Oregon Passes Several New Employment Related Bills

The Oregon Legislature passed several employment related bills this session. Many of these will take effect at the beginning of 2022, but some were passed by emergency order, meaning they’ve already taken effect.

Bill Amends OFLA

Governor Brown signed Oregon House Bill 2474 into law, which amends the Oregon Family Leave Act (OFLA). Below are the highlights:

Employee Eligibility

• During a public health emergency, all employees of a covered employer (25 or more employees in Oregon) are eligible to take leave for any OFLA reason unless:
  • The employee has not worked for the covered employer for at least 30 days immediately preceding the date on which family leave would begin, or
  • The employee averages fewer than 25 hours per week in the 30 days immediately before the date on which the family leave would commence.
• Employee’s OFLA eligibility can be immediately reestablished/restored if:
  • After a separation, the employee is re-employed by the employer within 180 days of the separation provided they were eligible for OFLA at the time of the separation.
  • An employee is re-employed within 180 days of having experienced a cessation in their work hours, provided they were eligible for OFLA at the time of the cessation in work hours began.
• Additional eligibility requirements include:
  • With an employee whose job has been reestablished, that employee is not entitled to a new bank of family leave time. Rather, any family leave taken by the employee within any one-year period continues to count against the length of time of family leave the employee is entitled to.
  • The amount of time that an employee is deemed to have worked for a covered employer prior to a break in service due to a separation from employment or a temporary cessation of scheduled hours shall be restored to the employee when the employee is reemployed by the employer within 180 days of separation from employment or when the employee returns to work at the end of the temporary cessation of scheduled hours of 180 days or less.

New Reason For Leave

• An eligible employee may take leave to care for their child who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency.

Documentation

A covered employer may request verification of the need for leave for the purpose of caring for a child who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency. A request for verification may include a request for:

• The name of the child requiring home care;
• The name of the school or child care provider that is subject to closure;
• A statement from the employee that no other family member of the child is willing and able to care for the child; and
• A statement that special circumstances exist that require the employee to provide home care for the child during the day, if the child is older than 14 years of age.

Gender Inclusivity

• The amendment changed the language surrounding pregnancy disability leave by replacing “female” with “an employee.”

As a reminder, OFLA requires employers with 25 or more employees to allow eligible employees with up to 12 weeks (with some exceptions) of protected leave to care for themselves or family members. Outside of a public health emergency, to be eligible, employees must have worked an average of 25 hours per week for 180 days or just 180 days for parental leave. This law takes effect January 1, 2022.

Bill Extends Time to File Retaliation Claim

Oregon HB 2420 will give employees one year to file a BOLI complaint alleging retaliation or discrimination for reporting unsafe working conditions. Current law requires such claims be made within 90 days of when the employee or prospective employee has reasonable cause to believe that the violation has occurred.  This law takes effect January 1, 2022.

Bill Prohibits Requiring Driver License as a Condition of Employment

Oregon SB 569 prohibits employers from requiring as a condition for employment or continuation of employment, an employee or prospective employee to have a valid driver license unless the ability to legally drive is an essential function of the job or is related to a legitimate business purpose.

This bill also prohibits an employer from refusing to accept from an employee or prospective employee, as an alternative to a driver license, any other identification documents that are deemed acceptable for the purpose of forms prescribed by the United States Citizenship and Immigration Services that are used for verifying the identity and employment authorization of individuals hired for employment in the United States. This law takes effect January 1, 2022.

Bill Creates Rebuttable Presumption of Retaliation

Oregon SB 483 creates a rebuttable presumption that an employer has engaged in unlawful retaliation against an employee or prospective employee if a person bars or discharges them from employment or otherwise discriminates against them within 60 days after they've engaged in certain protected activities such as making a claim of unsafe working conditions. This presumption may be rebutted by a demonstration of a preponderance of the evidence showing a legitimate business reason. This law took effect June 16, 2021.

Bill Bans Discrimination Against Natural Hair

Oregon HB 2935 expands Oregon’s protection against racial discrimination by expanding the definition of race to include: “physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type and protective hairstyles.” Protective hairstyles includes hairstyle, hair color, or manner of wearing hair that includes, but is not limited to, braids, locs, and twists. 

This law is an important legislative change, as it increases protections against discrimination for characteristics that are commonly associated with race. This law takes effect January 1, 2022.

Bill Amends Employee Input on Work Scheduling Law – Applies to Businesses Covered under Predictive Scheduling

Oregon SB 716 amends ORS 653.450, which is a statute that gives Oregon employees the right to give input on their work schedules without fear of retaliation. SB 716 clarifies that child care needs are a reason that employees may identify in having limitations or changes to their work schedule. This statute applies to retail, food service and hospitality businesses with 500 or more employees worldwide. It is important to note that this sector of businesses are also subject to Oregon’s predictive scheduling law, which requires covered businesses to provide at least 14 days’ notice of a worker’s schedule.

An employee’s request for reasonable accommodations could entail not being scheduled to work shifts during certain times or at certain locations. Moreover, employers may require an employee to provide reasonable verification to support their request and the employer is responsible for any costs to the employee, such as lost wages, for providing any requested medical verification. Employers are not obligated to grant an employee's request, but may not retaliate against an employee for making a schedule request.

Bill Delays Paid Family and Medical Leave

Oregon HB 3398 postpones the Paid Family and Medical Leave program previously set to take effect January 1, 2022. As a reminder, the Paid Family and Medical Leave program will provide eligible employees with up to 12 weeks (with some exceptions) of partially or fully paid time away from work for family leave, medical leave or safe leave from harassment, sexual assault or stalking. 

Prior to HB 3398, employers and employees were slated to begin making contributions into the program starting January 1, 2022. However, HB 3398 delays the starting date for contributions until January 1, 2023. The starting date for benefit payments to employees has also been delayed and will begin September 3, 2023 instead of January 1, 2023. The bill also requires the Oregon Employment Department to adopt rules for the program by September 1, 2022.

Bill Further Restricts Noncompetition Agreements

Oregon SB 169 further restricts noncompetition agreements by modifying ORS 653.295.

SB 169 makes the following changes:

1. Void Instead of Voidable
   Under the current statute, a noncompetition agreement that did not satisfy the requirements of the statute became “voidable” rather than “void.” With the voidable terminology, some Oregon courts interpreted that as imposing a burden on employees to take affirmative action to void a noncompetition agreement. SB 169 changes the language to “void” meaning noncompete agreements that do not satisfy all of the statutory requirements will be void and unenforceable even if the employee does not take steps to void the agreement. While this is a nuanced issue, it makes enforcing noncompete agreements even more difficult for employers.

2. Shorter Restrictive Period
   Under the current statute, a noncompetition agreement was voidable if the restrictions went beyond 18 months. SB 169, the law shortens the restrictive period to 12 months.

3. Revised Salary Threshold
   Under the current statute, for a noncompetition agreement to be enforceable, the employee must meet Oregon’s white-collar exemptions and earn a gross salary that exceeded “the median family income for a four-person family” at the time of termination. In SB 169, the law clarifies that an employee’s gross salary and commissions must exceed $100,533, calculated on an annual basis, at the time of the employee’s termination from employment.

4. Overcoming Salary and White Collar Provisions
   This bill also allows employers to overcome the salary threshold mentioned above, if it states in writing that during the restrictive period (up to one year) the employer will pay the employee the greater of at least 50% of their gross annual base salary and commissions at the time of termination or 50% of $100,533 and as adjusted for inflation.

This law will apply to noncompete agreements signed on or after January 1, 2022.

Bill Amends Pay Equity Law

HB 2818 amends Oregon’s Pay Equity law allowing two COVID-19 related exemptions from the definition of compensation. First, the bill excludes vaccine incentives from its definition of compensation, thus allowing employers to offer incentives without risk of violating Oregon’s Pay Equity Law. This applies to lawsuits filed on or after April 29, 2021, and includes BOLI complaints that were not resolved as of that date. Second, the bill excludes hiring and retention bonuses from the definition of compensation, but only for the period of time between May 25, 2021 and March 1, 2022. After March 22, 2022, that exclusion will no longer apply and such bonuses will fall within the definition of compensation under Oregon’s Pay Equity law. This law is currently in effect.