WHAT’S NEW IN EMPLOYMENT LAW William E. Gaar Jillian Pollock ATTORNEYS AT LAW RETALIATION IS THE LAWSUIT DE JURE If you have an employee with a protected status you have the potential for a retaliation lawsuit Most Common: Workers Compensation, ANY form of protected discrimination complaint, denial of available leave (OFLA/ADA/Workers Comp, Sick Pay, Domestic Violence) AVOID RETALIATION THROUGH PROGRESSIVE DISCIPLINE Progressive Discipline requires commitment to a process for managing employees Based on severity most employees will not be disciplined for initial poor performance Based on experience an employee’s poor performance is overlooked until management is forced to react Ignoring poor performance is the first ingredient in a Retaliation Lawsuit What is new in employment law for 2013 Where can the Retaliation Begin? The 2013 legislative session adjourned on July 8, 2013. There were more than 70 employment law related bills introduced this session. BEREAVEMENT LEAVE – WHO IS A COVERED EMPLOYER Oregon is the first state to require certain private sector employees to provide bereavement leave for their covered employees. 25 or more employees working in Oregon during each working day of 20 or more calendar work weeks in which leave will be taken, or in the preceding year. ELIGIBLE EMPLOYEE THINK OFLA The employee must have worked for a covered employer for a period of 180 calendar days immediately preceding the date that the requested leave begins; and The employee must have worked an average of 25 hours per week during the 180-day period. WHAT IS BEREAVEMENT LEAVE Effective January 1, 2014, eligible employees will be allowed up to 2 weeks of unpaid leave in a twelve month period to deal with the death of a “family member”. FAMILY MEMBER IS DEFINED AS 1) Employee’s Spouse; 2) Same-sex Domestic Partner; 3) Child; 4) Parent; 5) Parent-in-law; 6) Grandparent; or 7) Grandchild. The same definition applies to the relations of an employee’s same-sex domestic partner or spouse. BEREVEMENT LEAVE ENTITLES EMPLOYEE TO: A) Attend the funeral or alternative to a funeral for family members; B) Make arrangements necessitated by the death of the family member; and C) Grieve the death of a family member. Any leave taken must be completed within 60 days of the date on which the eligible employee receives notice of the death of a family member. Eligible Employees Are Allowed Two Weeks for Each Family Member Who Has Died If two family members die at the same time, a covered employee may not require the employee to take their 2 weeks’ leave concurrently. The employee may take 4 weeks of leave to deal with the deaths of the 2 separate family members. Proactive approach to Newly Available Leave Employers should review their handbooks and all policies to ensure compliance with the expansions of OFLA. Managing and supervising employees training on the requirements of bereavement leave. Emphasis on training that OFLA does not reduce the amount of leave to which an employee is entitled to under FMLA. Other Employment Law Related Bills that Passed During the 2013 Legislative Session SB 1: SB 678: HB 2111: HB 2654: Veterans Day Off For Veterans Protections for LLC Owners From Tort Liability For Workplace Injuries Updated Definition of “Disability Under Oregon Law Employer Social Media Protections Veteran’s Day Off for Veterans Effective April 4, 2013 Employers shall provide their “Veteran” employees with paid or unpaid time off for Veterans Day if: (a) The employee would otherwise be required to work on that day; and (b) The employee provides the employer with: (A) At least 21 calendar days' notice that the employee intends to take time off for Veterans Day; and (B) Documents showing that the employee is a veteran as defined in ORS 408.225. WHO IS A VETERAN? Generally a Veteran is an employee who has been honorably discharged and has: Served 178 consecutive or more days; Served 178 days or less and was released due to a service related disability; Served 1 day in a combat zone. Protections for LLC Owners From Tort Liability For Workplace Injuries Oregon legislature overruled a tortured Court of Appeals opinion that allowed an employee to sue his employer if the employer was a member-managed LLC when injured on the job instead of requiring the employee’s exclusive remedy to be the workers’ compensation system. Now – Regardless of your entity formation, LLC’s that are member managed fall within the exclusive protection provisions afforded by Oregon’s workers’ compensation laws. HB 2111: Update Definition of “Disability” Under Oregon Law – Covers Employers with Six or more Employees HB 2111 revises standard for determination of whether individual is substantially limited in major life activity. Effective January 1, 2014, ORS 659A.104 is amended to read: 659A.104. (1) An individual has a disability for the purposes of ORS 659A.103 to 659A.145 if the individual meets any one of the following criteria: (a) The individual has a physical or mental impairment that substantially limits one or more major life activities of the individual. (b) The individual has a record of having a physical or mental impairment that substantially limits one or more major life activities of the individual. For the purposes of this paragraph, an individual has a record of having a physical or mental impairment if the individual has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities of the individual. (2) Activities and functions that are considered major life activities for the purpose of determining if an individual has a disability include but are not limited to: (a) Caring for oneself; (b) Performing manual tasks; (c) Seeing; (d) Hearing; (e) Eating; (f) Sleeping; CRITICAL ASPECT OF DISABILITY DEFINITION IS ITS TEMPORARY NATURE Employees are not protected if they have “minor” disability lasting less than six months – Minor is not defined but examples are headaches, minor illness, minor temporary sickness. Is a broken arm a disability? Is a back injury that is intermittent over time? Is a reconstructed knee a disability? HB 2654: Employer Social Media Protections HB 2654 prohibits an employer from requiring or requesting employee or applicant for employment to provide access to personal social media account, to add employer to social media account contact list or to allow employer to view employee’s or applicant’s personal social media account. Effective January 1, 2014, ORS chapter 659A Employers may access information that is available to the Public through an on-line account. Proactive Measures – Social Media Policy that satisfies the NLRB guidelines and does not violate the new Social Media law. Portland Sick Leave Ordinance – Effective January 1, 2014 All Employers with employees working at least 240 hours in any calendar year in Portland must provide sick leave. Employers who employ six or more employees working in Portland must provide up to 40 hours of sick leave in a given year. Employers with less than six employees working in Portland must provide the employee to take up to 40 hours of UNPAID sick leave. Coverage includes telecommuting employees as well as those who complete work in Portland even if not based in Portland The ordinance includes a clause prohibiting employers from discriminating or retaliating against employees who request, use, or complain that they are not receiving sick leave. A similar state-wide bill is currently being considered by the Oregon legislature, but has yet to be passed. See more at: http://www.ogletreedeakins.com/publications/2013-03-13/portland-paidsick-leave-ordinance-passes#sthash.yKodos6A.dpuf RATE OF LEAVE ACCUMULATION 1 hour for every 30 hours performed by employee Six or more: leave is paid Six or less: leave is unpaid MAXIMUM ACCRUAL OF SICK TIME Unless the Employer allows more, Employees may accrue and carry over a maximum of up to 40 hours of sick time in a calendar year. Specific rules apply to use of paid unpaid leave if Employer fluctuates in size. Modify paid time off policies to avoid leave liability BUCKLEY LAW THANKS YOU FOR YOUR TIME QUESTIONS?