Chapter 653

 

      Chapter 653

 

ATTY. GEN. OPINIONS: Wage and Hour Commission jurisdiction to regulate governmental entity’s employment of minors, (1979) Vol 39, p 489

 

      653.010 to 653.065

 

ATTY. GEN. OPINIONS: Commission authority to prescribe rest periods for excluded employes, (1972) Vol 35, p 1112

 

      653.010 to 653.256

 

NOTES OF DECISIONS

 

      Person is employee for purposes of minimum wage law if suffered or permitted to work. State ex rel Roberts v. Bomareto Ent., Inc., 153 Or App 183, 956 P2d 254 (1998), Sup Ct review denied

 

      653.010 to 653.261

 

ATTY. GEN. OPINIONS: Jurisdiction of Wage and Hour Commission, (1974) Vol 37, p 163

 

      653.010

 

NOTES OF DECISIONS

 

      Where defendants worked for subcontractor on construction project, used their own tools to perform work, did not communicate directly with plaintiff contractor and were paid by subcontractor, defendants were not employed by plaintiff contractor under economic realities test that determines whether plaintiff contractor had functional control over defendants so that defendants were dependent on plaintiff contractor; overrulingChard v. Beauty-N-Beast Salon, 148 Or App 623, 941 P2d 611 (1997). Cejas Commercial Interiors, Inc. v. Torres-Lizama, 260 Or App 87, 316 P3d 389 (2013)

 

      653.020

 

ATTY. GEN. OPINIONS: Commission authority to prescribe rest periods for excluded employes, (1972) Vol 35, p 1112; jurisdiction of Wage and Hour Commission, (1974) Vol 37, p 163

 

      653.030

 

NOTES OF DECISIONS

 

      Rule enacted pursuant to this section reducing minimum wage for persons under 18 was invalid where Wage and Hour Commission failed to make determination that otherwise applicable minimum wage would substantially curtail employment opportunities for persons under 18. Kids Against the Cut v. Wage and Hour Comm’n, 41 Or App 179, 597 P2d 1264 (1979)

 

      653.055

 

NOTES OF DECISIONS

 

      Under this section, where Labor Commissioner sued as assignee of affected employes, prevailing defendant-employer was not entitled to attorney fees. State ex rel Stevenson v. Youth Adventures, 42 Or App 263, 600 P2d 880 (1979), Sup Ct review denied

 

      “Civil penalties provided in ORS 652.150” refers to method for calculating minimum wage or overtime violation penalty and does not result in penalty being merged with penalty for failure to pay wages at termination. Cornier v. Paul Tulacz, DVM PC, 176 Or App 245, 30 P3d 1210 (2001)

 

      Where employer failed to pay overtime wages, subsequent termination of employment did not provide basis for additional claim based on nonpayment of same wages at termination. Mathis v. Housing Authority of Umatilla County, 242 F. Supp. 2d 777 (D. Or. 2002)

 

      Reference to ORS 652.150 under subsection (1) of this section includes need to establish that employer’s failure to pay wages is willful in order to impose civil penalties. Migis v. Autozone, Inc., 282 Or App 774, 387 P3d 381 (2016)

 

      653.261

 

NOTES OF DECISIONS

 

      Where employe and employer agreed upon monthly salary for 60 hour week which met minimum wage requirements for straight and overtime, overtime pay could not be claimed for work in excess of 40 hour week under rule enacted pursuant to this section. State ex rel Stevenson v. Ghawi, 39 Or App 827, 593 P2d 1266 (1979)

 

ATTY. GEN. OPINIONS: Commission authority to prescribe rest periods for excluded employes, (1972) Vol 35, p 1112

 

      653.268

(formerly 279.340)

 

NOTES OF DECISIONS

 

      State management employees were eligible for overtime pay or compensatory time during two-year period governed by 1995 version of [former] ORS 279.342. Young v. State of Oregon, 161 Or App 32, 983 P2d 1044 (1999), Sup Ct review denied

 

      Person is “directly employed” by public employer if job results from public employer itself obtaining or arranging to obtain services of person without intermediate instrumentality or event. Young v. State of Oregon, 177 Or App 295, 33 P3d 995 (2001); Young v. State of Oregon, 189 Or App 493, 77 P3d 321 (2003)

 

      For salaried employee, “regular rate” means rate determined by dividing weekly salary by 40 hours. Young v. State of Oregon, 340 Or 401, 133 P3d 915 (2006)

 

ATTY. GEN. OPINIONS: Construing “labor directly employed” by county to include employes generally, (1972) Vol 35, p 1083; changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291; liability of local government employers for overtime and compensatory time off in lieu of overtime, (1981) Vol 41, p 409

 

LAW REVIEW CITATIONS: 51 OLR 44 (1971)

 

      653.269

(formerly 279.342)

 

NOTES OF DECISIONS

 

      State management employees were eligible for overtime pay or compensatory time during two-year period governed by 1995 version of statute. Young v. State of Oregon, 161 Or App 32, 983 P2d 1044 (1999), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Construing “labor directly employed” by county to include employes generally, (1972) Vol 35, p 1083; changing regular eight-hour day and 40-hour week without overtime pay, (1972) Vol 35, p 1291

 

LAW REVIEW CITATIONS: 51 OLR 44 (1971)

 

      653.295

 

NOTES OF DECISIONS

 

      “Initial employment”, for purposes of this section, means when the employe starts work. Olsten Corp. v. Sommers, 534 F Supp 395 (1982)

 

      In action to enforce noncompetition covenant, where evidence showed defendants spent part of their time contacting existing customers of plaintiff and as result of these contacts customers were more likely to come to defendants initially and that when defendants formed their own business 14 of their 27 customers were former clients of plaintiff, defendant’s customer contracts gave plaintiff legitimate interest entitled to protection by noncompetition agreement. Olsten Corp. v. Sommers, 534 F Supp 395 (1982)

 

      This section precluded enforcement of noncompetition agreement not entered into at time of employe’s initial employment. Pacific Veterinary Hospital v. White, 72 Or App 533, 696 P2d 570 (1985)

 

      Agreement prohibiting employee from soliciting businesses targeted for marketing by employer is noncompetition agreement. Dymock v. Norwest Safety Protective Equipment for Oregon Industry, Inc., 334 Or 55, 45 P3d 114 (2002)

 

      Employee refusing to sign unenforceable noncompetition agreement is not pursuing employment-related right. Dymock v. Norwest Safety Protective Equipment for Oregon Industry, Inc., 334 Or 55, 45 P3d 114 (2002)

 

      “Bona fide advancement” means job content and responsibilities of employee materially increase and status of employee within company improves. Nike, Inc. v. McCarthy, 379 F3d 576 (9th Cir. 2004)

 

      Where employee contracts to work for same employer for period subsequent to scheduled termination of employment, whether contract period is new “initial employment” depends on whether employment capacity during contract period substantially differs in nature from employment capacity prior to termination. McGee v. Coe Manufacturing Co., 203 Or App 10, 125 P3d 26 (2005)

 

      As used in this section, “voidable” means that employee who wants to be relieved of what employee believes to be unenforceable noncompetition obligation must take affirmative steps to invalidate that obligation; otherwise, obligation remains valid. Bernard v. S.B., Inc., 270 Or App 710, 350 P3d 460 (2015), Sup Ctreview denied

 

      Plaintiff employee’s failure to take steps to void noncompetition agreement, where noncompetition agreement was executed in violation of two-week notice requirement, precludes plaintiff’s claim for intentional interference with economic relations. Bernard v. S.B., Inc., 270 Or App 710, 350 P3d 460 (2015), Sup Ct review denied

 

LAW REVIEW CITATIONS: 58 OLR 336 (1979); 88 OLR 515 (2009)

 

      653.305

 

NOTES OF DECISIONS

 

      Regardless of whether terms “employ” and “employer” in this section are defined by ORS 653.010 or by common law distinctions between employes and independent contractors, workers were employes. Northwest Advancement v. Bureau of Labor, 96 Or App 133, 772 P2d 943 (1989), Sup Ct review denied

 

      Wage and Hour Commission’s authority to regulate hours and conditions of employment includes authority to prohibit certain employment altogether. Northwest Advancement v. Bureau of Labor, 96 Or App 133, 772 P2d 943 (1989), Sup Ct review denied