John Dudrey is a partner in the firm’s Labor & Employment group. His practice focuses on wage and hour compliance, representation of employers with unionized workforces, and complex advice and counsel matters, in addition to general labor and employment practice.
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As of yesterday—May 20, 2025—EEO-1 data collection is open. The deadline to file the 2024 EEO-1 Component 1 report is June 24, 2025. The EEOC stated there will be no extensions, so covered employers should act promptly to file their reports. For detailed information on the EEOC’s substantive filing requirements, employers may refer to the EEO-1 Component 1 Instruction Booklet, which can be found here, and are encouraged to contact their employment attorney.
The EEO-1 opening announcement states that “[u]nder current EEOC regulations, private employers with 100 or more employees and federal contractors with 50 or more employees and that meet certain criteria, are required to report annually the number of individuals they employ by job category and by sex and race or ethnicity.” The phrase ‘under current EEOC regulations’ is noteworthy because those ‘regulations,’ including 41 CFR § 60-1.7, were promulgated to enforce Executive Order 11246. See 41 CFR § 60-1.1 (“The purpose of the regulations in this part is to achieve the aims of parts II, III, and IV of Executive Order 11246 . . . .”). As federal contractors are likely aware, Executive Order 11246 was recently revoked by Executive Order 14173. (See our January 28, 2025 blog post for more information about that Executive Order.) Federal contractors with 50-99 employees would be well advised to consult with their employment attorneys regarding the application of the Executive Orders and federal regulations. For private employers, including federal contractors, with 100 or more employees, EEO-1 reporting should be mostly business as usual.
The announcement about the opening of the reporting period was accompanied by a short message from EEOC Acting Chair Andrea Lucas regarding disparate impact liability, EEO-1 reporting, and the role of the EEOC.
As the 83rd Oregon Legislative Session approaches its end, several employment-related bills are still in play, and they could carry significant implications for businesses across the state. While none have been signed into law yet, the momentum behind them makes this a critical time for employers to pay attention and speak up.
Three proposals—SB 916, HB 2957, and SB 426—stand out for their potential to reshape the employer-employee landscape, increase litigation exposure, and raise costs across industries.
Key Takeaways:
Stay Informed and Take Action
If your business could be affected by any of these bills, now is the time to contact your Oregon legislators to share your thoughts and concerns. You can find your representatives here.
Read the full article here.
Edited May 20, 2025
Last month, the Equal Employment Opportunity Commission (“EEOC”) submitted a proposed 2024 EEO-1 instruction booklet to the Office of Management and Budget. If the proposal is approved, the EEO-1 reporting period will begin on May 20, 2025 and run through June 24, 2025. As employers prepare to file their 2024 EEO-1 Component 1 reports, they should be aware of two changes for this reporting cycle.
Ambiguity Regarding Reporting Requirement for Small Federal Contractors
First, there is ambiguity regarding EEO-1 reporting requirements for small (50-99 employees) federal contractors. The published Department of Labor regulations ostensibly require EEO-1 reporting for federal contractors with 50 or more employees. See 41 CFR § 60-1.7. Those regulations were promulgated to enforce Executive Order 11246. See 41 CFR § 60-1.1 (“The purpose of the regulations in this part is to achieve the aims of parts II, III, and IV of Executive Order 11246 . . . .”). However, Executive Order 14173 revoked Executive Order 11246. (See our January 28, 2025 blog post for more information about that Executive Order.) Accordingly, if you are a small federal contractor with fewer than 100 employees, we recommend contacting your employment attorney for further analysis and guidance.
Removal of Non-Binary Gender Identity Reporting Option
Second, the EEOC has proposed revising its EEO-1 instruction booklet to explain that the EEO-1 Component 1 data collection process does not include options for reporting non-binary gender identities. This is a non-substantive change that does not impact the data collection template, which only ever included reporting options for male and female. In previous years, however, information about non-binary employees could be noted in the comments section of EEO-1 reports; the proposed changes clarify that such supplemental data will not be processed. This shift is intended to comply with Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
Covered employers should begin taking steps to prepare for EEO-1 reporting. Employers with questions about EEO-1 reporting, generally, or changes to the current reporting cycle should contact their Stoel Rives employment lawyer. We will publish further updates regarding the reporting schedule and other changes to the data collection process as they become available.
Two administrative agencies within the federal government have been busy lately publishing new rules that govern important aspects of employers’ relationships with their employees. Read more below for further updates.
The U.S. Department of Labor (“DOL”) has rolled out its long-awaited update to the minimum salary requirements for employees who are exempt from the Fair Labor Standards Act’s (“FLSA”) overtime and minimum wage requirements under the so-called “white collar” exemptions (administrative employees, executive employees, professional employees, and computer employees). Here is what you need to know about what the new rule requires:
Here are some additional important points to keep in mind about the new rule:
Please stay tuned for more updates about the DOL’s new rule. In the meantime, please reach out to us with questions.
The Federal Trade Commission (“FTC”) recently published a final rule banning virtually all new non-compete agreements and, with limited exceptions, requiring employers to notify employees that their current non-compete agreements are no longer enforceable. The new rule is scheduled to go into effect on September 4, 2024. However, because of several pending lawsuits in which businesses and business groups have contended that the FTC lacked the legal authority to issue the new rule, it is questionable whether it will go into effect at all or, if so, when.
Section 5 of the Federal Trade Commission Act prohibits “unfair or deceptive acts or practices in or affecting commerce.” Traditionally, the FTC, which has the authority enforce the FTC Act, has relied on Section 5 to enforce consumer-protection standards and anti-competitive standards under other federal antitrust laws. However, in January 2023, the FTC announced its intent to regulate employee non-compete agreements under the auspices of Section 5 and published a proposed rule that largely outlawed them on a nation-wide basis.
The final rule largely tracks with the proposed rule. There are three main parts of the final rule.
First, the rule defines a “non-compete clause” as a requirement that a “worker” (including both employees and independent contractors) refrain from “[s]eeking or accepting work in the United States with a different person” or “[o]perating a business in the United States” after the worker’s employment concludes. Other restrictive covenants, such as confidentiality, or non-solicitation agreements, are still permitted despite the final rule. However, such restrictive covenants could nevertheless be prohibited under the final rule if they are so broad in scope that they function as non-competes.
Second, the final rule bars all employers that are subject to the FTC’s jurisdiction from entering into new non-compete agreements. The only exception is for non-competes that a worker agrees to as a condition of the “bona fide” sale of a business. However, this exception is somewhat limited because (per the FTC’s comments accompanying the final rule) it only applies when there has been a legitimate, arms-length transaction between unrelated buyers and sellers in which the seller exchanges its business good will as part of the sale.
Third, the final rule requires employers to provide workers who are subject to current non-compete clauses “clear and conspicuous notice” in writing by September 4, 2024, that the non-compete clauses will not and cannot be legally enforced. To be clear, this means that the new rule is retroactive. Subject to the following three exceptions, the new rule reaches all current non-competes even if they were entered into long before the final rule goes into effect. The first exception is for non-competes agreed to as part of “bona fide” sales of a business, as described above. The second exception is for non-competes with so-called “senior executives,” who are defined as workers earning more than $151,164 annually who serve in a policy-making position. Employers may enforce current non-competes with senior executives, but may not enter into any new non-competes with them. Finally, the third exception is for non-competes that are the subject of current litigation, or where a cause of action, for the violation of the non-compete that accrues prior to September 4, 2024 may be enforced by the court hearing the matter.
Next Steps:
Whether the final rule takes effect in September remains to be seen. Three lawsuits have been filed in an effort to enjoin enforcement of the final rule. It is possible (some think likely) that a court will take action to block the final rule from taking effect, and will ultimately strike it down as unlawful.
For now, employers should consider taking the following action:
Please contact us with any questions about the FTC’s new rule and what to do next.
As we previously advised, under Oregon Senate Bill 1515 (“SB 1515”) effective July 1, 2024, most of the Oregon Family Leave Act (“OFLA”)—including leave for the employee’s or a family member’s serious health condition—will sunset. (Pregnancy disability, sick child, and bereavement leave remain available under OFLA.) Employees may instead look to other applicable leave laws, including Paid Leave Oregon and the federal Family Medical Leave Act (“FMLA”).
One question that SB 1515 left unanswered was how employers should address employees whose OFLA leaves were approved under current law, but will no longer be covered under the revised OFLA beginning July 1.
The Oregon Bureau of Labor and Industries (“BOLI”) has now published a Temporary Rule with an answer. No later than June 1, 2024, employers must notify employees in writing that their previously approved OFLA leaves will end effective July 1, 2024.
Please read below for a Q&A with more information about the Temporary Rule.
Which Employees Must Receive Written Notice? Employees are entitled to notice if: (1) they have been approved for OFLA leave for any reason other than pregnancy disability leave, sick child leave, or bereavement leave (for example, serious health condition leave for the employee or a family member); and (2) their approved OFLA leave extends past June 30, 2024.
When Must the Written Notice Be Sent? The Temporary Rule states that employers must send the notice “as soon as practicable” but no later than June 1, 2024.
What Must the Written Notice Contain? The employer must inform the employees that their OFLA leave will not be approved effective July 1, 2024. In addition, the employer must provide the employees with information about the ability to apply for PLO benefits, whether through the State of Oregon or through the employer’s equivalent plan. Employers may comply with this aspect of the Temporary Rule by providing a copy of the Oregon Employment Department’s (“OED”) standard PLO notice. In addition, for new OFLA requests submitted between now and June 30, 2024, employers must provide employees with notice of PLO benefits within 14 days of receiving the OFLA request.
What Else Should I Know About the Temporary Rule? In many instances, employee absences that were covered under OFLA are also covered under FMLA. The Temporary Rule has no effect on employees’ FMLA eligibility because FMLA is administered by the federal Department of Labor (“DOL”). Although not required by the Temporary Rule, employers should consider notifying employees whose OFLA leaves will terminate effective July 1 that their FMLA leave is unaffected.
What Happens if an Employer Fails to Comply with the Notice Requirement? The Temporary Rule does not set forth a penalty for failure to comply with the June 1 deadline.
Please feel free to reach out to anyone from our Labor and Employment group if you have questions about the Temporary Rule or SB 1515. Also, please be sure to register for our June 25, 2024, webinar, “Paid Leave Oregon and OFLA: The Latest and Greatest.”
On March 21, 2024, Oregon Governor Tina Kotek signed into law Senate Bill 1515, amending the Oregon Family Leave Act (“OFLA”) and the Paid Leave Oregon program (“PLO”). The bill is intended to better align the OFLA and PLO. This alert highlights the most significant OFLA and PLO changes, which will take effect July 1, 2024.
The law makes significant changes to OFLA. Before SB 1515, several types of leave – including parental leave and leave for the serious health condition of an employee or the employee’s family member – were covered by OFLA, PLO, and the federal Family Medical Leave Act (“FMLA”). This allowed employees to potentially “stack” their leaves by exhausting OFLA and/or FMLA leave and then taking leave under PLO for the same purpose. SB 1515 addresses some but not all of these stacking issues and creates new questions for employers.
Rather than simply repealing OFLA entirely or prohibiting employees from “stacking” their leaves, SB 1515 amends OFLA to significantly decrease the overlap with PLO. Under the revised law, OFLA now only covers leave for one of the following:
Employers with 50 or more employees should note that FMLA leave criteria have not changed. Employees may still be able to stack FMLA and PLO time.
Other key changes in the new law include:
The new OFLA and PLO rules go into effect July 1, 2024. Between now and then, employers who are subject to OFLA (i.e., those with 25+ employees in Oregon) should consider updating their leave policies to track the new law.
Please contact your attorney if you have questions about how this development impacts your business.
On May 10, 2023, the Oregon Health Authority (“OHA”) announced that, effective May 11, it is suspending the statewide rule requiring that health care workers be fully vaccinated against COVID-19 unless they have an approved medical or religious exception. The news coincides with the end of the federal public health emergency on May 11, along with the anticipated end of the federal COVID-19 vaccination mandate for health care facilities certified by the Centers for Medicare and Medicaid Services (“CMS”).
The OHA stated that immediate suspension of the rule is necessary “to align with the end of the federal public health emergency and elimination of other COVID-19-related control measures, and because there is no longer a significant public health need for this rule.”
The OHA also stated:
The rationale for the rule when it was adopted was that COVID-19 was likely to be transmitted in these congregate settings, placing vulnerable persons at risk. [The Oregon mandate] is now being suspended, because immunity from the primary series is known to wane over time, such that 2 booster vaccinations have since been recommended for most persons. Moreover, the virus that causes COVID-19 has mutated such that the original series provides little longer-term protection against infection by currently circulating strains. Finally, at this point most people have been infected by the virus (94% by one estimate), giving survivors a degree of immunity at least equivalent to that provided by the original vaccination series for some period of time.
Here are some of the immediate questions employers may have following the suspension:
Notwithstanding the rescission of the mandate, OHA continues to strongly recommend “vaccination with the most up-to-date formulations” to reduce the likelihood of severe disease. This is consistent with guidance from the CDC, which continues to recommend that individuals receive the updated Pfizer-BioNTech or Moderna COVID-19 vaccine to reduce the risk of serious illness, hospitalization, and death.
Please contact your attorney if you have questions about how this development impacts your business.
In a recent decision titled Buero v. Amazon.com Services, Inc., 370 Or. 502 (2022), the Oregon Supreme Court ruled that Oregon’s wage and hour law uses the same definition of “work time” as the federal Fair Labor Standards Act (“FLSA”). The Buero decision resolves what had been a hotly contested legal issue for many years and clarifies that Oregon employers (most of which are subject to Oregon law and the FLSA) satisfy their legal obligation to calculate employees’ compensable time using the same legal standard for both sets of laws.
Continue Reading Oregon Supreme Court Rules That Oregon Law Follows Federal Definition of “Work Time.”
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.
The Supreme Court rejected Gist’s argument. The Court pointed to the language in the DSA granting the arbitrator the authority to resolve “any dispute, claim or controversy” as well as language allowing the arbitrator to strike specific portions of the DSA that were unenforceable while preserving the agreement as a whole. Read together, these clauses meant that the agreement could not be plausibly read to prevent the arbitrator from deciding the merits of Gist’s claims and awarding him damages or other relief if he prevailed. ZoAn conceded as much in its arguments to the Court, which likely helped the Court reach its conclusion that the arbitration clause was enforceable.
There are a few “lessons learned” from Gist decision. First, Oregon courts remain willing to enforce arbitration agreements, even those involving individuals who assert claims under employee-protection laws like Oregon’s wage and hour statutes. Second, courts will apply a “common sense” reading to the language in an arbitration agreement as a whole instead of focusing narrowly on a particular provision. Finally, the decision serves as a good reminder that arbitration agreements address how a dispute will be resolved but don’t necessarily change the outcome of the dispute: ZoAn will face the same substantive claim from Gist that it misclassified him as an independent contractor, with the only difference being that the dispute will play out in arbitration rather than in court.
If you have questions about the Court’s ruling, or about requiring employees to resolve disputes through arbitration, please feel free to reach out to any of our labor and employment attorneys.
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.
The Bank defended on the grounds that Shields did not have a disability under the ADA because her post-surgery limitations, while significant, were not sufficiently “permanent or long-term” to meet the law’s requirements. The District Court agreed and dismissed Shields’ claim.
The Ninth Circuit reversed. Under the ADA, a disability is defined in relevant part as “a physical or mental impairment that substantially limits one or more major life activities,” without any reference to how long the “substantial[] limit[]” might last. However, the Equal Employment Opportunity Commission’s (“EEOC”) regulations interpretating the ADA clarify that “the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” The EEOC has advised similarly in its guidance materials, for example, opining that if an “individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting.” Based on this guidance, the Ninth Circuit had little trouble concluding that the District Court was wrong when it ruled categorically that the short-term nature of Shields’ limitations meant she could not establish that she suffered from a disability.
It is clear from the Ninth Circuit’s opinion that employers cannot reflexively dismiss an employee’s request for an accommodation simply because the impairment is temporary. However, many more questions about employers’ obligations remain unanswered:
It will be up to future courts to decide these questions, and no doubt many more. Practically speaking, in most instances the best advice for employers is to focus more attention on the nature of the employee’s requested accommodation and less attention on whether the employee’s impairment technically qualifies as a disability. This is true not only because of the outcome in Shields, but because state disability laws may require employers to accommodate short-term disabilities separate and apart from what is required by the ADA under federal law. For example, Washington’s state disability law expressly includes “temporary” impairments.
In the meantime, please feel free to reach out to any of our labor and employment attorneys if you have questions about the Ninth Circuit’s decision or about your obligations to provide employees—including those with temporary impairments—with reasonable accommodations for their disabilities.