Happy New Year! Recently, Oregon enacted multiple new laws and amendments affecting employment practices in Oregon. To aid employers in reviewing their policies and related documents, we’ve provided updates on the recent changes to Oregon employment law effective in 2016. For more information, please contact our Employment Group at (503) 802-5533.
Mandatory Sick Leave
Senate Bill 454
Portland City Code Title 9
Oregon’s new paid sick leave law became effective January 1, 2016, and it applies substantially to all Oregon employers. This law requires employers with ten or more employees to provide paid sick time, and those with nine or fewer to provide unpaid sick leave. For employers within the City of Portland, paid sick leave continues to be triggered by six or more employees; Portland employers with five or fewer must offer unpaid sick time. Employers must allow each employee to accrue and use at least 40 hours of sick leave every year. You can find more information and details in our prior post about the new law.
Ban the Box
Time for employers in Oregon to review their employee application forms—and additionally for employers in Portland, their interview questions—with the passage of the “Ban the Box” laws.
Oregon State Law
HB 3025
Last summer, Oregon State Legislature passed “Ban the Box” legislation designed to provide applicants with a criminal history better opportunity to interview with employers without the potential disparate impacts of their criminal history information. Effective January 1, 2016, the Oregon State Law prohibits non-exempt employers from inquiring about or accessing an applicant’s criminal background on their application or prior to the first interview.
Portland “Ban the Box”
City Code Chapter 23.10
Portland’s more restrictive “Ban the Box” goes into effect on July 1, 2016. The ordinance prohibits a non-exempt Portland employer with six or more employees from inquiring into or accessing an applicant’s criminal history during the hiring process until after the employer has offered the applicant the job with a criminal background check as a condition of employment.
Once a Portland employer makes a conditional offer, the employer may inquire into and consider the applicant’s criminal background. When considering the relevance of an applicant’s criminal background in relation to the job, the ordinance requires employers assess the nature and gravity of the criminal offense, the elapsed time since the criminal offense took place, and the nature of the employment held or sought.
Upon consideration of the applicant’s background check, the employer is not required to hire the applicant and may rescind the conditional offer. If it the employer seeks to rescind, the employer is required to notify the applicant in writing and identify the relevant criminal convictions on which the decision is based.
Non-Competition Agreements
House Bill 3236
Supporting Oregon courts’ general disfavor of noncompetition agreements, Oregon legislature increased restrictions on noncompetition agreements entered into January 1, 2016 or after. Effective January 1, 2016, noncompetition agreements must be limited to 18 months from the date of separation, a reduction from the 2-year limit previously. However, the law does not affect reasonable noncompetition agreements entered into prior to the New Year. All noncompetition agreements must be reasonable in scope and effect for Oregon courts to enforce them.
For a noncompetition agreement between an employer and employee to be enforceable, the employer must inform the employee in a writing at least two weeks before the employee’s first day of employment that a noncompetition is required as a condition of employment or, for current employees, the agreement must be entered into upon a “bona fide advancement.” The employer must also have a protectable interest made by the employee’s access to trade secrets, competitively sensitive confidential business, or professional information. Lastly, the employee’s annual gross income must exceed the median family income for a four-person family at the time of the employee’s termination (currently about $70,000 for Oregon).
Employee Social Media Protection
Senate Bill 185
Oregon recently joined the increasing ranks of states prohibiting an employer from requiring access to an employee’s personal social media account. Oregon employers may not require employees or applicants to establish and maintain personal social media accounts as a condition of employment or to require employees or applicants to authorize the employer to advertise on their personal social media accounts. As we discussed in a previous post, Oregon entered the world of social media regulation in 2014 with HB 2654.
This new law makes it unlawful for an employer to require an employee or applicant to disclose any username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to “friend,” “follow,” or otherwise connect with the employer via a social media account, or compel an employee or applicant to access a personal social media account in the presence of the employer (otherwise known as “shoulder surfing”). An employer may not take or threaten to take any action to penalize an employee or applicant based on the employee’s or applicant’s refusal to establish or maintain a personal social media account or provide the employer access to a personal social media account.
Exceptions include business-related social media accounts and workplace investigations that do not require the employee to provide a username, password, or other means of authentication that provides access to a personal social media account of the employee.
Health Insurance Required While on OFLA
House Bill 2600
Effective January 1, 2016, the Oregon Family Leave Act (OFLA) now requires qualifying employers to maintain health insurance coverage for employees on family leave at the same level they would have had if the employees were still working. Employers with 25 or more employees that provide group health plan coverage to its employees are required to maintain health insurance coverage for OFLA-covered employees and their dependents during family leave on the same terms as if the employee continued to work. The employee must continue making any required contributions toward premiums during the period of leave. This amendment brings OFLA closer in line with the Family Medical Leave Act (FMLA), which applies to employers of 50 or more.
Wage Whistleblowers Protection
House Bill 2007
It is an unlawful employment practice for an employer to take a negative employment action against an employee who has inquired, discussed, disclosed, or initiated an action based on wage information. Effective, January 1, 2016, this law also prohibits employers from retaliating against an employee for filing a complaint or participating in an investigation based on wage discussion. This law creates a state cause of action and applies to all employees.
There is an exception to this new law. It does not protect employees who have access to wage information of other employees as part of their job function and discloses another employee’s wage information to “individuals not authorized access to the information,” unless the disclosure is in connection with an investigation or action.
Domestic Violence Leave Act Amendments
Senate Bill 492
Effective January 1, 2016, Senate Bill 492 expands the types of paid leave employees may use during domestic violence leave. Employees may now use sick and personal business leave in addition to any vacation or other paid leave. Employers with six or more employees are required to provide reasonable leave to employees or their children who are victims of domestic violence, harassment, sexual assault, or stalking. This law requires employers permit employees to use accrued sick leave, vacation or other available time off to handle matters related to domestic violence.
Public Contracts & Discrimination
Senate Bill 290
Operative January 1, 2016, all public contracts must include a provision requiring a contractor to comply with prohibitions against discrimination in wage payments and compensation. Additionally, contractors may not prohibit employees from discussing wages, salary or other compensation or retaliate against employees who engage in such discussions. This law directs Oregon Department of Administrative Services to establish a program that certifies prospective bidders or proposers understand pay equity provisions of under state law. This law also requires qualifying contract bidders or proposers to certify compliance.
Domestic Worker Rights
Senate Bill 552
Senate Bill 552, effective January 1, 2016, establishes workplace protections for domestic workers and classifies violations as unlawful employment practices. The law defines “domestic worker” as “an individual who works in the home of another person for the purpose of caring for a child, doing housekeeping or providing other domestic service and who is not compensated with public funds for the work performed,” and expressly excluded multiple categories of persons.
The rights granted to domestic workers include overtime pay, time off requirements, food preparation allowance, and paid personal leave. Employers must pay domestic workers 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. Employers must provide domestic workers with 24 consecutive hours of rest per week, and eight consecutive hours of rest per day if living with the employer. The law also requires the employer allow live-in domestic workers to cook their own meals. Employers must provide at least 3 paid personal leave days off to domestic workers who worked an average of at least 30 hours per week during the previous year. An employer may not create an intimidating, hostile, or offensive work environment by harassing the worker, may not request custody of the worker’s passport, and cannot retaliate against workers who assert their rights under the law.
The law requires Oregon Bureau of Labor and Industries (BOLI) promulgate regulations consistent with the new law.
Employers May Still Prohibit Employee Marijuana Use
Measure 91
Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus. (2010)
Though Measure 91 was enacted, establishing the use of recreational marijuana legal in Oregon, under federal law, marijuana use and possession is still illegal. Employers may prohibit recreational marijuana use on or off the job based on federal law. Additionally, Oregon case law provides that employers are not required to accommodate an employee’s use of medical marijuana.
These are just a few examples of how employment law is changing with the New Year. For more information, please contact our Employment Group at (503) 802-5533.
Article Author: Ashley Lathrop
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