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While theatrics, threats of violence and walkouts marked the waning days of the 2019 Legislative Session, these eye-catching topics overshadow the significance of sweeping new legislation. Employers should take note of these changes and plan ahead. Getting to know these new laws and staying abreast of upcoming regulatory filings can be the best preventative medicine against future issues.
Paid Family Medical Leave
Oregon now boasts the most generous paid family and medical leave law in the nation. The new law provides for 12 to 14 weeks of paid leave to most new parents, victims of domestic violence, employees suffering from a serious medical condition and employees who need time to care for ill family members. Any employee earning at least $1,000 per year is eligible to submit a claim for paid leave. Low wage employees can expect their full wages while on paid leave, but the more employees earn, the percentage of take-home pay will decline according to a tiered schedule published by the Oregon Employment Department. Notably, the new leave law does not alter an employer’s responsibility to offer paid sick leave.
Perhaps most importantly, the burden of paying for these new benefits will not be on employers’ shoulders alone. Similar to unemployment insurance or workers’ compensation, this new benefit pool will be administered by the state and funded through payroll taxes. Employees will contribute up to 0.6 percent of their wages to the Paid Family and Medical Leave Insurance Fund starting on January 1, 2022, and benefits will become available the following year. Employers with 25 employees or more will be required to contribute up to 0.4 percent of the employee’s wages to the fund, and smaller employers that volunteer to contribute to the Paid Family and Medical Leave Insurance Fund may be eligible for grants to help defray the additional costs.
Over the next few years, the Oregon Employment Department will further refine this new benefits program by adopting rules and guidance on a wide-array of issues, including establishing the process for filing and challenging claims, and creating a model notice that employers will be able to use. In the meantime, employers should keep an eye on the state rulemaking process. Employers should also consider the financial impact of contributing to the Paid Family and Medical Leave Insurance Fund as part of their business plan, particularly if they are on the cusp of employing 25 or more individuals.
Me Too Movement Legislation
On June 11, 2019, Governor Kate Brown signed the Oregon Workplace Fairness Act into law and gave employees substantially more protections to be free from sexual assault and harassment in the workplace. Whereas employees currently have one year to file a complaint, the Oregon Legislature expanded the deadline for filing claims. This applies to employees alleging sexual assault, as well as discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, age, uniformed service members or disability. Under the new law, employees will have five years to file most discrimination claims. In light of the new dynamic of litigating events that occurred many years ago and how quickly memories fade, employers should evaluate how they document complaints and other incidents and whether they can improve their documentation in order to put forward the strongest defense, should an issue arise.
Employers will also soon be limited in the types of agreements they can require employees to sign. For example, a non-disclosure or non-disparagement clause in an employment agreement may not prevent an employee from discussing unlawful discrimination or harassment. In settlement, separation and severance agreements, an employer may require a non-disclosure, non-disparagement, or no-rehire provision of employees who experienced certain forms of discrimination or harassment only in limited circumstances. Generally, the employee will have to request those terms and must be allowed seven days to revoke the agreement after executing it.
In some instances, an employer may also have the right to cancel a settlement, separation, or severance agreement with a supervisor or other managerial employee who is found to have engaged in most forms of unlawful discrimination. The employer would have to conduct an investigation in good faith before reaching such a conclusion. Employers should tread cautiously before exercising this new right and evaluate any risk by speaking to an employment attorney.
In addition, starting on September 29, 2019, all employers must have a written policy that addresses procedures and practices to reduce incidents of discrimination and sexual assault. These new policies must also explain what new rights employees have under the Oregon Workplace Fairness Act.
It is a good time to update your employee handbook to reflect these changes as well as other new laws such as those relating to workers compensation and breaks for expression of milk.
Josh Goldberg is an attorney at Barran Liebman LLP, where he represents employers in a range of administrative hearings and helps companies navigate all stages of litigation. For questions related to recently passed legislation, contact Josh at 503-276-2107 or lgoldberg@barran.com.
