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Oct 09, 2017

OREGON: Common questions answered on recent legislation

Q&AVigilant NewsWage and Hour 

Vigilant recently held a webinar covering 2017 legislation impacting Oregon employers with new overtime and maximum hour rules for manufacturers, predictive scheduling, amendments to Oregon’s sick leave law, and pay equity. We’ve received some great follow-up questions regarding the overtime and maximum hour rules for manufacturers, as well as questions about Oregon’s new pay equity law.

We wanted to share this information, so we’ve compiled the following list of frequently asked questions. If you have additional questions about how these new laws affect your business, please contact your Vigilant employment attorney; if you’re not a member, reach out to learn about our unlimited employment law advice services, available for a flat monthly fee.

Daily overtime and maximum hours for manufacturers

1)

Question: We are a wood products manufacturer, but we’re not sure whether we qualify for one of the industry exemptions. Can you clarify?
 
Answer: The wood products industry exemptions are very narrow, meaning that if you aren’t one of the specific types of manufacturers identified, you need to comply with the general manufacturer rules regarding daily overtime, maximum daily hours, maximum weekly hours, and the 10-hour rest period between shifts. The only wood products manufacturers that are exempt from the general manufacturing rules are sawmills, planing mills, shingle mills, and logging camps; all other wood products manufacturers are subject to the rules. For information about other exceptions to the rules, download our Legal Guide, “Daily Overtime in Oregon and California.”
 
2)

Question: We operate a mixed-use facility; we have a sawmill and planer, but a portion of our mill also produces wood pellets. Is our entire facility exempt from the rules?
  
Answer: No, only the portion of your facility that operates as a sawmill and planing mill would be exempt from the rules. Employees who are working at the pellet mill would be subject to the rules on daily overtime, maximum daily and weekly hours, and the 10-hour rest period between shifts.
 
3)

Question: Do we need a separate written consent every time an employee works over 55 hours per week?
 
Answer: Unfortunately, the new law doesn’t specify how frequently you need to obtain written consent from an employee when working beyond the standard allowable 55 hours per week (up to 60, 80, or 84 hours depending on the circumstances). We are hoping that the Oregon Bureau of Labor and Industries (BOLI) will clarify the requirement when it develops rules for this new law. In the absence of any clarification, the most conservative advice would be to obtain a written consent from each employee, each time they voluntarily work beyond 55 hours in a week.
 
4)

Question: Can we require overtime up to 55 hours per week?
 
Answer: Yes. While the new maximum weekly hours rule limits a manufacturing employer’s ability to require an employee to work beyond 55 hours, it doesn’t change your ability to require employees to work up to 55 hours per week. In other words, you can make it a job requirement for an employee to work up to 55 hours per week as part of mandatory overtime; but an employee must voluntarily agree, in writing, if they work more than 55 hours per week.
 
5)

Question: For a manufacturing employer with a collective bargaining agreement (CBA), what do we need to consider for maximum daily hours/weekly hours?
 
Answer: Employers with a CBA are exempt from the rules dealing with daily overtime, maximum daily hours, maximum weekly hours, and 10-hour rest periods between shifts, but only if the CBA provides for “limits on the required hours of work and overtime payment.” In other words, not all employees covered by a CBA will be exempt from the rule; the CBA must specifically discuss limits on hours of work and payment for overtime in order for your employees to be exempt from the rule. If your CBA does not cover those topics, you should plan on complying with the rules until you can negotiate terms into the agreement that specifically address hours of work and overtime payments.

Pay Equity

1)

Question: Should we include a box on our application asking for an applicant’s salary expectations (since we can no longer ask about salary history as of October 6, 2017)?
 
Answer: It’s fine to ask for salary expectations. It will be important, though, to ensure the application is worded clearly so candidates don’t mistakenly believe they’re being asked for wage history.
 
2)

Question: Does pay equity touch on annual raises for employees?
 
Answer: Yes. The Oregon pay equity bill defines “compensation” to include “wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.” The process of awarding annual wage increases should include some consideration of pay equity requirements. For example, if there’s already a disparity in wages between employees of different protected classes who are performing work of comparable character, and the difference isn’t justified by one of the eight authorized reasons listed in the Oregon law, then granting everyone the same percentage increase will only further increase the disparity. If you normally grant annual raises, then this can be a useful opportunity to quietly make pay equity adjustments as appropriate. If you decide to do a pay equity analysis, it’s best to have an attorney direct the analysis. This gives you the opportunity to evaluate potential problem areas and discuss options for resolution under the protection of the attorney-client privilege. We’re in the process of evaluating how we can help with this analysis and identifying reputable resources, and will keep members informed.
 
3)

Question: What if we pay extra for Spanish speakers? Could that violate the new pay equity law?
 
Answer: The first question to ask is whether the work of the Spanish-speaking and non-Spanish speaking employees is of “comparable character” (requiring “substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title”). Assuming the answer is yes, then the next question is whether the difference in pay is “based on a bona fide factor that is related to the position in question and is based on” one of the eight authorized factors listed in the law. The ability to speak Spanish could fit under the “merit system” reason (if there is a merit system that awards extra points for speaking Spanish and if it truly is a job-related ability). It’s even possible it could fit under the “education” or “experience” reasons listed in the law.
 
4)

Question: If you have a few employees that have high salaries that are out of range, and the pay equity law says that you can’t lower them, how can you deal with the pay equity issue? We cannot afford to increase all employees to the higher salary range.
 
Answer: Unfortunately, there’s no provision in the law that allows for grandfathered differences in pay rates where people performing work of comparable character are paid differently and they’re in different protected classes (race, sex, etc.). If the jobs are truly comparable and the differences can’t be explained by one of the eight factors authorized in the Oregon pay equity law, then as an employer you’re in a tough spot. If that’s the case, we recommend coming up with a plan for moving in the right direction to correct the pay difference. If you make the adjustments over a period of time, just be aware that as each year passes, you’ll be holding your breath hoping that people aren’t filing BOLI complaints or lawsuits over the pay equity law. Moving toward compliance as part of a good faith pay equity analysis can help an employer fend off punitive and compensatory damages, but it doesn’t offer any protection from back pay, court costs, and attorney fees.

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