Seyfarth Synopsis: Oregon’s new employee scheduling law – impacting hourly employees at large retail, food service, and hospitality employers – goes into effect after the end of this week, on July 1. Affected employers must now be aware of the potential consequences in changing employees’ schedules.
Friendly Reminder! At the end of this week, on July 1, Oregon will become the first state with a predictable scheduling law in effect. You may recall that predictable scheduling laws – sometimes referred to as fair or flexible scheduling laws – are laws that impose certain financial penalties on covered employers who make changes to employees’ schedules, and may restrict specific scheduling practices (like scheduling on-call shifts) altogether. While stemming from admirable goals, these laws can have the effect of making employee scheduling – already head-splitting! – an even more complicated, and costly, process. Until Oregon’s legislature passed its scheduling law last summer, other predictable scheduling laws had been limited to cities and municipalities (e.g., San Francisco, Emeryville, Seattle, New York City).
Hopefully, if you are a covered employer (retail, hospitality or food service employers with 500 or more employees) with operations in Oregon, you have already developed a plan for compliance with this new scheduling law. (And if you have not – do not panic! – the law will not be enforced until at least January 2019.) Below are some key takeaways and reminders for complying with Oregon’s employee scheduling law:
- The law does not apply to salaried employees. Given the law’s purpose to cure inflexible, unpredictable schedules that plague hourly workers, that makes sense. Sorry exempt workers, no predictability pay for you!
- The law requires advance notice of schedules at least 7 days before the first day on the schedule – not 7 days’ before a shift. So, if you schedule two weeks at a time, your work schedule covering July 15-28 needs to be posted no later than July 8. And yes, it means that, subject to some exceptions (see below), any changes made to an employee’s schedule after July 8 will require predictability pay – even if the change is made with far more than 7 days’ notice before the actual shift. Plan carefully, if you can!
- Premium pay comes in all shapes and sizes. It is not just about changing work schedules after the 7-day notice period – any alterations to employees’ hours worked within that notice period may require additional compensation. That includes adding and subtracting shifts, sending employees home early, asking employees to stay late, and changing start or end times (with or without a loss of hours). The amount of premium pay depends on the degree of schedule change. The law also requires premium pay for any employee scheduled to work without 10 hours’ rest, regardless of whether an employee receives sufficient notice (except split shifts).
- But, keep in mind – not every schedule change comes with financial penalties. There are many ways for employers to avoid financial penalties for schedule changes. A few notable exceptions include:
- Schedule changes of 30 minutes or less;
- Employees voluntarily trading shifts;
- Employees who request a schedule change (in writing);
- Schedule changes for legitimate disciplinary reasons; and
- Employees on a company’s Voluntary Standby List, who agree to work a shift with less than the required notice.
5. Speaking of which – use a Voluntary Standby List! It is hard to think of a reason not to have a Voluntary Standby List (“VSL”) if you are covered by Oregon’s scheduling law. Employees may choose to include their names on a VSL, and if additional shifts become available (e.g., unanticipated employee call-offs or customer needs), employers can ask employees on the VSL to fill-in without being required to pay additional compensation. Keep in mind, however, that employees on the VSL can still decline to work any shifts offered, and can take their names off of the list at any time. The law also has specific requirements about the kind of notice employees must receive about the VSL, if employers elect to use one.
With these tips in mind, hopefully navigating Oregon’s employee scheduling law will be a more “predictable” endeavor.
For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.