of hire, covered employers must provide a written, good-faith estimate of the employee's work schedule, which must include

the median number of hours the employee can expect to work in an average one-month period,
a description of the "voluntary standby list" (discussed below), and
whether an employee who is not on the voluntary standby list can expect to work on-call shifts; if so, the estimate must include an objective standard for when the employee may be expected to be available to work an on-call shift.

The good-faith estimate may be based on forecasts, prior hours worked by an employee or a similarly situated employee, or other information. In the case of seasonal or episodic work, a good-faith estimate may be based on an employee's work schedule during a previous year.

Voluntary Standby List

Employers are permitted to have a voluntary standby list of employees that the employer can ask to work additional hours because of unanticipated customer needs or unexpected employee absences. Inclusion on this list and election to take the additional hours offered must remain completely voluntary, and must be in writing and at the discretion of the employee.

A voluntary standby list must notify employees in writing

that the list is voluntary, and include instructions on how employees can be removed from the list without consequence or retaliation;
how employees on the list will be notified of available work, and how employees may accept additional hours;
that employees can accept or reject the additional hours without any repercussion, i.e., no retaliation; and
that an employee is not eligible for additional compensation otherwise provided for under this law (discussed below) for changes to the employee's schedule when s/he accepts additional hours offered.

Notification regarding additional hours to employees on the voluntary standby list can be made orally in person or by phone, or in writing by letter, email, text message, or other means of reasonable communication.

Advance Notice of Work Schedule and Ability to Refuse Schedule Change

Employers must give covered employees a written work schedule at least seven calendar days before the first day of the schedule. The written work schedule must include all work shifts, including on-call shifts, for the work period. The advance notice period increases to 14 days on July 1, 2020.

Employers must provide new employees with a written work schedule that runs through the last day of the posted schedule on or before their first day of work. Employers must provide the same to an existing employee on their first day of work after returning from a leave of absence.

If an employer changes the work schedule, it must notify affected employees in a timely manner.

Employers cannot require employees to work any shift that was not included in the employees' written work schedules. Employers do not need to provide advance notification of written employee-initiated schedule changes, including requests for more work shifts or on-call work shifts.

Employers must post the written work schedules in a conspicuous and accessible location, in English and in the language(s) the employers typically use to communicate with their employees. This posting of work schedules may employ an electronic system as long as all employees are provided access to the electronic schedule at the workplace and are able to view the work schedules of all employees employed in the same location.

Right to Schedule Input

At any time, an employee may identify limitations or changes in the employee's ability to work and may request not to be scheduled for certain work shifts or at certain locations. The employer, however, need not grant the request under this law. The employer also may require the employee to provide reasonable verification of the need for such a request.

Compensation for Changes to Work Schedule

Employers must pay additional compensation for changes to employees' work shifts where proper advance notice was not provided.

If a change to an employee's shift does not result in a loss of pay, the employee is entitled to one hour of the employee's regular rate of pay in addition to wages earned if

the employer adds more than 30 minutes of work to the employee's work shift,
the employer changes the date or start or end time of the shift but no hours are lost, or
the employee is scheduled for an additional shift or on-call shift.

If a change to an employee's shift results in a loss of hours for the employee, the employee is entitled to receive half the employee's regular rate for each lost hour if

the employer subtracted the hours from the employee's shift,
the employer changed the date or start or end time of the shift resulting in lost hours,
the employer cancels the employee's shift, or
the employee is not required to work when scheduled for an on-call shift.

Employers do not owe compensation for

changes of 30 minutes or less to the start or end time of a work shift,
employees voluntarily swapping shifts;
employee-initiated changes to the schedule if documented in writing;
subtracted hours from a shift for documented disciplinary reasons;
employee-accepted hours needed to address unanticipated customer needs or unexpected employee absence where (1) the employee consents in writing to the additional hours, (2) the employer has already contacted all of the qualified and trained employees on any voluntary standby list, and (3) either the employee is already working a shift at the time of the request or the employer makes the request through a group communication;
employee-accepted standby hours; or
schedule changes and/or reduced hours due to events that are threats to employees, utility failure, natural disaster, or cancellation of a ticketed event.

Ten-Hour Rest Period Between Shifts

All employees are entitled to a 10-hour rest period between shifts on different calendar days, unless the employee agrees to work. This rule does not apply to split shifts that take place within one calendar day. If an employee is required to work within the 10-hour rest period, the employee is entitled to 1.5 times the employee's regular rate of pay for every hour or portion of an hour worked, unless the employee is engaged in roadside assistance services.

No Discrimination or Retaliation

Employers are prohibited from discriminating or retaliating against any employee who exercises his or her rights under this law.

Posting Requirement

Employers must display the poster developed by the Oregon Bureau of Labor and Industries in a conspicuous place in the workplace, or provide the poster to employees on an individual basis if displaying the poster is not feasible.

Violations and Litigation Risks

As of January 1, 2019, employees may also pursue private, civil causes of action for discrimination and/or retaliation claims under this law. For all other violations of this law, employees may file complaints with the Oregon Bureau of Labor and Industries.

Practical Implications

Retailers should develop policies and procedures to both manage and document their compliance with the law's scheduling and notice requirements. Employers must retain these records for three years. Retailers should also train managers on how to properly schedule employees for work.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

United States: Oregon Requires Predictive Scheduling For Certain Service/Retail Workers Beginning July 1