We’ll start with some great news this week … In a highly anticipated court decision, the Multnomah County Circuit Court ruled against the new BOLI interpretation of Oregon’s daily overtime statute for manufacturers in the Portland Specialty Baking case.
As you’ll recall, BOLI’s new interpretation of Oregon’s daily overtime statute was that manufacturing employers were liable for both daily and weekly overtime payments, which allowed for double-counting of some overtime hours. For example, in instances in which an employee might work four 12-hour shifts in a week, an employer would be liable for 16 total hours of overtime (8 hours of daily overtime plus 8 hours of weekly overtime).
Multnomah County Circuit Court Judge Kathleen Dailey ruled that employers do not have to pay for both daily and weekly overtime. She reasoned that adherence to the daily overtime law (for all daily hours worked in excess of 10 hours per day) would ensure compliance with the federal weekly overtime law and that there was no provision in law that called for double-counting of overtime hours. The decision provides a firm footing for employers to continue to follow BOLI’s prior guidance on this critical issue.
Here’s what we know from the past week:
There was little movement on significant ‘anti-business’ legislation. Environmental legislation to regulate air emissions, diesel engines, or tax carbon appears to be relegated to after-hours workgroups. There also appears to be little momentum for labor initiatives such as paid family leave. This is consistent with previous OSCC observations that the legislature would be focusing primarily on budget and transportation – leaving major labor and environment legislation on the sidelines for now.
Minimum wage ‘fix’ bills introduced by Rep. Clem (D-Salem) to help agriculture and food processors. Clem’s legislation – HB 3317 – redraws the minimum wage map so that the higher minimum wage rates apply to certain MSA’s and not counties at large. His other bill – HB 3383 – gives agriculture and food processors a tax credit for the higher minimum wages. Clem found over 30 co-sponsors for both bills, including many democrats who voted for the higher minimum wages in 2016, and believes that Speaker Kotek will agree to some version of his proposals. But it will be a very tough slog to get some sort of minimum wage relief passed.
Look for taxes that can be passed with simple majority votes. OSCC has cautioned its members that the legislature would look to ‘kick the tires’ on a new Legislative Counsel legal opinion that gives the legislature authority to raise some taxes without invoking the constitutional 3/5th supermajority voting requirement to raise in the legislature. The Legislative Counsel gave legislators the green light to take away tax deductions and tax credits with simple majority votes. Given the Democratic dominance in the legislature, this provides a tempting path of least resistance to raise revenue.
The House Revenue Committee is signaling its interest in raising revenue using this method and is eyeing such things as removing or limiting itemized deductions, property tax deductions (HB 2771) and mortgage interest deductions (HB 2006). This will be an issue to keep a very close eye on over the next several months.
Here’s what’s coming up this week:
The House Revenue Committee will continue its focus on corporate tax disclosure. HB 2019 and HB 2940 would add new tax disclosure requirements for Oregon companies. Both proposals would involve public filings of tax information. This is a significant priority for Oregon’s government employee unions who have made this a centerpiece of their 2017 legislative agenda. We expect a friendly audience for this legislation in the House, but a much less receptive audience in the Senate. Business groups, including OSCC, will wage opposition here.
The House Business & Labor Committee will try and pass its first bill with serious business opposition. HB 2005 would mandate ‘pay equity’ for all protected classes, would switch the burden of proof from plaintiff to employer, and would make each paycheck in which a disparity is claimed as a cause for remedy. Employer groups have signaled a willingness to agree to a ‘pay equity’ bill that encompasses pay discrimination based on gender (so long as burden of proof remains with the plaintiff) and banning the practice of requiring job applicants to disclose previous salary history. Several key Democrats are supportive of the business position and want a compromise bill now instead of being forced to vote on a bill that business does not support. OSCC will keep members apprised.
Major PERS hearings resume in the Senate. The Senate Workforce Committee will continue to take testimony on SB 560 and SB 913, which to date are the major PERS Reform bills of the 2017 session. Among other things, the bills raise the retirement age, lower the assumed earnings rate, re-direct the 6% employee contribution into the pension plan, and spread out ‘final average salary’ over five years instead of three years. The concepts in both bills are heavily supported by school boards, local government and the business community. The bills are strongly opposed by the unions.
Of particular interest to OSCC members:
Chambers need to make their voice heard on SB 828 or HB 2193 – predictive scheduling. As we mentioned last week, OSCC has reason to believe that this is now the top labor priority for 2017.
What you need to know on SB 828 and HB 2193: (1) It requires a minimum of four hours of pay for any food processor that calls an employee into work but the employee does not work the shift in its entirety, or (2) when an employee is told with less than 24 hours’ notice that their upcoming shift is not needed or that the hours in the shift have been reduced.
SB 828 and HB 2193 will hurt local restaurants, hospitality establishments and retailers. It requires an interactive scheduling process in which an employer must accommodate employee scheduling requests. It also requires that schedules be set 14 days in advance. For any changes made to an employee’s schedule with fewer than 14 days’ notice, it requires one hour of additional pay per any change that does not result in a loss of hours worked, and it requires one-half rate of pay for any scheduling change that results in a loss of hours.