Oregon Employer Alert: Barran Liebman Offers Insights on Recent Legal Developments

Author: Melissa Burdorf, XpertHR Legal Editor

September 23, 2013

With the creation of many new laws, Oregon lawmakers are presenting various unique challenges for HR and employers this year. Amy Angel and Samuel Hernandez, members of the labor and employment law firm Barran Liebman LLP, shared their legal and professional insights with XpertHR into the recent changes in workplace law, and other key developments affecting Oregon employers.

What is the biggest challenge facing HR in Oregon today?

According to Angel and Hernandez, one of the biggest challenges for employers is managing an employee's unpredictable intermittent leave under the Oregon Family Leave Act (OFLA). It is one thing to arrange for an employee to be on leave for a block of time or to even accommodate a reduced schedule on a consistent basis, but it is extremely challenging for employers to maintain business operations when an employee frequently needs leave on an unexpected basis and for an unknown duration. It would be helpful if OFLA provided employers more leeway to ensure smooth business operations while accommodating unforeseeable intermittent leave.

Have there been any notable new Oregon laws or high court rulings in the last nine months that will have a big impact on the workplace?

Both Angel and Hernandez noted that Oregon's legislature was very busy this year, passing numerous laws and amending several others, at both the state and local levels, that have changed the state's employment landscape. For example, effective January 1, 2014, Oregon employers must comply with all of the following laws:

• Bereavement Leave - Oregon has become the first state to require employers covered under the OFLA to provide eligible employees with bereavement leave. Under OFLA, an eligible employee will be able to request an unpaid leave for up to two weeks per death of a family member. Most employers already provide for one or two days to allow an employee to attend the funeral of a family member, but this law makes it a requirement and provides for a longer period of time.
• Domestic Violence Leave - Oregon employers with six or more employees must provide eligible employees with an unpaid leave of absence to seek assistance due to a domestic violence situation. The legislature amended this leave law by relaxing the eligibility requirements and adding a posting requirement (i.e., employers must post a summary of the laws related to domestic violence in a conspicuous and accessible place).
• Direct Deposit - Oregon employers will be able to implement payment of wages to employees through direct deposit, at the employer's discretion, and without the employee's consent. Prior to this change, employers can pay wages using direct deposit, but only with the express consent of employees.
• Minimum Wage - Oregon's minimum wage will rise to $9.10 in 2014, making it one of the highest in the nation (nearly two dollars higher than the federal minimum wage of $7.25 per hour).
• Social Media - Employers will not be able to require employees or applicants to disclose or provide access to their personal social media accounts, or require employees or applicants to add them to their accounts.

Already effective, as of April 4, 2013:

• Veterans Day Leave - Oregon employers must give eligible employees Veterans Day off from work. The employee must request the day off with at least 21 days advance notice. If the employer is not able to provide the day off, a different day may be taken.

The state courts were also busy. In June 2013, the Oregon District Court invalidated a Department of Labor (DOL) regulation that prohibited employers from collecting and redistributing employee tips among all employees, including non-tipped employees (tip pooling). Oregon Restaurant Lodging Association, et al. v. Solis, et al., 2013 U.S. Dist. LEXIS 80396 (D. Or. June 7, 2013). This decision is particularly relevant in Oregon because the state permits employers to have tip pooling policies. The decision clarifies years of confusion as to when and how tip pooling can be utilized.

In another recent case, Cocchiara v. Lithia Motors, Inc., 353 Ore. 282 (Or. 2013), the Oregon Supreme Court held that where an employer makes a promise of employment, the employer may be held liable where the prospective employee relies on that promise to his or her detriment. This decision is important because it adds another shade of grey to the general rule of at-will employment. Now, employers need to think twice before they withdraw an offer of employment from a prospective employee.

At the local level, the city of Portland has joined ranks with other cities around the country like Seattle, San Francisco and Washington D.C., requiring employers to provide mandatory sick leave to eligible employees working in Portland. Portland Sick Leave, which will go into effect January 1st, requires employers to provide up to 40 hours of paid or unpaid sick leave, depending on the number of workers employed. The leave will be a challenge both for employers that previously did not offer sick leave and for those that need to bring existing policies, which may be more generous than the leave required by the City, into compliance.

Are there any bills and/or proposed rules currently pending in Oregon (or in Congress) likely to pass that would have a big effect on HR?

Because Oregon's legislative session ended earlier this year, there are no additional bills pending. However, the Oregon legislature is still expected to explore, in future legislative sessions, a mandatory statewide sick leave requirement.

Are there any employment and labor enforcement trends to watch in Oregon?

The new Portland Sick Leave law is a complex web of calculations and time tracking requirements. Portland area employers and employers that have employees working in Portland will be required to comply with the new law. As with many other forms of leave, this leave will likely lead to frustration and enforcement issues in years to come.

According to Angel and Hernandez, Oregon employers should expect an increase in lawsuits and enforcement actions related to leave law compliance both at the agency level and in the courts; particularly, given the number of leave-related legislative laws added and changed this session.

What is the number one mistake Oregon employers are making?

Angel and Hernandez find that Oregon employers continue to make innocent mistakes because they are unaware of the ever-changing legal requirements. Consequently, Angel and Hernandez see many opportunities to avoid lawsuits and claims. For example, many mistakes relate to record generation and retention, e.g., employers not conducting employee reviews, documenting reprimands or corrective actions, and not retaining those documents in the employee's file. Additionally, there are issues with keeping policies updated to comply with current laws, EEOC guidance and the like. Although not all litigation is avoidable, Angel and Hernandez believe that if employers made a quick call to their preferred labor and employment attorney they could avoid a lot of missteps.

To learn more about issues in Oregon employment law, please join Barran Liebman at their Annual Employment, Labor and Benefits Law, Thursday, September 26th in Portland.

Barran Liebman LLP is one of XpertHR's premier contributing author firms, having written over 20 Oregon state-specific Employment Law Manual sections for XpertHR.