Oregon’s Progressive Workplace Laws May Serve as a Model for Your State

One of C2’s government contracting clients recently asked for guidance on Oregon’s HR requirements ahead of its planned opening of a new Oregon-based office.  A few years ago, there would not have been much to tell about Oregon’s HR landscape; the state mirrored federal requirements in most respects.  But over the last year, Oregon’s legislature and governor have pushed Oregon to the forefront of progressive employee protections. Not only that, other states are looking to Oregon as a model for how to craft meaningful changes into the employment relationship amid a backdrop of various federal laws that have remained unchanged for decades.  If your business has operations in Oregon, it’s time to re-evaluate your policies and procedures.  But even if you don’t yet have an Oregon presence, you would be wise to take note because you are likely to see some of these changes coming to your state(s) in the not too distant future. Workplace Laws

A. New Workplace Poster

Oregon has steadily increased its minimum wage and has put a new mandatory workplace poster in place for the newest minimum wage changes that went into effect July 1, 2019 for the following rate increases:

  • Standard: $11.25
  • Portland Metro: $12.50
  • Nonurban Counties: $11.00

B. Workplace Fairness Act

Oregon has enacted the Workplace Fairness Act that will become effective October 1, 2020.  The new law will make it an unlawful employment practice for employers to enter into an agreement with an employee or prospective employee that as a condition of employment, continued employment, promotion, compensation, or the receipt of benefits, contains a non-disclosure provision, a non-disparagement provision, or any other provision that has the purpose or effect of preventing the employee from disclosing or discussing:

  • Prohibited discrimination based on an individual’s protected class, including conduct that constitutes sexual assault or discrimination based on an individual being in the uniformed service (military) or based on disability; and
  • That occurred between employees or between an employer and an employee in the workplace or at a work-related event that is off the employment premises and coordinated by or through the employer or that occurred between an employer and an employee off the employment premises.

Only when an aggrieved employee requests it, an employer may enter into a settlement, separation, or severance agreement that includes one or more of the following provisions:

  • An aforementioned non-disclosure or non-disparagement provision.
  • A provision that prevents the disclosure of factual information relating to a claim of discrimination or conduct that constitutes sexual assault.
  • A no-rehire provision that prohibits the employee from seeking re-employment with the employer as a term or condition of the agreement.

The employee must be given at least seven (7) days to revoke the agreement after it has been executed, and the agreement cannot become effective until after this revocation period has expired.

C. Federal Inspection Notice

Oregon has also enacted a law, effective January 1, 2020, requiring employers to notify their employees of an upcoming inspection by a federal agency.  Employers must notify their employees of an upcoming inspection if it will require access to employer records or employee forms and any employee identity and employment eligibility documentation. Notification to employees must be provided within three (3) days of receiving notice of the inspection from the federal agency by posting a notice written in English and other predominantly used languages in a conspicuous and accessible location.  Employers must make reasonable attempts to distribute individual notifications to employees in their preferred language.

The notice to employees must include:

  • A copy of the federal agency’s notice of inspection received by the employer;
  • The date of the inspection;
  • To the extent the employer knows, the scope of the federal agency’s inspection;
  • The employer’s obligations with respect to providing information within the scope of the federal agency’s notice of inspection; and
  • A telephone number, prescribed by the Oregon Bureau of Labor and Industries, for a hotline operated by an organization that provides information and advocacy related to immigrant and refugee workers’ rights.

D. Minimum Wage for Disabled Employees

Effective October 31, 2019, an employer in Oregon that is authorized to employ individuals with disabilities at sub-minimum wage, may not employ or agree to employ individuals with disabilities at an hourly rate lower than $9.25 from July 2, 2020 to June 30, 2021; $10.75 from July 1, 2021 to June 30, 2022; $12.50 from July 1, 2022, to June 30, 2023 and after June 30, 2023, the state’s then applicable minimum wage for all workers.

E. New Family Leave Protection

Effective January 1, 2020, The Oregon Family Leave Act (OFLA), will expand the definition of a serious health condition to include a period of leave for the donation of a body part, organ, or tissue, including preoperative or diagnostic services, surgery, post-operative treatment, and recovery (living donor). Eligible employees who are living donors are entitled to up to 12 weeks of unpaid, job-protected leave per year.

F. Rest Periods for Nursing Mothers

Effective September 30, 2019, Oregon employers must provide reasonable, unpaid rest periods to accommodate an employee who needs to express milk for her child each time the need arises. An employer with ten (10) or fewer employees is not required to provide such rest periods if doing so would impose an “undue hardship” on business operations.  When possible, an employee must provide reasonable notice to the employer that she intends to express milk upon returning to work after the child’s birth.

G. Pregnancy Accommodation

Effective January 1, 2020, Oregon employers with six (6) or more employees will have to comply with Oregon’s Accommodation for Pregnancy law that will base accommodation on an employee or applicant’s known limitations related to pregnancy, childbirth, or a related medical condition, including but not limited to lactation.  It will be unlawful to deny employment opportunities to an applicant or employee if the denial is based on the need of the employer to make reasonable accommodation to the known limitations. Employers will not be allowed to fail or refuse to make reasonable accommodation to the known limitations, unless the employer can demonstrate that the accommodation would impose an “undue hardship” on its business operations. Employers cannot take an adverse employment action or in any manner discriminate or retaliate against an applicant or an employee, with respect to hire or tenure, or any other term or condition of employment, because the applicant or employee has inquired about, requested, or used a reasonable accommodation for her pregnancy. Furthermore, employers will not be able to require an employee to take family leave under state law or any other leave, if the employer can make reasonable accommodation to the known limitations surrounding the employee’s pregnancy.

Under the act, employers must also post signs that provide notice informing employees of the employment protections under this new law. This includes the right to be free from discrimination because of pregnancy, and the right to reasonable accommodation. These signs must be conspicuously posted in an accessible location in or about the premises where employees work.

H. Non-compete Agreements

Effective January 1, 2020, Oregon will require all employers to provide a terminated employee with a signed, written copy of the terms of the employee’s previously executed non-competition agreement within seven (7) days of the employee’s termination, otherwise the agreement will not be enforceable.

I. New LGBTQ Protections

In May 2019, Oregon amended its employment discrimination law by clarifying that sexual orientation is not considered a physical or mental impairment; and that an individual does not have a disability solely because of the individual’s sexual orientation.

The law also removed the following language within the state’s reasonable accommodation requirements:

  • “Homosexuality and bisexuality are not physical or mental impairments.”
  • “An employer may not be found to have engaged in an unlawful employment practice solely because the employer fails to provide reasonable accommodation to an individual with a disability arising out of transsexualism.”
  • “Transvestism is not a physical or mental impairment.”

J. Mandatory Anti-Discrimination Policies

As of October 31, 2019, every employer in Oregon must adopt a written policy containing procedures and practices for the reduction and prevention of prohibited discrimination, including sexual assault, and discrimination based on an individual being in the uniformed service (military) or based on disability. At a minimum, the policy must:

  • Provide a process for an employee to report prohibited conduct;
  • Identify the individual designated by the employer who is responsible for receiving reports of prohibited conduct, including an individual designated as an alternate to receive such reports;
  • Include the statute of limitations period applicable to an employee’s right of action for alleging unlawful conduct;
  • Include a statement that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement, including a description of the meaning of those terms;
  • Include an explanation that an employee claiming to be aggrieved may voluntarily request to enter into an agreement, including a statement that explains that the employee has at least seven (7) days to revoke the agreement; and
  • Include a statement that advises employers and employees to document any incidents involving prohibited discriminatory conduct, including sexual assault.

Employers must:

  • Make the policy available to employees within the workplace;
  • Provide a copy of the policy to each employee at the time of hire; and
  • Require any individual who is designated by the employer to receive complaints to provide a copy of the policy to an employee at the time that the employee discloses information regarding prohibited discrimination or harassment.

In addition, violations of the law may render severance or separation payments void if the violations were a substantial contributing factor in causing the separation from employment.

K. Conclusion

Oregon’s legislative changes may seem surprising to some, but consider the changes in context.  Almost no updates have been made to federal leave or anti-discrimination laws in over 25 years (save for the Lily Ledbetter Fair Pay Act, enacted in 2009).  In that span, public opinion has shifted overwhelmingly toward increased employment protections and job protected leave for a variety of individuals.  With the current legislative silence from the federal government on these issues, states have taken it upon themselves to try and address their residents’ growing calls for change.  Oregon is simply the latest state to take action…and it almost certainly will not be the last state to do so.  Employers who do business is multiple jurisdictions must now be keenly aware of each state’s leave and anti-discrimination laws in order to ensure that their operations are compliant.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.