Category Archives: Employment

Big News for Nursing Moms as House Bill 2593 Takes Effect

New Laws Impact Oregon Employers

It’s a new day for Oregon employers… and nursing moms! As of September 29, 2019, House Bill 2593 became effective, calling on every employer to provide nursing mothers with a reasonable (generally unpaid) rest period to express milk.  And those breaks must be provided each time the employee has a need to express milk.

The head of KP’s employment law department, Kurt Barker, recently covered this new law and much more in front of a record-setting crowd for HRACO (Human Resources Association of Central Oregon).

 

Here are two slides from Kurt’s September 18 HRACO legal update about all the new laws rolling in over the next year:

2019 Oregon Legislation Key DatesHRAC Key Notice Requirements

Contact Kurt Barker for more information on these new laws and key 2019 Oregon Legislation dates.

 

Employment law update: DOL salary basis update effective Jan. 1, 2020

The Department of Labor (DOL) just announced that effective January 1, 2020, the minimum salary basis for workers exempt from overtime requirements will be raised from $455 per week to $684 per week (the equivalent of a raise from $23,660 to $35,568 per year for a full-year worker).  This means some 1.3 million American workers will become eligible for overtime pay, if not given a raise above the new minimum.

See the DOL Press Release here, and more info about the new rule (including links to the rule itself, FAQs, etc.) here

Kurt Barker and Ben Eckstein are presenting “Conducting Effective Employee Investigations”

KP employment attorneys Kurt Barker and Ben Eckstein are presenting “Conducting Effective Employee Investigations” to a group of Central Oregon medical practice managers today.  This is a popular topic in the #MeToo era – Kurt presented the same training, and also spoke on managing employee marijuana use, before Willamette-Valley area SHRM Chapters this month.

Oregon Legislature’s 2018 Session: What Employers Need to Know

Oregon’s 79th Legislative Assembly wrapped up its 2018 session early, on March 3 (before the Constitutionally-required sine die on March 11).  The session produced few laws that will have a direct impact on employers, managers or human resource professionals.  Here are the few that made the transition into law:

 

HB 4154:  Makes contractor liable for unpaid wages, including benefit payments or contributions, of employee of subcontractor at any tier. Permits a joint labor management committee and certain third parties to bring action on behalf of wage claimant against contractor.  PASSED in amended form

 

SB 1559:  Directs state agencies to establish procedure for employees to anonymously disclose certain information.  Expands reporting channels and protection for whistleblowing by public employees.  PASSED in amended form.

 

It also could be of interest that some gun-related legislation was passed, and signed on March 5 by Governor Kate Brown.  That new law expands the prohibition of gun ownership to include people convicted of domestic violence against non-married intimate partners (closing the so-called “boyfriend loophole”), and blocks people convicted of misdemeanor stalking from owning a gun.

 

Thanks for staying tuned.  Watch for more posts from our employment law team!

 

Kurt Barker, Jon Napier and Ben Eckstein

KP Employment Department: Monitoring of 2018 Legislative Session

The Oregon Legislature is now halfway through its 2018 session.  This even-year session may be a short one, but its agenda is jam-packed with bills that could impact employers across the state.

 

Topping most news reports is HJR 203, a bill that would amend the Oregon Constitution by declaring health care is a “fundamental right.”  The bill does not specifically target employers, but critics have emphasized that its financial impacts and funding sources are unclear.  It passed in the House last week, and is headed for a work session in the Senate later this month.  If approved by the Senate, it will appear on the Nov. 2018 ballot.

 

Here are some other bills under consideration that will impact Oregon employers:

 

  • HB 4160:  Creates family and medical leave insurance program to provide employee who is eligible for coverage with portion of wages while employee is on family medical leave or military leave. The program is funded by equal contributions by employees and employers not to exceed .5% of an employee’s wages, and would allow employees to take up to 12 weeks of leave per year for specified reasons.

 

  • HB 4154:  Makes contractor liable for unpaid wages, including benefit payments or contributions, of employee of subcontractor at any tier. Permits a joint labor management committee and certain third parties to bring action on behalf of wage claimant against contractor.

 

  • HB 4105:  Imposes penalty on employers with 50+ employees that offer health insurance coverage to employees but have employees working at least 30 hours/week who receive benefits of medical assistance program. Prohibits retaliation against an employee for participating in medical assistance program.

 

  • HB 4021:  Allows certain employers to permit employees to work more than 60 hours in one workweek to cover for employee absences. (This bill relates primarily to mill, factory, and other manufacturing establishments, and their particular limits on employee hours.)

 

  • SB 1559:  Directs state agencies to establish procedure for employees to anonymously disclose certain information. Expands reporting channels and protection for whistleblowing by public employees.  (More news coverage is here.)

 

  • SB 1524:  Prohibits union security agreements between public employer and union. Allows public employees to opt out of union membership and bargain employment terms and conditions separate from collective bargaining agreement.

 

Karnopp Petersen’s employment law team will report more after the session wraps in mid-March.  Stay tuned to see if any of these bills become law!

 

Kurt Barker, Ben Eckstein

Employment Law Update Seminar – December 9, 2014

2014 brought a host of employment law changes from courts, lawmakers and other sources… and for business owners, managers and human resource (HR) professionals, it’s critical to stay up-to-date. Join Karnopp Petersen attorneys Kurt Barker, Jon Napier and Adam Adkin and learn about the following:

*Measure 91 and your Drug-Free Workplace policies: do you need to revise your policy in light of this new law, and the “legalization” of marijuana in Oregon? What issues should Oregon employers be considering right now? (Click here for a preview, through Kurt’s latest blog post.)

*Leave as a “reasonable accommodation” under the ADA and Oregon disability law: what’s the latest news?

*Social media: twists and turns with “concerted activity” protections, Oregon’s new restrictions on employer involvement in personal accounts and more.

Come for some lively analysis of this year’s legal changes and how they affect employers. We look forward to seeing you at our seminar!

Tuesday, December 9, 2014
7:30 am – 9:00 am
$15.00* (includes Tate and Tate breakfast)

Space is limited! Click here to register.

*service fees apply

Measure 91 Passed – Is My Drug-Free Workplace Policy Up In Smoke?

Plenty of employers seem “dazed and confused” after the recent vote to legalize marijuana. In light of Measure 91 passing, what are some issues for private-sector Oregon employers to consider?

First, a few key parts about this new law: it doesn’t take effect until July 1, 2015. Yes, it legalizes the possession and use of marijuana for adults 21 and older, with limitations. But it does not mean marijuana must be “accommodated” or tolerated by employers. In fact, the new law specifically says it is not to be construed to “amend or affect in any way any state or federal law pertaining to employment matters.” (See Ore. Measure 91, Sec. 4(1), or call your lawyer for details.)

Another perspective to keep in mind: most employers can benefit from a drug/alcohol testing policy. Why not reserve the right to test if, say, an employee shows up on the job with alcohol on his/her breath and slurred speech? Nothing about this new law changes the fact that drug testing (including options such as reasonable suspicion, pre-employment, periodic and/or random drug testing) can help save many employers from headaches and performance problems, and even help reduce or avoid accident-related liability, too. Savvy employers work with employment law counsel to craft the policy/approach that’s best suited for their particular workplace, and to give their employees plenty of notice before implementing changes to their policies.

Now (not next summer!) is the time to address your policy in light of the new law. Here are some thoughts to help start that conversation.

Do I need to change my “no tolerance” drug/alcohol policy, in light of Measure 91? No, but it may help to clarify your policy, and to send a message to your employees.

Oregon employers still have the right to enforce their drug testing policies: Oregon law on pot may be changing, but it doesn’t mean you have to tolerate its use as an employer. Many employers’ policies, however, could probably use a tune-up in light of this new law. Common problems include, for example, broad references to “illegal” drugs. If you want to keep screening for marijuana use or intoxication, it could help to clarify in your policy that marijuana is included in your drug testing/screening processes. Consider a documented (email or other) reminder to your employees on this subject, too, confirming that you understand pot is still illegal under federal law and that your policy is still in effect. These proactive steps can help manage employee expectations and erode any argument that “you invaded my privacy!” by simply implementing your drug testing policy.

Should we “lighten up” about marijuana—i.e., should we stop drug testing? Probably not. If you had good reasons for drug testing in the first place (workplace safety/health, etc.), we doubt that this new law somehow takes those reasons away.

If you were to stop any drug testing that could reveal off-duty marijuana use, that could be a morale boost in some workplaces. But employers considering being more relaxed about marijuana should consider a host of accompanying downsides to that approach. For example, if you start ignoring positive marijuana tests (or stop any drug testing at all), how might that impact the company if an industrial or other accident occurs? A plaintiff’s attorney could make a decision to “turn a blind eye” sound like a reckless approach to workplace safety, for starters. Finally, if you’re still considering being more flexible on this issue, consider testing options designed to catch only more recent or current marijuana use—and talk to your lawyer first.

What if my employee has a medical marijuana card? Or put another way, do you—as an Oregon employer—have to “accommodate” medical marijuana? No, likely not.

For background, both the federal Americans with Disabilities Act (applies to those with 15 or more employees) and Oregon Disability Law (applies to those with just 6 or more employees) require employers to make reasonable accommodations for qualified individuals with disabilities, so long as it’s not an undue hardship or “direct threat” to employee safety. Both laws have been greatly expanded in recent years, too. Many more employees are now covered as “disabled.” But the Oregon Supreme Court has confirmed that employers are not required to accommodate use of medical marijuana. (See its 2013 decision, Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries. Washington employers have a similar decision from their state’s court, too.) That decision should still apply, unless/until the Court decides to revisit the issue.

Of course, some employers have considered making exceptions for medical marijuana use. As with any exception, be mindful of safety/business risks and the possibility of exposure to claims for discrimination. Consistency is key: if you’re granting the exception for some but not all employees, that can create an opportunity for an employee to argue they were treated poorly based on a discriminatory motive. And even if an exception is allowed, don’t forget the other (non-Oregon) drug testing regulations that could apply. For example, companies with federal contracts that meet certain criteria are subject to the Drug Free Workplace Act; and companies operating under the Department of Transportation must follow detailed drug testing criteria.

Bottom line: consider consulting with legal counsel to evaluate (and, if needed, update) your drug-free workplace policies and procedures, and to craft a message to employees, now, to stay ahead of this issue.

Oregon Employers: Shine a Light on Protections for Gender Identity/Gender Expression

You may already know that Oregon law prohibits discrimination or harassment based on an employee’s sexual orientation. This law applies to Oregon’s smallest businesses, including those with just one or more employee. It’s high time, however, to raise awareness about some related legal protections—specifically, gender identity and gender expression. Not only are those classes protected in Oregon, but we think this needs to be on the forefront of employers minds. Read on to learn why, and for action items and more.

Who exactly is protected? First of all, let’s make sure we’re speaking the same language. “Sexual orientation” typically refers to which gender a person is romantically/emotionally/sexually interested in. Oregon law defines that term broadly, to include “actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity” and more. But other key terms surrounding these legal protections are still sometimes misunderstood.

Similar to Nevada, Hawaii, New Jersey and other states, Oregon law says gender expression and gender identity are legally-protected classes, too (or at least included in the class of “sexual orientation” protection). And Oregon provides expansive definitions of those classes:

  • “Gender expression” means the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.
  • “Gender identity” means an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.

See OAR 839-005-0003. That means Oregon’s legal protections extend to include people who: are born as a man, but want to present a more feminine appearance (or vice-versa); are undergoing sex reassignment surgery; identify themselves as “transgender;” and more.

What’s prohibited… or required? Discrimination (termination, demotion, refusal to hire, etc.) and harassment based on these broadly-defined categories is prohibited by law. Our laws prohibit retaliation against those who report concerns about discrimination/harassment, too.

There are duties to accommodate disabilities, religious practices… what about a duty to “accommodate” here? Failure to make some accommodations based on gender expression/identity could be illegal. For example, enforcing an “otherwise valid dress code or policy” is allowed, but only if the employer provides “on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.” Further, this dress code exception does “not excuse a failure to provide reasonable and appropriate accommodations permitting all persons access to restrooms consistent with their expressed gender.” (OAR 839-005-0031.) We think this and other laws call for dress codes to be as gender-neutral as possible. For example, calling for “professional attire” would likely pass legal muster, if enforced consistently as to all. Insisting that “men wear suits, women wear skirts/makeup” would not.

Why it’s a top priority concern for Oregon employers: The enforcement activity in this area speaks for itself. For starters, the Equal Employment Opportunity Commission (“EEOC”) has identified the protection of “lesbian, gay, bisexual and transgender individuals,” to the extent it can under existing federal law, as a “priority” area for enforcement. (Click here for the EEOC’s most recent Strategic Plan.) And it’s already acting on that priority.

As for just a few examples: the EEOC went after Rapid City Market for terminating a well-performing employee (who had recently been promoted), after she indicated her intent to present as a woman. The EEOC’s conciliation agreement included a $50,000 settlement check to the employee, required trainings and more. And in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC announced its opinion that “gender identity, change of sex, and/or transgender status” is protected under federal Title VII (as opposed to just Oregon law). The Bureau offered a job to an applicant, who initially presented as a man. While her background check was being conducted, Macy notified the Agency that she was in the process of transitioning to being female. The job offer then disappeared, another person was hired, and the EEOC case followed.

Even here in Central Oregon, we’ve seen disputes where the evidence involves comments that can be seen as blatantly discriminatory: for example, “we can’t have that around the customers” (where “that” meant a person’s expression of their gender identity). Ignorance of these protections/issues make all the more reason to spread the word, and make sure your managers know about Oregon’s broad protections.

Action items for Oregon employers include the following:

  1. Check your policies. Do they expressly prohibit discrimination/harassment based on sexual orientation? What about gender identity/expression, or transgender status?
  2. Train your managers, and make sure they know this protection exists. Live, interactive trainings (especially with your local, friendly employment attorneys—sorry, couldn’t resist) are best. But why not at least mention it at your next management meeting? Or circulate this blog article to your management team, as a reminder?
  3. Don’t turn a blind eye, or run from an issue. If someone complains they’ve been mistreated based on one of these newer protected classes, get some good advice and investigate as quickly as possible. Employers who fail to have an appropriate conversation and work with employees on restroom access issues, where an employee’s gender expression/identity is involved, could easily become the next target for the EEOC, Oregon’s Bureau of Labor and Industries or a plaintiff’s lawyer.

Employment Legislation Update

The Oregon Legislature recently completed a short (even-numbered year) session, passing just two bills that may impact employers.

House Bill 4010 authorizes Oregon’s Employment Department to make public all decisions of the Employment Appeals Board. As you may know, the Employment Appeals Board hears appeals from decisions that are made by the Employment Department—such as appeals concerning claims for unemployment benefits. The Employment Department had previously directed the Appeals Board to refrain from publishing decisions, due to concerns relating to confidentiality. Following House Bill 4010, we expect to see more published decisions. That increased access will mean more guidance for employers (and employees, for that matter) on, say, what their chances for appeal might be and whether they might wish to invest their time and resources in pursuing the appellate process. On the flip side, it may also mean some unwanted publicity: names / circumstances in particular employee terminations may become published, if they are involved in a decision before the Appeals Board.

Senate Bill 1558 affects self-insured employer groups as relates to worker’s compensation claims. The Bill provides that, if a self-insured employer group is decertified before September 15, 2014, then the Director of the Department of Consumer and Business Services is permitted to provide money to injured workers who have not received the compensation that they are due because the claims funds and securities have been exhausted. The Bill also permits the Department of Consumer and Business services to set standards that self-insured employers will be required to meet to prove that they are financially viable.

President Obama Signs Memorandum to Expand Eligibility for Overtime Pay

On March 13, 2014, President Obama signed a presidential memorandum directing the Department of Labor (DOL) to propose revisions to the Fair Labor Standards Act (29 USC 201 et seq.).  The revisions are to “update” and “modernize” existing regulations relating to white collar exemptions from overtime pay—and are expected to greatly expand the universe of employees who qualify for overtime. 

Current overtime rules (which require paying time-and-a-half for hours worked in excess of 40 hours/week) create exemptions for salaried workers in executive, administrative, and professional positions who earn more than $455/week – commonly referred to as “white collar” workers.  The President’s memorandum calls the existing white collar exemptions “outdated,” and says as a result, “millions of Americans lack the protections of overtime and even the right to minimum wage.”  The memorandum does not specify what the new regulations should include or what any new salary threshold should be. 

It’ll take some time!  Proposed rules are not expected until later this year, or perhaps the beginning of next year.  And new rules from the DOL will involve delays from a public comment period, and more. 

Will this matter in Oregon?  You bet.  We have our own state rules for “white collar” exemptions that are similar to the current federal rules, and those may remain unchanged under state law.  But the general rule when juggling state vs. federal wage and hour laws is “follow the wage and hour rule that’s most favorable to the employee.”  We expect these federal changes to be a game-changer for employers, so stay tuned for more.