839-026-0000
Definitions

As used in ORS 653.412 to ORS 653.485 and these rules:

(1) "All of the employees listed on the voluntary standby list," as used in ORS 653.455(3)(k)(C), means those employees on the voluntary standby list who are qualified and trained to perform the work for which additional hours are being offered.

(2) “Business that provides services to or on behalf of an employer,” as used in ORS 653.412(2)(b)(C), means a business that is wholly distinct from and ancillary to the covered employer’s primary business function of providing retail, hospitality or food services.

(3) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

(4) "Eligible employees," as used in ORS 653.455(1)(a), means employees who are qualified and trained to perform the work for which additional hours are being offered.

(5) “Fixed point of sale location” means the location where the employee works, or reports to work, and refers to the entirety of such location, including areas open and closed to the public.

(6) “Natural disaster or a similar cause,” as used in ORS 653.455(3)(h), means an act of nature of such magnitude that it is capable of causing severe damage to property or significantly disrupting the day-to-day patterns of life, including but not limited to floods, earthquakes, volcanic eruptions, tsunamis, wildfires, snowstorms, or extreme temperatures, or other types of hazards caused by human actions, including but not limited to fires, explosions, war or civil unrest, that are capable of causing severe damage to property or significantly disrupting the day-to-day patterns of life.

(7) “Recommendation of a public official,” as used in ORS 653.455(3)(f), means a recommendation or order from an individual serving a public entity in an official capacity as a law enforcement officer or firefighter or from a public official expressly authorized to represent a federal, state, or local governmental body or agency for purposes of emergency management.

(8) “Regular rate of pay,” for purposes of computing compensation owed to an employee who has worked during a rest period required by ORS 653.442 or whose work schedule has been changed without advance notice as described in ORS 653.455, means the regular hourly rate that the employee was to be paid for the pay period during which the compensation required by ORS 653.442 or ORS 653.455 was earned, but in no case will the regular hourly rate be less than the applicable statutory minimum wage rate. An employee’s regular rate of pay shall be determined as follows:

(a) For employees paid on the basis of a single hourly rate, the regular rate of pay means the same hourly rate the employee earned for work performed during the pay period.

(b) For employees who are paid multiple hourly rates of pay, the regular rate of pay means the hourly rate of pay the employee was to be paid for:

(A) The work period or shift that commences prior to the required 10-hour rest period having been satisfied when the employee is required to be compensated for work performed during a rest period required by ORS 653.442; or

(B) Work performed during the work period or shift affected by the employer-requested change in schedule when the employee is required to be compensated for a work schedule change pursuant to ORS 653.455; or

(C) When the employee earns multiple hourly rates of pay during the work period or shift, the weighted average of the hourly rates of pay for the work period or shift.

(c) For employees paid a salary, the regular rate of pay means the employee’s total wages earned during the pay period covered by the salary divided by the number of hours agreed to be worked in the pay period which the salary is intended to compensate. For example, if an employee is paid a weekly salary of $525 and it is understood that the salary is compensation for a regular work week of 35 hours, the employee’s regular rate of pay is $15 per hour ($525 divided by 35 hours). For an employee paid a salary whose hours of work vary from work week to work week, the regular rate of pay is determined by dividing the amount of the salary by the number of hours worked in the pay period.

(d) For employees paid on a commission or piece-rate basis only, the regular hourly rate of pay is determined by adding together the total earnings for the pay period and dividing this sum by the number of hours worked during the pay period.

(e) For employees paid an hourly, weekly or monthly wage and also paid on a commission or piece-rate basis, the regular rate of pay means the rate of pay equivalent to the employee’s hourly, weekly or monthly wage.

(f) For employees who are scheduled to work on an on-call basis, the regular rate of pay means the rate of pay the employee will earn when called in to perform work.

(g) The regular rate of pay does not include:

(A) Overtime, holiday pay, or other premium rates. However, where an employee’s regular rate of pay includes a differential meant to compensate the employee for work performed under differing conditions (for example, a shift differential for working at night), such a differential rate is not considered to be a premium;

(B) Bonuses or other types of incentive pay;

(C) Tips; or

(D) Any additional compensation an employer is required to pay an employee under ORS 653.442 or 653.455.

(9) “Unanticipated customer needs,” as used in ORS 653.432(1) and ORS 653.455(3)(k)(A), means an increase in customer demand which by its nature could not have been predicted on or before the date on which the employer issued the work schedule.

(10) “Unexpected employee absences,” as used in ORS 653.432(1) and ORS 653.455(3)(k)(A), means absences for which the employer did not have notice on or before the date on which the employer issued the work schedule.

(11) “Worker leasing company,” as used in ORS 653.412(2)(b)(B), means a worker leasing company, as defined in ORS 656.850(1), that is licensed as required by ORS 656.855.

(12) “Writing” or “written” means a printed or printable communication in physical or electronic format including a communication that is transmitted through electronic mail, text message or a computer system or is otherwise sent and stored electronically.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0010
Covered Employees and Integrated Enterprises

(1) ORS 653.412 to ORS 653.485 applies to employees who are employed in a retail, hospitality, or food services establishment and whose primary duties consist of performing activities relating to the retail, lodging or food service operations of those establishments. For example, an employer that operates a chain of restaurants employs servers, cooks, bartenders, and dishwashers to prepare and serve food and beverages. The employer also employs a bookkeeper, payroll clerk, and human resources specialist to carry out other functions for the business. While the provisions of ORS 653.412 to ORS 653.485 apply to those employees performing duties associated with food service, they do not apply to employees whose primary duties are not related to the food service operations. For the purposes of this rule, “primary duty” means, as a general rule, the major part of an employee’s time.

(2) Whether an employer is a retail, hospitality, or food services establishment for the purposes of ORS 653.412 to ORS 653.485 depends on whether the employer’s operations are classified as a retail, hospitality, or food services establishment under the 2012 North American Industry Classification System (NAICS). Where, as part of its operations, an employer provides retail, hospitality, or food services but is not classified by NAICS as a retail, hospitality, or food services establishment, the employer’s employees are not employed in a retail, hospitality, or food services establishment. For example, a hospital that, as part of its own operations, also employs employees to provide food services or operate a retail gift store is not a food services establishment or retail establishment. However, if the hospital contracts with another business to provide food services or operate a retail gift store within the hospital, and the NAICS classifies such a business as a food services or retail establishment, the business’s employees are employed in a food services or retail establishment.

(3) For purposes of ORS 653.422, separate entities are deemed to be parts of a single employer when they constitute an “integrated enterprise.” The employees of all entities making up the integrated enterprise must be counted in determining employer coverage. Whether or not separate entities form an integrated enterprise is determined by applying the factors identified in ORS 653.422(3) and section (4) of this rule. While all of the factors should be considered in assessing whether separate entities constitute an integrated enterprise, it is not necessary that all factors be present, nor is the presence of any single factor dispositive.

(4) An integrated enterprise is one in which the operations of two or more employers are intertwined to such a degree that they can be considered a single employer. The factors to be considered in determining whether separate entities should be treated as an integrated enterprise include, but are not limited to:

(a) The degree of interrelation between the operations of multiple entities, which includes but is not limited to the sharing of such management services as check writing, the preparation of mutual policy manuals, contract negotiations, and the completion of business licenses; the sharing of payroll and insurance programs; the sharing of services of managers and personnel; the shared use of office space, equipment, and storage; and the operation of the entities as a single unit;

(b) The degree to which the entities share common management, including but not limited to the utilization of the same individuals to manage or supervise the different entities and the appointment of the same individuals to be officers and directors of the entities;

(c) The degree to which the entities have centralized control of labor relations, including but not limited to the existence of a centralized source of authority for development of personnel policy; maintenance of personnel records by one entity for the other, including the screening and testing of applicants for employment; the sharing of a personnel or human resources department; the frequency of transfers and promotions of personnel between the entities; and the utilization of the same individuals to make employment decisions for both entities; and,

(d) The degree of common ownership or financial control over the entities, including but not limited to the exercise of ownership of the different entities by the same individuals and the ownership of the majority or all of the shares of one of the entities by the other; and the exercise of financial control of the different entities by the same individuals through required reporting of financial metrics, the determination of eligibility for expansion to new business locations, and requirements to meet sales or revenue targets.

(5) Pursuant to ORS 653.412(3), the definition of an employer includes any business or enterprise that is a successor to the employer, as defined in ORS 653.412(10). Whether or not a business or enterprise is substantially the same entity as the employer which preceded it is determined by applying the factors identified in section (6) of this rule, with no single factor being determinative.

(6) The factors to be considered in determining whether a business or enterprise is a successor to the employer include, but are not limited to:

(a) Substantial continuity of the same business operations, including use of the same or similar business name;

(b) Use of the same business location, including use of the same telephone number, website, or other electronic media;

(c) Period of time that elapsed between the employer’s cessation of operations and the successor employer’s initiation of operations;

(d) Substantial continuity of the work force, including supervisory personnel;

(e) Similarity of products or services; and,

(f) Use of the same machinery, equipment, or production methods.

Statutory/Other Authority: ORS 651.060(4) & ORS 653.422(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0020
Good Faith Estimate of Work Schedule

(1) For new employees, the employer shall provide the employee, at the time of hire, with a written good faith estimate of the employee's work schedule. The good faith estimate, which must be provided in the language the employer typically uses to communicate with the employee, shall include the median number of hours as defined in section (3) of this rule the employee can expect to work in an average one-month period, an explanation of any voluntary standby list maintained by the employer pursuant to ORS 653.432, and a statement indicating whether an employee who is not on the voluntary standby list may expect to work on-call shifts and an objective standard for those periods of time in which the employer will expect the employee to be available to work on an on-call basis.

(2) A good faith estimate is a reasonable prediction which 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.

(3) The median number of hours is the middle number in an odd-numbered sequence or the average of the two middle numbers in an even-numbered sequence (e.g., 4 is the median of 1, 3, 4, 10, 20; 6 is the median of 1, 3, 4, 8, 9, 10). The median number of hours must be a single number, not a range of numbers.

(4) An objective standard is a standard based on factors or criteria that can be measured or demonstrated, such as a reasonable expectation that the volume of work will increase during a particular period of time based on previous experience.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0030
Advance Notice of Work Schedule

(1) The employer shall post the written work schedule, including all work shifts and on-call shifts with specific start and end times for the work period covered by the schedule, in a conspicuous and accessible location in the employee’s workplace, both in English and in any language the employer typically uses to communicate with the employees. The employer must notify each employee at the time of hire of the location of the work schedule. For the purposes of this rule, “a conspicuous and accessible location in the employee’s workplace” may include an electronic system for providing work schedules 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.

(2) For existing employees who are not returning from a leave of absence, the employer shall provide each employee with a written work schedule at least seven (7) calendar days before the first day of the work schedule. Beginning on July 1, 2020, the employer shall provide each employee with a written work schedule at least 14 calendar days before the first day of the work schedule.

(3) For new employees at time of hire and for existing employees returning to work after a leave of absence, the employer, on or before the employee’s first day of work, may provide the employee with a written work schedule that runs through the last date of the currently posted schedule. For all subsequent work schedules, the employer shall provide the employee with a written work schedule as required by ORS 653.436(1) and section (2) of this rule. The employer may consider the following employees “new employees or existing employees returning from a leave of absence”:

(a) New employees at time of hire;

(b) Existing employees at time of transfer, promotion, or assignment to a new job classification; and 

(c) Any employee who is returning from a leave of absence as defined in section (4) of this rule.

(4) A leave of absence may be defined by law, the employer’s usual and customary policy or collective bargaining agreement. A leave of absence includes an absence from work that is mutually agreed upon by the employee and the employer or a collective bargaining agreement; leave to which the employee is entitled under local, state or federal law where the employer and employee relationship is continued; and leave imposed by the employer for a bona fide disciplinary reason.

(5) If, after the employer has provided advance notice of the work schedule to an employee, the employer requests to make changes to the schedule, the employer must provide the employee with timely notice of any change by in-person conversation, telephone, electronic mail, text message, or some other accessible electronic or written format. The employer’s notice is timely when it represents a good faith effort to contact the employee promptly and without undue delay after learning of the need for changing the employee’s work schedule. The employee may decline to work any shifts not included in the employee's written work schedule.

(6) The advance notice requirements of ORS 653.436 and this rule do not apply when an employer makes changes to an employee’s schedule as a result of a written request initiated by the employee.

(7) When an employer provides an employee with a written work schedule more than seven (7) calendar days before the first day of the work schedule (or more than 14 calendar days before the first day of the work schedule beginning July 1, 2020), and then subsequently makes changes to that schedule while there are still more than seven (7) calendar days until the first day of the schedule (or more than 14 calendar days before the first day of the schedule beginning July 1, 2020), the issuance of a written, modified work schedule is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2). In the case of a work schedule covering multiple workweeks, so long as any changes made to an employee’s written work schedule are provided to affected employees more than seven (7) calendar days before the first day of the workweek in which a schedule change is made (or more than 14 calendar days before the first day of the workweek in which a work schedule change is made beginning July 1, 2020), the issuance of a written, modified work schedule is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2). The following examples, which describe work shifts taking place before July 1, 2020, are offered by way of illustration:

(a) An employer, after providing a written work schedule on April 1 to an employee covering the period April 15 through April 21, provides the employee with a modified schedule on April 4 that adds an additional shift to the employee’s work schedule for the week of April 15. Because the modified schedule has been provided at least seven (7) calendar days before the first day of the schedule, it is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2).

(b) An employer provides its employees with their work schedules for the month of May on April 23, after which an employee requests not to work on May 25. Allowing the employee not to work as scheduled on this date necessitates that the employer also modify the work schedule of another employee on that day. The employer provides the affected employee with a written, modified schedule on May 1. Because the modified schedule has been provided to the affected employee more than seven (7) calendar days prior to the workweek which includes May 25, it is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2).

(8) When an employer is required by ORS 653.455(2) to compensate an employee for changes requested by the employer to the employee’s written work schedule that have occurred, payment of the compensation must be made no later than the regular payday for the pay period during which the change to the schedule was worked.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0040
Right to Rest between Work Shifts

(1) Unless the employee requests or consents to work such hours, an employer may not schedule or require an employee to work:

(a) Less than ten hours after the end of the previous calendar day's work shift or on-call shift; or

(b) Less than ten hours following the end of a work shift or on-call shift that spanned two calendar days.

(2) An employee may request or consent to work shifts separated by less than 10 hours on a situational or on-going basis and may revoke such consent at any time during employment, provided that the employee follows the employer’s usual and customary procedures for making work schedule changes.

(3) When an employee works during a rest period established by ORS 653.442(1), the employer shall pay the compensation required by ORS 653.442(2) regardless of whether the employee requested or consented to work shifts separated by less than ten hours. The compensation must be paid to the employee no later than the regular payday for the pay period during which the work was performed.

(4) When an employee works during a rest period established by ORS 653.442(1) but is engaged in “roadside assistance” as defined in ORS 653.442(3), the employer is not required to compensate an employee as described in ORS 653.442(2) for any time the employee spent performing roadside assistance services.

(5) The requirements of ORS 653.442 and this rule do not apply to “split shifts” that take place entirely within one calendar day. For example, if an employee works in the morning, takes an extended break during mid-day, and works again in the evening of the same day, the 10-hour right to rest between shifts does not apply.
 

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0050
Record Retention Requirements

(1) An employer is required to retain records that document the employer’s compliance with ORS 653.412 to 653.485 and these rules for a period of not less than three years. Records may be printed or stored electronically.

(2) Records to be retained by the employer include, but are not limited to:

(a) The written work schedules provided by the employer to employees as required by ORS 653.436(1) and the written work schedules posted as required by ORS 653.436(2);

(b) An employee’s written request to change the employee’s work schedule after the employer has provided the employee with a written work schedule as required by ORS 653.436;

(c) A copy of the good faith estimate of the employee’s work schedule provided to a new employee as required by ORS 653.428;

(d) If, pursuant to ORS 653.432, the employer maintains a voluntary standby list, the employer’s notification to the employee about the list and the employee’s request or agreement to be included on the list;

(e) If, pursuant to ORS 653.460(2), an employer provides a poster giving notice of the rights described in ORS 653.412 to 653.485 to an employee on an individual basis, a copy of the communication or materials provided to the employee to satisfy the notice requirement or other documentation verifying receipt of the poster by the employee; and,

(f) Documents demonstrating that the employer had just cause to subtract hours from an employee’s work schedule for disciplinary reasons as required by ORS 653.455(3)(e). For purposes of this subsection, “just cause” means conduct that is of such a serious nature or extent that reducing the employee’s work hours may be considered an appropriate step to correct the behavior.

(3) All records required to be preserved and maintained by these rules shall be made available to the Commissioner or a duly authorized representative of the Commissioner upon request.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0060
Employees Covered by Collective Bargaining Agreements or Other Contracts Providing Remedy Equal to or Better than Remedy in ORS 653.442 or 653.455

An employer is not required to pay an employee the compensation described in ORS 653.442 or 653.455 when the employee is covered by a collective bargaining agreement or other collectively-bargained contract that is in force at the employee’s work site and that provides the employee a remedy equal to or better than the remedy provided by ORS 653.442 or 653.455.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0065
Unlawful Employment Practices

(1) It is an unlawful employment practice for an employer to interfere with, restrain, deny, or attempt to deny the exercise of any right protected under ORS 653.412 to 653.485.

(2) It is an unlawful employment practice for an employer to retaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual:

(a) Has inquired about the provisions of ORS 653.412 to 653.485;

(b) Has not requested or agreed to be added to the voluntary standby list, has requested to be removed from the standby list, or has declined an employer’s request that the employee work additional hours as a result of the employee being on the standby list;

(c) Has declined any work shifts not included in the employee’s written work schedule;

(d) Has requested not to be scheduled for work shifts during certain times or at certain locations; or

(e) Has declined to work with less than 10 hours between shifts.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

839-026-0120
Civil Penalties

(1) The commissioner may assess a civil penalty for any of the following violations of ORS 653.412 to 653.485 and these rules:

(a) Failure to provide an employee with a work schedule in writing or to post a written work schedule in a conspicuous and accessible location at least seven (7) calendar days before the first day of the work schedule (beginning on July 1, 2020, at least 14 calendar days before the first day of the work schedule);

(b) Failure to compensate an employee for an employer-requested change to the employee’s written work schedule without advance notice;

(c) Scheduling or requiring an employee to work a shift not included in the employee’s written work schedule;

(d) Scheduling or requiring an employee to work during a rest period established by ORS 653.442 without the employee’s consent;

(e) Failure to compensate an employee for working during a rest period established by ORS 653.442;

(f) Denying or attempting to deny the exercise of any right protected under ORS 653.412 to 653.485 or retaliating against any individual because the individual has inquired about the provisions of ORS 653.412 to 653.485;

(g) Failure to retain records that document the employer’s compliance with ORS 653.412 to 653.485;

(h) Failure to display in the workplace a poster giving notice of the rights described in ORS 653.412 to 653.485; and,

(i) Using the voluntary standby list for purposes other than to address unanticipated customer needs or unexpected employee absences.

(2) As provided in ORS 653.432(7), the commissioner may assess a civil penalty against an employer who has coerced an employee into requesting or agreeing to be added to the voluntary standby list. For the purpose of this rule, an employer will be considered to have coerced an employee into requesting or agreeing to be added to the voluntary standby list under the following circumstances:

(a) The employer requires an employee to request or agree to be added to the voluntary standby list;

(b) The employer requires an employee to request or agree to be added to the voluntary standby list as a condition of employment; or

(c) The employer requests or requires any person, including another employee, to require an employee to request or agree to be added to the voluntary standby list.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019

839-026-0130
Schedule of Civil Penalties for Violations of ORS 653.412 to 653.485

(1) Except as provided in sections (2) and (3) of this rule, the civil penalty for any one violation of ORS 653.412 to 653.485 or any rule adopted pursuant thereto shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) The civil penalty for failing to display in the workplace a poster giving notice of the rights described in ORS 653.412 to 653.485 shall not exceed $500.

(3) When the commissioner determines that an employer has violated ORS 653.432(7) by coercing an employee into requesting or agreeing to be added to the voluntary standby list, the civil penalty shall not exceed $2,000.

(4) The civil penalties set out in this rule shall be in addition to any other penalty assessed or imposed by law or rule.

(5) The actual amount of the civil penalty will be set in accordance with the determinations and considerations referred to in OAR 839-026-0140.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019

839-026-0140
Criteria for Determining a Civil Penalty

(1) The commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(c) The magnitude and seriousness of the violation;

(d) Whether the employer knew or should have known of the violation;

(e) The opportunity and degree of difficulty to comply; and

(f) Whether the employer’s action or inaction has resulted in the loss of a substantive right of an employee.

(2) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(3) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
History:
BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019