By: Ally McLain and Brad Krupicka

Paid Leave Oregon

As many employers are aware, Paid Leave Oregon is now in full swing. House Bill 2005 was passed in 2019, making Oregon the 11th state to offer paid family and medical leave. As of January 1, 2023, all employers were required to begin withholding contributions from employee’s wages and submit them to the state. Employees are eligible for benefits, assuming they work in Oregon and made at least $1,000 the year before they apply for paid leave. Employees can take up to 12 weeks (or 14 weeks for pregnancy-related conditions) of paid leave in a 52-week period (starting from the day their leave begins). Examples of qualifying events include disability due to miscarriage or stillbirth; caring for and bonding with a child after birth, adoption, or foster care placement; and caring for a family member with a serious health condition. Non-qualifying events include non-serious illness, bereavement, and military leave. Employers are required to provide job protection to employees, assuming they have been employed for at least 90 consecutive days and the position still exists.

Employers who prefer to provide paid leave benefits themselves can apply for approval of an equivalent plan, which must offer benefits equal to or greater than the state program. Also, there are grants available for small employees including up to $3,000 for costs associated with hiring a replacement worker and up to $1,000 for wage related costs.

Employees were able to begin receiving benefits as of September 3, 2023. Leave granted under Paid Leave Oregon, the Oregon Family Leave Act (“OFLA”), and the federal Family Medical Leave Act (“FMLA”) should be taken concurrently. However, questions often arise over whether an employee is entitled to additional leave under Paid Leave Oregon, even though they recently exhausted their OFLA and/or FMLA leave prior to September 2023. Due to the growing complexity of both state and federal leave laws, it is best to seek legal counsel when matters get complicated.

Below is a short summary of employer obligations to keep in mind related to Paid Leave Oregon:

• Report employee wages for those working in Oregon and employee counts for both Oregon employees and those that work in other states.
• Withhold and submit the employee portion of contributions (or cover some or all those contributions for their employees as an employer-offered benefit).
• Pay the employer portion of contributions (unless exempt from paying employer contributions as a small employer).
• Inform employees about Paid Leave Oregon.
• Restore employees to their position after taking paid leave if the employee has worked 90 days or more for the employer.

Further Restrictions on Non-Disparagement and Confidentiality Clauses

During the past few years, state and federal laws have placed increased pressure on employers to exclude non-disparagement and confidentiality provisions from settlement and severance agreements. In McLaren Macomb, 372 NLRB 58 (2023), the National Labor Relations Board (“NLRB”) declared that the “mere proffer” of a severance agreement which conditions receipt of benefits upon forfeiture of protected rights under the NLRA constitutes an unfair labor practice. Specifically, the NLRB held that a severance agreement that included broad non-disparagement and confidentiality clauses violated the employees’ rights to engage in concerted activity under section 7 of the National Labor Relations Act (“NLRA”). This has created a topic of discussion amongst employers and labor and employment attorneys regarding when non-disparagement and confidentiality clauses might be considered too broad.

This is further complicated by the Oregon Workplace Fairness Act, which was expanded in 2023 to prevent discussion of non-disparagement, no-rehire, and confidentiality provisions in settlement negotiations involving claims of discrimination prohibited by ORS 659A.030, 659A.082, or 659A.112, unless the employee requests such provisions be included.

In light of these new developments, employers should be cautious about providing employees with a severance agreement without first consulting an attorney. Also, each situation is different and these types of provisions might be permissible in some cases but not others.

New Restrictions on Workers’ Compensation Settlements

In 2023, Oregon passed House Bill 3471, which went into effect on July 27, 2023. This law makes it an unlawful employment practice for an employer to make: (1) an offer to negotiate a settlement agreement (involving a workers’ compensation claim) conditional upon worker also entering into an agreement that includes no-rehire provision and (2) an offer for settlement agreement conditional upon a worker also entering into an agreement that includes a no-rehire provision unless:

(a) Prior to the offer, the worker has provided the employer with written confirmation of the worker’s willingness to enter into an agreement that includes a no-rehire provision as a condition of entering into the settlement agreement; and

(B) The settlement offer affirmatively states that entering into the settlement agreement is conditional upon the worker also entering into an agreement that includes a no-rehire provision.

Upcoming Legislation

Oregon House Bill 3307 (Discrimination & Harassment), effective January 1, 2024: Extends civil rights, discrimination, and harassment workplace protections to participants in registered apprenticeship programs and certain private-sector on-the-job training programs. However, it specifically does not extend other protections provided by ORS chapter 652 to 658 or any leave entitlements under ORS 659A.150 to 659A.186.

Oregon House Bill 3443 (Leaves of Absence), effective January 1, 2024: Expands eligibility for protected leave under the Oregon Family Leave Act (“OFLA”) to include bias crime victims. A “victim of bias” means “an individual who has been a victim of a bias crime as defined in ORS 147.380 or any other individual designated as a victim of bias by rule adopted under ORS 659A.805.”

Oregon Senate Bill 1033 (Leaves of Absence), effective January 1, 2024: Defines “active service of the state” for purposes of the requirement that an employer grant a leave of absence during a period of active military service. It is defined as, “service performed while on full-time duty status for training, operational duty or other service of the organized militia under the authority of the Governor, whether paid from state funds or federal funds under Title 32 of the United States Code.”

Oregon Senate Bill 184 (Reporting Requirements), effective January 1, 2024: Modifies employer child support reporting requirements to include payments made to independent contractors. For purposes of this statutes, an “independent contractor” means “an individual who must file a federal form W-9 under the Internal Revenue Code and who is anticipated to be performing services for more than 20 days.”

Oregon Senate Bill 907 (Discrimination/Retaliation/Workplace Safety), effective January 1, 2024: Bars employers from retaliating or discriminating against employees who refuse to do work that would expose them to serious injury or death arising from a hazardous condition, provided the employee acted “in good faith and with no reasonable alternative.”

Key Oregon Judicial Opinions

In Buero v. Amazon.com Servs., 370 Or. 502, 521 P.3d 471 (2022), a wage and hour class action, the plaintiffs alleged that the defendant violated Oregon’s wage laws. They sought compensation for time spent waiting for and undergoing security screenings after clocking out of work. The plaintiff argued that the time spent for mandatory screenings was compensable as “work time” under ORS 653.010(11) and as “hours worked” under administrative rules promulgated by the Oregon Bureau of Labor and Industries (“BOLI”).

The Oregon Supreme Court disagreed with the plaintiff and concluded that Oregon law aligns with federal law regarding what activities are compensable. In particular, the Court agreed time spent waiting for and undergoing mandatory security screenings on an employer’s premises before or after a work shift is compensable only if the screenings are either: (1) an integral and indispensable part of an employee’s principal activities, or (2) compensable as a matter of contract, custom, or practice.

For more information on these new laws, contact the authors of this post.