Business tip: Manufacturing employers can apply for daily overtime waiver

Oregon’s Bureau of Labor and Industries (BOLI) allows manufacturing employers to apply for a waiver from Oregon’s 10-hour daily overtime requirements.

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Many businesses have been dismayed by BOLI’s recently adopted position that if a worker in a covered manufacturing establishment earns both daily and weekly overtime in the same workweek, the employer must pay for both daily and weekly overtime premiums. Previously BOLI had said employers could pay the greater of the two amounts. One possible solution may be to ask for a waiver from the daily overtime rules.

An employer must submit an application which includes the current and proposed shift schedule, number of breaks and meal periods, and data on health and safety incidents from the past two years. BOLI assigns a compliance specialist to investigate. When awarding a waiver, BOLI will establish strict conditions.

The waiver only applies to workers who are regularly scheduled to work multiple consecutive shifts over 10 hours per day. It doesn’t apply to temporary workers. To see the typical conditions contained in an approved waiver, see BOLI’s approval template.

BOLI representatives have stated that the agency will begin enforcing its new interpretation effective January 1, 2017. Private lawsuits by employees, however, could result in greater liability if a judge sides with BOLI’s interpretation, since in Oregon an employee can go back up to two years to collect unpaid overtime. Stay tuned for a potential legislative fix; Oregon legislators will be considering a bill that codifies BOLI’s long-standing position that employers must pay the greater of daily or weekly overtime.

Karen Davis is a senior employment attorney at Vigilant