Oregon Legislature Considers “Predictive Scheduling” Law

Employers in Oregon could be required to pay employees for up to four hours of unworked time if an employee’s shift is cancelled or shortened.

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Additionally, some large employers may be required to engage in an “interactive process” with regard to employees’ scheduling concerns. The law also extends anti-discrimination and anti-retaliation protections to discussions about scheduling. Senate Bill 828 currently is being considered by the Senate Committee on Workforce and is co-sponsored by twenty State Senators and Representatives.

Oregon’s proposed law comes on the heels of Seattle’s Secure Scheduling ordinance, which was adopted last year and goes into effect on July 1, 2017. The Seattle ordinance affected only large employers in select industries. San Francisco and New York also have similar ordinances or laws. This represents a growing national trend: over a dozen states or municipalities have considered this type of law in the past year.

Impacts for All Employers

All employers would be required to pay an employee a minimum of four hours of wages for any shift that is cancelled or shortened on less than 24 hours’ notice. In addition, all employers would be required to comply with new recordkeeping obligations to demonstrate their compliance with the law.

The new law would be enforced by Oregon’s Bureau of Labor and Industries (BOLI), which would have authority to impose fines of up to $1,000 per violation. BOLI’s enforcement powers would mirror those that it has for other state wage and hour laws.

Additionally, employees would be able to bring claims under ORS Chapter 659A for any adverse employment actions they claim constitute discrimination and/or retaliation for exercising rights under the new law. If such claims are successful, a plaintiff could recover damages and attorney’s fees.

Impacts for Smaller Employers

Employees of smaller employers would have the right to request not to be scheduled during certain days, times, or locations. This right would extend to requests for telecommuting, intermittent employment, and job sharing arrangements, among other things. Employers would be permitted to request that the employee provide certain types of verification of the need for such requests. However, employers would be prohibited from retaliating or discriminating against employees who make such requests.

Impacts for Large Employers in Certain Industries (LECIs)

LECIs would be subject to more onerous obligations under the new law. LECIs include employers of over 100 employees total (across all related entities), including at least 25 employees in Oregon, in the retail, hospitality, and food services industries.

Employees of LECIs would have the right to make all of the types of requests described above. In addition, unless the LECI identifies a bona fide business reason to deny such requests, it would be required to grant any verified request that is based on an employee’s: (1) health condition; (2) caregiving responsibilities; (3) commitment to another job; (4) changes to access to the workplace due to changes in their transportation or housing; or (5) participation in certain educational programs.

LECIs would be required to provide a good-faith estimate of each employee’s anticipated average number of hours each week and whether on-call work will be required. The estimate would be required to be provided annually, or upon any significant change to work schedules.

LECIs also would be required to post work schedules 14 days in advance. With certain exceptions, any changes would trigger additional obligations to compensate employees. Changes to the work schedule would trigger an obligation to pay an additional hour of wages. Any employee of an LECI whose shift is cancelled or shortened would be entitled to receive half of the wages that would have been earned. LECIs would be prohibited from systematically “underscheduling” shifts.

LECIs would be required to pay overtime rates for hours worked without at least 10 hours between shifts. Finally, LECIs also would be required to give current employees an opportunity to claim additional hours before hiring new employees.

Next Steps

Oregon employers should evaluate their existing workforce and scheduling practices and consider what would be the impacts of the proposed law on their company. Oregon’s 2017 legislative session began on February 1, 2017, and will end on or before July 10, 2017. Employers should examine whether they wish to communicate with the legislature about the impacts of the proposed law, either independently, through their industry groups, or through counsel.

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