BOLI Finalizes Rules for Manufacturing Overtime

Published Thursday, January 4, 2018

The Oregon Bureau of Labor & Industries (BOLI) has published its final rules on daily and weekly overtime relating to manufacturing establishments, bringing clarity to a dispute that started in 2016.

The rules spell out how HB 3458 will be enforced. The need for an overtime bill arose after BOLI changed its interpretation of how manufacturers should apply daily and weekly overtime. The changed interpretation required payment of both daily and weekly overtime premiums in some circumstances.

Daily overtime applies after 10 hours in a workday and weekly overtime applies after 40 hours in a workweek. HB 3458 requires that manufacturing employers who owe daily and weekly overtime calculate the two amounts and pay the greater of the two - but not both. It caps daily manufacturing hours at 13 and caps weekly hours at 55, with five more hours allowed if employee agrees or requests to work them, and adds civil penalties for unlawfully requiring employees to work more than allowable hours per week.

For manufacturers dealing with perishable products, the bill allows the cap to be raised to 80 hours per week for up to 21 weeks, upon filing of an undue hardship notice with BOLI. Within that 21-week period, it allows the cap to be raised to 84 hours per week for four weeks, upon filing of additional undue hardship notice.

Through its rulemaking process, which OBI participated in, BOLI clarified which employers must follow the new OT standards: mills, factories, manufacturing establishments, canneries, driers and packing plants. However, there still is concern that the term "manufacturing establishments" is too broad.

The final regulations also clarify that employers may, but are not required to, use BOLI's written request/consent form for employees who agree to work up to 60 hours per workweek. The rules also stipulate that an employee must inform the employer of the employee's withdrawal of consent in writing at least seven calendar days prior to the start of the workweek in which the employee no longer agrees to work over 55 hours. Employers who choose not to use BOLI's form should still include the seven days withdrawal notice requirement in their own forms.

However, employers applying to the state for the undue hardship exceptions to work more than 60 hours a week must follow strict notice requirements and use BOLI's undue hardship request/consent form.

The rules for calculation of overtime payments already are in effect, but weekly caps and civil penalties are delayed until January 1, 2018.