New Oregon Employment Laws for 2013-2014

by Davis Wright Tremaine LLP

Employers with employees in Oregon are directly affected by several new laws recently passed by the legislature, while a new City of Portland sick leave ordinance also affects many employers with employees working in the City boundaries. Most changes go into effect Jan. 1, 2014, although some are already the law today. We’ve compiled a summary of the most significant changes for most employers.


Bereavement Leave protected under the OFLA (Effective Jan. 1, 2014)
Qualifying employees may soon take Oregon Family Leave Act (OFLA) leave to deal with the death of a family member to attend a funeral or alternative, make arrangements necessitated by the death, or grieve the death. Eligible employees receive 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.

The Oregon Bureau of Labor and Industries (BOLI) has not yet issued regulations regarding the new law. 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 leave is not counted against an employee.

Veterans Day Holiday for Veterans (In Effect Now)
Employers must provide the Veterans Day holiday off work 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, even if the employer qualifies for that exception, it must still grant an alternative day off work during the year.

The law details which persons qualify as a veteran. (The definition generally means those who served on active duty in the Armed Forces for at least 6 months or in a combat zone, and received a discharge under honorable conditions. It generally does not include normal military training in the reserves or National Guard. 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 (Effective Jan. 1, 2014)
Under a potentially broad-reaching new law, employers may need to 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 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 (Effective Jan. 1, 2014)
Employers will now have an easier time paying wages due through direct deposit to an employee’s account. 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) (Effective Jan. 1, 2014)
These leave laws, in effect for several years, have now have been expanded. The law already allowed 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).

The law also includes a poster requirement. The posters will be available on BOLI’s website.

Paid Sick Leave for employees working in the City of Portland (Effective Jan. 1, 2014)
Portland employers—and those businesses outside Portland who have an employee working at least 240 hours per year within the City boundaries—must provide mandatory paid sick leave beginning Jan. 1, 2014. Companies with 5 or fewer employees may grant the leave as unpaid, but must still provide the mandatory leave.

The rules are detailed, covering accrual, carry-over, and other aspects of use and administration. In essence, 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 (with full-time exempt employees presumed to work 40 hours per week). Leave begins accruing immediately upon hire but an employer may prohibit use during the first 90 days of employment if consistent with its policies. The time can be used for a broad variety of reasons, 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 under certain conditions.

There is an exception for employers who currently provide paid sick time or paid time off if the current policy is deemed equivalent under the ordinance. 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.

Employers are prohibited from retaliating against employees for exercising their rights under the ordinance, with authority by BOLI to enforce the ordinance. Employers are also required to keep records of sick time accrued and used for at least two years, and to post notice of employee rights. Regulations are scheduled to be issued later this month and should further detail the new requirements.

Employers currently granting sick leave or paid time off need to analyze their policies to determine whether it 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 the ordinance itself, is available here.

Other New Laws and Amendments
The legislature also passed a string of 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.

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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