RECENT UPDATES

New DOL Independent Contractor Rule

Earlier this year, the Department of Labor (DOL) published a new rule regarding the classification of workers as either employees or independent contractors under the Fair Labor Standards Act (FLSA), a federal law that applies to almost all employers in the U.S.  This rule goes into effect on March 11, 2024.

Employers must apply this new rule when determining if a role within an organization meets independent contractor requirements.  If the role does not meet the DOL standard, or state independent contractor rules, then you must classify the role as an employee.  Here is a great summary of the new DOL independent contractor rule from law firm Lane Powell

The DOL rule identifies six factors employers must use to analyze if a role qualifies for independent contractor status under the FLSA:

(1) opportunity for profit or loss depending on managerial skill;

(2) investments by the worker and the potential employer;

(3) degree of permanence of the work relationship;

(4) nature and degree of control;

(5) extent to which the work performed is an integral part of the potential employer’s business; and

(6) skill and initiative.

Details of how each of these factors should be considered can be found on the DOL’s FAQ on the new rule.  No factor or set of factors among this list of six has a predetermined weight, and additional factors may be relevant if such factors in some way indicate whether the worker is in business for themself (i.e., an independent contractor), as opposed to being economically dependent on the employer for work (i.e., an employee under the FLSA).

This is a great time to review your independent contractor classifications, and consider if positions need to be reclassified as employees. Be aware that classification should be based on the role, not on the individual in that role, and all similar roles in an organization should be classified the same.  It’s a pretty big red flag to have two people in similar roles with one classified as an employee and the other as an independent contractor.  And the determination needs to be by the business, without factoring in whether a person wants to be classified as an independent contractor.  A worker cannot waive their right to be classified as an employee. 

Paid Leave Oregon

Here are some details and resources that will hopefully answer your basic questions about Paid Leave Oregon.   Note that ALL Oregon employees are eligible for Paid Leave Oregon, if they meet certain eligibility requirements, regardless of the size of the business

What is Paid Leave Oregon?  Paid Leave Oregon is a state-run program that provides protected paid family leave, medical leave, and safe leave of absence to Oregon employees.  Employees apply for leave directly with the state.  The leave of absence is not paid by the employer.  This is a protected leave of absence, and generally employees are entitled to return to their position at the end of the approved leave.

Paid Leave Oregon (PLO) Timeline & Resources

·        Jan. 1, 2023 PLO payroll contributions started.  Employers must submit contributions quarterly through the Frances Online system. 

·        August 14, 2023 Employees may start applying for anticipated leave through the PLO website.

·        Sept. 3, 2023 Employees can start taking leave and receiving benefits through PLO.

·        Paid Leave Oregon Website  

·        Model Notice Language Print and post in the workplace and provide to all employees

·        Employer Guidebook

·        Paid Leave Oregon FAQs

·        You can have your questions regarding Paid Leave Oregon answered by calling 833-854-​0166 (toll-free) or​ emailing at paidleave@oregon.gov​. 

Employee Eligibility:

  • You work in Oregon;

  • You earned at least $1,000 the year before you apply for benefits (from any combination of employers); and

  • You have a life event that qualifies you (learn more).

Reasons for Leave

·        Parental Leave – for birth of a child, or adoption or foster child placement

·        To care for yourself when you have a serious illness or injury

·        To care for a family member with a serious illness or injury

·        Safe Leave for survivors of sexual assault, domestic violence, harassment, or stalking

Notice Required:

Employers may require employees to give notice when they will be taking leave, and to provide an explanation. Employers must outline the notice requirements in their written policy and procedures and provide a copy to employees. The timeline for giving notice may differ depending on whether the leave is for a planned or for an unexpected event:

·        30-day notice: If employees take paid leave for a planned reason (such as an upcoming surgery or adopting a baby), they need to let the employer know 30 days before taking leave.

·        24-hour emergency notice: In an emergency, employees must tell their employer within 24 hours and give them written notice within three days of starting leave. y Unexpected events include, but are not limited to:

o   A. An unexpected serious health condition of the employee or a family member of the employee.

o   B. A premature birth, unexpected adoption, or unexpected foster placement by or with the employee.

o   C. Safe leave.

If an employee does not provide the correct notice to their employer, the Paid Leave Oregon may reduce the employee’s first weekly benefit amount by up to 25%.

Coordination with OFLA/FMLA:  PLO will run concurrently with any available OFLA/FMLA leave.  Employees may not choose to waive OFLA if it applies and is available.  Employee may be forfeiting PLO benefits if they take OFLA/FMLA and don’t elect PLO. 

When Qualified for Leave

  • Employees can take up to 12 weeks off from work in a year. In some pregnancy-related situations, employees may be able to take up to two more weeks for a total of 14 weeks.

  • To apply for leave, employees need to apply directly with the PLO State program.  The employer does not do this on your behalf.  PLO will determine if you are qualified for the paid leave of absence. 

  • While on leave, Paid Leave Oregon pays the employee a percent of their wages. The amount depends on how much the employee earns.  Minimum wage earners will receive 100%, and percentage decreases on a scale of earnings (Paid Leave Oregon Benefits Calculator).  The employer does not pay for your leave, as this is run through the State (like unemployment benefits). 

  • Employees can take leave a week, or a single day at a time.  Employees can take leave all at once (consecutive) or in separate blocks of time (non-consecutive). Consecutive leave is taken in one block of time due to a single qualifying event (such as five weeks of leave for a knee surgery). Nonconsecutive leave is taken in separate blocks of time due to a single qualifying reason (such as one day every week for 12 weeks for chemotherapy).

  • Employers are required to maintain existing health benefits for an employee receiving paid leave benefits until the employee’s paid leave ends or the employee returns to work after taking their leave. The employer can require that the employee pays their share of health premiums while on leave.

  • Employees may choose to use any accrued and available paid time off to “top off” Paid Leave Oregon benefits.  Employees must notify the employer if they wish to have available paid time paid out while on Paid Leave Oregon, and must notify the employer as to their Paid Leave Oregon benefit amount so that the applicable paid time off may be calculated and applied. 

Reinstatement:

PLO approved leaves are protected, if the employee has worked for the employer for at least 90 days.  When an employee returns to work from paid leave, they are entitled to return to the position they held before the start of leave, if that position still exists. If the position no longer exists, then job protections depend on the size of the employer:

·        For large employers (25 or more employees), the employee is entitled to a position equal to their previous position before they took leave, with equal employment benefits, pay and other terms and conditions of employment.

·        For small employers (fewer than 25 employees), the employer may, at the employer’s discretion based on business necessity, restore the employee to a different position with similar job duties and the same employment benefits and pay.

Updated Form I-9 - Effective August 1, 2023

Effective August 1st, the U.S. Citizenship & Immigration Services department issued a new form I-9 for businesses to use to verify employees are legal to work in the U.S.   You are welcome to start using this form with all new employees effective today.  You must stop using the previous version of the form I-9 by November 1, 2023.   You can read more about the changes to the form I-9 here.

Note that you do not need to have a new I-9 form filled out for all current employees.  This new form just needs to be used with all newly hired employees. 

As outlined in a previous Pacific HR email, COVID-19 temporary flexibility allowing you to remotely inspect Form I-9 documents expired on July 31, 2023. This means you must now go back and physically verify all documentation presented to you remotely in the past few years, as allowed by the temporary flexibility rules.   In-person, physical document inspection for affected employees must be completed by August 30, 2023.

The USCIS recently announced an option to continue inspecting I-9 documents remotely, but there is a catch.  In order to continue inspecting I-9 verification documents remotely, the employer must be enrolled in the E-Verify program.   E-Verify is a web-based program that involve you entering information from the form I-9 into the E-Verify platform.  This program is required for certain federal contractors but is optional for other employers.  You can learn more about enrolling in the E-Verify program here.   If you are not enrolled in E-Verify, then you can no longer remotely inspect I-9 verification documents and must review these documents in-person. 

Employers retain the option to designate an “authorized representative” to physically inspect the Section 2 documents for I-9 verification. The authorized representative does not need to be employed by the employer. An authorized representative can be anyone designated by the employer to act on the employer’s behalf for the purpose of physically inspecting the new employee’s documents and completing the I-9. This can even be a family member or friend of the new employee. This third-party document review must still be conducted in person.  Once physical inspection has taken place, the employer must annotate the original form I-9 according to DHS procedures.  For more information about the end of I-9 flexibility rules, check out this article from Lane Powell.

As a reminder, all businesses should have employees complete the form I-9 on the first day of employment, and the employer must inspect the original documentation presented by the employee to verify employment eligibility within 3 business days. 

Washington Long-Term Care Payroll Tax - EFFECTIVE DATE JULY 2023

The Washington Long-Term Care Act, created a new employee payroll tax of 0.58% on employee income.   The Act initially required that businesses with Washington employees must begin collecting the tax on January 1, 2022.  BUT, in early 2022 Washington Lawmakers enacted legislation delaying the tax until July 2023. Effective July 1, 2023, employers will be required to start withholding a .58% payroll tax for their Washington employees.  Here is a great article from Bullard Law explaining the provisions and history of WA Cares.

Note that this is only a tax on employee wages and is NOT matched by employers. 

The Long-Term Payroll Tax will fund a program allowing eligible participants to access funds for certain Long-Term care needs starting in 2025. 

Oregon Minimum Wage - Effective July 1, 2023

Oregon minimum wage will increase on July 1, 2023. Here is a summary of the new rates, by region:

  • Portland Metro: $15.45 per hour (All employers located within the Portland urban growth boundary)

  • Standard Counties: $14.20 per hour (Benton, Clackamas, Clatsop, Columbia, Deschutes, Hood River, Jackson, Josephine, Lane, Lincoln, Linn, Marion, Multnomah, Polk, Tillamook, Wasco, Washington and Yamhill Counties)

  • Non-Urban Counties: $13.20 per hour (Malheur, Lake, Harney, Wheeler, Sherman, Gilliam, Wallowa, Grant, Jefferson, Baker, Union, Crook, Klamath, Douglas, Coos, Curry, Umatilla and Morrow Counties)

You can download the updated Oregon minimum wage required posting here:  https://www.oregon.gov/boli/employers/Pages/required-worksite-postings.aspx

This is also a great time of year to ensure all of your required federal and state employment posters are up to date.  You can purchase a federal/state “all-in-one” poster from the BOLI website for $17 here:  https://apps.oregon.gov/BOLI/Storefront/Details.aspx

Heat Illness Prevention Reminder

As summer approaches, this is a good time to review the Heat Illness Prevention rules required by Oregon OSHA.  These rules apply to employees in Oregon who work more than 15 minutes in any 60 minute period in ambient temperature caused by weather of 80 degrees Fahrenheit or higher.   

Heat Illness Prevention Rules Key Requirements (for temperatures of 80 degrees Fahrenheit or higher)

Rest Break Schedule Requirements (for temperatures of 90 degrees Fahrenheit or higher)

Detailed information can also be found on Oregon OSHA’s website here, and includes posters and information on heat illness prevention in English and Spanish. 

I-9 Form Flexibility Ending

In March 2020 the Department of Homeland Security allowed for a temporary flexibility to the I-9 document review process, allowing employers to verify documents remotely in consideration of social distancing guidelines.  While the flexibility rule was extended several times in the past few years, the temporary rule will now end on July 31, 2023.  This means that employers who verified I-9 documentation remotely in the past few years will need to physically inspect those documents by August 30, 2023.   Employers retain the option to designate an “authorized representative” to physically inspect the Section 2 documents for I-9 verification. The authorized representative does not need to be employed by the U.S. employer. An authorized representative can be anyone designated by the employer to act on the employer’s behalf for the purpose of physically inspecting the new employee’s documents and completing the I-9. This can even be a family member or friend of the new employee. This third-party document review must still be conducted in person.  Once physical inspection has taken place, the employer must annotate the original form I-9 according to DHS procedures.  For more information about the end of I-9 flexibility rules, check out this article from Lane Powell

I recognize that this will be a challenge for employers who now have several remote workers, especially if they are scattered around the U.S.  The DHS has published a proposal to allow a continuation of remote I-9 documentation verification, but the final ruling has not yet been received. 

DOL Guidance on Breaks & Meal Periods for Remote Workers

In early 2023 the Department of Labor issued some guidance reminding employers that they are responsible to ensure that non-exempt (hourly) employees working remotely are taking entitled breaks and meal periods.  Here is a great article from Littler explaining the DOL guidance

Washington Pre-employment Marijuana Screening – Effective January 1, 2024, Washington employers will be prohibited from rejecting job applicants based on pre-employment drug tests showing recent use of marijuana.  Here is an article from Lane Powell explaining the new rule.  

The new law applies only to pre-employment testing; Washington employers may still maintain a workplace free of alcohol and drugs – including marijuana. Washington employers may test their current employees for drugs based on (1) reasonable suspicion (that is, specific and objective grounds) that an employee’s work performance is impaired due to being under the influence or (2) following an on-the-job incident.

New EEOC Poster - Effective October 20, 2022

Effective October 20, 2022, the EEOC has published a new “Know Your Rights: Workplace Discrimination is Illegal” poster.  This poster must be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.   In addition to the physical posting, or for employers with employees working remotely, you can also share the posting with staff digitally. 

The poster can be found on the EEOC website here.  This link allows you to download and print a physical poster, and also provides a digital option. 

Oregon Hiring & Retention Bonus Exclusions End September 28, 2022

In 2021 the Oregon legislature enacted a temporary exception to Oregon Equal Pay Act allowing for hiring and retention bonuses to be exempt from equal pay provisions.   This allowed employers to provide hiring and retention bonuses to employees, without needing to include these bonuses in equal pay compensation calculations. 

Effective September 28, 2022 the hiring and retention bonus exemption will expire.  This means that any hiring or retention bonuses issued to employees in Oregon after this date will need to be included in equal pay considerations.  

The Oregon Equal Pay Act requires that you pay employees equally for “work of a comparable character”.  Any compensation differences between employees doing comparable work must be justified by certain bona fide factors such as seniority, experience, education, or other factor outlined in the Oregon Equal Pay Act provisions

Oregon - Expansion of Oregon Sick Time Use Rules

Effective April 1, 2022, BOLI has adopted a permanent rule expanding the reasons employees can use Oregon Sick Leave during public health emergencies.  Under the new rule, eligible Oregon employees can use their accrued Sick Time for:

(1) an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or

(2) a determination by a public official with the authority to do so that the air quality index or heat index is at a level where continued exposure to such levels would jeopardize the employee’s health.  

This new rule adds to the list of already established valid reasons for employee use of accrued Sick Time under Oregon Paid Sick Leave regulations, which includes an employee or family member’s illness, injury, or health condition, absences connected to domestic violence, harassment, sexual assault, or stalking, along with any reason in Oregon’s Family Leave Act (OFLA) such as new child bonding, bereavement, or organ donation.

Washington Non-exempt Employee Travel Time Pay Change

A recent ruling by the Washington Court of Appeals has changed the way Washington employers must pay non-exempt employees (hourly employees who are entitled to overtime pay) while they are traveling on overnight work-related trips.  

Previously, employers in Washington only had to pay non-exempt employees for travel time for overnight trips if the travel time hours occurred during the employee’s regular work hours.   For example, if an employee regularly worked between the hours of 8 am and 5 pm, only travel hours that occurred during this time window were required to be considered paid time (extended to seven days a week). 

The new ruling requires that non-exempt employees must be compensated for all travel time for out-of-town work assignments—including all travel to and from the airport, all time spent at the airport, and all time spent in flight, regardless of what hours of the day travel time occurred. 

Note that this rule only applies to actual travel time (e.g., travel to and from the airport, time spent waiting for a flight, time spent in flight).  It does NOT apply to non-work hours for the employee while they are at their destination such as sleeping at their hotel or enjoying leisure activities. 

For more information on this ruling, please see this excellent summary as provided by law firm Davis Wright Tremaine. 

Oregon OSHA Temporary Heat Standard

In early July, 2021 Oregon OSHA adopted a temporary emergency rule that expands access to shade and waterhttps://osha.oregon.gov/news/2021/Pages/nr2021-26.aspxPlease review this rule thoroughly if you have employees who work more than 15 minutes in any 60 minute period in ambient temperature caused by weather in excess of 80 degrees Fahrenheit.    In addition, employers with employees who work in hot weather must provide training on heat safety no later than August 1st.  Law firm Littler has created a 12 minute video designed to meet the Oregon OSHA temporary heat standard training rule.  To get a sharable link to the video you can email Sam Arney at sarney@littler.com.  The video is free to Littler clients, but non-clients can purchase the video for $50.   

Washington Minimum Wage & Exempt Employee Minimum Salary Threshold - 2021

  • Minimum wage for Washington will increase to $13.69 per hour - effective January 1, 2021.

  • Minimum Salary for Exempt Employees in Washington – Effective January 1, 2021:

Small businesses (1 to 50 Washington-based employees): $821.40/week($42,712.80/year)

Large businesses (50+ Washington-based employees) : $958.30/week ($49,831.60/year)

There are new changes to the minimum salary threshold for Exempt employees in Washington.  Under a new rule, the pay a salaried worker must receive to be considered overtime-exempt will increase incrementally to 2.5 times the state minimum wage by 2028.  This new rule is being phased in over several years, with the first increase to occur on January 1, 2021:  https://lni.wa.gov/forms-publications/F700-207-000.pdf

There are also new minimum wage thresholds for Exempt Computer Professionals who are paid by the hour:  https://www.lni.wa.gov/forms-publications/F700-213-000.pdf 

Oregon Workplace Fairness Act

In 2019 the Oregon legislature passed the Workplace Fairness Act, which made significant changes to state law governing discrimination and harassment claims.  While some aspects of the Act went into effect as of September 2019 (such as expanding the statute of limitations for making a discrimination or harassment claim from one to five years), one of the most important details is new requirements for required written anti-discrimination & anti-harassment policies.  All Oregon employers must have a written anti-discrimination & anti-harassment policy in place as of October 1, 2020, which must include the following details:

  • Description of the process to report prohibited conduct, including suspected discrimination, harassment or sexual assault;

  • Identifying an individual, and an alternate, to whom reports can be made;

  • Notify employees that they have five years from the date of the prohibited conduct to bring a claim; (This aspect of the Act went into effect in September 2019)

  • State that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement, and defines those terms;

  • Explain that an employee may voluntarily request to enter into an agreement that contains non-disclosure, non-disparagement or no-rehire clauses, but has seven days to revoke the agreement; and

  • Advise employers and employees to document any incidents of alleged prohibited conduct.

BOLI has released template policy language reflecting the new required requirements.   Please see the BOLI webpage outlining the Workplace Fairness Act rules, which includes a link to the template policy language.

What Oregon Employers Need to Do:

  • Review your current policy language, and ensure that the new requirements are included – OR -  replace your current policy with the template policy language provided by BOLI.

  • Make the final policy available to employees as of October 1, 2020

  • Provide a copy of the policy to all new hires, and

  • Provide a copy to an employee at the time the employee reports information regarding suspected prohibited conduct.

  • Ensure any non-disclosure, non-disparagement, or settlement agreements for discrimination, harassment or sexual assault claims meet the new Act rules. 

New I-9 Verification Form - Mandatory as of May 1, 2020

U.S Citizenship & Immigration Services (USCIS) has issued a revised version of Form I-9, Employment Eligibility Verification.  This revised form must be used with all newly hired employees as of May 1, 2020, although you are welcome to start using the form immediately.   Please be sure to replace your old I-9 form with the new version prior to that date.   You do not need to have current employees fill out the new form, as it just needs to be used with new hires going forward. Remember to ensure that all new employees fill out the I-9 form on the first day of employment, and present appropriate verification identification within 3 business days.   

Click HERE to download the new Form I-9

New Form W-4 - Effective January 1, 2020

The Internal Revenue Service has issued a new Form W-4. This revised form must be used for:

  • All new employees hired on or after January 1, 2020

  • Any employees who wish to adjust their federal withholding on or after January 1, 2020

You are not required to have current employees hired prior to January 1, 2020 fill out a new form, unless they wish to change their payroll tax withholding. All businesses will want to consult with their CPA, Accountant or Payroll Provider on how to correctly enter the new W-4 information on your payroll system. You can learn more about this new form on the IRS website here.

Washington Paid Family & Medical Leave - REQUIRED NOTICE

All Washington employers must post this notice regarding the Washington Paid Family Medical Leave program. This notice must be placed in an area accessible to all employees. Note that employees are eligible to apply for Paid Family Medical leave benefits effective January 2020.

Effective January 1, 2019, all businesses with employees in Washington will be required to start making payroll deductions for the Washington Family & Medical Leave program.   Here are important dates for Washington employers to remember:

  • January 1, 2019 – Deduct the employee’s portion of the required premium each pay period.   Employers must collect 63% of .04% of the employees gross pay.  

  • Quarterly, Starting April 2019 – Employers will report wage & hour information and remit payments to the State of Washington.  The website for reporting and remitting payment is still under development, so stay tuned for more information on this once it arrives.  

  • January 1, 2020 – Employees will be eligible to apply for paid leave benefits through the State of Washington.

Effective January 1, 2019, businesses must start deducting the employee’s portion of the Washington Family & Medical Leave premium.  To determine how much to deduct:

  • Calculate .04% of the employee’s gross pay for that pay period, then calculate 63% of that amount.  This is the amount that must be deducted from the employee’s pay (pre-tax).   You will collect and hold on to these payments to remit to the state on a quarterly basis. (Note: an employer can elect to pay all or some of their employees' share of the premium on their behalf)

If you have 50 or more employees in Washington, your business must also contribute to the Washington Family & Medical leave premiums.   Here is how much you will be required to pay:

  • Calculate .04% of the employee’s gross pay for that pay period, then calculate 37% of that amount.  This is the amount the business must pay, remitted quarterly to the State of Washington.

More information about the Paid Washington Family & Medical program can be found here: https://www.paidleave.wa.gov/.   This website includes an employer “toolkit” to assist Washington businesses prepare for the program.

Effective January 1, 2019, businesses must start deducting the employee’s portion of the Washington Family & Medical Leave premium.  To determine how much to deduct:

  • Calculate .04% of the employee’s gross pay for that pay period, then calculate 63% of that amount.  This is the amount that must be deducted from the employee’s pay (pre-tax).   You will collect and hold on to these payments to remit to the state on a quarterly basis.    (Note: an employer can elect to pay all or some of their employees' share of the premium on their behalf)

If you have 50 or more employees in Washington, your business must also contribute to the Washington Family & Medical leave premiums.   Here is how much you will be required to pay:

  • Calculate .04% of the employee’s gross pay for that pay period, then calculate 37% of that amount.  This is the amount the business must pay, remitted quarterly to the State of Washington.

More information about the Paid Washington Family & Medical program can be found here: https://www.paidleave.wa.gov/.   This website includes an employer “toolkit” to assist Washington businesses prepare for the program.

Oregon Pregnancy Accommodation Notice

Effective January 1, 2020, Oregon employers with at least 6 employees now have to provide reasonable accommodations to employees and applicants who have limitations in the workplace related to pregnancy or childbirth (including lactation needs). The law also stipulates that employers need to provide written notification of these rights to employees.   BOLI has provided us with a template notification form which you can use to communicate this information to employees.   Here is what you need to do to ensure you are in compliance with the notification rules:

  • Customize this notice with your business name and contact information, and post and notice in an area accessible to all employees (with the rest of your employment posters) by January 1, 2020

  • Provide a copy of the notice to any employee who informs you of their pregnancy (within 10 days of receiving this information)

  • Provide a copy of the notice to all employees as of June 29, 2020.  If you wish you can meet this requirement by including the notice information in your Employee Handbook and re-issuing the document to all staff.

This law creates a new cause of action for employees who suffer an adverse employment action or who are refused a reasonable accommodation based on pregnancy, childbirth, or a related condition. The new law specifies that acquisition of equipment, more frequent or longer rest breaks, assistance with manual labor, and modification of work schedules are all reasonable accommodations for pregnant women or mothers recovering from childbirth. More information about Pregnancy Anti-Discrimination can be found on the BOLI website here.

DOL Raises Exempt Employee Minimum Salary Threshold

Today the Department of Labor issued a final rule, raising the minimum salary threshold for Exempt employee classifications to $35,568 effective January 1, 2020. As of that date, Exempt employees in Administrative, Professional or Executive categories must both meet the duties tests for the category and be paid at least $35,568 annually. Commission payments, non-discretionary bonuses and other incentive payments can be used to satisfy up to 10% of the minimum salary threshold. If an employee does not meet the minimum salary amount, or the duties test then they are entitled to receive overtime pay for all hours worked over 40 in the work week. The final rule also increases the “highly compensated employees” exemption salary requirement to $107,432 per year.

New Oregon Employment Laws 2019 & 2020

The Oregon legislature was busy this year! Here is a summary of recently passed employment related regulations:

  • Anti-Discrimination: Oregon passed the Oregon Workplace Fairness Act this summer, which expands anti-discrimination protections for employees. Here is a brief summary of the new law requirements:

    • Effective October 1, 2019, the law expands the statute of limitations for many unlawful discrimination claims from one year to five years

    • Effective October 1, 2020, Requires a written anti-discrimination policy that includes new, detailed information to be included and provided at time of hire and whenever a covered complaint is made. Pacific HR will have more information about the written policy requirements next year. Effective October 1, 2019 the law will also restrict nondisclosure or no-rehire provisions in many severance and settlement agreements

  • Lactation Breaks: Effective September 29, 2019, all Oregon employers will need to provide a reasonable rest period to express breast milk each time the employee has a need to do so. Employers of 10 or fewer employees may assert an exemption if providing the break would impose an undue hardship. The new law expands previous lactation rules for Oregon employers, which previously only applied to those with 25 or more employees.

  • Pregnancy & Childbirth Accommodations: Effective January 1, 2020, Oregon employers with at least 6 employees now have to provide reasonable accommodations to employees and applicants who have limitations in the workplace related to pregnancy or childbirth (including lactation needs). This law creates a new cause of action for employees who suffer an adverse employment action or who are refused a reasonable accommodation based on pregnancy, childbirth, or a related condition. The new law specifies that acquisition of equipment, more frequent or longer rest breaks, assistance with manual labor, and modification of work schedules are all reasonable accommodations for pregnant women or mothers recovering from childbirth. The law also stipulates that employers need to provide written notification of these rights to employees. BOLI is currently working on posters and notification requirement templates, so hopefully we will have this information in the next few months.

  • Additional rules for Non-Competition Agreements: Effective January 1, 2020, new legislation will mandate that for an already existing Noncompetition Agreement to be enforceable, an employer must – within 30 days after the date of termination of employment – provide the employee with a signed, written copy of the terms of the noncompete agreement.

  • There is a new Equal Pay Act poster published by BOLI. This poster must be placed in a location accessible to all employees. If you have recently purchased a composite poster from BOLI this item is already included. If you have not updated your posters recently, you may want to purchase the composite poster directly from BOLI here. It’s only $15.

  • You might have heard that Oregon has recently passed Paid Family Medical Leave legislation, but this will not go into effect until 2022. There are still many questions about the details of this law, and Pacific HR will send you updates on how this will affect employers as we get closer to the implementation date.

 Washington EPOA Ammendments & Non-Compete Agreements

Earlier this year, Washington passed amendments to the Equal Pay & Opportunities Act, which now prohibits all Washington employers from asking candidates to provide previous salary information.

  • The new EPOA amendments also require Washington employers with 15 or more employees must provide to a job applicant' “the minimum wage or salary” for the position sought, when requested, as part of an offer of employment. These employers must also provide a “wage scale or salary range” or “the minimum wage or salary expectation” to a current employee when an employer offers the employee an internal transfer, a new position, or a promotion, and the employee requests this information.

Also earlier this year, a new Washington State law was signed which will make it more difficult to enforce non-compete agreements effective January 1, 2020.  If you wish to have an enforceable non-compete agreement in place for both employees and contractors, the following conditions must be met:

  • Non-compete agreements may not exceed 18 months after end of employment

  • Employees must be earning $100,000 per year or more, and contractors must earn $250,000 per year or more.  (These figures are tied to inflation and may change annually)

  • Employers must disclose the terms of the non-compete agreement in writing prior to acceptance of employment.

  • If a current employee is required to sign a non-compete agreement, they must be provided some sort of consideration ($$) for entering the agreement.

  • If employees under a non-compete agreement are laid-off, the employer must pay the full base salary throughout the non-compete period (minus compensation earned by the employee through other employment.

  • Employers may not prohibit any employee earning less than twice the minimum wage (equivalent of $27 per hour as of January 1, 2020) from “moonlighting” or having another job, unless the other job raises legitimate concerns regarding safety, scheduling, and/or conflicts of interest.

To ensure your non-compete agreements are enforceable under the new law, please contact your attorney prior to January 1, 2020.   

Oregon Equal Pay Act - Update

All aspects of the Oregon Equal Pay Act go into effect on January 1, 2019.  BOLI has now issued a poster on Oregon Equal Pay Law, which needs to be placed in an area accessible to all employees. 

In November 2018, BOLI issued the final administrative rules for the Oregon Equal Pay Act.  The final rules provide more guidance on the factors that may considered when determining “work of comparable character” and also clarifies that employers need to consider all wages, salary, bonuses, benefits offered when determining when compensation is equitable.   

The Oregon Equal Pay Act states that employers will be provided safe harbor against civil penalties for violations of the Act, if the employer has conducted a Pay Equity Analysis in the past 3 years.   However, we still do not have clarification as to how to conduct Pay Equity Analysis or what steps need to be taken to satisfy the safe harbor requirements. 

Employers are encouraged to consult with their attorneys to ensure pay equity practices are in place. 

The Oregon Equal Pay Act of 2017 expands the current law’s protection against wage disparities among employees.  The Act prohibits wage discrimination based on a protected class status, defined as race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.    This includes wages, bonuses, benefits and other forms of compensation.     

The Act does allow business to provide different wages based on bonafide factors defined as:

·         A seniority system

·         A merit system

·         A system that measures earnings by quality or quantity of production;

·         Workplace locations;

·         Travel (if necessary and regular for employee);

·         Education;

·         Training;

·         Experience; or

·         Any combination of these factors but only if that combination accounts for the entire compensation differential.

Most provisions of the Act go into effect on January 1, 2019.  The Act does call for a required posting explaining Act provisions.  BOLI will be providing a template posting at a later date.

Most urgently, the Act prohibits businesses from screening applicants based on salary history or seeking an applicant’s salary history.  Oregon businesses shall not consider an applicant’s previous salary to determine hiring wage, nor request salary history from applicants.   Businesses are allowed to confirm previous salary history, only after an offer of employment is issued and only if the candidate authorizes the request.    The ban on considering or requesting salary history goes into effect on October 9, 2017.   To prepare for this change, businesses should not request salary history in job posting language, or request that this information be provided on applications or as part of applicant screening. 

Washington Fair Chance Act

Effective June 7, 2018 Washington will join the growing number of states to enact "ban the box" legislation.  The Washington Fair Chance Act prohibits Washington employers to obtain or request any criminal background information from candidates, until after the employer has determined that the candidate is otherwise qualified for the position.   You can read the recently passed law here

Some employers are exempt from this new requirement, such as law enforcement agencies & employers filling positions where the employee will have unsupervised access to children or vulnerable adults.

What Washington Employers Should Do Now:

  • Review job postings, to ensure they are not discouraging those with criminal records from applying. Terms such as "no felons" or "clean criminal record required" are to be avoided.

  • Do not inquire into or request criminal background information from a candidate, until after you have determined that the person is otherwise qualified for the job.

  • Remove all questions relating to a candidate's criminal background from Employment Applications.

The state wide rule does not legislate the actions an employer makes after it is determined that the candidate is otherwise qualified for the job.   Be aware that the City of Seattle does have more expansive Fair Chance Ordinance, which requires those employers to consider additional information prior to disqualifying a person with a criminal record.  City of Seattle Fair Chance Ordinance language can be found here

OregonSaves

OregonSaves is a new retirement savings plan for workers in Oregon.  The plan allows employees to make retirement savings contributions through workplace payroll deductions into their own personal Roth IRA.     All Oregon businesses will be required to register with OregonSaves (according to the timeline outlined below), and businesses without a current employer-sponsored retirement savings plan will be required to administer retirement contributions through OregonSaves. 

All Oregon Employers will be required to register with OregonSaves, based on this timeline:

  • 100 or more employees: November 15, 2017

  • 50 to 99 employees: May 15, 2018

  • 20 to 49 employees: December 15, 2018

  • 10 to 19 employees: May 15, 2019

  • 5 to 9 employees: November 15, 2019

  • 4 or fewer employees: May 15, 2020

After registering, business will be allowed to request an exemption from the program if they have a current employer-sponsored retirement savings plan, such as a 401(k) or SIMPLE IRA.  

If an employer does not have a qualified retirement savings plan in place, or if they choose to voluntarily participate in the OregonSaves plan, then they are required to administer retirement savings deductions for their employees.  

  • All employees will be automatically enrolled by the employer, unless they officially opt-out of the program.

  • Contributions start at 5% of earnings per pay period, and will automatically increase 1% per year, up to 10%. Employees may choose to elect a different % of earnings contribution.

  • Employers are not allowed to make contributions or “match” funds to the employee’s plan.

How to prepare:

·         Employers should receive registration notification directly from OregonSaves prior to their required registration date.  This notification will include instructions on how to register and program details

Any business with questions regarding the OregonSaves plan are urged to contact OregonSaves directly at clientservices@oregonsaves.com or 844-661-1256.   Here is a link to the OregonSaves website, which includes FAQs on program details:  www.oregonsaves.com

 

WASHINGTON PAID SICK LEAVE

Washington Paid Sick Leave will go into effect on January 1, 2018.  Here are some of the highlights:

  • Most Washington employers are required to provide Paid Sick Leave for all non-exempt Washington employees.

  • This rule applies to ALL non-exempt employees, full time, part time and temporary.

  • Employees are entitled to accrue 1 hour for every 40 hours worked. There is no cap on the amount of paid sick leave an employee may accrue. A typical full-time employee working 40 hours per week would accrue 52 hours of paid sick leave in a year.

  • Employers must allow employees to roll over up to 40 hours of unused Sick Leave from year to year.

  • Employees must be able to use accrued Paid Sick Leave as of the 90th day of employment.

  • Employees may use Paid Sick Leave:

  • To care for themselves or their family members.

  • When the employees’ workplace or their child's school or place of care has been closed by order of a public official for any health-related reason.

  • ·For absences that qualify for leave under the state's Domestic Violence Leave Act.

  • Employers may allow employees to use Paid Sick Leave for additional purposes. PTO plans (time off available for sick or vacation) count towards Washington Paid Sick Leave Time. You do not need to add additional sick time off if your current plan meets the requirements.

  • Sick time does not need to be paid out at time of termination, unless you have a policy in place otherwise.

  • Employees can take Paid Sick Leave in one-hour increments, unless the business meets certain conditions.

WHAT YOU SHOULD DO TO PREPARE:

  • Make sure your policies adhere to Washington Paid Sick Leave requirements, as of January 1, 2018.

  • Provide each employee notice of their current balance at least monthly. You can easily meet this requirement if you can print current time off balances on employee paychecks.

  • Check out the L&I Paid Sick Leave page by clicking here.

  • Stay tuned for more information regarding required notices and other conditions as they are revealed later this year.

City of Portland "Ban-the-Box" Ordinance - Effective July 1, 2016

The City of Portland has passed expanded “Ban-the-Box” legislation, which goes into effect July 1, 2016.  This new Ordinance applies to:

·         Employers with 6 or more employees AND

·         at least one individual working the majority of the time in the City of Portland

The new Ordinance prohibits Portland employers from soliciting or processing criminal background information from applicants before a “conditional offer of employment” is made.  Once the offer is submitted, employers may conduct criminal background checks and must then make an “Individualized Assessment” of the history considering the nature and gravity of the criminal offense, the time that has elapsed since the criminal offense took place, the nature of the employment held or sought.  There are exceptions in place for employees working with sensitive populations and other heightened safety concerns. 

If you are Portland employer conducting criminal background checks, here’s what you need to do: 

·         Make sure you have eliminated “do you have a criminal history” type questions from applications & interview processes

·         Ensure you are using written offer letters, with language specifying conditional offer requirements

·         Address criminal history results on a case by case bases, using the Individualized Assessment guidelines

·         If an offer of employment is rescinded due to criminal history, notify the applicant in writing with specifics regarding the reason for the decision

 

City of Portland Ordinance Memo & FAQs: 

https://www.portlandoregon.gov/mayor/article/555053

 

OREGON PAID SICK LEAVE

Oregon Paid Sick Leave will go into effect on January 1, 2016.  Here are some of the highlights:

  • Employers with 10 or more workers are required to provide paid sick leave for all Oregon employees. (City of Portland employers must still provide paid sick leave if they have 6 or more employees).

  • Employees are entitled to accrue 1 hour for every 30 hours worked (equivalent of 1.33 hours for each 40 hours worked), up to 40 hours per year. Employers can cap use of paid sick leave at 40 hours per year.

  • Employers must allow employees to roll over up to 40 hours of unused sick time from year to year, UNLESS they opt to “front load” 40 hours per year and pay out unused time at the end of each year. Employers are allowed to cap total accrual at 80 hours.

  • Employees can begin accruing sick time at time of hire, and are allowed to start using paid sick time after 90 days of employment.

  • This rule applies to ALL employees, full time, part time and temporary. (The 240 hour rule from Portland Sick Time Off has been eliminated).

  • PTO plans (time off available for sick or vacation) count towards Oregon Paid Sick Leave. You do not need to add additional sick time off if your current plan meets the requirements.

  • Sick time does not need to be paid out at time of termination, unless you have a policy in place otherwise.

  • Employees can take sick time in one hour increments, unless the business meets certain conditions.

  • Businesses with less than 10 employees (or 6 in Portland) must make an equivalent amount of time off available to all employees, but it may be unpaid.

WHAT YOU SHOULD DO TO PREPARE:

  • Make sure your policies adhere to Oregon Paid Sick Leave requirements, as of January 1, 2016.

  • Provide each employee notice of their current balance at least quarterly. You can easily meet this requirement if you can print current time off balances on employee paychecks.

  • Check out the BOLI FAQ page by clicking here.

  • Print and display or distribute the Oregon Sick Time Notification to all Oregon employees to notify them of their rights.