Prepare Now for Oregon’s Predictive Scheduling Law – Part 2

We previously published Part 1 in this series to provide Oregon employers with an overview of the Fair Work Week Act (also known as the predictive scheduling law), which takes effect on July 1, 2018. The Oregon Bureau of Labor & Industries (BOLI) Final Rules offer some clarifications, but many questions remain for employers. This advisory is Part 2 in our series, and provides employers with guidance in light of BOLI’s Final Rules.

The first section of this advisory looks at common questions from employers and whether the Final Rules provide answers. The second section of this advisory lists forms that employers may want to create to facilitate compliance with the predictive scheduling law. The third section of this advisory summarizes the most significant recordkeeping requirements from BOLI’s Final Rules.

I. COMMON QUESTIONS FROM EMPLOYERS

A. BOLI’s Final Rules leave questions about which employers and which employees are covered by the law.

1. How are employers “classified” for purposes of the NAICS code?

Background: Oregon’s predictive scheduling law applies to certain retail establishments, hospitality establishments, and food services establishments. The law defines each type of establishment by referring to specific sections of the 2012 North American Industry Classification System (NAICS). Some employers, particularly those operating in multiple business channels, may be confused about whether their establishments are covered by the law.

BOLI’s Final Rules: Whether an employer is subject to the law “depends on whether the employer’s operations are classified as retail, hospitality, or food services establishments” under the 2012 NAICS. OAR 839-026-0010(2) (emphasis added). The Final Rules provide the following example of employees who provide hospitality or retail services but are not covered by the rule: a hospital that operates food services or retail establishments within the hospital is not required to comply with the predictive scheduling law for any of its employees, including employees  providing such services. Id.

Questions Remain for Employers: While the hospital example provides some guidance, it is limited. The Final Rules do not provide an objective standard or threshold for when an employer’s retail, hospitality, or food services operations are sufficiently limited that the employer is not classified as a retail, hospitality, or food services establishment. 

2. Do “worldwide” employees or Oregon-based employees count toward the 500-employee threshold?

Background: The predictive scheduling law applies to employees employed in a retail, hospitality, or food service establishment “that employs 500 or more employees worldwide.”  ORS 653.422(1) (emphasis added). But, the word “employee” is defined for purposes of the predictive scheduling law, as a person who renders personal services wholly or partly in this state. ORS 653.412(2)(a); ORS 652.310(2).

BOLI’s Final Rules: The Final Rules do not address this question.

Questions Remain for Employers: According to the law, the Oregon-inclusive definition of “employee” is to be applied throughout the predictive scheduling law, “unless the context requires otherwise.” ORS 653.412. BOLI’s Technical Assistance for Employers (a nonbinding resource for employers) specifies that the 500-employee threshold applies to “employees worldwide who are primarily engaged in providing retail, hospitality, or food services.” The least risky approach, which we recommend until more clear guidance is give, is to count all employees—worldwide—when determining whether the employer is covered by the predictive scheduling law.

3. Is an employee covered just because they work at a retail, hospitality, or food services establishment? (No.)

Background: An employee is covered if they are employed in a retail, hospitality, or food service establishment, and if they are “engaged in providing services relating to” retail trade, hospitality, or food service. ORS 653.412(2). Employers wondered what the law means by the phrase “engaged in providing services relating to.”

BOLI’s Final Rules: BOLI’s Final Rules state that the employee’s “primary duty” (i.e. the major part of an employee’s time) must be providing services “relating to” the covered employer’s NAICS code. So it is critical that employers know their NAICS code for assessing whether they or their employees are covered by the predictive scheduling law. Even where an employer is covered by the law, certain employees whose primary duty is not providing services related to the covered employer’s NAICS code will not be covered. The Final Rules offer an example of a chain of restaurants employing both covered employees (servers, cooks, bartenders, and dishwashers to prepare and serve food and beverages) and non-covered employees (bookkeeper, payroll clerk, and human resources specialist to carry out other functions of the business).

Only Questions Regarding Specific Individual Situations Remain: Questions may arise with respect to individual employees or particular positions, but, on the whole, BOLI’s Final Rules provide general guidance for employers on which employees are covered.

4. Are unionized employees covered? (Yes.)

Background: Some employers wondered whether the predictive scheduling law applies to employees covered by collective bargaining agreements.

BOLI’s Final Rules: Oregon’s predictive scheduling law applies in the union setting unless the employee is covered by a collective bargaining agreement 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 Oregon’s predictive scheduling law. OAR 839-026-0060.

Question Addressed: BOLI’s Final Rules make the answer clear—yes, unionized employees may be covered by the predictive scheduling law.

B. BOLI’s Final Rules contain specific guidance for employers’ scheduling systems and procedures.

1. My company uses an electronic scheduling system; is that okay?

Background: Under the predictive scheduling law, employers are required to post all covered employees’ schedules in “a conspicuous and accessible location” in the employee’s workplace. ORS 653.436(2). Some employers wondered whether their electronic scheduling systems would comply with the “conspicuous and accessible” requirement.

BOLI’s Final Rules: BOLI’s Final Rules clarify that an electronic scheduling system complies with the “conspicuous and accessible location” requirement as long as all covered “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.” OAR 839-026-0030(1).

Question Addressed: BOLI’s Final Rules allow electronic scheduling systems so long as employees can view the schedules of all employees employed in the same location.

2. My company uses “split shifts”; can we continue to do so?

Background: The predictive scheduling law contains a 10-hour right to rest for employees. Some employers wondered how that right to rest may impact an employer’s use of “split shifts.”

BOLI’s Final Rules: The Final Rules clarify that the predictive scheduling law does not apply to split shifts that take place entirely within one calendar day. OAR 839-026-0040(5).

Question Addressed: Employers may continue to use the practice of “split shifts” in Oregon so long as the shift occurs on a single calendar day.

II. WHAT SHOULD EMPLOYERS DO NOW?

Many employers are finding it helpful to prepare forms and templates to standardize their compliance procedures. In particular, employers should consider preparing the following forms:

A. Good faith estimate of work schedule (given to new hires)

This form is required for all new covered employees and must be provided before the commencement of employment. ORS 653.428; OAR 839-026-0020. It must notify the new employee about where work schedules will be posted.  It must provide a good faith estimate of the monthly hours that an employee may expect to work (provided as a single median number, not a range). It must explain the employer’s voluntary standby list, if any. And, if the employer uses on-call shifts, the Good Faith Estimate must explain, using an objective standard, when an employee can expect to work on-call shifts.

B. Voluntary standby list notice, sign-up, and withdrawal

Employers that decide to use the voluntary standby list procedures should carefully review the notice requirements of ORS 653.432 to ensure that employees are provided with all disclosures required by law.

C. Exceptions not requiring penalty payments

The predictive scheduling law requires that employers provide employees with advance notice of their work schedule. ORS 653.436. Failing to provide that notice can lead to penalties, ORS 653.455(2), but there are exceptions. ORS 653.455(3). Many employers are finding it helpful to create forms to document and track when an exception might apply (for example, weather-related closures, employee-requested changes, cancellations of ticketed events, and uses of the voluntary standby list).

Note: Forms should be available in English and in any language that the employer regularly uses to communicate with its employees.

III. RECORDKEEPING REQUIREMENTS

BOLI’s Final Rules provide the following non-exhaustive list of the records that employers are required to retain (printed or stored electronically) for a period of three years:

• Written work schedules provided to employees and the posted written work schedule;
• An employee’s written request to change the employee’s work schedule;
• The good faith estimate of the employee’s work schedule provided to a new employee;
• If the employer uses 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; 
• If the employer subtracts hours from an employee due to disciplinary reasons, a document demonstrating that the employer had just cause to subtract those hours. OAR 839-026-0050(2).