As 2019 comes to an end, employers should know about important new obligations that will ring in their new year.  Our Labor & Employment experts offer some guidance on critical developments in Oregon, Washington, California, and Idaho that employers should be prepared for in 2020.

Oregon

• The statute of limitations for discrimination and harassment claims is now five years, not one. This is a huge change and will greatly expand the number of discrimination claims against employers.  It may also impact employers’ retention policies; we recommend consulting with legal on what, if any, changes you should make going forward.
• Starting January 1, 2020, employers should incorporate into their termination checklists a provision to provide the employee with a signed, written copy of the employee’s non-competition agreement within 30 days of the employee’s termination date.  Failure to do so will render the non-compete voidable and unenforceable.  This new law will apply only to non-competition agreements entered on or after January 1, 2020. There may be more changes afoot for Oregon’s non-competition law in the 2020 legislative session, such as limiting the restrictive period from 18 months to six months.  We encourage all employers to weigh in with key industry groups and the state legislature on this critical topic. 
• Starting January 1, 2020, employees will be entitled to reasonable accommodations for pregnancy-related conditions, in addition to the time off already provided by the Oregon Family Leave Act. Reasonable accommodations might include modification of equipment or workstations, assistance with manual labor, more frequent or longer breaks, and modification of work schedules or job assignments.  Employers cannot require pregnant employees to take family medical leave if they can reasonably accommodate the employee’s limitations.  The new law also makes it unlawful to fail to hire an applicant or discriminate against an employee because of the need for an accommodation.  There is also a posting requirement (we expect BOLI to issue a poster before the law goes into effect).
• Starting October 1, 2020, employee handbooks will be required to contain anti-harassment policies. Several specific provisions must be included.  See our blog post here for those requirements.
• Also starting October 1, 2020, confidentiality, nondisparagement, and no-rehire provisions in a settlement agreement relating to discrimination or harassment will be prohibited, unless an employee requests it.
• Starting in 2023 – yes, 2023 – Oregon’s paid family leave program kicks in and Oregon employers with at least 25 employees must provide eligible employees with up to 12 weeks of paid leave for a covered purpose (family, medical, or “safe” leave). The program will be funded with payroll contributions (40% employer/60% employee), the amount of which depends on an employee’s wages.  Employers do not need to begin collecting and remitting contributions until 2022, and benefits will not be available until January 1, 2023.  Employers that already provide benefits equivalent to or greater than the state program may be exempt from Oregon’s new requirements.  Click here for a more complete summary of the new program.  Contact your Stoel Rives attorney if you have any questions about these new requirements.

Washington

• Beginning January 1, 2020, benefits under the Washington Paid Family and Medical Leave (“WPFML”) law will be available to eligible Washington employees. Employees may apply to the Washington Employment Security Department (“ESD”) for benefits representing a percentage of their wages when taking covered family or medical leave.  While the benefits are administered and paid by ESD, Washington employers are responsible for collecting and paying premiums to ESD, making quarterly reports to ESD, notifying employees of their WPFML rights, and holding employees’ positions and maintaining their medical benefits under certain circumstances.  For more detailed information, see our full blog post.

California

• Big changes are coming for independent contractors in California. AB 5 codifies the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Lee, which announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
• Employees now have more time to file administrative charges. With the enactment of AB 9, under the California Fair Employment and Housing Act (“FEHA”), the current statute of limitations for bringing an administrative charge to the California Department of Fair Employment and Housing (which is a condition of filing a lawsuit) was one year from the date of the alleged employment discrimination, harassment, or retaliation.  AB 9 lengthens that statute of limitations to three years.
• In SB 188, the legislature expanded the definition of “race” under FEHA to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”
• Severance agreements providing that the former employee will not be rehired are now prohibited, under AB 749.
• Potential major challenge to arbitration agreements: AB 51 prohibits employers from requiring employees to execute arbitration agreements as a condition of employment.  It remains to be seen whether this law will withstand judicial challenge, as the US Supreme Court has routinely ruled in favor of enforcing arbitration agreements.

Idaho

• The Idaho Wage Claim Act was amended to lengthen the period of time, from six to 12 months, an employee can pursue a claim for unpaid wages where the employee has received some but not all of their wages. An employee who has not received any wages has up to two years to pursue such a claim.  Claims brought under the Idaho Wage Claim Act can subject employers to substantial penalties including treble damages and an award of attorney fees and costs.  Employees can and often do seek to recover unpaid wages by claiming a breach of contract, which has a much longer statute of limitations, even in the circumstance where the employee has received some but not all of their wages.  Employees pursuing a breach of contract claim cannot recover penalties for failure to make timely payment.  The amendment of Idaho Code section 45-615 is an important change for Idaho employers who had long come to enjoy the benefit of a short window for bringing claims for additional unpaid wages.