Member Article

In early 2020, most businesses found themselves unexpectedly pivoting their focus to unprecedented operational, workforce, supply chain, and legal changes in response to the COVID-19 pandemic. Businesses have had to prioritize those issues the past few years, and may not have had much, if any, time and resources available to devote to other non-pandemic-related employment law changes. Even as the pandemic eases, many businesses and human resources departments are still stretched thin and struggling to catch up with these changes while navigating and adapting to new workplace dynamics and expectations. However, Oregon businesses also recognize—perhaps to a greater degree than ever—that ensuring compliance with employment laws and regulations is a critical component not only to liability risk prevention but also to their retention and recruiting efforts in a highly competitive post-pandemic labor market.

To help businesses identify potential compliance gaps coming out of the pandemic, we’ve prepared a summary of  non-pandemic-related employment law changes affecting many Oregon employers since 2020.

• Broadened Pregnancy Accommodation and Written Policy Requirements. Effective January 1, 2020, broader nondiscrimination and accommodation protections for pregnancy, childbirth, and related conditions (including lactation) apply to Oregon employers with at least six employees. Those employers also must now have a written pregnancy accommodation policy that includes certain provisions, must provide copies of the policy to all existing employees and new employees upon hire, and must provide another copy to a pregnant employee within 10 days of notice that the employee is pregnant. For more information, see our prior article: Oregon Employment Law Update: Summary & To Do List (9/5/2019).
• New Federal Inspection Employee-Notice Requirement. Effective January 1, 2020, unless prohibited by federal law, employers in Oregon must notify employees within three days if they receive notice of a federal agency inspection of records or other documentation used to verify employees’ identity and employment eligibility (i.e., I-9 employment verification documents). The law sets forth certain requirements that the notice must satisfy.
• Additional Requirements for Noncompetition Agreements.
  • Effective January 1, 2020, for a noncompetition agreement with an Oregon employee to be enforceable, the employer must provide a copy of the signed noncompetition agreement to the employee within 30 days after their separation from employment (for all noncompetition agreements entered into after January 1, 2020). For more information, see our prior article: New Requirements for Noncompetition Agreements in Oregon and Washington (5/20/2019).
  • In addition, effective January 1, 2022, the Oregon legislature amended the statute limiting noncompetition agreements with employees to increase the gross salary and commission requirement to $100,533 (adjusted annually for inflation) and to shorten the permissible postemployment restriction period from 18 months to 12 months.
• Oregon Workplace Fairness Act (OWFA): New Written Policy, Agreement, and Other Requirements Related to Discrimination and Harassment Prevention.
  • Effective September 28, 2019, the OWFA extended the statute of limitations from one to five years for discrimination, harassment, and retaliation claims under ORS 659A.030 (based on race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age, or juvenile record), 659A.082 (based on a person’s service in a uniformed service), and 659A.112 (based on a disability).
  • Effective October 1, 2020, all employers with at least one employee in Oregon must have a written discrimination and harassment policy that includes certain specified provisions. In addition, they must provide copies of the policy to all existing employees and new employees upon hire, and another copy to an employee who makes a report of prohibited conduct under the OWFA.
  • Also effective October 1, 2020, Oregon employers may not include certain nondisclosure, nondisparagement, or no-rehire provisions in severance, separation, settlement, or other agreements with employees, unless certain exceptions apply. Those exceptions included: (a) if an employee who claimed to be aggrieved by prohibited discrimination, harassment, or retaliation covered by the OWFA voluntarily requested to include such provision, and the agreement provided the employee a seven-day revocation period; or (b) if the employee engaged in prohibited discrimination, harassment, or retaliation covered by the OWFA.
  • Effective January 1, 2023, the Oregon legislature amended the OWFA to modify the limitations related to nondisclosure, nondisparagement, and no-rehire provisions in agreements with employees. Beginning in 2023, employers may no longer request or require confidentiality provisions that prohibit employees from disclosing the amount or fact of a settlement that includes a release of claims covered by the OWFA; those provisions will be permissible only if voluntarily requested by the employee, and must be subject to a seven-day revocation period. The amendments also clarified that the employer may not make a settlement offer that is conditioned on the employee requesting to include such a provision. Further, the amendments slightly modified when an employee may voluntarily request to include an otherwise prohibited provision, changing the language from agreements with employees “who have claimed to be aggrieved by prohibited conduct” to whenever the terms of an agreement “release a claim brought against the employer” alleging prohibited conduct covered by the OWFA. Finally, the amendments require the employer (or mediator when applicable) to provide another copy of the nondiscrimination policy to an employee with whom the employer seeks to enter into a covered agreement.

For more information, see our prior article: Oregon Employment Law Update: Summary & To Do List (9/5/2019).

• Presumed Workplace Safety Violations and Extended Deadline. Effective June 15, 2021, Oregon law establishes a rebuttable presumption of liability if an employer takes adverse employment action against an employee within 60 days of the employee making a report of unsafe workplace conditions (essentially codifying the standard that Oregon courts already applied). In addition, effective January 1, 2022, the legislature extended the deadline from 90 days to one year for an employee to file a workplace safety discrimination or retaliation complaint with the Oregon Bureau of Labor and Industries (BOLI).
• Revisions to Predictive Scheduling Law to Include Childcare Accommodations. Effective June 3, 2021, the legislature broadened Oregon’s predictive scheduling laws to require large retail, food service, and hospitality employers to reasonably accommodate an employee’s work schedule availability or request when the employee identifies a limitation, change, or request because of matters related to child care.
• Oregon Family Leave Act (OFLA) Amendments. Effective January 1, 2022, the legislature amended OFLA to broaden employee eligibility for leave during a public health emergency, reducing the employment requirement from 180 days to 30 days. This effectively extends OFLA coverage during a period of public health emergency to all employees who have been employed by a covered employer for at least 30 days and worked at least 25 hours per week in the 30 days before the leave. The amendments also provided for reinstatement of leave protections to employees who are reemployed or return to work after a temporary layoff or furlough within 180 days. Finally, the amendments expanded the list of qualifying reasons for leave to include care of a child who requires home care due to the closure of the child’s school or childcare provider as a result of a public health emergency (codifying updates BOLI made to its interpretive rules the prior year).
• Prohibition of Discrimination Based on Hairstyles or Characteristics Associated with Race. Effective January 1, 2022, Oregon’s CROWN (Creating a Respectful and Open World for Natural Hair) Act amended the definition of “race” in the existing nondiscrimination statute to include “physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type and protective hairstyles.” Dress and grooming codes must not violate these provisions.
• Limitation on Driver’s License Requirements. Effective January 1, 2022, Oregon law prohibits employers from requiring a valid driver’s license as a condition of employment unless the ability to drive is an essential job function for the position or the requirement is related to a legitimate business purpose.
• Federal Prohibition of Mandatory Arbitration of Sexual Harassment Claims. Effective March 3, 2022, federal law amends the Federal Arbitration Act to prohibit employers from enforcing predispute agreements mandating arbitration of sexual assault and harassment claims. It also allows claimants the option to invalidate waivers of their right to litigate sexual assault and harassment claims in joint, class, or collective action proceedings. For more information, see our prior article: Employers Can No Longer Require Arbitration of Sexual Harassment Claims (2/18/2022).
• OR-OSHA Heat and Wildfire Smoke Rules. New permanent Oregon OSHA rules related to employee heat exposure took effect on June 15, 2022, and rules related to wildfire smoke exposure became effective on July 1, 2022. The heat rules apply to work where the heat index is 80 degrees Fahrenheit or above and require additional worker protection including shade, drinking water, and rest breaks. The wildfire smoke rules apply where workers are exposed to Air Quality Index 101 or higher and require protections including respirators, monitoring, and use of engineering and administrative controls. For more information, see our prior article: Get Familiar with Oregon OSHA Heat and Wildfire Smoke Rules
• Expiration of Temporary Pay-Equity Exception for Hiring and Retention Bonuses. Effective May 25, 2021, the Oregon legislature created a temporary exception from strict state law pay equity requirements for recruitment and retention-incentive bonuses. That temporary exception expired effective September 28, 2022. Unless or until the legislature amends Oregon’s pay equity law, there is a risk that recruitment and/or retention-incentive bonuses may violate the law unless supported by one or more of the specific bona fide factors listed in the law (i.e., a seniority system, merit system, or system that measures earnings by quantity or quality of production, workplace location, travel requirements, education, training, or experience).
• Expanded List of Authorized Uses for Oregon Sick Leave for Emergency Evacuation and Heat or Air Quality Index Conditions. Effective August 6, 2021, BOLI issued a temporary rule expanding the list of reasons eligible employees may use protected sick leave under the Oregon Sick Leave law. Specifically, unless an otherwise eligible employee is a first responder, the temporary rule allowed use of protected sick leave for absences related to:

(a) 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

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

Effective April 1, 2022, BOLI issued a rule change making those changes permanent.  

• New Required EEOC Poster. Effective October 19, 2022, and updated on October 20, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a new required “Know Your Rights: Workplace Discrimination is Illegal” poster (accessible here) that employers must post in the workplace. The new poster includes English, Spanish, PDF, HTML, and screen-reader optimized versions.
• New Agriculture Overtime Requirements and Tax Credits. Effective January 1, 2023, Oregon agricultural employers must pay overtime to agricultural workers, unless an exemption applies. The overtime requirements will be phased in over a four-year period. Beginning January 1, 2023, overtime at the rate of one-and-one-half the employee’s regular rate of pay will apply to hours worked beyond 55 hours in a workweek; beginning January 1, 2025, overtime will apply to hours worked in excess of 48 hours in workweek; and beginning January 1, 2027, overtime will apply to hours worked in excess of 40 hours in a workweek. To help offset increased wage costs related to overtime, tax credits will be available to eligible employers. For more information, see our prior articles: New Oregon Agriculture Overtime Requirements and Tax Credits Begin January 1, 2023, and HB 4002: Oregon Agriculture Overtime (Updated 3/15/2022).
• New Paid Family and Medical Leave Program. In 2019, the Oregon legislature passed the Paid Family Medical Leave Act, establishing a paid ‎family and medical leave insurance program for Oregon workers that will be funded by employee ‎contributions. After pandemic-related delays in finalizing the regulations and preparing for implementation, ‎the program—now branded as “Paid Leave Oregon”—is finally taking effect. While some clarifying ‎regulations are still pending, most of the key provisions have now been finalized. Contributions to ‎the Paid Leave Oregon fund are set to begin January 1, 2023, and employees will be able to apply for benefits beginning in September 2023. For more information, see our prior article: Be Ready: Paid Leave Oregon Is (Finally) Coming (9/15/2022).

Conclusion

Oregon employers who have not done so already may want to take steps to update their employment-related policies, practices, and agreements to comply with and address new laws implemented over the past few years.

Employers who need additional information or compliance assistance should feel free to reach out to Kelly Riggs or Nyika Corbett, or another attorney on Schwabe’s Employment Team.    

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for ‎your situation, you should contact an attorney. ‎

 

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