Governor Signs Oregon’s “Predictive Scheduling” Law

By Benjamin P. O'Glasser - Bullard Law

August 8, 2017

On August 8th, the Oregon Governor signed into law Senate Bill 828, which provides that large employers in the retail, hospitality, and food services industries must pay additional compensation to employees for certain scheduling changes.  The law also permanently extends statewide preemption of local governments to enact requirements related to work schedules.   Here is a summary of the major components.  The scheduling requirements of the law go into effect July 1, 2018.  Bullard Law will conduct a training on September 14, 2017 to provide more detail of this new law and help employers understand how this will affect their day-to-day operations.

Covered Employers

Employers of 500 or more employees in the retail, hospitality, and food services industry are covered by the law.  These industries are defined by reference to North American Industry Classification System codes.  Separate entities that form an integrated enterprise, including all employees nationwide, are counted together for the purposes of determining whether a company meets the threshold number of employees.  Covered employers must maintain records of compliance with the law for three years.

Covered Employees

Oregon’s law covers all non-salaried employees of a covered employer who are engaged in the work of a covered industry.  For purposes of the law, temporary or leased workers are not considered employees of their assigned company.

Employee Protections

At the time of hire, employers are required to give employees a good faith estimate of their monthly schedule.  The estimate must state whether and under what circumstances employees will be required to work on-call shifts. 

In addition, and on an ongoing basis, employers must provide employees with written work schedules at least seven days prior to the beginning of a schedule.  For example, if a company assigns employees to shifts on a monthly schedule, then all shifts (both regular and on-call) for the month must be assigned and the schedule published a full week before the end of the prior month. The notice period will increase to fourteen days on July 1, 2020. 

Once a schedule is published, any changes initiated and imposed by the employer result in additional compensation due to the employee.  Employers must pay one hour of additional compensation for any change to the date or start or end time of a shift that does not involve a loss of hours for the employee.  In addition, employers must pay an employee half of their regular rate of pay for any reduction in hours or for on-call shifts where an employee is not called into work.  Finally, employees cannot be required to work during the ten hour period after any shift, and receive time and a half for any hours that they agree to work during that protected break period.

The law provides numerous exceptions to the compensation requirements, including for minor scheduling changes (30 minutes or less), changes at the employee’s initiative (including mutually agreed shift swaps), hours reductions due to documented discipline, scheduling impacts caused by natural disasters or loss of utilities, and—under certain circumstances—an employee’s voluntary acceptance of additional hours.

Employees have a right to request input into the schedule by identifying any limitations in their availability at certain times or locations, but employers are not obligated to grant such requests.  The law is not intended to create any additional requirements on requested schedule changes related to federal or state family leave or disability laws.

On-Call vs. Standby List

Oregon’s law distinguishes between on-call schedules and voluntary standby lists.  An on-call shift is one where the employee may be required to report for work if called.  Such shifts trigger compensation requirements as detailed above.  In contrast, employees on a voluntary standby list are not eligible for additional compensation when they agree to cover an additional shift.  In order to create a voluntary standby list, employers must provide employees with written notification regarding the effect of the list and obtain written consent that the employees agree to be placed on the list.

Enforcement

Employers are prohibited from interfering with, restraining, or denying the exercise of any rights under the predictive scheduling law.  It is unlawful for an employer to retaliate or discriminate against an employee for inquiring about provisions of the sections of the law.  Oregon’s law will be enforced by the Bureau of Labor and Industries, which will investigate alleged violations of the law beginning on July 1, 2019, and can impose fines of up to $1,000. Employees will also have a private right of action for alleged violations.

Preemption

If the Oregon legislature had taken no action on regulation of work hours, Oregon’s statewide preemption of local scheduling laws which had previously been passed would have expired this year.  Now, that preemption is extended permanently, avoiding the potential for varied and more far-reaching requirements as we have seen elsewhere.  For example, relative to Seattle’s local ordinance, Oregon’s law is quite moderate. 

Next Steps

Oregon employers should evaluate whether their operations are covered by the predictive scheduling law. Covered employers should begin the process of conforming their on-call systems to the new law, including obtaining employee consent for voluntary standby lists and developing procedures for filling shifts on a voluntary basis before incurring the new costs of requiring employees to report to work.  Many covered employers already were evaluating their staffing patterns in light of Oregon’s recent minimum wage hike; predictive scheduling creates additional pressure on employers to identify efficiencies in staffing.

Please contact us if you would like Bullard Law to analyze the impact of this new law on your organization.