Oregon First State to Enact Secure Scheduling Law on Employers

Fair Scheduling Law Starts July 2018

Calling it the Fair Scheduling Law may make the new Oregon law appear fairer, but to Oregon businesses, SB 828 means greater fines and penalties. Already cities with restrictive scheduling laws such as Seattle and San Francisco have seen drastic decreases in business growth and unprecedented job and income loss. 

Yet that hasn’t stopped New York and San Jose from implementing their own strict laws.

Unlike other restrictive scheduling laws, the Oregon law doesn’t exempt union employees in an attempt to push companies to unionize.

Yet, that doesn’t mean that there aren’t steep costs and penalties associated with non-compliance of the new law. It also means that employers without a workforce management system like SwipeClock will have a very difficult time maintaining compliance.

Oregon’s Secure Scheduling Law also called the Fair Work Week Act, becomes effective on July 1, 2018.

Employers must post employee schedules a minimum of 7 days in advance. Starting in 2020, employers must provide employee schedules at least 14 days in advance.

Preemption Built Into Fair Work Week Act

The law garnished bipartisan support in part because it preempts local government organizations and sub-divisions from passing any other laws pertaining to scheduling.

In the past, Oregon has passed preemptive laws simultaneously to passing statewide employment laws such as the Oregon Sick Leave Law which phased out Eugene’s and Portland’s local laws.

Covered Employers & Employees Under SB 828

All employers who have 500 employees or more in specific industries must comply with the new law.  The industries affected by the law include businesses related to retail trade, hospitality, hotels, motels, and food services as defined by the 2012 North American Industry Classification System.

For the purposes of employee count, individual entities that comprise an Integrated Enterprise are considered a single employer.

That means that locally owned restaurants like Domino’s will need to follow these rules although the franchise may only employ 30 employees. These employers will need to have a software solution in place to offset the additional time and documentation required by the law.

Employees covered by the new law are non-exempt employees. Exempt and salary employees that perform administrative, professional and executive duties are not covered under the new scheduling requirements.

Additionally, employees that are supplied to an employer by a worker leasing company are exempt. Lastly, any employee of a business that provides services to or on behalf of an employer is also exempt.

Union employees are not exempt from scheduling requirements.

Business Requirements for Scheduling

Under the new law, employers must provide employees with their schedule with advanced notice of 7 days.

Any changes to employees schedules within the notice guidelines require additional wages to be paid to employees and give employees the authority to deny any scheduling changes. Additionally, employees must have at least 10 hours between shifts for rest.

New hires must be given a “good faith estimate” on or before they start work. The estimate must include the average number of hours they will be working on a monthly basis, and whether or not the employee can be included on a voluntary “on call” list for additional hours.

For seasonal employees, the good faith estimate can be based on the previous year or season’s schedules.

Employers must provide at least a 7-day notice for any scheduled hours from the first day of the work schedule. Employees who are returning from a leave of absence must be provided with their schedule on their first day of work after the absence.

Starting on July 1, 2020, the notice must be at least 14 days in advance.

Employees must be given at least 10 hours of rest between schedules. One exception is if the employee agrees to work during the rest period, but in this instance, the employee must be paid time and a half.

The other exception is if an employee is providing roadside assistance to a disabled vehicle.

An employee must be allowed to request specific schedules, limitations, or changes in their availability. They can also request not to work during certain periods or in certain locations.

Employees are protected from retaliation for stating these preferences and employers are under no obligation to grant requests.

If the employer must make changes within the 7-day window they must promptly notify the employee of the changes and the employee has the right to deny changes to the work schedule.

Work schedules must include any on-call shifts for which the employee is scheduled.

• 10 hours of rest between shifts
• Good Faith Estimate for new employees before employment commences
• Schedules provided on the first day of work following an absence when the employee has been on leave
• Schedules provided at least 7 days before the first day on the schedule
• Work schedules must include on-call shifts
• Employees have the right to deny to work any changes to schedules that are less than 7 days in advance

Employer Wage Penalties for Schedule Changes

Oregon imposes a series of wage penalties anytime the schedules are changed. These penalties are paid to the employees for the inconvenience of changed schedules.

First, there are wage penalties where the employer is required to pay the employee 1 hour of pay in addition to the regular wages earned. This happens when more than 30 minutes is added to an employee’s shift.

Anytime that an employee’s schedule changes either the date or the start or end time without the employee losing any total hours worked, the employer must pay an additional 1 hour of pay for those changes.

When employees are scheduled for additional work without advanced notice, then the extra hour of wages must also be paid unless the employee has agreed to be on a voluntary standby list for additional hours.

When the employee loses scheduled hours, then the employee must pay half the wages for the hours that the employee was scheduled for, but lost. This includes anytime that the employer subtracts hours from the employee’s schedule.

It also includes changes in the schedule that results in a loss of hours or cancellations of the employee’s scheduled shifts. Finally, half wages must be paid when the employee is scheduled for on-call shifts that they are not calling into work for.

Employer Options for Unexpected Changes

Employers have some exceptions and specific circumstances which allow them to circumvent the additional wages owed to employees when their schedules changes.

First, businesses can maintain a “voluntary standby list of employees” who are willing to pick up extra shifts and have requested or agreed in writing to work extra shifts.

This is a common sense approach that many previous scheduling laws have not provided. In other words, this allows employees to pick up extra shifts without penalizing the employees. Employees on the list are free to decline additional hours.

When additional hours are accepted, these employees don’t receive 1 ½ their hourly wages for working additional hours not posted in advance.

Another exception is when an employee’s shift starts or ends within 30 minutes of the original schedule.

Employees are also allowed to shift swap without causing additional penalties to their employers.

Schedule changes that are made in response to an employee’s written response are also exempt from additional wages to the employee.

Employees who are disciplined through a reduction in hours or a leave from work are not eligible for missed wages as long as the employer documents the reasons for the discipline and the incident response.

Another exception is when shifts are canceled due to threats to either employees or public official recommendations.

Lastly, when shifts are canceled due to public utility failures such as natural gas, electricity, water, or sewer. This also includes canceled shifts from natural disasters, or when a ticketed event is canceled, rescheduled, or changed in duration due to circumstances outside the employer’s control.

• Volunteer Standby Employees are not paid extra
• Schedules changing less by 30 minutes or less in start and end of a shift
• Employee Swap
• The employee requested a schedule change
• Employee discipline
• Canceled shifts from threats or public official recommendation
• Ticketed events canceled, changed or rescheduled
• Canceled shifts due to natural disasters
• Canceled shifts due to public utility failures

Notice Requirements

Employers are required to provide notice to employees of the new law. In addition, all record relating to scheduling, shifts, and wages must be kept for a minimum of 3 years.

Employers must post schedules in English and in any other language the employer normally uses to communicate with employees. $500 penalty for violations of the posting requirements.

Restitution after non-compliance with the law

The Oregon Bureau of Labor and Industries (OBLI) is responsible for penalizing employers who don’t comply with the law.

In addition to the OBLI, employees can also file a lawsuit against employers who fail to comply with the law.

There are a number of fines and penalty that an employer can be subject to. For most provisions, each violation carries a fine of $1,000.

Employers who coerce an employee into agreeing to be on the voluntary standby list are subject to a $2,000 fine per violation. Each day is a separate violation.

Employees may file a civil suit for restitution of wages, punitive damages, compensatory damages, and civil penalties.

Civil penalties can be up to 50,000 for the first violation and 100,000 for a second violation.

Let SwipeClock Help

In addition to Oregon, businesses in New York, San Jose, Seattle and other cities have to comply with restrictive scheduling laws. Both the document retention and the ability to schedule and plan employee schedules is nearly impossible without a good workforce management software.  

Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

Resources

The Oregon SB 828

Written by Annemaria Duran. Last updated on September 15, 2017