Oregon Administrative Rules
Chapter 839 - BUREAU OF LABOR AND INDUSTRIES
Division 20 - RULES REGULATING MINIMUM WAGE, OVERTIME AND WORKING CONDITIONS
Section 839-020-0125 - Overtime Exemptions Pertaining to Employers Regulated Under the Federal Fair Labor Standards Act
Universal Citation: OR Admin Rules 839-020-0125
Current through Register Vol. 63, No. 9, September 1, 2024
(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 and in complaince with
OL Chapter 115, 2022; 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 employed by an establishment
which is a motion picture theater; or
(o) 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
(p) 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)
Statutory/Other Authority: ORS 653.040, ORS 653.261 & OL Chapter 115, 2022
Statutes/Other Implemented: OL Chapter 115, 2022
Disclaimer: These regulations may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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