Kyle Abraham kabraham@barran.com | 503.276.2132

Legislative Update: What Do Oregon's New Laws

Mean For Your Industry?

Portland Human Resource Management LuncheonNovember 11, 2015

An “Interactive” Legislative Update • Group explanation of

new laws▫ (10 minutes)

• Table discussions on industry specific challenges▫ (10 minutes)

• Suggested questions for discussion

• Industry Groups▫ Consulting/Vendor*▫ Education▫ Healthcare▫ Manufacturing▫ Non-Profit▫ Retail

78th Oregon Legislative Assembly

•Recruiting ▫Ban the Box ▫Personal Social Media▫Non-Compete Agreements

•Benefits▫OFLA▫Paid Sick Time

•Recreational Marijuana

Recruiting LawsA makeover of the hiring process

“Ban the Box” Laws

• Ban the Box refers to removing the "box" from employment applications asking an applicant about criminal convictions

• Coast to coast support▫15 states have passed

laws ▫100+ cities/counties

have passed laws▫Bipartisan support

Ban the Box in Oregon• Unlawful employment practice to

exclude an applicant from an initial interview because of a past criminal conviction

• Excluding an applicant means: ▫ Requiring an applicant to disclose on

an employment application a criminal conviction

▫ Prior to an initial interview, otherwise requiring an applicant to disclose a criminal conviction

▫ If no interview, requiring an applicant to disclose a criminal conviction before a conditional offer

▫ HB 3025 (2015)

Limitations of Ban the Box

•An employer may consider a criminal conviction when making a hiring decision

•Exempt from the new law if other federal, state or local laws require consideration of the applicant’s criminal history for the position

•No right to suit for a violation▫However, an applicant may file a complaint with

BOLI

Final Thoughts on Ban the Box

• Goal is to give applicants a chance at an interview

• In effect, the law is similar to EEOC Guidance on Employer Use of Criminal Background Checks

• Not the model of clarity

• No definition of initial interview▫ Online chat?▫ Telephonic?▫ Face-to-face?

• No regulations coming from BOLI

Oregon’s Employee Social Media Account Privacy Law•ORS 659A.330 provides that it is an

unlawful practice to:▫Request/require individual to provide access to

a personal social media account▫Compel acceptance of a “friend” request▫Compel employee to access page in presence

of the employer▫Take or threaten disciplinary action for

refusing to disclose, add employer as friend, or access page

•No definition of “personal social media account”

Personal Social Media Account

SB 185 provides a definition of employee’s “personal social media account”

A social media account that is used exclusively for personal purposes; unrelated to any business purpose or prospective employment.

Noncompetition Agreements: The Basics

• Oregon, ORS 653.295▫2 weeks’ written notice required before first day

(first day excluded, last day included)▫Minimum income level required

• Washington, common law▫Restraint necessary for the protection of the

business▫ Imposes greater restraint than is reasonably

necessary to secure the employer's business; and ▫The degree of injury to the public warrants

enforcement of the covenant

Noncompetition Agreements

•HB 3236 amends ORS 653.295 to reduce the maximum enforceable duration of non-compete agreements to 18 months

•Prior limit was two years

•Only applies to agreements entered into after the effective date of January 1, 2016

First Break Out Session

1. How will Ban-the-Box impact your workplace?

2. How do you use social media in recruitments?

3. Do you utilize non-competition agreements? Why or why not?

New Benefits for All!“Let them eat cake”

OFLA’s Extended Insurance Coverage

•Current law, requires coverage to be immediately reinstated when an employee returns to work

•New law, requires maintaining coverage during the period of family leave

•Requirements of FMLA are now requirements under OFLA

Oregon Sick Time: Who is Covered?

• Employers▫ “Any person who

employs one or more employees working anywhere in this state”

▫ Exception: Federal Government

• Employees:▫ “An individual who

renders personal services at a fixed rate to an employer”

▫ Includes part-time, seasonal and temporary workers

• Exemptions▫ Independent contractors▫ Individual employed by

his/her parent, spouse or child

▫ Some bargaining unit employees Hiring hall unions

• Key concepts▫ Accrual, Carryover, and

Use▫ SB 454 (2015)

Accrual of Sick Time• Accrual rate

▫ 1 hour per 30 hours worked

▫ Presumption of regular work week for exempt employees

• Accrual begins on first day of employment▫ No hourly minimum

required

• Up to 40 hours of accrued unused time carried over to the next year, unless:▫ By mutual agreement,

sick leave may be paid out; or

▫ Employer “frontloads”

• Employee may accrue a maximum of 80 hours

Carryover of Sick Time; 1, 2, 3

1. Up to 40 hours of accrued unused time carried over to the next year, unless:• Employee may

accrue a maximum of 80 hours

2. By mutual agreement, sick leave may be paid out; or

3. Employer may frontload

▫To assign and make available a certain number of hours of sick time as soon as the employee becomes eligible to use sick time subsequent years

▫May be pro-rated • No requirement to cash out

sick time upon termination

▫What does your PTO policy say?

Use of Sick Time

•Waiting Period: on the 91st day of employment, unless employer permits use sooner▫Temporary and seasonal employees eligible

•Amount: may use at least 40 hours per year

•Increment: must be permitted to take time off in increments of 1 hour

•Qualifying Absence: Same list as Portland Sick Leave, includes

Use of Sick Time: Qualifying Absences

• Diagnosis, care or treatment of mental or physical illness, injury or health condition, including preventive medical care of employee or family member

• Reasons related to domestic violence, harassment, sexual assault or stalking

• Closure of business or school due to public health emergency

• Care for family member if family member’s presence in community jeopardizes health of others

• Any law that requires employer to exclude the employee from the workplace for health reasons

Use of Sick Time: Scheduling

•Foreseeable: ▫ As provided by the employer’s policy▫ Not required to provide more than 10 days’ notice▫ Employee may be required to schedule time in a

manner that does not unduly disrupt operations

•Unforeseeable: ▫before start of shift or as soon as practicable

•Staffing issues▫Permitted: voluntary shift trading/flex time▫Not permitted: find replacement

Rules on Use: Paid Time• Employee use of sick time is paid if

▫Non-Portland employers with 10 or more employees ▫Portland employers with 6 or more employees

• Counting employees▫“The per-day average number of employees” over a 20

week average▫BOLI regulation coming soon

• Rate of pay▫Employee’s regular rate of pay; without reductions in

benefits that the employee earns Health care, pension etc…

Safeguards Against Abuse

•May require medical verification if▫The absence is more than 3 consecutive

scheduled work days off; ▫Pattern of abuse; or▫Sick leave commenced without providing

notice as required

•Verification provided within 15 calendar days after request

Employer Obligations: No Discrimination

•Unlawful to interfere with exercise of right

•No retaliation or discrimination because employee attempted to or exercised rights

•Apply an absence control policy that includes sick time absences that may lead to adverse action▫Elimination of incentive holiday?

Second Break Out Session1. Do you frontload sick time/time off? Why or why not?2. How do you handle carryover of unused sick time? Why?3. For employers covered by PDX sick leave ordinance,

what are some best practices you have discovered?

Recreational Marijuana – it’s legal now so

what’s the problem?

Oregon’s Recreational Marijuana

• Measure 91 (passed by a 56% to 44% majority)▫Allows the possession, manufacture, sale of marijuana

by/to adults subject to OLCC licensing, regulation, and taxation

• Limitations▫Must be over 21 years of age to use/possess marijuana▫Possession in public up to 1 oz. of useable marijuana▫Possession in home (outside of public view) up to 8 oz.

and 4 plants, per household▫Use not permitted in a public place (e.g. bar,

restaurant, port-a-potty)

Oregon’s Recreational Marijuana • OLCC website (www.oregon.gov/olcc/marijuana)

▫ Q: Can I lose my job for using marijuana?▫ A: Passage of Measure 91 does not impact employment law in

Oregon.

▫ Q: What if an employer requires drug testing?▫ A: Measure 91 does not affect existing employment law.

Employers who require drug testing can continue to do so.

• Timelines▫ July 1, 2015, personal use and possession permitted▫ October 1, 2015, medical dispensaries permitted to sell

recreationally▫ January 4, 2016, OLCC regulations implemented▫ 3rd quarter 2016, dispensaries open for business

No Change to the Federal Laws• Controlled Substance Act

▫ Cannabis = Schedule I Drug High potential for abuse No currently accepted

medical use ▫ Possession and use of

marijuana is illegal under federal law

• Drug Free Workplace Act▫ Applies to employers who

receive federal funds▫ Requires a “zero tolerance”

drug policy and reporting violations

▫ No requirement to drug test

• Common law tort liability

• Occupational Safety and Health Act▫ Oregon OSHA

• Department of Transportation regulations▫ Applies to aviation,

highway, rail and transit ▫ Good guide for drug

testing procedures

Labor Laws on Drug Testing

• Duty to Bargain▫ Drug testing is

germane to the working environment

▫ Drug testing is a mandatory subject of bargaining Klamath County Fire

District, 19 PECBR 533 (2001)

Johnson-Bateman Co., 295 NLRB 180 (1989)

• Weingarten rights▫ Order to submit to drug

and alcohol test as part of investigation into employee conduct triggers right to Weingarten representation

▫ Refusal without benefit of representation cannot be used against employee Ralphs Grocery

Company, 361 NLRB No. 6 (2014)

Challenges Facing Employers• Recruitment and retention

▫ Required pre-employment/random testing

• Workplace accidents▫ More workplace injuries = more workers’ compensation

claims▫ OR-OSHA violations

• Productivity and quality standards ▫ Decreased productivity▫ Increased mistakes

• Public image/reputation▫ Hear about TV station’s firing of the on-air reporter in

Eugene?

Third Break Out Session1. Do you think marijuana use will increase among

your employees? 2. What challenges/risk do you face by increased

marijuana use?3. What steps are you taking to mitigate those risks?

Responding to the Challenges

•Set your tolerance level on these issues▫Covered employees

Blanket policy vs. considering job duties Safety sensitive positions vs. non-safety

sensitive▫Prohibited conduct

Use vs. impairment▫Consequences for violations

Zero tolerance or second chance▫Basis of testing▫Specimen collected

Responding to the Challenges• Strict Policy

▫ Covered employees All employees

▫ Prohibited conduct Off-duty use of illegal drugs,

including marijuana▫ Consequences

No second chances▫ Basis for testing

Pre-employment Random Others

▫ Specimen collected Urine for pre-employment

and random Oral fluids for others

• Tolerant Policy▫ Covered employees

Safety sensitive positions only

▫ Prohibited conduct Only impairment on the job

▫ Consequences Last Chance Agreements

▫ Basis for testing Reasonable grounds Post-accident

▫ Specimen collected Oral fluid only

Kyle AbrahamBarran Liebman LLP

601 SW 2nd Ave, Suite 2300Portland, OR 97204

503-276-2132 (work)503-302-3298 (cell)

kabraham@barran.com

Thank You