Hunton Retail Law Resource

Oregon’s Fair Work Week Act (also known as Oregon’s predictive scheduling law) (the “Act”) is proceeding full speed ahead and will add significant challenges and costs for retailers. The majority of the Act goes into effect on July 1, 2018. Following similar ordinances regulating employee hours passed at municipal levels in Emeryville, California; New York City; San Francisco; San Jose; Seattle; and Washington, D.C., Oregon becomes the latest jurisdiction and the first state to enact a predictive scheduling law. 

Who’s Covered?

Oregon’s new law applies to large Oregon employers (with 500 or more employees worldwide) in the retail, food services and hospitality (hotels/motels) industries, and includes chains and integrated enterprises.

Hourly employees in a retail, food services and hospitality establishment are covered. Notably, salary exempt employees and those supplied by a temporary employee agency are not covered by the new law.

What’s Required?

Good Faith Estimate of Work Schedule at Time of Hire. Employers must provide new employees with a written, good faith estimate of the work schedule at the time of hire that:

• states the median number of hours the employee can expect to work in an average one-month period;
• explains the voluntary standby list (described below);
• indicates whether an employee who is not on the voluntary standby list can expect to work on-call shifts and, if so, sets forth an objective standard for when an employee not listed on the voluntary list may be expected to be available to work on-call shifts; and
• may be based on a prior year schedule if it is a good faith estimate of seasonal or episodic work.

Right to Input into Work Schedule. At time of hire and during employment, an employee may identify any limitations or changes in work schedule availability and may also request not to be scheduled for work shifts during certain times or at certain work locations. While an employer may not retaliate against an employee for making such a request, the employer is under no obligation to grant the employee’s request.

Voluntary Standby List. Employers may maintain a voluntary standby list of employees whom the employer may request to work additional hours to address unanticipated customer needs or unexpected absences. Employees may only be included on this list if they’ve requested or agreed in writing. If the employer requests these employees to work extra hours, and they agree to work the extra hours, these employees are entitled to their regular wages only. If the employer requests employees who are not on the voluntary standby list to work extra hours, these employees are entitled to payment of one extra hour of wages as described further below.

Advance Notice of Work Schedule. Beginning July 1, 2018, covered employers must also provide covered employees with a written work schedule seven days in advance of the first day of the scheduled work. Beginning July 1, 2020, the notice period increases to 14 days. To the extent new hours are added to the employee’s established schedule without the required advanced notice, the employee may refuse to work those additional hours and employers may not discipline the employee (or otherwise retaliate against the employee) for refusing the additional hours. If the employee accepts those new hours, then the employee will be entitled to extra compensation beyond regular wages.

Compensation for Work Schedule Changes. When changes are made to the employee’s written work schedule without advance notice, the employee is entitled to one hour of extra pay at the employee’s regular rate of pay when the employer:

• adds more than 30 minutes of work to an employee’s shift;
• changes the date or time of the employee’s shift with no loss of hours; or
• schedules the employee for an additional work shift or on-call shift.

The employee is entitled to one-half of the employee’s regular wages (i.e., half-time) 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 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.

Exceptions to these compensation rules include: (1) when an employee agrees with another employee to employee-initiated work shift swaps (although the employer may require preapproval for such swaps); (2) an employee requests a change and that request is documented in writing; (3) an employer subtracts hours for disciplinary reasons; (4) health, safety or event changes that are outside of the employer’s control necessitate a change; and (5) requests are made of employees pursuant to the voluntary standby list policy and requirements.

Right to Rest Between Shifts. Unless the employee requests or consents to work such hours, the employer may not schedule or require an employee to work during the first 10 hours following the end of a previous calendar day’s work or on-call shift, or the first 10 hours following the end of a work or on-call shift that spanned two calendar days. Otherwise, the employer must compensate the employee for each hour or portion of an hour that the employee works at the rate of one and one-half times the employee’s regular rate of pay.

Notice Requirements. Each employer must display BOLI’s poster (written in English and in the language the employer typically uses to communicate with employees) giving notice of the rights described in the Act. Additionally, each employer must retain records that demonstrate the employer’s compliance with the Act for three years.

No Retaliation. The statute prohibits employers from retaliating against employees who assert their rights under the Act or who make requests for particular shifts.

Concluding Thoughts

Covered employers in Oregon should take immediate action to (1) ensure they have policies and processes in place to comply with the new law; (2) train managers and supervisors; (3) obtain and post the required notices; and (4) review record keeping practices to ensure compliance. Violations of the law can trigger city fines of $500 to $2,000 per employee for each day of violation. Moreover, the law also authorizes private lawsuits beginning January 1, 2019.

Employers that are not covered by Oregon’s Fair Work Week Act should continue to monitor this growing trend of state and local regulation concerning employee hours and scheduling.