The countdown has started: 42 days until the New Year! In addition to the statutory revisions we discussed in our last issue, January 1, 2008 will bring the following changes to Oregon’s employment relationships. Please be mindful of these modifications as you review and update your policies.
Payment of Wages on Regular Paydays
All employers are familiar with the general rule that they must establish and maintain a regular payday on which they must pay all their employees. An addition to this rule now requires employers to correct certain wage underpayments within 3 days of notice of the unpaid amount. Specifically, when the unpaid amount is more than 5% of the employee’s gross wages due on the regular payday, the employer must pay the unpaid amount within 3 days after it receives notice of the underpayment, excluding Saturdays, Sundays and holidays. On the other hand, if the unpaid amount is less than 5% of the employee’s gross wages due on the regular payday, the employer has until the next regular payday to correct the mistake.
Employers now have mandatory deadlines for responding to employees’ requests to inspect or obtain personnel records. The employer must provide these records within 45 days of receiving the employee’s request. This period may be extended by agreement between the employer and the employee. The same rule applies to terminated employees. The employer may charge for this service. However, employers are subject to civil penalties of up to $1,000 for violating this rule.
Paid Sick Leave
In 2008, employees on unpaid family leave will be able to use paid sick leave, vacation leave or any other paid accrued leave during the period of family leave. This amendment expands the grounds for which the employee may use paid sick leave. The employer may determine the particular order in which an employee may use accrued leave when more than one type of leave is available.
A written arbitration agreement between an employer and employee will be potentially unenforceable if the employer does not inform the employee:
- At least 2 weeks before the first day of employee’s job
- In writing
- That the arbitration agreement is a required condition of employment.
Alternatively, employers can require an arbitration agreement upon promotion of an employee, but the arbitration agreement will be unenforceable if the promotion is not in good faith.
To effectively implement this change in your workplace policies, we recommend that you take the following steps:
- Have a written offer of employment
- Include language that states that agreeing to arbitration is a term and condition of employment
- Send this offer at least 2 weeks before employee is expected to start working
If your hiring needs make it difficult to have a two-week lag time after the employment offer, we recommend that you give notice as part of the interview process. At the time of the interview provide a written form that states that agreeing to arbitration will be a condition of employment if the candidate is offered the job. Give this form to all the applicants, regardless of your ultimate hiring decision. So long as you finish the initial interview process 2 weeks or more before the start date, you satisfy the requirements of the rule.
If you are promoting an employee, you do not need to give advance written notification that an arbitration agreement is mandatory. It is sufficient that the employee’s promotion is made in good faith. The employee is always free to reject the promotion if s/he does not like the arbitration agreement.
Finally, keep in mind that in addition to complying with these notice requirements, arbitration agreements must be valid on other grounds. Employees may try to invalidate arbitration agreements by arguing pressure, surprise, misrepresentation or unfairness of the agreement’s terms even if the employer complied with the notice requirements outlined above.