Oregon Administrative Rules › Chapter 839 - BUREAU OF LABOR AND INDUSTRIES › Division 26 - EMPLOYEE WORK SCHEDULES › Section 839-026-0010 - Covered Employees and Integrated Enterprises

Current through Register Vol. 63, No. 7, July 1, 2024
(1) ORS
			 653.412 to ORS
			 653.485 applies to employees who
			 are employed in a retail, hospitality, or food services establishment and whose
			 primary duties consist of performing activities relating to the retail, lodging
			 or food service operations of those establishments. For example, an employer
			 that operates a chain of restaurants employs servers, cooks, bartenders, and
			 dishwashers to prepare and serve food and beverages. The employer also employs
			 a bookkeeper, payroll clerk, and human resources specialist to carry out other
			 functions for the business. While the provisions of ORS
			 653.412 to ORS
			 653.485 apply to those employees
			 performing duties associated with food service, they do not apply to employees
			 whose primary duties are not related to the food service operations. For the
			 purposes of this rule, "primary duty" means, as a general rule, the major part
			 of an employee's time.
(2) Whether
			 an employer is a retail, hospitality, or food services establishment for the
			 purposes of ORS 653.412 to ORS
			 653.485 depends on whether the
			 employer's operations are classified as a retail, hospitality, or food services
			 establishment under the 2012 North American Industry Classification System
			 (NAICS). Where, as part of its operations, an employer provides retail,
			 hospitality, or food services but is not classified by NAICS as a retail,
			 hospitality, or food services establishment, the employer's employees are not
			 employed in a retail, hospitality, or food services establishment. For example,
			 a hospital that, as part of its own operations, also employs employees to
			 provide food services or operate a retail gift store is not a food services
			 establishment or retail establishment. However, if the hospital contracts with
			 another business to provide food services or operate a retail gift store within
			 the hospital, and the NAICS classifies such a business as a food services or
			 retail establishment, the business's employees are employed in a food services
			 or retail establishment.
(3) For
			 purposes of ORS 653.422, separate entities are
			 deemed to be parts of a single employer when they constitute an "integrated
			 enterprise." The employees of all entities making up the integrated enterprise
			 must be counted in determining employer coverage. Whether or not separate
			 entities form an integrated enterprise is determined by applying the factors
			 identified in ORS 653.422(3) and
			 section (4) of this rule. While all of the factors should be considered in
			 assessing whether separate entities constitute an integrated enterprise, it is
			 not necessary that all factors be present, nor is the presence of any single
			 factor dispositive.
(4) An
			 integrated enterprise is one in which the operations of two or more employers
			 are intertwined to such a degree that they can be considered a single employer.
			 The factors to be considered in determining whether separate entities should be
			 treated as an integrated enterprise include, but are not limited to:
(a) The degree of interrelation between the
			 operations of multiple entities, which includes but is not limited to the
			 sharing of such management services as check writing, the preparation of mutual
			 policy manuals, contract negotiations, and the completion of business licenses;
			 the sharing of payroll and insurance programs; the sharing of services of
			 managers and personnel; the shared use of office space, equipment, and storage;
			 and the operation of the entities as a single unit;
(b) The degree to which the entities share
			 common management, including but not limited to the utilization of the same
			 individuals to manage or supervise the different entities and the appointment
			 of the same individuals to be officers and directors of the entities;
(c) The degree to which the entities have
			 centralized control of labor relations, including but not limited to the
			 existence of a centralized source of authority for development of personnel
			 policy; maintenance of personnel records by one entity for the other, including
			 the screening and testing of applicants for employment; the sharing of a
			 personnel or human resources department; the frequency of transfers and
			 promotions of personnel between the entities; and the utilization of the same
			 individuals to make employment decisions for both entities; and,
(d) The degree of common ownership or
			 financial control over the entities, including but not limited to the exercise
			 of ownership of the different entities by the same individuals and the
			 ownership of the majority or all of the shares of one of the entities by the
			 other; and the exercise of financial control of the different entities by the
			 same individuals through required reporting of financial metrics, the
			 determination of eligibility for expansion to new business locations, and
			 requirements to meet sales or revenue targets.