OAR 839-020-0420: Undue Hardship Notices and Employee's Written Consent

(1) Pursuant to the provisions of ORS 653.265(5), an employer that processes perishable products may be exempt from the restrictions on maximum workweek hours if an undue hardship exists. To claim such an exemption, an employer must provide notice of the undue hardship period to the Bureau within seven calendar days of the date on which the undue hardship period begins. The notice submitted by the employer to the Bureau must include: (a) The name and address of the employer; (b) A description of the reasons for the undue hardship period; (c) The start and expected end dates of the undue hardship period; (d) An estimate of the number of employees whose work hours will exceed the maximum workweek hours because of the undue hardship exemption; (e) The start and end dates of any undue hardship periods previously claimed by the employer in the same calendar year; and (f) The printed name and signature of the person submitting the notice, with the date of signature. (2) The employer’s notice of the undue hardship period may be submitted on Form WH-262, which is available to any interested person. An employer may copy this form or use a similar form provided that such form contains all of the elements of Form WH-262. (3) When claiming an undue hardship exemption, an employer must obtain written consent from each employee whose work hours, pursuant to ORS 653.265(2)(c), will exceed the maximum workweek hours because of the undue hardship exemption. The written consent, which must be completed by the employee prior to performing work during the undue hardship period, must include: (a) A description of the employer’s reasons for the undue hardship period; (b) The start and expected end dates of the undue hardship period; (c) A statement that the employer may require the employee to work up to 84 hours in a workweek for up to four workweeks during the undue hardship period; (d) A statement that the employer may require the employee to work up to 80 hours in a workweek for the remainder of the undue hardship period; (e) A statement that the employee consents to working up to 84 hours in a workweek for up to four weeks during the undue hardship period and up to 80 hours in a workweek for the remainder of the undue hardship period but that the employee may withdraw such consent at any time in writing, no less than seven calendar days prior to the start of the workweek in which the employee no longer consents to work over 55 hours in the workweek; (f) A statement that the employee has the right to decline to work more than 55 hours per workweek; (g) The printed name and signature of the employee completing the written consent, with the date of signature; and (h) Contact information for the Bureau of Labor and Industries. (4) To provide written consent, an employee may use Form WH-263 or any similar form provided that such form contains all of the elements of Form WH-263. The employee’s written consent must be in the language used by the employer to communicate with the employee. (5) The employer must retain and keep available to the Bureau a copy of each employee’s written consent during the period for which the written consent is in effect and for no less than one year thereafter.