Update on Proposed Oregon Legislation – What Employers Need to Know

By Clay Creps

For this second installment in our legislative update series we have a status report on the employment-related bills discussed in our previous alert, as well as a survey of the bills that have since been introduced related to the employment arena.

Update on Bills Previously Discussed

Oregon Family Leave Act
House Bill (HB) 2474, which would expand the provisions of OFLA in the wake of COVID-19, continues to progress through the legislature. It appears to have a fair chance of making it to Governor Brown’s desk.

Noncompetition Agreements
Of the three bills introduced seeking to change the law regarding noncompetition agreements, only one, SB 169, appears to have traction. This bill would require a protectable interest and a salary threshold ($97,311 adjusted annually for inflation). SB 169 does not seek to shorten the period of the noncompetition agreement.

Independent Contractors
HB 2489 would create a definition of independent contractor that Oregon agencies enforcing certain laws, including wage and hour laws, would apply. This bill does not appear to have much traction at this time.

Retaliation Presumption
SB 483 would amend ORS 654.062 (pertaining to notice to employers by employees of health or safety violations), to create a rebuttable presumption in any action brought by an employee alleging adverse action for making a complaint of violation. This bill is progressing, although not aggressively.

Private Attorney General Act
HB 2205 would create a private attorney general act which would permit individuals to bring an action in the name of the State of Oregon and recover civil penalties for violations of state law. While some action has occurred with respect to this bill, it is not significant at this time.

Burden of Proof in Discrimination Actions
SB 477, which would create quite a change to discrimination actions brought under Oregon law, does not seem to have attracted much attention.

Bills Introduced Since Our Last Update

Driver License
SB 569 would provide that it is an unlawful employment practice for an employer to require an applicant or current employee to possess or present a valid driver license unless the ability to legally drive is an essential function of the job or is related to a legitimate business purpose. It also requires an employer to accept any other identification documents that are deemed acceptable for an I-9.

Minimum Wage
HB 3351 would increase the minimum wage to $17.00/hour throughout the State effective July 1, 2022. The bill would also do away with the geographic distinctions in minimum wage currently in place as of July 1, 2022.

ORS 659A.315 makes it unlawful for an employer to require that an employee refrain from the use of tobacco products. In a nod to the legalization of marijuana for recreational use, HB 2974 would expand that statute to include “a substance that is lawful to use under the laws of this state during nonworking hours.” The bill provides an exception when the restriction relates to the performance of work while impaired. The purpose of this bill appears to attempt to make it an unlawful employment practice to terminate an employee for testing positive for marijuana when the employee is not impaired.

Tax Credit for Paid Sick Leave
HB 2871 would create a tax credit for employers who pay qualified sick leave wages. The credit would go into effect beginning January 1, 2022, at 75 percent of the qualified sick leave wages paid, and would decrease over the succeeding years. The credit would apply to employers with no more than 50 employees.

Vaccination History
SB 771 would make it an unlawful employment practice for an employer to take action against an employee or applicant (a) because of the individual’s vaccination history; (b) because the individual refuses to obtain a vaccination; or (c) because the individual fails to provide proof of immunity or immunization with respect to a communicable disease.

Reasonable Accommodation for Child Care Issues
ORS 653.450 is the statute in Oregon which gives employees the right to input on their work schedules. Under the current law, an employer is not required to accommodate an employee’s requests regarding their work schedule. SB 716 would change this with respect to scheduling requests related to child care issues. The bill would require an employer to reasonably accommodate an employee’s identified limitations or changes in the employee’s work schedule availability as a result of matters related to child care. This statute appears to have been prompted by child care issues created by the pandemic.

Age Discrimination
HB 3277 would modify the law in Oregon which makes it an unlawful employment practice to discriminate “because of age.” The bill would create proxies for “because of age” to include: (1) length of service with an employer; (2) higher cost factors relating to pension benefits, other retirement benefits, or insurance benefits; or (3) retirement or pension status. The bill would preclude an employer from inquiring as to the age of an applicant, the applicant’s date of birth, or when the applicant attended or graduated from high school or college. It would also preclude including words or phrases in job advertisements which suggest or imply age preferences, including phrases like “college-age,” or “digital native,” though the bill does contain an exception for when age is a bona fide occupational qualification. Lastly, the bill would require an award of liquidated damages to a prevailing plaintiff equal to the greater of twice any economic damages or $25,000.

The Labor & Employment Practice Group at Tonkon Torp will continue to track this regular session of the Oregon Legislature and will keep you apprised of future developments.

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