This year Oregon enacted multiple new employment laws that will affect Oregon manufacturers, including overtime pay regulations and pay equity. To help employers sort through the new laws, Vigilant employment attorneys recently hosted a webinar to discuss the 2017 legislation changes. Vigilant attorneys Karen Davis and Diane Buisman offer the following information for the most frequently asked questions about the new laws.
Question: We are a wood products manufacturer, how do we know if we qualify for an exemption for overtime work?
Answer: The wood products industry exemption is very narrow; The only wood products manufacturers that are exempt from the general manufacturing rules are sawmills, planing mills, shingle mills, and logging camps; all other wood products manufacturers need to comply with the general manufacturer rules regarding daily overtime, maximum daily hours, maximum weekly hours, and 10-hour rest period between shifts.
If you operate a mixed-use facility with sawmill, planer and wood pellets, only the portion of your facility that operates as a sawmill and planing mill would be exempt from the rule.
Question: Do we need a separate written consent every time an employee works over 55 hours per week?
Answer: The new law doesn’t specify how frequently written consent is needed from an employee when working more than 55 hours per week; we are hoping that the Oregon Bureau of Labor and Industries (BOLI) will clarify when it develops rules for this new law. In the absence of any clarification, the most conservative advice would be to obtain a written consent from each employee, each time they voluntarily work beyond 55 hours in a week.
Question: Can we require overtime up to 55 hours per week?
Answer: Yes. The new rule limits a manufacturing employer’s ability to require work beyond 55 hours, but employers can require employees to work up to 55 hours per week as part of mandatory overtime.
FAQ: Pay Equity
Question: Since we can no longer ask about salary history, is it acceptable to ask for an applicant’s salary expectation on a job application?
Answer: It’s fine to ask for salary expectations, but be sure the application is worded clearly so candidates don’t mistakenly believe they’re being asked for wage history.
Question: What are the pay equity guidelines for annual employee raises?
Answer: The Oregon pay equity bill defines “compensation” as “wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.” The process of awarding annual wage increases should include some consideration of pay equity requirements.
For example, if there’s already a disparity in wages between employees of different protected classes who are performing work of comparable character, and the difference isn’t justified by one of the eight authorized reasons listed in the Oregon law, then granting everyone the same percentage increase will only further increase the disparity.
If you normally grant annual raises, then this can be a useful opportunity to quietly make pay equity adjustments as appropriate.
If you decide to do a pay equity analysis, it’s best to have an attorney direct the analysis to try to protect the attorney-client privilege as you evaluate potential problem areas and discuss options for resolution.
Question: What if we pay extra for Spanish speakers? Could that violate the new pay equity law?
Answer: The first question to ask is whether the work of the Spanish-speaking and non-Spanish speaking employees is of “comparable character” (requiring “substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title”). Assuming the answer is yes, then the next question is whether the difference in pay is “based on a bona fide factor that is related to the position in question and is based on” one of the eight authorized factors listed in the law. The ability to speak Spanish could fit under the “merit system” reason (if there is a merit system that awards extra points for speaking Spanish and if it truly is a job-related ability). It’s even possible it could fit under the “education” or “experience” reasons listed in the law.
Question: We cannot afford to increase all employees to the higher salary range. How can we deal with pay equity for employees that have high salaries that are out of range?
Answer: Unfortunately, there’s no provision in the law that allows for grandfathered differences in pay rates where people performing work of comparable character are paid differently and they’re in different protected classes (race, sex, etc.).
If the jobs are truly comparable and the differences can’t be explained by one of the eight factors authorized in the Oregon pay equity law, then as an employer you’re in a tough spot. If that’s the case, we recommend coming up with a plan for moving in the right direction to correct the pay difference.
If you make the adjustments over a period of time, just be aware that as each year passes, you’ll be subject to employees filing BOLI complaints or lawsuits over the pay equity law. Moving toward compliance as part of a good faith pay equity analysis can help an employer fend off punitive and compensatory damages, but it doesn’t offer any protection from back pay, court costs, and attorney fees.
Vigilant will continue to evaluate the employment laws as they are put to practice and can provide guidance for employers to stay compliant. For more information, contact Vigilant at http://www.vigilant.org/.