HR NOTEBOOK

Oregon employers are facing a slew of potential new labor and employment laws in 2013. While none of these proposals is a law yet, for some it is just a matter of time before passage. Below we discuss several of the more consequential bills pending before the Oregon legislature.

Paid Disability/Sick Leave
HB 2645, introduced on January 14, 2013, would create a short-term disability insurance program (basically paid medical leave). Pursuant to the bill, an eligible employee would receive a weekly benefit “equal to 55 percent of the employee's average weekly wages during the highest paid quarter of the base year, up to a maximum of 64 percent of the state average covered weekly wage as determined by the Employment Department for the preceding calendar year for an employee who worked at least 2,000 hours in the base year, or a prorated amount for an employee who worked fewer than 2,000 hours in the base year”. The program would be funded by a payroll tax and would be administered by BOLI. The bill currently is being considered by the Business and Labor Committee. (Note: HB 2355, a similar bill introduced during the 2011 legislative session, failed.)

Related to this, the City of Portland is considering a paid sick time proposal that was introduced by Commissioner Amanda Fritz on January 14, 2013. In contrast to the clear funding structure included in HB 2645, the proposed City ordinance is completely unfunded and would significantly increase payroll costs for employers. Here are several key aspects of the proposal.
 

• If an employer has at least 6 employees, its employees working in the City for at least 240 hours in a year would accrue one hour of paid sick leave for each 30 hours worked, up to a maximum accrual of 40 hours per calendar year.
• Where the employer has fewer than 6 employees, its eligible employees accrue unpaid sick leave at the same rate.
• An employee would be allowed to use the paid (or unpaid) leave for his/her own illness or health condition, as well as to care for a family member, for various purposes related to sexual assault or domestic violence, or related to certain public health emergencies.
• Medical verification would be allowed only for absences of three days or more, or where an employer suspects sick leave abuse.
• At the end of the calendar year, accrued unused sick time may be carried forward; however, an employee would not be able to use more than leave 40 hours per year.
• On separation from employment an employee is not entitled to be paid for accrued but unused paid leave time.
• The ordinance contains a limited exception with respect to employees hired through a hiring hall pursuant to a collective bargaining agreement that provides for equal or better paid time off benefits.

Social Media Account Passwords
The use of social media continues to explode across all age demographics. “Social media” refers to forms of electronic communication through which users share information, ideas, personal messages, and other content. Popular examples include Facebook, Twitter and Instagram. (Note: The term social media was not in use when Facebook launched in 2004.)

Social media users share ideas on all varieties of subjects, including about their employers and about subjects that employers find unsavory. This has prompted an increasing number of employer requests to applicants and/or employees for access to their social media accounts (e.g., by revealing a Facebook password). Refusals to comply have led to terminations, rejections of applications, resignations from employment, and withdrawals of applications. Additionally, there have been numerous complaints that these requests violate privacy rights.

Oregon is the latest state to consider regulating this area and two bills introduced last month are pending in the state legislature. SB 344 would make it “an unlawful employment practice for an employer to seek to obtain, to obtain or to use the user name, password or other means for accessing a personal account of an employee or a prospective employee on a social networking website” as a condition of employment or continued employment or in relation to the terms, conditions or privileges of employment. Similarly, HB 2654 would make it an unlawful employment practice for an employer (a) to require an applicant or employee to reveal his/her user name or password, (b) to require an applicant or employee to add the employer as a contact, and/or (c) to retaliate for any refusal. Both bills would allow for the recovery of damages and injunctive relief.

As noted, Oregon is not the first state to consider such legislation. California, Maryland, Michigan, New Jersey, Delaware and Illinois already have passed laws dealing with this subject (although not all of these laws are identical). A number of other states also are considering legislative proposals. The bottom line is that there appears to be significant momentum, which makes it likely that similar legislation will eventually pass in Oregon (whether it is one of those currently proposed, a combination of those two bills, or a bill not yet introduced).

Increased Time To File Discrimination Claims
Current Oregon law allows claimants one year within which to file claims with BOLI or in court alleging unlawful discrimination based on a protected status (such as race, religion, or gender). This statute of limitations establishes the window of time within which to file claims. The goal of a limitations period is that insure that claims are brought and considered before the passage of time causes evidence to be lost or destroyed, witness memories to fade, and/or witnesses to die, move away or otherwise become unavailable to testify. The limitations period also allows for parties or potential parties to move forward without the threat of being forced to defend against stale allegations, which HB 2606 would double the statute of limitations applicable to employment discrimination claims. If enacted, an employee would have two years within which to bring claims against employers.

Definition of Disability Watered Down
Under Oregon law, persons who have a “disability” within the meaning of the statutory definition are protected from unlawful discrimination. This makes the definition of that term key. Currently, an individual has a disability if s/he has a physical or mental impairment that substantially limits him her in one or more major life activities, has a record of having such an impairment, or is regarding as having such an impairment. That definition contains the phrase “substantially limits”, which also is defined. Currently, an impairment is considered to substantially limit if it “materially restricts” a person in one or more major life activities.

HB 2111 would water down this definition by striking the word “materially” from the law. Pursuant to the proposed change, a physical or mental impairment need only “restrict” one or more major life activities. As a result, more individuals would meet the definition of disability. As a practical matter, this change undoubtedly will result in more litigation. A person disagreeing with an employer decision (e.g., not to hire, not to promote, and/or to terminate) would more easily be able to maintain a claim for alleged disability discrimination.

Confidential Investigation Files Shielded from Disclosure to Employees
Current Oregon law gives an employee or former employee the right to review his/her personnel records that have are or have been used to determine his/her qualification for employment, promotion, additional compensation or employment termination or other disciplinary action.

HB 2682 would permit an employer to deny inspection of “confidential investigation files”, which term would be defined to mean “witness statements, investigator notes and other underlying documentation that are gathered to support an employment decision.” Disciplinary warnings, termination notices or other documents that have been provided to an employee would continue to be reviewable.

Direct Deposit of Paychecks Permitted
Many employers want to pay employees by direct deposit. There are cost savings and efficiencies that may be realized. In addition, it makes the delivery of final paychecks easier. Current Oregon law permits direct deposit only where the employee agrees to that arrangement.

HB 2683 is an attempt to improve this situation. It would allow employers to decide to pay employees by direct deposit and would eliminate the need for employee agreement. However, there is nothing in the proposed bill that would require employees to have an account into which pay may be directly deposited; it also does not expressly state that an employee must provide account information for direct deposit to his/her employer.

This summarizes just a few of the more than 20 labor and employment related measures currently being considered by the Oregon legislature. Bullard Law will continue to monitor the progress of these proposals and others that may be introduced during the legislative session. Please feel free to contact us anytime with any questions about these matters or any other labor, employment, or benefits issues.