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Employment Law Newsletter: 1st Quarter 2012

Legislative Update:

Changes to Oregon Laws That Employers Need To Know

To begin the New Year, here is a list of the labor and employment-related laws passed by the Oregon legislature this last year. Policies and procedures should be updated accordingly.

More Protections For Employees On Jury Duty

Starting January 1, 2012, employers may no longer require their employees to use accrued vacation, sick, or annual leave while on jury duty. The employee can choose to take unpaid leave instead. Also, employers with 10 or more employees must continue health, disability, life or other insurance while an employee is on jury duty, if the employee elects to have coverage continued. There are limited circumstances where the employer can recover from the employee the employee’s share of the insurance Employees can now bring a lawsuit under the statute if their employer retaliates against them for serving on a jury. The employee can seek lost wages and benefits, reinstatement or other equitable relief, attorney fees, and a civil penalty of $720.

Minimum Wage Increased

Minimum wage in Oregon increased to $8.80 per hour on January 1, 2012.

No More Exceptions For Employees To Use Cell Phones While Driving

The law prohibiting the use of cell phones while driving contained exceptions for people who needed to use their phone as part of their job. Starting January 1, 2012, only emergency workers will be allowed to use cell phones while driving.

Revised Notice Requirements For Employee Arbitration Agreements

Starting January 1, 2012, employers must notify an employee in writing at least 72 hours before their first day of work that they will have to sign an arbitration agreement as a condition of their employment. The law previously required two weeks notice. The law also requires employers to provide the following notice language, in bold face type, that must be signed by the employee to make the arbitration agreement effective:

“I acknowledge that I have received and read or have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge and jury in court“

Broader Protections For Employees In The Military

Effective now, the definition of “uniformed services” used in Oregon’s law prohibiting discrimination against members of the armed services has been expanded to match the definition used in its federal counterpart, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Employer Liability For “Bounced” Paychecks

Starting January 1, 2012, employees can sue their employers for issuing dishonored, or “bounced,” checks to pay wages. The employee can sue for $100 or triple the amount of the check, whichever is greater. But the total amount recovered cannot be greater than the amount of the check plus $500. The employee can also recover attorney fees.

Definition Of “Disability” Expanded For State Law

Effective now, the standard for determining whether a person has a “disability” protected under Oregon’s law prohibiting discrimination against the disabled was expanded to conform to the broad standard now used for the federal Americans with Disabilities Act (ADA).

Wait Staff Can Waive Meal Breaks

Starting January 1, 2012, the law permitting tipped food or beverage servers to waive their meal periods is extended indefinitely. Employers are, of course, prohibited from coercing those employees into waiving their meal periods.

Clarification For Wage Claim Laws

Effective January 1, 2012, the legislature amended Oregon’s wage claim statute to require the employee (or their representative) to provide the employer with a written notice of unpaid wages that contains an estimate of wages owed, or facts from which the amount owed can be determined. Failure to provide that information greatly reduces the penalty that the employee can recover under the law.

Also, the legislature clarified when an employer will be considered to have paid an employee their wages. An employee is considered to have been paid on either the date the employer delivers the payment to the employee, or sends the payment by first class mail, express mail or courier service.

Victims Of “Harassment” Are Now Entitled To Accommodation

ORS 659A.272 requires employers with 6 or more employees to provide unpaid leave in limited circumstances, and reasonable safety accommodation, to employees who are victims of domestic violence, sexual assault and stalking. The law was amended, effective now, to require employers to provide those same benefits for victims of “harassment.” The term “harassment” encompasses both criminal harassment and “harassment” as defined in Oregon’s employment law regulations.

Q & A:

QUESTION:Is there any risk with requiring my employees to have a minimum level of education?

ANSWER: Possibly.

The U.S. Equal Employment Opportunity Commission (EEOC) issued an “informal discussion letter” regarding individuals who are unable to earn a high school diploma because of certain learning disabilities, thus rendering them ineligible for jobs requiring a high school education.

According to the EEOC, a job qualification standard – including a high school diploma or other education requirement – must be job-related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act (ADA) by screening out individuals on the basis of a disability. That same rule would apply under Oregon’s disability law because it is interpreted in line with the ADA.