OAR 839-020-0125
Overtime Exemptions Pertaining to Employers Regulated Under the Federal Fair Labor Standards Act

(1)

This rule applies to employers and employees subject to OAR 839-020-0030 (Payment of Overtime Wages — Generally), Overtime Generally, by virtue of the repeal of ORS 653.020 (Excluded employees)(7) by Section 2, Chapter 446, 1989 Oregon Laws.

(2)

No employer shall be deemed to have violated OAR 839-020-0030 (Payment of Overtime Wages — Generally) under the following circumstances:

(a)

By employing any employee for a workweek in excess of that specified in OAR 839-020-0030 (Payment of Overtime Wages — Generally) 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 (Payment of Overtime Wages — Generally) 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 (Minimum wage rate). (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 (Payment of Overtime Wages — Generally) 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 (Minimum wage rate) 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 (Payment of Overtime Wages — Generally), 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 (Minimum wage rate) 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 (Payment of Overtime Wages — Generally) 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 (Payment of Overtime Wages — Generally) 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 (Payment of Overtime Wages — Generally) 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 (Payment of Overtime Wages — Generally); 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 (Minimum wage rate); 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 (Payment of Overtime Wages — Generally) 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)

Source: Rule 839-020-0125 — Overtime Exemptions Pertaining to Employers Regulated Under the Federal Fair Labor Standards Act, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=839-020-0125.

839–020–0000
Notice of Proposed Rule 839–020–0004
Definitions Generally 839–020–0005
Employees Engaged in Administrative, Executive, Professional, or Outside Sales Work, Defining the Terms 839–020–0010
Payment of Minimum Wages — Generally 839–020–0011
Determination of Applicable Region and Minimum Wage Rate to be Paid for Work Performed by Employees 839–020–0012
Wage Statements to Be Provided to Employees 839–020–0013
Bonuses Provided to Workers in Agriculture 839–020–0015
Fixed Minimum Hourly Wage Rates Lower than the Minimum Wage Rate 839–020–0020
Deductions from the Minimum Wage — Generally 839–020–0025
Deductions for Meals, Lodging, Facilities or Other Services 839–020–0027
Deductions for Garnishment Processing Fee 839–020–0030
Payment of Overtime Wages — Generally 839–020–0040
Hours Worked — Generally 839–020–0041
Waiting Time 839–020–0042
Sleeping Time and Certain Other Activities 839–020–0043
Preparatory and Concluding Activities 839–020–0044
Lectures, Meetings and Training Programs 839–020–0045
Travel Time 839–020–0046
Adjusting Grievances, Medical Attention, Civic and Charitable Work and Suggestion Systems 839–020–0047
Application of OAR 839-020-0040 to 839-020-0047 to Agricultural Employees 839–020–0050
Meal and Rest Periods 839–020–0051
Rest Periods for Expression of Milk 839–020–0052
Leave for Domestic Workers 839–020–0060
Weight Lifting 839–020–0065
Other Working Conditions 839–020–0070
Homework — Generally 839–020–0080
General Recordkeeping Requirements 839–020–0082
Special Recordkeeping Circumstances 839–020–0083
Records Availability 839–020–0085
Posting Requirements 839–020–0087
Earned Income Tax Credit Notice to Employees 839–020–0115
Relationship of State and Federal Law 839–020–0125
Overtime Exemptions Pertaining to Employers Regulated Under the Federal Fair Labor Standards Act 839–020–0130
Overtime Exemption for Public Employees 839–020–0135
Overtime Exemption for Agricultural Employees 839–020–0150
Exemptions from Minimum Wage and Overtime 839–020–0200
Authority of Labor Commissioner to Define Terms Relating to Persons Employed by a Public Agency in Fire Protection and Law Enforcement Activities 839–020–0210
Exemptions from Overtime Relating to Persons Employed by a Public Agency in Fire Protection and Law Enforcement Activities — Generally 839–020–0220
Definitions for Regulations Pertaining to Persons Employed by a Public Agency in Fire Protection and Law Enforcement Activities 839–020–0230
Limitation on Nonexempt Work 839–020–0240
Public Agency Employees Engaged in Both Fire Protection and Law Enforcement Activities 839–020–0250
Effect of Training Time 839–020–0260
Application of ORS 653.269(3) to Ambulance and Rescue Service Employees 839–020–0270
Other Overtime Exemptions May Apply to Public Employees Engaged in Fire Protection and Law Enforcement Activities 839–020–0300
Authority of Labor Commissioner to Define Terms Relating to Executive, Administrative, Supervisory and Professional Employees of a Public Agency 839–020–0310
Application of OAR 839-020-0300 to 839-020-0350 839–020–0320
Definitions for Exemptions Relating to Executive, Administrative, Supervisory and Professional Employees of a Public Agency 839–020–0330
Exception to Salary or Fee Basis 839–020–0350
Computer Professionals 839–020–0400
Definitions for Maximum Hours of Work in Canneries, Driers and Packing Plants 839–020–0410
Determination of the Day 839–020–0415
Failure to Establish a Workweek 839–020–0417
Employee’s Written Consent to Work up to 60 Hours in a Workweek 839–020–0420
Undue Hardship Notices and Employee’s Written Consent 839–020–1000
Violations Separate and Distinct 839–020–1010
Violations for Which a Civil Penalty May Be Assessed 839–020–1020
Criteria for Determining a Civil Penalty
Last Updated

Jun. 8, 2021

Rule 839-020-0125’s source at or​.us