Hours of Work and Wages
Laws governing minimum wage, maximum hours, working conditions, sick leave, and payment and collection of wages ensure that employees are paid for their work and are given basic job benefits. These issues are crucial to school employees and are regulated by both state and Federal law.
Hours of Work
In practice, school districts have wide latitude in structuring school employees' workdays. State law does not require any particular reporting or departure times provided a school meets minimum standards for instructional time. However, if the total amount of teachers' student contact time has been consistent over time, school districts cannot generally alter that amount without consent from the Association. Collective bargaining agreements may set out the parameters of the workday. School districts that unilaterally change established amounts of contact time may be in violation of the collective bargaining agreement or state labor law. ORS243.672(1)(e).
It may come as a surprise to many, but in most instances, federal and state laws do not limit the number of hours of work an employer can require of its employees. Federal and state laws require overtime pay but do not set maximum hours, with limited exceptions (29 USC § 207). Similarly, under state law, maximum hour laws apply only to limited kinds of employment. For example, there is a 10-hour-day limit for most workers in mills, factories and manufacturing establishments with a 3-hour overtime allowance, absent an emergency. Despite lack of maximum hour laws, however, many collective bargaining agreements limit the workday to 8 hours and the workweek to 40 hours. If you are being asked to work more than 8 hours per day, consult your collective bargaining agreement.
Meal and Rest Periods
Under state law, school districts are required to provide all full-time licensed staff members time for a 30-minute continuous duty-free lunch. The lunch period must be set during regularly scheduled lunch hours. Any school principal who fails to do so is subject to being charged with "neglect of duty" (ORS 342.608).
In the absence of a collective bargaining agreement, state regulations require that nonprofessional employees be given a paid 10-minute break period for every four hours of work, and an unpaid meal period for every five hours of work (OAR 839-20-050). These state regulations will be superseded by a collective bargaining agreement if one is in force (ORS 653.261(3)). Collective bargaining agreements generally insure that employees receive adequate breaks and meal periods.
Under ORS 336.010(8), teachers cannot be required to teach on any legal school holiday. Oregon law establishes the following state legal school holidays: Sundays, New Years Day on January 1. Memorial Day on the last Monday in May, July 4. Labor Day on the first Monday in September, Veterans1 Day on November 11, Thanksgiving Day on the fourth Thursday in November, Christmas Day on December 25 (ORS 336.010(7)).
ORS 336.010 also prohibits teachers from working on Saturdays, unless "provided in the terms of the teacher's employment." By law, except for Martin Luther King Jr. Day, teachers are required to be paid when a holiday occurs on what would otherwise be a paid school day (ORS 336.010(8)). Individual districts can decide if MLK Day will be a paid holiday (ORS 336.010(6)). Finally, state law expressly states that the above list is not a limit on collective bargaining agreements. Thus, collective bargaining agreements may expand the list to include additional paid holidays for school employees.
Under ORS 332.507, all school employees are entitled to at least 10 days' sick leave at full pay for each school year or one day per month employed, whichever is greater. An employee has the right to accumulate unused sick leave for an unlimited number of days. An employee also has the right to transfer up to 75 days of unused sick leave upon transfer between school districts, provided the employee works 30 days in the new district. For purposes of determining retirement benefits, an employee is permitted to transfer an unlimited number of days of unused sick leave. Employers and labor organizations may agree that employees may participate in a sick leave bank or use their sick leave for family medical leave. Employees are also entitled to use sick leave when on parental leave after birth or adoption of a child.
Under state law, an employer may not discharge or threaten to discharge, intimidate or coerce an employee by reason of the employee's service as a juror. Oregon law specifically authorizes circuit courts to order reinstatement with back pay for jurors who are fired because of jury duty. ORS 10.090. There is not a statutory guarantee that employees have paid leave for jury duty. However, collective bargaining agreements or employer policies should be consulted to determine if wages will be owed for days of jury service. Often, school employees on jury duty are entitled to paid leave on condition that they turn their jury duty pay over to the school district.
Teachers are exempt from Federal Fair Labor Standards Act (FLSA) overtime coverage, as are other school nurses, principals and other licensed personnel. Licensed personnel are considered "professional" employees who can be expected to work more than 40 hours per week without additional compensation. However, Education Support Professional school employees are generally not considered exempt and are therefore covered by the FLSA provisions on overtime and must be paid time and one-half for overtime hours worked. Bus drivers, custodians, cafeteria workers, secretaries and clerical workers are all entitled to protection under the FLSA.
Although not protected under the federal FLSA, teachers and other licensed personnel forced to work more than eight hours per day may be covered by hours-of-work limits set in a collective bargaining agreement. In addition, an increase in student-contact time may either violate the collective bargaining agreement or may be an unlawful unilateral change in working conditions under the collective bargaining law (ORS 243.672(1 )(e)).
For FLSA covered employees, the law broadly defines "hours worked" for overtime calculations. It includes all hours a covered employee is "suffered or permitted to work" for that employer. Covered hours may include preparatory work, on-call time in some circumstances, traveling time, waiting time, changing and washing-up time, and short rest periods. However, compensable time will generally not include meal periods, absences, or scheduled time between split shifts where enough time is left for personal activities.
Under the FLSA, overtime accrues only where the employee works more than 40 hours in a week. If an employee takes sick leave on Wednesday and works late on Friday, the employee is not due overtime if the total hours actually worked are fewer than 40. Employees who voluntarily continue to work after their shifts are engaged in compensable working time. If the employer allows the employee to work, or knows the employee is working, the employee must be compensated. Similarly, ORS 279.340 requires that public employees be compensated at time and one-half when they work more than forty hours in one week.
Under the FLSA and State law, a school district may provide compensatory time off in lieu of overtime pay (29 USC § 207(o); ORS 279.340). The district must provide compensatory time at a rate of not less than one and one-half hours of compensatory time for each hour of overtime worked. However, for a district to pay compensatory time, the district must first obtain an "agreement" from employees. In general, the agreement is through negotiation with the Association.
Employees who work fewer than 40 hours per week are not legally required under the FLSA to receive overtime. However, the collective bargaining agreement can require such payment.
From Legal Issues in Education, Employee Rights Manual for Oregon School Employees, p 18-23, September 2003, Oregon Education Association