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Updates From The 2018 Legislative Session

2018 General Election Recap

After the results of this year’s General Election, 2019 has the potential to be a challenging year for the business community in Oregon.

Governor Kate Brown (D) beat her opponent, State Representative and physician Knute Beuhler (R), giving her the opportunity to serve four more years in the office.  With final numbers still to be reported, according to the Oregon Secretary of State’s website, the two raised and spent a record $36 million in this race.

Democrats in Oregon won big victories and now officially have a supermajority in both the House and the Senate for the first time since 2009. ORLA believes the best policy occurs when there is more parity in the two chambers and compromise between legislators is the rule rather than the exception, so the 2019 legislative session will be interesting to see how much discussion there is on bills and how much will simply be passed over objections.  

Two bright spots for the hospitality industry: Cheri Helt, owner of Zydeco Kitchen & Cocktails and Bistro 28, both in Bend, won her Oregon House race and Christine Drazan, former Oregon Restaurant Association government affairs employee and Chief of Staff to both an Oregon House Majority Leader and Oregon Speaker of the House, also won election to her Oregon House seat.  Both of these individuals understand the importance of a healthy hospitality industry to Oregon’s economy and understand the challenges of running a small business in Oregon’s current climate.

In local ballot measures ORLA was opposed to a local sales tax on meals in Jacksonville which was soundly defeated 65% to 35%. Local restaurant owners and other businesses worked together along with community members to defeat the 5% sales tax on meals there.

ORLA Members Help Shape Single-Use Disposable Plastics Policy in City of Portland

Three ORLA members served on a workgroup convened by Mayor Ted Wheeler to craft policy related to Single-Use Disposable Plastics (SUD’s) in the City of Portland. The workgroup also included members of the Surfrider Foundation, environmentalists, community members, members of the disabled community and city staff.  

The Mayor tasked the workgroup with creating an ordinance around plastic straws but encouraged the group to look beyond just straws as well. Concerns about liability, lack of access to medically necessary plastic straws, and proceeding cautiously led to an “on request” policy for plastic straws, stirrers, utensils and condiment packets for dine-in restaurants. For delivery and take-out orders, employees will need to ask if patrons need these items before placing any in the take-out carrier or bag.

After a second reading and unanimous vote, Portland City Council passed a new ordinance to reduce the automatic distribution of single-use plastics. Since Portland already has bans in place for Styrofoam and plastic grocery bags, the new ordinance repeals the existing code for Single-use Plastic Checkout Bags and Polystyrene Foam Food Containers and replaces it with Code Prohibitions and Restrictions on Single-use Plastic (Ordinance; replace Code Chapter 17.103; repeal Code Sections 17.102.300-340). 

Here is the actual language of the policy regarding the single use plastics:

17.103.310 Restrictions on Single-Use Plastic Serviceware

  1. As of July 1, 2019, all retail food and beverage establishments and institutional cafeterias, where beverages may be consumed at dine-in areas, shall provide plastic serviceware only after customer request.
  2. As of July 1, 2019, all retail food and beverage establishments and institutional cafeterias, where customers order fast food, take-out or delivery, shall provide plastic serviceware to customers only after asking if the customer needs plastic serviceware and the customer responds affirmatively.

Definitions include:

“Plastic serviceware” means single-use plastic straws, stirrers, utensils and condiment packaging.

“Retail food and beverage establishments” means any retail business that provides single-use plastic serviceware as a component of the product delivery. This includes but is not limited to full service and limited service (or fast food) restaurants, food carts, bars, coffee and tea shops, grocery stores, convenience stores, hotels and motels, caterers and food service contractors.

“Utensils” are single-use plastic utensils intended for consumption of food which include but are not limited to spoons, forks, knives, sporks and chopsticks.

As for enforcement and penalties:

  1. Violations of Chapter 17.103 shall be subject to:
  2. Upon the first violation, the Director shall issue a written warning notice to the violator that a violation has occurred.
  3. Upon subsequent violations, the following penalties shall apply:
  4. $100 for the first violation after the written warning in a calendar year;
  5. $200 for the second violation in the same calendar year; and
  6. $500 for any subsequent violation within the same calendar year.
  7. No more than one penalty shall be imposed upon any single location within a 7-day period.

Tip Pooling Issue Continues to Evolve

With the passage of HR 1625, the Consolidated Appropriations Act, on March 23, 2018 and the subsequent signing of that bill by the President, states with no tip credit, like Oregon, once again have the ability to require tip pooling among front-of-the-house staff and back-of-the-house staff.  Even with the passage of this rule change however, there is still some confusion around who is eligible, how to actually set up a tip pool and whether or not the new pay equity rules in Oregon will include tips.

The US Department of Labor (USDOL) is set to convene a rulemaking group and sessions to help better define managers and supervisors for the purposes of tip pooling. Currently, the USDOL is using the “field duties” test to determine whether someone is a manager or supervisor.  

The “field duties” test defines a manager or supervisor as follows:

1) One whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

2) Who customarily and regularly directs the work of two or more other employees; and

3) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Once the rulemaking dates are announced, ORLA will post the information on OregonRLA.org and email members to make sure they have the opportunity to comment on the proposed rules.

ORLA is also working with several of our members to come up with guidelines for tip pooling for other members who have never set up a tip pool. We anticipate the guidelines will include formulas for tip pools, options on how to implement a tip pool and best practices for communicating and monitoring. Once we have those guidelines, we will post them at OregonRLA.org and communicate with members directly about how and where to access them.

About the Author

Greg Astley is the Director of Government Affairs for the Oregon Restaurant & Lodging Association (ORLA). In partnership with ORLA’s government affairs team and chief lobbyist, Greg works to strengthen the prominence of ORLA’s advocacy program and foster broader engagement of both restaurant and lodging members on local, regional, and statewide hospitality issues.

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