The Bureau of Labor and Industries issued the final rules regarding the changes to the manufacturing overtime laws on December 27, 2017.  The rules became effective on January 1, 2018.  You can view the final rules here.  BOLI promulgated the new overtime rules to further clarify the changes to ORS 652.020 and ORS 653.265, which set limits for daily and weekly overtime in a mill, factory or “manufacturing establishment,” cannery, drier or packing plant.  The limits include that:

• Employers in these workplaces must pay one and one-half of an employee’s regular rate for all hours worked over 10 in any day of 24 hours;
• Employers may not require an employee to work more than 13 hours in any day of 24 hours;
• Employers are prohibited from requiring employees to work more than 55 hours in any one workweek without obtaining the employee’s request or consent in writing. Employees may consent in writing to work up to a maximum of 60 hours per week.  Employers must retain and keep the consent forms available during the period for which the written consent or request is in effect, and for no less than one year thereafter.  BOLI has provided a form of consent available here, or employers may use their own consent form.

Employers who manufacture a “perishable product,” which is “any product that may spoil, deteriorate or undergo other material changes that render it unsuitable for the use for which it was produced,” may request an exemption from the overtime rules.  An employer may request an employee to work up to 84 hours in any workweek for up to 4 workweeks during the “undue hardship period,” which is defined as “the period of time during which a perishable product must be processed after harvesting, slaughter, or catch.”  The employer may then request employees to work up to 80 hours in a workweek for the remainder of the undue hardship period.  Employees must consent to work overtime hours and may withdraw their consent at any time.  Employers may request more than one undue hardship period per year; however, the combined total duration of the employer’s undue hardship period may not exceed 21 workweeks in a calendar year.  The rules set out a specific procedure for requesting an undue hardship exemption through BOLI.  Employers must obtain written consent forms from employees to work the overtime hours.

Certain employees are exempt from the overtime requirements of ORS 652.020 regarding “manufacturing establishments.”  The list is set out in OAR-839-001-0125, and includes employees with the following primary duties:

• Logging train crew;
• Guard;
• Boiler operator;
• Regularly transporting others to and from work;
• Making necessary repairs, including employees conducting maintenance on buildings, equipment or machinery;
• Employees engaged in emergency work;
• Employees who clean, guard, repair, or otherwise care for the living quarters and immediate surrounding areas of other employees;
• Employees who feed, groom, guard or otherwise care for livestock;
• Employees employed in mess halls where meals are served to other employees, including any and all employment necessary to conduct the mess hall operations;
• Supervising and directing work, including supervisors, managers, and persons who are temporarily acting in those capacities in the absence of the named employees;
• Employees who load and remove finished forest products;
• Employees whose principal duties are administrative in nature;
• Employees who are not engaged in the direct processing of goods in the usual course of the employees’ duties;
• Employees employed in an emergency situation when the emergency puts life or property in imminent danger. The situation must threaten to harm or destroy life or property.  The rules indicate that these types of emergency situations do not include normal routine operational occurrences, such as when the normal production process is interrupted by a breakdown of machinery or unexpected absences of employees.
• Employees who are subject to a collective bargaining agreement:
  • That is in effect at the employee’s worksite;
  • That contains a provision that limits the employee’s required hours of work; and
  • That contains a provision for the payment of overtime work hours.

All employers in manufacturing establishments should review their overtime requirements to ensure that they comply with the new legal changes.  If employees wish to work more than 55 hours per week, employers must obtain appropriate written consent forms.  The new rules do present confusing situations for many manufacturers.  The employment attorneys in Schwabe, Williamson and Wyatt’s manufacturing industry group are here to assist if you have any questions.