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The Oregon Administrative Rules contain OARs filed through July 15, 2014
 
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BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 20

WAGES

Procedural Rules

839-020-0000

Notice of Proposed Rule

Prior to the adoption, amendment, or repeal of any rule relating to minimum wages, overtime and working conditions matters, the Bureau of Labor and Industries will give notice of the proposed adoption, amendment, or repeal as required in OAR 839-002-0002.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 183
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0004

Definitions

As used in ORS 653.010 to 653.261 and these rules, unless the context requires otherwise:

(1) "Administrator" means the Administrator of the Wage and Hour Division.

(2) "Adult" means an individual of 18 years of age or more.

(3) "Adult foster home" means any family home or facility in which residential care is provided in a homelike environment for five or fewer adults who are not related to the provider by blood or marriage.

(4) "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. "Agricultural employment" is employment in "Agriculture" as herein defined.

(5) "Bureau" means Bureau of Labor and Industries.

(6) "Casual basis" as used in ORS 653.020(2) and these rules means employment which is irregular and intermittent and which is not performed by an individual whose vocation is providing domestic services.

(7) "Child care service person" means an individual who performs child care services in the home of the individual or the child and who during any part of a 24 hour period provides custodial care and protection to infants or children.

(8) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(9) "Commissions" or "pay on a commission basis" means payment based on a percentage of total sales, or of sales in excess of a specified amount, or on a fixed allowance per unit agreed upon as a measure of accomplishment or on some other formula and may be the sole source of compensation or payment in addition to other compensation.

(10) "Companionship services", as used in ORS 653.020(14) and in these rules, means those services which provide fellowship, care and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the elderly or infirm person such as meal preparation, bed making, washing of clothes and other similar services. They may also include the performance of general household work: provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. Individuals employed in domestic service employment in or about a family home to provide companionship services are not required to be employed by the individual for whom they provide such services. The term "companionship services" does not include services relating to the care and protection of the elderly or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a family home.

(11) "Division" means the Wage and Hour Division of the Bureau of Labor and Industries.

(12) "Domestic service" means services of a household nature performed by an employee in or about a family home (permanent or temporary) of the person by whom the employee is employed. The term includes, but is not limited to, employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, gardeners, and companions to the elderly and infirm.

(13) "Domicile" means the permanent residence of a person or the place to which that person intends to return even though that person may actually reside elsewhere.

(14) "Employed on a seasonal basis at", as used in ORS 653.020(10) and in these rules, means employment that occurs during the time the organized camp provides services to campers at the camp site where campers are located. The term includes employment at the camp site in duties preparatory to the opening or closing of the camp site. The term includes employment during the camping season only and does not include full time, year around employment.

(15) "Employer" has the same meaning as that in ORS 653.010(3).

(16) "Fair market value" means an amount not to exceed the retail price customarily paid by the general public for the same or similar meals, lodging or other facilities or services provided to the employee by the employer. In determining the fair market value of meals, lodging and other facilities and services, the bureau will be guided by these rules and by Title 29, CFR Part 531 — Wage Payments under the Fair Labor Standards Act of 1938, where applicable.

(17) "Family home", as used in ORS 653.020(2) and this section, means a residence, the purpose of which is to provide an abode for the owner or renter of the residence and family members of the owner or renter. For example, a boarding house or an adult foster care home are not family homes for purposes of ORS 653.020(2) and these rules. However, when casual domestic service work is performed in structures where the owner or renter resides and operates a business, such work may qualify as exempt under ORS 653.020(2) depending upon all the facts of the particular arrangement.

(18) "Homeworker" means any employee suffered or permitted to produce goods or services for an employer in or about a home, apartment or room in a residence in which that employee or other employees of an employer resides, regardless of the source of the materials used by the homeworker in such production.

(19) "Hours worked" means all hours for which an employee is employed by and required to give to the employer and includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place and all time the employee is suffered or permitted to work. "Hours worked" includes "work time" as defined in ORS 653.010(11).

(20) "Immediate family" means grandfather, grandmother, father, mother, son, daughter, sister, brother, uncle or aunt.

(21) "Minimum wage" means the rate of pay prescribed in ORS 653.025 and 653.030.

(22) "Minor" means an individual of 17 years of age or less.

(23) "Organized camp" has the same meaning as that in ORS 653.010(6).

(24) "Primary duty" means, as a general rule, the major part, or over 50 percent, of an employee's time. However, a determination of whether an employee has management as the employee's primary duty must be based on all the facts of a particular case. Time alone is not the sole test and in situations where the employee does not spend over 50 percent of the employee's time in managerial duties, the employee might have management as a primary duty if other pertinent factors support such a conclusion. Factors to be considered include, but are not limited to, the relative importance of the managerial duties as compared with other duties, the frequency with which the employee exercises discretionary powers, the relative freedom from supervision and the relationship between the salary paid the employee and wages paid other employees for the kind of non-exempt work performed by the supervisor.

(25) "Primary school" means a learning institution containing any combination of grades Kindergarten - 8 or age level equivalent.

(26) "Reside" means a personal presence at some place of abode with no present intention of definite and early removal and with the intent to remain for an undetermined period, but not necessarily combined with the intent to stay permanently.

(27) "Resident manager" means an employee of an adult foster home who is domiciled at the home and who is directly responsible for the care of residents in the home on a day to day basis.

(28) "Salary" means a predetermined amount constituting all or part of the employee's compensation paid for each pay period of one week or longer (but not to exceed one month). The predetermined amount may not be any amount less than the equivalent of a monthly salary calculated by multiplying the wage set pursuant to ORS 653.025 by 2,080 hours per year, then dividing by 12 months.

(29) "Salary basis" means a salary as defined in section (28) of this rule, which is not subject to deduction because of lack of work for part of a work week, however, deductions for absences of one day or more may be made if the employee is absent for other reasons. Deductions may not be made for absences of less than one day, except as permitted for employers covered by the federal Family and Medical Leave Act of 1993, Public Law 103-3, for part-day absences due to leave pursuant to that law. Employees who are not paid for workweeks in which they performed no work are considered to be on a salary basis provided they are paid on a salary basis in workweeks when work is performed.

(a) Payment of additional compensation is not inconsistent with the salary basis of payment.

(b) Compensation paid in the form of fees is not inconsistent with the salary basis of payment, provided the fees paid in each pay period are not less than the amount required to be paid pursuant to ORS 653.025 and meet the requirements for fee payments under Title 29, Code of Federal Regulations, Part 541.605 and related regulations as amended April 23, 2004.

(30) "Secondary school" means a learning institution containing any combination of grades 9–12 or age level equivalent and includes those institutions that provide junior high schools which include 9th grade.

(31) "Violation" means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

(32) "Willfully" means knowingly. An action is done knowingly when it is undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person "should have known the thing to be done or omitted" if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done. A person acts willfully if the person has the means to inform himself or herself but elects not to do so. For purposes of these rules, the employer is presumed to know the requirements of ORS 653.010 to 653.261 and these rules.

Stat. Auth.: ORS 651.060(4) & 653.040
Stats. Implemented: 2013 SB 135, ORS 653
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BL 3-1992, f. & cert. ef. 3-2-92; BL 5-1993(Temp), f. 5-7-93, cert. ef. 5-14-93; BL 12-1993, f. 10-29-93, cert. ef. 11-1-93; BL 9-1996, f. & cert. ef. 10-8-96; BL 9-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02; TIC 3-2006, f. & cert. ef. 11-24-06; BLI 41-2006(Temp), f. & cert. ef. 11-27-06 thru 5-23-07; BLI 11-2007, f. 5-10-07, cert. ef. 5-15-07; BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0005

Employees Engaged in Administrative, Executive, Professional, or Outside Sales Work, Defining the Terms

As used in ORS 653.010 to 653.261 and in these rules, unless the context requires otherwise:

(1) "Executive Employee" means any employee:

(a) Whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof. The foregoing language of this paragraph prescribing the primary duty does not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment or who owns at least 20 percent interest in the enterprise in which the employee is employed; and

(b) Who customarily and regularly directs the work of two or more other employees therein; and

(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion of any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercises discretionary powers; and

(e) Who earns a salary and is paid on a salary basis pursuant to ORS 653.025 exclusive of board, lodging, or other facilities.

(2) "Administrative Employee" means any employee:

(a) Whose primary duty consists of either:

(A) The performance of office or non-manual work directly related to management policies or general business operations of the employee's employer or the employer's customers; or

(B) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and

(b) Who customarily and regularly exercises discretion and independent judgment; and

(c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity; or

(A) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or;

(B) Who executes under only general supervision special assignments and tasks; and

(d) Who earns a salary and is paid on a salary basis pursuant to ORS 653.025 exclusive of board, lodging, or other facilities.

(3) "Professional Employee" means any employee:

(a) Whose primary duty consists of the performance of:

(A) Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes; or

(B) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee; or

(C) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which the employee is employed; and

(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and

(c) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and

(d) Who earns a salary and is paid on a salary basis pursuant to ORS 653.025 exclusive of board, lodging, or other facilities.

(4) "Outside Sales Person" means any employee:

(a) Who is employed for the purpose of and who is customarily and regularly engaged away from the employer's place or places of business in:

(A) Making sales; or

(B) Obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

(b) Whose hours of work spent engaged in activities other than those activities described in paragraph (a)(A) or (B) of this section, do not exceed 30 percent of the hours worked in the workweek by non-exempt employees of the employer: Provided, that work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, will not be regarded as non-exempt work.

(5) "Independent Judgment and Discretion" means the selection of a course of action from a number of possible alternatives after consideration of each, made freely without direction or supervision with respect to matters of significance. It does not include skill exercised in the application of prescribed procedures.

Stat. Auth.: ORS 183 & ORS 653
Stats. Implemented: ORS 653.010 -- ORS 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BLI 1-2002, f. & cert. ef. 1-9-02

Payment of Minimum Wages

839-020-0010

Payment of Minimum Wages -- Generally

(1) Employees shall be paid no less than the applicable minimum wage for all hours worked, which includes "work time" as defined in ORS 653.010(11). If in any pay period the combined wages of the employee are less than the applicable minimum wage, the employer shall pay, in addition to sums already earned, no less than the difference between the amounts earned and the minimum wage as prescribed by the appropriate statute or administrative rule.

(2) Employers may include commission and bonus payments to employees when computing the minimum wage. Such commission or bonus payment may only be credited toward employees' minimum wages in the pay periods in which they are received.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.025
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BL 9-1996, f. & cert. ef. 10-8-96

839-020-0012

Wage Statements to Be Provided to Employees

(1) Except for employees who are otherwise specifically exempt under ORS 653.020, employers must furnish each employee, each time the employee receives a compensation payment from the employer, a written itemized statement of earnings. The written itemized statement must include:

(a) The total gross payment being made;

(b) The amount and a brief description of each and every deduction from the gross payment;

(c) The total number of hours worked during the time covered by the gross payment;

(d) The rate of pay;

(e) If multiple rates of pay are paid, the total number of hours worked at each rate of pay;

(f) If the worker is paid on a piece rate, the number of pieces done and the rate of pay per piece done;

(g) The net amount paid after any deductions;

(h) The employer's name, address and telephone number;

(i) The pay period for which the payment is made.

(2) When a compensation payment is a draw or advance against future earnings, and no deductions are being made from the payment, the written itemized statement must include the information required in section (1)(a), (h) and (i) of this rule. The employee must be provided with a statement containing all of the information required by section (1) of this rule at the employee's next regular payday, even if the employee is not entitled to payment of any further wages at that time.

(3) Pursuant to the Uniform Electronic Transactions Act (Chapter 535, Oregon Laws 2001) ORS 84.001 to 84.061, the itemized statement may be provided in an electronic format if:

(a) The employee agrees; and

(b) The employee has the ability to print or store the electronic itemized statement at the time of receipt.

Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 652.610 & 652.640
Hist.: BLI 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08

839-020-0013

Bonuses Provided to Workers in Agriculture

(1) Every producer, or agent of the producer, who employs a labor contractor to provide a working crew for harvesting perishable agricultural products or who offers a bonus to those persons who harvest perishable agricultural products shall cause to be conspicuously posted and maintained on the premises where the agricultural products are to be harvested, a notice that states:

(a) A description of the terms and conditions of any bonus offered, including the manner of determining when the bonus is earned; and

(b) That portion of the labor contractor's compensation that is based on the amount of work done by each employee of the labor contractor.

(2) Such notice must be written in the language customarily used by the employer or its agents to communicate with a worker.

(3) The notice must be distributed in writing to workers, if required by ORS 658.440 (1)(f) or any other law.

(4) Any condition that has not been properly disclosed in the manners described above cannot be enforced against any worker to deny or diminish the amounts to which the worker would otherwise be entitled.

Stat. Auth.: ORS 651.060
Stats. Implemented: ORS 652.635
Hist.: BL 9-1996, f. & cert. ef. 10-8-96

839-020-0015

Fixed Minimum Hourly Wage Rates Lower than the Minimum Wage Rate

(1) Pursuant to ORS 653.025 and 653.030 the commissioner will consider the employment of specific types of persons or of individual persons themselves at a fixed minimum hourly wage rate lower than the rate required by ORS 653.025, when the commissioner has determined that the application of these requirements would substantially curtail employment opportunities for the specific types of persons or individuals involved. The types of persons for whom a lower rate may be set upon a showing of good cause as set out below include, but are not limited to, individuals with mental or physical disabilities who cannot perform all of the bona fide job requirements within a reasonable period of time expected of those at the entry level and student learners as defined in ORS 653.070.

(2) Rules for the employment of specific named individuals at less than the minimum wage:

(a) An employer must submit an application for the payment of a fixed minimum hourly wage rate lower than the rate required by ORS 653.025 on a form provided by the commissioner stating each and every reason why the employer believes a lower rate should be established. Forms may be obtained at any office of the Bureau of Labor and Industries;

(b) The application form must be signed by the employer, the prospective employee and legal guardian, or person legally empowered to act for such employee to whom the lower wage rate is proposed to be paid;

(c) The commissioner may require additional information from the employer or prospective employee to verify the conditions or reasons specified in the application including, but not limited to, medical reports;

(d) In considering the application, the Civil Rights Division of the Oregon Bureau of Labor and Industries, or other appropriate governmental agencies may be consulted for technical assistance to reasonably assure that no approval will be granted that will conflict with the rights of workers under other laws;

(e) The commissioner will grant the application only when the commissioner has determined that the application of ORS 653.025 would substantially curtail opportunities for employment of the prospective employee named in the application. The application may be granted under such terms and conditions as the commissioner deems appropriate;

(f) The commissioner will consider each application on an individual basis and will not grant blanket authorization in advance for a specific type or group of persons unless the conditions set out in section (3) of this rule are met.

(3) Rules for general authorization for an employer to employ unnamed individuals with mental or physical disabilities at less than the minimum wage:

(a) Under certain circumstances, the commissioner may grant blanket approval for an employer to employ persons with mental or physical disabilities or others when good cause is shown at a fixed minimum hourly wage rate lower than the rate required by ORS 653.025.

(b) An employer desiring blanket authority to employ individuals with mental or physical disabilities at less than the minimum wage must apply to the commissioner for such authority;

(c) The application should include:

(A) The name of the organization;

(B) The purpose for which it was created;

(C) A detailed statement of the organization and its activities;

(D) The method and procedure by which the applicant obtains its employees;

(E) A detailed statement of the duties the employees will perform and a description of the end product produced from the performance of such duties;

(F) The hours the employees will work;

(G) How many individuals it intends to employ under authorization, if granted, and for how long;

(H) The rate of pay it will pay such individuals if authorization is granted.

(d) The applicant will be required to submit such other information as the commissioner deems necessary;

(e) The commissioner will grant the application only when it has determined that the application of ORS 653.025 would substantially curtail opportunities for employment;

(f) If the commissioner grants the application the commissioner may do so under such terms and conditions as the commissioner deems appropriate;

(g) Employers operating nonprofit rehabilitation programs or organizations which are organized and conducted for the education and training of individuals with mental or physical disabilities, who desire blanket authorization to pay less than the minimum wage required by ORS 653.025, must apply for such authorization to the U.S. Department of Labor, Wage and Hour Division, Federal Office Building, 1111 Third Avenue, Suite 605, Seattle, WA 98101-3212, utilizing the application procedures set out in Title 29, CFR, Part 525. Pursuant to an agreement with the U.S. Department of Labor, the commissioner may review the application material submitted to the U.S. Department of Labor. A certificate issued by the U.S. Department of Labor authorizing the payment of special minimum wage rates under the Fair Labor Standards Act will be deemed by the commissioner to satisfy the requirements of this rule.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & 653
Stats. Implemented: ORS 653.030
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 10-1990, f. & cert. ef. 7-26-90; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08

Deduction from the Minimum Wage

839-020-0020

Deductions -- Generally

Employers may not deduct the cost of any of the following items from the minimum wage:

(1) Tools.

(2) Equipment.

(3) Uniforms, including but not limited to, garments such as suits, dresses, aprons, and all other garments whatsoever as worn by the employees as a condition of employment. Such apparel of a similar design, color, or material or forming part of the decorative pattern of the establishment or distinguishing the employee as an employee of the concern is presumed to be worn as a condition of employment.

(4) Laundry or cleaning of uniforms.

(5) Maintenance of tools, equipment or uniforms.

(6) Breakage or loss of tools, equipment or uniforms.

(7) Any other item required by the employer to be worn or used by the employee as a condition of employment.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.025
Hist.: BL 1-1987, f. & ef. 1-12-87; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0025

Deductions for Meals, Lodging, Facilities or Other Services

(1) The fair market value of meals, lodging and other facilities or services furnished by the employer to the employee for the private benefit of the employee may be deducted from the minimum wage. The employer has the burden of establishing the fair market value (See also OAR 839-020-0004(16)).

(2) "Fair market value" may be established in either of the following ways:

(a) The amount actually and customarily charged for comparable meals, lodging, facilities or services to consumers who are not employees of the employer; or

(b) The actual cost to the employer in purchasing, preparing or providing the meals, lodging or other facilities or services.

(3) The provisions of section (1) of this rule do not prohibit the payment of wages as meals, lodging and other facilities or services furnished to employees either as additions to wages or as items for which deductions from wages will be made. These provisions apply to all facilities or services furnished by the employer as compensation to the employee regardless of whether the employer calculates charges for such facilities or services as additions to or deductions from wages. In order for the employer to be able to claim credit toward the minimum wage for providing meals, lodging or other facilities or services furnished to an employee, the deduction of these costs from the employee's wages must have been authorized by the employee in writing, the deduction must have been for the private benefit of the employee, and the deduction must be recorded in the employer's books, or the deduction of these costs must be authorized by a collective bargaining agreement, in accordance with the provisions of ORS 652.610.

(4) Full settlement of sums owed to the employer by the employee because of meals, lodging and other facilities or services furnished by the employer shall be made on each regular payday.

(5) The provisions of section (1) of this rule apply only when the following conditions are continuously met:

(a) The employer has met the conditions of ORS 652.610(3); and

(b) The employee actually receives the meals, lodging or other facilities or services; and

(c) The meals, lodging or other facilities or services are furnished by the employer for the private benefit of the employee; and

(d) The meals, lodging or other facilities and services are provided in a lawful manner. No deduction from the minimum wage may be made for alcohol provided without applicable permits, for illegal substances or services, such as drugs or prostitution, or for any other substance, facility or service which is provided in a manner determined by a court or appropriate administrative agency to have been unlawful.

(6) As used in this rule, meals actually received by the employee and furnished by the employer are regarded as being for the private benefit of the employee except when meal expenses are incurred by an employee while traveling away from the employee's home on the employer's business.

(7) Lodging or other facilities or services are furnished for the private benefit of the employee when such lodging or other facilities or services are not required by the employer. For purposes of this rule, lodging or other facilities or services are required by the employer when:

(a) Acceptance of the lodging or other facilities or services is a condition of the employee's employment; or

(b) The expense is incurred by an employee who must travel away from the employee's home on the employer's business; or

(c) The acceptance of the lodging or other facilities or services is involuntary or coerced; or

(d) The provision of lodging or other facilities or services is necessary in order for the employer to maintain an adequate work force at the times and locations the employer needs them.

Stat. Auth.: ORS 651.060(4) & 653.040
Stats. Implemented: 2013 SB 135, ORS 653
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 5-1991(Temp), f. 5-15-91, cert. ef. 5-17-91; BL 3-1992, f. & cert. ef. 3-2-92; BL 9-1996, f. & cert. ef. 10-8-96; BLI 15-1999, f. & cert. ef. 10-6-99; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0027

Deductions for Garnishment Processing Fee

(1) If a garnishee that employs a debtor is required to make any payment under a writ of garnishment by reason of wages payable to the debtor, the garnishee may collect a processing fee as provided pursuant to ORS 18.736 for each week of wages, or fraction of a week of wages, for which a payment is made under the provisions of ORS 18.735. The processing fee must be collected after the last payment is made under the writ. The fee shall be withheld from the wages of the debtor, and is in addition to the amounts withheld for payment to the garnishor under the writ or under any other writ delivered to the garnishee.

(2) The fee provided for in this section may not be collected if withholding of the fee would reduce the debtor's net disposable income below the minimum amount prescribed by ORS 18.385.

Stat. Auth.: ORS 651.060(4), 652, 653 & HB 3544(2003 legislature)
Stats. Implemented: ORS 18.838, 652.150 & 653.261(1)
Hist.: BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04; BLI 22-2010, f. 12-30-10, cert. ef. 1-1-11

Payment of Overtime Wages

839-020-0030

Overtime — Generally

(1) Except as provided in OAR 839-020-0125 to 839-020-0135, all work performed in excess of forty (40) hours per week must be paid for at the rate of not less than one and one-half times the regular rate of pay when computed without benefits of commissions, overrides, spiffs, bonuses, tips or similar benefits pursuant to ORS 653.261(1). Similar benefits include, but are not limited to, discretionary bonuses, gifts, profit sharing, thrift and savings program, trusts, reimbursements for expenses, holiday, or vacation pay.

(2) Definitions:

(a) "Work week" means any seven (7) consecutive twenty four (24) hour period as determined by the employer. The beginning of the work week may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of this rule. For purposes of overtime computation, each work week stands alone;

(b) "Regular rate", for purposes of overtime computation, means a regular hourly rate, but in no case will the regular hourly rate be less than the applicable statutory minimum wage rate. In the absence of an express agreement between the employer and the employee which specifies the regular hourly rate, the regular hourly rate is determined by dividing the total remuneration for employment in any work week (excluding commissions, spiffs, bonuses, tips or similar benefits), by the total number of hours actually worked in that work week for which such remuneration was paid. The division will be guided in the application and calculation of regular rate by Title 29, Code of Federal Regulations, Part 778, Subpart C, D and E except when expressly prohibited by ORS Chapter 653 or these rules.

(3) Methods for determining amount of overtime payment under different compensation agreements:

(a) Compensation based exclusively on hourly rate of pay:

(A) Where the employee is employed solely on the basis of a single hourly rate, the hourly rate is the "regular rate." For hours worked in excess of forty (40) hours in a work week the employee must be paid, in addition to the straight time hourly earnings, a sum determined by multiplying one-half the hourly rate by the number of hours worked in excess of forty (40);

(B) For example, a $10 per hour rate will bring, for an employee who works 46 hours, a total weekly wage of $490 (46 hours at $10 plus six hours at $5.00). In other words the employee must be paid an amount equal to $10 per hour for 40 hours and $15.00 per hour for the six hours of overtime, or a total of $490.

(b) Compensation based upon piece-rate agreement:

(A) Where an employee is employed on a piece-rate basis, the regular hourly rate of pay is determined by adding together the total earnings, (excluding commissions, spiffs, bonuses, tips or similar benefits) for the work week and dividing this sum by the number of hours worked in the week for which such compensation is to be paid;

(B) For example, an employee who has earned $500 during a 50 hour work week must be paid an additional sum of $50 for the ten overtime hours, or a total of $550 (50 hours at $10 per hour and the ten overtime hours at $5.00 per hour).

(c) Compensation based upon weekly salary agreement for regular work week of less than 40 hours:

(A) Where the employee is employed on a weekly salary for a regular work week of fewer than 40 hours, the regular hourly rate of pay is determined by dividing the salary by the number of hours agreed to be worked in the work week which such salary is intended to compensate;

(B) For example, if an employee is hired at a salary of $525 and it is understood that this salary is compensation for a regular work week of 35 hours, the employee's regular rate of pay is $15 per hour ($525 divided by 35 hours). Thus, where the employee works in excess of 35 hours in a given work week such employee must be paid $15 per hour for each of the first 40 hours and $22.50 per hour (one and one-half times $15) for each hour worked in excess of 40 hours in such work week.

(d) Compensation based upon a weekly salary agreement for a regular work week of 40 hours:

(A) Where the employee is employed on a weekly salary for a regular work week of 40 hours, the regular hourly rate of pay is computed by dividing the salary by 40 hours;

(B) For example, where an employee is hired at a salary of $600 and it is understood that this weekly salary is compensation for a regular work week of 40 hours, the employee's regular rate of pay is $15 per hour and such employee must be compensated at the rate of $22.50 per hour for each hour worked in excess of 40 hours in such work week.

(e) Compensation based upon weekly salary agreement for regular workweeks of more than 40 hours:

(A) If the employee is employed on a weekly salary which is the agreed compensation for a set number of hours in excess of 40, the regular hourly rate of pay is determined by dividing the weekly salary by the set number of hours which such salary is intended to compensate;

(B) For example, where an employee is hired at a weekly salary of $675 and it is understood that this weekly salary is compensation for a regular work week set at 45 hours, the employee's regular rate of pay is $15 per hour and such employee must be paid an additional sum of $37.50 for such work week or a total of $712.50 (45 hours at $15 per hour and the five overtime hours at $7.50 per hour). The employee must be paid an additional $22.50 per hour for each hour worked in excess of 45 hours in such work week.

(f) Compensation based upon an agreed fixed salary for fluctuating hours (fluctuating workweek method for payment of overtime):

(A) An employee employed on a fixed salary may have hours of work which vary from work week to work week and the salary may be paid to the employee pursuant to an understanding with the employer that such employee will receive such fixed amount of compensation for whatever hours the employee is called upon to work in a work week, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation for the hours worked each work week, whatever their number, such a salary arrangement is permitted if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable statutory minimum wage rate for every hour worked in those work weeks in which the number of hours worked is greatest, and if the employee receives overtime compensation, in addition to such salary, for all hours worked in excess of 40, at a rate not less than one-half the regular rate of pay. Since, under such an arrangement, the number of hours actually worked will fluctuate from work week to work week, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the work week into the amount of the salary to obtain the applicable regular hourly rate for any given work week. Payment for overtime hours worked in excess of 40 hours in such work week at one-half such hourly rate in addition to the salary satisfies the requirements of this rule because such hours have already been compensated at the regular rate, under the salary arrangement. The following examples, based upon a weekly salary of $400, are offered by way of illustration:

(i) Work week #1 -- 50 hours worked; the employee's regular rate of pay is $8 per hour and the employee must be paid an additional sum equal to one-half the regular rate times the ten overtime hours worked or $40, making the total compensation for that work week $440;

(ii) Work week #2 -- 60 hours worked; the employee's regular rate of pay is $6.67 per hour, which is less than the required state minimum wage rate. The employee must be paid an additional sum equal to the difference between the employee's weekly salary of $400 and the total of the amount the employee earned at the minimum wage for 40 hours plus one and one-half times the minimum wage rate for the hours worked over 40 during the work week (40 hours X minimum wage rate + 20 hours X 1.5 X minimum wage rate).

(B) The fluctuating work week method for the payment of overtime does not apply to employers covered by the federal Family Medical Leave Act of 1993, 29 USC 2601, et. seq., who comply with the Code of Federal Regulations regarding the nonpayment of leave time authorized by the Act and the special exception pertaining to the payment of overtime under the fluctuating workweek method. (See 29 CFR, Part 825.206 (b) and (c)) Employers who select this method for paying overtime and who are covered by this Act but choose not to comply with 29 CFR 825.206, must comply with this rule.

(g) Fixed salary for periods other than work week: Where a salary covers a period longer than a work week, such as a month, it must be reduced to its work week equivalent. A monthly salary is subject to translation to its equivalent weekly wage by multiplying by 12 (the number of months) and dividing by 52 (the number of weeks). A semi-monthly salary is translated into its equivalent weekly wages by multiplying by 24 and dividing by 52. Once the weekly wage is arrived at, the regular rate of pay and the amount of any overtime pay is determined as provided by this rule.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 183 & ORS 653
Stats. Implemented: ORS 653.261
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

Hours Worked

839-020-0040

Hours Worked — Generally

(1) OAR 839-020-0040 to 839-020-0047 deals with hours worked as defined by OAR 839-020-0004(19) and discusses principles involved in determining what constitutes working time for purposes of ORS 653.010 to 653.261 and these rules.

(2) Work requested or required is considered work time. Work not requested, but suffered or permitted is considered work time.

(3) Work performed for the employer but away from the employer's premises or job site is considered work time. If the employer knows or has reason to believe that work is being performed, the time spent must be counted as hours worked.

(4) It is the duty of the employer to exercise control and see that the work is not performed if it does not want the work to be performed. The mere promulgation of a policy against such work is not enough.

Stat. Auth.: ORS 651.060(4) & 653.040
Stats. Implemented: 2013 SB 135, ORS 653.010 - 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0041

Waiting Time

(1) On duty (engaged to wait): Where waiting is an integral part of the job, i.e., when the time spent waiting belongs to and is controlled by the employer and the employee is unable to use the time effectively for the employee's own purposes, that employee will be considered as engaged to wait. All time spent in activity where an employee is engaged to wait will be considered as part of hours worked.

(2) Off duty (waiting to be engaged): Periods during which an employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for the employee's own purposes are not hours worked. The employee is not completely relieved from duty and cannot use the time effectively for the employee's own purposes unless the employee is told in advance that the employee may leave the job and that the employee will not have to commence work until a specified hour has arrived. Whether the time is long enough to enable the employee to use the time effectively for the employee's own purposes depends upon all of the facts and circumstances of the case.

(3) On-call time: An employee who is required to remain on-call on the employer's premises or so close thereto that the employee cannot use the time effectively for the employee's own purposes is working while "on-call". An employee who is not required to remain on the employer's premises but is merely required to leave word at the employee's home or with company officials where the employee may be reached is not working while on-call.

Stat. Auth.: ORS 183 & ORS 653
Stats. Implemented: ORS 653.010 -- ORS 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0042

Sleeping Time and Certain Other Activities

Under certain conditions an employee is considered to be working even though some of the employee's time is spent sleeping or in certain other activities:

(1) Less than 24 hours duty: An employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep or engage in other activities when not busy.

(2) Duty of 24 hours or more: Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted sleep period. If sleeping period is of more than eight hours, only eight hours will be credited. Where no expressed or implied agreement to the contrary is present, the eight hours of sleeping time and lunch periods constitute hours worked:

(a) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable sleep period, the entire period must be counted;

(b) For purposes of this rule a reasonable night's sleep is considered sleep time of not less than five continuous hours.

(3) Employees residing on employers' premises or working at home: An employee who resides on the employer's premises on a permanent basis or for extended periods of time is not considered as working all the time the employee is on the premises. Ordinarily, the employee may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when the employee may leave the premises for the employee's own purposes. To determine the exact hours worked, any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.010 -- ORS 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0043

Preparatory and Concluding Activities

(1) Preparatory and concluding activities are considered hours worked if the activities performed by the employee are an integral and indispensable part of a principal activity for which the employee is employed:

(a) Example: A bank teller counts the till and arranges the work space in preparation for receiving customers. This activity is an integral and indispensable part of the principal activity for which the employee is employed and is included as hours worked;

(b) Example: In connection with the operation of a lathe, the lathe operator oils, greases, or cleans the machine or installs a new cutting tool. Such activities are an integral and indispensable part of a principal activity and are included as hours worked;

(c) Example: Agricultural workers must dress in protective clothing and thoroughly clean up after their work with or around pesticides. The time spent in these activities is work time.

(2) These rules are applicable even where there exists a custom, contract or agreement not to pay for the time spent in such activity.

(3) Where a contract, custom or practice dictates certain activities to be considered as work time, even though not considered to be an integral and indispensable part of a principal activity, the time devoted to such activities will be considered as work time.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.010 -- ORS 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0044

Lectures, Meetings and Training Programs

(1) Attendance at lectures, meetings, training programs and similar activities need not be counted as work time if the following four criteria are met:

(a) Attendance is outside of the employee's regular working hours;

(b) Attendance is voluntary;

(c) The course, lecture, or meeting is not directly related to the employee's job; and

(d) The employee does not perform any productive work during such attendance.

(2) Involuntary attendance: Attendance is not voluntary if it is required by the employer. It is not voluntary in fact, if the employee is given to understand or led to believe that the employee's present working conditions or the continuance of the employee's employment would be adversely affected by non-attendance.

(3) Training is directly related to an employee's job if it is designed to make the employee handle the employee's job more effectively as distinguished from training the employee for another job or teaching the employee a new additional skill in the same job.

(4) Independent training is time spent by the employee on the employee's own initiative attending an independent school, college, or independent trade school after hours. Time spent in this activity is not considered hours worked for an employer even if the courses are related to the employee's job.

(5) Special situations: There are special situations where the time spent in attending lectures, training sessions and courses of instruction is not regarded as hours worked. For example, an employer may establish for the benefit of its employees a program of instruction, which corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.

(6) Time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met:

(a) The apprentice is employed under a written apprenticeship agreement or program which meets the standards of and is registered with the Bureau of Labor and Industries, Apprenticeship and Training Division; and

(b) Such time does not involve productive work or performance of the apprentice's regular duties. If the above criteria are met, the time spent in such related supplemental training will not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.

(7) Time spent in required training outside regular working hours at specialized or follow up training which is required for certification of employees by any law or ordinance does not constitute compensable hours of work. The time spent in training as provided in this subsection is not compensable, even if all or part of the cost of training is borne by the employer.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0045

Travel Time

(1) Home to work in an ordinary situation: An employee who travels from home before the employee's regular workday and returns home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment, whether the employee works at a fixed location or at different job sites. Normal travel from home to work is not work time.

(2) Home to work in an emergency situation: If an employee has left the employer's premises or job site after completing the day's work and is subsequently called out to travel a substantial distance to perform an emergency job, any time spent in excess of time spent in normal home-to-work travel will be considered working time. Call-backs which require only normal home-to-work travel to the employer's place of business or job site will not be considered working time. For purposes of this section, "substantial distance" means a distance beyond a 30-mile radius of the employer's place of business.

(3) Travel that is all in a day's work: Time spent by an employee in travel as part of the employee's principal activity must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there or to pick up and carry tools, the travel from the designated place to the work place is part of the day's work and must be counted as hours worked regardless of any contract, custom or practice:

(a) Example: A construction worker who travels from job site to job site during the work day must be compensated for time spent in traveling;

(b) Example: If an employee who normally finishes work on the employer's premises at 5 p.m. is sent to another job at a different site, finishes that job at 8 p.m. and is then required to return to the employer's premises arriving at 9 p.m., the employee will be compensated for all time up to 9 p.m. However, if the employee goes home instead of returning to the employer's premises, the travel time after 8 p.m. is considered normal work to home travel and is not compensable.

(4) Home to work on special one-day assignment to another city: An employee who regularly works at a fixed official work station, if given an assignment to work in another city outside of a 30 mile radius of the official work station where normally employed, and not required to stay over night, must be paid travel time pursuant to section (3) of this rule. This time is considered an integral part of a principal activity.

(5) Travel away from the home community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is work time when it cuts across the employee's workday. The employee is substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on non-working days. Time that is spent in travel away from home outside of regular work hours as a passenger on an airplane, train, boat, bus, or automobile is not considered work time.

(6) When a private automobile is used in travel away from the home community: If an employee is offered public transportation but requests permission to drive the employee's own car instead, the employer may count as hours worked either the time spent driving the car or the time the employee would have had to count as hours worked during working hours if the employee had used the public conveyance.

(7) Work performed while traveling includes any work which an employee is required to perform while traveling and must be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when the employee is permitted to sleep in adequate facilities furnished by the employer.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.010 -- ORS 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0046

Adjusting Grievances, Medical Attention, Civic and Charitable Work and Suggestion Systems

(1) Time spent in adjusting grievances between an employee and employer during the time employees are required to be on the premises is hours worked, but in the event a bona fide union is involved the counting of such time will be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement.

(2) Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when the employee is working constitutes hours worked.

(3) Time spent in work for public or charitable purposes at the employer's request, or under its direction or control, or while the employee is required to be on the premises, is working time. Time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked.

(4) Time spent by employees outside of their regular working hours in developing suggestions under a general suggestion system is not working time, but if employees are permitted to work on suggestions during regular working hours the time spent must be counted as hours worked. When an employee is assigned to work on the development of a suggestion, the time is considered hours worked.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.010 -- ORS 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0047

Agricultural Employees

The provisions of OAR 839-020-0040 to 839-020-0047 apply to all persons employed in Agriculture who are required to be paid minimum wages pursuant to ORS 653.025.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.025
Hist.: BL 10-1990, f. & cert. ef. 7-26-90

Working Conditions

839-020-0050

Meal and Rest Periods

(1) The purpose of this rule is to prescribe minimum meal periods and rest periods for the preservation of the health of employees.

(2)(a) Except as otherwise provided in this rule, every employer shall provide to each employee, for each work period of not less than six or more than eight hours, a meal period of not less than 30 continuous minutes during which the employee is relieved of all duties.

(b) Except as otherwise provided in this rule, if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.

(c) An employer is not required to provide a meal period to an employee for a work period of less than six hours. When an employee’s work period is more than eight hours, the employer shall provide the employee the number of meal periods listed in Appendix A of this rule.

(d) Timing of the meal period: If the work period is seven hours or less, the meal period is to be taken after the conclusion of the second hour worked and completed prior to the commencement of the fifth hour worked. If the work period is more than seven hours, the meal period is to be taken after the conclusion of the third hour worked and completed prior to the commencement of the sixth hour worked.

(3) If an employer does not provide a meal period to an employee under section (2) of this rule, the employer has the burden to show that:

(a) To do so would impose an undue hardship on the operation of the employer’s business as provided in section (4), and that the employer has complied with section (5) of this rule;

(b) Industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duty; or

(c) The failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period required under section (2) of this rule. If an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.

(4) As used in section (3)(a) of this rule, “undue hardship” means significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. For the purpose of determining whether providing a meal period requires significant difficulty or expense, the following factors may be considered:

(a) The employer’s cost of complying with the requirement to provide a meal period under section (2) of this rule.

(b) The overall financial resources of the employer.

(c) The number of persons employed at the particular worksite and their qualifications to relieve the employee; the total number of persons employed by the employer; and the number, type and geographic separateness of the employer’s worksites.

(d) The effect of providing the meal period required under section (2) of this rule on worksite operations involving: the startup or shutdown of machinery in continuous-operation industrial processes; intermittent and unpredictable workflow not in the control of the employer or employee; the perishable nature of materials used on the job; and the safety and health of other employees, patients, clients or the public.

(5) When an employer does not provide a meal period to an employee under section (2) of this rule, and is able to make the required showing under section (3)(a) of this rule:

(a) The employer shall instead provide the employee adequate paid periods in which to rest, consume a meal, and use the restroom; and

(b) The employer shall first provide to each employee a notice provided by the commissioner of the Bureau of Labor and Industries regarding rest and meal periods in the language used by the employer to communicate with the employee. The employer shall retain and keep available to the commissioner a copy of the notice for the duration of the employee's employment and for no less than six months after the termination date of the employee. Notices that comply with this subsection are available upon request from the bureau. This subsection takes effect on March 16, 2009.

(6)(a) Except as provided in subsection (b) of this section, every employer shall provide to each employee, for each segment of four hours or major part thereof worked in a work period, a rest period of not less than ten continuous minutes during which the employee is relieved of all duties, without deduction from the employee's pay.

(A) As the nature of the work allows, the employer shall provide the rest period approximately in the middle of each segment of four hours or major part thereof worked in a work period. When the employee’s work period is more than eight hours, the employer shall provide the employee the number of rest periods listed in Appendix A of this rule.

(B) The employer shall provide rest periods in addition to and taken separately from the time provided for a meal period. An employer may not require or allow an employee to add the rest period to a meal period or deduct the rest period from the beginning or end of the employee’s work period to reduce the overall length of the work period.

(C) An employer has the burden to show that the employer provided the rest periods required under this section.

(b) An employer is not required to provide a rest period to an employee when all of the following conditions are met:

(A) The employee is 18 years of age or older;

(B) The employee works less than five hours in any period of 16 continuous hours;

(C) The employee is working alone;

(D) The employee is employed in a retail or service establishment, i.e., a place where goods and services are sold to the general public, not for resale; and

(E) The employee is allowed to leave the employee's assigned station when the employee must use the restroom facilities.

(7) The provisions of this rule regarding meal periods and rest periods may be modified by the terms of a collective bargaining agreement if the provisions of the collective bargaining agreement entered into by the employees specifically prescribe rules concerning meal periods and rest periods.

(8)(a) Pursuant to the provisions of ORS 653.261(5), if an employer agrees, an employee may waive a meal period if all of the following conditions are met:

(A) The employee is employed to serve food or beverages, receives tips, and reports the tips to the employee's employer;

(B) The employee is at least 18 years of age;

(C) The employee voluntarily requests to waive the employee's meal periods no less than seven calendar days after beginning employment;

(D) The employee's request to waive the employee's meal periods is in writing in the language used by the employer to communicate with the employee, on a form provided by the commissioner, and is signed and dated by both the employee and employer;

(E) The employer retains and keeps available to the commissioner a copy of the employee's request to waive the employee's meal period during the duration of the employee's employment and for no less than six months after the termination date of the employee;

(F) The employee is provided with a reasonable opportunity to consume food during any work period of six hours or more while continuing to work;

(G) The employee is paid for any and all meal periods during which the employee is not completely relieved of all duties;

(H) The employee is not required to work longer than eight hours without receiving a 30-minute meal period during which the employee is relieved of all duties;

(I) The employer makes and keeps available to the commissioner accurate records of hours worked by each employee that clearly indicate whether or not the employee has received meal periods; and

(J) The employer posts a notice provided by the commissioner regarding rest and meal periods in a conspicuous and accessible place where all employees can view it.

(b) Either the employer or employee may revoke the agreement for the employee to waive the employee's meal periods by providing at least seven (7) calendar days written notice to the other.

(c) Notwithstanding subsection (b) of this section, an employee who has requested to waive meal periods under this section may request to take a meal period without revoking the agreement to waive such periods. The request to take a meal period must be submitted in writing to the employer no less than 24 hours prior to the meal period requested.

(d) An employer may not coerce an employee into waiving a meal period.

(e) An employer will be considered to have coerced an employee into waiving the employee's meal period under the following circumstances:

(A) The employer requests or requires an employee to sign a request to waive meal periods;

(B) An employee is required to waive meal periods as a condition of employment at the time of hire or at any time while employed;

(C) The employer requests or requires any person, including another employee, to request or require an employee to waive meal periods; or

(D) The employee signs a form requesting to waive meal periods prior to being employed for seven calendar days.

(f) Employee waiver forms and notices regarding rest and meal periods that comply with this section are available upon request from the bureau.

(9) Rest and meal period requirements specific to minors under 18 years of age are provided in OAR 839-021-0072.

(10) As used in this rule:

(a) “Work period” means the period between the time the employee begins work and the time the employee ends work.

(b) “Work period” includes a rest period as provided in section (6) of this rule, and any period of one hour or less (not designated as a meal period) during which the employee is relieved of all duties.

(c) “Work period” does not include a meal period unless the meal period is paid work time as provided in section (2) or (5) of this rule.

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendices.]

Stat. Auth.: ORS 651.060(4) & 653.040
Stats. Implemented: ORS 653
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 10-1990, f. & cert. ef. 7-26-90; BL 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 21-2008, f. & cert. ef. 7-8-08; BLI 29-2008(Temp), f. 9-22-08, cert. ef. 9-23-08 thru 3-22-09; BLI 3-2009, f. & cert. ef. 1-12-09; BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0051

Rest Periods for Expression of Milk

(1) ORS 653.077 applies to employers who employ 25 or more employees in the State of Oregon for each working day during each of 20 or more calendar workweeks in the year in which the rest periods are to be taken or in the year immediately preceding the year in which the rest periods are to be taken.

(2) ORS 653.077 requires a covered employer to provide reasonable rest periods to accommodate an employee who needs to express milk for her child 18 months of age or younger. Any employer not covered by ORS 653.077 and these rules may provide rest periods or other accommodation for expression of milk pursuant to its own policies or by agreement or contract with employees.

(a) A "reasonable rest period," unless otherwise agreed to by the employer and the employee, is no less than 30 minutes during each 4-hour work period, or major part of a 4 hour work period, to be taken by the employee approximately in the middle of each work period.

(A) If feasible, the employee will take the rest periods to express milk at the same time as the rest periods or meal periods that are otherwise provided to the employee. If not feasible, the employee is entitled to take an unpaid rest period of up to 30 additional minutes during each 4-hour period to express milk.

(B) If the employer is required by law or contract to provide the employee with paid rest periods, the employer will treat the rest periods used by the employee for expressing milk as paid rest periods, up to the amount of time the employer is required to provide as paid rest periods.

(C) If an employee takes unpaid rest periods, the employer may, but is not required to, allow the employee to work before or after her normal shift to make up the amount of time used during the unpaid rest periods. If the employee does not work to make up the amount of time used during the unpaid rest periods, the employer is not required to compensate the employee for that time.

(D) A covered employer may not require an employee, including an employee who is FLSA exempt, to substitute paid leave time for unpaid rest periods provided in compliance with these rules.

(b) As used in ORS 653.077 and this rule, "expression of milk" means the initiation of lactation by manual or mechanical means and does not include breastfeeding. However, any employer may accommodate breastfeeding pursuant to its own policies or by agreement or contract with employees.

(3) An employer subject to ORS 653.077 will make a reasonable effort to provide the employee with a private location within close proximity to the employee's work area to express milk.

(a) As used in ORS 653.077 and this rule, a "private location" is a place, other than a public restroom or toilet stall, in close proximity to the employee's work area for the employee to express milk concealed from view and without intrusion by other employees or the public and includes, but is not limited to:

(A) The employee's work area if the work area permits the employee to express milk concealed from view and without intrusion by other employees or the public.

(B) A room connected to a public restroom, such as a lounge, if the room allows the employee to express milk concealed from view and without intrusion by other employees or the public.

(C) A child care facility where the employee can express milk concealed from view and without intrusion by other employees or the public.

(D) An empty or unused office, conference room, or a storage space, so long as there is a door that closes and any windows can be covered, and there is a sign that can be placed on the door or handle of the door indicating that the room is in use.

(b) As used in ORS 653.077 and this rule, a "public restroom" is a restroom freely available for use by employees or the general public that does not include an attached lounge or room that allows an employee to express milk concealed from view and without intrusion by other employees or the public. A "toilet stall" includes a restroom that contains one toilet, whether or not in plain view, and whether or not the restroom locks from the inside.

(c) As used in ORS 653.077 and this rule, "close proximity" means within walking distance from the employee's work area that does not appreciably shorten the rest or meal period.

(d) If a private location is not within close proximity to the employee's work area, the employer may not include the time taken to travel to and from the location as part of the break period.

(4) A covered employer is not required to provide rest periods under this section if to do so would impose an undue hardship on the operation of the employer's business. As defined in ORS 653.077, "undue hardship" means significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business. For the purpose of determining whether providing rest periods for expression of milk requires significant difficulty or expense, the following factors will be considered:

(a) The nature and the cost of complying with the requirement to provide a reasonable rest period for the expression of milk.

(b) The overall financial resources of the covered employer's facility or facilities involved in complying with the requirement to provide a reasonable rest period for the expression of milk, the number of persons employed at the facility and the effect on expenses and resources or other effects on the operation of the facility caused by the necessity for compliance with the requirement to provide a reasonable rest period in a private location.

(c) The overall financial resources of the covered employer, the overall size of the covered employer's business with respect to the number of its employees and the number, type and location of the covered employer's facilities.

(d) The type of operations conducted by the covered employer, including the composition, structure and functions of the workforce of the employer and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered employer.

(5) An employee who intends to express milk during work hours must give the employer reasonable oral or written notice of her intention to allow the employer time to make the preparations necessary for compliance with ORS 653.077 and these rules.

(6) A covered employer must notify all employees, through its policies or other means, of the person or entity to whom an employee should give notice of intent to express milk. If the employer does not provide such notification, the employee's oral or written notice to a supervisor, manager, or human resource or personnel department or their staff will be presumed sufficient.

(7) After receiving notice from the employee, the employer may take a reasonable time to make necessary preparations for compliance with ORS 653.077 and this rule. A "reasonable time" must not interfere with the rights provided by ORS 653.077 and this rule, taking into consideration the immediacy of the employee's need to express milk, and that the rights under ORS 653.077 and this rule apply only until the employee's child is 18 months of age. For example, an employer in the process of creating a private location for expressing milk must provide the most adequate space already available for an employee who gives notice of an immediate need.

(8) An employee invoking the provisions of ORS 653.077 and this rule is responsible for storing her expressed milk. The covered employer must allow the employee to bring a cooler or other insulated food container to work for storing the expressed milk and ensure there is adequate space in the workplace to accommodate the employee's cooler or insulated food container. If the employer allows employees access to refrigeration for personal use, the employer may allow, but cannot require, an employee who expresses milk during work hours to use the available refrigeration to store the expressed milk.

(9) ORS 653.077 and this rule apply to temporary employment agencies that employ 25 or more employees in Oregon for each working day during each of 20 or more calendar workweeks in the year in which the rest periods are to be taken or in the year immediately preceding the year in which the rest periods are to be taken.

(10) ORS 653.077 and this rule apply to individuals engaged in administrative, executive or professional work as described in ORS 653.020(3).

(11) The provisions of this rule may be modified by the terms of a collective bargaining agreement if the collective bargaining agreement entered into by the employee includes provisions that prescribe rules pertaining to reasonable rest periods for the expression of milk.

(12) Each school district board must adopt a policy to accommodate an employee who needs to express milk for her child.

(13) In addition to any other penalty provided by law, the commissioner may assess a civil penalty not to exceed $1,000 against any person who intentionally violates ORS 653.077 or any rule adopted thereunder.

(14) The commissioner of the Bureau of Labor and Industries will appoint an advisory committee to facilitate compliance with ORS 653.077 and these rules. Upon request by a particular industry or profession, the advisory committee will determine when the ordinary course of such industry or profession makes compliance difficult for an employer in that industry or profession, and submit to the commissioner recommendations for rules to address compliance difficulties in that industry or profession.

Stat. Auth.: ORS 653.077(11)
Stats. Implemented: ORS 653.077
Hist.: BLI 33-2007, f. 12-27-07, cert. ef. 1-1-08

839-020-0060

Weight Lifting

No employee shall be required to lift excessive weights.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.261(1)
Hist.: BL 1-1987, f. & ef. 1-12-87

839-020-0065

Other Working Conditions

(1) No employer shall employ or shall suffer or permit any employee to work in the State of Oregon, except under the following conditions:

(a) Where a sanitary and safe work area is provided;

(b) Where adequate lighting is provided;

(c) Where adequate ventilation is provided;

(d) Where adequate washrooms are provided;

(e) Where adequate toilet facilities are provided;

(f) Where the employer is in full compliance with the provisions of ORS Chapter 654 (the Oregon Safe Employment Act) and the rules and regulations promulgated thereunder. For the purposes of this rule, the compliance status of an employer is determined by the Occupational Safety and Health Division of the Department of Insurance and Finance;

(g) Where, if provided, the cot or stretcher to be used in illnesses, accidents, or other emergencies is adequate.

(2) Every employer shall provide to each employee when required by the nature of the work, suitable seats, suitable tables, and suitable work benches:

(a) Suitable seats means convenient, comfortable and safe seats where the work is such that employees may sit while working. "Suitable seats" in cannery occupations means one for every three employees who work in or on inspection tables and inspection belts;

(b) Suitable tables and suitable work benches means tables and work benches so constructed as to give the greatest possible comfort and convenience to employees where the nature of the work and the safety and convenience of the employee requires a bench or table.

Stat. Auth.: ORS 183 & ORS 653
Stats. Implemented: ORS 653.261(1)
Hist.: BL 1-1987, f. & ef. 1-12-87; BL 10-1990, f. & cert. ef. 7-26-90

839-020-0070

Homework — Generally

(1) Homeworkers as defined by OAR 839-020-0004(18) will be paid not less than the applicable minimum wage pursuant to ORS 653.025 for all hours suffered or permitted to work.

(2) Homeworkers will be paid no less than time and one-half their regular rate of pay for all hours worked in excess of 40 hours in a work week pursuant to OAR 839-020-0030.

(3) General record keeping requirements, as provided in these rules, OAR 839-020-0080(1) through (3), are applicable to homeworkers.

(4) Employer employing homeworkers are subject to the provisions of OAR 839-020-0083 and 839-020-0085 concerning record availability and posting requirements.

Stat. Auth.: ORS 651.060(4) & 653.040
Stats. Implemented: 2013 SB 135 & ORS 653
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

General Recordkeeping Requirements

839-020-0080

General Requirements

(1) Every employer regulated under ORS 653.010 to 653.261 must maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom the law applies:

(a) Name in full, as used for Social Security recordkeeping purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records;

(b) Home address, including zip code;

(c) Date of birth, if under 19;

(d) Occupation in which employed;

(e) Time of day and day of week on which the employee's workweek begins. If the employee is part of a work force or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole work force or establishment will suffice;

(f) Regular hourly rate of pay for any workweek in which overtime compensation is due, and an explanation of the basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis, and the amount and nature of each payment which, pursuant to ORS 653.261(1) is excluded from the "regular rate of pay". (These records may be in the form of vouchers or other payment data.);

(g) Hours worked each workday and total hours worked each workweek (for purposes of this section, a "workday" is any fixed period of 24 consecutive hours and a "workweek" is any fixed and regularly recurring period of seven consecutive workdays);

(h) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation;

(i) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under subsection (h) of this section;

(j) Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions;

(k) Total wages paid each pay period;

(l) Date of payment and the pay period covered by payment.

(2) Every employer who makes retroactive payment of wages or compensation under the supervision of the U.S. Department of Labor or the Oregon Bureau of Labor and Industries must record and preserve, as an entry on the pay records, the amount of such payment to each employee, the period covered by such payment, and the date of payment.

(3) With respect to employees working on fixed schedules, an employer may maintain records showing instead of the hours worked each day and each workweek as required by this rule, the schedule of daily and weekly hours the employee normally works, provided:

(a) In weeks in which an employee adheres to this schedule, indicates by check mark, statement or other method that such hours were in fact actually worked by the employee; and

(b) In week in which more or less than the scheduled hours are worked, shows that exact number of hours worked each day and each week.

(4) With respect to each employee in a bona fide executive, administrative, or professional capacity (including employees employed in the capacity of academic administrative personnel or teachers in elementary or secondary schools), or in outside sales, as defined in ORS 653.010(8), employers must maintain and preserve records containing all the information and data required by subsections (1)(a) through (e) of this rule and, in addition, the basis on which wages are paid in sufficient detail to permit calculation for each pay period of the employee's total remuneration for employment including fringe benefits and perquisites.

(5) With respect to each employee of hospitals and institutions primarily engaged in the care of persons who are sick or aged or have mental illness or mental retardation and who reside on the premises compensated for overtime work on the basis of a work period of 14 consecutive days pursuant to an agreement or understanding under OAR 839-020-0125(2)(d), employers must maintain and preserve:

(a) The records required by section (1) of this rule except subsections (1)(e) and (g) through (i) of this rule, and in addition:

(A) Time of day and day of week on which the employee's 14-day work period begins;

(B) Hours worked each workday and total hours worked each 14-day work period;

(C) Total straight-time wages paid for hours worked during the 14-day work period;

(D) Total overtime excess compensation paid for hours worked in excess of eight in a workday and 80 in the work period.

(b) A copy of the agreement or understanding with respect to using the 14-day period for overtime pay computations or, if such agreement or understanding is not in writing, a memorandum summarizing its terms and showing the date it was entered into and how long it remains in effect.

(6) With respect to each tipped employee, the employer must maintain and preserve payroll or other records containing all the information and data required in section (1) of this rule and, in addition, a symbol, letter or other notation placed on the pay records identifying each employee.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.045
Hist.: BLI 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 41-2007, f.12-28-07, cert. ef. 1-1-08

839-020-0082

Special Recordkeeping Circumstances

(1) In addition to keeping other records required by these rules, an employer who makes deductions from the wages of employees for lodging, meals or other facilities or services (as these terms are used in ORS 653.035) furnished to them by the employer or by an affiliated person, or who furnishes such lodging, meals, other facilities or services to employees as an addition to wages, must maintain and preserve records substantiating the fair market value of furnishing each class of facility. Separate records of the fair market value of each item furnished to an employee need not be kept. The requirements may be met by keeping combined records of the fair market value in each class of facility, such as housing, fuel, or merchandise furnished through a company store or commissary. Such records must include itemized accounts showing the nature and amount of any expenditures entering into the computation of the fair market value, as defined in these rules.

(2) If additions to or deductions from wages paid so affect the total cash wages due in any workweek (even though the employee actually is paid on other than a workweek basis) as to result in the employee receiving less in cash than the applicable minimum hourly wage, or if the employee works in excess of the applicable maximum hours standard and any addition to the wages paid are a part of wages, or any deductions made are claimed as allowable deductions, the employer must maintain records showing on a workweek basis those additions to or deductions from wages.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.045
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0083

Records Availability

(1) All records required to be preserved and maintained by these rules shall be preserved and maintained for a period of at least two years.

(2) All employers shall keep such records in a safe and accessible place.

(3) All records required to be preserved and maintained by these rules shall be made available for inspections and transcription by the Commissioner or duly authorized representative of the Commissioner.

Stat. Auth.: ORS Ch. 653
Stats. Implemented: ORS 653.045
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

839-020-0085

Posting Requirements

Every employer employing any employees subject to the minimum wage provisions shall post and keep posted a notice explaining ORS 653.010 to 653.261, as prescribed by the Commissioner, in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy. Any employer of employees to whom OAR 839-020-0030 does not apply because of a total establishment exemption may alter or modify the poster with a legible notation to show that the overtime provisions do not apply.

EXAMPLE: "Overtime Provisions not Applicable to Taxicab Drivers (ORS 653.020(6))."

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.050
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Exemptions

839-020-0115

Relationship of State and Federal Law

(1) The Bureau of Labor and Industries has been informed and has reason to believe that there exists confusion and uncertainty on the part of employers concerning the inter-relationship of the Federal Fair Labor Standards Act and the regulations adopted pursuant thereto and the State Minimum Wage Law and the administrative rules adopted thereunder.

(2) The purpose of this rule, therefore, is to inform employers of the proper application of the law and to direct them to authoritative sources in cases of doubt.

(3) Employers who are required to comply with the state and federal laws, regulations and rules referred to in section (1) of this rule are required to comply with all standards set by those laws, regulations and rules. When one set of standards differs from the other, the standards most advantageous to employees must be met. For example, when the state minimum wage requires a higher hourly rate to be paid than the federal minimum wage rate, the state rate must be paid. By paying the higher rate, the employer complies with both standards. Another example is when the employer may qualify for an exemption under the state law but not the federal law. In this case, the employer is required to comply with the federal law.

(4) Employers may contact the Technical Assistance Unit of the Bureau of Labor and Industries, 800 N.E. Oregon, #32, Portland, OR 97232 for more information on specific fact situations.

(5) The purpose of this rule is stated in section (2) of this rule. The rule should not be interpreted to mean anything other than this stated purpose.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.010 & 653.261
Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

Exemptions from Overtime

839-020-0125

Overtime Exemptions Pertaining to Employers Regulated Under the Federal Fair Labor Standards Act

(1) This rule applies to employers and employees subject to OAR 839-020-0030, Overtime Generally, by virtue of the repeal of ORS 653.020(7) by Section 2, Chapter 446, 1989 Oregon Laws.

(2) No employer shall be deemed to have violated OAR 839-020-0030 under the following circumstances:

(a) By employing any employee for a workweek in excess of that specified in OAR 839-020-0030 without paying the compensation for overtime employment prescribed therein; provided that, such employee received compensation for employment in excess of 12 hours in any workday, or for employment in excess of 56 hours in any workweek, as the case may be, at a rate not less than one and one-half times the regular rate at which the employee is employed; and, provided further that such employee is so employed as follows:

(A) In pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than 1,040 hours during any period of 26 consecutive weeks; or

(B) In pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board which provides that during a specified period of 52 consecutive weeks the employees shall be employed not more than 2,240 hours and shall be guaranteed not less than 1,840 hours (or not less than 46 weeks at the normal number of hours worked per week, but not less than 30 hours per week) and not more than 2,080 hours of employment for which the employee shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum workweek applicable to such employee under OAR 839-020-0030 or 2,080 hours in such period at rates not less than one and one-half times the regular rate at which the employee is employed. (Reference: Sec. 7(b)(1) and Sec. 7(b)(2), FLSA)

(b) By an independently owned and controlled local enterprise (including an enterprise with more than one bulk storage establishment) engaged in the wholesale or bulk distribution of petroleum products, if:

(A) The annual gross volume of sales of such enterprise is less than $1,000,000 exclusive of excise taxes; and

(B) More than 75 per centum of such enterprise's annual dollar volume of sales is made within the state in which such enterprise is located; and

(C) Not more than 25 per centum of the annual dollar volume of sales of such enterprise is to customers who are engaged in the bulk distribution of such products for resale; and

(D) Such employee receives compensation for employment in excess of forty hours in any workweek at a rate not less than one and one-half times the minimum wage rate applicable to the employee under ORS 653.025. (Reference: Sec. 7(b)(3), FLSA)

(c) By employing any employee for a workweek in excess of the maximum workweek applicable to such employee under OAR 839-020-0030 if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement specifies a regular rate of pay of not less than the minimum hourly rate provided in ORS 653.025 and compensation at not less than 1-1/2 times such rate for all hours worked in excess of such maximum workweek, and a weekly guarantee of pay for not more than 60 hours based on the rates so specified. (Reference: Sec. 7(f), FLSA);

(d) By employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified in OAR 839-020-0030, if the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable under ORS 653.025 and if more than half of the employee's compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commission, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw of guarantee. (Reference: Sec. 7(i), FLSA);

(e) When an employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises enters into an agreement or understanding arrived at between the employer and employee before performance of the work, that provides for a work period of 14 consecutive days in lieu of the workweek of seven consecutive days for purposes of overtime computation and provides further that for the employee's employment in excess of eight hours in any workday and in excess of 80 hours in such 14-day period, the employee receives compensation at a rate not less than one and one-half times the regular rate at which the employee is employed. (Reference: Sec. 7(j), FLSA);

(f) By employing an employee of a not for profit amusement or recreational establishment in excess of the applicable work week specified in OAR 839-020-0030 if the establishment does not operate for more than seven months in any calendar year, or if, the establishment's average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year. (Reference: Section 13(a)(3), FLSA);

(g) By employing an employee in excess of the applicable workweek specified in OAR 839-020-0030 when the employee is employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacean, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee. (Reference: Sec. 13(a)(5), FLSA)

(h) By employing an employee who is compensated at a rate of not less than the equivalent of $27.63 per hour for each hour worked and who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty consists of the following:

(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(C) The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D) A combination of duties described in paragraphs (A), (B), and (C) of this paragraph the performance of which requires the same level of skills. (Reference: Sec. 13 (a)(17), FLSA)

(3) The provisions of OAR 839-020-0030 do not apply when the provisions of Section 13(b), of the Fair Labor Standards Act apply to employees as follows:

(a) Any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 204 of the Motor Carrier Act, 1935; or

(b) Any employee of an employer engaged in the operation of a common carrier by rail and subject to the provisions of Part I of the Interstate Commerce Act; or

(c) Any employee of a carrier by air subject to the provisions of Title II of the Railway Labor Act; or

(d) Any individual employed as an outside buyer of poultry, eggs, cream, or milk, in their raw or natural state; or

(e) Any employee employed as a seaman; or

(f) Any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located in a city or town of 100,000 population or less, according to the latest available decennial census figures as compiled by the Bureau of the Census, except where such city or town is part of a standard metropolitan statistical area, as defined and designated by the Bureau of the Budget, which has a total population in excess of 100,000, or is located in a city of 25,000 population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area; or

(g) Any sales person, parts person or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if the employee is employed by a non-manufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers; or

(h) Any sales person primarily engaged in selling trailers, boats, or aircraft if the salesperson is employed by a non-manufacturing establishment primarily engaged in the business of selling trailers, boats or aircraft to ultimate purchasers; or

(i) Any employee employed as a driver or driver's helper making local deliveries, who is compensated for such employment on the basis of trip rates, or other delivery payment plan, if the Commissioner shall find that such plan has the general purpose and effect of reducing hours worked by such employees to, or below, the maximum workweek applicable to them under OAR 839-020-0030; or

(j) Any employee employed in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, or operated on a sharecrop basis, and which are used exclusively for supply and storing of water for agricultural purposes; or

(k) Any employee with respect to the employee's employment in agriculture by a farmer, notwithstanding other employment of such employee in connection with livestock auction operations in which such farmer is engaged as an adjunct to the raising of livestock, either on the farmer's own account or in conjunction with other farmers, if such employee is primarily employed during the employee's workweek in agriculture by such farmer, and if such employee is paid for the operations at a wage rate not less than that prescribed by ORS 653.025; or

(l) Any employee employed within the area of production (as defined by the Commissioner) by an establishment commonly recognized as a country elevator, including such an establishment which sells products and services used in the operation of a farm, if no more than five employees are employed in the establishment in such operation; or

(m) Any employee engaged in the transportation and preparation for transportation of fruits and vegetables, whether or not performed by the farmer, from the farm to a place of first processing or first marketing within the State of Oregon, or any employee engaged in transportation, whether or not performed by the farmer, between the farm and any point within the State of Oregon of persons employed or to be employed in the harvesting of fruits or vegetables; or

(n) Any employee who is employed in domestic service in a household and who resides in such household; or

(o) Any employee employed by an establishment which is a motion picture theater; or

(p) Any employee employed in planting or tending trees, cruising, surveying, or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other transportation terminal, if the number of employees employed by the employee's employer in such forestry or lumbering operations does not exceed eight; or

(q) Any employee of an amusement or recreational establishment located in a national park or national forest or on land in the National Wildlife Refuge System if such employee is an employee of a private entity engaged in providing services or facilities in a national park or national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture, and receives compensation for employment in excess of 56 hours in any workweek at a rate not less than one and one-half times the regular rate at which the employee is employed. (Reference: Sec. 13(b), (1), (2), (3), (5), (6), (9), (10), (11), (12), (13), (14), (16), (21), (27), (28), and (29), FLSA)

(4) The provisions of OAR 839-020-0030 shall not apply with respect to any employee engaged in the delivery of newspapers to the consumer or to any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths). (Reference: Sec. 13(d), FLSA)

Stat. Auth.: ORS 653.040 & 653.261
Stats. Implemented: ORS 653.261
Hist.: BL 5-1989(Temp), f. 8-18-89, cert. ef. 9-1-89, (and corrected by BL 10-1989(Temp), f. 12-4-89, cert. ef. 9-1-89); BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BL 5-1992, f. 4-24-92, cert. ef. 4-29-92; BL 6-1992(Temp), f. & cert. ef. 6-5-92; BL 14-1992, f. & cert. ef. 12-14-92; BL 9-1996, f. & cert. ef. 10-8-96; BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04; BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10

839-020-0130

Public Employees

(1) Pursuant to the provisions of ORS 653.261(3), OAR 839-020-0030 does not apply to individuals employed by the State of Oregon or any political subdivision or quasi-municipal corporation thereof under the following circumstances:

(a) When the provisions of any law prescribe rules pertaining to overtime pay; or

(b) When the provisions of a collective bargaining agreement prescribes rules pertaining to overtime pay.

(2) Individuals employed by a public employer are subject to the overtime pay provisions of ORS 653.268 unless otherwise exempt under ORS 653.269. The State of Oregon or any political subdivision or quasi-municipal corporation thereof is a public employer and the overtime provisions of OAR 839-020-0030 do not apply to its employees.

(3) As used in this rule, "public employer" means the State of Oregon, including the following political subdivisions: cities, counties, community colleges, school districts, special districts and public and quasi-public corporations.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.261
Hist.: BL 5-1989(Temp), f. 8-18-89, cert. ef. 9-1-89, (and corrected by BL 10-1989(Temp), f. 12-4-89, cert. ef. 9-1-89); BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 9-1996, f. & cert. ef. 10-8-96

839-020-0135

Agricultural Employees

Pursuant to the provisions of ORS 653.261(2), OAR 839-020-0030 does not apply to individuals employed in agricultural employment.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.261(2)
Hist.: BL 5-1989(Temp), f. 8-18-89, cert. ef. 9-1-89, (and corrected by BL 10-1989(Temp), f. 12-4-89, cert. ef. 9-1-89); BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Exemptions from Minimum Wage and Overtime

839-020-0150

Exemptions

(1) An individual employed as a resident manager of an adult foster home is not subject to the minimum wage and overtime provisions of ORS 653.010 to 653.261 so long as the resident manager is domiciled at the adult foster home and is directly responsible for the daily care of the residents residing in the home; and

(a) The resident manager is employed to work in a licensed adult foster home as defined in ORS 443.705(4) pursuant to the Adult Foster Homes Licensing Law (ORS 443.705 to 443.825); or

(b) The resident manager is employed to work in an adult foster home which is exempt from the license, inspection and fee provisions of the Adult Foster Homes Licensing Law (ORS 443.705 to 443.825) pursuant to ORS 443.780.

(2) The provisions of ORS 653.010 to 653.261 and these rules pertaining to the payment of minimum wage and overtime pay do not apply to inmates of the Oregon Department of Corrections assigned to a work release program or otherwise working in gainful private employment pursuant to ORS 144.480, relating to prison inmate labor.

(3) The provisions of ORS 653.010 to 653.261 and these rules do not apply to persons serving as a referee or assistant referee in a youth or adult recreational soccer match. Pursuant to ORS 670.610, these referees and assistant referees are independent contractors.

(4) The provisions of OAR 839-020-0050 to 839-020-0065 relating to working conditions do not apply to employees employed by public employers provided that the conditions of ORS 653.261(3) are met.

Stat. Auth.: ORS 653
Stats. Implemented: ORS 653.020
Hist.: BL 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 8-2003, f. 12-31-03, cert. ef. 2-1-04

Exemptions Relating to Persons Employed by a Public
Agency in Fire Protection and Law Enforcement Activities

839-020-0200

Authority

ORS 653.269(3) requires the Labor Commissioner to define certain terms relating to persons employed by a public employer in fire protection and law enforcement activities (including security personnel in corrections institutions), who are exempt from the overtime provisions of ORS 653.268.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0210

Generally

(1) OAR 839-020- 0200 to 839-020-0270 are adopted pursuant to ORS 653.269(3). The rules define certain public employees and activities exempt from the overtime provisions of ORS 653.268.

(2) Employees of a public employer, as defined in ORS 243.650, are exempt from the overtime pay requirements of ORS 653.268 when they are employed in:

(a) Fire protection activities; or

(b) Law enforcement activities, including security personnel in correctional institutions.

(3) The application of OAR 839-020-0200 to 839-020-0270 is limited to public agencies, and does not apply to any private organization engaged in furnishing fire protection or law enforcement services, even if the services are provided under contract with a public agency.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0220

Definitions

As used in ORS 653.269 and OAR 839-020-0200 to 839-020-0270, unless the context requires otherwise:

(1) "Employees employed in fire protection activities" include:

(a) A "firefighter" as that term is defined in ORS 652.050; and

(b) Any employee:

(A) Who is employed by an organized fire department or fire protection district;

(B) Who has been trained to the extent required by state statute or local ordinance;

(C) Who has the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type; and

(D) Who performs activities which are required for, and directly concerned with, the prevention, control or extinguishment of fires, including such incidental non-firefighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills, and inspecting homes and schools for fire hazards.

(c) Employees as defined in paragraphs (a) and (b) of this subsection, regardless of their status as "trainee," "probationary," or "permanent," or of their particular specialty or job title (e.g., firefighter, engineer, hose or ladder operator, fire specialist, fire inspector, lieutenant, captain, inspector, fire marshal, battalion chief, deputy chief, or chief), and regardless of their assignment to support activities of the type described in section (2) of this rule, whether or not such assignment is for training or familiarization purposes, or for reasons of illness, injury or infirmity;

(d) Rescue and ambulance service personnel if such personnel form an integral part of the public agency's fire protection activities (see OAR 839-020-0260);

(e) Employees who work for forest conservation agencies or other public agencies charged with forest fire fighting responsibilities and who direct or engage in:

(A) Fire spotting or lookout activities; or

(B) Fighting fires on the fire line or from aircraft; or

(C) Operating tank trucks, bulldozers and tractors for the purpose of clearing fire breaks.

(f) Employees as defined in paragraph (e) of this subsection, regardless of their status as full time or part time agency employees or as temporary or casual workers employed for a particular fire or for periods of high fire danger, including those who have had no prior training;

(g) Any employee who actually engages in fire protection activities as defined in this section and in the simultaneous performance of such related functions as housekeeping, equipment maintenance, tower repairs and/or the construction of fire roads.

(2) "Employees employed in fire protection activities" does not include:

(a) "Civilian" employees of a fire department, fire district, or forestry service who engage in such support activities as those performed by dispatchers, alarm operators, apparatus and equipment repair and maintenance workers, camp cooks, clerks and stenographers;

(b) Maintenance and office personnel who do not fight fires on a regular basis, although such employees may be included during emergency situations when they are called upon to spend substantially all (i.e., 80 percent or more) of their time during the applicable work period in one or more of the activities described in paragraph (e) of this section.

(3) "Employees employed in law enforcement activities" include:

(a) Any employee who is a uniformed or plainclothed member of a body of officers and subordinates who are empowered by state statute or local ordinance to enforce laws designed to maintain public peace and order and to protect both life and property from accidental or willful injury, and to prevent and detect crimes and:

(A) Who has the power to arrest; and

(B) Who is presently undergoing or has undergone or will undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigation and law enforcement techniques, community relations, medical aid and ethics.

(b) Employees as defined in paragraph (a) of this subsection, regardless of their rank, or of their status as "trainee," "probationary," or "permanent," and regardless of their assignment to duties incidental to the performance of their law enforcement activities such as equipment maintenance or lecturing, or to support activities of the type described in section (8) of this rule, whether or not such assignment is for training or familiarization purposes, or for reasons of illness, injury or infirmity;

(c) Rescue and ambulance service personnel if such personnel form an integral part of the public agency's law enforcement activities (see OAR 839-020-0260).

(4) "Employees employed in law enforcement activities" typically include city police; district or local police, sheriffs, under sheriffs or deputy sheriffs who are regularly employed and paid as such; court marshals or deputy marshals; constables and deputy constables who are regularly employed and paid as such; border control agents; state troopers and highway patrol officers. Other agency employees not specifically mentioned may, depending upon the particular facts and pertinent statutory provisions in that jurisdiction meet the tests described in section (3) of this rule. If so, for purposes of ORS 653.269(3), they will also qualify as law enforcement officers. Such employees might include, for example, fish and game wardens or criminal investigative agents assigned to the office of a district attorney, an attorney general, a solicitor general or any other law enforcement agency concerned with keeping public peace and order and protecting life and property.

(5) Employees who do not meet each of the three tests described in section (3) of this rule are not engaged in "law enforcement activities" as that term is used in ORS 653.269(3). Employees who normally would not meet each of these tests include:

(a) Building inspectors (other than those defined in OAR 839-020-0240);

(b) Health inspectors;

(c) Animal control personnel;

(d) Sanitarians;

(e) Civilian traffic employees who direct vehicular and pedestrian traffic at specified intersections or other control points;

(f) Civilian parking checkers who patrol assigned areas for the purpose of discovering parking violations and issuing appropriate warnings or appearance notices;

(g) Wage and hour compliance officers;

(h) Equal employment opportunity compliance officers;

(i) Tax compliance officers;

(j) Coal mining inspectors; and

(k) Building guards whose primary duty is to protect the lives and property of persons within the limited area of the building.

(6) "Correctional institution" means any government facility maintained as part of a penal system for the incarceration or detention of persons suspected or convicted of having breached the peace or committed some other crime. Typically, such facilities include penitentiaries, prisons, prison farms, county, city and village jails, precinct house lockups and reformatories.

(7) "Security personnel in correctional institutions" include those who have responsibility for controlling and maintaining custody of inmates and of safeguarding them from other inmates or for supervising such functions, regardless of whether their duties are performed inside the correctional institution or outside the institution (as in the case of road gangs). These employees are considered to be engaged in law enforcement activities regardless of their rank (e.g., warden, assistant warden or guard) or of their status as "trainee," "probationary," or "permanent," and regardless of their assignment to duties incidental to the performance of their law enforcement activities, or to support activities of the type described in section (5) of this rule, whether or not such assignment is for training or familiarization purposes or for reasons of illness, injury or infirmity.

(8) "Employees employed in law enforcement activities" does not include:

(a) "Civilian" employees of law enforcement agencies or correctional institutions who engage in such support activities as those performed by dispatcher, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers;

(b) Employees in correctional institutions who engage in building repair and maintenance, culinary services, teaching, or in psychological, medical and paramedical services, even though such employees may, when assigned to correctional institutions, come into regular contact with the inmates in the performance of their duties.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97

839-020-0230

Limitation on Nonexempt Work

(1) Employees engaged in fire protection or law enforcement activities as defined in OAR 839-020-0220 may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection or law enforcement activities. For example, firefighters who work for forest conservation agencies may, during slack times, plant trees and perform other conservation activities unrelated to their firefighting duties. The performance of such nonexempt work will not defeat the exemption in ORS 653.269(3) unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than 20 percent of the person's working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities for purposes of OAR 839-020-0200 to 839-020-0270.

(2) Public agency fire protection and law enforcement personnel may, at their own option, undertake employment for the same employer on an occasional or sporadic and part-time basis in a different capacity from their regular employment. The performance of such work does not affect the application of the exemption in ORS 653.269(3) with respect to the regular employment. In addition, the hours of work in the different capacity need not be counted as hours worked for overtime purposes on the regular job, nor are such hours counted in determining the 20 percent limitation for nonexempt work discussed in subsection (1) of this section.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0240

Public Agency Employees Engaged in Both Fire Protection and Law Enforcement Activities

Some public agencies have employees (often called "public safety officers") who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. This dual assignment would not defeat the exemption in ORS 653.269(3), provided that each of the activities performed meets the appropriate tests set forth in OAR 839-020-0220. This is so regardless of how the employee's time is divided between the two activities. However, all time spent in connection with fire protection or law enforcement functions, or with neither, must be combined for purposes of the 20 percent limitation on nonexempt work as provided in OAR 839-020-0230.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97

839-020-0250

Effect of Training Time

The attendance at a bona fide fire or police academy or other training facility, when required by the employing agency, constitutes engagement in activities under ORS 653.269(3) only when the employee meets all the applicable tests described in OAR 839-020-0220 (except for the power of arrest for law enforcement personnel), as the case may be. If the applicable tests are met, then basic training or advanced training is considered incidental to, and part of, the employee's fire protection or law enforcement activities.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97

839-020-0260

Ambulance and Rescue Service Employees

(1) Ambulance and rescue service employees of a public agency other than a fire protection or law enforcement agency may be treated as employees engaged in fire protection or law enforcement activities of the type contemplated by ORS 653.269(3) if their services are substantially related to firefighting or law enforcement activities in that:

(a) The ambulance and rescue service employees have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective duties; and

(b) The ambulance and rescue service employees are regularly dispatched to fires, crime scenes, riots, natural disasters and accidents.

(2) Where employees perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.

(3) Ambulance and rescue service employees are not exempt under ORS 653.269(3) when they are employees of public agencies engaged in the operation of a hospital or an institution primarily engaged in the care of persons who are sick or aged or have mental illness or mental retardation and who reside on the premises of such institutions.

(4) Ambulance and rescue service employees of private organizations are not exempt from the provisions of ORS 653.269(3) even if their activities are substantially related to the fire protection and law enforcement activities performed by a public agency or their employer is under contract with a public agency to provide such services.

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08

839-020-0270

Other Exemptions

Although ORS 653.269(3) provides special exemptions for employees of public agencies engaged in fire protection and law enforcement activities, such workers may also be subject to other exemptions in ORS 653.269, and public agencies may apply such other exemptions if applicable. For example, a high-ranking police official engaged in law enforcement activities who is exempt from the provisions of ORS 653.268 as an employee employed in fire protection activities pursuant to the provisions of ORS 653.269(3) and OAR 839-020-0320, may also be exempt from ORS 653.268 as an "executive" employee by virtue of the exemption for any employee employed as an executive, administrative, supervisory, or professional employee, (as those terms are defined in OAR 839-020-0320) pursuant to the provisions of ORS 653.269(5)(a).

Stat. Auth.: ORS 279.342(3)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97

Exemptions Relating to Executive, Administrative,
Supervisory and Professional Employees of a Public Agency

839-020-0300

Authority

ORS 653.269(5)(a) requires the Labor Commissioner to define certain terms relating to executive, administrative, supervisory or professional employees of a public agency who are exempt from the overtime provisions of ORS 653.268 because of the nature of their employment.

Stat. Auth.: ORS 279.342(5)(a)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97

839-020-0310

Generally

(1) OAR 839-020-0300 to 839-020-0350 are adopted pursuant to ORS 653.269(5)(a). The rules define the nature of executive, administrative, supervisory and professional employment for purposes of the overtime pay exemption under ORS 653.268.

(2) The application of OAR 839-020-0300 to 839-020-0350 is limited to public agencies, and does not apply to the employees of any private organization.

Stat. Auth.: ORS 279.342(5)(a)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97

839-020-0320

Definitions

As used in ORS 653.268 to 653.269, unless the context requires otherwise:

(1) Employees exempted from overtime because of the executive nature of their employment means employees:

(a) Whose primary duty consists of the management of the public agency in which they are employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly direct the work of two or more other employees therein; and

(c) Who have the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercise discretionary powers; and

(e) Who do not devote more than 20 percent, or, in the case of an employee of a retail or service establishment, who does not devote as much as 40 percent of the employee's hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in subsections (a) through (d) of this section: Provided, that this subsection will not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment; and

(f) Who are compensated for their services on a salary basis at a rate of not less than $155 per week, exclusive of board, lodging, or other facilities: Provided, that an employee who is compensated on a salary basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the management of the agency in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, will be deemed to meet all the requirements of this section.

(2) Employees exempted from overtime because of the administrative nature of their employment means employees:

(a) Whose primary duty consists of either:

(A) The performance of office or non-manual work directly related to management policies or general business operations of their employer or their employer's customers; or

(B) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and

(b) Who customarily and regularly exercise discretion and independent judgment; and

(c) Who regularly and directly assist an employee employed in an executive or administrative capacity (as such terms are defined in this rule); or

(A) Who perform under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or

(B) Who execute under only general supervision special assignments and tasks; and

(d) Who do not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent of the employee's hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in subsections (a) through (c) of this section; and

(e)(A) Who are compensated for their services on a salary or fee basis at a rate of not less than $155 per week, exclusive of board, lodging, or other facilities; or

(B) Who, in the case of academic administrative personnel, are compensated for services as required by paragraph (e)(A) of this subsection, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment, or institution by which employed: Provided, that an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance of work described in section (a) of this subsection, which includes work requiring the exercise of discretion and independent judgment, will be deemed to meet all the requirements of this section.

(3) Employees exempted from overtime because of the supervisory nature of their employment means employees:

(a) Whose primary duty consists of the management of the enterprise in which they are employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly direct the work of two or more other employees therein; and

(c) Who have the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercise discretionary powers; and

(e) Who do not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent of the employee's hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in sections (a) through (d) of this section: Provided, that this subsection will not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment;

(f) Who are compensated for their services on a salary basis at a rate of not less than $155 per week, exclusive of board, lodging, or other facilities: Provided, that an employee who is compensated on a salary basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the management of the agency in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, will be deemed to meet all the requirements of this section.

(4) Employees exempted from overtime because of the professional nature of their employment means employees:

(a) Whose primary duty consists of the performance of:

(A) Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes; or

(B) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee; or

(C) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who are employed and engaged in this activity as teachers in the school system or educational establishment or institution by which they are employed; or

(D) Work that requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering, and who are employed and engaged in these activities as computer systems analysts, computer programmers, software engineers, or other similarly skilled workers in the computer software field, as provided in OAR 839-020-0350; and

(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and

(c) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and

(d) Who do not devote more than 20 percent of their hours worked in the workweek to activities which are not an essential part of and necessarily incident to the work described in subsections (a) through (c) of this section; and

(e) Who are compensated for services on a salary or fee basis at a rate of not less than $170 per week, exclusive of board, lodging, or other facilities: Provided, that this subsection will not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof, nor in the case of an employee who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of medicine or any of its branches, nor in the case of an employee employed and engaged as a teacher as provided in subsection (a)(C) of this section: Provided further, that an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance either of work described in subsection (a), (A), or (C) or (D) of this section, which includes work requiring the consistent exercise of discretion and judgment, or of work requiring invention, imagination, or talent in a recognized field of artistic endeavor, shall be deemed to meet all of the requirements of this section: Provided further, that the salary or fee requirements of this paragraph will not apply to an employee engaged in computer-related work within the scope of paragraph (a)(D) of this section and who is compensated on an hourly basis at a rate in excess of $27.63 per hour.

Stat. Auth.: ORS 279.342(5)(a)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0330

Exception to Salary or Fee Basis

(1) An employee who otherwise meets the requirements of OAR 839-020-0310 must not be disqualified from exemption under ORS 653.269(5)(a) on the basis that such employee is paid according to a pay system established by statute, ordinance, or regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by an employee because:

(a) Permission for its use has not been sought or has been sought and denied;

(b) Accrued leave has been exhausted; or

(c) The employee chooses to use leave without pay.

(2) Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough must not disqualify the employee from being paid "on a salary basis" except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

Stat. Auth.: ORS 279.342(5)(a)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02

839-020-0350

Computer Professionals

Employees exempt from overtime because of the professional nature of their employment includes employees who are computer systems analysts, computer programmers, software engineers, or other similarly skilled workers, whose primary duties consist of the following:

(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system specifications;

(2) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(3) The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(4) A combination of duties described in subsections (1), (2) and (3) of this section, the performance of which requires the same level of skills.

Stat. Auth.: ORS 279.342(5)(a)
Stats. Implemented: ORS 279.342
Hist.: BL 8-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02

Civil Penalties

839-020-1000

Violations Separate and Distinct

Each violation is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

Stat. Auth.: ORS 653.040
Stats. Implemented: Ch. 314, 1997 OL
Hist.: BL 9-1997, f. & cert. ef. 11-13-97

839-020-1010

Violations for Which a Civil Penalty May Be Assessed

(1) The commissioner may assess a civil penalty for any of the following willful violations:

(a) Failure to pay the applicable minimum wage for all hours worked in violation of ORS 653.025 and OAR 839-020-0010.

(b) Failure to pay overtime for all hours worked over forty (40) in a week in violation of OAR 839-020-0030.

(c) Payment to persons with mental or physical disabilities less than a fixed minimum hourly wage rate which has been approved by the commissioner in violation of ORS 653.030 and OAR 839-020-0015;

(d) Payment to student-learners less than a fixed minimum hourly wage rate which has been approved by the commissioner in violation of ORS 653.030 and 839-020-0015;

(e) Failure to make required payroll and other records in violation of ORS 653.045, OAR 839-020-0050, 839-020-0080, and 839-020-0082;

(f) Failure to keep available required payroll and other records in violation of ORS 653.045, OAR 839-020-0050, 839-020-0080, 839-020-0082, and 839-020-0083;

(g) Failure to supply each of the employer's employees with itemized statements of amounts and purposes of deductions in the manner provided in ORS 652.610 in violation of 653.045, OAR 839-020-0012 and 839-020-0080;

(h) Failure to keep summaries of ORS 653.010 to 653.261 and rules promulgated thereto by the commissioner posted in a conspicuous and accessible place in or about the premises where such employees are employed in violation of ORS 653.050;

(i) Discharging or discriminating in any other manner against any employee in violation of ORS 653.060:

(A) Because the employee has made complaint that the employee has not been paid wages in accordance with ORS 653.010 to 653.261;

(B) Because the employee has caused to be instituted or is about to cause to be instituted any proceedings under or relating to ORS 653.010 to 653.261; or

(C) Because the employee has testified or is about to testify in any such proceedings.

(j) Failure to provide to each employee appropriate meal periods in violation of OAR 839-020-0050;

(k) Coercing an employee into waiving a meal period in violation of ORS 653.261(5)(b);

(l) Failure to provide to each employee appropriate rest periods in violation of OAR 839-020-0050;

(m) Intentional failure to provide a reasonable rest period to accommodate an employee who needs to express breast milk in violation of ORS 653.077 and OAR 839-020-0051;

(n) Requiring any employee to lift excessive weights in violation of OAR 839-020-0060; or

(o) Employing any employee to work under any conditions in violation of OAR 839-020-0065.

(2) Except as provided in ORS 653.261(5)(c), the civil penalty for any one violation will not exceed $1000. The actual amount of the civil penalty will depend on all the facts and circumstances referred to in OAR 839-020-1020.

(3) The civil penalties set out in this rule will be in addition to any other penalty assessed or imposed by law or rule.

Stat. Auth.: ORS 651.060(4) & 653.040
Stats. Implemented: 2013 SB 135 & ORS 653
Hist.: BL 9-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 15-2002, f. 10-17-02, cert. ef. 10-18-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-1020

Criteria for Determining a Civil Penalty

(1) The commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(c) The magnitude and seriousness of the violation;

(d) Whether the employer knew or should have known of the violation;

(e) The opportunity and degree of difficulty to comply;

(f) Whether the employers' action or inaction has resulted in the loss of a substantive right of an employee.

(2) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(3) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

Stat. Auth.: ORS 653.040
Stats. Implemented: Ch. 314, 1997 L
Hist.: BL 9-1997, f. & cert. ef. 11-13-97

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