Or. Admin. Code § 839-026-0010 - Covered Employees and Integrated Enterprises

(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.

(5) Pursuant to ORS 653.412(3), the definition of an employer includes any business or enterprise that is a successor to the employer, as defined in ORS 653.412(10). Whether or not a business or enterprise is substantially the same entity as the employer which preceded it is determined by applying the factors identified in section (6) of this rule, with no single factor being determinative.

(6) The factors to be considered in determining whether a business or enterprise is a successor to the employer include, but are not limited to:

(a) Substantial continuity of the same business operations, including use of the same or similar business name;

(b) Use of the same business location, including use of the same telephone number, website, or other electronic media;

(c) Period of time that elapsed between the employer's cessation of operations and the successor employer's initiation of operations;

(d) Substantial continuity of the work force, including supervisory personnel;

(e) Similarity of products or services; and,

(f) Use of the same machinery, equipment, or production methods.

Notes

Or. Admin. Code § 839-026-0010

BLI 15-2018, adopt filed 06/08/2018, effective 7/1/2018

Statutory/Other Authority: ORS 653.422(4) & ORS 651.060(4)

Statutes/Other Implemented: ORS 653.412 - 653.485