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Tuesday
Sep132011

No News is Great News!

When the Oregon legislature meets and there are no reports of major new requirements for Oregon employers, that is good news. And when measures that do pass have only a minimal impact on or actually help employers, that is great news. 

What a difference an election makes. In 2007 and 2009, when one party controlled both houses of the Oregon legislature and the governor’s office, new requirements were piled on top of existing state and federal employment laws.

The 2010 elections resulted in a narrow majority in the Oregon Senate and a historic split in the Oregon House. As a result, things were different in the 76th Oregon Legislative Assembly this year.

 

Bipartisan Cooperation

Democrats and Republicans in the Oregon House deserve commendation. They shared power with a 30-30 split and did the work of the Oregon people.

Instead of one Speaker of the House, there were two Co-Speakers. For each committee, there were co-chairs and an equal number of Democrats and Republicans on the committee. Under the leadership of Co-Speakers, Arnie Roblan (D-Coos Bay) and Bruce Hannah (R-Roseburg), Oregon demonstrated that bipartisan cooperation can work. Perhaps the Co-Speakers should write a book on how to put differences aside and accomplish the people’s business.

 

Employer Friendly Bills Passed

Oregon employers benefited from two new laws this session. 

Arbitration Agreement Notice. In 2009, Oregon passed a law requiring employers to give new hires a written job offer with notice of any mandatory arbitration agreement (avoids the time, expense and uncertainty of trial) two full weeks before they can begin work. The new legislation will reduce the notice period from two weeks to 72 hours. Effective June 1, 2012.

The original law clearly was an attempt to discourage mandatory arbitration and probably violated the Federal Arbitration Act. Even with this amendment, the Oregon law probably continues to be preempted by the federal law.

Written Wage Demand. Vague wage demands by employees (and their attorneys) have long ensnared employers in penalty wage traps. Penalties much greater than the actual amount owed can result. The legislature changed Oregon law to require that wage claim demands specifically state the amount of unpaid wages claimed to be due. Effective January 1, 2012.

 

Minor New Requirements

Employers should pay attention to five minor new requirements.

Jury Duty-Vacation Time. Employers will be prohibited from requiring employees to use vacation time while serving on a jury. Since few if any employers do this, the new law should have minimal impact. Effective January 1, 2012.

Jury Duty-Health Insurance. Employers will be prohibited from rescinding health insurance benefits for employees on jury duty. Since few if any employers do this, the new law should have minimal impact. This law is probably preempted by the federal ERISA law. Effective January 1, 2012.

Harassment Leave. The leave and accommodation rights for victims of certain crimes passed by the 2007 legislature has been extended to victims of criminal harassment. This is a small extension of exiting law and should have minimal impact on Oregon employers. Effective January 1, 2012.

Dishonored Paychecks. The Oregon Bureau of Labor and Industries (BOLI) will be able to seek penalties from employers that issue dishonored paychecks. Penalties will be $100 or three times the amount of the check, whichever is greater, not to exceed $500. Meeting payroll can be a challenge for any employer. Most, however, have adequate funds to cover the paychecks they do write and should find this law has minimal impact. Effective January 1, 2012.

Motor Vehicle Cell Phone Use. The Oregon law banning use of electronic communication devices when driving had an oddly worded exception for business use. This exception will be eliminated for all but a handful of certain public employees. For liability reasons, prudent employers prohibit all cell phone use and texting while driving and should find this new law has minimal impact. Effective January 1, 2012.

 

Burdensome Legislation Failed

There certainly were attempts by BOLI and others to add to the burdens of Oregon employers this last session. Thankfully, these bills did not pass. A partial list is set out below.

Nursing Mothers. Would have repealed “undue hardship” exception for employers with 50 or more employees.

Veterans Leave. Would have provided for new employment leave for veterans. 

Bereavement Leave. Would have added up to six weeks of bereavement leave under the Oregon Family Leave Act (OFLA).

BOLI Right to Sue. Would have lengthened the statute of limitations for BOLI to sue employers from 90 days to one year after issuance of a “right to sue” letter.

BOLI Cease & Desist Fees. Would have allowed BOLI to award attorney fees if BOLI issues a “cease & desist” order following contested cases.

Final Wage Payments. Would have required employers to mail final paychecks via certified mail at employee’s request.

Temporary BOLI Cease & Desist. Would have allowed BOLI to issue temporary cease & desist orders.

Search & Rescue Leave. Would have created protected leave for search and rescue volunteers.

Sibling Leave. Would have added siblings as “family members” for OFLA leave. This would have been a new requirement and yet another departure from the federal Family Medical Leave Act (FMLA).

School Activity Leave. Would have created a new classification of OFLA leave of 18 hours per year for school activities.

Disability Definition. Would have lowered the standards for determining disability under Oregon’s state version of the Americans with Disabilities Act (ADA). Although similar to the ADA, Oregon’s disability statutes apply to employers with just six employees (ADA requires 15 employees). Oregon can also interpret its statute in ways that impose greater burdens on Oregon employers.

Disability Insurance. Would have created a short term disability insurance program administered by BOLI, funded by employee taxes.

Unpaid Wage Lien. Would have created a lien against employer property for wages claimed to be owed before a determination that any wages are actually owed.

Pay Discrimination. Would have created pay discrimination liability for employers without requiring any proof of actual discrimination. A simple difference in amounts paid would have been all that would have been required.

Attorney General Powers. The Oregon Attorney General sought new employment prosecution powers.

 

AOI Influence

As you may be aware, I serve on both the board of directors and the executive committee of Association Oregon Industries (AOI). They are the largest business lobby in Oregon. They were also the only association working full time on employment issues. It is due to their efforts that employers are in a better position now then when going into the legislative session. Thank you AOI.

 

2012 & Beyond

Oregon now has annual legislative sessions. The off year or even numbered year sessions are limited to 35 days. It is unlikely that any of the failed bills will pass the abbreviated 2012 session. The real test for employers will be the 2013 session. That of course will depend upon the outcome of the 2012 elections. Once again, elections matter.

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