5/21/25 Employee vs. Independent Contractor: The Economic Reality Test Is Back

May 21, 2025

By Becky Zuschlag and Xavie Davenport

On May 1, 2025, the US Department of Labor’s Wage and Hour Division (“DOL WHD”) released a field assistance bulletin providing guidance to its field staff for determining employee versus independent contractor status when enforcing the Fair Labor Standards Act (“FLSA”). The new guidance instructs DOL investigators against using the Biden administration’s 2024 Final Rule on independent contractor classification. Instead, the bulletin explains, the WHD will rely on the “economic reality” test, as outlined in Fact Sheet #13, and Opinion Letter FLSA2019-6, when enforcing the FLSA, though the guidance does note that, “until further action is taken [by the DOL], the 2024 [Final] Rule remains in effect for purposes of private litigation[.]”   

The 2024 Final Rule went into effect on March 15, 2024, and provided an employee-friendly six-factor test, also known as the “totality of the circumstances” to determine employee versus independent contractor status. Each factor was to be weighed equally, thus making it difficult for employers to appropriately classify their employees.

The economic reality test considers various factors, with the goal of the test being to determine whether the worker is economically dependent on the employer, and therefore an employee, or in business for themselves, and thus an independent contractor. Some of the factors considered are listed below:

1.  The worker’s opportunity for profit or loss,

2. Investments by the worker in facilities and equipment,

3. Permanence of the work relationship,

4. Nature and degree of control by the employer,

5. Whether the work performed is integral to the employer’s business,

6. Skill and initiative required in market competition required for success of the worker, and

7. The degree of independent business organization and operation by the worker.

The economic reality test reflects a longstanding interpretation of the employee versus independent contractor distinction, focusing on the economic dependence of the worker. Whether a worker is economically dependent on the employer is a fact-specific inquiry and will vary by each working relationship. Economic dependence of a worker is more than reliance on a paycheck. A worker is typically considered dependent if they are unable to work on their own terms or are operating for their employer as a united economic entity. On the other hand, an economically independent worker is typically one who possesses more control over their work and may function as a separate economic entity.  If the answers to the above factor test lean toward the worker being economically independent, the worker may be an independent contractor. In contrast, if the factors lean toward the worker being economically dependent, this suggests a traditional employment relationship. 

While the guidance from the DOL is directed to its investigators, employers subject to the FLSA should be aware of the change to the rule DOL investigators will apply should an investigation occur. However, employers must also ensure that they meet the test outlined in the 2024 Final Rule given private litigation will still proceed under this rule. Additionally, Oregon’s various regulatory agencies use their own legal tests when determining an individual’s employee or independent contractor status. 

When analyzing a worker’s employment status, it is important to understand the distinction between an employee and an independent contractor because the protections of the FLSA, and other employment laws, apply to employees but not to independent contractors. Now is a good time for employers to review how their employees are classified to ensure compliance with applicable law, regulations, and the recent DOL guidance. When in doubt, however, it is always safe to classify a worker as an employee. 

We are here to help. Please contact Becky Zuschlag at bzuschlag@barran.com or 503-276-2151, or your regular Barran Liebman attorney for assistance in reviewing your employment compliance and ensuring your employees are classified appropriately.

5/19/25 E-Verify System Error Results in False “Final Nonconfirmation” Notices

May 19, 2025

By Abby Fitts

The United States Citizenship and Immigration Services (USCIS) issued a notice today reporting a system error with E-Verify that impacted certain Social Security Administration (SSA) mismatch cases referred to SSA between April 9, 2025, and May 5, 2025. E-Verify functions by comparing information provided by employees on Form I-9, Employment Eligibility Verification, with records held by the Department of Homeland Security (DHS) and the SSA. If the information does not match, the system returns a “tentative nonconfirmation” or mismatch. In such cases, employers must follow prescribed steps to allow employees an opportunity to address and resolve the discrepancy. A “final nonconfirmation” is only issued when E-Verify cannot confirm eligibility after the employee has an opportunity to resolve the mismatch. 

Most mismatches typically result from errors in DHS records or employees failing to update their status with the SSA. However, due to the recent error, even employees who attempted to resolve their mismatch by visiting an SSA office—but did not contact DHS—may have still experienced a mismatch result.

Key Takeaways:

USCIS has advised that employers who received E-Verify FNCs after an SSA or Dual SSA and DHS mismatch referred between April 9 and May 5 to take the following steps:

• Create a new E-Verify case  

• Do not terminate employment and do not take any adverse employment action

We are here to help. Please contact Abby Fitts at afitts@barran.com or 503-276-2190, or your regular Barran Liebman attorney for assistance in reviewing your employment compliance. 

5/15/25 Documentation and Review: Reminders for the ERISA Plan Fiduciaries in Your Life

May 15, 2025

By Jeff Robertson  &  Iris Tilley

As part of our ongoing series focusing on employee benefits compliance, this installment focuses on concrete steps plan sponsors should consider as part of their ongoing compliance efforts.

1. Establish a Process for Service Provider Selection and Monitoring

Plan vendors are all too easy to set and forget. Since they operate in the background, plan sponsors often only consider vendor selection where a vendor implements a large price increase or just becomes wildly unresponsive to the client’s needs. However, plan fiduciaries have a duty to prudently select and monitor service providers.

In order to ensure that a plan engages in a prudent selection process and satisfies its duties to monitor plan service providers on an ongoing basis, we recommend that plans establish formal processes surrounding both of these duties. Formal processes help to avoid engagement of a service provider based on a personal relationship (and not necessarily what is best for plan participants) as well as a regimented structure to ensure that ongoing monitoring takes place, even where staff changes.

2. Update and Review Service Provider Contracts for Reasonable Fees and Transparency

Part of any good service provider monitor process will include the regular review of service provider contributions to ensure that fees charged are reasonable and that agreements are drafted with appropriate transparency. Determining the reasonableness of fees charged can sometimes feel like a big lift as the process of putting services out to bid using a request for proposal can be time consuming. However, speak with plan consultants about requests for information and other benchmarking work that can be used to determine the reasonableness of fees between larger requests for proposal efforts.

Group health plans and insurers are prohibited from entering into agreements with providers, networks, or other entities offering access to a network that contains provisions that preclude a plan from disclosing specified information. Plans must certify compliance with these rules on an annual basis. Most provider contracts have been adjusted (if necessary) at this point to make necessary adjustments. However, if you have not considered the contents of your health plan contracts in some time, now is a good time to take a fresh look.

3. Ensure That Plan Documents Comply With Any Applicable State or Federal Rules That May Apply

As the health plan industry continues to consolidate, we have started to see plan documents come across our desks from national providers that do not necessarily comply with applicable state law. As a general rule, self-insured health plans are subject to federal law, not state law. However, insured plans are subject to state law, and those self-insured plans that cover employees of unrelated employers, and that are sponsored by governmental employers, are subject to state law.

With this in mind, it remains important to understand what bodies of law apply to your health plans and ensure that they are drafted in compliance with the full scope of applicable law.

4. Understand the Fees Charged and Paid for Administration, Consulting, and Plan Networks

As employers who sponsor self-insured health plans can attest, health plan fees are overwhelming, and it can be difficult to parse what each vendor brings to the table. However, these fees are generally paid directly out of plan assets, which means that plan fiduciaries have an obligation to understand these fees and ensure that they are reasonable.

Plan fiduciaries should ask for training and explanation as needed to ensure that they can easily explain why each amount is paid from plan assets and how they know that the fees charged are reasonable.

5. Update Contracts and Procedures for Cybersecurity Responsibility

Cybersecurity remains an ever-expanding threat, and many older vendor contracts do not contain any language related to this topic. In response to this ongoing threat, the U.S. Department of Labor has published tips and identified recommended cybersecurity plan provisions: https://www.dol.gov/sites/dolgov/files/ebsa/pdf_files/tips-for-hiring-a-service-provider-with-strong-security-practices.pdf. Plan sponsors should consider their own vendor contracts in light of this guidance and demand contractual changes as necessary.

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

4/30/25 Trends in ERISA Litigation: What Plan Sponsors Should Consider Now

April 30, 2025

By Jeff Robertson  &  Iris Tilley

We recently published five considerations for retirement plan fiduciaries in changing markets.  This E-Alert focuses on five trends in ERISA litigation that plan sponsors should consider in their risk mitigation efforts. 

1. Forfeiture Accounts

Regulatory agencies and plaintiff lawyers have increasingly focused on forfeiture balances in retirement plan accounts.  A retirement plan’s forfeiture balance must be allocated every December 31st (if it is a calendar year plan). Yet, many plans maintain forfeiture account balances beyond that date and “plan expense” accounts.  Additionally, many plan sponsors allocate those balances in the year following the year in which they were forfeited to offset plan expenses, raising questions of self-dealing.  It is critical to maintain a forfeiture policy in governing plan documents and present a plan of action to address forfeiture balances at the end of each plan year.

2. Health Plan Fee Litigation

Lawsuits are increasing for both tobacco surcharges and pharmacy benefit fees in group health plans.  We often find that plan sponsors, especially those sponsoring self-funded health plans or health trusts, do not consider the costs of a pharmacy benefit or a pharmacy benefit manager in written plan records. Additionally, many plan documents, including wrap documents, are not regularly reviewed by legal counsel.  It has been awhile since we saw the wave of cases and claims regarding weight loss drugs related to anti-smoking, but there may be a new wave of litigation on its way related to GLP-1 medications.   Procedures and documents remain critical in defending against any action which may relate to plan document claims.

 3. SECURE 3.0?

Partisan Washington DC lawmakers have been successful in one area – passing retirement plan legislation.  We expect to see further interest in automatic enrollment, mandatory employer retirement plan contributions, and lowering contribution age limits from 21 to 18.  It is also important to timely amend plan documents for the SECURE Act, the CARES Act, and the SECURE 2.0 Act.  For most plans, the amendment deadline is December 31, 2026, but collectively bargained and governmental plans have a longer runway.

 4. Health Plan Cost and Fee Transparency

While it can be at times difficult to follow the Trump Administration’s priorities, it is clear that a regulatory and legislative priority is to improve cost transparency at the health services level.  Most health plan sponsors do not have access to the information required to explain costs and services to their participants. Consider whether your health and welfare plan documents are understandable and updated.  Does your summary plan description or wrap document contain correct and updated disclosures?

 5. Health Plan Regulation

While the DOGE (Department of Government Efficiency) continues to make spending cuts to the federal government, it has not altered regulatory changes and disclosures related to HIPAA policies and procedures, telehealth, MHPAEA (Mental Health Parity and Addiction Equity Act), and a recent increase in 1094/1095 IRS penalty assessments.  

We are here to help. 

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

4/15/25 New Oregon Minimum Wage Rates Announced

April 15, 2025

By Abby Fitts

On April 11, 2025, Oregon’s Labor Commissioner Christina Stephenson announced Oregon’s new minimum wage rates based on a 2.4% Consumer Price Index increase from March 2024 through March 2025. The annual automatic increases to Oregon’s minimum wage are effective each July 1 and are indexed to year-over-year inflation based on the CPI.

New Minimum Wage Rates

These are the new minimum hourly wage rates for each region in Oregon effective July 1, 2025:

• Portland metro area within the urban growth boundary: $16.30

• Standard minimum wage: $15.05

• Non-urban Oregon: $14.05

The “standard minimum wage” applies to Benton, Clatsop, Columbia, Deschutes, Hood River, Jackson, Josephine, Lane, Lincoln, Linn, Marion, Polk, Tillamook, Wasco, and Yamhill counties as well as parts of Clackamas, Multnomah, and Washington counties outside the urban growth boundary.

Oregon’s non-urban minimum wage rate applies in Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler counties.

Employers can determine if an employee is working within the urban growth boundary by referring to this Metro map.

Compliance Reminders
Employers should take the time now to ensure their wage rates are consistent with the new minimum wage rates and should remember that the minimum wage rate depends on where the employees perform their work. Employers are required to display an updated minimum wage poster in a conspicuous place. BOLI will make free, updated posters available for download on their website by June 15.

 We are here to help. Please contact Abby Fitts at afitts@barran.com or 503-276-2190, or your regular Barran Liebman attorney for assistance in reviewing your wage and hour compliance. 

4/14/25 Facing a Chaotic Market: Reminders and Recommendations for Retirement Plan Fiduciaries

April 14, 2025

By Jeff Robertson and Iris Tilley

In these chaotic markets, it is important to revisit your 401(k) fiduciary process to ensure you and your employees are making prudent decisions within the rules of ERISA. When markets are high, participants tend to overlook structural plan issues in favor of increasing balances. However, when markets are down, participants, especially near-retirees, try to find opportunities to recoup market losses from faults in your retirement plan. 

With that in mind, here are five ways to protect yourself and your plan:

1.    Clarify Identities of the 401(k) Plan Fiduciaries

When we review documents listing the plan fiduciaries, we often find that they do not align with the actual current decision makers at a company. This happens due to turnover, promotions, and failure to regularly review and update documents. Where no active delegation has been made, a company’s Board of Directors will be the responsible entity. If the Board of Directors does not regularly review the 401(k) plan, it should be very clear within plan records that it has delegated that authority to the proper individuals at the company.

2.    Take Prudent Action in Relation to Your 401(k) Plan

A 401(k) plan is intended to be a long-term savings vehicle toward retirement. While employees retire at different times, the fiduciary duty remains the same—to act with a prudent process to the plan overall. This is a good time to evaluate the investment opportunities offered in the plan: Are there too many? Are the options diversified? How does the plan account for management fees in the investments? Do the fiduciaries follow an investment policy statement? 

3.    Take Care Not to Provide “Investment Advice” to Employees

A company’s officers, who are fiduciaries of the plan, are not the plan’s investment advisors. Nevertheless, we often encounter employees who by interest or job focus are (or believe they are) skilled in market trading and economic concepts and provide advice to other employees. ERISA rules prevent employee-fiduciaries from providing advice to participants. Utilize the plan’s independent investment advisors and their services to provide information and education to participants.

4.    Understand What a Company Offers as Investments and Why

A lot of companies set up an investment menu when a plan is established, and while they might perform a periodic review, do not change core investments. However, a regular review is important, especially in times of market downturn, to limit potential liability. One way to start this review is to ask your investment advisors whether they would change any funds if they were setting up the plan from scratch. This question includes the review of proprietary funds to the administrative platform that may have been prudent choices on adoption, but can potentially be more costly in your current investment lineup. 

5.    Document

If you do not regularly meet as a committee or do not document minutes of when you meet, now is the ideal time to document decisions. Many ERISA cases are determined by language included (or often not included) in the Summary Plan Description or Plan Committee Minutes. 

We are here to help. Please contact Jeff Robertson at jrobertson@barran.com or 503-276-2140, Iris Tilley at itilley@barran.com or 503-276-2155, or your regular Barran Liebman attorney for assistance in reviewing your 401(k) plan. 

4/9/25 Temporary Injunction Issued Against Oregon Project Labor Agreement Requirement

April 9, 2025

By Nicole Elgin and Lex Shvartsmann

On March 24, 2025, Marion County Circuit Court Judge Thomas M. Hart issued a temporary injunction against Governor Tina Kotek’s 2024 Executive Order requiring Project Labor Agreements (PLAs) for many state-funded construction projects. We outlined EO 24-31 in a prior E-Alert, which you can find here. 

The injunction resulted from a lawsuit brought against Governor Kotek in February by the Associated General Contractors, Oregon-Columbia Chapter (AGC) alongside several other contractor associations and construction firms. The lawsuit challenges the Governor’s authority to implement the requirements of EO 24-31 without involvement from the Oregon Legislature. According to the Plaintiffs in the lawsuit, “EO 24-31 seeks to change Oregon law without legislative authority and in direct violation of the separation of powers.”

 
Practically, the temporary injunction means that EO 24-31 is suspended from taking effect. The underlying lawsuit will proceed and will either result in a permanent block of the Order or a finding that its implementation was constitutional. 

For questions regarding EO 24-31, project labor agreements, or other labor matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

4/1/25 NLRB Without Quorum…Again & New General Counsel Nominee

April 1, 2025

By Nicole Elgin and Lex Shvartsmann

As discussed in our previous E-Alerts, the removal of National Labor Relations Board (NLRB) Member Gwynne Wilcox and the ensuing litigation has been an important and rapidly evolving issue since President Trump took that historic action during his first month in office.

Most recently, on March 28, 2025, the Court of Appeals for the District of Columbia granted the Government’s motion for an emergency stay of the reinstatement order that the District Court for the District of Columbia issued earlier this month. This means that Member Wilcox is not reinstated to her position until the Court of Appeals issues its decision on the matter.

The Court will hear oral arguments on the merits of the case on May 16, 2025. For now, the stay of the District Court’s order means that the NLRB does not have enough members for a quorum, and therefore cannot operate in its usual capacity. Two vacant seats remain on the Board.

On March 24, 2025, President Trump also nominated attorney Crystal Carey to serve as the new National Labor Relations Board General Counsel. The appointment must be confirmed by the Senate to become effective.

Barran Liebman attorney Nicole Elgin will be covering several recent changes from the National Labor Relations Board and what they mean for unionized and non-unionized employers alike at our upcoming Barran Liebman webinar on April 8, 2025. Click this link to register.

For questions on this alert or labor relations, contact Barran Liebman attorney Nicole Elgin at 503-276-2109 or nelgin@barran.com.

3/21/25 Rescinded Executive Orders Impact Federal Contractors

March 21, 2025

By Nicole Elgin and Lex Shvartsmann

On March 14, 2025, President Trump issued an Executive Order titled “Additional Rescissions of Harmful Executive Orders and Actions.” This EO rescinded several prior EOs and other Memoranda and Determinations, including EO 14026 (increasing the Minimum Wage for Federal Contractors) and EO 14126 (Investing in America and Investing in American Workers). A link to the White House’s announcement is available here.

EO 14026: Increasing the Minimum Wage for Federal Contractors

This EO from April 2021 increased the minimum wage for federal contractors to $15 an hour with annual adjustments for inflation. As of January 1, 2025, that minimum wage had already increased to $17.75 per hour.

EO 14126: Investing in America and Investing In American Workers

This EO from September 2024 directed federal agencies to prioritize project labor agreements, collective bargaining agreements, voluntary union recognition, and employer neutrality, amongst other factors. The EO had specific implementation priorities and approaches, including that agencies should include those type of labor agreements as specific selection factors for federal financial award recipients.

President’s Trump’s revocation of this order means that the Department of Labor will no longer be enforcing the requirements of EO 14026 and federal agencies are no longer required to follow the prioritization agenda from EO 14126.

Webinar Alert: Barran Liebman attorney Nicole Elgin will be covering several recent changes from the National Labor Relations Board and what they mean for unionized and non-unionized employers alike at our upcoming Barran Liebman webinar on April 8, 2025. Click this link to register for this webinar.

For questions on this alert or labor relations, contact Barran Liebman attorney Nicole Elgin at 503-276-2109 or nelgin@barran.com.

3/13/25 Federal Court Reinstates NLRB Member Wilcox

March 31, 2025

By Nicole Elgin and Lex Shvartsmann

On March 6, 2025, Judge Beryl A. Howell of the D.C. District Court issued an opinion that President Trump’s termination of National Labor Relations Board (NLRB) Member Gwynne Wilcox was unlawful. The decision reinstates Wilcox to the Board and restores quorum. The opinion requires that NLRB Chairman, Marvin Kaplan, and his subordinates permit Member Wilcox to continue to carry out her duties “as a rightful, presidentially-appointed, Senate-confirmed member of the Board.”

Our prior alert outlined Wilcox’s removal as well as several other changes at the NLRB this year.

Impact on Employers

In the time between Member Wilcox’s termination and reinstatement, the NLRB had only two members. Accordingly, the Board did not have a quorum and was unable to make decisions. With Member Wilcox’s ordered reinstatement, the Board can now resume its normal operations. Two seats on the Board remain vacant and await appointment by President Trump.

Looking Forward

The Trump Administration has already filed an appeal of the D.C. District Court decision. That means that there are two potential opportunities for either a federal appeals court or the U.S. Supreme Court to reverse this decision.

Barran Liebman attorney Nicole Elgin will be covering several recent changes from the National Labor Relations Board and what they mean for unionized and non-unionized employers alike at our upcoming Barran Liebman webinar on April 8, 2025.

For questions on this alert or labor relations, contact Barran Liebman attorney Nicole Elgin at nelgin@barran.com or (503) 276-2109.

2/19/25: Countless Changes at the NLRB - Acting General Counsel Rescinds Over 30 Memoranda

February 19, 2025

By Nicole Elgin and Lex Shvartsmann

Since President Trump returned to office, there have been numerous changes at the National Labor Relations Board (NLRB). General Counsel Jennifer Abruzzo and Board Member Gwynne Wilcox were both removed from their positions. This leaves two members to the Board, meaning it does not have quorum until at least one more Board Member is added. William Cowen is the current Acting General Counsel.

On February 14, 2025, Cowen issued Memorandum GC 25-05 rescinding 31 former NLRB GC memoranda. GC Memoranda are nonbinding guidance; however, they serve as strong indications of the (NLRB or the Board) policy and enforcement priorities. This Memorandum demonstrates an expected shift in the Board’s priorities.

Although the Memorandum is not binding, employers should take note of certain policy changes indicated by the revocations. Among the now-rescinded memoranda are GC 21-03 on effectuation of the National Labor Relations Act (NLRA) through vigorous enforcement of the mutual aid or protection and inherently concerted doctrines, GC 21-08 on the statutory rights of student-athletes under the NLRA, GC 23-02 on the electronic monitoring and algorithmic management of employees, and GC 23-08 on non-compete agreements that violate the NLRA.

Other rescinded memoranda include those which are now considered irrelevant in light of changed circumstances or new NLRB decisions, such as GC 22-04 on the right to refrain from captive audience or other mandatory meetings or GC 21-01 on the propriety of mail ballot elections.

Lastly, a number of memoranda related to NLRB processes and procedures were rescinded “pending further guidance,” meaning that we can expect to see additional guidance on those areas in the coming months. For a full list of revoked memoranda, see Memorandum GC 25-05.

In light of the above changes, employers should remain vigilant and prepared to adjust their policies or practices to reflect these and other shifts we expect to see in the NLRB’s approach to enforcement as the new administration’s policies are put into practice.

For questions regarding NLRB policy or labor matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

2/3/25: Guidance for Employers Navigating Recent Executive Orders on Immigration

February 3, 2025

By Lex Shvartsmann, Abby Fitts, and Chris Morgan

Since his inauguration on January 20, 2025, President Donald Trump has issued a number of Executive Orders that have potential impacts on employers. One subset of such orders focuses on enforcement of federal laws regarding lawful citizenship and employment authorization. As a result of these orders, employers can expect to see increased enforcement in the form of U.S. Immigration and Customs Enforcement (ICE) workplace investigations and Form I-9 audits.

What Is My Role as an Employer if ICE Is Attempting To Enter My Workplace?

In the event immigration officials come to the workplace, employers need to be aware of their own obligations, their employees’ rights, and the boundaries of immigration officials’ authority. ICE may not enter a private space without either consent or a judicial warrant. A judicial warrant, as compared to an administrative warrant, can be identified by locating a judge’s signature and a label indicating the name of the issuing court (for example, “Multnomah County Circuit Court”). Absent a signed judicial order, ICE must have consent to enter a private area. Some workplaces may choose to designate a representative who is authorized to give such consent. In any case, employers and/or designated representatives should remain calm and make clear that they do not intend to interfere with any lawful activity. 

Employers may want to take additional proactive measures such as labeling private areas and providing training and education to employees in the event immigration officials come to their workplace. Employees and employers alike are always permitted to exercise their right to remain silent.

What Is My Role as an Employer if I Receive Notice of a Form I-9 Audit?

If your business receives a Notice of Inspection, you will have three days to provide your Form I-9 records, as well as any other records requested. Oregon requires most employers to inform employees within 3 business days of receiving notice of an upcoming inspection. You should seek legal counsel to determine if this is the case for your workplace. If any technical or substantive violations are found in the course of the audit, you will be given sufficient time to make corrections and should seek legal counsel to determine if any further action should be taken.

As a preventative measure, employers may consider taking steps to compile Form I-9 records in a manner that is sufficiently accessible to ensure timely compliance with any potential audits. Additionally, employers should consider conducting an internal audit of their Form I-9s to ensure compliance and correct any inaccuracies. If your workplace is considering an internal Form I-9 audit, be sure to contact legal counsel to ensure that you do not unintentionally create additional risk through inappropriate re-verification.  

For more detailed explanations of the issues discussed above, consider joining our upcoming webinar.

For questions on your role as an employer navigating ICE presence or Form I-9 audits, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com, or Abby Fitts at 503-276-2190 or afitts@barran.com. 

1/30/25: New Minimum Salary for Enforcing Noncompetition Agreements in Oregon

January 30, 2025

By Ashley Korkeakoski-Sears

The Oregon Bureau of Labor & Industries recently announced the updated minimum annual income amount for enforcing noncompetition agreements. In 2025, noncompetition agreements may be enforceable against employees who receive an annual gross income greater than $116,427.

As a reminder, noncompetition agreements are generally enforceable in Oregon if:

• The employee receives written notice that the noncompetition agreement is a condition of employment at least two weeks before employment starts OR the employee enters into the agreement upon a bona fide advancement;

• The employee is a salaried exempt employee with an annual income higher than a minimum amount that is adjusted annually for inflation;

• The employer has a protectable interest; and

• The employer provides a signed, written copy of the noncompetition agreement within 30 days after the employee’s termination.

Although the Federal Trade Commission (“FTC”) issued a rule banning enforcement of noncompetition provisions in April of 2024, the U.S. District Court for the Northern District of Texas blocked enforcement of the rule on August 20, 2024. The FTC appealed that decision, but the federal ban on enforcement of the rule remains in effect. For more information on the FTC’s noncompetition rule, see our August 26, 2024 E-Alert.

Employers should make sure that any employees covered by a noncompetition agreement receive an annual gross salary greater than $116,427 to ensure their noncompetition agreements remain enforceable.

For questions regarding noncompetition agreements, contact Ashley Korkeakoski-Sears at 503-276-2132 or asears@barran.com.

1/29/25: What Does the Executive Order on Merit-Based Opportunity Require You to Do (or Not Do)?

January 29, 2025

By Amy Angel & Becky Zuschlag

On January 21, 2025, President Trump issued an Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The presidential website (whitehouse.gov) makes executive orders available to the public so the full text is available. This new EO is important for employers who have Affirmative Action Plans and those who have undertaken diversity initiatives, and it revokes four Executive Orders issued by former administrations which had mandated those actions in the past.

Federal Contractors

In the EO, President Trump revoked Executive Order 11246 (Equal Employment Opportunity), which was issued in 1965 by President Lyndon Johnson and established affirmative action and equal employment opportunity requirements for federal contractors and subcontractors. The new EO commands federal departments and agencies to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” and instructs the Office of Federal Contract Compliance Programs (“OFCCP”) to cease promoting “diversity,” requiring “affirmative action” and allowing or encouraging contractors and subcontractors to take affirmative action or engage in workforce balancing by considering race, color, sex, sexual preference, religion, or national origin. The EO also instructs federal contractors and subcontractors to ensure that their employment, procurement, and contracting practices comply with federal civil rights laws by not considering race, color, sex, sexual preference, religion, or national origin.

These changes do not affect the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) or Section 503 of the Rehabilitation Act, or federal contractors’ equal employment opportunity and affirmative action obligations under these federal statutes. They are still required to maintain AAPs with respect to veterans and individuals with disabilities.

Federal contractors must comply with the EO by April 21, 2025.

Private Sector Employers

The EO also directs federal agencies to “encourage” private sector employers who do not have federal contracts to eliminate their DEI policies and programs, and instead “advance . . . the policy of individual initiative, excellence, and hard work,” and to identify “potential civil compliance investigations” of for-profit and non-profit organizations with DEI programs, policies, or practices that provide preferences to women and minorities, or otherwise “constitute illegal discrimination or preferences.”

Next Steps

All employers who have federal contracts should review their contracts and policies and procedures for compliance with the new Executive Order.

For questions about the recent Executive Orders, or assistance with reviewing relevant policies and procedures for compliance with the Order, please contact Amy Angel at 503-276-2195 or aangel@barran.com, or Becky Zuschlag at 503-276-2151 or bzuschlag@barran.com.

1/21/25: DOL Opinion Letter: Use of Employer-Provided Paid Leave When Employee’s Leave Qualifies Under Both FMLA and State Paid Leave Program

January 21, 2025

By Amy Angel & Missy Oakley

Last week, the U.S. Department of Labor (“DOL”) issued an Opinion Letter (“Opinion Letter”) regarding the application of the Family and Medical Leave Act of 1993 (“FMLA”) rule regarding substitution of employer-provided paid leave when an employee takes FMLA leave that also qualifies as leave under a state or local paid family or medical leave program.

Designation of Leave Covered by Both FMLA and State Paid Leave Program

First, the Opinion Letter states that, if an employee takes leave under a state or local paid leave program and that leave also qualifies as FMLA leave, the leave must be designated as FMLA leave by the employer and counted against the employee’s FMLA leave entitlement. This is the same rule that applies when an employee takes leave under a paid disability leave plan or workers’ compensation program and that leave also qualifies as FMLA leave.

The FMLA Substitution Rule

FMLA generally provides that an eligible employee may elect, or an employer may require the employee, to substitute any of their accrued paid vacation leave, personal leave, or family leave of the employee for the unpaid FMLA entitlement period. This is known as the FMLA Substitution Rule. However, the Opinion Letter states that, when an employee takes leave under a state or local paid leave program that also qualifies as FMLA leave, neither the employer nor the employee may use the FMLA Substitution Rule to unilaterally require the concurrent use of employer-provided paid leave during the portion of leave that is covered by the state or local paid leave program. However, employers and employees may mutually agree, where state law permits, to have employer-provided paid leave supplement the state or local paid leave program payment.

Again, these are the same rules that apply when an employee takes leave under a paid disability leave plan or workers’ compensation program and that leave also qualifies as FMLA leave. For example, when an employee only receives partial income replacement under a workers’ compensation program, the employer and employee may agree that the employee can use their employer-provided paid leave to supplement their workers’ compensation payment.

Paid Leave Oregon

Under Paid Leave Oregon (“PLO”), an employee may use employer-provided paid leave to supplement their PLO benefits up to 100% of the employee’s regular pay. Additionally, an employer may permit an employee to use employer-provided paid leave in addition to PLO benefits such that the amount exceeds 100% of the employee’s regular pay.

This means that, to the extent an employee takes leave that qualifies under both PLO and FMLA, mutual agreement between the employer and employee is not required as Oregon law allows an employee to use employer-provided paid leave to supplement their PLO benefits up to 100% of their regular pay.

Washington Paid Family & Medical Leave

When an employee takes leave that qualifies under both Washington Paid Family & Medical Leave (“PFML”) and FMLA, an employee may receive “supplemental benefit payments” in addition to their PFML benefits. Supplemental benefit payments are payments made by an employer to an employee as salary continuation or as paid time off (“PTO”)—including vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.

Supplemental benefit payments are intended to make up the difference between an employee’s regular pay and their PFML payment, but employers can offer their employees a supplemental benefit that exceeds their regular pay. While an employer gets to decide whether to offer supplemental benefits, the employee decides whether to accept them.

However, if an employee receives wages or PTO while they are receiving PFML benefits, and the wages or PTO are not designated as a “supplemental benefit payment,” the employee is obligated to report the wages or PTO on their weekly claim, which will reduce their PFML benefit amount. Thus, it is important that employers make clear to employees whether such payments are a supplemental benefit.

For questions about the FMLA, Paid Leave Oregon, or for any other leave inquiries, contact Amy Angel at 503-276-2195 or aangel@barran.com, or Missy Oakley at 503-276-2122 or moakley@barran.com.

1/13/25: Ninth Circuit Upholds Oregon’s Conversational Privacy Statute – Notice Required to Record In-Person Conversations

January 13, 2025

By Andrew Schpak & Missy Oakley

Last week, the Ninth Circuit Court of Appeals upheld Oregon’s conversational privacy statute en banc after it was previously thrown out by a divided three-judge panel. The statute at issue requires notice be given before an oral conversation may be recorded.

The lawsuit was brought by Project Veritas, a nonprofit media organization that engages in undercover journalism. Oregon’s statute prevented Project Veritas from conducting undercover investigations in Oregon (that involved recording in-person conversations without the interviewee’s knowledge). The Ninth Circuit held that Oregon’s statute is content-neutral and passes First Amendment scrutiny despite the three-judge panel having narrowly decided that the statute was unconstitutional.

In-Person v. Telephone Conversations

Oregon’s conversational privacy statute – ORS § 165.540 – contains several provisions. Project Veritas only challenged the constitutionality of Section (1)(c) that applies to in-person conversations. This provision requires all participants be informed that their conversation is being recorded.

There is a separate provision in the statute that applies to telephone and radio communications to which the person is not a participant. For these communications, the statute requires at least one participant to consent to the recording. ORS § 165.540(1)(a). (If one party to a telephone conversation is recording it, that is deemed sufficient regardless of whether the other parties to the conversation are aware that it is being recorded.)

It is important to note that Oregon’s statute contains several exclusions. Many of these relate to law enforcement but not all. For example, there is an exclusion for in-person conversations if the person uses an unconcealed recording device or if the communications occur through a video conferencing program. ORS § 165.540(6)(a).

Audio v. Video Recording

Oregon’s statute only prohibits audio recordings of oral conversations. This includes any audio-only recording or the audio portion of any audiovisual (or video) recording. The statute does not address video-only recordings. In Oregon, video-only surveillance is permitted in the workplace in areas where employees should not have an expectation of privacy. The best way for an employer to effectively communicate and demonstrate a lack of expectation of privacy in a specific workspace is through a combination of written policy language, training, and signage.

What Does This Mean for Employers?

Oregon’s conversational privacy statute remains in effect for the time being, meaning that notice must be given before oral conversations can be recorded in-person. This rule will likely change once again if the United States Supreme Court decides to hear the appeal. However, for now, this case serves as a reminder for Oregon employers of their obligations regarding audio recordings in the workplace and an opportunity to review current practices regarding video and audio monitoring or recording of company property and its surroundings.

For any questions, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com or Missy Oakley at 503-276-2122 or moakley@barran.com.

1/8/25: Agricultural Overtime Threshold Decreasing in the New Year

January 8, 2025

By Hannah LaChance & Lex Shvartsmann

Among the flurry of legal changes that took effect January 1, 2025, employers should be aware of an updated overtime threshold for agriculture workers that was included in these changes.

Currently, most workers in agriculture receive overtime pay when they work more than 55 hours per week. Beginning January 1, 2025, HB 4002 (2022) became effective, reducing the number of hours an agricultural worker must work in order to be eligible for overtime pay to 48 hours in a workweek. Accordingly, agricultural workers must be paid one and one-half times their regular rate of pay for all time worked in excess of 48 hours a week beginning on January 1, 2025. Although there are a few exemptions to this rule, they are very limited and likely to be closely scrutinized by BOLI. Accordingly, employers should take care in their application and may wish to consult with counsel prior to engaging exemptions to the rule.

Beginning in 2027, agricultural workers will be subject to the same overtime threshold as non-agricultural employees.

As a reminder, the Fair Labor Standards Act requires that employers pay their employees at least minimum wage for all hours worked and one and one-half times an employee’s regular rate for time worked in excess of 40 hours in a workweek.

For questions on overtime pay other employment matters contact Hannah LaChance at 503-276-2112 or hlachance@barran.com.

1/7/25: Wage Garnishments Have Changed

January 7, 2025

By Hannah LaChance & Lex Shvartsmann

On January 1st, 2025, numerous changes were implemented affecting employers. Among those changes was an update to the amount of wages protected from garnishments under SB 1595 (2024).

When calculating a payment pursuant to a writ of garnishment, employers must exempt from garnishment the greater of 75% of the employee’s disposable earnings or a minimum exemption set by law. Currently, the minimum exemption is $254 when the payment covers a period of one week or less, and for any pay period longer than one week the exemption is calculated by multiplying $254 by the number of days for which the earnings are paid, divided by seven.

SB 1595 sets a new, increased minimum exemption rate and establishes a method for re-calculating this number in future years.

From January 1, 2025 to July 1, 2025, the following minimum exemption amounts will apply:

• Where the pay period is 1 week: $305

• Where the pay period is 2 weeks: $611

• Where the pay period is a half-month: $655

• For any period longer than 1 week: $305 multiplied by the number of days for which the earnings are paid divided by seven and rounded to the nearest dollar.

The minimum exemption will again be adjusted on July 1st of each coming year, eventually reaching the minimum wage then in effect multiplied by 30 in 2027 and beyond.

For questions regarding wage garnishment or other employment matters, contact Hannah LaChance at 503-276-2112 or hlachance@barran.com.

1/3/25: Oregon Executive Order 24-31 Establishes Project Labor Agreement Requirement for State Construction Projects

January 3, 2025

By: Nicole Elgin & Lex Shvartsmann

On December 18, 2024, Oregon Governor Tina Kotek signed Executive Order 24-31 (EO 24-31), implementing a requirement that project labor agreements be established on certain construction projects funded by the state.

What is a Project Labor Agreement?

A project labor agreement (PLA) is a type of collective bargaining agreement that sets forth the terms and conditions of employment for a construction project. Unlike traditional collective bargaining agreements, PLAs are typically established pre-hire and set the terms and conditions only for a specific construction project. Pre-hire agreements have unique rules under Section 8(f) of the National Labor Relations Act.

What projects does EO 24-31 apply to?

Under EO 24-31, “every contractor and/or subcontractor engaged in the construction of the project” is required to negotiate or become a party to a PLA where:

• The project is funded by a state agency, directly or indirectly;

• The project is a construction project, including reconstruction or major renovation projects; and

• Onsite labor costs account for at least 15% of the total project costs.

Categorically exempt from EO 24-31 are projects that:

• Constitute necessary emergency construction work, minor alterations, repairs, or maintenance necessary to preserve a public improvement; or

• Are of a short duration, lack operational complexity, or involve only one craft or trade.

PLA Specifications Under EO 24-31

PLAs pursuant to EO 24-31 must include the following:

• Guarantees against strikes, lockouts, and similar job disruptions;

• Effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement; and

• Mechanisms for labor-management cooperation on matters of mutual interest and concern, such as productivity, quality of work, and safety and health.

Additionally, PLAs must comply with all applicable state and federal laws and may not exclude open-shop or local firms.

For questions regarding EO 24-31, project labor agreements, or other labor matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

12/20/24: The New Year Brings New Changes to Paid Leave Oregon and OFLA

December 20, 2024

By Ashley Korkeakoski-Sears & Lex Shvartsmann

Effective January 1, 2025, eligible employees will be able to claim Paid Leave Oregon (PLO) benefits to facilitate the legal processes related to placement of a foster child or adoption of a child. Other PLO benefits available during a benefit year are not expanded by this addition.

Currently, the Oregon Family Leave Act (OFLA) provides an additional two weeks of unpaid leave for this purpose pursuant to a temporary amendment that expires on December 31, 2024. Accordingly, as of January 1, 2025, leave to facilitate the legal processes related to placement of a foster child or adoption of a child will no longer be an OFLA qualifying event. Employees seeking leave for this purpose will be able to do so through Paid Leave Oregon only. 

This update to PLO and OFLA adds onto the recent changes that went into effect on July 1, 2024. For information regarding the changes to PLO and OFLA that became effective July 1, 2024, see our February 28 E-Alert.

As we head into the new year, employers should review their employee handbooks to ensure they are updated with the changes to PLO and OFLA that went into effect this year.

For questions regarding the Oregon Family Leave Act or Paid Leave Oregon or any other employment matters, contact Ashley Korkeakoski-Sears at 503-276-2132 or asears@barran.com.