It was another busy legislative session in Oregon and there are several significant new employment laws. This article provides a brief summary of three of those laws.
The Oregon Equal Pay Act of 2017
This law prohibits pay discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age. Employers cannot pay employees performing comparable work at different rates of pay because of one of these protected classes.
The new law also prohibits employers from screening job applicants based on current or past compensation and from determining compensation based on prospective employees’ current or past compensation. Employers can inquire about a job applicant’s salary history only after making a job offer that includes the amount of compensation.
Employers, however, can compensate employees differently based on a bona fide factor related to the position, such as seniority, merit, education, training, or experience. There also is a defense if employers complete an equal pay analysis within three years of any legal action and eliminate the applicable wage differential.
The potential liability under this new law is considerable, including two years’ back pay, compensatory and punitive damages, and attorneys’ fees.
Each time an employee is paid is a potential violation, making alleged pay disparity an ongoing unlawful employment practice with a continually renewing statute of limitations.
There also is class action exposure under the new law.
Effective January 1, 2019, there will be a private right of action under the majority of the new law’s provisions. Beginning January 1, 2024, there will be a private right of action under the provision prohibiting employers from inquiring into prospective employees’ salary histories.
Oregon’s Predictive Scheduling Law
This law applies to Oregon employers with 500 or more employees who provide services related to “retail trade,” “hotels,” “motels,” or “food services.” The law does not apply to salaried, exempt employees performing administrative, executive, or professional work. The law also excludes workers supplied by a leasing company and employees of businesses that provide services to or on behalf of a covered employer. Most of the provisions take effect on July 1, 2018.
Covered employers must give advance notice of work schedules and, once set, those schedules cannot be changed, except as provided under the law. Employers must provide new hires with a written good faith estimate of the employee’s work schedule at the time of hire. Employers must provide employees with a work schedule in writing at least seven calendar days before the first day of the work schedule. Beginning July 1, 2020, the written work schedule must be provided at least 14 days in advance.
In addition, covered employers must provide a rest period of at least 10 hours between shifts, unless an employee consents to work during the rest period, in which case the employer must pay the employee one and one-half times the employee’s normal rate of pay.
Employees have the right to identify limitations or changes in their availability and request not to be scheduled during certain times or at certain locations. Employers are under no obligation to grant any such request and may require the employee to provide reasonable verification of the need for a particular schedule.
If an employer requests changes to the work schedule, it must provide the employee with timely notice of the change and the employee may decline to work any shift not included in his or her written work schedule. The law includes a number of procedures an employer must follow if it does change the work schedule, such as paying an employee an additional hour of pay at his or her regular rate if the schedule change results in the addition of more than 30 minutes of work to the employee’s shift, changes the date or start or end time of the shift with no loss of hours, or schedules the employee for an additional work shift or on-call shift. There also are several exceptions to the requirement saying that employees receive additional compensation for untimely changes to the schedule, such as maintaining a voluntary stand-by list, changing the start or end time of the employee’s work shift by 30 minutes or less, a schedule change made at an employee’s written request, or reduction of hours for disciplinary reasons based on just cause.
Overtime and Maximum Hour Limits for Manufacturers
This new law, effective January 1, 2018, permits employers to pay non-exempt employees in mills, factories, and manufacturing establishments the greater of daily or weekly overtime.
The law also imposes new maximum limits on hours in a woworkweekor manufacturing employees.
Under ORS 652.020, most mills, factories, and manufacturing establishments already are prohibited from allowing non-exempt employees to work more than 10 hours in a 24-hour period, though employees may work a maximum of three additional hours of overtime, for a total of 13 hours in a single day. Under the new law, covered employees may not work more than 55 hours in any one work week. An employee, however, may “work up to 60 hours in one work week if the employee requests or consents in writing to work more than 55 hours in a work week.” Different maximum limits apply to employees in sawmills, planing mills, shingle mills, or logging camps.
The Oregon legislature again proved the adage that the only thing that is constant is change. Employers need to make sure that their policies and practices comply with all Oregon employment laws, including those that were enacted in the 2017 legislative session.
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Howard Rubin is the managing shareholder of Ogletree Deakins’ Portland, Oregon office. Rubin is the Best Lawyers® 2018 Portland Labor Law – Management “Lawyer of the Year.” He may be reached at howard.rubin@ogletree.com.
