Federal law and guidance on this subject should be reviewed together with this section.
Authors: Joy Ellis and Kathryn Landes Ball, Garvey Schubert Barer
- Oregon's Fair Employment Practices Act goes well beyond federal law and applies to all employers regardless of size. See Oregon Anti-Discrimination Law.
- Oregon does not permit discriminatory recruiting against unemployed applicants by placing overt statements in job advertisements. See Discrimination Against Unemployed Applicants.
- Employers in Oregon generally may not require that prospective employees avoid using tobacco products during nonworking hours. See Smokers' Rights.
- Oregon has a statutory definition of "independent contractor" that goes beyond the Fair Labor Standards Act's definition. . See Independent Contractors.
- Oregon laws establish certain rules for the working conditions for minors, including hours of work, rest and meal breaks, and making certain jobs off-limits. See Underage Workers.
Methods and Sources
Oregon employers have a host of tools available to them to recruit potential employees. One valuable state resource is the State's Department of Employment website. This online portal has links to job fairs, employment listings and labor market information. It also gives employers a way to post job ads and provides numerous other recruitment tools and resources.
Oregon Fair Employment Practices Act
The Oregon Fair Employment Practices Act prohibits discrimination based on marital status, sexual orientation, gender identity and other categories not covered under Title VII of the federal Civil Rights Act. See Recruiting and Hiring > Interviewing and Selecting Job Candidates: Oregon > Oregon Antidiscrimination Law.
In addition, Oregon goes further than federal Age Discrimination in Employment Act (ADEA) as it is not limited to protecting individuals who are 40 and older. Instead, Oregon's age discrimination prohibitions covers any individuals 18 and above. +ORS § 659A.030.
Unlike Title VII, the ADEA and other key federal employment laws, Oregon's Fair Employment Practices Act applies to all employers regardless of size. It also covers employment agencies and labor organizations.
Oregon prohibits discrimination against applicants and employees with disabilities. While the federal Americans with Disabilities Act applies to employers with 15 or more employees, the Oregon disability provision covers employers with six or more employees.
Any individual who applied for workers' compensation benefits in the past or utilized the workers' compensation system also is covered by this law if their employer has six or more employees. +ORS § 659A.040.
Discrimination Against Unemployed Applicants
Oregon bans discrimination against unemployed job-seekers by prohibiting employers from publishing job advertisements with language indicating that unemployed individuals either should not apply for the position or will not be considered.
For example, an employer posting a job advertisement stating "unemployed applicants will not be considered" or "applicant must currently be employed" will run afoul of the law. New Jersey and the District of Columbia also have protections for unemployed job applicants.
The new law does not outright prohibit an employer from considering an applicant's employment status during the course of the hiring process. However, a hiring practice that technically abides by Oregon's new law but nonetheless takes an applicant's employment status into account could violate both Oregon and federal law if it has the effect of discriminating against a protected class.
The EEOC has questioned the use of "current employment as a sign of quality performance," and has suggested that the practice of screening out unemployed applicants may have a disparate impact on women, certain racial and ethnic minorities, and people with disabilities.
When determining if a worker is an employee or an independent contractor, Oregon laws and regulations go beyond the Fair Labor Standards Act (FLSA).Oregon's definition of independent contractor depends upon the agency making the determination.
The Bureau of Labor and Industries (BOLI), for example, uses the economic reality test to determine whether there is an employment relationship for purposes of wage and hour law. However, BOLI applies the right-to-control test to determine if a given worker is an employee or an independent contractor for purposes of Oregon's civil rights laws.
Other state agencies in Oregon (including the Department of Revenue and the Employment Department) will make their own determination on whether a worker is an independent contractor or an employee based on the statutory definition of "independent contractor" found in +ORS § 670.600. These agencies require that the person performing the work meet all the criteria set forth in that law in order to be considered an independent contractor.
Under Oregon law, it generally is unlawful for an employer to require, as a condition of employment, that a prospective employee refrain from using tobacco products during nonworking hours. One exception to the rule is when the restriction relates to a bona fide occupational qualification or requirement. See +ORS§ 659A.315
For purposes of employment, a "minor" is anyone under the age of 18 and - as a general rule - a minor must be at least 14 years old to work in Oregon.
Work hours per week are strictly prescribed.
For instance, 16 and 17-year-olds may work up to 44 hours per week while 14 and 15-year-olds may work no more than 18 hours per week during the school year and 40 hours per week when school is not in session. Moreover, minors who are 14 and 15 cannot work more than three hours a day during the school year and no more than eight hours a day during non-school time.
Another limitation is the type of work minors can do. Hazardous types of work are completely off-limits for minors, including the operation of most power-driven machinery, hoisting, woodworking and cutting/slicing equipment. Also banned are tasks involving exposure to dangerous worksites, such as work in mines, on roofs and in areas containing radioactive substances.
Minors who are 14 and 15 are subject to greater restrictions, and are not permitted to work in or around most kinds of power-driven machinery or on construction sites, in warehouses, or at other locations where power-driven machinery is used. In considering the recruitment of minors, employers must take these restrictions into account.
The Oregon Department of Labor has information on the state's Child Labor laws on its website, including frequently asked questions. Employers can also direct questions to the BOLI hotline at 971-673-0836.
Misrepresentation in Job Advertisements
Oregon law forbids misrepresentation in job advertisements in several situations, including:
- Prohibiting an employer from the filing a false statement of wages to be paid;
- Work to be performed or living and working conditions with an employment agency (+ORS § 659.810); and
- Prohibiting deceptive advertisementsregarding the details surrounding strikes or other labor disputes. +ORS § 659.815.
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