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Rounding Hours

Posted in KNOW YOUR RIGHTS: A RESTAURANT WORKER'S SURVIVAL GUIDE, Rounding Hours on April 27, 2009 by pdxrwa

It is common for employers to have a practice of rounding a worker’s hours for a shift.  However, the U.S. Department of Labor maintains clear guidelines regarding how this must be done.

Code of Federal Regulations Pertaining to the Employment Standards Act:

“It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” 29 CFR 785.48(b)

Since Oregon law does not discuss hour rounding, BOLI would likely look toward the federal standards if a case was filed.  Below are recommendations posted on the BOLI website.

Thus, rounding is generally allowable as long as the following criteria are met:
1. The rounding works both ways (“for” and “against” the employee),
2. The employer does not round in increments longer than 15 minutes, and
3. The rounding works out so that the employee is still fully paid for all hours actually worked.

For more information:

http://www.boli.state.or.us/BOLI/TA/TA_COL_012307_Rounding_Hours.pdf

Introduction

Posted in Introduction with tags , , , , , , , on November 3, 2008 by pdxrwa

Restaurant workers are vital to Portland’s local economy.  Oregon’s 9,000 restaurants posted sales of $4.7 billion in 2005. Most of these restaurants -the majority in Portland– are small, single-owner establishments with fewer than 20 workers.  Restaurants in Oregon employ more than 120,000 workers, 1 in 14 payroll workers in the state. (source: Oregon Restaurant Association)

Though food service workers are a dominant force in the economy, we are low paid, unlikely to receive benefits and mostly part-time due to the nature of the work.  In addition, our rights are continually falling through labor and employment law loopholes.  As a workforce, we are largely unprotected and rarely have the resources to hold our employers accountable.

If you are experiencing difficulty on the job, it is a good idea to document in writing every situation that you think may violate your legal rights. Be diligent.  Write down dates, times and witnesses so you can protect yourself from illegal firing or retaliation and prove your case if the need should arise.  Before you go to the Department of Labor, or hire an attorney, or attempt to go it alone, we encourage you to contact the Portland Restaurant Workers Association (PRWA), where volunteers can discuss your options with you.

Afterword

Posted in Afterword on November 2, 2008 by pdxrwa

Knowing our rights is the first step towards ensuring our dignity and security at work.  So what can we do when we know our rights are being violated?  There are many choices, here are four of the most common: 1) Submit, 2) Quit, 3) Report or 4) Stand Up.

Our bosses often pressure us to submit to their legal violations.  Often they encourage us to be “team players”, not “cause trouble”, and “understand how hard it is to run a business” and that they are “doing their best”.  Because knowing employment law is not required for new business owners, your boss may not even know they are breaking the law.  When we submit to these violations, we are neglecting our responsibility to those who came before us who ensured we have rights at work, to our coworkers whose rights are also being violated, and to all fellow workers who fill our shoes once we’re gone.

Another choice is to quit.  When we refuse to submit to violations and display any hint of displeasure, our bosses often pressure us with, “Well, if you don’t like it, you can just quit!”.  As individuals we feel singled out, may decide it’s not worth it, and quit.  And, while we may feel that we’ve “stuck it to the boss” and proved our dignity, the boss is now free to rehire until they find someone who will submit.  While it feels better to quit rather than submit, the result is the same: our rights have not been defended and the rights of the workers that remain behind and follow after us continue to be violated.  If we are never willing to stand up when our rights are challenged, and continue to quit, we will never acquire the benefits of job security.  When we don’t hold bosses up to legal standards, we give them an unfair business advantage over those employers who follow the law.

The Department of Labor, BOLI and other regulatory agencies are responsible for enforcing the law regarding employers.  However, often the penalties that follow after we report violations to these agencies are slow to arrive, equate to a slap on the wrist, and are ineffective deterrents.  Another option to report violations is to get a lawyer and file a lawsuit.  A lawsuit may retroactively compensate workers for past violations, but often does little to prevent future violations.  When done alone, these reports are ineffective.

By working together with our co-workers, we can stop and even prevent violations to our rights.  Our bosses like us to believe that our problems are only personal.  Are all of our problems personal?  If our employer is breaking the law and we’re the only one who knows it, then does that mean it’s legal?  Not at all. When our rights are challenged, our best option as workers is to stand up to those challenges together.  In a broader sense, as workers in the same industry with experiences we all share, by standing up and acting together, we can address the concerns that effect us all.  We can not stomach submitting, we can only quit so many times, and reports only do so much.  We must stand up when our rights are violated.

At Will Employment

Posted in At Will Employment with tags , , , , on October 26, 2008 by pdxrwa

Oregon, like most states in the U.S., is an “at-will” employment state. This means that unless a written contract exists, an employee can quit with or without notice, at any time and for any reason. An employer can also fire any employee with or without notice, at any time and for any reason, as long as it is not an illegal reason. This situation makes it very hard for workers to prove they were fired for an illegal reason.

Some of the many illegal reasons for termination are because of a person’s race or gender, in retaliation for complaining about harassment, in retaliation for making a wage claim, and in retaliation for making a workers compensation claim. If you are experiencing difficulty on the job, it is a good idea to document in writing every situation that may violate your legal rights. Be diligent and record dates, times and witnesses so you can protect yourself from illegal firing/retaliation if the need should arise.

If an employee is terminated for an illegal reason, the employer can be forced to pay front pay, back pay, noneconomic damages, and punitive damages.

Pre-Employment Questions

Posted in Discrimination, Pre-Employment Questions with tags , , , , , on October 25, 2008 by pdxrwa

In regards to pre-employment questions (i.e. job interviews and applications), federal and state laws limit employers to asking only questions designed to determine qualifications for successful job performance. Also, the Americans with Disabilities Act (ADA) prohibits questions relating to physical impairments or disabilities. Below are some examples of questions that are illegal for employers to ask:

  • How old are you? What’s your date of birth? (Certain jobs require an employer to ask “Are you 18 or over?” or “Are you 21 or over?”)
  • What is your race? Gender? Provide a photograph.
  • Are you pregnant? Are you planning on starting a family?
  • Have you ever applied for workers’ compensation?
  • What is your religious affiliation?
  • Were you born in the U.S.? Are you a citizen of the U.S.?
  • Do you have any relatives that work for this company?

Source: BOLI http://www.oregon.gov/BOLI/TA/T_FAQ_Tapreemp.shtml

Drug Testing

Posted in Drug Testing with tags , , , , , , , on October 24, 2008 by pdxrwa

An employer is legally allowed to require a drug test from individuals seeking first-employment.  However, the employer must not discriminate and must test all prospective employees.

Federal and Oregon law do not specifically address drug testing employees.  While drug testing is legal, an employer must follow a procedure that guarantees an employee’s constitutional privacy rights.  The following protocol is generally accepted as legal:

  • The employer possesses a clear written policy regarding drug testing and it has been explained to all employees.
  • The method of selection for drug testing is clearly explained, whether it is done randomly, as result of an employer’s reasonable suspicion (based on facts, not rumors), or because of a workplace accident or incident.
  • The employer must apply a drug testing policy consistently, without discrimination.
  • A 30-day advanced notice before drug testing is recommend to preserve an individual’s expectation of privacy, unless the employer’s written policy states differently.

The Americans with Disabilities Act (ADA) and Oregon disability laws do not protect an employee from discipline or termination if a drug test is positive, but they do protect recovering (non-practicing) alcoholics and drug addicts.

Source:

http://www.workplacefairness.org/drugtesting#2

http://www.oregon.gov/BOLI/TA/T_FAQ_Drugtesting.shtml

Family Medical Leave Act (FMLA) & Oregon Family Leave Act (OFLA)

Posted in Family Medical Leave Act (FMLA) & (OMLA) with tags , , , , on October 23, 2008 by pdxrwa

An employer who has 50 or more workers who live within 75 miles of the work site is subject to the FMLA. An employer who has 25 or more employees is also subject to the OFLA. Restaurant workers are often ineligible due to the nature of restaurant work and the limited staff of smaller local establishments.

To be an eligible worker under the FMLA, one must have worked for the employer for at least one year or over 1250 hours or about 25 hours a week for fifty-two weeks. To be an eligible worker under the OFLA, one must only have worked at least 180 calendar days at an average of 25 hours a week.

FMLA and OFLA both entitle an employee to up to a total of 12 weeks of unpaid leave during any 12-month period because of a serious health condition, adoption, birth and family illness.

A worker may elect, or the employer may require, the worker to substitute accrued paid vacation, personal leave, or sick leave during this period of time. When the worker returns to work, the employer must return the worker to his former position or an equivalent position, with equivalent worker benefits.

If an injured worker takes leave and cannot return to work after the twelve weeks, generally the employer does not then have an obligation to rehire the worker at a later date. In other words, the employer is not required to hold the job open indefinitely.

BOLI publishes and makes available on its website an “FMLA Employee Informational Packet” which answers frequently asked questions about FMLA eligibility and filing process. BOLI also provides on its website leave requests forms that will assist you in the process of applying for FMLA.  These resources are linked below:

The information contained in this section was collected from the U.S. Department of Labor’s and BOLI’s websites:
http://www.dol.gov/dol/topic/benefits-leave/fmla.htm
http://www.oregon.gov/BOLI/TA/T_FAQ_Taoflaqa.shtml

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Crime Victims’ Leave

Posted in Crime Victims Leave, Family Medical Leave Act (FMLA) & (OMLA) with tags , , , , on October 22, 2008 by pdxrwa

A crime victim, an individual who “has suffered financial, social, psychological or physical harm as a result of a personal felony,” is eligible for protected leave from work to attend criminal proceedings. This Oregon law treats immediate family members of the person as crime victims as well and defines “immediate family” to include a spouse, domestic partner, father, mother, sibling, child, stepchild or grandparent. A worker is required to provide reasonable notice and documentation of upcoming legal proceeding to her employer before taking leave.

Source:
BOLI: http://www.oregon.gov/BOLI/TA/T_FAQ_Crimevictims.shtml

Healthcare Resources

Posted in Healthcare Resource with tags , , , , , on October 22, 2008 by pdxrwa

The Coalition of Community Health Clinics

The Coalition of Community Health Clinics is a network of 13 private, non-profit health clinics located throughout Multnomah County. These clinics provide health services to the uninsured and under-served men, women and children in the Portland Metropolitan area.

http://www.coalitionclinics.org/clinics-location.html
http://www.coalitionclinics.org/find-healthcare.html

The Coalition’s website also gives links to other low-cost healthcare providers in the Portland metropolitan area. Go to and click on the links to find out more information about what services these clinics offer: http://www.coalitionclinics.org/other-clinics.html.

Outside-in

The Medical Clinic is a coalition of medical and naturopathic doctors and interns, acupuncturists, and Chinese herbalists all of whom provide cutting edge multi-disciplinary primary care to homeless youth and low-income individuals lacking health insurance.

1132 SW 13th Ave
Portland, OR 97205-1703
http://www.outsidein.org/

Call: 503-535-3890 between 10am and 12pm or between 3pm and 5pm Monday through Friday.

Seven Star Acupuncture

Seven Star offers discounted specials on Thursdays for all restaurant workers.

436 SE 12th Ave
Portland, OR 97214
503-236-6833
http://sevenstarpdx.com/

Monday 9am-8pm, Tuesday – Friday 10am-8pm, Saturday 10am-6pm, Sunday CLOSED

Working Class Acupuncture

Sliding scale is $15-$35 per treatment. You decide what you can afford. There is a $10 paperwork fee for the first session.

3526 NE 57th Ave.
Portland, OR 97213
http://www.workingclassacupuncture.org/
Call: 503-335-9440

Monday thru Friday: 8:30am-8pm, Saturday: 9am-4pm & Sunday: 9am-3pm

YWCA

The YWCA offers counseling services for female identified persons on a sliding scale. Rates start at $19 a session. Most clients attend counseling once a week.

  • Must be age 14 or older.
  • Must be able to pay on a sliding fee scale based on income and family size.

To find out more or schedule an appointment, please call 503-294-7440.

Making a Wage Claim

Posted in Making a Wage Claim with tags , , on October 21, 2008 by pdxrwa

Workers who believe that they have not receive all money due to them under the law can make a wage claim in two different ways: through the Oregon Bureau of Labor and Industries (BOLI), or through a private attorney. BOLI will interview the employee and attempt to collect the employee’s unpaid wages, but they will not pursue any wage penalties. Wage penalties are usually several times the actual amount of unpaid wages, and they can only be pursued by a private attorney.

Both Oregon and federal wage laws allow a successful employee to recover their attorney fees from the employer in addition to the unpaid wages and penalties. For this reason, attorneys who handle wage claims will handle them on a contingency basis (i.e. the attorney does not get paid unless the employee wins).

Workers have six years after a wage is unpaid to file a lawsuit to collect those wages. This is called the “statute of limitations.” The statute of limitations for collecting wage penalties is three years after the violation giving rise to the penalty.

Employers are required by law to keep all employee time and pay records for at least three years, so employees who don’t have all of their pay stubs or other documentation of their claims should not be discouraged from making wage claims against their employers. If an employer fails to keep the proper records, BOLI or the court will rely on the employee’s best estimates.

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