Employers Burdened By More New Laws

by Davis Wright Tremaine LLP

The Oregon Legislature enacted several laws in 2015 that will significantly affect your workplace. The following laws go into effect Jan. 1, 2016:

Paid Sick Leave

As expected, Oregon has enacted a mandatory paid sick leave law, making it the fourth state to do so. The law requires employers with 10 or more employees in Oregon to provide those employees with up to 40 hours of paid sick leave per year beginning in 2016. Employers with fewer than 10 employees must provide sick leave, but it can be unpaid. Portland employers are subject to the new law if they employ six or more employees in Oregon. Portland employers with fewer than six employees in Oregon must provide sick leave, but it can be unpaid. The new law applies to both public and private employers. The law applies statewide and preempts similar city ordinances such as those previously adopted in Portland and Eugene. Practice Tip: Reevaluate your vacation, sick and PTO policies to determine how best to comply with the new law and revise policies before Jan. 1, 2016.

Social Media

Oregon law now makes it an unlawful employment practice for an employer to require employees or applicants to establish and maintain personal social media accounts or to require employees or applicants to authorize the employer to advertise on their personal social media accounts. Employers are also prohibited from taking, or threatening to take, adverse action against an employee or applicant who refuses to establish or maintain a personal social media account. Practice Tip: Train all personnel who are involved in interviewing and all managers about this new law. Add these new rules to your handbook.

Public Contracts and Discrimination

All public contracts must include a provision stating that contractors must comply with prohibitions against discrimination in wage payments and compensation and that contractors may not prohibit employees from discussing wages, salary or other compensation or retaliate against employees who engage in such discussions.  The law also places requirements on certain contract bidders to certify compliance and acknowledge that a breach is cause for immediate contract termination. Practice Tip: Amend standard contract proposal forms for public entities to include the required language.

Domestic Violence Leave

Employers must allow employees who are victims of domestic violence, harassment, sexual assault or stalking to use accrued sick leave, vacation or other available paid time off for any purpose authorized by the law. Practice Tip: Leave policies should be amended to authorize this use.

Domestic Worker Rights

This new law sets rules for employers of domestic workers. Domestic workers must be paid 1.5x their base rate for time over 40 hours in a workweek, or over 44 hours if the domestic worker lives with the employer. Domestic workers must be provided with 24 consecutive hours of rest per week, and 8 consecutive hours of rest per day if living with the employer. A live-in domestic worker must be allowed to cook their own food. An employer cannot create an intimidating, hostile, or offensive work environment by harassing the worker and cannot retaliate against workers who assert their rights under the law. Practice Tip: Help educate your employees who might have domestic workers about this new law so they aren’t inadvertently in violation.

Wage Whistleblowers Protected

This new law makes it an unlawful employment action for an employer to discipline, discriminate or retaliate against an employee who has inquired, discussed or initiated any action based on the employee’s disclosure of wage information. Practice Tip: Amend or eliminate any policy that defines wage information as confidential or prohibits employees from discussing wage information.

Health Insurance Required While On OFLA

The new law amends the OFLA to require an employer to continue group health insurance coverage for employees on family leave on the same terms as when the employee is not on leave. This amendment makes the OFLA consistent with the FMLA’s requirements for health insurance continuation. Practice Tip: Amend OFLA policies to reference this additional requirement and change benefits continuation practices with your payroll or benefits departments.

Ban the Box

It is now unlawful for an employer to inquire into or consider an applicant’s conviction history on the application form or prior to conducting an interview or, if no interview is conducted, prior to making a conditional offer of employment. This law does not apply to certain jobs where state or federal law requires such consideration. It also does not apply to law enforcement agency-employers, to criminal justice system employers, or to employers seeking nonemployee volunteers. Practice Tip: Amend application form to exclude any questions regarding criminal history and train recruiters and hiring managers not to seek such information prior to conducting an interview or making a conditional job offer.

Non-Competition Agreements Limited to 18 Months

Under the new law, any noncompetition agreement entered into after Jan.1, 2016, must be limited to 18 months. The current law is 24 months and still applies to existing noncompetition agreements. Oregon law has other very specific requirements that must be met in order for a noncompetition agreement to be enforceable. Practice Tip: Employers with form agreements must in the future limit them to 18 months, not two years. Such forms should be modified in advance of use.

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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