It's a Wrap! 2009 Oregon Legislature Adjourns After Creating New Employment and Labor Concerns and Considerations for Employers

On the heels of the United States Supreme Court's decision in Ricci v. DeStefano, No. 07-1428 (June 29, 2009), the Oregon legislature complicated the employment arena as it closed the Oregon 2009 legislative session. The legislature expanded rights that already existed, and created some new employment laws. The new laws touch on a variety of employment issues, including labor, religion in the workplace, and disability discrimination. Employers should become familiar with the new legislation and take steps to ensure compliance.

NEW LEGISLATION

The "Gag Rule." Probably the most controversial of the new legislation is Senate Bill 519, known by some as the "Gag Rule." Senate Bill 519 prohibits employers from discharging or disciplining employees who refuse to "attend or participate in an employer-sponsored meeting * * * [with] the primary purpose * * * [of communicating] the opinion of the employer about religious or political matters," which is the legislature's way of saying "anti-union meetings." Under the National Labor Relations Act (the "NLRA"), an employer is generally free to require employees to attend meetings that occur on company time and attempt to persuade employees to vote a particular way in union elections, so long as the employer does not promise benefits or make threats. Indeed, this is often the employer's only opportunity to express its views and make a case for non-union status. Because the new legislation bans mandatory employer captive-audience speeches during a union organization campaign (even if the meeting occurs during the workday and the employee is paid for the time), and because it places strict limits on free speech, opponents to the legislation argue that Senate Bill 519 is preempted by the NLRA and also violates the state and federal constitution. A similar California law was struck down by the Supreme Court recently, and a proposed Washington statute was shelved after the Washington attorney general concluded that it would be preempted by federal labor law. Employers should note that Senate Bill 519 does not prohibit them from holding meetings on religious and political matters—the employer just cannot require attendance. Unless and until overturned, the "gag rule" provides for penalties for employers who enforce attendance. Stay tuned to see whether this law gets challenged and holds up to a court's evaluation of whether it is preempted. (Effective January 1, 2010.)

Private-Employer Whistleblower Claims. House Bill 3162 expands the reach of Oregon's whistleblower protections applicable to private employers. Under existing law, whistleblower protections apply only in fairly narrow circumstances. Currently, private employers are prohibited from discriminating or retaliating against an employee who in good faith reports criminal activity by any person, cooperates with a law enforcement agency conducting a criminal investigation, causes a complaint to be filed against any person, brings a civil proceeding against an employer, or testifies at a civil proceeding or criminal trial. House Bill 3162 expands whistleblower protection to any employee who "in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation." An employee asserting a claim under the new legislation can do so with the Bureau of Labor and Industries ("BOLI") or in court, subjecting the employer to potential civil liability on the employee's claims. As a result of House Bill 3162, employers will need to take even more care when taking disciplinary or other action against "complaining" employees. (Effective January 1, 2010.)

Disability Discrimination Law. Senate Bill 874 brings Oregon disability discrimination laws in line with the Americans With Disabilities Act ("ADA") amendments passed by Congress last year (which became effective January 1, 2009). The Oregon amendments generally broaden the definition of "disability" by (1) including in the definition of "major life activities" a lengthy and nonexhaustive list of activities such as eating, standing, bending, concentrating, impairments that are episodic or in remission, and "major bodily functions," such as normal cell growth, and digestion, bowel, and bladder functions, and (2) prohibiting employers from considering mitigating measures such as medication, hearing aids, and prosthetics (other than eyeglasses and contacts) when determining whether an impairment substantially limits a major life activity. The broadening of the definition of what constitutes a disability limits an employer's ability to argue that an employee was not disabled when responding to complaints or assessing whether a reasonable accommodation is necessary. Additionally, as with the ADA discrimination amendments, it is now less likely that an employer can obtain dismissal of a lawsuit asserting a violation of Oregon's disability law before it reaches a jury. (Effective January 1, 2010.)

Religious Accommodation. Senate Bill 786 creates a higher standard for an employer's duty to accommodate an employee's religious practices. The more rigorous standard enacted under Senate Bill 786 requires an employer refusing to provide a requested accommodation to show that the accommodation is unreasonable and would impose an undue hardship because of significant cost and expense, rather than the de minimis cost that an employer must show under the current standard. The standard under the new legislation is not entirely clear but may be akin to that required under the ADA. The new law also provides that an employer must allow an employee to use leave (including vacation or other leave available to the employee) for the employee to engage in religious observance or practices. (Effective January 1, 2010.)

Domestic Violence Accommodation. Senate Bill 928 creates a new law that prohibits discrimination against and requires employers to provide "reasonable safety accommodations" to employees who are victims of domestic violence, sexual assault, or stalking. Reasonable accommodations can include but are not limited to transfer, reassignment, a modified schedule, and unpaid leave. The employer must provide such an accommodation unless it creates an undue hardship. The undue-hardship standard is the same as under Oregon disability discrimination law. Under the law, an employer can request that the employee certify the need for an accommodation. Certification can include a copy of a police report, protective order, or other documentation from an attorney, law enforcement officer, health care professional, or clergy. (Effective January 1, 2010.)

Military Leave and Service. The legislature passed two laws affecting military members and their families in the 2009 session.

The first, House Bill 2744, allows the spouses of members of the Armed Forces, National Guard, or Military Reserve up to 14 days of unpaid leave, if they work for an employer that employs more than 25 people. Currently, under the Family Medical Leave Act ("FMLA"), otherwise eligible employees at employers with more than 50 employees who are spouses of members of the National Guard and Reserves (but not regular Armed Forces) can take up to 12 weeks of unpaid leave for "qualifying exigencies," which include (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities if the employer and employee agree to the leave. Thus, once again, Oregon provides greater rights than FMLA. (Effective June 25, 2009.)

House Bill 3256 is the first state law mirroring the federal Uniformed Services Employment and Reemployment Rights Act, which prohibits employment discrimination against service members and veterans. House Bill 3256 makes it an unlawful employment action for an employer to discriminate against a veteran in initial employment, reemployment following deployment, retention in employment, promotion, or any other term, condition, or privilege of employment, or retaliate against the service member for exercising the rights provided by the Act. (Effective January 1, 2010.)

Everything but the Kitchen Sink—Garnishment, Hands-Free Cell Phone, Child Labor, Attorney Fees, and Customer Use of Employee-Only Bathrooms. The 2009 Oregon legislature also passed a number of new laws that affect employers and their employees in areas related to laws governing the employment relationship.

Senate Bill 373 creates potential liability for employers that fail to garnish an employee's wages and turn them over in a timely manner when served with a garnishment order. Such liability can be to the employee or garnishor for any damages suffered because of the employer's failure to withhold or pay the amounts required by a garnishment order, or for withholding amounts in excess of a garnishment order. In addition, the employer may be subject to penalties for a violation. (Effective January 1, 2010.)

With the passage of House Bill 2377, drivers are now required to use hands-free devices for cell phones when operating motor vehicles. Employers with employees who regularly drive in the scope of employment should consider instituting a policy reflecting this new legislation and make employees aware of the new law. (Effective January 1, 2010.)

House Bill 2826 extends the hours that children under 16 years of age can work, from 6 p.m. to 7 p.m., and until 9 p.m. from June 1 through Labor Day (during summer vacation). (Effective January 1, 2010.)

Senate Bill 60 allows BOLI to collect attorney fees from the employer when collecting a judgment on a wage claim. Previously, BOLI could collect its fees only from the claimant's recovery. (Effective January 1, 2010.)

Senate Bill 897, which has not yet been signed by Governor Kulongoski, provides that within two years of a Public Employees Retirement System ("PERS") member's earliest retirement date, the member may request a verification of his or her retirement data from the PERS Board. The verification provided to the member must include (1) "service information reported by the member's employers and the number of years and months of creditable service or retirement credit," (2) "salary data reported by the member's employers for each calendar year, and the final average salary for the member," (3) "the member's regular account balance, and any variable account balance, as of the end of a calendar year specified in the verification," and (4) "the total amount of unused sick leave accumulated by the member as of a date specified in the verification." Under the new legislation, the PERS member can dispute any perceived inaccuracy in the verification information provided. (This legislation will become effective on August 10, 2009, if it is not signed or vetoed by Governor Kulongoski before that date.)

To the extent that employers are not already worried enough about the blurry line between employee and independent contractor status, House Bill 2815 provides that state agencies including the Department of Revenue, the Employment Department, the Construction Contractors Board, and BOLI must "[w]ork to establish consistency in agency determinations relating to the classification of workers, [and] [g]ather and share information relating to the misclassification of workers, including * * * independent contractors." While a consistent approach by the various agencies in addressing whether a worker is an employee or independent contractor will be helpful, employers should be aware that the agencies will be exchanging information and that an investigation initiated by one agency could result in an investigation by another. Thus the dominoes are more likely to start falling if a worker is found to be misclassified. (Effective July 1, 2009.)

Finally, on the subject of bathrooms, the legislature passed Senate Bill 277, which requires places of public accommodation with three or more employees working at the time of the request to make an "employee-only" bathroom available to a customer with an "eligible medical condition" that causes a person to need a bathroom "without delay," as long as (1) the customer presents a letter from a healthcare practitioner asserting the need, (2) the toilet facility is reasonably safe and not located in an area where access would create an obvious health or safety risk, and (3) no other public restroom is "immediately available." (Effective January 1, 2010.)

CONCLUSION

New employment laws have drawn more attention in other legislative sessions, but the 2009 Oregon legislature was active in its work regulating the employment relationship in Oregon. Employers headquartered outside of Oregon that have Oregon employees should take particular care when addressing employment issues because of sometimes nuanced but important differences between Oregon and federal law. And Oregon-based employers should continue to work to ensure compliance with federal and state laws concerning the workplace.