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Employment News

November 16, 2015
The following is a summary of important changes made to state employment laws during the 2015 Oregon and Washington legislative sessions. All the laws become effective January 1, 2016 except for Seattle's minimum wage, which became law in April 2015.

This newsletter includes only brief summaries prepared by FWW employment law attorneys Kelly Tilden and Trish Walsh and law clerk Max Forer. 

Please contact Kelly Tilden or Trish Walsh if you would like us to review your current policies for compliance.

In This Issue:
SickOregon Paid Sick Leave

Effective January 1, 2016, Oregon will join a small but growing number of states who require paid sick leave. In general, private employers in Oregon who employ 10 or more employees (and 6 or more in Portland) are required to provide paid sick leave to all employees: temporary, part-time, full time. Further, employers with less than 10 employees (and less than 6 in Portland) must provide unpaid sick leave in accord with the statute.

While many employers already offer paid time off for illness, the law has a number of specific requirements that require attention and many practices and policies will need to be updated. Below are a few:

Accrual: Employees must earn 1 hour for every 30 hours worked, up to 40 hours of sick leave (or 1-1/3 hour for every 40 hours worked) in a year. Employers can allow the accrual and use of more paid sick leave. If an employer has the paid sick leave accrue over the year, it must allow employees to carryover up to 40 unused paid sick leave hours to allow for potential leave early in the next year. Employers may also choose instead to front load the full amount of paid sick leave to avoid the accrual calculations and can then prohibit the carryover of hours.

Purpose: Employees may take paid sick leave for the employee's own illness, injury, or preventative medical care. In addition, the employee can take leave for the same reasons for a family member. Family member is broadly defined as: spouse, child, parents, parent-in-law, grandparent, grandchildren, and same sex domestic partner. In addition, an employee may take sick leave for a public health emergency which may close a school or place of work, to take certain steps to deal with domestic violence or sexual assault, death of a family member, and any OFLA leave. 

No Retaliation: Employers cannot retaliate against an employee who makes a legitimate sick leave request. An employer can only seek medical verification of the need for sick leave if the employee takes more than 3 consecutively scheduled days of leave. Employers must pay for any out of pocket costs associated with the medical verification 

Enforcement of Legal Claims: The Bureau of Labor and Industry (BOLI) will receive and investigate complaints of noncompliance and issue fines. Further, an employee can file a lawsuit to seek reinstatement with or without back pay of up to two years and attorney fees. 

Even though you may already offer substantial paid leave, your policies and practices are likely not in compliance with this new law. Review your policy and contact us to help ensure compliance. BOLI will publish rules to further advise employers on this new law and we will keep you posted.  


DisciplinaryNew Oregon Law Prohibiting Disciplinary Actions Based on Wage Discussion

As most employers know, the National Labor Relations Act provides both unionized and non-unionized employees with the right to engage in concerted activities, including the right to discuss the terms and conditions of their employment without fear of reprisal.  However, effective January 1, 2016, it will also be a violation of Oregon law for an employer to discipline, or retaliate against, an employee for inquiring about, discussing, or disclosing wage information. 

This restriction applies whether the wage information is about the employee herself or another employee. Nevertheless, the law does include an exception for employees who are privy to wage information as part of their job and who make unauthorized disclosures of other employees' wage information, subject to certain limitations. Training managers on these protections can help avoid an unlawful termination. (HB 2007)



OFLANew OFLA Health Insurance Continuation Requirements
 
Effective January 1, 2016, Oregon employees are entitled to continuation of employer-provided group health insurance during a full period of family leave under the Oregon Family Leave Act ("OFLA") on the same terms as if the employee had continued to work. This statute aligns with the federal act, which also requires the confirmation of health insurance during FMLA leave. In addition, if family member coverage is provided to the employee, the family member coverage must also be maintained during the period of family leave. The employee must continue to make any regular contributions to the cost of the health insurance premiums. (HB 2600)


boxOregon's New Ban the Box Law

Effective January 1, 2016, Oregon joins numerous other states in prohibiting employers from inquiring into or considering an applicant's conviction history on an application form prior to a job interview or, if no interview is conducted, prior to conditional offer of employment.  Nevertheless, so long as the employer does not exclude an applicant from an initial interview solely because of a past criminal conviction, employers may consider an applicant's conviction history when making a hiring decision.  

This law does not apply if federal, state or local law, including any applicable rule or regulation, requires the consideration of an applicant's criminal history. Employers should develop best practices on handling criminal convictions to avoid discrimination claims or violations of this statute. (HB 3025)



Under a newly revised Oregon law further limiting noncompetition agreements, any noncompetition agreements entered into on or after January 1, 2016, may be enforced only up to 18 months after the employee's termination. (Current law provides enforcement for up to two years after termination.)  The remainder of a term of a noncompetition agreement in excess of 18 months is voidable and may not be enforced by an Oregon court. (HB 3236)


SocialmediaNew Restrictions on Oregon Employers Regarding Employee Social Media Accounts

Effective January 1, 2016, employers may not require employees or job applicants to establish or maintain personal social media accounts.  Employers also may not require employees or job applicants to authorize the employer to advertise on the employee/applicant's personal social media account.  Personal social media accounts are defined in the new law to include social media accounts that are used by an employee or applicant for personal purposes unrelated to the employer's business purpose and that are not provided or paid for by the employer. (SB 185)


TacomasickNew Mandated Paid Sick Leave for Employees in Tacoma

Effective February 1, 2016, Tacoma employees working 80+ hours per year within the geographical bounds of the city of Tacoma are eligible for paid sick leave, regardless of the location of the employer.

Per the ordinance, employees immediately upon hire accrue 1 hour of paid leave for every 40 hours worked. The employee can begin to use his/her accrued leave 180 days after the employee's hire date as of February 1, 2016. Further, the employee can carry over 24 hours of paid leave to the following calendar year.



SeattleSeattle's Minimum Wage Increase

Seattle's minimum wage ordinance took effect April 1, 2015, requiring large businesses with over 500 employees to pay workers wages of at least $11 per hour. Smaller businesses with 500 or fewer employees must pay either a flat hourly wage of $11, or a wage of $10 per hour with an additional $1 per hour in compensation comprised of tips or payments made to a qualifying medical-benefits plan. 

Effective every January 1 over the next three to seven years, the minimum wage will rise under a phased-in approach so that employee wages increase incrementally until the $15 per hour minimum is met by all employers. Once the $15 minimum is attained, wages will adjust with inflation.

All employers with employees working within the Seattle city limits are subject to the ordinance. If an employee works in Seattle on an occasional basis, the employee is owed the Seattle minimum wage during any two-week period in which he/she performs more than two hours of work in Seattle.



AttorneysFarleigh Wada Witt Employment Team

Kelly Tilden
Kelly Tilden focuses her practice in the areas of employment law, business, and litigation. She advises clients regarding the hiring, discipline and termination of employees, compliance with state and federal civil rights, wage and hour laws, and leave laws. Kelly offers practical guidance and experienced-based insight to help employers confidently apply state and federal regulations.
Kim McGair
Kim McGair's practice emphasizes a wide range of litigation matters including employment, commercial litigation, commercial collections, personal injury defense, and real estate litigation. She is an advocate for her clients and provides them with sensible advice and strong representation to protect their interests and help them achieve their objectives as efficiently as possible.
Paul Migchelbrink
Paul Migchelbrink maintains a diverse business practice advising clients on corporate and general business matters, mergers and acquisitions, real estate, intellectual property, commercial finance, and lending.  He has extensive experience with executive compensation issues, including employment contracts, non-competition and confidentiality agreements.
Trish Walsh
Trish Walsh focuses her practice in the areas of litigation and employment law, protecting clients' interests inside and outside the courtroom. In her employment practice, Trish drafts, audits and updates policy handbooks and provides advice on employment issues under Oregon, Washington and federal laws.

Melissa Beyer practices in a variety of areas including commercial litigation, employment litigation, trust and estate administration, and estate planning. In her employment practice, she advises employers on a wide range of employment issues and litigation, including wrongful termination, retaliation, sexual harassment, wage and hour, and defamation claims.

We are happy to welcome Max Forer to our employment team and as a contributor to our newsletters. As a law clerk for Farleigh Wada Witt, Max conducts legislative history research, drafts memoranda and analyzes legal issues across multiple jurisdictions.

Copyright  2015 Farleigh Wada Witt. All Rights Reserved.

 

The contents of this publication are intended for general information only and should not be construed as legal advice or opinion on specific facts and circumstances.

 

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