Duff on Hospitality Law

Oregon’s legislature has broadened Oregon’s tax on short-term room rentals (also called the transient lodging tax). The new law, Enrolled House Bill (EHB) 4120, expands the scope of persons who must collect and remit the tax and file returns.

Background and Prior Law

EHB 4120 comes after a 2013 change in the law meant to treat third-party intermediaries on par with traditional hotels and motels. Apparently, the legislature now believes the earlier change did not go far enough—so in comes the amendment.

The old law and new law both require intermediaries to collect the tax along with short-term rental providers. But the old law defined intermediaries somewhat narrowly as those who simply facilitate and charge for short-term rental sales. While some intermediaries collected and paid the tax under this framework, that approach was not consistent across the market.

For example, some cities and counties reached voluntary agreements with certain intermediary companies to collect the tax; others had to rely on property owners’ individual compliance. Some intermediary companies took the position that the tax did not apply to them.

Oregon is poised to become the first state in the country to require larger food service, retail and hospitality employers to provide their hourly workers predictable schedules – or to pay the price. This is the second of two major changes to Oregon employment law. An earlier alert discussed the Equal Pay Act.

Starting July 1, 2018, qualifying employers must post a written work schedule for all employees one week ahead. The requirement expands to two weeks in 2020. Employees may decline any work shifts not included in the advance schedule, and employees may ask (only in writing) for additional shifts during the notice window. The Oregon Bureau of Labor and Industries (BOLI) will start enforcing the law January 1, 2019.

The legislature passed Senate Bill 828, known by its champions as the Fair Work Week Act, and the bill is heading to the desk of Oregon Governor Kate Brown for her expected signature. To read more about the details of the Act, read our recent Client Update.

Oregon is making history, once again. The new minimum wage law (signed by Governor Brown on March 2, 2016) brings two new titles: 1.) the first state to implement a tiered minimum wage (the amount paid is dependent upon the location of the business); and 2.) the state with the highest minimum wage. The passage of the new law has brought a mixed response. The cheers have emanated from the employees and the advocates for a livable wage. The jeers have emanated from businesses trying to figure out how they are going to keep their doors open. While the law is effective immediately, the first increase goes into effect July 1, 2016. So, without further ado, let’s get to the details so you can determine which camp you are joining. 

In the latest of a series of twists and turns regarding the legality of certain tip pools in Western states, on February 23, 2016, a divided three judge panel of the Ninth Circuit Court of Appeals validated regulations by the Department of Labor (“DOL”) that significantly limit employers’ ability to have tip pools that include more than “customarily and regularly tipped” employees. This development means that employers operating in states or territories in the Ninth Circuit (covering Washington, Oregon, Alaska, Idaho, Montana, Nevada, California, Arizona, Hawaii, Guam, and the Northern Mariana Islands) cannot include in their tip pools “back of the house” employees (such as cooks or dishwashers) or other employees who are not customarily tipped. We examine the impact of and history behind this decision below.

Given the recent attention paid by clients to local security issues (including the recent and well received Hotel Industry Security Forum sponsored with the Washington Lodging Association – see Ruth Walter’s recent post on this event), I thought it a good time to review the obligations imposed by law on hoteliers and restaurateurs in Washington and Oregon to protect their guests and customers from crimes committed by third parties.  In other words, what responsibility does a hotel or restaurant owner have for guests or customers who are injured (or whose property is damaged or stolen) by criminals.  As I explain below, the more a hotel or restaurant owners knows about potential criminal conduct at her establishment, the more likely it is that she may be held responsible for not warning and/or protecting her guests or clients against it.

Given the number of questions I've received recently from clients who've heard rumors about tip pooling becoming legal, I thought it time to update everyone. The short answer is (at least for now) that employers in Washington and Oregon may initiate mandatory tip pools under certain circumstances.