By Clay Creps
Five significant employment-related bills have been signed into law so far this legislative session. Some of these bills were a response to the COVID-19 pandemic. All of the bills will have a substantial impact on how employees are treated by employers.
Noncompetition Agreements
Governor Brown signed Senate Bill 169 into law on May 21, 2021. This law continues the recent narrowing of noncompetition agreements. The law prior to this bill placed numerous requirements on noncompetition agreements – failure to comply with the requirements would result in the agreement being voidable by the employee. This created a bit of a stumbling block for employees, because the employee looking to have the agreement declared void by a court was required to state that the agreement was void before the employer sought to enforce it. This law now makes agreements which fail to comply with the law void instead of simply voidable. It also shortens the permitted noncompetition period from 18 months to one year, and places a minimum income requirement of $97,311 (adjusted annually) on an employee whom the employer seeks to bind.
Reasonable Accommodation for Child Care
On June 3, 2021, Governor Brown signed Senate Bill 716 into law. This law amends the statute giving employees the right to have input into work schedules. Child care needs are stated specifically as an issue an employee may bring to the employer’s attention in setting an employee’s schedule. Remember, of course, that an employer is not obligated to implement the employee’s requests.
Amendment of OFLA
House Bill 2474, which looks like a direct response to the COVID-19 pandemic, was signed into law on June 8, 2021 by Governor Brown. This law makes significant amendments to the Oregon Family Leave Act (OFLA). It includes in the reasons for taking protected leave the fact that a child’s school or child care provider is closed because of a public health emergency. During “a period of time covered by a public health emergency,” the law makes OFLA applicable to all employers, not just those with 25 or more employees as had previously been the case. During the public health emergency, the length of employment required to be eligible for OFLA is reduced from 180 days to 30 days, and any requirement for minimum hours worked is eliminated. If an employee is reemployed during the public health emergency by an employer within 180 days of leaving, the employee is immediately eligible to take protected leave. This law will likely require significant changes to most employee handbooks. As the law is silent as to its effective date, it became effective immediately upon signing by Governor Brown.
Driver License Requirement Unlawful
Governor Brown signed Senate Bill 569 into law on June 11, 2021. This law makes it unlawful for an employer to require an employee or prospective employee to possess or present a valid driver license as a condition of employment, unless driving is an essential function of the position. It further requires employers to accept as valid identification any means of identification deemed acceptable on federal forms, most notably Form I-9. An employer is free to accept a driver license as identification if the employee or prospective employee voluntarily offers it.
Retaliation Presumption
On June 15, 2021, Governor Brown signed Senate Bill 483 into law. This law creates a rebuttable presumption of retaliation if an employer takes adverse action against an employee within 60 days of the employee engaging in protected activity under the Oregon Safe Employment Act. This law essentially requires employers to provide employees with a safe workplace. Protected activities are listed as opposition to unsafe practices, complaints, initiation of proceedings, or a reported assault. This law will have a significant impact on litigation arising under the Oregon Safe Employment Act. Previously, if an employee brought an action asserting retaliation, the burden ultimately rested on the employee to prove that the action taken was retaliatory. This law now shifts that burden of proof. When the adverse action occurs during the 60 days following protected activity, a rebuttable presumption of retaliation arises, and the burden now falls on the employer to prove retaliation did not occur.
We will continue to monitor Oregon’s legislative session. If further developments occur, we will be sure to report on them.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.
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