New Oregon Law Imposes Scheduling and Working Hours Obligations on Employers

A new Oregon statute will require certain large employers to provide their Oregon employees with advance notice of their work schedules.  The notice period will initially be 7 days starting next year before increasing to 14 days in 2020.  “Predictive scheduling” requirements have been considered by legislatures in several states in recent years, and a number of cities have adopted predictive scheduling ordinances, but Oregon’s is the first to actually become a statewide law.

Oregon Governor Kate Brown signed the bill, Senate Bill 828, into law on August 8, 2017.  The new law will require affected employers to implement substantial changes in their scheduling policies and practices.  Most of the bill’s provisions will go into effect on July 1, 2018, meaning that affected employers must begin making preparations immediately to ensure compliance with the law’s requirements.

What Companies Are Affected?

The new law applies to employers with 500 or more employees in three specific industries: retail, hospitality (including casinos), and food services.  The statute calculates a company’s number of employees “based upon the average number of employees employed on each working day during each of 20 or more workweeks in the current calendar year or immediately preceding calendar year.”  The law considers two companies to be a single employer if one is a subsidiary of the other.

What Do Affected Employers Have to Do?

The statute imposes new obligations on employers both at the beginning of the employment relationship and through the duration of that relationship.

Good-Faith Estimate of New Employees’ Anticipated Work Schedules

At the time of hiring, the bill requires affected employers to provide a “written good faith estimate of the employee’s work schedule.”  The estimate must state “the median number of hours the employee can expect to work” in an average month.  The employer must also inform new employees whether they can expect to work on-call shifts.  Alternatively, the employer and employee can agree that the employee will be on a “voluntary standby list” to work additional hours “to address unanticipated customer needs or unexpected employee absences.”  Employers must provide this good faith estimate “at the time of hire.”

Advance Notice of Employee Work Schedules

The bill further requires employers to provide employees with advance notice of their work schedules.  The advance notice must be at least 7 days starting on July 1, 2018, and the notice period increases to 14 days on July 1, 2020.  The schedules must be posted “in a conspicuous and accessible location” and must “include all work shifts and on-call shifts” for the period covered by the work schedule.  The statute gives employees the right to decline shifts that are not included in this written schedule.  The advance notice requirement does not apply to additional shifts that employees themselves request to work.  Employees also have the right to request specific schedules, but employers are not required to grant such requests.

Employers face penalties if they change an employee’s schedule after the two-week notice period. Employers must pay one hour of wages at the employee’s regular rate of pay for each changed shift, in addition to wages earned, if they add more than 30 minutes to a shift; change the date, start, or end time of a shift; or schedule the employee for additional shifts. In addition, if an employer cancels or shortens an employee’s shift or otherwise reduces the employee’s scheduled hours after the two-week notice period, the employer must pay half the employee’s regular rate of pay for each hour that the employee does not work. These penalties do not apply if the employee is on the “voluntary standby list” mentioned above; if the employer changes the start or end time by 30 minutes or less; or if the employee exchanges shifts with a co-worker.  The penalties also do not apply if an employee’s schedule is altered as a result of documented disciplinary action or because of an unforeseen emergency such as a loss of power or a natural disaster.

Minimum Rest Period Between Shifts

In addition, the new law requires employers to provide employees with a minimum 10-hour rest period between shifts “[u]nless the employee requests or consents” to a shorter rest period.  Employers must pay time-and-a-half to employees who work during this required rest period.  It is not clear from the statutory language whether employers must pay time-and-a-half to employees who request or consent to a shorter rest period.

Additional Provisions

The statute prohibits employers from retaliating against employees who assert their rights under the statute or who make requests for particular shifts.  It also gives employees a right to file a civil suit against employers for violations of the statute.  In addition, the Commissioner of Oregon’s Bureau of Labor and Industries (BOLI) has authority to assess civil penalties of up to $1,000 per violation.  The statute also preempts any municipal or county ordinances relating to employee work schedules, so that employers will have the same employee scheduling obligations throughout the state.

When Does the Law Go Into Effect?

Most of the law’s provisions go into effect on July 1, 2018, although the notice period will jump to 14 days starting July 1, 2020.

Next Steps

Employers with locations in Oregon should take steps to prepare for implementation of the new requirements:

  • Employers in the retail, hotel, motel, hotel casino, and food services industries should determine whether the law applies to their operations.
  • Ensure that management can access historical business data for Oregon locations on a weekly or daily basis.  This data will be useful in estimating business and staffing needs going forward, allowing more accurate scheduling of employees.  Employers that do not currently maintain notes or reports on Oregon business levels should consider doing so.
  • Modify policies and procedures inconsistent with the new law and consider how best to incorporate its requirements into existing policies and procedures.
  • Train human resources, payroll, and managerial staff on the new requirements.
  • Begin to draft the necessary good-faith estimate of work schedule, voluntary standby list notice and consent, and notices of work schedules to be used when the law becomes effective, as well as the other types of notices required or recommended under the law (e.g., memorialization of employee request or consent to work within 10 hours following the last shift).
  • Consider adding a summary of covered employees’ rights in existing employee handbooks, offer letters, or orientation materials.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.