New 2014 Oregon Employment Laws

by Davis Wright Tremaine LLP
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Oregon employers are directly affected by several new laws recently passed by the legislature. Most changes went into effect on Jan. 1, 2014, unless otherwise noted. We’ve compiled a summary of the most significant changes for most employers, including a new City of Portland sick leave ordinance that affects all employers with employees who at any time perform work in the city boundaries.

Paid Sick Leave for employees performing work in the City of Portland
Portland employers—and those businesses outside Portland who have an employee working at least 240 hours per year within the city boundaries, including telecommuting or travelling employees—must provide mandatory paid sick leave beginning Jan. 1, 2014. Companies with five or fewer employees may grant the leave as unpaid, but must still provide the mandatory leave. All employers must keep detailed records.

The rules are extensive, covering accrual, carry-over, and other aspects of use and administration. The time can be used for a variety of reasons other than traditional sick leave, including health conditions of the employee or a family member; to deal with the consequences of domestic abuse, sexual assault or stalking; or if a place of business or child’s school or place of care is closed for a public health emergency. Under the verification provisions, employers may require documentation of illness only under certain conditions.

Qualifying employees accrue sick leave at a rate of one hour of leave for every 30 hours of work performed within the City of Portland up to a max of 40 hours in any one year (with full-time exempt employees presumed to work 40 hours per week). Accrual begins immediately upon hire but an employer may prohibit use during the first 90 days of employment and 240 hours of work if consistent with its policies.

Employers who currently provide paid sick time or paid time off are exempt if their current policy is deemed equivalent under the ordinance. Many employers are taking an opportunity to strategically re-evaluate old vacation/sick or combination PTO policies to better align with the new ordinance. You can create or amend a new policy just on sick leave or have a combined time off program that serves many functions. There is also an exception for independent contractors—a reminder for employers to revisit their current classifications to be sure employees and independent contractors are properly designated to avoid breaching other laws such as wage and hour.

Employers are prohibited from retaliating against employees for exercising their rights under the ordinance. Employers are also required to keep records of sick time accrued and used for at least two years, and to provide specific written notice and post notice of employee rights. Regulations were issued and can be found at http://www.oregon.gov/boli/WHD/PDX_Sick_Time/Pages/index.aspx. BOLI will not issue penalties for unintentional violations through July 2014, although employees may still file a civil lawsuit seeking damages for violations at any time. The required poster can be obtained from http://www.oregon.gov/boli/TA/Pages/Req_Post.aspx.

Employers currently granting sick leave or paid time off need to analyze their policies to determine whether they will be deemed equivalent under the new law. Employers who are not compliant need to revise their handbooks and procedures.

More detailed information, and a link to our PowerPoint webcast presentation is available here.

New Oregon Minimum Wage
Oregon’s minimum wage rose to $9.10 per hour effective Jan 1, 2014.

Bereavement Leave protected under the OFLA
The Oregon Family Leave Act (OFLA) has been expanded to cover time off to deal with the death of a family member, to attend a funeral or alternative, to make arrangements necessitated by the death, or to grieve the death. Eligible employees may take up to two weeks of leave within a one-year period for each death, and must take the leave within 60 days of receiving notice of the death. Additional leave periods may be taken for additional qualifying deaths, up to the total 12-week allotment under OFLA. The leave counts against the employee’s overall OFLA entitlement. Unlike other types of OFLA leave, the employer may not reduce the bereavement leave allowance when the employee fails to timely provide notice.

OFLA-covered employers (with at least 25 employees in Oregon) need to revise their handbooks and procedures to allow for this expanded protected leave, and may need to review their attendance and disciplinary policies to ensure that protected bereavement leave is not counted against an employee.

Veterans Day holiday for veterans (Effective since 2013)
Employers must allow a Veterans Day holiday to qualifying veterans who provide at least 21 calendar days’ notice and proof of qualifying veteran status. At least 14 calendar days before Veterans Day, the employer must notify the employee whether the time off will be granted, and whether it will be paid or unpaid. There is an exception for undue hardship or business disruption to the employer but the employer  must  grant an alternative day off work during the year.

The law defines who qualifies as a veteran. Generally those who served on active duty in the Armed Forces for at least six months or in a combat zone, and received a discharge under honorable conditions, qualify. Normal military training in the reserves or National Guard is not enough to qualify. Further clarification may require legal counsel.

Employers need to revise their handbooks and procedures to allow for this expanded protected leave.

Social media access restrictions
Employers must curtail their involvement with employees’ or applicants’ social media accounts, personal email, and other online content. Under the new law, employers may not:

  1. Require or request that an employee or applicant allow the employer access to the individual’s personal social media account (e.g. cannot ask for the password);
  2. Compel an employee or applicant to add the employer to the individual’s social media contact list, (e.g. cannot require the employee to “friend” the employer on Facebook); or
  3. Compel an employee or applicant to allow the employer to view the personal account.

The term “social media” reaches far beyond Facebook and Twitter, and is defined to include user-generated content including but not limited to email, videos, photos, blogs, video blogs, podcasts, instant messages, and website profiles and locations.

The law also prohibits retaliation, including taking or threatening to take action to discipline, discharge, or “otherwise penalize” an employee or applicant who asserts his or her rights under the law.

Employers may still act with respect to social media and email accounts operated on behalf of the employer and may conduct investigations regarding illegal or work-related misconduct that do not require the user name or password. The law does not affect an employer’s ability to access information already available to the public about the employee or applicant. An employer who inadvertently receives a user name and password through electronic monitoring is not liable but may not use the information to actually access the social media account.

Employers may need to revise their handbooks and procedures, and may use this as a reminder to revisit social media and electronic communications policies generally in light of recent NLRB decisions restricting both union and non-union employers’ rights regarding social media. Washington has also passed a similar law that is already in effect.

Direct deposit can be used for wage payments without express authorization
Under prior law, an employee and employer needed to agree to authorize the direct deposit. Employers will now be authorized to utilize direct deposit unless an employee makes an oral or written request for payment by check. Businesses may evaluate this option with their payroll staff or providers and may choose to revise forms and procedures.

Expanded domestic violence, harassment, sexual assault and stalking leave laws (with required poster)
Currently, various laws allow eligible employees who are victims of domestic violence, harassment, sexual assault or stalking to take “reasonable leave” to deal with the consequences of such events (e.g. to seek specified legal or law enforcement assistance, medical treatment, mental health or victim services, or relocate or secure a safe home).

Under the new amendments, employees of a covered employer (one with at least six employees in Oregon) are eligible for leave from the very first day of employment (eliminating the requirement that employees work an average of more than 25 hours per week for 180 days prior to the leave). Existing policies will need to eliminate these requirements.

The law also includes a poster requirement. The posters are available on BOLI’s website at http://www.oregon.gov/boli/TA/Pages/Req_Post.aspx.

Other new laws and amendments
The legislature passed other laws affecting Oregon employers, including: increased protection for interns against discrimination and retaliation; licensing requirements for construction labor contractors; timing of payment for final wages to seasonal farmworkers; revised exemption from liability under workers’ compensation law for partners and other changes; different exclusions under unemployment benefits law for services performed by an owner; an expanded definition within the state disability law; disciplinary provisions for private schools with respect to employees and investigation of abuse and sexual conduct; and an expanded definition of public accommodations to include non-commercial places owned or maintained by a public body.

Davis Wright Tremaine will be monitoring these laws, including the publication of future regulations.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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