The year 2013 brought several changes to employment laws affecting Oregon employers. In this alert, we highlight the key changes of this past year so that our clients are aware of the changes, and have an opportunity to update their employee handbooks, policies and procedures before the New Year.
New Form I-9
The USCIS has released a new Form I-9. Beginning May 7, 2013, employers were required to begin using the new Form I-9. Managers or human resource professionals who are responsible for employee eligibility verification should be trained in changes to the form if they have not already been trained. Primary changes to the form are:
- New data fields in Section 1 of the form, including the employee's telephone number and e-mail address, and foreign passport information (if applicable).
- New instructions which provide additional guidance to employers in completing the form.
- New format which expands the Form I-9 from one to two pages. Section 1 now covers the entire first page of the Form I-9.
New FMLA Forms and Poster
Earlier this year, the Department of Labor released new FMLA forms and a new FMLA poster. Links to the new FMLA forms and poster are listed below:
- http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf (Poster)
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility and Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency For Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
There are no substantive revisions to the new forms but employers who rely on the Department of Labor’s forms to process FMLA leave should replace outdated forms with these new forms. The new forms will expire on February 28, 2015. The new poster contains a new section that clarifies the definition of "veteran" under the newly issued FMLA regulations to include those currently serving, and those discharged within the past five years. The new poster should be displayed in a conspicuous place where employees and applicants for employment can see it. The poster must be displayed at all locations, even if there are no FMLA eligible employees who work there.
Social Media Privacy
Oregon has joined several other states in passing laws that prohibit employers from accessing employee social media websites. The Oregon law takes effect on January 1, 2014. The law covers websites such as Facebook, Twitter, LinkedIn, Pinterest, and Instagram. Employee e-mail accounts also are covered. The law prohibits employers from asking employees or applicants to provide their usernames or passwords, and prohibits asking them to "friend" or add the employer as a contact on social media websites. Employers also may not compel employees or applicants to access their social media websites in front of the employer (aka shoulder surfing). Employers should ensure that employees who are involved in the hiring process are trained on this law to ensure compliance and minimize the risk of lawsuits and penalties.
Bereavement Leave of Absence
Effective January 1, 2014, the Oregon Family Leave Act (“OFLA”) will include bereavement leave rights for all eligible employees. The new law gives employees the right to take up to two weeks of leave to (1) attend a funeral or alternative to a funeral of a family member, (2) make arrangements necessitated by the death of a family member, or (3) to grieve the death of a family member. The standard OFLA definition of family member applies to this new type of leave, meaning that employees may take bereavement leave relating to the death of a spouse, same-sex domestic partner, parent, parent-in-law, grandparent, grandchild, child, stepchild, or child of a same-sex domestic partner.
Unlike other types of OFLA leave, the employer may not reduce the two-week leave entitlement if the employee fails to provide timely notice of the need for bereavement leave. The employee must complete the bereavement leave within 60 days of the date the employee is notified of the death. The employer may not require the employee to take multiple bereavement leaves concurrently even if multiple family members die, and family members who work for the same employer may take concurrent bereavement leave if they choose to do so, unlike with other types of OFLA leave. Employers should update their OFLA policies to reflect the changes in the law.
If an employer is also subject to the federal Family and Medical Leave Act (“FMLA”), an employee’s bereavement leave under OFLA cannot be counted against the employee’s twelve-week leave entitlement under the FMLA.
Supreme Court DOMA Ruling Alters FMLA Application
The Supreme Court's landmark decision in United States v. Windsor earlier this year cleared the way for many new applications of federal law, including the FMLA. Under FMLA, employees make take leave for, among other reasons, the care of a spouse with a qualifying medical condition. Until now, the federal definition of "spouse" excluded same-sex married partners due to the Defense of Marriage Act ("DOMA"). The Supreme Court's decision invalidating DOMA, however, has the effect of recognizing same-sex marriages in the states where they are legal. In turn, employees may now take FMLA leave to care for their same-sex partners so long as they were married in a state that recognized same-sex marriage, and they currently reside in a state that recognizes same-sex marriage. Currently, Oregon does not recognize same-sex marriage but Washington does. Therefore, employees who currently reside in Washington may now take FMLA leave to care for their same-sex spouse, even if they work in Oregon for an Oregon employer.
Supreme Court Raises the Bar on Title VII Retaliation Claims
The Supreme Court has imposed a new, higher burden of proof on employees who claim they were fired in retaliation for engaging in protected activity. Previously, they needed to prove that the desire to retaliate was a "motivating factor" in an adverse employment action. Put simply, this meant that employees needed only to show that the desire to retaliate was one factor, among others, that motivated the decision to impose an adverse employment action. Now, however, such employees will need to prove that retaliation was the reason for the adverse employment action, and “but for” the retaliation, the employee would not have been fired. The heightened standard will provide employers with more certainty in evaluating claims and hopefully will result in more victories for employers in retaliation cases.
Oregon Extends Domestic Violence Leave to Employees
The Oregon legislature has expanded the scope of Oregon's law requiring leave for employees who are victims of domestic violence. Under the previous version of the law, employees were only eligible for leave after working an average of more than 25 hours per week during the 180 days preceding the request for leave. The changes to the law make domestic violence leave available to any employee on their first day of work. In addition, the changes to the law, which becomes effective on January 1, 2014, require that employers post a summary of the law which BOLI has made available online here.
Employer "Pay or Play" Mandate Delayed
The U.S. Treasury Department has issued a statement that enforcement of the employer "pay or play" mandate penalties will be delayed one year, until 2015. The mandate, which is part of the Affordable Care Act, requires large employers (with 50 or more full-time employees) to provide affordable health care coverage to substantially all of their full-time employees (and their dependents). The penalties for failure to comply are up to $2,000 per full-time employee. The mandate initially was scheduled to go into effect on January 1, 2014, but has now been postponed to January 1, 2015.
Affordable Care Act Reporting Requirements Delayed
This summer, President Obama announced that implementation of the health care coverage reporting provisions of the Affordable Care Act will be delayed until January 1, 2015. The ACA requires information reporting by large employers with respect to the health coverage offered to full-time employees, and requires reporting by insurers and self-insuring employers that provide coverage. In announcing the delay, the Obama administration noted the complexity of the new health care coverage reporting requirements and the need for more time to implement them. The delay does not affect other significant provisions of the ACA, in particular health care exchanges which began enrollment October 1, 2013 and are to take effect January 1, 2014.
Affordable Care Act Notice Deadline
October 1, 2013 was the deadline for employers to start providing notice of coverage options in the Health Insurance Marketplace. The notice must be provided to new employees at the time of their hire. The notice also was required to be provided to all current employees no later than October 1, 2013. The deadline coincided with the open enrollment period for the Marketplace. The Department of Labor has released model notices which can be accessed online. For employers who offer health care coverage to some or all employees, the model notice can be accessed here. For employers who do not offer a health plan, the model notice can be accessed here.
New COBRA Election Notice
The same deadline and procedures for delivery apply to a new COBRA Election Notice, a model of which is available here. Beginning on October 1, 2013, the notice was required to be provided to an employee within 14 days of the health plan administrator receiving notice of the employee's qualifying event.
IRS Issues New Guidance on Federal Tax Treatment of Same-Sex Marriages
The IRS issued guidance on the federal tax treatment of same-sex marriages. The guidance was effective September 16, 2013. Under the new guidance, the IRS will apply the marriage laws of the state or country in which the marriage was celebrated to determine if the couple if legally married for federal tax purposes, including many issues relating to employee benefits. Thus, if the couple was married in a state or foreign country that allows same-sex marriage, the marriage is legally valid, even if the couple now lives in a state that does not recognize same-sex marriage. Employers should review and update their benefits, family leave, and other policies which may be affected by the new IRS guidance.
Note, however, that the DOL applies a state of residence rule to same-sex marriage under the FMLA, which means that employees are not entitled to FMLA leave to care for a same-sex spouse unless they currently reside in a state that recognizes same-sex marriage, in addition to having been married in a state that recognized same-sex marriage.
IRS Announces 2014 Pension Plan Limitations and FSA Rules
The Internal Revenue Service has issued new rules relating to the provision of benefits in 2014. First, the IRS announced the 2014 limits that affect the operation of tax-qualified retirement plans. The limits, which affect items such as 401(K) and IRA contributions, can be accessed here. Second, the IRS has issued a new rule which will allow a small rollover from one plan year to the next for Flexible Spending Accounts ("FSAs"). Previously, the IRS had a "use-it-or-lose it" policy on FSAs. Now employer plans can elect (1) a strict 12-month time limit to use the funds, (2) a 2.5 month grace period to use the funds, or (3) a $500 rollover for use during the entire next year.
Minimum Wage Increase
Oregon’s minimum wage will increase to $9.10 per hour starting on January 1, 2014. Employers should ensure that they are in compliance with the new minimum wage.
Portland Employees Entitled to Sick Leave
Employees who perform work in Portland may be entitled to paid or unpaid sick leave starting in 2014. The link to the City of Portland's Frequently Asked Questions website is here. The City has also developed a poster for employers, as well as an official map for the Portland city limits. Tonkon Torp is happy to work with clients who have questions or concerns, to ensure that they are in compliance with the new sick leave ordinance.