Legal Alerts

2022 Oregon Labor & Employment Year End Review

Portland, Ore. (January 4, 2023) - Oregon saw a handful of new employment laws enacted this past year that employers should take note of. Additionally, the much-anticipated Oregon Paid Family Leave Act went into effect on January 1, 2023. Further, two recent Oregon cases interpreting state statutes related to employment discrimination claims and Oregon’s wage statutes will help define the new year for employers.

Expansion to Oregon’s Workplace Fairness Act

The Oregon Workplace Fairness Act, passed in 2019, limits the terms allowed in a settlement, separation, or severance agreement between an employer and employee or prospective employee for certain state law claims, including discrimination, disability claims, and sexual assault. House Bill 4086 added new provisions to the law significantly broadening its scope, and included former employees under the Act, among other changes. Effective January 1, 2023, additional restrictions on settlement and severance agreements include language that prevents a non-disparagement provision as related to sexual assault or harassment claims. Also, the agreement may not include any provision that prevents disclosure of the amount or fact of any employment settlement. Finally, the Oregon Bureau of Labor and Industries (BOLI) may impose a civil penalty of up to $5,000 for violations of the new restrictions.

Overtime for Agricultural Workers

Starting January 1, 2023, Oregon will begin to phase in overtime compensation requirements for agricultural workers. Farmers will be required to pay time and a half to agricultural workers who work over 55 hours per week. This requirement will continue in phases, with the number of hours worked decreasing incrementally over five years. By 2027, farmers will be required to pay overtime for all hours worked over 40 per week. This new overtime requirement for agricultural workers is paired with a tax credit during the phase in period. The tax credit is meant to alleviate high labor costs. Read more about these new requirements in our May 2022 legal alert, “New Overtime Regulations for Oregon Agricultural Workers.”

OSHA Whistleblower Claims Went Into Effect

In 2021, Oregon passed SB 483, which amended the Oregon Safe Employment Act and increased whistleblower protections for workplace safety complaints filed by employees. The amendments went into effect in June 2022. Under the Act, it was already unlawful for an employer to terminate an employee for opposing unsafe workplace practices, for making a complaint about such practices, or for reporting in good faith an assault that occurred on the premises of a healthcare employer or home of a patient receiving home health services.

SB 483 amended the Act to add that there is a rebuttable presumption of discrimination or retaliation when an employee or prospective employee experiences an adverse employment action within 60 days after engaging in a protected activity. Employers may rebut the presumption by demonstration with a preponderance of the evidence. Additionally, the burden shifting only occurs when the adverse employment action took place within 60 days of the protected activity.

SB 483 illustrates that employers should create and maintain strong policies and procedures for documenting performance issues, especially in support of any adverse employment action. Employers may also want to reevaluate the timing of any disciplinary action taken against an employee to ensure that they will be able to meet their burden of proof, if necessary.

Niche Industry Related Laws

Marijuana Licensees

House Bill 4074 went into effect January 1, 2023. The bill requires that an employee or worker of a marijuana licensee must report human trafficking on licensed premises to the Oregon Liquor and Cannabis Commission. This added reporting requirement is part of the state’s effort to protect marginalized populations. Any marijuana licensee should consider adding a policy and training about human trafficking reporting to their policies and procedures.

Bakery and Tortilla Manufacturers

Senate Bill 1513 also went into effect January 1, 2023. This bill makes it unlawful for a bakery or tortilla manufacturing employer to take adverse action against an employee who refuses to work a mandatory overtime shift unless the employer has provided the employee with at least five days’ advanced notice of the overtime shift, including the date and time of the overtime shift. The bill provides for such action to be deemed an unlawful employment practice under ORS 659A and subject to enforcement by BOLI.

Paid Family Medical Leave

The long-awaited Oregon Paid Medical Leave Oregon program became effective January 1, 2023. The program will be administered through a state-sponsored fund through the Oregon Employment Department, where employers with more than 25 employees will pay 40% of the contribution rate and will collect 60% of the contribution rate from employees through a payroll deduction. The contribution rate for 2023 is 1% of employee gross wages. Employers with less than 25 employees are not required to contribute to the plan but are responsible for collecting and submitting the employee contribution portion. This program runs concurrent with the FMLA and OFLA leave by providing payment during a qualifying leave of absence. A model notice poster must be displayed at each worksite as of January 1, 2023, and contributions begin in the new year as well. Qualifying employees will be eligible to apply for leave starting September 3, 2023. 

Qualifying employees are those who:

1. earned $1,000 or more in the year prior to applying;
2. contributed to the Paid Leave Oregon fund in the base year (the first four of the last five completed calendar quarters) or alternate base year (the last four completed calendar quarters);
3. are experiencing a “qualifying purpose”;
4. applied for benefits; and
5. have not received workers’ compensation insurance benefits during the same period they are seeking benefits from the program.

Qualifying purposes include:

1. Family leave for the birth of a child or to bond with a child in the first year after birth, through adoption, or when placed in the employee’s home through foster care.
2. Family leave to care for a family member with a serious health condition.
3. Medical leave to care for themselves when they have a serious illness or injury.
4. Safe leave to seek assistance for themselves or their minor child related to domestic violence, harassment, sexual assault, or stalking.

Read more about this new law in our October 2022 legal alert, “Oregon to Ring in the New Year with Paid Leave Program.”

Key Oregon Judicial Opinions

Oregon Court of Appeal Expands Interpretation of Who May Be Liable for Aiding and Abetting Under ORS659A.030(1)(g)

In Allison v. Dolich, the Oregon Court of Appeals held that any person can be liable for aiding and abetting in violation of ORS659A.030(1)(g). Allison v. Dolich, 321 Or. App. 721, 726, 518 P.3d 591, 595 (2022). The Allison court reasoned that the plain text of the law makes clear that the it applies to any person, even one who is the principal decision maker directing the entity. Id.

Prior to this case, there was a split between the Oregon district courts and the Oregon state courts in their interpretations of ORS659A.030(1)(g). Oregon district courts reasoned that one who is a principal decision maker acting on behalf of the entity could not be found individually liable for aiding and abetting. Allison clarifies that Oregon state courts do not interpret the statute so narrowly.

The Allison court reasoned that the legislative intent was that the persons directing the business-entity employer’s unlawful conduct can be held individually liable under ORS 659A.030(1)(g) because the statute expressly references “an employer or an employee.” Id. The Allision court held that “whether the individual defendants were acting in their personal capacities or on behalf of the [employer],” they were “persons who assisted the [employer] by making the decisions that enabled the violation.” Id.

Employers must now be prepared to defend lawsuits for violations of ORS659A.030 that will almost certainly now include individual claims against all decision makers for aiding and abetting under ORS659A.030(1)(g).

Oregon Supreme Court Aligns with Federal Law in Determining Compensable Activities Under ORS653.010(11)

In responding to a question from the Ninth Circuit Court of Appeals, the Oregon Supreme Court held that Oregon law aligns with federal law regarding what activities are compensable for the employee. See Buero v. Amazon.com Servs., 370, Or. 502 (2022).The state’s highest court further explained that “whether time spent waiting for and undergoing mandatory security screening on an employer’s premises is compensable under Oregon law depends on whether the screening is an integral and indispensable part of an employee’s principal activities or compensable as a matter of contract, custom, or practice.” Id.

For more information on these new laws, contact the authors of this post. Visit our Labor & Employment Practice page for additional alerts in this area.

Authors:

Bradley J. Krupicka, Partner

Rachael Grey, Associate

Related Practices

• Labor & Employment
• Executive Compensation & Employee Benefits
• Employment Advice & Counseling
• Traditional Labor

Related Attorneys