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!
2009 Oregon Legislative Update
The Oregon Legislature was in session in 2009, and many labor and employment-related bills came up for consideration. A complete list of the bills that passed and the bills that failed follows below (you may have to click "continue reading."
Several passed and will become law effective January 1, 2010. Several others didn't get the support they needed to become law, but employers may want to take note as they may gain more traction in the next legislative session.
Notable winners: leave for military spouses, a ban on "captive audience" union meetings, and protections for stalking victims. Notable losers: several attempts to clarify an employer's obligation to accommodate medical marijuana use.
Up next: a federal labor and employment legislation update. Stay tuned!
The Winners: The following Oregon bills will become law January 1, 2010. Click on the bill number to read the full text of each bill.
- HB 2744 - Leave for Military Spouses. Requires employers with 25 or more employees in Oregon to provide leave to spouses of service members prior to deployment and during leave from active duty.
- HB 3256 - Protections for Service Members. Amends ORS Chapter 659A to make discrimination against an employee because of the employee’s service in a uniformed service an unlawful employment practice.
- HB 3162 - Expanded Whistleblower Protection. Amends ORS Chapter 659A to make discrimination against an employee who reports a violation of state for federal laws, rules or regulations an unlawful employment practice.
- SB 519 - Political and Union Meetings. Prohibits employer from requiring attendance in workplace meetings on political, religious or union matters.
- SB 786 - Religious Accommodations. Requires employers to reasonably accommodate religious practices with accommodations such as shift changes, vacation time for religious holidays, allowing religious jewelry or clothing.
- SB 469 - Child Businesses. Exempts children under age 17 from requirement to obtain a business license or permit for a sole proprietorship.
- SB 60 - Expanded BOLI Collections Authority. Expands the Oregon Bureau of Labor and Industries' authority to collect on judgments and orders.
- SB 373 - Deductions for Child Support. Allows either the obligee or the obligor under a support order to sue an employer who withholds support money but fails to pay.
- SB 874 - ADA Amendments Act. Conforms Oregon law with the ADA Amendments Act.
- HB 2826 - Child Labor. Increases the allowed working hours for children under 16 by one hour, two hours in the summer months.
- SB 928 - Protections for Stalking Victims. Prohibits discrimination against victims of actual or threatened stalking, sexual assault or domestic violence, and requires employers to make reasonable accommodations for such employees.
- HB 2377 - Shut Up and Drive! Prohibits the use of cell phones while operating a motor vehicle (hands-free devices allowed).
The Losers: the following bills will not become law this year, but might become law following a future legislative session.
- HB 2497; HB 3052; SB 382 - Restrictions on Medical Marijuana. Each of these bills would have allowed employers to prohibit the use of medical marijuana in the workplace.
- HB 2503 - Protections for Medical Marijuana Users. Would have prohibited discrimination based on an employee’s use of medical marijuana not on employer’s property.
- SB 427 - Drug Testing Programs. Would have allowed employers to implement broad drug-free workplace program and provide for drug and alcohol testing policies.
- HB 2821 - OFLA and Vacation Leave. Would have prevented employers from forcing employees to take accrued vacation leave when taking OFLA leave.
- HB 3053 - Paid Family Leave. Would have created an insurance program to provide benefits to those taking OFLA leave.
- HB 2692 - Revised OFLA Obligations. Would have revised OFLA so that employee returning to work from leave entitled to an available equivalent position, not the same position as before taking leave.
- HB 3053 - Minimum Wage Freeze. Would have suspended annual increase to Oregon minimum wage for years in which Oregon’s unemployment rate exceeds the national rate.
- SB 830 - Local Minimum Wages. Would have directed BOLI to calculate local minimum wages based on median income of each locality.
- HB 2692 - Punitive Damages for Whistleblowers. Would have allowed public employees to recover punitive damages in whistleblower cases.
- HB 3449 - Height/Weight Discrimination. Would have made it unlawful for employers to discriminate because of an individual’s height or weight.
- HB 2903 - Shortened Arbitration Notice. Would have reduced from two weeks to 72 hours the time that employer must give a prospective employee written notice that an arbitration agreement will be required.
- HB 2890 - Defining "Employee." Would have defined "employee" for worker classification purposes.
- SB 638 - School Activity Leave. Would have established leave for parents and guardians to attend school activities.
- SB 707 - Defamation Protections. Would have established immunity from defamation liability for employer who discloses information about employee’s job performance, unless shown to have acted in bad faith by clear and convincing evidence.
- HB 3403 - Final Paychecks. Would have given employers five days from date of termination to pay final wages to employees who are fired.
Employer Did Not Violate Title VII By Firing Employee For Wearing a Nose Ring
A Federal court in Florida has ruled that a Subway restaurant did not violate Title VII by firing an employee because she wore a nose ring, rejecting a claim by the Equal Employment Opportunity Commission (EEOC) for injunctive relief and punitive damages. Click here to read the court's decision in EEOC v. Papin Enters. Inc.
Subway has a policy prohibiting employees from wearing facial jewelry, but this particular employee refused to remove her nose ring on the grounds that wearing it was part of her Nuwaubian religion. In April this year, a jury found that Subway did not have to accommodate the employee's nose ring, as she did not have a sincerely held religious belief requiring her to wear it. Last week, the court declined the EEOC's request for injunctive relief and punitive damages (notwithstanding the jury verdict) as there was no basis for such relief absent any discrimination.
The Papin case demonstrates an important legal principle: although employers are required to reasonably accommodate employees' religious practices (which may include allowing employees to deviate from a dress code), employers are only required to accommodate sincerely held religious beliefs. (So much for my idea of converting to Pastafarianism so I could claim a religious right to wear jeans on Friday). For more information on what constitutes a "religion" for Title VII purposes, check out these Frequently Asked Questions on Religious Discrimination from the EEOC.
Oregon Religious Accommodation Bill Becomes Law
Last week Oregon Governor Ted Kulongoski signed Senate Bill 786, which will require employers to more extensively accommodate employees' religious practices and observation. The bill passed both the Oregon House and Senate by wide margins earlier this Spring. The new law will take effect January 1, 2010.
Oregon law already prohibits discrimination based on an employee's religion. Senate Bill 786 also requires employers to reasonably accommodate employees' religious practices. The law specifies types of accommodations that may be required, such as shift changes, approving vacation time for religious holidays, and allowing employees to wear jewelry or religious clothing. The bill makes exceptions if the requested accommodations create an undue hardship on the employer. The law contains only one occupation-specific exception: public school teachers will be prohibited from wearing religious dress while at work.
The new Oregon law is modeled after federal regulations interpreting the Civil Rights Act of 1964, and guidance on those regulations will help Oregon employers comply with the new law. For an excellent guide on accommodating religious practices, check out this article on religious accommodation from HR Hero. And, expect more tattooed and pierced employees to request accommodations due to their membership in the Church of Body Modification.
