E-Alerts
As a special service to our clients, Barran Liebman LLP provides valuable Electronic Alerts℠ free of charge. The Electronic Alerts℠ summarize new case law and statutes that may impact your business, and suggest methods to comply with new legal requirements.
If you would like a copy of an archived E-Alert emailed to you, please contact Traci Ray by email or phone at 503-276-2115.
11/2/23: NLRB Broadens Joint-Employer Test with Final Rule
November 2, 2023
By Nicole Elgin
The National Labor Relations Board (NLRB) issued a Final Rule on the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA). The rule is effective December 26, 2023, and will expand the situations where multiple entities will be considered joint employers.
The NLRB’s new standard looks to whether the entities have an employment relationship with the employees and codetermines one or more of the employees’ essential terms and conditions of employment. The Final Rule defines “essential terms and conditions of employment” as:
(1) wages, benefits, and other compensation;
(2) hours of work and scheduling;
(3) the assignment of duties to be performed;
(4) the supervision of the performance of duties;
(5) work rules and direction governing the manner, means, and methods of the performance of duties and the grounds for discipline;
(6) the tenure of employment, including hiring and discharge; and
(7) working conditions related to the safety and health of employees.
The new rule’s key difference from the prior rule is that it does not require employers to actually exercise “substantial direct and immediate control” over the essential terms and conditions of employment. Under the new rule, an entity having the authority to codetermine the essential terms and conditions of employment will be sufficient to establish joint-employer status, regardless of whether an entity actually exercises that authority.
Joint-employer classification under the NLRA has many important impacts for organizations to understand, including that when entities are found to be joint employers, both can be liable for one entity’s unfair labor practices. Joint employers also have a duty to bargain collectively with the employees’ representative over terms and conditions of employment that the joint employer possesses the authority to control.
This Final Rule comes as one of many changes made to federal labor law in recent months. Employers should be aware of the impacts of joint-employer status and carefully assess whether this broader standard will create additional labor law obligations for their operations.
Click to access a PDF of this E-Alert.
Employers with questions about joint-employer status and other labor law issues should contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
10/11/23: Upcoming Changes to Washington’s Paid Sick Leave & Minimum Wage
October 11, 2023
By Nicole Elgin
Paid Sick Leave
In the 2023 legislative session, the Washington State Legislature passed Engrossed Substitute Senate Bill 5111 (ESSB 5111) requiring employers with construction workers who have not reached their 90th calendar day of employment to pay accrued but unused sick leave upon separation of employment. The bill was signed into law by the Governor and is effective January 1, 2024. The Washington Department of Labor & Industries (L&I) is currently in the administrative rulemaking process and will hold public hearings on November 7 and 8, 2023, on its proposed rules that will implement the new law.
The requirement broadly applies to employers who have workers covered under the North American Industry Classification System (NAICS) Code 23 construction. The rulemaking specifically defines “construction worker” as “any nonexempt employee covered under NAICS code 23. Employees who work for an employer that performs construction-related work, but who are not engaged in the construction work itself,” are also covered by the rule, including nonexempt administrative staff. Employers engaged solely in residential building construction (under NAICS 236100) are exempt from the requirements.
The proposed rules provide that accrued and unused sick leave may be paid to construction workers under a valid collective bargaining agreement, provided the collective bargaining agreement establishes equivalent sick leave provisions required by law. In addition to the changes relating to construction workers, L&I’s proposed rules also clarify that employers are not allowed to force employees to use their accrued, unused paid sick leave when a qualifying purpose occurs.
Minimum Wage
Washington’s minimum wage for workers 16 and older will increase from $15.74 to $16.28 per hour effective January 1, 2024 (a 3.4% increase). Employers should be mindful of local rules with minimum wages higher than the state minimum. For example, SeaTac’s minimum wage for hospitality and transportation employees is increasing to $19.71 per hour starting in 2024 (up from $19.06 this year). Tukwila and Seattle also have higher minimum wages, and their minimum wage increases for 2024 are expected to be announced this fall.
Determining the applicable minimum wage and whether an employer is required to pay out accrued and unused sick leave is complex. Washington employers should reach out to their employment counsel to ensure that they remain in compliance with the applicable laws.
For questions on leave, minimum wage compliance, or for any other labor or employment matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
9/28/23: The U.S. Department of Labor Announces Proposed Changes to the FLSA
September 28, 2023
By Nicole Elgin & Becky Zuschlag
On September 8, 2023, the United States Department of Labor (DOL) published a proposed rule that would change the Fair Labor Standards Act (FLSA) regulations for exempt executive, administrative, and professional employees.
Significant proposed revisions include:
An increase to the standard salary level from $684 per week ($35,568 per year) to $1,059 per week ($55,068 per year).
Increasing the highly compensated employee compensation threshold from $107,432 per year to $143,988 per year.
Automatically updating the earning thresholds every three years.
The FLSA generally requires covered employers to pay employees minimum wage and overtime when an employee works more than 40 hours in a workweek. The FLSA provides categories of employees who are exempt from its regulations, including those who are “employed in a bona fide executive, administrative, or professional capacity.” Specific criteria must be met in order for an employer to classify employees as exempt under the FLSA. In particular, an employee (1) must be paid on a salary basis, meaning their salary is not subject to reduction based on the amount or quality of work performed; (2) must be paid a salary that meets the minimum specified amount; and (3) must have job duties that are primarily executive, administrative, or professional in nature, as defined in detail by the FLSA and DOL regulations and guidance.
The DOL’s proposed rulemaking is open for public comment until November 7, 2023. Many may remember the proposed increase to the exempt salary thresholds from 2016 that was blocked by the courts. Employers can expect to see similar legal challenges to this current rulemaking. In the meantime, employers should evaluate the potential impact of the proposed changes on their organization and be prepared to address the rules if they are finalized.
Click to access a PDF of this E-Alert.
For questions on FLSA compliance, contact Barran Liebman attorney Nicole Elgin at nelgin@barran.com or (503) 276-2109.
9/13/23: Flurry of Activity from the NLRB Creates New Rules for Employers
September 13, 2023
By Nicole Elgin
The National Labor Relations Board (NLRB) has issued several decisions and rules in the past weeks that create new standards for covered employers.
Employer’s Duty to Bargain Expanded
On August 30, 2023, the Board issued two decisions (Wendt Corporation and Tecnocap, LLC) that modify the standard for when an employer may lawfully make unilateral changes to the terms and conditions of employment for a unionized workforce. The Wendt Corporation decision removes an employer’s ability to rely on past practices of making unilateral changes before a workforce was unionized. In Tecnocap, LLC, the NLRB held that an employer’s past practice of unilateral changes developed under a management rights clause in a collective bargaining agreement (CBA) cannot beFlurry used as a basis for unilateral changes after that CBA expires. These opinions further restrict what actions employers of unionized workforces can take without providing the union notice and an opportunity to bargain.
Relaxed Standard for Proving Unlawful Employer Conduct
On August 28, 2023, the Board issued Intertape Polymer Corp., clarifying the standard for proving unlawful employer conduct. The current standard comes from a case called Wright Line and requires the General Counsel to establish that (1) an employee engaged in union-related or otherwise protected activity; (2) the employer had knowledge of that activity; and (3) the employer had union or protected concerted activity animus. Intertape states that the Board will evaluate all evidence in the record when determining if there is union animus and that direct or circumstantial evidence can be used. While the NLRB frames the Intertape decision as a clarification, it effectively lowers the General Counsel’s evidentiary burden to establish animus.
New Framework for Union Representation Proceedings
On August 25, 2023, the Board issued Cemex Construction Materials Pacific, LLC, providing a new framework for when employers must bargain with a union without an election. This case is a dramatic shift in the union election and representation process. Now, if a union requests recognition based on majority employee support, the employer must: (1) recognize the union and begin bargaining; or (2) immediately file an RM petition seeking an election to verify the union’s status as bargaining representative. If an employer commits an unfair labor practice that would require setting aside the election, the NLRB will dismiss the employer’s RM petition and order that the employer recognize and bargain with the union.
New Final Rule for Procedures for Representation Elections
On August 24, 2023, the NLRB adopted a Final Rule that changes procedures for representation elections. The NLRB issued this rule to eliminate the “new delays in the election process” created by the 2019 rule amendments. The Final Rule places more pressure on employers to be prepared to respond quickly when faced with a representation petition.
The changes introduced by the new rule include, but are not limited to:
Shortened timeline for pre-election hearings to occur from 14 business days from service of a Notice of Hearing to 8 calendar days. The deadlines for non-petitioning parties to submit a response to an election petition (the statement of position) corresponds to the date of the hearing, and has therefore been advanced under the new rule. The Regional Director will have discretion to postpone pre-election hearings and the deadline for a party’s statement of position for up to 2 business days upon a showing of special circumstances. Additional extensions may be granted for extraordinary circumstances.
Shortened deadlines for employers to distribute information to employees during elections. Under the new rule, employers must post the NLRB’s Notice of Petition for Election within 2 business days of service of the Notice of Hearing.
Removed disputes over eligibility to vote and the scope of a proposed bargaining unit from the subjects resolved during the pre-election hearing.
Removed 20-business day waiting period after a decision and direction of election (rendered after the pre-election hearing). The Regional Director must schedule elections for “the earliest date practicable” following its decision in a pre-election hearing.
Click to access a PDF of this E-Alert.
Employers with questions about compliance with the NLRB’s updated standards should contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
9/6/23: Common Questions Answered Regarding OFLA & Paid Leave Oregon
September 6, 2023
By Amy Angel
With Paid Leave Oregon benefits beginning on September 3, 2023, the Oregon Employment Department and the Oregon Bureau of Labor & Industries have published a fact sheet to answer common questions regarding the interaction between leave taken under Paid Leave Oregon and leave taken under the Oregon Family Leave Act (“OFLA”). Although Senate Bill 999, which amended both Paid Leave Oregon and OFLA, attempted to bring these two leave laws into alignment, there is still tension between the two laws.
Concurrency of OFLA & Paid Leave Oregon
Generally, employees are eligible to take 16 (or up to 18 weeks) of total leave—including both unpaid OFLA leave and paid leave taken under Paid Leave Oregon—during a Paid Leave Oregon benefit year. Additionally, if an employee’s reason for leave qualifies under both Paid Leave Oregon and OFLA, the leave must be taken concurrently. However, employers may not require that their employees apply for Paid Leave Oregon benefits.
In a nutshell, this means that OFLA leave taken prior to an employee beginning their Paid Leave Oregon benefit year will not reduce the amount of leave under Paid Leave Oregon they may be eligible to take. Similarly, OFLA leave taken before September 3, 2023, will not reduce the amount of leave under Paid Leave Oregon available.
However, assuming that the employer’s Paid Leave Oregon and OFLA benefit years are aligned, this potential for “stacking” is eliminated if an employee chooses to apply for and take Paid Leave Oregon first or concurrently with OFLA. However, if an employee’s reason for leave qualifies under both Paid Leave Oregon and OFLA, but the employee decides not to apply for Paid Leave Oregon benefits at the outset, then that employee is entitled to exhaust their OFLA leave (for up to 36 weeks of protected leave) and subsequently apply for Paid Leave Oregon (for up to 14 weeks of protected leave).
Conversely, if an employee’s reason for leave qualifies under both Paid Leave Oregon and OFLA, but the employee does decide to apply for Paid Leave Oregon benefits at the outset, then that employee will concurrently exhaust their Paid Leave Oregon and OFLA leave and may take up to a maximum of 14 weeks of paid leave under Paid Leave Oregon and up to an additional four weeks of unpaid OFLA leave during the same benefit year.
Intermittent Parental Leave
Additionally, the fact sheet notes that, while OFLA permits an employer to require an employee to take parental leave all at once, Paid Leave Oregon allows parental leave to be taken intermittently. Accordingly, employers must allow employees using Paid Leave Oregon to take parental leave intermittently so long as they take time off in full day increments.
For additional information relating to Paid Leave Oregon, including all recent E-Alerts and publications that relate to Paid Leave Oregon, visit our Paid Leave Oregon webpage.
For questions on compliance with Paid Leave Oregon, or other related policy updates, decision-making, or advice, contact Amy Angel at (503) 276-2195 or aangel@barran.com.
8/25/23: IRS Issues Secure 2.0 Catch-Up Contribution Provisions Delay
August 25, 2023
By Jeff Robertson & Iris Tilley
Secure 2.0 placed certain limits on catch-up contributions. In particular, where a plan offers catch-up contributions, Secure 2.0 included a mandate requiring plans to only allow catch-up contributions for those earning $145,000 (as adjusted) in the prior year if the contributions were made on a Roth basis. Many plans and their providers have been discussing implementation of those provisions, and some plans have already elected to shift catch-up contributions to Roth for some or all employees beginning in 2024.
Today, August 25, 2023, the IRS announced a two-year administrative delay to the implementation of this provision until January 1, 2026.
Plans that have already elected to transition catch-up contributions to Roth contributions can elect to rescind that election or may begin implementation. The IRS additionally provided a few clarification points on this provision and signaled its intention to provide more guidance. Plans may wish to pause implementation until receiving this updated guidance.
Click to access a PDF of this E-Alert.
For questions on catch-up contributions or for any other benefits questions, contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com.
8/15/23: Paid Leave Oregon: Employee Applications Are Live!
August 15, 2023
By Barran Liebman
Today, the Oregon Employment Department (“OED”) announced that employees may begin applying for Paid Leave Oregon benefits from the state trust fund in English or Spanish via Frances Online. Employees will need to sign up for a Frances Online account to apply.
Although benefits under Paid Leave Oregon do not begin until September 3, 2023, the OED is encouraging employees to submit applications early to allow enough time to process initial claims. In addition, the OED states that employees should expect a two-week wait before they start to receive benefit payments.
For guidance on how to best prepare for Paid Leave Oregon benefits to begin on September 3, see our July 31 E-Alert summarizing recent legislative amendments and offering key compliance tips. For additional information relating to Paid Leave Oregon, including all recent E-Alerts and publications that relate to Paid Leave Oregon, visit our Paid Leave Oregon webpage.
Click to access a PDF of this E-Alert.
For assistance drafting or revising your Paid Leave Oregon policy or assistance preparing for Paid Leave Oregon administration, contact Barran Liebman at (503) 228-0500.
8/07/23: NLRB Adopts New Standard for Assessing Unlawful Workplace Rules
August 7, 2023
By: Nicole Elgin & Becky Zuschlag
On August 2, 2023, in its decision in Stericycle Inc., the National Labor Relations Board (NLRB) adopted a new legal standard for evaluating workplace rules. Now, when an employer’s rule or policy is challenged, the NLRB’s General Counsel must prove that the rule has a reasonable tendency to chill employees from exercising their rights under Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB explained that “an employer’s intent in maintaining a rule is immaterial.” Rather, if an employee could reasonably interpret the work rule to have a coercive meaning, then the General Counsel will meet their burden of proof. If the burden is met, the rule is presumptively unlawful.
The employer may rebut this presumption by proving that the rule advances a legitimate and substantial business interest, and a more narrowly tailored rule would fail to advance that interest. If the employer is successful in proving its defense, the work rule is lawful to maintain.
One of the policies at issue in Stericycle Inc. restricted employees’ use of personal cell phones to break time and required that these devices be stored in lockers during work hours. The Administrative Law Judge (ALJ), who heard the case prior to it going to the NLRB for review, found this policy to be lawful and not an explicit restriction of Section 7 activity. Another policy prohibited employee conduct “that maliciously harms or intends to harm” the company’s business reputation. The ALJ found this policy was unlawful because it was vague and included a threat of discipline or termination. This combination was likely to cause employees to “reasonably construe the rule to prohibit Section 7 activity, in violation of Section 8(a)(1).” The NLRB directed the ALJ to reconsider the case, applying the new standard.
The NLRB’s decision rejects prior case law that used a categorical approach to assessing work rules and replaces it with a standard requiring “a particularized analysis of specific rules, their language, and the employer interests actually invoked to justify them.” The new standard builds on and revises the Lutheran Heritage standard and overrules Boeing Co. (2017) and LA Specialty Produce Co. (2019).
When drafting or revising workplace rules, policies, and handbooks, employers subject to the NLRA should consider whether a reasonable employee could interpret the rule as interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
For questions on compliance with the NLRA, contact Nicole Elgin at nelgin@barran.com or (503) 276-2109.
7/31/23: Paid Leave Oregon: It’s a Go! What You Need to Know About Legislative Amendments & Key Policy Changes to Implement Before Employees Start Applying for Benefits on August 14
July 31, 2023
By Amy Angel
As required by Senate Bill 31, the Oregon Employment Department (“OED”) recently issued a press release stating that, based on current data and projections, the Paid Leave Oregon trust fund is ready for benefits to begin as planned on September 3, 2023. Covered individuals may begin applying for Paid Leave Oregon benefits via the OED’s online platform, Frances Online, on August 14, 2023.
In addition to the OED affirming the program’s solvency, the Oregon Legislature has passed (and Governor Kotek has signed) three bills that impact employers’ Paid Leave Oregon policies and procedures: Senate Bills 912, 913, and 999. Below is an overview of recent amendments to Paid Leave Oregon under Senate Bills 912 and 913. For an overview of Senate Bill 999, see our May 31 E-Alert on the alignment of Paid Leave Oregon and OFLA.
Senate Bill 913:
Replaces the former place of performance test, which was intended to help employers determine whether to report employees’ wages to Oregon as compared to another state in which the employee may work in, report to, or reside, with language that mirrors Washington’s localization test.
Expressly provides that an employer may permit an employee to use all or a portion of paid sick time, vacation leave, or any other paid leave earned by the employee in addition to Paid Leave Oregon benefits during a period of leave taken under Paid Leave Oregon. This language replaces the former requirement that an employee must only be brought up to 100% of their average weekly wage. This change allows employers to permit employees to use paid leave while waiting for their Paid Leave Oregon benefits to be processed and paid and will allow for more flexibility for employers who permit employees to “top off” their benefits.
Adds eligibility requirements for self-employed individuals and tribal government employees, such as a requirement that the individual has earned at least $1,000 in taxable income during the base or alternate base year.
Removes the former $132,900 cap on employee wages (and self-employed individuals’ taxable income) subject to contributions under Paid Leave Oregon and, instead, aligns the maximum amount of wages subject to contributions with the Social Security contribution and benefit base limit established by the United States Social Security Administration.
Senate Bill 912:
Allows the OED to recover overpaid benefits from covered individuals for up to five years following the date the decision establishing the overpayment became final. The methods by which the OED may recover overpaid benefits differ, depending on whether the overpayment was the result of the covered individual’s false statement or misrepresentation.
Authorizes the OED to assess penalties against employers with non-compliant equivalent plans. The OED may waive collection of a penalty assessed, if (1) the employer corrects the violation within 30 days of receiving a notice of the violation, and the notice is for a first violation; or (2) the OED determines the violation to be an inadvertent error by the employer.
Incorporates a penalty that may be assessed against assistance grant recipients who obtained the grant by fraud or misrepresentation. The penalty will amount to 50% of the total amount of the grant award.
What to Do Before September 3:
Update your Paid Leave Oregon, OFLA, and Oregon Sick Time policies to align with the amended definitions of “family member.”
Align your Paid Leave Oregon, OFLA, and FMLA leave years, to the extent possible. For more information, please see our May 31 E-Alert.
Determine whether and to what extent you will permit employees to use other paid benefits during a period of leave taken under Paid Leave Oregon. Note that an employee has the right to use other paid time off during any period in which an employee’s Paid Leave Oregon benefits run concurrently with leave taken pursuant to OFLA.
Confirm your required Paid Leave Oregon notice is posted and be prepared to share information with employees about how to apply for benefits.
Keep an eye out for forthcoming administrative rule changes.
For assistance drafting or revising your Paid Leave Oregon policy or assistance preparing for Paid Leave Oregon administration, contact Amy Angel at (503) 276-1212 or aangel@barran.com.
7/27/23: What’s New with the Form I-9: An Updated Form, E-Verify & Reverification Requirements
July 27, 2023
By Amy Angel
Many of the relics from COVID-19 have started to disappear, and remote inspection of Form I-9 documents is no exception. Starting in March 2020, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) gave employers flexibility to remotely verify documents for the I-9 process as many employers did not see their new hires in person to verify their documents. This practice is now ending.
An End to the Pandemic-Era Remote Verification
As of July 31, 2023, employers may no longer verify Form I-9 documents remotely. This means that, in general, checking documents via video link, fax, or email will no longer suffice.
However, beginning August 1, 2023, employers enrolled in E-Verify may verify Form I-9 documents electronically via a live video call. There is a specific process employers must implement if they wish to use E-Verify. The process begins with the employee sending copies of their I-9 documents to the employer. After receiving the documents, the employer must:
Look at copies of the I-9 documents (front and back) or an acceptable receipt to ensure the documents reasonably appear to be genuine.
Complete a live video interaction with the document-holder to ensure the documents reasonably appear to be genuine and related to the individual.
Mark on the Form I-9 that an alternative procedure was used to examine the documents for Section 2 or for reverification. On the new Form I-9, as discussed below, there is a checkbox for this.
Keep a copy of the documentation (front and back if two-sided).
In the event of an investigation or audit by federal agencies, make copies of the documentation available.
Reinspection of Documents is Required
Employers who conducted remote verification of Form 1-9 documents between March 20, 2020, and July 31, 2023, must inspect those identity and employment eligibility documents again. In general, an employer must physically reinspect the employee’s I-9 documents in the employee’s physical presence no later than August 30, 2023, and note the updated in-person inspection on the Form I-9.
Employers may use an authorized representative for this purpose. According to ICE, “an authorized representative can be any member of the general public, personnel officer, foreman, agent, or notary public where permissible,” but employees cannot be authorized representatives. Notary publics should not put a notary seal on the Form I-9, as they are not acting in their notary capacity when they verify the documents. The third-party representative must complete all the employer’s Form I-9 duties, including reviewing Section 1 of the Form I-9 after the employee completes it. However, employers will be liable for any violations regarding the I-9 form or verification, including any violations committed by the authorized representative.
Alternatively, beginning August 1, 2023, employers enrolled in good standing in E-Verify may re-inspect an employee’s Form I-9 documentation electronically via a live video call pursuant to the steps outlined above if all the following conditions are met:
The employer was enrolled in E-Verify at the time they performed the remote examination of the employee’s Form I-9 documentation;
The employer created an E-Verify case for the employee; and
The employer performed the remote inspection between March 20, 2020, and July 31, 2023.
To be in good standing, an employer must be enrolled in E-Verify for all hiring sites in the U.S. Employers qualified to use this alternate method may apply it consistently to all workers or to only those who are fully remote. However, a worker may decline to participate in the alternate procedure and submit documentation for an in-person physical inspection.
Anti-Discrimination Requirements
Employers must be careful not to ask every employee to reverify their I-9 eligibility documents regardless of how they were originally verified, as unnecessary document requests can constitute employment discrimination based on citizenship or immigration. Additionally, employers must administer E-Verify in a non-discriminatory way. While solely using E-Verify for remote employees is acceptable, selecting employees based on criteria that aligns with a protected class is not.
New Form I-9
Beginning August 1, 2023, a new Form I-9 will be available for use. Employers will be required to use the new version beginning November 1, 2023, but can begin using it as of August 1.
The new Form I-9 is a streamlined version of the older version. Notably, it reduces Sections 1 and 2 to a single-sided sheet and reduces the instructions from 15 pages to 8 pages. As discussed above, the new form also allows employers to check a box indicating they examined the Form I-9 documents remotely through a DHS-authorized alternative procedure instead of through physical examination.
With big changes happening in the world of I-9s, it is a great time for employers to check their compliance with the new rules. Employers should contact a trusted legal advisor if they have questions regarding the new Form I-9 requirements.
Click to access a PDF of this E-Alert.
For any questions, contact Amy Angel at 503-276-2195 or aangel@barran.com.
6/30/23: U.S. Supreme Court Sets New Standard for Evaluating Religious Accommodations
June 30, 2023
By Chris Morgan
Yesterday, the United States Supreme Court set new standards for the evaluation of religious accommodations in the workplace. Title VII of the Civil Rights Act of 1964 provides that employers must accommodate the “religious observance and practice” of employees and prospective employees unless the employer shows that such accommodation would cause “undue hardship on the conduct of the employer’s business.”
Under the previous standard, an undue hardship was interpreted simply as anything that presented “more than de minimis cost” to the employer. Yesterday’s ruling in Groff v. DeJoy set a higher bar. According to the Court, an employer must now provide a religious accommodation unless they can show that doing so would result in “substantial increased costs in relation to the conduct of [the employer’s] business.”
In determining whether an undue hardship exists under the circumstances, the U.S. Supreme Court directs that, from here forward, courts should evaluate “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size, and operating cost of [an] employer’.”
Employers should be aware of this new standard and amend their policies accordingly for purposes of evaluating employee requests for religious accommodations. It is too soon to know whether the decision will be applied in a way that informs the standard used for assessing other types of mandated accommodations such as under the ADA or the new the Pregnant Workers Fairness Act.
Click to access a PDF of this E-Alert.
For questions on religious accommodations or for any other employment matters, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.
6/29/23: Big Changes in Higher Education as the U.S. Supreme Court Strikes Down Affirmative Action
June 29, 2023
By Barran Liebman
In a major decision released today, the U.S. Supreme Court struck down affirmative action in higher education, limiting the use of race as a factor in college admissions. The Court held that Harvard College and the University of North Carolina’s admissions policies are unlawful, rejecting arguments that their admissions programs are warranted to ensure campus diversity.
The Court held that admission programs allowing for racial considerations violate the Constitution’s guarantee of equal protection and Title VI of the Civil Rights Act of 1964. The Court stated that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality—it is “universal in [its] application.” Moreover, “Title VI is coextensive with the Equal Protection Clause.” The Court declared that both “programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” Where the Equal Protection Clause applies to public universities and organizations, private organizations and universities need to adhere to Title VI of the Civil Rights Act of 1964.
Although the Court rejected the current practices at Harvard and University of North Carolina, “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
Importantly, the impact of the Court’s decision is not necessarily limited to higher education—it has the potential to impact all educational admission programs and could lead to increased scrutiny of diversity, equity, and inclusion programs across the country and across industries. Organizations with programs (such as fellowship or scholarships) that have been used to increase diversity could also face potential challenges.
Notably, the Equal Employment Opportunity Commission (EEOC) Chair promptly issued a statement to express the agency’s view that the Court’s opinion “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” One message from today’s opinion, however, is that the manner in which those programs are implemented and managed can be very important.
Click to access a PDF of this E-Alert.
For any questions about this decision or for any other higher education or employment matters, contact Barran Liebman at (503) 228-0500.
6/28/23: Now in Effect: What to Know About the Pregnant Workers Fairness Act
June 28, 2023
Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) now requires employers with 15 or more employees to provide reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing an accommodation would impose an undue hardship on the employer’s business operations. While Oregon law already provides similar protections to workers under ORS 659A.147, employers who have employees working in other states should pay special attention to this new federal law.
Generally, to qualify for protection under the PWFA, an employee or applicant must be able to perform the essential functions of the position, with or without a reasonable accommodation. However, an employee or applicant will still qualify under the PWFA if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.
More specifically, the PWFA makes it an unlawful employment practice for employers to:
Fail to provide a reasonable accommodation for a qualified employee’s known limitation related to the pregnancy, childbirth, or a related medical condition (unless the accommodation would impose an undue hardship on the employer’s business operations);
Require a qualified employee to accept an accommodation without a discussion about the accommodation between the employee and the employer (i.e., without engaging in the interactive process);
Deny a job or other employment opportunity to a qualified employee or applicant based on the individual’s need for a reasonable accommodation;
Require a qualified employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliate against a qualified employee or applicant for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.
The U.S. Equal Employment Opportunity Commission (EEOC) has additional guidance to assist employers in complying with the PWFA. Employers should also review their handbooks and pregnancy accommodation policies, as well as train supervisors, managers, and HR staff about how to implement these policies moving forward.
For questions related to the Pregnant Workers Fairness Act or other employment laws, contact the Barran Liebman team at 503-228-0500.
6/27/23: Washington Employers Should Think Twice Before Searching Employee Vehicles
June 27, 2023
Effective July 23, 2023, Washington House Bill 1491 goes into effect. Washington employers are no longer able to search an employee’s privately-owned vehicle, even if it is on their property and the employee waives their privacy right.
There are several exceptions to the law, including where:
The employer owns or leases the vehicle;
The search is conducted by law enforcement;
An inspection is required to ensure it is suited for required/authorized work-related activities;
It is a security inspection of a vehicle on state or federal military property;
The vehicle is located on the premises of a state correctional institution;
Specific employer areas are subject to searches under state or federal law; or
It is necessary to prevent an immediate threat to human life, health, or safety.
There is also an exception where an employee consents to the search based on probable cause that an employee unlawfully possesses employer property or controlled substances in violation of both federal law and the employer’s written policy prohibiting drug use. (In these circumstances, an employee needs to provide consent immediately prior to a search and can request a witness to be present.)
With this new law, a Washington employer cannot require, as a condition of employment, that an employee waive these protections. Nor can an employer take any adverse action against an employee for exercising their rights under this statute. Adverse actions include (1) denying or delaying wages owed; (2) terminating, suspending, demoting, or denying a promotion; (3) reducing an employee’s work hours or altering a preexisting schedule; (4) reducing pay; and (5) taking action or threatening to take action based on the employee’s or family member’s immigration status.
With this law going into effect, it is a good time for Washington employers to review their handbooks, and in particular, their Drug and Alcohol policy and policies governing the search of employees and their vehicles. If you do not currently have a policy providing for the search of employee vehicles on company property, it is a good time to consider adopting one.
Click to access a PDF of this E-Alert.
For questions about Washington House Bill 1491 or for any other employment-related matters, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com.
6/5/23: NLRB General Counsel Issues Memo Opining That Non-Compete Agreements Violate the NLRA
June 5, 2023
By Nicole Elgin
The National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued Memorandum GC 23-08 explaining her position that offering and binding employees to non-competition agreements violates the protections of the National Labor Relations Act (NLRA) and constitutes an unfair labor practice. The Memorandum does not change the law, but it shows the General Counsel’s intent to push for the NLRB to adopt this position as law.
The Memorandum details Ms. Abruzzo’s rationale for why “overbroad” non-competition agreements chill employees from exercising their rights under the NLRA. The Memorandum argues that a non-competition agreement is overbroad when it could reasonably be construed by employees as denying them the ability to quit or change jobs by cutting off their access to employment opportunities for which they are qualified. The General Counsel argues that employees bound by overbroad non-competition agreements are restricted or discouraged from taking concerted actions such as collectively resigning to obtain concessions from their employers. Therefore, offering, entering into, or enforcing an overbroad non-competition agreement arguably constitutes a violation of Section 8(a)(1) and (5) of the NLRA. As a reminder, these arguments apply only to “employees” as that term is defined under the NLRA.
The Memorandum also argues that non-competition agreements may be permissible in limited circumstances when the agreement “is narrowly tailored to special circumstances justifying the infringement on employee rights.” The General Counsel then provides examples of employer interests which, in her opinion, would or would not justify such an infringement. To the General Counsel, protecting proprietary and/or trade secret information constitutes a legitimate interest. The General Counsel’s viewpoint does not consider retaining employees, protecting investments in training, or avoiding competition with former employees to be legitimate interests.
This Memorandum signifies an additional attempt by various executive agencies to restrict employers’ abilities to bind employees through non-competition agreements. Employers can reference our prior E-Alert on the FTC’s rulemaking to try to restrict non-competition agreements. Again, it is important to note that this Memorandum does not change the law. However, it indicates that the NLRB General Counsel is likely to push the NLRB to adopt the Memorandum’s reasoning by advancing unfair labor practice charges against employers who the GC’s office believes use non-competition agreements to chill the exercise of Section 7 rights.
Click to access a PDF of this E-Alert.
For questions related to non-competition agreements or compliance with the NLRA, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
6/1/23: DOL Publishes Guidance Regarding FMLA Leave & Counting Holidays
June 1, 2023
By Missy Oakley
On May 30, 2023, the Department of Labor’s Wage and Hour Division (“WHD”) published an Opinion Letter regarding how to calculate the amount of leave an employee uses under the federal Family and Medical Leave Act (“FMLA”) where an employee takes FMLA leave for less than a full week during a week that includes a holiday.
When an employee takes a full workweek of FMLA leave during a week that includes a holiday, the employee uses a full week of FMLA leave. However, the Opinion Letter specifically examines the situation where an employee takes FMLA leave on an intermittent or reduced schedule during a week that includes a holiday. The Opinion Letter explains that the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was scheduled and expected to work on the holiday. That is because when an employee takes leave for less than one full workweek, the amount of FMLA leave used is determined by looking at the employee’s actual workweek.
For example, consider an employee who normally works Monday through Friday and needs to take FMLA leave in a week with a Friday holiday. If the employee needs to take FMLA leave every day that week, the employee will use a full week of FMLA leave. According to the WHD, if this same employee only needed to take FMLA leave Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave. The Friday holiday would not count against the employee’s FMLA leave entitlement. Click here to read the WHD’s full opinion letter.
For questions about FMLA compliance, contact Missy Oakley at 503-276-2122 or moakley@barran.com.
5/31/23: Alignment of Paid Leave Oregon with the Oregon Family Leave Act
May 31, 2023
By Amy Angel
When Paid Leave Oregon was enacted in 2019, stakeholders noted conflicts with the Oregon Family Leave Act (“OFLA”), raising many questions regarding compliance and administration. Senate Bill 999, which amends both Paid Leave Oregon and OFLA, attempts to provide some answers. SB 999 has passed both the Senate and the House and, once signed by Governor Kotek, will take immediate effect.
Below is an overview of the key amendments:
Alignment of Leave Years: SB 999 amends OFLA to incorporate Paid Leave Oregon’s forward-looking definition of “benefit year” beginning on the Sunday before an employee’s first day of leave. Employers may update their OFLA leave year now, or beginning September 3, 2023, when Paid Leave Oregon begins, such that leave under both laws will run concurrently according to the same leave year. Beginning July 1, 2024, employers will be required to administer OFLA according to this forward-looking definition.
Expanded Definition of “Family Member”: OFLA’s definition of “family member” now aligns with Paid Leave Oregon and adds siblings, step-siblings, and the spouse or domestic partner of a sibling, step-sibling, grandparent, or grandchild, as well as any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family member. The amendment also (1) directs BOLI to adopt factors by September 3, 2023, to determine whether an individual qualifies as a family member by reason of affinity, and (2) grants BOLI authority to develop and use an attestation form by which an employee may attest to the affinity factors adopted by BOLI.
Expansion of Employee Job Protections: Both OFLA and Paid Leave Oregon now require employers to offer employees returning from leave equivalent positions at job sites within 50 miles of the job site of the employee’s former position, if the position previously held by the employee no longer exists and an equivalent position is not available at the same jobsite.
Affirmation of Concurrency: In an attempt to address concerns relating to the potential “stacking” of leave available under OFLA and Paid Leave Oregon, OFLA is amended to affirm that leave taken under OFLA that qualifies as protected leave under FMLA or Paid Leave Oregon must be taken concurrently with, and not in addition to, any leave under FMLA and Paid Leave Oregon.
Employee Contributions to Health Insurance Premiums: Paid Leave Oregon now aligns with OFLA and requires employees to continue making any regular contributions to the cost of health insurance premiums during periods of leave. Additionally, employers who pay any employee-portion of insurance premiums during a leave may deduct up to 10% of the employee’s gross pay each pay period to recover those amounts upon the employee returning to work.
What You Can Do Now:
Align your leave years, to the extent possible. While employers also covered under FMLA will not be able to fully align leave years under all three leave laws, the closer you can get to alignment, the more likely protected leave will run concurrently. To change the leave year, employers must give employees 60 days’ notice. To be effective when Paid Leave Oregon benefits begin on September 3, 2023, employers should determine whether they would like to change their OFLA or FMLA leave year to a rolling-forward benefit year and provide employees notice by July 5, 2023.
Revise your OFLA policy to ensure it is in alignment with SB 999, including the change in definition of “family member.”
Be on the lookout for future E-Alerts that highlight administrative rule changes.
For questions on compliance with Paid Leave Oregon-related policy updates, decision-making, or advice, contact Amy Angel at (503) 276-2195 or aangel@barran.com.
5/31/23: Oregon Increases Civil Penalties & Expands Investigations for Violations of Workplace Health & Safety Laws
May 31, 2023
Oregon Governor Tina Kotek signed Senate Bill 592 into law on May 24, 2023, resulting in significant amendments to ORS 654.067 and ORS 654.086. These amendments introduce stricter civil penalties and expanded workplace investigations for violations of Oregon’s workplace health and safety laws. As SB 592 takes immediate effect upon passage, employers should promptly familiarize themselves with these changes and understand their potential impact on operations.
Increased Penalties for Workplace Safety Violations
A significant amendment under SB 592 involves increasing the Oregon Occupational Safety and Health Division’s (Oregon OSHA) fines for workplace safety violations to align with the standards set by the federal Occupational Safety and Health Administration (OSHA).
As amended, ORS 654.086 establishes a tiered penalty structure based on the nature and severity of the violations:
(1) Non-serious violations may result in civil penalties up to $15,625 per violation.
(2) Serious violations, meaning those with a substantial probability of death or serious physical harm, will result in civil penalties ranging from $1,116 to $15,625 per violation.
(3) Serious violations causing or contributing to an employee’s death will incur civil penalties ranging from $20,000 to $50,000 per violation.
Repeat offenders of Oregon’s workplace health and safety laws will also face stricter penalties:
(1) Willful or repeated violations will result in civil penalties ranging from $11,162 to $156,259 per violation.
(2) Willful or repeated violations causing or contributing to an employee’s death will incur a minimum civil penalty of $50,000 per violation, with a maximum penalty of $250,000.
(3) Failure to correct a violation, as cited by Oregon OSHA, may incur penalties up to $15,625 per day of continued violation.
Expanded Inspection Authority
In addition, SB 592 amends ORS 654.067 to expand the Director of the Department of Consumer and Business Services (DCBS) inspection authority in response to violations of workplace health and safety laws. The Director can now conduct comprehensive inspections of any place of employment based on the establishment’s violation history of a state’s occupational safety and health laws.
As amended, ORS 654.067 provides that comprehensive inspections will be conducted under the following circumstances:
(1) Whenever an accident investigation reveals that a violation has caused or contributed to an employee’s work-related fatality, a comprehensive inspection must be conducted within one year of the associated closing conference.
(2) If three or more willful or repeated violations occur within a one-year period, a comprehensive inspection must be conducted within one year of the most recent willful or repeated violation’s associated closing conference.
Reporting Requirements
Lastly, SB 592 introduces new reporting requirements for the DCBS. The Director is now obligated to submit an annual report to the Legislative Assembly’s interim committees on Business and Labor. This report will summarize the total number and amount of penalties assessed, the total number of appeals filed, and the total number and scope of inspections conducted, including the circumstances that led to the inspections.
Given these changes, it is crucial for employers and business owners to maintain strict compliance with health and safety laws and remain informed about state and federal guidelines.
For questions regarding SB 592, contact the Barran Liebman team at 503-228-0500.
5/3/23: NLRB Changes Standard for Assessing Discipline of Individuals Engaged in Protected Conduct
May 3, 2023
By Nicole Elgin
On May 1, 2023, in Lion Elastomers LLC II, the National Labor Relations Board (NLRB) overruled General Motors, a case that provided the standard for determining when an employer unlawfully disciplines an employee who engages in “abusive conduct” while also engaging in concerted activities protected under the National Labor Relations Act (NLRA). In its previous framework, the NLRB focused its analysis on an employer’s motive when taking an adverse employment action. Under its new decision, the NLRB will instead look to the “setting-specific” context in which the employee’s abusive conduct takes place.
Now, the NLRB will apply one of three different setting-specific standards:
(1) The Atlantic Steel test will apply to employee conduct towards management in the workplace. Under Atlantic Steel, the NLRB weighs the following factors to assess whether an employee’s conduct during Section 7 activity loses its protected status: (a) the place of the discussion; (b) the subject matter of the discussion; (c) the nature of the employee’s outburst; and (d) whether the outburst was provoked by an employer’s unfair labor practice.
(2) The Totality-of-the-Circumstances test will apply to an employee’s abusive conduct in social media posts or conversations among employees. As its name implies, under this test the NLRB considers the totality of the circumstances for determining whether an employee’s conduct justifies discipline.
(3) The Clear Pine Mouldings test will apply at the picket-line. Under Clear Pine Mouldings, the NLRB considers whether, under all of the circumstances, non-strikers reasonably would have been coerced or intimidated by an employee’s abusive picket-line conduct.
In its decision, the NLRB explains that abusive “conduct occurring during the course of protected activity must be evaluated as part of that activity—not as if it occurred separately from it and in the ordinary workplace context.” The NLRB emphasized that “disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses” and therefore, an employee’s abusive conduct towards management, or their fellow employees, may be justified as an exercise of their Section 7 rights. The NLRB went so far as to state that epithets which “are erroneous and defame one of the parties to [a labor] dispute” are “not so indefensible to remove them from the protection of” the NLRA.
Click to access a PDF of this E-Alert.
Lion Elastomers LLC II is another example of why employers need to stay up to date on the continued developments from the NLRB. For questions related to compliance with the NLRA, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
5/2/23: May 31: Deadline to Apply for An Equivalent Plan & Avoid DOI Cancellation
May 2, 2023
By Iris Tilley
Beginning on September 3, eligible individuals may take paid time off for qualifying reasons under Paid Leave Oregon. For purposes of administering Paid Leave Oregon, employers may choose to (1) participate in the state’s program, or (2) submit an application to the Oregon Employment Department (“OED”) for either an employer-administered or a fully insured equivalent plan.
Employers may apply for an equivalent plan at any time. However, to be effective when Paid Leave Oregon benefits begin in September, employers must submit their equivalent plan application to the OED by May 31, 2023. To be approved, an employer’s proposed equivalent plan must meet specific minimum requirements, including but not limited to offering benefits to eligible employees that are equal to or greater than the weekly benefits and duration of leave that eligible employees would qualify for under the state’s program.
This upcoming deadline also applies to employers that have filed a Declaration of Intent (DOI). If an employer that filed a DOI fails to ensure that their equivalent plan application is received by the OED by May 31, the relevant DOI will be deemed canceled, and the employer will be required to pay and remit immediately to the OED all unpaid contributions, and will be subject to penalties and interest.
For assistance drafting and submitting your employer-administered equivalent plan or assistance submitting your insured equivalent plan, contact Iris Tilley at (503) 276-2155 or itilley@barran.com.