Employment Law Newsletter:  3rd Quarter 2012


The Employment Law Mosaic:
A Primer on Employment Laws That May Apply To Your Business

There are many laws that regulate the employer-employee relationship in Oregon, but not all laws apply to all em­ployers. Whether a law applies depends in large part on your number of employees. The following briefly discusses the more common laws that may apply to your business. By no means is this an exhaustive list, but it is important to know that there may be additional laws to comply with as you grow and add employees.

1-5 Employees:

At this level, employers are subject to most wage and hour laws governing such things as minimum wage, overtime, break periods, paydays and pay­checks, and other working conditions. Employers are generally prohibited from making decisions on the basis of an applicant’s or employee’s race, color, religion, national origin, age, marital status, gender, sexual orientation, gender identity, injured worker status, military service, credit history, or for report­ing unlawful activity.

Employers also must provide certain accommodations to employees who are vic­tims of domestic violence, sexual assault, stalking, or harassment. Additionally, employers must car­ry workers comp insurance, have regular (at least quarterly) safety meetings, and verify employment eligibility using a form I-9 or the E-Verify system.

6-9 Employees:

Employers with 6 or more employees are subject to additional noteworthy laws. Most important is Or­egon’s version of the Americans with Disabilities Act (ADA), which prohibits discrimination against appli­cants and employees because he or she has or had a disability, because he or she associates with a person with a disability, or because he or she is perceived by the employer as having a disability. Employers also must provide reasonable accommodation to assist disabled employees in performing his or her job un­less the accommodation would impose an undue hardship on the employer. Whether an accommoda­tion is reasonable or an undue hardship is determined on a case-by-case basis. If an accommodation issue arises, you should seek legal advice.

At 6 employees, employer may also be required to provide leave to employees who are victims of cer­tain crimes, including domestic violence, sexual assault, stalking, or harassment. Leave must be given to attend criminal proceedings, or medical and legal ap­pointments, and to implement safety measures. The employee does not have to be paid while on leave, but must be allowed to use accrued paid vacation time.

10-20 Employees: Employers with more than 10 employees are required by the Occupational Safety and Health Administra­tion (OSHA) to keep records of work-related injuries and illnesses. OSHA may also require the formation of a safety committee.Employers with 15 or more employees for each work­ing day of 20 or more calendar weeks in the current or preceding calendar year are subject to the Americans with Disabilities Act (ADA). The ADA imposes nearly identical obligations as Oregon’s law protecting em­ployees with disabilities.

21-24 Employees:

Employers with 21 or more employees in Oregon are obligated to reinstate workers injured on the job to the position they held when injured. This obligation remains for up to 3 years from the date of the injury. The employee must be medically released to return to full-duty before being reinstated.

25-49 Employees:

Employers with 25 or more employees may need to provide protected family leave. The Oregon Family Leave Act (OFLA) and the Oregon Mili­tary Family Leave Act (OMFLA) apply to employ­ers with 25 or more employees in Oregon for each working day of 20 or more calendar work weeks (not consecutive) during the year in which leave is taken or in the previous year. Up to 12 weeks of leave is available under OFLA for eligible employ­ees to use during certain qualifying circumstances, such as a serious health condition of the employee or his or her qualifying family member, parental leave, or sick child leave. OMFLA provides up to 14 days of OFLA leave for eligible employees who are spouses or same sex-domestic partners of mil­itary members being called to active duty or on leave from active duty. Employees returning from OFLA or OMFLA leave must be reinstated to the same position.

Employers with 25 or more employees in Oregon may also need to provide unpaid rest periods for an employee to express breast milk. Reasonable efforts must be made to provide a private area, other than a public restroom or toilet stall, where the employee can express breast milk.

50-99 Employees:

The Family Medical Leave Act (FMLA) – the fed­eral counterpart to OFLA – applies to employers with 50 or more employees for each working day during 20 or more workweeks in the current or preceding calendar year. Similar to OFLA, FMLA provides qualifying employees with up to 12 weeks of protected leave for family medical issues. It also provides military caregiver leave and qualify­ing exigency leave similar to OMFLA. OFLA and FMLA do have important differences that can re­sult in leave being available under one law but not the other. For example, OFLA provides leave for an employee to care for a same-sex domestic part­ner, whereas FMLA does not. If in doubt whether leave is required under OFLA or FMLA, seek legal advice.

100 or more employees:

Employers with 100 or more employees are re­quired to complete and submit an EEO- 1 Re­port. The EEO-1 Report is a compliance sur­vey report mandated by federal law. It requires company employment data to be categorized by race/ethnicity, gender, and job categories. The EEOC uses EEO-1 data to support civil rights enforcement and to analyze employment pat­terns, such as the representation of female and minority workers within companies, industries or regions. The EEOC is prohibited from mak­ing public any employment data derived from EEO-1 Reports.


NLRB Offers Approved Internet & Social Media Policy

The National Labor Relations Board has provided a sample Internet & Social Media Policy that, in its opinion, does not violate the National Labor Relations Act. A copy of the sample policy can be found at https://www.cosgravelaw.com/media/uploads/NLRB_ Policy.pdf. The sample provides a helpful guide to craft your own policy, but any policy should be re­viewed by an attorney before distribution to your employees.

EEOC Says Criminal Background Checks Can Be Illegal Discrimination

On April 25, 2012, the EEOC issued its report on when using criminal records in employment deci­sions may be illegal discrimination. The concern being that using criminal records as a bar to em­ployment has a disparate impact on minority ap­plicants. Employers should not consider criminal records in making employment decisions unless doing so is job related and consistent with business necessity. This means that, in screening for criminal conduct, the employer (1) considers the nature of the crime, the time elapsed since the criminal con­duct occurred, and the nature of the job in ques­tion; and (2) gives the applicant the opportunity to explain why he should not be excluded.

Employment Law Q & A:

Question:Does an employee have to specifically ask for medical leave under OFLA or FMLA?

Answer:No. If an employee qualifies for leave un­der OFLA or FMLA, then he or she need only pro­vide information sufficient to make the employer aware of the possible need for medical leave. Once the employer has enough information to deter­mine leave is for a FMLA or OFLA-qualifying reason, the employer must designate the leave ac­cordingly and notify the employee of that desig­nation. Conversely, employees cannot choose to not take OFLA or FMLA leave.