The Oregon Legislature has been busy this session working on the passage of several new employment laws. Miller Nash Graham & Dunn LLP will provide a comprehensive legislative update when the session is over later this summer, but here are a few new laws of which employers should take note.
Oregon Bans the Box—House Bill 3025.
As soon as the governor signs House Bill 3025 into law, Oregon will join several other states and large U.S. cities in adopting "ban the box" legislation. The passage of House Bill 3025 makes it unlawful for an Oregon employer to exclude an applicant from an initial interview because of the applicant's past criminal conviction. (Law enforcement and criminal justice employers are exempt under House Bill 3025.) The employer cannot require the applicant to disclose his or her criminal history before an initial interview, either in application materials or by other means. The law is intended to prevent an employer from automatically rejecting a candidate because of a past conviction.
The law does not, however, prohibit an employer from considering an applicant's criminal history later in the hiring process. Therefore, even though the employer cannot ask for conviction history on its application materials, it can still require each applicant to undergo a background check as a condition of employment and use the information obtained from the background check in a nondiscriminatory manner.
Employers should review their application materials and hiring procedures to make sure that they comply with House Bill 3025
Oregon's Statewide Sick Leave Law—Senate Bill 454
Starting January 1, 2016, Oregon law will require many employers across the state to provide protected paid sick time to their employees. Oregon employers with ten or more employees must provide the sick leave as a paid benefit; smaller employers with fewer than ten employees can provide the leave as an unpaid benefit. The provision of this statewide sick leave benefit comes two years after the City of Portland adopted its sick time ordinance.
Senate Bill 454 preempts sick time regulations passed by local governments. This means that beginning January 1, 2016, the Portland Sick Time Ordinance will no longer be effective and that Eugene's ordinance, the implementation of which has been delayed, will never take effect.
The new state sick leave law mimics the format of Portland's ordinance in many respects. For instance, Oregon's Statewide Sick Leave Law:
- Requires a covered employer to provide either one hour of sick time for every 30 hours worked, or one and one-third hours for every 40 hours worked, up to 40 hours per year;
- dictates that an eligible employee be paid at his or her regular rate when taking paid sick time;
- permits an employee to accrue at least 40 hours of sick time, and allows for more accrual at the employer's discretion;
- requires a covered employer to permit each employee to roll over at least 40 hours of accrued but unused sick time from one year to the next unless the employer's policy provides for front loaded sick time at the beginning of each year;
- enables an eligible employee to take paid sick leave in hourly increments as it accrues;
- permits sick time to be used for designated purposes that include, for example:
- care or treatment of the employee's mental or physical illness or the mental or physical illness of the employee's family member;
- any of the reasons enumerated in Oregon's domestic violence, harassment, sexual assault, and stalking law (ORS 659A.272);
- any of the reasons permitted under the Oregon Family Leave Act;
- contains notice requirements and guidelines for requesting medical documentation and verification;
- creates a private right of action for violation of the law; and
- deems compliant existing sick-leave or paid-time-off policies that are "substantially equivalent to or more generous" than the law.
But Senate Bill 454 is different from the Portland Sick Time Ordinance in some key respects. First, the state law applies to public employers. Second, under the new state law, an employee will begin to accrue sick time on his or her first day of employment (or January 1, 2016, whichever comes later) and will be eligible to use the sick time on the 91st day of employment; there is no requirement for the number of hours that the employee must work before becoming eligible to use sick time. Third, the state law does not contain recordkeeping requirements.
Portland employers that already comply with the Portland Sick Time Ordinance may be wondering where the passage of Senate Bill 454 will leave them on January 1, 2016. Practically speaking, not much changes for employers in Oregon's largest city. Senate Bill 454 specifically states that for employers in cities where the population is more than 500,000 (currently only Portland), sick leave must be a paid benefit once the employer has six (not ten) employees. Therefore, employers that were required to provide paid sick leave under the Portland Sick Time Ordinance are still required to give paid sick leave under the new state law.
By January 1, 2016, employers should review their current policies to make sure that they comply with Senate Bill 454.
The Oregon Paycheck Fairness Act
On June 10, 2015, Governor Brown signed the Oregon Paycheck Fairness Act which makes it illegal for an employer to take disciplinary action against an employee who has inquired about, discussed, or disclosed his or her wages or the wages of another employee. The law also prohibits an employer from taking negative employment action, discriminating, or retaliating against an employee who has made a charge, filed a complaint, or prompted an investigation based on the disclosure of wage information. Employees will have the right to file a private action against their employer for any violation of the law.
Employers should already be in compliance with the Oregon Paycheck Fairness Act because of comparable requirements of federal law. The passage of Oregon's law, however, serves as a good reminder for employers to make sure that their managers and other appropriate personnel are trained on how to handle discussions concerning wages and familiar with the requirements concerning equal pay.