Section 653.265 - Overtime for persons employed in canneries, driers and packing plants; exceptions; remedies; penalties(1) As used in this section:(a) "Perishable product" means any product that may spoil, deteriorate or undergo other material changes that render it unsuitable for the use for which it was produced. "Perishable product" includes agricultural crops, meat and fish.(b) "Undue hardship period" means the period of time during which perishable product must be processed after harvesting, slaughter or catch.(c) "Workweek" means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade overtime requirements.(2)(a) Except as provided in paragraphs (b) to (d) of this subsection, an employer may not require or permit an employee employed in any cannery, drier or packing plant in this state to work more than:(A) 10 hours in any one day; or(B) 55 hours in one workweek.(b) An employer may permit an employee described in paragraph (a) of this subsection to work up to 60 hours in one workweek if the employee requests or consents in writing to work more than 55 hours in the workweek.(c) Notwithstanding paragraph (b) of this subsection, during the period of time that an employer is eligible for an undue hardship period exemption under subsection (5) of this section, an employer may permit an employee described in paragraph (a) of this subsection to work: (A) Up to 84 hours per workweek for four workweeks; and(B) Up to 80 hours per workweek for the remainder of the undue hardship period.(d) An employer may permit an employee described in paragraph (a) of this subsection to work more than 10 hours in any one day if the employer compensates the employee as follows: (A) One and one-half times the employee's regular rate of pay for each hour the employee works over 10 hours in any one day if the employee is an hourly employee; or(B) One and one-half times the regular price for all work done during the time the employee is employed over 10 hours per day if the employee is a piece worker.(3) An employer shall calculate an employee's overtime on a daily basis under subsection (2)(d) of this section and on a weekly basis under ORS 653.261 (1) and pay the greater of the two amounts if, during the same workweek, the employee works more than: (a) 10 hours in one day as described in subsection (1) of this section; and(b) 40 hours in one workweek as described in ORS 653.261 (1).(4) An employer that makes an overtime payment to an employee pursuant to subsection (3) of this section satisfies the overtime compensation requirements under this section and ORS 653.261 (1).(5)(a) An employer is eligible for an undue hardship period exemption from the restrictions on work hours under subsection (2)(a) of this section if the employer, in the ordinary course of the employer's business, processes perishable products. The undue hardship period exemption shall be effective only during an undue hardship period. An employer may be eligible for more than one undue hardship period exemption in a calendar year. However, the combined total duration of the employer's undue hardship period exemptions may not exceed 21 workweeks in a calendar year.(b) To claim an undue hardship period exemption, an employer must provide notice of the undue hardship period to the Commissioner of the Bureau of Labor and Industries and obtain written consent from each employee whom the employer will request to work more than 55 hours in any workweek during the undue hardship period.(c)(A) The notice the employer sends to the commissioner under paragraph (b) of this subsection must be in a form prescribed by the commissioner by rule and include a description of the reasons for the undue hardship period, the start and expected end dates of the undue hardship period and any other information required by the commissioner.(B) The employee's written consent shall be in a form prescribed by the commissioner by rule and include:(i) A description of the employer's reasons for the undue hardship period;(ii) The start and expected end dates of the undue hardship period;(iii) A statement that the employer may require the employee to work up to 84 hours per workweek for up to four workweeks during the undue hardship period;(iv) A statement that the employer may require the employee to work up to 80 hours per workweek for the remainder of the undue hardship period;(v) A statement that the employee consents to working up to 84 hours per workweek for up to four workweeks during the undue hardship period and up to 80 hours per workweek for the remainder of the undue hardship period;(vi) Contact information for the Bureau of Labor and Industries; and(vii) Any other information required by the commissioner.(6) An employer may not coerce an employee into consenting to work more than 55 hours in a given workweek.(7) This section does not apply to:(a) An employee employed in a cannery, drier or packing plant that is located on a farm and primarily processes products produced on the farm;(b) An employee employed in a cannery, drier or packing plant who is engaged in manufacturing, as that term is defined in ORS 652.020;(c) An employee employed by a seafood processor, as that term is defined in ORS 653.263; or(d) An employee employed in a cannery, drier or packing plant whose principal duties are administrative in nature or who is not otherwise, in the usual course of the employee's duties, engaged in the direct processing of goods.(8) Subsections (2) to (6) of this section do not apply to employees who are represented by a labor organization for purposes of collective bargaining with their employer, provided limits on the required hours of work and overtime payment have been agreed to between the employer and labor organization, or if no agreement is reached, then, for the purposes of this subsection, such limits and payments shall not be deemed to be changed from the previous collective bargaining agreement between the employer and labor organization unless the employees have been locked out or are engaged in a strike or the employer has unilaterally implemented new terms and conditions of employment.(9)(a) Notwithstanding ORS 653.256, in addition to any other penalty provided by law, the commissioner may assess the following civil penalties against an employer:(A) $2,000 per violation if the commissioner determines the employer coerced an employee into consenting under subsection (2)(b) of this section to work more than 55 hours in any given workweek; and(B) $3,000 per violation if the commissioner determines the employer coerced an employee into consenting under subsection (5) of this section to work more than 55 hours per workweek in any given workweek during an undue hardship period.(b) Each violation described in paragraph (a) of this subsection is a separate and distinct offense. In the case of a continuing violation, each workweek's continuance is a separate and distinct violation.(c) Civil penalties authorized by this subsection shall be imposed in the manner provided in ORS 183.745. All sums collected as penalties under this subsection shall be applied and paid over as provided in ORS 653.256.(10)(a) In addition to any other remedy provided by law, an employee has a private cause of action against an employer if the employer violates subsection (2) of this section by requiring the employee to work more than the applicable limit for the maximum allowable hours of employment in one workweek.(b) If the employee prevails in an action brought under this section, the court may enter judgment against the employer for:(A) Actual damages or $3,000 per claim, whichever is greater;(B) Equitable relief; and(C) Liquidated damages in an amount equal to twice the employee's overtime wages earned during the period not allowed under subsection (2) of this section.(c) In an action brought under this section, the court may award to the prevailing plaintiff costs, disbursements and reasonable attorney fees. Any attorney fee agreement is subject to approval by the court.Amended by 2017 Ch. 685, § 9, eff. 8/8/2017, op. 1/1/2018.Amended by 2017 Ch. 685, § 8, eff. 8/8/2017.