Employee Communications: Oregon
Federal law and guidance on this subject should be reviewed together with this section.
Author: Nancy Cooper, Garvey Schubert Barer
- Oregon requires several postings for both small and large employers. See Posting Requirements.
- Oregon recognizes the general rule of employment at-will. See Employment At-Will.
- Oregon courts interpret noncompetition restrictive covenants very narrowly. In order to have a valid noncompete agreement, specific requirements must be met. See Noncompetition Restrictive Covenants.
- Defamation claims under Oregon law are rare, but employers should take certain precautions. See Defamation.
- Oregon law prohibits employee blacklisting. See Blacklisting.
- As a general rule, employees do not have a right to privacy when using employer equipment. See Employee Expectation of Privacy.
- Oregon law prohibits the use of handheld mobile devices while driving, including sending text-based communications. See Use of Mobile Devices.
- Oregon law contains a number of employee protections regarding reporting violations or cooperating in enforcement proceedings. See Testifying and Whistleblower Protections.
In addition to posting required federal information, Oregon employers must post a number of state notices. Employers with more than one work location are required to display the posters at each worksite. Notices must be posted in a conspicuous spot where employees may regularly view them.
Oregon employers who employ fewer than 25 employees must provide the following postings:
- Oregon state minimum wage poster;
- Oregon OSHA poster;
- The federal minimum wage poster;
- "EEO is the Law" poster;
- Federal polygraph protection notice; and
- Federal USERRA (military rights) poster.
Oregon employers who employ 25 or more employees must post all of the above posters as well as information regarding the Oregon Family Leave Act. +ORS § 659A.180. The federal Family Leave Act must also be posted, even though it is not applicable unless the employer has 50 or more employees.
In addition to these posters there may be specific industry posters that are required. These posters may be driven by Oregon OSHA (OR-OSHA) or industry standards.
Agricultural employers need to display the following postings:
- Migrant and Seasonal Agricultural Worker Protection Act poster;
- Field Sanitation Notice;
- "Protect Yourself from Pesticides" poster; and
- Bureau of Labor and Industries (BOLI) Notice to Agricultural Employees.
Employees with one or more employees must post the Job Safety and Health Poster, entitled "It's the Law," which is regulated by OR-OSHA. See also Risk Management - Health, Safety, Security > HR and Workplace Safety : Oregon.
Employers who employ six or more persons in Oregon for each working day during each of 20 or more calendar workweeks in the year must provide to an eligible employee leave to seek assistance due to a domestic violence situation. See Employee Leaves > Other Leaves: Oregon; see also +ORS § 659A.270 et seq. (ORS § 659A.270 to ORS § 659A.285). Covered employers under this law are required to conspicuously post summaries of the law and any implementing rules. Employers may obtain the posting directly from the Bureau of Labor and Industries.
Employers under the Smokefree Workplace Law must post required decals, and may choose to distribute a suggested brochure or flyer. The Oregon Department of Human Services, Health Department regulates these required postings.
Employers who are required to provide workers' compensation information or benefits should display the Workers' Compensation Notice of Compliance. The Department of Consumer and Business Services' Workers' Compensation Division regulates employer compliance.
Certain employers may be required to post an Employment Insurance Notice (Form 11). Oregon's Employment Department regulates employer compliance.
All employers with employees working within the City of Portland have to comply with requirements under Portland's Protected Sick Time Ordinance. See Employee Leaves > Other Leaves: Oregon. Portland employers have notice and posting obligations under the ordinance. Oregon's Bureau of Labor and Industries (BOLI) enforces the ordinance's provisions. The new poster is available from BOLI's website. The poster should be posted in English as well as any other languages used to communicate in the workplace. A template for compliance with employee notification requirements is also available in Spanish from the City's website.
Oregon recognizes the general rule of employment at-will. Generally, this means that unless there is a contract or statute, Oregon employers may discharge an employee at any time and for any reason, or for no reason at all. See Simpson v. Western Graphics Corp., +293 Ore. 96, 99 (1982); Nees v. Hocks, +272 Ore. 210, 216 (1975).
In order to maintain at-will status, employers should reiterate that any policies that are instituted either through practice or through handbooks are merely guidelines and not to be construed as an employment contract.
Employers should use disclaimers. For example, an employer may choose to include the following language in the handbook:
These policies are not to be construed as a contract of employment. We expressly reserve the right to change, add to or delete policies at any time. Changes will be effective on dates determined by the company, and you may not rely on policies that have been superseded. No supervisor or manager other than our Chief Executive Officer has authority to alter the policies, and such changes must be in writing.
Declaring the at-will status and taking the time to make sure it is retained provides the employer greater flexibility in the workplace. However, in an effort to have an effective defense of various types of employment claims, all at-will employers should continue to maintain records showing legitimate business reasons for any important personnel action.
Noncompetition Restrictive Covenants
Oregon law interprets noncompetition agreements fairly narrowly. A noncompetition restrictive covenant is unenforceable in Oregon unless:
- The employee is exempt from minimum wage and overtime as an exempt employee. Specifically, the employee would fit into either the executive, administrative or professional exemption. See Employee Compensation > Employee Classification: Oregon;
- At termination the employee's annual salary and commissions exceed the median family income for a family of four as determined by the US Census Bureau;
- The employer has what is called a protectable interest. This means that the employee will have access to trade secrets or competitively sensitive or confidential business or professional information such as the following:
- Product development plans;
- Product launch plans;
- Marketing strategy; or
- Sales plans;
- The agreement is entered into at the beginning of employment, or bona fide advancement, and the employer has provided written notice to the employee (at least two weeks before employment begins) that a noncompetition agreement will be required; and
- The agreement is not effective for longer than two years from the date of the employee's termination.
There are special exceptions to this requirement for on air talents in the broadcasting industry. +ORS § 653.295(1)(c)(C).
An employer's protectable interests include:
- Trade secrets, but not merely general knowledge that is acquired through training and experience;
- Information or relationships which pertain peculiarly to the employer; or
- Other special circumstances sufficient to justify enforcement of the covenants.
Confidential and valuable proprietary marketing and product information may constitute an agreement protectable under Oregon law. See Nike, Inc. v. McCarthy, +285 F. Supp. 2d 1242, 1246 (D.Or. 2003).
Customer contacts may also be a protectable interest if the contacts enable the employee to gain an unfair advantage in competing with the employer. See North Pacific Lumber Co. v. Moore, +275 Ore. 359, 364-66 (1976).
In Oregon a defamation claim may be sustained if an employee can show that an employer makes a false statement that is communicated to another person, which damages the employee's reputation by exposing the employee to hatred, contempt or ridicule from other people.
A communication is considered defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
Employers may also possess a qualified privilege with respect to certain communications. For example, informal police reports of suspected employee criminal activity, if made in good faith, enjoy a qualified privilege under Oregon law. See DeLong v. Yu Enterprises, +334 Ore. 166 (2002).
In addition, under Oregon statutory law, employers enjoy a qualified privilege when furnishing a job reference to an employee's prospective employer. +ORS § 30.175. In order to proceed with a defamation claim based on a job reference, an employee must show, by the greater weight of the evidence, that the employer acted in bad faith by disclosing information that was:
- Knowingly false;
- Deliberately misleading;
- Rendered with malicious purpose; or
- Violated the employee's civil rights.
+ORS § 30.175(1).
Oregon courts do not recognize claims based on the compelled self-publication doctrine. +ORS § 30.175(2). Employees may not prove publication of defamatory information by communicating it themselves, i.e., as part of a job interview or employment application process.
Oregon law prohibits employee blacklisting. +ORS § 659.805.
Employee Expectation of Privacy
Oregon is a one party consent state. +ORS § 165.543. Employers may not intercept any wire or oral communications unless they are a party to the communication, or one of the parties to the communication has provided prior consent to the interception.
So long as employers in Oregon specifically state in their policies that employees have no expectation of privacy when using employer-provided equipment such as computers, emails, mobile phones or similar equipment, an employee cannot bring a claim for invasion of privacy.
However, public employees may have additional protections in this venue. In addition, Oregon has passed a social media privacy law that prohibits an employer from requiring access to an employee's personal social media accounts. See Employee Management > Employee Privacy: Oregon.
Use of Mobile Devices
Oregon law prohibits the use of handheld mobile devices while driving, including sending text-based communications. Certain exemptions are provided in the law, including for drivers who are emergency responders or public safety personnel. +ORS § 811.507.
Testifying and Whistleblower Protections
Oregon law contains a number of employee protections regarding reporting violations or cooperating in enforcement proceedings. Employers should use caution before restricting certain employee communications, such as the following:
- Testifying, in good faith, at an unemployment compensation hearing. +ORS § 659A.233;
- Reporting violations of a state regulation. +ORS § 659A.230; or
- Testifying before a state legislative body, committee or task force. +ORS § 659A.236.
Oregon Paid Sick Leave
Oregon has passed a paid sick leave law that includes notice requirements for employers. See Other Leaves: Oregon; +2015 Bill Text OR S.B. 454. Specifically, covered employers with 10 or more employees must provide written notice of the law's requirements in accordance with forthcoming rules from the Bureau of Labor and Industries (BOLI). The notice must be provided in the language the employer typically uses to communicate with an employee.
BOLI will make available a template that meets the requirements of this section for use by employers.
In addition to these general notice requirements, an employer must also provide written notification to employees on a quarterly basis of the amount of accrued and unused sick time available for use by the employee.
The law takes effect on January 1, 2016.
Eugene Paid Sick Leave
Eugene, Oregon has passed a paid sick leave ordinance that includes notice posting requirements for employers. See Other Leaves: Oregon. However, the ordinance has been preempted by state law. Although the ordinance was to be effective July 1, 2015, the Eugene City Council moved the implementation date of the paid sick leave provisions to January 1, 2016 and will automatically repeal the ordinance based on the enactment of the state's paid sick leave law.
Duration of Restrictive Covenants
Oregon has amended its restrictive covenants provisions to reduce the enforceable term of a noncompetition agreement from two years to 18 months from the date of the employee's termination. The amendments take effect January 1, 2016 and apply to employment agreements entered on or after that date. +2015 Bill Text OR H.B. 3236.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.