• Oregon Legislative Updates
  • July 19, 2007 | Authors: Alyssa Eve Thirsk Tormala; Tamara E. Russell
  • Law Firm: Miller Nash LLP - Portland Office
  • The Oregon Legislature closed its 2007 regular session on June 28, 2007, leaving in its wake a host of new laws affecting employers. The following is a brief summary of those new laws and their effect on current law. Please call us if you would like more information about a particular law or its impact on your organization.

     

    House Bill 2254: Requires employers to provide a reasonable opportunity for inspection of personnel records (current employees) or a certified copy of personnel records (current or former employees) within 45 days of a current or former employee's request. If the records are not readily available, the employee and employer may agree to extend the deadline. Employers that do not comply may be fined $1,000. Effective January 1, 2008.

     

    Impact: Employers are already required to provide a reasonable opportunity for inspection of personnel records or a certified copy of personnel records upon an employee's request, but the law currently does not include a deadline or a fine. Employers will now need to make sure that they comply with personnel-records requests within 45 days.

    House Bill 2255: Revises Oregon's wage laws to allow an employee to file either a BOLI complaint or a claim in court for employment discrimination resulting from the employee's pursuit of a wage claim (including discussing the claim with an attorney or agency) or from their complaints about the failure to pay wages. Effective January 1, 2008.

     

    Impact: Expands an employee's available remedies for employer retaliation based on the employee's pursuit of a wage claim or complaint.

     

    House Bill 2258: Provides that when an employer has notice that an employee has not been paid the full amount of wages owed, and there is no dispute over the unpaid wages, the unpaid amount is due within three business days if it is 5 percent or more of the employee's gross wages due on the regular payday. If the unpaid amount is less than 5 percent of the employee's gross wages, it may be included in the next regular paycheck. Effective January 1, 2008.

     

    Impact: Creates a clear deadline by which employers must pay unpaid wages that are not the subject of a dispute.

     

    House Bill 2260: Allows state courts to award punitive and compensatory damages to employees who bring successful discrimination claims under ORS 659A.030 (law against discrimination). The law previously allowed state courts to award reinstatement or employment, back pay, and reasonable attorney fees for such claims. Effective January 1, 2008.

     

    Impact: Significantly increases the potential monetary damages available to successful employees who bring actions for violation of state laws against discrimination on the basis of race, religion, color, sex, national origin, marital status, age, or association with protected class. This bill will also apply to claims of sexual orientation discrimination pursuant to Senate Bill 2 (see discussion below).

     

    House Bill 2372: Makes it mandatory for employers to provide all breast-feeding employees (including exempt employees) with reasonable rest breaks to express milk, unless doing so creates an undue hardship. Unless the employer and employee agree otherwise, an employer must provide one 30-minute rest break for every four hours worked. The breaks may be unpaid. Employers must also make reasonable efforts to provide a private location, other than a public restroom or toilet stall, for the employees to express milk. Examples are the employee's work area, a lounge, or a close-by child care facility, provided that the location is in close proximity and can be made private. Public school districts must adopt policies regarding breast-feeding in the workplace. Violations of this law may result in a $1,000 penalty issued by BOLI. Effective January 1, 2008.

     

    Impact: This bill gives teeth to the current statute, which allows employers to choose to provide breaks to express breast milk. The bill also revises that statute to clarify the employers' responsibilities with regard to providing locations for expressing milk.

     

    House Bill 2460: Revises the Oregon Family Leave Act ("OFLA") to prohibit OFLA leave from running while an employee is on workers' compensation leave. The bill also provides that OFLA leave will automatically begin to run when an eligible employee on workers' compensation leave refuses a bona fide offer of light-duty or modified work before he or she is medically stationary. Effective January 1, 2008.

     

    Impact: Leave under the federal Family and Medical Leave Act ("FMLA") will still run while an employee is on workers' compensation leave, but OFLA leave will not. This means that an employee may still be entitled to an additional 12 weeks of OFLA leave upon his or her return from workers' compensation leave.

     

    House Bill 2485: Allows employees to use any accrued paid sick leave while on OFLA leave, even if the employer's policy would not otherwise allow them to do so. Effective January 1, 2008.

     

    Impact: OFLA and FMLA currently entitle employees to use paid sick leave while on OFLA or FMLA leave only if it would be consistent with the employer's usual sick-leave policy, except that OFLA allows employees on parental leave to use paid sick leave regardless of the employer's policy. Under HB 2485 an employee may use his or her paid sick leave during any type of OFLA leave. But if the employee's leave is covered only by FMLA, then the employee is still entitled to use paid sick leave only if doing so is consistent with the employer's sick-leave policy.

     

    House Bill 2635: Allows employees to use OFLA leave to care for the employee's grandparent or grandchild who has a serious health condition. The bill also creates a retroactive cause of action for retaliation under OFLA, which resolves a dispute between Oregon state courts and Oregon federal district courts over whether such a claim is available under the current language of OFLA. The governor has not yet signed this bill. If he does not veto it before August 10, 2007, then it becomes law, effective January 1, 2008.

     

    Impact: Neither OFLA nor FMLA currently provides leave for the care of a grandparent or grandchild with a serious health condition unless an "in loco parentis" relationship exists. HB 2635 will make such leave available under OFLA. But an employee who uses OFLA leave to care for a grandparent or grandchild could still have up to 12 weeks of FMLA leave available for FMLA-covered purposes.

     

    Senate Bill 2: Prohibits discrimination in employment, public accommodations, and housing on the basis of sexual orientation. The bill defines "sexual orientation" as "an individual's actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth." The bill includes an exemption for bona fide churches or religious institutions and allows employers to enforce otherwise valid dress codes or policies, as long as the employers provide reasonable accommodations on a case-by-case basis based on the health and safety needs of an individual. Effective January 1, 2008.

     

    Impact: This bill may not have a substantial impact on current law. BOLI already accepts sexual orientation discrimination claims based on state case law, and many cities and counties have ordinances prohibiting discrimination on the basis of sexual orientation. But SB 2 clarifies that an employee may bring either a BOLI complaint or a court claim for sexual orientation discrimination, and an employee is entitled to a full range of remedies (including compensatory and punitive damages) if successful.

     

    Senate Bill 248: Creates additional requirements for noncompetition and arbitration agreements between employers and employees. The governor has not yet signed this bill. If he does not veto it before August 10, 2007, then it becomes law, effective January 1, 2008. We will send out a separate e-flash regarding this law once it becomes official.

    Senate Bill 946: Requires employers that have six or more employees to provide reasonable unpaid leave to an employee to address domestic violence, sexual assault, or stalking of the employee or his or her minor dependents. The employee must have worked an average of 25 hours per week for 180 days to be eligible for leave. He or she may take leave to seek legal or law enforcement assistance or remedies, to seek medical treatment for or recover from injuries, to seek counseling from a licensed mental health professional, to obtain services from a victim services provider, or to relocate or secure an existing home. The employee may use any accrued vacation or similar paid time off while on this type of leave. The employer may require certification of the need for leave, such as a police report, protective order or other evidence of a court proceeding, or documentation from a law enforcement officer, attorney, health care professional, member of the clergy, or victim services provider. Any information obtained about an employee's circumstances relating to this type of leave must be kept confidential. An employee may bring a BOLI complaint or a court claim for violations of this law. Effective May 25, 2007.

     

    Impact: This bill creates another type of unpaid leave that employers must provide, but leaves open how much time off is "reasonable" in a given situation. Depending on the circumstances, leave under this law may overlap with other types of unpaid leave, including crime-victim leave, FMLA/OFLA leave, and reasonable accommodations under state and federal disability laws.