Byline: On the Job by Dan Grinfas For The Register-Guard

Question: How long does an employer need to wait before contracting the services of a former employee? Our ex-employee, Alan, has started his own business, and we want to make sure the proper length of time has expired before we

Answer: The law doesn't set any minimum waiting period. In fact, it's even possible to have a current employee who also works for you as an independent contractor.

The key is to be sure that you're correctly classifying Alan.

Since he now has his own business, he may qualify as an independent contractor, but an Oregon law, ORS 670.600, sets a number of criteria that you must meet.

Among the questions you should ask are the following:

Has Alan obtained the proper licenses to operate a business?

Has he incorporated or registered an assumed business name with the secretary of state's office?

Will he be free from your direction and control as to how he performs the work?

Will Alan provide the tools or equipment needed for the job?

Can he hire and fire his own employees to help do the work?

Does Alan hold himself out to the public as an independent business, including, for example, having a business location and phone line separate from his residence, having business cards, advertising commercially, and doing the same type of work for other organizations during the year?

If you answered no to any of these questions, then you should think twice before treating Alan as a contractor.

A court could find that he's still your employee, and that could lead to liability for minimum wage and overtime violations - not to mention problems with the lack of workers' compensation coverage and failure to withhold state and federal taxes.

You'll find a more detailed listing of the tests that distinguish employees from contractors at www.boli.state.or .us/technical/taindvem.html.

Question: We're a construction company, and there are some occasions when we can't stop work for a 10-minute rest break. One example is when we're doing a concrete pour. Is it OK for us not to give the rest break in these situations, or do we have to try to fit it in?

Answer: The Oregon regulation on rest breaks, OAR 839-020-0050, requires that nonexempt employees take a 10-minute paid rest break for every four-hour segment or major portion of four hours in the work period.

The rest break is supposed to be taken approximately at the midpoint of each four-hour segment.

Two of these rest breaks are required when a nonexempt employee works a typical eight-hour shift.

Employers must arrange staffing so that employees normally get their breaks at the appropriate times.

However, the law allows an employee to have a rest period at a different point in the shift when the employer can show that "the ordinary nature or circumstances of the work prevent the employer from establishing and maintaining a regularly scheduled rest period."

This means that you could have an employee take his or her 10-minute break later in the shift if you can show that there's no way for him or her to stop at the regular time because of a concrete pour that requires him or her to continue working.

Note that this rule doesn't permit employees to skip the required rest break altogether but rather allows them to take it at another point in the shift under certain circumstances.

Check the BOLI Web site at www.boli.state.or.us/technical/tabreaks.html for more details on rest break and meal period requirements.

On The Job is written by Dan Grinfas, an attorney with the Oregon Bureau of Labor and Industries. Contact BOLI at (503) 731-4200 or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.