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FEBRUARY 2019

 

In This Issue:

Impact of the Supreme Court's Action and Inaction on the Workplace

By Caitlin Egeck, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

As you may recall, in November of 2018, the Trump administration asked the Supreme Court of the United States (SCOTUS) to review the Deferred Action for Childhood Arrivals (DACA or Dreamer) Program in hopes of putting an end to the program. To recap, DACA is an Obama-era federal program that grants undocumented immigrants who had arrived in the United States before the age of 16 (among other factors), a temporary work status and the opportunity to defer deportation for two years with a chance of renewal.

On January 22, 2019, SCOTUS released an order granting or denying review of a list of cases that were before the Court. Notably missing from this list was DACA – SCOTUS decided not to take action to determine if the program should be phased out. The Supreme Court’s inaction likely means that a DACA decision will not be rendered until the year 2020 – assuming SCOTUS decides to hear the case.

Without action from SCOTUS, DACA remains active and the nearly 800,000 “Dreamers” are currently able to apply for their renewals, although the program is not accepting new applicants. With this, employees on a “Dreamer” status may renew for active work authorization and “Dreamers” with current work authorization are able to continue working.

Although there remains much uncertainty around the status of DACA, it is important to remember that “Dreamers” cannot receive any differential treatment in the workplace from other employees. However, as an employer, if a “Dreamer’s” work authorization expires without renewal, you would be required to terminate that employee for lack of proper work status.

In other employment news, SCOTUS’ released order also revealed that the Court failed to take action in determining whether discrimination against an employee on the basis of sexual orientation and gender identity constitutes unlawful employment discrimination under Title VII of the Civil Rights Act of 1964.

Due to the Supreme Court’s current inaction and lower court’s differing opinions, there continues to remain a lot of uncertainty surrounding sexual orientation and gender identity discrimination in the workforce under federal law. However, Oregon laws specifically prohibit employment discrimination based on sexual orientation and gender identity and employers must comply with those prohibitions regardless of the uncertainty at the federal level.

Cascade will continue to monitor and update you on any DACA and Title VII related news. If you have any questions, please let us know!

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Trouble Figuring out Oregon’s Equal Pay Law? We’re Here to Help.

By Carey Klosterman, Director of Research and Compensation Services
Cascade Employers Association
[email protected]

It’s all the rage in the world of human resources . . . Pay Equity! You have heard about it. Stressed about it. Maybe even cried about it. By following some consistent steps, you will get through this with flying colors.

Cascade Employers Association has developed a comprehensive Pay Equity Guide including all the detail behind the law, information about how best to prepare, FAQ’s, pay equity scenarios, important definitions, a pay equity checklist and a comparable characteristics worksheet and applicable definitions. This is a great, very comprehensive tool, designed to help organizations navigate the new law.

Let’s Review

It Is Unlawful for Oregon Employers To:

  • Discriminate between employees based on a protected class in the payment of wages or other compensation for work of a comparable character.
  • Pay wages or other compensation to any employee at a rate greater than that at which the employer pays wages or other compensation to employees of a protected class for work of comparable character.
  • Screen applicants based on current or past compensation.
  • Determine compensation for a position based on current or past compensation of a prospective employee.
  • Discriminate in the payment of wages or other compensation because an employee filed a claim under this law.

What You Should be Doing Now:

  • Ensure job descriptions are up-to-date and ACCURATE (detail what employees do and identify an amount of time spent performing essential duties and functions). Think about completing a comparable characteristic worksheet (included at the end of the Pay Equity Guide) and include with each job description.
  • Develop a formal compensation (pay) structure.
  • Formalize (and document) processes.
  • Have a pay equity analysis conducted to see where issues may be. Even if you choose not to do a formal equal pay analysis it is important to look for any differentials in pay for work of a comparable nature. If you identify ANY difference you must be able to account for and justify ALL differences through a seniority system, merit system, a system that measures earnings by quantity/quality of production, workplace locations, travel (if necessary and regular), education, training, experience or a combination of these factors. Based on the statute, other factors you may consider such as intangibles like leadership qualities, cannot be included to explain differentials. Only those listed above may be used to justify differentials.

If you would like assistance beginning the process, access to our Pay Equity Guide, or to have a formal Pay Equity Analysis conducted, contact us.. We definitely can help!

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Hot Compliance Question

By Caitlin Egeck, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

Question: On a job application, can I ask applicants to list what languages they speak, read, or write fluently?

Answer: It is not a good idea to ask job applicants about what languages they are able to speak, read, or write fluently, as this may touch on a protected class such as National Origin and may not be job related.

If a specific language skill is a legitimate requirement or a preferred requirement of the job, you may list that specific language under requirements or preferred requirements on the job description. Employers can also confirm that skill during the interview.

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HR Stats You Should Know

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
[email protected]

$40 Million. That is the total amount of settlements the OFCCP secured in 2018.

With a flurry of new initiatives including focused reviews, AAP verifications and early resolution procedures, now is the time to make sure your affirmative action program is compliant and up to date.

If you’re a covered federal contractor or subcontractor, we don’t want you to become one of these statistics. Our team of experts will help make sure your organization meets all of its AAP obligations.

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Discrimination and Workplace Harassment Bill Drafted

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
[email protected]

Oregon’s Senate Committee on Workforce recently had a hearing on a draft bill regarding discrimination and harassment in the workplace.

This bill has not been introduced, but it would result in some significant changes including extending the statute of limitations to seven years (currently one year), allow personal liability for an owner, president, partner or corporate officer, require certain workplace policies and notices to employees, and restrict certain provisions in employee non-disclosure and separation agreements.

Cascade will continue to monitor this draft bill and others that are introduced this session.

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Market Volatility and What You Can Do Now

Guest Article By: Dan Sholian
Matisse Capital
[email protected]

The last year had its share of dark times, but periods of volatility, poor returns, economic downturns, and geopolitical chaos are inevitable and, in the end, create the opportunities that allow fundamental strategies to work. Just like water doesn’t instantly vaporize, but instead needs to first boil and churn to transform into rising steam, transitions in capital markets are painfully chaotic in the short term. But this “phase transition,” to borrow a term from physics, is ultimately necessary to move us to a new state. When we do transition to an environment where fundamentals and valuations matter and the distortions we’ve experienced during this market cycle fade to the background, it will be an exciting and rewarding time to be a globally diversified investor again.

Your Market Downturn Toolkit

"Stay the course." "Stick with your asset allocation plan." "Focus on what you can control." Those are worthwhile pieces of advice during market corrections like the one we've experienced recently. But they can ring a little platitudinous for some investors. How do they know if the course they're on is the right course? What if they don't know what their asset allocations are, let alone whether they're reasonable? And which factors do they actually control, and how can they control them?

Knocking off the following investment jobs will keep you focused on the big picture and cope with market volatility in a concrete and productive way. Not only will it give you more confidence in your plan — or at least focus your attention on the steps you need to take in order to get it in better shape — but it will also serve to distract your attention from activities that aren't helpful, like compulsively checking your portfolio balance or the S&P's minute-by-minute fluctuations.

Job: Check Up on the Reasonableness of Your Stock/Bond Mix

As markets have trended up for the better part of the decade, it has been easy to let equity winners ride. The net effect of that inattention is that untended portfolios have become progressively more equity-heavy and volatile: A portfolio that was 60% stock/40% bond in 2009 is more than 80% stock today. Thus, a key job for investors attempting to see if their portfolios are too risky is to assess their asset allocations. People who are retired or getting closer to retirement can use their own portfolio spending amounts to dictate a sensible asset allocation framework.

Job: See If Your Plan Is on Track

Many investors naturally wonder if an investment downturn is going to be so severe that it derails their plans. Will retirement — which seemed so close just a few short weeks ago — need to wait? Are there any ways to make a save? The gold standard for getting a check on the viability of your plan is to sit down with a fee-only financial planner. There are also plenty of online tools available for DIYers aiming to get their arms around whether their retirement plans are on track. We recommend T. Rowe Price's Retirement Income Calculator, but it's worthwhile to sample a range of options. To keep your plan on track on an ongoing basis, an investment policy statement is invaluable. You can customize yours to suit your own needs, but at a minimum, your document should state your investment goals (date, amount, duration), ongoing contribution amounts, basic asset allocation framework, and what qualities you're seeking in your investments.

Job: Check Up on Investment Quality

After you've assessed your portfolio's asset allocation and viability, take a closer look at the quality of the investments you've chosen to populate your plan. Rather than being blinded by short-term gains (or losses), try to focus instead on the big picture. Do your holdings align with the qualities you've laid out in your investment policy statement (above)? Is your portfolio as streamlined as it can be, or can you identify redundancies?

Job: Check Up on Your Spending

Investors are often exhorted to focus on what they can control when the markets are uncertain and volatile. At the top of the "In Your Control" list should be your savings and spending rates: How much you are able to invest on an ongoing basis will be by far the biggest determinant of when and whether you reach your financial goals. A strong market and enlarged portfolio balances can stoke a "wealth effect," making it more comfortable to spend than you otherwise would. If you haven't done a budget recently, there is a host of online tools and apps for tracking your expenses on an ongoing basis.

Alternatively, you can create a budget the old-fashioned way, using an Excel spreadsheet or other budget worksheet.

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