Oregon Pay Equity Update: The Status of Hiring Bonuses

In the wake of the Covid-19 pandemic, the Oregon legislature amended the definition of “compensation” in the Oregon Equal Pay Act to temporarily exempt hiring/signing and retention bonuses from the limitations imposed by the Act. The temporary exemption, however, expires on September 28, 2022.

This means that starting September 28, 2022, hiring/signing/retention bonuses will once again be considered “compensation” under the Act. Under that law, employers must ensure that employees performing “work of comparable character” receive equal “compensation,” unless the difference is justified by specific “bona fide factors” listed in the statute. So if one employee receives a bonus but another does not, you must be able to distinguish between the two employees either:

On the grounds that they are not performing “work of comparable character”; or
By one of the specific “bona fide factors” in the Act.

In sum, if you began paying signing or hiring bonuses during the pandemic, and/or paid retention bonuses during this time, be aware that the “safe zone” which existed during the temporary lifting of the definition is coming to an end. Starting September 28, 2022, paying a signing or retention bonus could result in employees who perform the same jobs being paid differently – which could be a violation of the Act. You can read more about the Act here, and if you have any questions about how this affects your business, feel free to contact us.

Federal Appeals Court Affirms NLRB Decision Requiring Employer to Reinstate Employee Who Wrote “Whore Board” on Mandatory Overtime Sign-Up Sheet

By John Dudrey and Jim Shore on August 15, 2022 Posted in Biden Board, Labor, Updates

The United States Court of Appeals for the District of Columbia Circuit recently affirmed a National Labor Relations Board (“NLRB”) decision requiring an employer to reinstate an employee whom it terminated after he wrote “whore board” on a voluntary overtime sign-up sheet. The name of the case is Constellium Rolled Products Ravenswood, LLC v. NLRB, — F.4th — (D.C. Cir. 2022). As described below, Constellium offers employers a substantial (and painful) insight into how far the courts and the NLRB will bend over backwards to find that employees have engaged in protected activity in the workplace.

The facts of the case are straightforward. In 2013, Constellium Rolled Products Ravenswood, LLC (“Constellium”) changed its system for scheduling overtime. The new system required employees who were interested in working overtime to sign their names on a sheet posted outside of the facility’s lunchroom. The new overtime sign-up system prompted significant objections from the company’s unionized employees, who preferred the company’s prior overtime system by which the company solicited employees individually about working overtime. The union and numerous employees filed grievances under the company’s collective bargaining agreement (“CBA”) and unfair labor practice charges (“ULPs”) with the NLRB. In addition, numerous employees began referring to the sign-up sheet in conversation around the plant as the “whore board.” One employee, Jack Williams, took it a step further. Instead of just calling it the “whore board,” Williams wrote the phrase on top of the sign-up sheet, which meant that employees who wished to sign up for overtime had to affix their names to a piece of paper that referred to them as “whores.” Constellium first suspended and ultimately terminated Williams over the incident. Continue Reading

Oregon Supreme Court Enforces Employment Arbitration Agreement

By John Dudrey and Karen O'Connor on July 19, 2022 Posted in News, Oregon, wage and hour

Oregon employers that require arbitration for employment-related disputes recently received some good news from the Oregon Supreme Court. In Gist v. ZoAn Management, Inc., the Court rejected the plaintiff’s argument that his arbitration agreement was unenforceable because it limited the arbitrator’s authority to award him relief. Instead, the Court ruled that the arbitration clause was fully enforceable.

The facts of the case are straightforward. ZoAn Management is a delivery service that hired Gist as a driver and classified him as an independent contractor rather than as an employee. Gist filed a putative class action lawsuit against ZoAn, claiming that he had been misclassified as an independent contractor and thus did not receive the wages he was entitled to under Oregon law as an employee. ZoAn filed a motion to compel arbitration pursuant to the Driver Services Agreement (“DSA”) that Gist signed at the outset of his engagement. The DSA contained a clause requiring that “any dispute, claim or controversy” arising from the DSA be resolved through mandatory arbitration. Gist argued that the DSA’s arbitration clause was “unconscionable,” a legal doctrine that allows a court to strike a contract provision if it deems the provision so fundamentally unfair that it should not be enforced. Specifically, Gist pointed to language stating that the arbitrator could not “alter, amend or modify” the terms of the DSA, which Gist argued would prevent the arbitrator from concluding that he was in fact an employee rather than an independent contractor and was therefore entitled to damages. Continue Reading

Heat and Smoke: New Rules for Oregon Employers

By Lou Ferreira and Matt Tellam on July 1, 2022 Posted in employer policies, Oregon, OSHA

Summer in Oregon has officially arrived and, at least in the Portland Metro area, it did so not with a polite knock on the door, but with a string of 90-degree days. As the season continues to roll out, and with the likelihood of more hot days ahead, it’s important to remember that Oregon has new rules for employers related to heat exposure of employees.

HEAT RULES

On May 10, 2022, Oregon OSHA adopted new permanent rules to provide greater protections for employees when temperatures get hot. The rules went into effect on June 15, 2022.

The rules apply when an employee is working, whether indoors or outdoors, and the heat index equals or exceeds 80 degrees Fahrenheit. In those situations, the rules provide that employers must provide and implement the following:

Access to shade. There must be one or more “shade areas” that are “immediately and readily available” to employees who are outdoors. The shade area must be open to the air on at least three sides or have mechanical ventilation for cooling. Shade during meal periods must be large enough to accommodate the number of employees having the meal.

Drinking water. There must be a sufficient supply of drinking water “immediately and readily available” to employees who are outdoors at all times (at no cost). The water must be either cool (66-77 degrees Fahrenheit) or cold (35-65 degrees Fahrenheit). There must be enough water to provide each employee with up to 32 ounces per hour. All of the water does not need to be made available at the start of the shift if the employer has procedures to replenish the water throughout the shift.

High-heat practices. If the heat index is greater than or equal to 90 degrees Fahrenheit, employers must:

Have procedures in place to rapidly identify any employee who is suspected of experiencing a heat-related illness. This can include having regular communications with employees who are working alone or having a mandatory buddy system; and
Develop and implement a written heat-illness prevention rest break schedule. The employer may develop its own plan pursuant to the rules, adopt the plan designed by NIOSH, or utilize the simplified schedule designed by Oregon OSHA, which is available on its website.

California Supreme Court Extends Employees’ Rights to Waiting-Time Penalties and Other Damages

By Bryan Hawkins and Robert Sarkisian on May 24, 2022 Posted in California, wage and hour

On May 23, 2022, the California Supreme Court issued its highly anticipated ruling in Naranjo v. Spectrum Security Services and decided two critical questions: first, whether an employee is entitled to “waiting time penalties” for unpaid premium pay, and second, whether employers are required to report premium pay on their employees’ wage statements.

As all members of the defense bar anticipated, the California Supreme Court answered both of these questions in the affirmative, and in turn significantly increased California employers’ potential exposure in wage and hour litigation.

Naranjo involved a putative wage and hour class action brought by an employee against his former employer alleging the failure to provide proper meal breaks. The legal analysis concerned the intersection of three aspects of California wage and hour law: “premium pay,” “waiting time penalties,” and wage statements. California law provides that employees are entitled to both meal and rest breaks throughout the workday. To the extent an employee does not receive a legally compliant meal and/or rest break, the employee is then entitled to an additional hour of wages for every missed break paid at the employee’s regular rate of compensation, which is referred to as “premium pay.” Continue Reading

Ninth Circuit Rules That a Temporary Impairment Can Qualify as a “Disability” Under the ADA

By Brenda Baumgart, Adam Belzberg and John Dudrey on May 10, 2022 Posted in ADA, California, EEOC, Idaho, News, Oregon, Washington

The U.S. Court of Appeals for the Ninth Circuit, the federal appellate court with jurisdiction over much of the western United States (including Washington, Oregon, California and Idaho), ruled last week that an employee’s temporary impairment can qualify as a disability under the Americans with Disabilities Act (“ADA”). The Ninth Circuit’s decision resolves an important question under federal disability law and could signal a significant change in how employers are required to address employees’ short-term medical limitations.

In Shields v. Credit One Bank N.A., plaintiff Shields was employed by Credit One Bank (“Bank”) as a human resources generalist. Shields underwent biopsy surgery. The biopsy revealed that Shields did not have cancer, but she had a number of post-surgery limitations (e.g., unable to use her right arm to lift, pull, push, type, write, tie her own shoes or use a hair dryer), and these limitations indisputably precluded Shields from performing the essential functions of her position. The Bank put Shields on a short-term leave of absence, but when she was not ready to return to work after two months the Bank terminated her employment. Shields’ lawsuit alleges the Bank violated the ADA by terminating her rather than offering her a reasonable accommodation, specifically, extending her leave of absence to allow her additional recuperation time. Continue Reading

Spring Cleaning for your Oregon Leave Law Policies

By Caroline Sundbaum and Laura Rosenbaum on April 25, 2022 Posted in BOLI, COVID-19, employee handbooks, employer policies, Oregon

As Oregon’s April 2022 snowstorm becomes a distant memory, it’s time for some spring cleaning of employer leave policies. There are two recent changes that may require updates to your employee handbook.

Oregon Paid Sick Leave—Expanded to Account for Evacuation Orders, Poor Air Quality, and Heat.

BOLI recently adopted, effective April 1, 2022, a rule that makes permanent a temporary rule allowing employees to use paid sick leave due to dangers posed by the weather. Under the permanent rule, employees (other than first responders) may use Oregon paid sick leave in the case of either:

A level 2 (“SET”) or 3 (“GO”) emergency evacuation order—for example, in the case of a wildfire—that applies to either (1) the employer’s place of business, or (2) the employee’s home address; or
An authorized determination that the air quality or heat index is at a level at which exposure would jeopardize the health of the employee.

California Court of Appeal Removes Another Arrow from The Quiver of Employers

By Bryan Hawkins and Robert Sarkisian on April 11, 2022 Posted in California, News, Updates

On March 23, 2022, in Estrada v. Royalty Carpet Mills, Inc., the California Court of Appeal for the Fourth District created a split in authority when they held that wage-and-hour lawsuits brought under California’s Private Attorneys General Act cannot be dismissed on manageability grounds. This decision directly contradicted the holding in Wesson v. Staples the Office Superstore, LLC^[1], which felt like a breath of fresh air for employers, if not for a brief moment.

Primer on Manageability in California

On September 9, 2021, the California Court of Appeal for the Second District analyzed the Private Attorneys General Act (“PAGA”), a popular tool used by employees when bringing lawsuits alleging wage and hour violations. The court addressed the requirements plaintiffs need to satisfy in order to successfully bring a PAGA action on behalf of all aggrieved employees. Under PAGA, an “aggrieved employee” is permitted to bring a representative action on behalf of all other “aggrieved employees” to recover civil penalties for alleged California Labor Code violations. In Wesson, the PAGA claim involved over 300 store managers who argued Staples had improperly classified them as exempt from overtime requirements under the executive exemption. Staples moved to strike the PAGA claim on the grounds that adjudicating the claims of these 300 store managers would necessarily involve individual “mini-trials,” and that each aggrieved employees’ individualized situation would vary too greatly, which effectively rendered the PAGA claim unmanageable. Continue Reading

NLRB GC Asks Board To Revisit Standard For Analyzing Employee Handbooks

By John Dudrey and Adam Belzberg on March 9, 2022 Posted in Biden Board, Cases, Labor, News, NLRB, Trump Board

Since August 2021, three of the five members of the National Labor Relations Board (“NLRB” or “Board”) have been appointed by Democratic presidents, including two members appointed by President Biden. Earlier this year, the Democratic majority announced in Stericyle, Inc., 371 NLRB No. 48 (Jan. 6, 2022), that it was requesting briefing on whether to overturn one of several employer-friendly decisions issued by the NLRB during the Trump administration: The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017). In Boeing, the Board adopted a new approach for assessing whether facially neutral employer policies (e.g., generally applicable employee conduct policies) unlawfully interfere with employees’ right to engage in “concerted activities for . . . mutual aid or protection” under Section 7 of the National Labor Relations Act (“NLRA”), even if they do not expressly mention such rights. 365 NLRB No. 154, slip op. at 23 (internal quotation marks and citation omitted).

In a brief filed earlier this week, NLRB General Counsel Jennifer Abruzzo officially joined the fray. Not surprisingly, the General Counsel formally asked the NLRB to overrule Boeing and return to a more employee-friendly standard of review. Below, we provide some background about Boeing and summarize the General Counsel’s position. Continue Reading

California Provides Employees with Another Bucket of COVID-19 Supplemental Paid Leave

By Bryan Hawkins and Robert Sarkisian on February 22, 2022 Posted in California, coronavirus, COVID-19, News

California Provides Employees with Another Bucket of COVID-19 Supplemental Paid Leave

On February 9, 2022, California Governor Gavin Newsom approved Senate Bill 114 (“SB 114”), which entitles most California employees to a new bucket of COVID-19 supplemental paid sick leave. The law will go into effect on February 19, 2022.

California’s prior law entitling workers to COVID-19 supplemental paid sick leave expired on September 30, 2021. Calls to provide additional leave were made during the recent surge of the “Omicron” variant during the winter of 2021. While that surge has seemingly receded in the last few weeks, the California legislature moved forward and passed SB 114 on February 7, 2022, and Governor Newsom signed it on February 9. Continue Reading