Oregon joins Seattle, San Francisco, California, Emeryville, and New York City in developing a predictive scheduling law as an addition to its minimum wage rules. The provisions of instrument number S.B. 828 will start to take full effect on the 1st of July, 2018. The provisions are meant to regulate the way in which employers schedule time and pay for workers within the hospitality, food, and retail industries. The rules make specific reference to non-exempt workers. These may be operating within supermarkets, casinos, guest houses, and places of entertainment. For the organization to come within the ambit of the new rules, it must have at the very least 500 employees. This threshold is calculated taking into account all employees regardless of whether or not they are based in the USA, Oregon, or other parts of the world. It is, in other words, a global calculation.
These exclusions are important because they encapsulate franchises and integrated businesses as well as explicit collaborations. For purposes of this act, all companies in the group are deemed to be one single employer. This is designed to prevent companies from splintering into localized branches in order to avoid the predictive scheduling rules. The law specifically excludes workers on lease, consultancies, and a number of workers on salaries. The definition in the statute includes executives, administrators, professionals, intellectual work, management, and creativity. The indicators of such an exclusion status include the use of judgement, discretion, and independence. For the employer, it is worth looking at some of the specific provisions and how they relate to them.
Operating in Good Faith
Employers are required to provide an objective and fairly accurate estimate of the work schedule of their employee under the terms of the act. This includes the median number of hours that the employee is expected to work in a monthly period. The employer should also provide information as to whether the worker is on a voluntary standby list. This includes the expectation of working night or on-call shifts. The information must objectively report the amount of hours that they are expected to be ready to work. The voluntary standby list in particular has caused some employers problems because these are often mixed up with the normal working schedule.
The provisions of the act allow employers to create a voluntary standby list of workers that can be called in for duty depending on the situation but with regards to the principles of consistency and predictability. The circumstances that necessitate an actual summons include new customer needs and the absenteeism of other employees. It is imperative that people are not coerced or cajoled into joining the list. The list must be completely voluntary, and even the uptake of the work must be voluntary. The invitation and acceptance should be in writing and based on the discretion of the employee. This is to avoid employees putting all their workers on a standby list in order to avoid estimating their working hours for purposes of reporting. Of particular interest is the option to be removed from the list without facing any retaliatory action from the employer. The employer is then obliged to notify the employees of available work so that they can take it up if they are so inclined. The notifications can be in person, orally, by phone, or in writing.
Discretion and Ability to Decline Additional Hours
The written work schedule must be provided to employees by the employer one week in advance. The schedule is akin to a plan. It should contain all the work that is anticipated and the on-call shifts for the relevant period. The law has an in-built change that will occur on the 1st of July, 2020. At that point, the advance notice period will increase from seven calendar days to 14 calendar days. Where the employer has decided to change the schedule in any material way, they must notify the employees. This notification must be timely and reasonable.
The reason for this provision is to prevent employers from requiring employees to work shifts that were not included in the original schedule. In case it is the employees themselves that have initiated the change in schedule, the employer need not make a formal notification. For further information, you can contact us at (503) 389-1130.
