Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010
Wow, it's Festivus already, which means that in just a few short days it will be a brand new year! We have a Festivus present for Oregon employers to help you get ready: Ten things you need to know for 2010! (click on each blue hotlink for more information)
- All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
- The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
- As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate.
- Leave for Military Spouses: Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty.
- In 2010, you might have a greater duty to accommodate employees' religious dress and practices.
- Domestic Violence Leave and Accommodations: Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must make reasonable accommodations for such employees.
- In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
- Oregon's minimum wage will remain $8.40/hour.
- Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act.
- Oregon has new rest and meal break regulations.
And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength. Happy festivus, and see you in 2010!
Washington Minimum Wage to Remain $8.55/Hour in 2010
Washington's minimum wage will remain $8.55 per hour in 2010, the Washington State Department of Labor and Industries (L&I) announced this week. Click here to view L&I's press release on the 2010 Washington minimum wage.
L&I recalculates the state’s minimum wage each year as required by Initiative 688, which requires that the minimum wage be increased for inflation annually according to any increases in the federal Consumer Price Index. This year, the CPI actually decreased by 1.9 percent. However, Initiative 688 does not allow L&I to decrease the minimum wage, so it will remain the same in 2010. Washington employers can continue to use the current minimum wage poster for at least one more year. Click here for more information on Washington's minimum wage from L&I.
As we reported last week, Oregon's minimum wage will also remain unchanged in 2010, at the rate of $8.40 per hour. A total of ten states have minimum wage rates tied to various cost of living measures: Washington, Oregon, Vermont, Ohio, Nevada, Montana, Missouri, Florida, Colorado, and Arizona.
Oregon's Minimum Wage Will Remain $8.40 in 2010
Oregon's minimum wage will remain $8.40 per hour in 2010, Labor Commissioner Brad Avakian announced last week. Oregon's minimum wage is tied to the Consumer Price Index, and is recalculated by the Labor Commissioner every September. This year, however, the CPI declined 1.5 percent, so Oregon's minimum wage workers will not receive a raise next year. Click here to read Commissioner Avakian's press release on the 2010 minimum wage.
So, if prices are falling, why is there no decrease in the minimum wage? Oregon's minimum wage law, passed by the voters in 2002, does not provide for cutting the minimum wage when prices fall.
Don't care because you don't live in Oregon? Click here for a state-by-state list of minimum wage rates.
Recovery of Attorney Fees for the Employer in Oregon Wage and Hour Cases
.jpg)
A recent Oregon Court of Appeals case, Rogers v. RGIS, LLP, presents an opportunity for employers. In Rogers, the court awarded an employer a whopping $180,854.09 in attorney fees. The plaintiff brought one lawsuit but several wage and hour claims (overtime, minimum wage, late payment of final wages, unpaid wages for rest and meal breaks).
The court found the plaintiff prevailed on a few claims, but the employer prevailed on most. As a result the employer was awarded six figures and the plaintiff was awarded only $880 to cover fees.
This case is saying that a prevailing party may recover fees, which relate to each separate wage claim. For example, if the plaintiff brings five separate wage claims and the employer prevails on four, the employer will (in the court’s discretion) get to recover its fees to defend against the four claims upon which it prevailed.
If you’re sued under Oregon wage and hour laws, you should seek fees under ORS 20.077 and 653.055(4). You can also use the potential for recovering fees as leverage before a lawsuit is filed. Will this logic be extended to other employment claims, such as discrimination and retaliation claims?
Federal Minimum Wage Rises to $7.25/Hour Today
If you pay your employees minimum wage, prepare to give them a raise effective today: the federal minimum wage increases to $7.25 per hour, effective July 24. Of course, you may live in a state that has a higher minimum wage; in that case, employers are obligated to pay the higher of the two wages. Click here for a state-by-state list of minimum wage rates.
What's that you say? This won't affect your business since you pay higher than the minimum wage? Don't be so sure. According to this article from the New York Times, increases in the minimum wage tend to have a ripple effect, as employees with wage rates above the minimum wage want to maintain their lead over their lower-earning counterparts.
Think the increase in the minimum wage is too much? You're not alone. As this article from the Associated Press points out, some business are concerned that the increase in the minimum wage will slow down the economic recovery. On the other hand, the Times points out that even with this increase, the minimum wage is still no higher now, after inflation, than it was in the early 1980s, and it is 17 percent lower than its peak in 1968.
Proposed "LAW" Would Index Federal Minimum Wage to Poverty Level
The recently proposed Living American Wage Act (LAW) would tie the federal minimum wage to the federal poverty threshold for a family of two with one child. Introduced last week by Rep. Al Green (D-Texas), LAW would index the minimum wage to 15 percent above the poverty line for a full-time worker, or about $8.20 per hour in wages, and it would increase the minimum wage every four years to maintain a wage at least 15 percent above the poverty line. For more information, click to read Rep. Green’s press release on LAW.
Such an indexed minimum wage would not be unique. Oregon adjusts its minimum wage each year based on the U.S. City Average Consumer Price Index for All Urban Consumers for All Items. Currently, Oregon's minimum wage is $8.40 per hour. For a list of the minimum wages in other states, click here for the Department of Labor's handy list of minimum wages by state, effective January 1, 2009
We’ll keep watching to see if LAW becomes law. Until then, please note that the federal minimum wage will increase to $7.25 per hour effective July 24, 2009.
DOL Secures $3.4 Million Settlement for NY Car Wash Employees
A portend of things to come in federal wage enforcment? Yesterday, a group of New York car washes have agreed to pay over one thousand current and former employees a total of $3.4 million to settle a lawsuit filed by the Department of Labor (DOL) alleging violations of the Fair Labor Standards Act (FLSA). Click here to read the consent decree in Solis v. LMC et al.
As we reported back in May, the Department of Labor received a budget increase of 10 percent and is devoting most of that increase to enforcement. Employers can expect to see more activity from the DOL to enforce wage and hour laws, especially large cases against groups of employers.
In the meantime, sit back, relax and enjoy Rose Royce:
Federal Minimum Wage Increases to $7.25 Effective July 24
Employers take note: the federal minimum wage increases to $7.25 per hour effective July 24, 2009. For more information, check out the Department of Labor's Fair Labor Standards Act site.
Of course, many states also have minimum wage laws, an where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage. Click here for the Department of Labor's handy list of minimum wages by state, effective January 1, 2009. (Note: the chart does not accurately reflect that Nevada's minimum wage will increase effective July 1, 2009 increase from $5.85 per hour to $6.55 per hour, while the minimum wage for employees not receiving health benefits will increase from $6.85 per hour to $7.55 per hour).
Need the Department of Labor's minimum wage posters? Here they are:
Exotic Dancers Are Employees, Not Independent Contractors
Every now and then we need a reminder to illustrate the dangers of misclassifying employees as "independent contractors." Last week, the Montana Supreme Court provided such a reminder, ruling that exotic dancers were employees, not independent contractors. Click here to read the opinion in Smith v. TYAD Inc. d/b/a Playground Lounge & Casino.
In Playground, the employer required each dancer to sign a contract acknowledging that she would be considered an “independent contractor" who would pay a "stage fee" to “rent” the stage and a dressing room for every night she worked. In return, each dancer would retain all tips and dance fees. According to the Montana Supreme Court, not only were the dancers actually employees entitled to payment of minimum wage for all hours worked, but the "stage fees" were illegal kickbacks. It held the dancers were entitled to payment of hourly wages, overtime, repayment of the "stage fees" and penalties.
Does Playground have any lessons for the 99.99% of employers that don't employ exotic dancers? Absolutely: all employers should be careful when classifying anyone as an "independent contractor." Whether an individual is properly classified as an employee or an independent contractor is a complex question of both state and federal law. Besides being held liable for back pay and overtime, employers who misclassify employees can be charged with unpaid wage withholdings and unemployment insurance premiums. Worse yet, employers who don't pay workers' compensation insurance on misclassified employees can find themselves in a world of hurt if one of those employees sustains an on-the-job injury. (The Playground Lounge should be thankful none of its dancers fell off the stage.) For more information on the criteria courts and agencies use, check out this page on the IRS' Independent Contractor Status Test.
Nevada Minimum Wage Increase Effective July 1, 2009
Nevada's minimum wage will increase effective July 1, 2009, pursuant to state law that requires the Nevada Labor Commissioner to adjust the minimum wage to reflect increases in the cost of living.
The minimum wage for employees who receive qualified health benefits from their employers will increase from the current $5.85 per hour to $6.55 per hour, while the minimum wage for employees not receiving health benefits will increase from $6.85 per hour to $7.55 per hour. Click here to download the Nevada Labor Commissioner's 2009 Minimum Wage Bulletin.
Washington's Minimum Wage To Rise to $8.55 January 1, 2009
Washington employers get ready to give your minimum-wage employees a raise: effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country. For more information, click here to read the Department of Labor and Industries' Press Release. Washington's current minimum wage is $8.07 per hour.
As previously reported in the World of Work, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009. Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index.
The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009. For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor.
Cosmetology Teachers, Not Day Care Teachers, Overtime Exempt
Cosmetology teachers, but not day care teachers, are exempt from the Fair Labor Standards Act's (FLSA's) overtime and minimum wage rules, according to two recent opinion letters from the Department of Labor.
The FLSA contains an exemption for professional employees, including any “teacher in elementary or secondary schools.” Cosmetology teachers qualify for the exemption, according to the DOL, because they teach in an accredited secondary school and because their primary duty is "teaching and instructing students in cosmetology theory." Yes, you read that correctly: cosmetology theory. Click here to read the DOL's opinion letter on cosmetologists.
Day care teachers, on the other hand, do not qualify for the exemption because they do not teach in a qualifying institution. According to the DOL, “[u]nless the daycare center provides grade school curriculums, introductory programs in kindergarten, or nursery school programs in elementary education of the sort described in [the act], the instructors are not within the scope of the teacher exemption of the FLSA.” Click here to read the DOL's opinion letter on day care teachers.
What lesson can we learn from these opinions? The FLSA exemptions are highly technical and not always intuitive. If you are classifying your employees as FLSA-exempt, not only should you make sure the employees meet all of the duties tests under the statute and regulations, but also that your organization meets any requirements that may be imposed as well. For more guidance on the FLSA exemptions, read this compliance guide on the FLSA from our friends at the DOL.
Employee Free Choice Act Tops List of Anticipated L&E Legislation
In case you missed it, Barack Obama will be the next President of the United States! And both houses of Congress will be controlled by Democratic majorities. Wondering what this will mean for labor and employment law? So are we! But we've gone a step further and made some educated guesses on what to watch out for.
- The Employee Free Choice Act (EFCA). The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election. If passed, it is expected to drastically increase union organizing and unionization rates. The World of Work will be watching this one very closely.
- The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (RESPECT). No, it's not an Aretha Franklin song. The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
- The Paycheck Fairness Act and the Equal Remedies Act. These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
- The Civil Rights Act of 2008. The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
- The Employment Non-Discrimination Act (ENDA). ENDA would amend Title VII to add sexual orientation as a protected class.
- The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
- Minimum wage. President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
- Family and Medical Leave Act (FMLA). President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).
The World of Work will be watching this legislation closely and will bring you updates as they occur. For more information now, check out this update on pending legislation from Stoel Rives.
Oregon Announces New Minimum Wage of $8.40 Effective January 1, 2009
.jpg)
The Oregon Bureau of Labor and Industries recently announced that Oregon's minimum wage will increase from the current $7.95 an hour to $8.40 an hour effective January 1, 2009. For Oregon Labor Commissioner Brad Avakian's press release, click here.
As a result of Ballot Measure 25, passed by voters in 2002, the minimum wage is adjusted annually based on changes in inflation as measured by the Consumer Price Index (CPI). The Commissioner is charged with adjusting the minimum wage for inflation every September, rounded to the nearest five cents.
Federal Minimum Wage Rates Increase to $6.55/hour
This increase does not affect most Western states, which have higher state minimum wages. Employers in Utah and Idaho, however, are affected by the increase and should make sure they comply. Need to verify your state's minimum wage? The Department of Labor has this great chart - just click on your state for current minimum wage information.
