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BOLI Creates Emergency Exception to Maximum Working Hours in Certain Manufacturing Establishments

March 30, 2020

By Benjamin P. O'Glasser & Maryann Yelnosky

(UPDATE April 2, 2020): Following Bullard Law’s alert on this topic, BOLI published a Frequently Asked Questions webpage on this emergency rule, available here. This page includes a link to an electronic interface for submitting the required notice under the rule, as well as an updated consent form for employees that conforms to the new rules. 
The FAQ provides several clarifications for employers. It confirms that manufacturers that are part of the supply chain for food or medical equipment and have seen increased demand during the pandemic fall under the new rule; any manufacturer that has seen a recent increase in demand that reflects a change in customer needs attributable to the pandemic may qualify.  The FAQ also clarifies that manufacturing employers that currently allow work between 55 and 60 hours per week do not need to modify their practices, unless they take advantage of the new rule to allow work in excess of 60 hours per week. 

On March 27, 2020, the Oregon Bureau of Labor and Industries issued a temporary administrative rule, effective immediately, relating to maximum working hours in manufacturing establishments.  The rule confirms that the coronavirus pandemic is an “emergency where life and property are in imminent danger” and relaxes rules governing daily and weekly overtime to employees of manufacturing employers whose products “reasonably result in the preservation of life and property.”  The rule is intended to keep manufacturing moving and ensure availability of essential goods throughout the coronavirus pandemic while maintaining worker protections.  Beginning March 27, 2020, and continuing through September 22, 2020, covered manufacturing employees now may consent to work up to 13 hours per day and 91 hours per week. 

Employers who take advantage of the new rule must meet certain requirements, including filing appropriate paperwork with BOLI.  The new rule does not offer guidance on what products “reasonably result in the preservation of life and property.”  Rather, a manufacturer must articulate in its filing with BOLI why it believes it qualifies for the exception.  Manufacturers that intersect or are part of the supply chains for food and/or medical equipment and have seen increased demand during the pandemic almost certainly will qualify.

Until Friday, Oregon law prohibited manufacturing employers from requiring or permitting an employee to work over 10 hours per day or over 55 hours in one workweek.  The exception to this restriction was that an employee could provide written consent to work for up to 60 hours in a workweek.  Employers utilizing this exception were required to maintain on file the written consent for inspection by BOLI.  Such an employer may now have new obligations, regardless of whether it takes advantage of the new rule or is continuing to follow the rule that was in place.

The new rule imposes an affirmative obligation for employers to provide notice to BOLI within 7 calendar days that it has permitted employees to work more than 55 hours in one workweek.  BOLI has provided a form for providing notice to BOLI. In making such notice employers must describe the reasons that the employer is taking advantage of this emergency exemption, the expected dates of the exception period, and attach its social distancing protocols as required by the Governor’s Executive Order 20-12.  BOLI’s form also requires employers to affirm: that employees who will work excess overtime have consented, that the employer understands the new limits, and that they will continue to pay employees overtime wages for hours worked in excess of 40 in one week. 

The new rule authorizes and creates a process for employees to consent in writing to work for up to 13 hours per day and 91 hours per week.  BOLI has provided a form for obtaining this consent.  Employees can revoke their consent at any time, and employers are expressly prohibited from coercing employee consent.  The new rule does not alter meal and rest break requirements.  Thus, employers who take advantage of this new rule must provide additional meal and rest breaks that are required during some of the employees’ longer shifts.

The BOLI commissioner may impose a civil penalty of up to $1,000 on any employer that fails to comply with the new rule, in addition to any other penalties provided by law.  Two aspects of the new rule present compliance challenges.

First, BOLI’s two new notice and consent forms do not precisely align with the new rule, creating risk of non-compliance even if employers use the provided forms.  Employers can navigate this discrepancy by providing to employees who sign consent forms a complete copy of the materials that the employer submits to BOLI.  Such materials should not include any list of employees that have signed consent forms: the rule does not require employers to submit such a list to BOLI and doing so or otherwise distributing such a list could be construed as employer-created pressure on employees to sign consent forms.

Second, It appears that the rule requires manufacturing employers that currently allow employees to work in excess of 55 hours per week to modify their practices, even if they make no changes to employee hours.  Previously, manufacturing employers were required only to maintain consent forms on file if employees worked between 55 and 60 hours per week, and an employee was required to give their employer 7 days’ notice if they withdrew their consent.  Under the new rule, an employer is obligated to provide notice to BOLI if employees exceed 55 hours per week, and employees may withdraw their consent to excess overtime at any time.  Bullard Law will seek clarification and update this article if BOLI provides an explanation of the new rule’s impact on employers who complied with the requirements of the old rule and are not changing employee hours to exceed 60 hours per week.

We are monitoring other changes employers are facing in this coronavirus new world. For further information, contact any member of our COVID-19 team which includes Kathryn HindmanMaryann YelnoskyFrancis BarnwellKent Pearson (Labor Law), and Kara Backus (Employee Benefits).

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