The Portland City Council is considering a paid sick leave requirement for businesses with six or more employees.  Under the proposed ordinance, employees would earn one hour of sick leave for every 30 hours worked - up to 40 hours per calendar year.  The leave would be unpaid at employers with five or fewer employees.  Employees would have the right to use the sick leave when they or a close family member or domestic partner are sick, injured or in need of medical care.  The proposed ordinance would go into effect on January 1, 2014.   

The City Council's first official hearing on the ordinance is January 31 at 2 pm.  After the hearing, a task force will consider modifications to the proposed ordinance.  Council members will vote on the ordinance in late February.     

Washington voters approved Initiative 502 last November which legalized the recreational use of marijuana for individuals over 21. While the new state law decriminalizes the use and possession of small amounts of marijuana for adults, marijuana use and possession remains illegal under federal law. In addition, the new state law does not affect an employer's ability to restrict the use of marijuana in the workplace. Employers may still enforce zero-tolerance policies and drug testing policies currently in place. Washington employers are not required to accommodate the medical or recreational use of marijuana (regardless of whether the use is outside the workplace and regardless of whether the use creates a workplace safety hazard). In addition, employers are not required to engage in the interactive process to evaluate potential accommodations under the Americans with Disabilities Act (ADA) if the employee claims to be using marijuana for medical purposes.

Washington employers should update their polices to ensure that marijuana use is prohibited, as is the use of any controlled substance. Such policies should always be applied in a consistent and nondiscriminatory manner.

Although the recreational use of marijuana remains illegal under Oregon law, Oregon employers are also not required to accommodate an employee's use of medical marijuana or engage in the interactive process.

Heard on the Helpline:   

Spanish Version of Form I-9  

Can employers use the Spanish version of the I-9 form instead of the English version for Spanish-speaking employees? No; employers may use the Spanish version as a translation guide for Spanish-speaking employees, but the English version of the I-9 form must be completed and retained for the employer's records.

The new year brought changes to the Fair Credit Reporting Act (FCRA), which governs employers' use of third-party background checks. Enforcement of FCRA has shifted from the Federal Trade Commission (FTC) to the newly-created Consumer Financial Protection Bureau (CFPB). The CFPB has subsequently issued regulations that modify the required FCRA notices.

FCRA's key notice for employers, the Summary of Consumer Rights, has been revised to comply with the new regulations. Employers are required to provide the Summary of Consumer Rights before obtaining a third-party background check, which is considered an investigative consumer report under the law. The notice is typically given along with a copy of the report, as part of the adverse action process. The new notice, which directs consumers to the CFPB rather than the FTC, should be used beginning January 1, 2013.  

IRS Extends Amnesty Program for Settling Worker Classification Issues

The IRS has expanded the eligibility requirements for its Voluntary Classification Settlement Program (VCSP). The program, launched in September 2011, allows employers to voluntarily reclassify independent contractors as employees and pay significantly reduced back employment taxes and no penalties or interest. If the IRS audits an employer and finds it should have been treating independent contractors as employees, the employer can be liable for all of the federal income and employment taxes it should have withheld and paid for those workers - plus interest and penalties.

The tests to determine whether an individual is an independent contractor or employee are complicated and a number of factors must be considered. Please contact us if you'd like to discuss a classification matter.