Dunn, Carney, Allen, Higgins and Tongue
Attorneys at Law, Portland
As you may recall, the Oregon Supreme Court decided earlier this year that employees could not bring wage claims against employers for a missed rest period (click here for the article). In response, the Oregon Bureau of Labor and Industries Wage and Hour Division (“BOLI”) amended its Meal and Rest Period rules. The new rules went into effect on January 12, 2009.
Although the meal period rule remains largely unchanged, the new rule clarifies that if an employee works between six and eight hours, he is entitled to a meal period of 30 continuous minutes. The rule also clarifies the exceptions available to employers and adds an undue hardship exception.
Now you cannot avoid the consequences of failing to give an employee 30 continuous minutes for a meal unless any of the following apply:
• Undue Hardship. This exception looks to the employer’s financial and economic circumstances, number of employees, and effect of meal periods on workplace operations. For example, if in a retail establishment three employees are scheduled to work and two employees call in sick, it may cause the employer undue hardship to allow the one employee to take a 30 continuous minute meal period.
• Industry Custom. Where industry standard or custom establish a meal period of less than 30 minutes (but not less than 20 minutes).
• Unforeseen Circumstances. Unforeseen circumstances may include equipment failures or other unanticipated events or acts of nature that rarely occur and only temporarily prevent the employee from taking the required meal period.
If an employer believes it has an undue hardship circumstance, it must give the affected employee notice regarding his rest and meal periods (notice forms are available through BOLI) and ensure that the employee still gets adequate periods to rest and eat a meal without deducting from his or her pay.
The rest period rules may require more significant changes to employers’ current practices. The new rules provide that:
• The rest period must be ten continuous minutes for every four-hour block of time worked;
• Employers may not require, and employees may not voluntarily add, the rest break to a meal period or to the beginning or end of a work day to decrease the overall amount of hours worked; and
• Employers have the burden to show that employees took their rest period.
Because the burden falls to the employer to show compliance, having documentation or other proof of breaks becomes more important. Some employers have chosen to include an acknowledgment line on timesheets, coupled with a discipline policy for those who do not take their breaks. Supervisors should be trained about their responsibility to monitor employee compliance.
Oregon Family Leave Act Revisions Possible
We recently prepared an article highlighting the changes to the Family and Medical Leave Act (FMLA) which went into effect January 16, 2009 (click here for the article). BOLI is currently reviewing the new FMLA regulations and will hold public hearings in February to determine whether similar changes to the Oregon Family Leave Act (“OFLA”) are necessary. We will update you as to when and if BOLI issues proposed OFLA amendments.
Federal Contractor E-Verify Requirement Delayed
A few weeks ago, we advised you that federal contractors were required to use the E-Verify system to check the immigration status of employees as of January 15, 2009. That date has now been postponed due to a recent lawsuit that challenges this requirement. In response to the suit, the government agreed to suspend implementation of the requirement until February 20, 2009. While there is uncertainty as to how and whether the requirement will be implemented, companies who contract with the federal government should still consider how they will comply with E-Verify if and when it is implemented.
We will closely monitor this issue and will update you as to the status of this and other employment-related and immigration issues. If you have immediate questions or concerns, please contact Tamsen Leachman or Jack Cooper of the Dunn Carney Labor and Employment Law Team.
The Dunn Carney Labor and Employment Law Team’s seminar “Employment Issues in the New Year” will be held on February 18, 2009 at the Multnomah Athletic Club from 7:30 a.m. to 9:00 a.m. The seminar will cover common wage and hour issues, the Employee Free Choice Act and the new ADA Amendments. Click here to register.
Thanks to Kelly Martin for contributing to this article.
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