2019 Legislative Session: April Employment Update – Significant Bills of Concern

April 5, 2019Employment Law, News

The 2019 Oregon Legislative Session is well underway. Bills must pass out of their originating committee by next Tuesday (4/9/19) to move forward. This is a very active session for employment law bills, with lots of activity and many bills moving forward. The following bills are likely to remain active and have the potential to significantly impact the workplace.[1]

Paid Family Leave & Family Leave Expansion

HB 3031 would create a family and medical leave insurance program to provide an eligible employee with coverage for a portion of the employee’s wages while the employee is on family and medical leave or military family leave. The bill currently applies to all Oregon employers regardless of size. Both the employer and employee must contribute to fund the program. Employees would be eligible after 90 days of employment. The bill expands “family member” to include anyone who is biologically related to the employee and anyone the laws of the state recognize as related to the employee. Roommates and others who live together could be considered “family” under the law. The law would allow an eligible employee to take up to 32 weeks of paid leave per year (when parental and pregnancy leave are included).

Currently, OFLA only applies to employers with 25 or more employees. HB 3140 expands the coverage of OFLA to every Oregon employer. The bill also expands the definition of “family member” to include stepparents, individuals who are biologically related, and individuals who are responsible for providing health care to another person. Roommates and others who live together could also be considered “family” under the law. Eligible employees who rehire within 180 days are immediately restored to OFLA eligibility.

Sexual Harassment / Employment Discrimination & Settlements – SB 726

SB 726 would impose significant additional liability for employment discrimination and restrict employment discrimination settlements. Some of the key provisions in the most recent proposed amendments to the bill:

  • Instead of the current one-year statute of limitations on claims for unlawful employment practices, the current version of the bill under consideration would allow BOLI complaints and lawsuits to be brought within five years. Shorter limitations periods reflect the reality that memories fade, and witnesses move on, making older cases harder to prove and defend.
  • Employers are restricted from inserting no-rehire and certain nondisclosure and nondisparagement clauses into employment, settlement and severance agreements. Under amendments to the bill, these provisions may be inserted in a severance agreement requested by the employee (rather than an agreement imposed on the employee) and the employee is given seven days to reconsider and revoke.
  • The bill currently imposes personal liability on owners, partners and corporate officers for certain unlawful employment practices, but amendments to the bill may eliminate this provision.
  • The bill mandates that all employers post and distribute at hire a written policy with procedures and practices for the reduction and prevention of employment discrimination and sexual assault.
  • Separation agreements with executives would be voidable if a future investigation determines that the former executive engaged in employment

Independent Contractor Definition – HB 2498

HB 2498 would significantly alter the standard for determining independent contractor status under Oregon tax, unemployment, and workers’ compensation law. Any individual who provides services that are within the usual course of the organization’s business could not be considered an independent contractor. The effect of the law would be to limit an employer from contracting for any services that the organization is in the business of providing.

White Collar Exempt Minimum Salary Increase – HB 3374

HB 3374 would increase the minimum “salary basis” threshold for those employees whose duties qualify as white-collar exempt. The threshold would be increased for Oregon employees to a monthly amount equivalent to twice the minimum wage rate of a full-time (2080 hour per year) employee. For example, based on the current $10.75 minimum wage rate, the minimum monthly salary for an exempt employee would be $3,727/mo (or $44,720/yr). An employee paid less would not qualify as white-collar exempt.

Noncompetition Agreements – HB 2992

Oregon law already imposes significant hurdles to the execution and enforcement of noncompetition agreements. This bill would add an additional hurdle. A validly executed noncompetition agreement will not be enforceable if the employer does not provide the employee with a signed, written copy of the noncompetition agreement within seven days after the date of employment termination.

Pregnancy Accommodation – HB 2341

HB 2341 would require employers to provide reasonable accommodations to pregnant employees. Currently, pregnant employees are entitled to time off as allowed under the family and medical leave laws but are otherwise expected to perform all job-related functions prior to taking maternity leave.

  • This bill would require employers to provide pregnant employees with reasonable accommodations.
  • The bill imposes liability on employers who fail to provide accommodations or fail to hire a candidate because of the potential need for accommodation.
  • Employers are not required to provide an accommodation if doing so would impose an undue hardship. Keep in mind that proving undue hardship can be very difficult.
  • Employers would be prevented from asking the employee to take family leave if the absence can be avoided by providing a reasonable accommodation.
  • The bill sets out a non-exclusive list of possible reasonable accommodations, including: acquisition or modification of equipment or devices; more frequent or longer break periods or periodic rest; assistance with manual labor; modification of work schedules or job assignments; and providing an appropriate location in the workplace for an employee to express breast milk in private.
  • By including “assistance with manual labor” as a reasonable accommodation, the bill likely requires an employer to assign certain essential functions of the pregnant employee’s job to another employee. This goes beyond the typical accommodations expected for disabled employees under the ADA.

Breaks for Expression of Milk – HB 2593

Oregon law currently requires that the employers with 25 or more employees must provide an employee with a 30-minute rest period to express milk during each four-hour work period. HB 2593 would expand employee rights by allowing the employee to take a “reasonable rest period . . . each time the employee has a need to express milk.” In addition, this bill would expand coverage to all employers. Amendments to the bill may allow small employers to request an exception based on undue hardship.

Accommodation of Off-Duty Marijuana Use – SB 379

Unlike alcohol and most drugs, there is no test for on-the-job marijuana use or impairment. An employee’s recent off-duty use will trigger a positive result even if the employee reports to work unimpaired. Because marijuana is a controlled substance under federal law, Oregon law currently allows employers to discipline or terminate an employee who tests positive for marijuana use, even if the use might have occurred off-duty.

This bill would make it an unlawful employment practice to require that an employee or prospective employee refrain from using any substance that is lawful under Oregon law. This includes marijuana use. The bill has a carve-out where the employer’s restriction on off-duty use is a bona fide occupational qualification. Although employers still can still discipline for on-duty impairment, proving an employee has used and is under of the influence of marijuana while at work will be challenging with no objective test in existence.

Manufacturing OT Maximum Hours – HB 2175

In the 2018 Session, the Oregon Legislature passed a law restricting the total number of hours that manufacturing employees may work. The general restriction is 55 hours in one work week, with 60 hours permitted upon employee request and up to 84 hours permitted in very limited hardship circumstances. The restriction applies even if an employee wants to work additional overtime hours. This bill would remove the weekly caps on maximum hours of work.

Employment Agreements – HB 2489

This bill would place new burdens on employment agreements entered with prospective employees. The agreement will not be enforced unless the employee is informed about the need to sign an agreement by a written employment offer received at least two weeks before the first day of work. The agreement could not exceed two years in duration. The bill would more broadly apply to all employment contracts certain obligations already placed on the enforcement of noncompetition agreements.

If you have questions about these bills or would like to weigh in as these bills are considered by the legislature, please contact Randall Sutton. 503-399-1070 / rsutton@sglaw.com.

[1] The information contained in this report is current as of April 4, 2019. This summary focuses on significant legislation affecting private sector employers and is not intended to cover every employment-related bill or companion bill. This information is considered accurate but is not guaranteed. Additional information is available at www.leg.state.or.us. The comments contained herein are not legal advice and do not create an attorney client relationship. The purpose of this report is to provide information and analysis and is not intended to lobby one position over another. Follow these updates on Twitter @sgEmploymentLaw.

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