As 2007 comes to a close, the Oregon legislature has been very busy. There are no fewer than 10 legislative updates that directly effect employers. Many of these new laws are already in effect. Read on to learn which of these new laws affect you, your company and your employees. (Thank you to our partners at Bullard Smith Jernstedt & Wilson for sharing their Employment Law Briefing on Legislative Updates for 2008.)
- Domestic Violence Leave – This law is reported to affect more than 37,000 employers in Oregon. Employers with 6+ employees must permit eligible employees to take reasonable unpaid leave to obtain services or treatment relating to domestic violence, sexual assault, or stalking for the employee or his/her minor child or dependent. Allows employers to limit the amount of leave taken to the extent it causes an undue hardship to the business (“significant difficulty”). Also permits eligible employees to use accrued vacation or other paid time off during the leave. Employees are eligible for this leave if they have worked an average of 25 hrs. per week for a 180 day period immediately before taking the leave (Effective Date: May 25, 2007).
- OFLA (Oregon Family Medical Leave Act) – Eligible employees may now take OFLA protected leave for their “grandparent” or “grandchild’s” qualifying serious health condition (expanded definition of a family member to include grandparents and grandchildren).
- Nursing Mothers Accommodation – Mandates employers with 25+ employees to provide unpaid rest periods for employees to express milk if no undue hardship is caused. Private location must be provided, not an open are in a public restroom or toilet stall, but may be a lounge. Eligible employees are entitled to a 30 minute rest break for every 4 hours of work. Employee may be allowed to temporarily change job duties, if regular duties do not allow her to express milk regularly.
- Personnel Records Inspection – Requires that employers present personnel records for inspection (or a certified copy if requested) to an employee (or terminated employee) within 45 days of the request.
- Wage Underpayments – Undisputed wage underpayments of 5% or more of an employee’s gross wages need to be corrected within three days from when an employer realizes that an employee has been underpaid, excluding Saturdays, Sundays and holidays. Underpayment of less than 5% of the employee’s gross wages may be paid anytime up until or included in the employee’s next regular paycheck.
- OFLA Cannot Run Concurrently with Workers’ Compensation Absences – Prevents an employer from running OFLA leave concurrently when an employee’s absence is due to an on the job workers’ compensation injury (unless the injured worker refuses light duty work). Federal FMLA may still run concurrently with a workers’ compensation leave, meaning employees may still be entitled to an additional 12 weeks of OFLA.
- Employee’s Right to Use Paid Sick Leave for any OFLA Protected Absences – Allows eligible employees to use any accrued paid sick leave they may have while on OFLA leave, even if the employer’s policy would not otherwise allow it, but employer may still determine the order of leave used.
- Safety Committees/Meetings – Requires all public or private employers to establish and administer a safety committee or hold safety meetings. Supercedes the previous requirement that only applied to employers with 10 or more employees.
- Non-Compete, Non-Solicitation and Arbitration Agreements – Imposes several new limitations on “non-compete” agreements in Oregon. Expands time when “non-solicitation” agreements may be signed by employees. New employees must be informed that an arbitration agreement is required in a written employment offer two weeks in advance of the employee’s first day of employment in order to be valid under Oregon law. Key provisions of the new non-compete restrictions for employees hired on or after 1/1/08 include:
- “Non-exempt” employees (primarily hourly and non-supervisory) cannot be subject to non-compete agreements;
- An employer must inform a potential employee in writing about a non-compete agreement at least two weeks before the first day of work;
- A non-compete agreement is unenforceable unless the employer has a “protectable” interest, such as access to trade secrets;
- A non-compete agreement cannot be enforced against an employee whose total gross salary is less than that of the median income of a family of four in Oregon (currently about $61,000 a year); and
- A non-compete agreement cannot last longer than two years.
- The Oregon Equality Act adds sexual orientation to the list of protected classes under Oregon’s anti-discrimination laws. Consistent with the new law, the proposed rules add “sexual orientation” to the list of statutorily protected classes, joining race, color, religion, national origin, marital status, age and disability. Sexual orientation is broadly defined to include an “individual’s actual or perceived heterosexuality, bisexuality homosexuality, gender identity, or gender expression, whether or not that individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.”
The proposed rules also define gender (an individual’s assigned sex at birth, gender identity, or gender expression), gender identity (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), and gender expression (the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth). Employers must permit access to restrooms consistent with the expressed gender of the person using the restroom.
There are some limited exceptions to the statute’s protections. Employers are not prohibited from enforcing an otherwise valid dress code or policy, as long as 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. In addition, churches and other religious institutions may generally take actions consistent with their bona fide religious belief about sexual orientation when the employment position involved is directly related to the operation of the church; the employment position is in a non-profit religious school, camp, day-care center, thrift store, bookstore, radio station or shelter operated by a religious institution; and other employment positions that are closely connected with or related to the primary purpose of the church/institution and are not connected with a commercial or business activity that has no necessary relationship to the church or institution.
The proposed regulations also provide that employers who provide medical coverage must include pregnancy benefits for domestic partners.)