Proposed "LAW" Would Index Federal Minimum Wage to Poverty Level
The recently proposed Living American Wage Act (LAW) would tie the federal minimum wage to the federal poverty threshold for a family of two with one child. Introduced last week by Rep. Al Green (D-Texas), LAW would index the minimum wage to 15 percent above the poverty line for a full-time worker, or about $8.20 per hour in wages, and it would increase the minimum wage every four years to maintain a wage at least 15 percent above the poverty line. For more information, click to read Rep. Green’s press release on LAW.
Such an indexed minimum wage would not be unique. Oregon adjusts its minimum wage each year based on the U.S. City Average Consumer Price Index for All Urban Consumers for All Items. Currently, Oregon's minimum wage is $8.40 per hour. For a list of the minimum wages in other states, click here for the Department of Labor's handy list of minimum wages by state, effective January 1, 2009
We’ll keep watching to see if LAW becomes law. Until then, please note that the federal minimum wage will increase to $7.25 per hour effective July 24, 2009.
Oregon Musicians No Longer Presumed Employees for Unemployment Purposes
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Sine die! The Oregon Legislature's biennial session has come to a close, providing a perfect opportunity for the World of Work to take a look at what passed, what failed, and what flew under the radar.
One helpful new statute fixes a problem for employers who operate music venues. In late 2007, Mississippi Studios, a hip North Portland nightspot and recording studio, got nailed in an Oregon Employment Department audit for not paying unemployment taxes on musicians who played at the venue. Mississippi assumed that the musicians were not employees, but were independent contractors according to the Department's test. Not so fast. Mississippi was unaware of ORS 657.506, an obscure provision in Oregon statute that presumed musicians are employees unless otherwise stated in an employment agreement.
The new statute, which went into effect immediately on passage, repeals the old rule and treats Oregon musicians just like everybody else. The bill is simply drafted and repairs some bad lawmaking. Way to go, legislature! This time you were up there with the best.
Oregon Legislature Bans Mandatory Meetings
A new Oregon bill will prohibit employers from requiring employees to attend mandatory or "captive audience" meetings on, among other topics, labor unions. Governor Ted Kulongoski is expected to sign the bill, which would them become law effective January 1, 2010. Click here to read SB 519.
SB 519 prohibits an employer from taking action against an employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters. Religious or political matters is defined broadly and includes communications to employees about unionization. An employee who suffers economic loss (through termination or suspension) as a result of the bill can sue his or her employer and recover treble damages. The bill also allows employees to obtain an injunction prohibiting additional "captive audience" meetings.
This law might not be long-lived: the U.S. Supreme Court found a similar California law to be preempted by federal labor law. Click here to read that opinion in Chamber of Commerce v. Brown. Even if a court finds Oregon's statute to be similarly preempted (and we believe a court will), the law could still apply to employers that are not covered by federal labor law - namely, Oregon public and agricultural employers. Also, the word from Salem is that the legislature will still revise the law to provide additional protections for religious employers (such as churches and some hospitals) who hold religious meetings, so keep an eye out for those changes in the next week or so.
Extension of Federal Benefits to Same-Sex Partners Falls Short of Goals
The memorandum issued by President Obama yesterday extends some benefits to the same-sex partners of federal employees, including access to a government insurance program that pays for long-term conditions such as Alzheimer's disease, and to sick leave to care for a sick same-sex partner or a non-biological child. However, the extension did not provide eligibility for health care to same-sex partners, drawing protest from gay activists.
Why did President Obama stop short? The Defense of Marriage Act (DOMA), the 1996 federal law that, among other things, defines marriage as a legal union exclusively between one man and one woman. According to President Obama's press statement, the White House determined that DOMA prevented an extension of all benefits to same-sex partners, including health care. In the statement, President Obama called on Congress to repeal DOMA and signaled an intend to extend all benefits to same-sex partners if and when that happens.
President Obama's actions will clearly impact Federal agencies and their employees, but what effect does it have on private employers? For now, none - the memorandum only applies to the federal government. However, it does signal a growing trend in mandating the extension of employee benefits to same-sex partners. States that recognize same-sex marriage generally require private employers to extend benefits to same-sex spouses; other states that do not recognize same-sex marriages but do recognize same-sex partnerships (such as Oregon, Washington and California) may require private employers to extend benefits to same-sex partners under certain circumstances. Private employers should consult legal counsel about their possible obligation to provide such benefits.
Proposed Law Would Guarantee Working Mothers Right to Breast-Feed in Workplace
Oregon Democratic Senator Jeff Merkley has announced he will today introduce the Breastfeeding Promotion Act (BPA) in the U.S. Senate. The BPA would guarantee working mothers the right to breast-feed their children at their workplaces. Click here to read about Merkley's proposal on Oregonlive.com.
The bill is identical to one introduced yesterday in the House by Rep. Carolyn Maloney, D-N.Y. and Rep. Lois Capps, D-CA. The law would amend Title VII of the Civil Rights Act of 1964, by to protect breast-feeding in the workplace; provide tax incentives for employers that establish private lactation methods in the workplace; establish minimum safety standards for breast pumps; make breast feeding equipment tax deductible; and create time and privacy for working mothers to express milk.
Oregon implemented a breastfeeding law in 2007, which gives women the right to privately express breast milk in the workplace. Employers with questions about that law may consult this helpful breastfeeding rest period fact sheet from the Oregon Bureau of Labor and Industries. Meanwhile, the World of Work will continue to follow the progress of the BPA as it makes its way (or not) through the 111th Congress.
Stoel Rives to Host Employee Free Choice Act Seminar in Portland June 11
If passed in its proposed form, the Employee Free Choice Act ("EFCA") will revolutionize federal labor laws by allowing unions to organize without a secret-ballot election. Other onerous provisions include shortening the time to negotiate a first contract and, if the parties do not agree, allowing an arbitrator (a judge) to decide the terms of the first contract. While Congress is debating several compromises over EFCA, just about any version of the law will tilt the playing field sharply in favor of labor unions. Union and non-union employers must be prepared to face new organizing tactics in light of EFCA and the unions’ sophisticated use of the Internet.
Please join Labor & Employment attorneys Victor Kisch and Dennis Westlind for a seminar about EFCA and the do’s and don’ts for remaining union-free in the new environment. We will also discuss other likely changes to labor laws. The seminar will cover:
- How will EFCA make it easier for unions to organize? What can a non-union employer do under EFCA?
- How do unions organize in the age of Facebook, MySpace, Twitter, chat rooms, websites, text messages, email and so on?
- Effective no solicitation policies;
- What key issues make a work force vulnerable to union organizing? How can an employer address employee concerns?
- Salts -- If union organizers seek employment at your company, what can you do?
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When: |
Thursday, June 11, 2009 |
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Cost: |
Complimentary (lunch included) |
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Where: |
Stoel Rives LLP |
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Parking: |
We will validate parking for most nearby parking garages. |
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RSVP: |
Space is limited! Click here to register online by June 9. |
Oregon Moves to Keep Its Disability Law in Tune With the ADA
The Oregon Legislature is taking steps to keep Oregon's disability discrimination laws consistent with the federal Americans with Disabilities Amendments Act (ADA). Last week, Senate Bill 874 passed out of the Senate Judiciary Committee on a 4-1 vote. SB 874 will amend existing Oregon disability law to adopt the changes made to the ADA in 2008 through the ADA Amendments Act (ADAAA).
SB 874 contains four key changes to make Oregon law consistent with federal law:
- prohibiting discrimination against individuals “regarded as” disabled whether or not their perceived impairment is perceived to limit a major life activity;
- construing the term "disability" in favor of broad coverage;
- considering an impairment that is episodic or in remission to be a disability if it would substantially limit a major life activity when active; and
- determining whether an impairment substantially limits a major life activity without regard to the effects of mitigating measures except ordinary eyeglasses.
Oregon has, with a few exceptions, consistently kept its disability discrimination laws consistent with the ADA. Because of that, we expect SB 874 (or something very similar) to become law. The World of Work will continue to keep you updated.
Carpenters Union to Pay Oregon Employer $450,000 to Settle Picketing Dispute
The Pacific Northwest Regional Council of the Carpenters and Joiners of America recently agreed to pay Hoffman Construction Co. $450,000 and to settle a lawsuit over alleged unlawful picketing during a 2007 strike in Oregon. The Carpenters have also agreed to pay an additional $200,000 into an escrow account until the union has trained its members on diversity, race and sex discrimination, intimidation, and picket line behavior. Click here to read the consent decree.
A union paying an employer? You read that correctly. Hoffman alleged that Carpenters members engaged in unlawful picketing with mass picketing and improper signage, intimidated workers, disrupted traffic, struck vehicles, picketed reserved gates, made excessive noise, and caused physical damage. Hoffman also alleged that picketers used derogatory racial and sexist epithets, obscenities and threatening language aimed at replacement workers and union members crossing picket lines.
This is an important decision for employers. While lawsuits against unions for picket line misconduct are fairly common, a decisive outcome like this is very rare. This sets a precedent that such picket line behavior is not acceptable, and may encourage unions to better control picketers.
BOLI Seeking Comments on Changes to Family Leave Regulations
The Oregon Bureau of Labor and Industries (BOLI) will hold three public forums on possible regulatory changes to the Oregon Family Leave Act (OFLA) to better align it with the recently revised federal Family and Medical Leave Act (FMLA). BOLI is also seeking public comments through its regular comment process. After receiving and reviewing the comments, BOLI will determine if any changes should be made to make Oregon leave law rules more similar to federal regulations. Click here to read BOLI's press release on the forums, and click here for BOLI's notice of public comment.
Interested in attending one of the forums? Here is a list of places and times:
Thursday, February 26, 4:00-6:00pm
City of Eugene,City Council Chambers
777 Pearl Street
Eugene, Or 97401
Tuesday, February 24, 4:00-6:00pm
Portland State Office Building
800 NE Oregon St., Room 1-B
Portland, OR 97232
Thursday, February 26, 4:00-6:00pm
Portland State Office Building
800 NE Oregon St., Room 1-B
Portland, OR 97232
Would you rather comment in writing? Written comments may be sent to Amy.K.Klare@state.or.us or to Amy Klare, BOLI Civil Rights Administrator, 800 NE Oregon St. #1045, Portland, OR 97232. Written comment must be received by 5pm on March 6, 2009.
Want to know the differences between current OFLA and the new FMLA regulations? BOLI has prepared this handy OFLA/FMLA comparison chart. You can also download BOLI's brief on Implementing OFLA Under FMLA rules.
Oregon BOLI: No Changes to OFLA Regulations (yet...)
As previously reported here at the World of Work, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009. Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations. FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.
Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees). However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws. The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.) Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted. In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws.
Where does that leave Oregon employers that are covered by both OFLA and FMLA? The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees. The World of Work will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes.
Oregon Issues New Rest Break Regulations
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The Oregon Bureau of Labor and Industries (BOLI) issued a revised regulation earlier this week on employees’ meal breaks which will be of interest to many smaller employers.
The revised regulation, which is effective as of January 12, 2009, retains the basic requirement that employees normally be provided with a 30-minute, unpaid meal period in which they are relieved of all duties (for shifts longer than 6 hours). However, it adds additional options for employers who do not provide the full 30-minute meal period and/or relieve an employee completely from duty (such as when the employee remains on-call).
Under the new regulation, an employer is not required to provide an employee with a 30-minute meal period in which the employee is relieved of all duties if the employer can demonstrate that:
- failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
- industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duties; or
- providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose an “undue hardship” on the operation of the employer’s business (the regulations also provide guidance on what is an “undue hardship”).
An employer that does not provide meal periods under the “undue hardship” exception must comply with two additional requirements: (a) the employer must also provide the employee adequate periods in which to rest, consume a meal, and use the restroom without deduction from the employee’s pay; and (b) the employer must first provide to each employee a notice provided by BOLI regarding rest and meal periods in the language used by the employer to communicate with the employee. BOLI will make such notices available by March 16, 2009.
Want more information? Click here to download BOLI's press release explaining the new regulations. Or click here to download the full text of the new regulation, including the definition of undue hardship. Or, click here if you want BOLI's full run-down of the law on rest and meal breaks in general.
Washington's Minimum Wage To Rise to $8.55 January 1, 2009
Washington employers get ready to give your minimum-wage employees a raise: effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country. For more information, click here to read the Department of Labor and Industries' Press Release. Washington's current minimum wage is $8.07 per hour.
As previously reported in the World of Work, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009. Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index.
The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009. For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor.
Oregon's New Smokefree Workplace Law Takes Effect January 1, 2009
Since 2002, the Oregon Smokefree Workplace Law has made most workplaces smokefree. Effective January 1, 2009, a new law will expand the number of indoor workplaces that are required to be smokefree, and prohibit smoking within 10 feet of entrances, exits, windows that open, and ventilation intakes of workplaces and public places.
Workplaces and public places that must now be smokefree include but are not limited to:
- Bars and taverns, including bar areas of restaurants
- Bowling centers
- Bingo halls
- Private and fraternal organizations
- Employee break rooms
- Restaurants
- Private offices and commercial office buildings
- Retail and wholesale establishments
- Manufacturing plants and mills
- Truck stops
- Child and adult day-care
- Assisted living facilities
- Movies theaters and indoor entertainment venues
- Hotels and motels (Exception: up to 25% of guest rooms may be designated as smoking rooms by the owner or entity in charge)
- Work vehicles that are not operated exclusively by one employee
That's right - no more smoking in the day care center! There are some exceptions to the new law, but they are few:
- Certified smoke shops
- Cigar bars
- Hotel/motel rooms designated for smokers
- American Indian ceremonies
Employees and the public will be able to report violations of the new law once it takes effect by calling a toll-free number or completing an online complaint form. If your business is caught violating the laws, it can be fined $500/day or $2000 per 30-day period. For more information, including compliance tips, check out the State of Oregon's Smokefree Workplace website.
Free Lunch Seminar on California Law for Oregon Employers October 30
Do you have an office or a facility in California? Do you have any employees who work in California? If you've had to confront the challenges of complying with California's unique employment laws and regulations, you'll want to join us.
We will have a lively discussion led by Tony DeCristoforo, a labor and employment law specialist based in our Sacramento office, and Victor Kisch, a Portland based attorney who practiced in California for about a decade. They will summarize the important differences between Oregon and California employment laws.
- Where? Stoel Rives' Portland Office
- When? 11:30 a.m., October 30, 2008
- Cost? Free! As Tom Peterson would say, "Free is a very good price!"
For registration information, click here.
Oregon: Arbitration Agreements Need Not Contain Express Waiver of Jury Trial
Late last month, the Oregon Court of Appeals held that an arbitration agreement between an employer and an employee need not contain an express waiver of the employee's right to a jury trial to be enforceable. The opinion can be read here: Hays Group, Inc. v. Biege.
In Hays Group, a trial court denied an employer's motion to compel arbitration of an employee's wage and age discrimination claims on the basis that the arbitration agreement did not contain an express waiver of the right to a jury trial, just a statement that claims would be “settled by final and binding arbitration.” The Court of Appeals reasoned that the employee did knowingly waive his right to a jury trial, given that “[c]laims cannot be settled by ‘final’ and ‘binding’ arbitration except by a waiver of the right to a jury trial.”
This decision gives Oregon employers some added leeway in drafting arbitration agreements. The best practice remains to include an express waiver of the right to a jury trial - there is no harm in including one, and it helps cut off any employee's arguments that he or she did not understand the scope of the agreement.
Oregon employers should also be aware that, pursuant to a new statute effective January 1, 2008, all employee arbitration agreements must be presented in a "written employment offer" that must be "received" by the employee at least two weeks before the first day of the employee's employment. Arbitration agreements may be presented to current employees, but will not be enforced unless entered into at the time of a "bona fide advancement" (such as a promotion).
Oregon Announces New Minimum Wage of $8.40 Effective January 1, 2009
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The Oregon Bureau of Labor and Industries recently announced that Oregon's minimum wage will increase from the current $7.95 an hour to $8.40 an hour effective January 1, 2009. For Oregon Labor Commissioner Brad Avakian's press release, click here.
As a result of Ballot Measure 25, passed by voters in 2002, the minimum wage is adjusted annually based on changes in inflation as measured by the Consumer Price Index (CPI). The Commissioner is charged with adjusting the minimum wage for inflation every September, rounded to the nearest five cents.
What Labor and Employment Law Question Would You Ask the Presidential Candidates?
The Presidential election is less than two months away, and the candidates' campaigns are in full swing. Oddly enough, the candidates have been strangely silent on labor and employment law issues, focusing their attention on other pressing national security concerns, such as putting lipstick on pigs. Glad to see they're taking the high road.
In any event, Daniel Schwartz at the Connecticut Employment Law Blog has this great post about what labor and employment law issues the presidential and vice-presidential candidates should address in their upcoming debates, withs suggestions like the Employee Free Choice Act and a bill to provide employee with paid sick leave. And if that's not your cup of tea, Dan's got this great post about the use of the phrase "lipstick on a pig" in labor and employment law.
Stoel Rives Offers Seminar on Oregon's New Noncompete Law
Legislation that significantly altered an employer’s ability to utilize noncompete agreements in the state of Oregon took effect on January 1, 2008. How has the new law impacted corporate policies around restrictive covenants? What are the new best practices you need to implement to stay in compliance?
For answers to these questions and more, join Stoel Rives for a breakfast seminar on September 25 titled "Noncompetes, Nonsolicitation and Confidentiality: Lessons Learned After a Year Under Oregon's New Noncompete Law," presented by Amy Joseph Pedersen, Ed Reeves and Carolyn Walker of the firm's Labor and Employment Group.
Oregon Supreme Court: Corporate Directors Not Employees
The Oregon Supreme Court recently ruled that a corporation's board of directors are not employees, and therefore not subject to Oregon's unemployment tax. In Necanicum Investment Co. v. Oregon Employment Department, the Supreme Court reversed a 2007 Oregon Court of Appeals decision that had held unemployment tax should be assessed on the fees paid to the directors. The Supreme Court instead reasoned that because the directors were not acting in the capacity of employees, no employer-employee relationship was formed and therefore there was no basis for the Employment Department to apply the tax.
This decision is good news for corporations who pay fees to their directors; however, many corporate directors act both as directors and also as employees. In those cases, the corporation will still be liable for unemployment taxes on any wages paid to the directors in their roles as employees.
Oregon Court of Appeals Rules Obesity Surgery Covered by Workers' Compensation
In SAIF Corp. v. Sprague, the Oregon Court of Appeals ruled earlier this week that an obese employee's gastric bypass surgery was coverd by workers' compensation. For the full opinion, click here.
The employee in Sprague suffered an on-the-job knee injury in in 1976. He weighed 225 pounds at the time of the injury. The employee began gaining weight after his 1976 injury, and by 2001, he weighed 350 pounds. He then had gastric bypass surgery to reduce his weight, and filed a workers' compensation claim for the surgery, claiming it was necessary to allow his knee to heal.
SAIF, the workers' compensation carrier, took the position that the surgery was not compensable because the employee's obesity was not caused by the 1976 knee injury. The Court of Appeals disagreed, holding that because the record showed the gastric bypass surgery was performed to control the employee's obesity in order to allow the on-the-job knee injury to heal, it was compensable through workers' compensation.
This decision does not likely mean that all or even most gastric bypass surgeries or other elective procedures will be covered by workers' compensation. It does mean, however, that some medical treatment that is indirectly related to a compensable injury may be covered, if the treatment is necessary to treat the compensable injury. Claims like this one will likely be decided on a case-by-case basis.
Oregon: Leave for Olympic Athletes?
Local athletes did remarkably well at the 2008 Track and Field Olympic Trials in Eugene, Oregon, which raises an interesting leave issue. It's an obscure law, but Oregon requires employers to give Olympic athletes leave to compete. Under ORS 659.865, it is an unlawful employment practice for an employer to infringe on an employee's right to participate in any athletic event sanctioned by the national government body for that sport as recognized by the U.S. Olympic Committee. It's similarly unlawful to discriminate against employees who compete in Olympic sports. Unfortunately for this author, the law does not extend to beer pong.
Ninth Circuit Affirms "Emotional Distress Damages" Caused by Denial of FMLA Leave
Oregon Court of Appeals: Keep Accommodating Medical Marijuana (For Now....)
In Emerald v. Bureau of Labor, The Oregon Court of Appeals affirmed a Bureau of Labor and Industries determination that an employer must reasonably accommodate an employee's off-duty medical marijuana use. However, the case was affirmed on a technicality - again leaving Oregon employers wondering if they really have to accommodate an employee's medical marijuana use. Continue Reading...
Oregon Court of Appeals Upholds Employment Discrimination Statute
Continue Reading...
