Jordan Ramis pc. Attorneys at law
Are Your Organization's Employment Policies Up to Date?
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Winter 2014

Oregon employers were confronted with a whirlwind of changes coming down from federal and state legislatures, courts, and administrative agencies in 2013. The bills and decisions of last year are now the law of the land, and many became effective on January 1, 2014, if not earlier.

Below are a few examples of major pieces of legislation and decisions from 2013. Employers who have not updated their employee handbooks and internal policies recently should do that now to ensure compliance with the new legal landscape.

Portland Sick Leave
The Portland City Council approved an ordinance requiring all private employers to provide up to 40 hours of protected sick leave per year to eligible employees who perform work within Portland city limits. Employers with six or more employees must provide the leave on a paid basis. The ordinance and administrative rules also regulate sick leave accrual, record-keeping, use, employee notices, and employer policies. BOLI, the enforcement agency, has the authority to inspect an employer's records to ensure compliance and to investigate allegations of noncompliance. Substantiated complaints may lead to civil penalties payable to both the City of Portland and to the employee directly in addition to all other remedies already available.

Employers with existing sick leave policies should carefully compare their practices to the mandates of the ordinance and administrative rules. Often they will find that substantive changes are required to achieve full compliance.

Oregon Domestic Violence Leave
Effective January 1, 2014, employers who employ six or more employees in Oregon must provide eligible employees with leave time to address matters of domestic violence, harassment, sexual assault, and stalking ("DVHSS"). Employees who are victims of DVHSS or who are parents or guardians of minor children who become victims of DVHSS are eligible to take protected leave time from their first day of employment. For private employers, DVHSS leave may be provided on an unpaid basis, but employees are entitled to use any accrued vacation or other paid leave to supplement their incomes. Public employers must provide up to 160 hours of DVHSS leave with pay per calendar year to employees who have exhausted all other forms of paid leave.

Oregon Bereavement Leave
Employers who are subject to OFLA must now provide up to two weeks of unpaid bereavement leave to OFLA-eligible employees. Bereavement leave must be completed within 60 days of the date on which the employee receives notice of the family member's death. In the unfortunate event of multiple deaths within the same year, the employee is entitled to take up to two weeks of bereavement leave for each family member until the employee's OFLA leave entitlement is exhausted.

Social Media Accounts
Effective January 1, 2014, employers may not require employees or applicants to disclose their personal social media account content. Employers may not require the disclosure of user names and passwords or compel employees and applicants to "friend," "link," or otherwise connect with the employer.

Affordable Care Act Regulations
The Affordable Care Act was passed in 2010, but the Act's implementing regulations have continued to expand in 2013 and beyond. The most recent rulemaking action occurred on February 10, 2014, in which the IRS adopted final rules regarding shared responsibility payments for employers. The final rule adopts, among other things, a new transition relief program for employers with 50-99 full-time employees. Employers should expect further rulemaking throughout 2014.

Employee Benefits and Payroll Tax Changes for Same-Sex Couples
In June 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor. That section defined marriage as being between a man and a woman for purposes of federal law. Since the Windsor decision, various federal agencies have adopted rules regarding which benefits will apply to same-sex couples who are or who become lawfully married. These rules impact every employer policy and practice that relates to an employee's marital status, including payroll taxes, leave administration, employee benefit plans, Portland sick leave, and the availability of health care subsidies under the Affordable Care Act.

NLRB Scrutiny
The National Labor Relations Board ("NLRB") carefully scrutinized a long list of employer handbook policies last year. Prime candidates for review included:
  • Employment at-will statements;
  • Public relations / media relations policies;
  • Confidentiality policies;
  • Mandatory arbitration agreements;
  • Nondisparagement policies;
  • Network and computer use policies;
  • Nonsolicitation policies;
  • Ethics and business conduct policies;
  • Dress code policies;
  • Social media policies; and
  • No-gossiping policies.
In most cases, the NLRB found the challenged policies to be unlawfully broad. In other words, the policy language could reasonably have been understood by employees to prohibit protected concerted activities. Remedies in those situations included cease and desist orders, reinstatement, and back pay for employees who were terminated for violating the policies.

This list of 2013 changes is not comprehensive, but it demonstrates the breadth and scope of compliance issues faced by Oregon employers in a very short time frame. Because the changes are now in effect, employers who have not updated their employment policies should consult with competent employment law counsel soon to ensure their compliance.