1/21/25 DOL Opinion Letter: Use of Employer-Provided Paid Leave When Employee’s Leave Qualifies Under Both FMLA and State Paid Leave Program

January 21, 2025

By Amy Angel & Missy Oakley

Last week, the U.S. Department of Labor (“DOL”) issued an Opinion Letter (“Opinion Letter”) regarding the application of the Family and Medical Leave Act of 1993 (“FMLA”) rule regarding substitution of employer-provided paid leave when an employee takes FMLA leave that also qualifies as leave under a state or local paid family or medical leave program.

Designation of Leave Covered by Both FMLA and State Paid Leave Program

First, the Opinion Letter states that, if an employee takes leave under a state or local paid leave program and that leave also qualifies as FMLA leave, the leave must be designated as FMLA leave by the employer and counted against the employee’s FMLA leave entitlement. This is the same rule that applies when an employee takes leave under a paid disability leave plan or workers’ compensation program and that leave also qualifies as FMLA leave.

The FMLA Substitution Rule

FMLA generally provides that an eligible employee may elect, or an employer may require the employee, to substitute any of their accrued paid vacation leave, personal leave, or family leave of the employee for the unpaid FMLA entitlement period. This is known as the FMLA Substitution Rule. However, the Opinion Letter states that, when an employee takes leave under a state or local paid leave program that also qualifies as FMLA leave, neither the employer nor the employee may use the FMLA Substitution Rule to unilaterally require the concurrent use of employer-provided paid leave during the portion of leave that is covered by the state or local paid leave program. However, employers and employees may mutually agree, where state law permits, to have employer-provided paid leave supplement the state or local paid leave program payment.

Again, these are the same rules that apply when an employee takes leave under a paid disability leave plan or workers’ compensation program and that leave also qualifies as FMLA leave. For example, when an employee only receives partial income replacement under a workers’ compensation program, the employer and employee may agree that the employee can use their employer-provided paid leave to supplement their workers’ compensation payment.

Paid Leave Oregon

Under Paid Leave Oregon (“PLO”), an employee may use employer-provided paid leave to supplement their PLO benefits up to 100% of the employee’s regular pay. Additionally, an employer may permit an employee to use employer-provided paid leave in addition to PLO benefits such that the amount exceeds 100% of the employee’s regular pay.

This means that, to the extent an employee takes leave that qualifies under both PLO and FMLA, mutual agreement between the employer and employee is not required as Oregon law allows an employee to use employer-provided paid leave to supplement their PLO benefits up to 100% of their regular pay.

Washington Paid Family & Medical Leave

When an employee takes leave that qualifies under both Washington Paid Family & Medical Leave (“PFML”) and FMLA, an employee may receive “supplemental benefit payments” in addition to their PFML benefits. Supplemental benefit payments are payments made by an employer to an employee as salary continuation or as paid time off (“PTO”)—including vacation leave, personal leave, medical leave, sick leave, compensatory leave, or any other paid leave offered by an employer under the employer’s established policy.

Supplemental benefit payments are intended to make up the difference between an employee’s regular pay and their PFML payment, but employers can offer their employees a supplemental benefit that exceeds their regular pay. While an employer gets to decide whether to offer supplemental benefits, the employee decides whether to accept them.

However, if an employee receives wages or PTO while they are receiving PFML benefits, and the wages or PTO are not designated as a “supplemental benefit payment,” the employee is obligated to report the wages or PTO on their weekly claim, which will reduce their PFML benefit amount. Thus, it is important that employers make clear to employees whether such payments are a supplemental benefit.

For questions about the FMLA, Paid Leave Oregon, or for any other leave inquiries, contact Amy Angel at 503-276-2195 or aangel@barran.com, or Missy Oakley at 503-276-2122 or moakley@barran.com.

1/13/25 Ninth Circuit Upholds Oregon’s Conversational Privacy Statute – Notice Required to Record In-Person Conversations

January 13, 2025

By Andrew Schpak & Missy Oakley

Last week, the Ninth Circuit Court of Appeals upheld Oregon’s conversational privacy statute en banc after it was previously thrown out by a divided three-judge panel. The statute at issue requires notice be given before an oral conversation may be recorded.

The lawsuit was brought by Project Veritas, a nonprofit media organization that engages in undercover journalism. Oregon’s statute prevented Project Veritas from conducting undercover investigations in Oregon (that involved recording in-person conversations without the interviewee’s knowledge). The Ninth Circuit held that Oregon’s statute is content-neutral and passes First Amendment scrutiny despite the three-judge panel having narrowly decided that the statute was unconstitutional.

In-Person v. Telephone Conversations

Oregon’s conversational privacy statute – ORS § 165.540 – contains several provisions. Project Veritas only challenged the constitutionality of Section (1)(c) that applies to in-person conversations. This provision requires all participants be informed that their conversation is being recorded.

There is a separate provision in the statute that applies to telephone and radio communications to which the person is not a participant. For these communications, the statute requires at least one participant to consent to the recording. ORS § 165.540(1)(a). (If one party to a telephone conversation is recording it, that is deemed sufficient regardless of whether the other parties to the conversation are aware that it is being recorded.)

It is important to note that Oregon’s statute contains several exclusions. Many of these relate to law enforcement but not all. For example, there is an exclusion for in-person conversations if the person uses an unconcealed recording device or if the communications occur through a video conferencing program. ORS § 165.540(6)(a).

Audio v. Video Recording

Oregon’s statute only prohibits audio recordings of oral conversations. This includes any audio-only recording or the audio portion of any audiovisual (or video) recording. The statute does not address video-only recordings. In Oregon, video-only surveillance is permitted in the workplace in areas where employees should not have an expectation of privacy. The best way for an employer to effectively communicate and demonstrate a lack of expectation of privacy in a specific workspace is through a combination of written policy language, training, and signage.

What Does This Mean for Employers?

Oregon’s conversational privacy statute remains in effect for the time being, meaning that notice must be given before oral conversations can be recorded in-person. This rule will likely change once again if the United States Supreme Court decides to hear the appeal. However, for now, this case serves as a reminder for Oregon employers of their obligations regarding audio recordings in the workplace and an opportunity to review current practices regarding video and audio monitoring or recording of company property and its surroundings.

For any questions, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com or Missy Oakley at 503-276-2122 or moakley@barran.com.

1/8/25 Agricultural Overtime Threshold Decreasing in the New Year

January 8, 2025

By Hannah LaChance & Lex Shvartsmann

Among the flurry of legal changes that took effect January 1, 2025, employers should be aware of an updated overtime threshold for agriculture workers that was included in these changes.

Currently, most workers in agriculture receive overtime pay when they work more than 55 hours per week. Beginning January 1, 2025, HB 4002 (2022) became effective, reducing the number of hours an agricultural worker must work in order to be eligible for overtime pay to 48 hours in a workweek. Accordingly, agricultural workers must be paid one and one-half times their regular rate of pay for all time worked in excess of 48 hours a week beginning on January 1, 2025. Although there are a few exemptions to this rule, they are very limited and likely to be closely scrutinized by BOLI. Accordingly, employers should take care in their application and may wish to consult with counsel prior to engaging exemptions to the rule.

Beginning in 2027, agricultural workers will be subject to the same overtime threshold as non-agricultural employees.

As a reminder, the Fair Labor Standards Act requires that employers pay their employees at least minimum wage for all hours worked and one and one-half times an employee’s regular rate for time worked in excess of 40 hours in a workweek.

For questions on overtime pay other employment matters contact Hannah LaChance at 503-276-2112 or hlachance@barran.com.

1/7/25 Wage Garnishments Have Changed

January 7, 2025

By Hannah LaChance & Lex Shvartsmann

On January 1st, 2025, numerous changes were implemented affecting employers. Among those changes was an update to the amount of wages protected from garnishments under SB 1595 (2024).

When calculating a payment pursuant to a writ of garnishment, employers must exempt from garnishment the greater of 75% of the employee’s disposable earnings or a minimum exemption set by law. Currently, the minimum exemption is $254 when the payment covers a period of one week or less, and for any pay period longer than one week the exemption is calculated by multiplying $254 by the number of days for which the earnings are paid, divided by seven.

SB 1595 sets a new, increased minimum exemption rate and establishes a method for re-calculating this number in future years.

From January 1, 2025 to July 1, 2025, the following minimum exemption amounts will apply:

• Where the pay period is 1 week: $305

• Where the pay period is 2 weeks: $611

• Where the pay period is a half-month: $655

• For any period longer than 1 week: $305 multiplied by the number of days for which the earnings are paid divided by seven and rounded to the nearest dollar.

The minimum exemption will again be adjusted on July 1st of each coming year, eventually reaching the minimum wage then in effect multiplied by 30 in 2027 and beyond.

For questions regarding wage garnishment or other employment matters, contact Hannah LaChance at 503-276-2112 or hlachance@barran.com.

1/3/25 Oregon Executive Order 24-31 Establishes Project Labor Agreement Requirement for State Construction Projects

January 3, 2025

By: Nicole Elgin & Lex Shvartsmann

On December 18, 2024, Oregon Governor Tina Kotek signed Executive Order 24-31 (EO 24-31), implementing a requirement that project labor agreements be established on certain construction projects funded by the state.

What is a Project Labor Agreement?

A project labor agreement (PLA) is a type of collective bargaining agreement that sets forth the terms and conditions of employment for a construction project. Unlike traditional collective bargaining agreements, PLAs are typically established pre-hire and set the terms and conditions only for a specific construction project. Pre-hire agreements have unique rules under Section 8(f) of the National Labor Relations Act.

What projects does EO 24-31 apply to?

Under EO 24-31, “every contractor and/or subcontractor engaged in the construction of the project” is required to negotiate or become a party to a PLA where:

• The project is funded by a state agency, directly or indirectly;

• The project is a construction project, including reconstruction or major renovation projects; and

• Onsite labor costs account for at least 15% of the total project costs.

Categorically exempt from EO 24-31 are projects that:

• Constitute necessary emergency construction work, minor alterations, repairs, or maintenance necessary to preserve a public improvement; or

• Are of a short duration, lack operational complexity, or involve only one craft or trade.

PLA Specifications Under EO 24-31

PLAs pursuant to EO 24-31 must include the following:

• Guarantees against strikes, lockouts, and similar job disruptions;

• Effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement; and

• Mechanisms for labor-management cooperation on matters of mutual interest and concern, such as productivity, quality of work, and safety and health.

Additionally, PLAs must comply with all applicable state and federal laws and may not exclude open-shop or local firms.

For questions regarding EO 24-31, project labor agreements, or other labor matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

12/20/24 The New Year Brings New Changes to Paid Leave Oregon and OFLA

December 20, 2024

By Ashley Korkeakoski-Sears & Lex Shvartsmann

Effective January 1, 2025, eligible employees will be able to claim Paid Leave Oregon (PLO) benefits to facilitate the legal processes related to placement of a foster child or adoption of a child. Other PLO benefits available during a benefit year are not expanded by this addition.

Currently, the Oregon Family Leave Act (OFLA) provides an additional two weeks of unpaid leave for this purpose pursuant to a temporary amendment that expires on December 31, 2024. Accordingly, as of January 1, 2025, leave to facilitate the legal processes related to placement of a foster child or adoption of a child will no longer be an OFLA qualifying event. Employees seeking leave for this purpose will be able to do so through Paid Leave Oregon only. 

This update to PLO and OFLA adds onto the recent changes that went into effect on July 1, 2024. For information regarding the changes to PLO and OFLA that became effective July 1, 2024, see our February 28 E-Alert.

As we head into the new year, employers should review their employee handbooks to ensure they are updated with the changes to PLO and OFLA that went into effect this year.

For questions regarding the Oregon Family Leave Act or Paid Leave Oregon or any other employment matters, contact Ashley Korkeakoski-Sears at 503-276-2132 or asears@barran.com.

12/19/24 New Protections for Warehouse Distribution Centers Effective January 1, 2025

By Ashley Korkeakoski-Sears & Lex Shvartsmann

Effective January 1, 2025, Oregon House Bill (HB) 4127 (2024) will implement new protections for employees working at covered warehouse distribution centers by requiring employers to provide each employee with written documentation summarizing quotas the employee is expected to meet.

Important Definitions:

• Covered “warehouse distribution centers” include centers engaged in services relating to (1) warehousing and storage, (2) merchant wholesale of durable or nondurable goods, or (3) retailing using electronic shopping and mail-order houses.

• “Quota” is defined as “a work standard under which an employee is assigned or required to perform at a specified productivity or speed, perform a quantified number of tasks or handle or produce a quantified number of materials, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”

New Requirements

Under the new standard, employers will need to provide employees with written documentation about quotas that apply to them. That documentation should include:

• The number of tasks to be performed or materials to be produced or handled within a defined time period, and

• A description of potential consequences which may result from the employee’s failure to meet the defined quota.

For new employees, employers should provide this documentation at the time of hire. For current employees, employers should provide this documentation on January 1, 2025, within two days of changing an employee’s applicable quota, and whenever an employee is subject to an adverse employment action for failing to meet their applicable quota.

Takeaways

Beginning January 1, 2025, employers affected by HB 4127 should provide the documentation described above to each current employee and incoming new hires. Employers should refrain from taking an adverse employment action against an employee for failing to meet a quota unless the employee has received this documentation.

For questions relating to HB 4127 involving quotas in warehouse distribution centers or other employment matters, contact Ashley Korkeakoski-Sears at 503-276-2132 or asears@barran.com.

12/3/24 NLRB Overrules Standard Regarding Lawful Predictions of the Effects of Unionization

By Nicole Elgin & Lex Shvartsmann

On November 8, 2024, the National Labor Relations Board (NLRB) issued Siren Retail Corp d/b/a Starbucks, overruling a 40-year-old precedent regarding what employers can lawfully communicate to employees on predictions about the impact of unionization.

Previous Standard

Under the NLRB’s decision in Tri-Cast, Inc. (1985), employers could lawfully make statements about the impact of unionization on the relationship between employers and employees. For the past 40 years, this standard has held that employers may lawfully explain to employees that their relationship may change when employees select a union to represent themselves.

New Standard

Under Siren Retail Corp. d/b/a Starbucks, the standard for what employer statements qualify as lawful is significantly different. Instead of being deemed categorically lawful, an employer’s statements about the impacts of unionization on the employer-employee relationship will now be assessed on a case-by-case basis, guided by the pre-existing standard set forth by the U.S. Supreme Court in NLRB v. Gissel Packing Co, Inc. (1969). Under this standard, an employer’s communications must be either grounded in objective fact or predict negative consequences that would result from the employer’s own actions. Predictions which are not grounded in one of those two bases will be perceived by the NLRB as an unlawful “threat of retaliation based on misrepresentation and coercion.”

For example, an employer’s broad prediction that unionization will “necessarily foreclose employees’ ability to address issues individually with their employer” would not be lawful. In contrast, an employer may lawfully state that “the relationship that existed between the employees and the employer will not be as before.”

Impact on Employers

The new standard set forth in Siren Retail Corp. will apply only prospectively. Moving forward, employers should exercise a heightened level of caution when making statements or predictions about the potential effects of unionization on the employer-employee relationship.

For any questions regarding unfair labor practice claims, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

12/2/24 Five Employee Benefits Steps to Take Today Before the End of the Year

By Jeff Robertson  &  Iris Tilley

A few steps of prevention and foresight planning can save your organization time and money into 2025.  We offer five steps to think about as 2024 closes and 2025 begins.

1. Update 401(k) Plan Documents and Payroll Procedures for Secure 2.0

There are many provisions coming into effect related to Secure 2.0.  Employers must make sure their plan documents contain the proper Required Minimum Distribution ages and procedures; consider updating Hardship provisions; and prepare for Roth designation of high wage earner catch-ups (which takes effect in 2026).  Payroll policies and procedures must be prepared for the beginning of “Long Term Part Time” employees as eligible employees. 

2. Mental Health Parity in Health Plan Documents

This fall several departments worked together to issue final regulations relating to Mental Health Parity.  The final regulations focus on Non-Quantitative Treatment Limitations (“NQTL”) and link medical and surgical benefit offerings with mental health benefits.  It is important to review both your plan documents and active procedures to ensure mental health parity compliance in 2025.

3. Take Advantage of Non-Qualified Deferred Compensation Opportunities

Many non-qualified deferred compensation benefits must be adopted prior to December 31, and some prior to December 1, in order to qualify for tax favored benefits relating to non-qualified deferred compensation.

4. Update Plan Documents for Cybersecurity and Fiduciary Best Practices

With the Supreme Court’s recent decision overturning the Chevron deference and the continued assault on Plan assets from cybersecurity threats, it is critical to update Plan Documents for both retirement and health plans to ensure the deference enjoyed by Fiduciary decisions will survive the Chevron decision.  In addition, Plan Documents and Summary Plan Descriptions should be updated for cybersecurity responsibility and procedures.  All employers should maintain an annual record of a formal review of vendor cybersecurity policies.  It is also important to review and understand third-party service agreements that may have been entered into several years ago and not updated for changes in the law.

5. Review your Plan Offerings for Current Marketplace

We often find employers have entered into a relationship with their retirement and/or health plan offerings based on what might have been in the market five or ten years prior and have not reviewed new opportunities over several years.  With the pandemic and current economic conditions, it is easy to find that 5-10 years have passed since clients reviewed service providers and opportunities with the plan.  We encourage clients to ask themselves, “What if I was going to market now - would I recommend the same technology, price, and

benefits?” Regular review is a key fiduciary concept.  

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

11/20/24: National Labor Relations Board Rules Captive-Audience Meetings Unlawful

By Nicole Elgin  &  Lex Shvartsmann

On November 13, 2024, the National Labor Relations Board (NLRB) issued a decision in Amazon.com Services LLC (2024), overruling its prior precedent in Babcock & Wilcox Co. (1948) and holding that an employer violates the National Labor Relations Act (NLRA) when it convenes “captive-audience meetings.”

What is a Captive-Audience Meeting?

A “captive-audience meeting” refers to a mandated meeting in which an employer expresses its views on potential unionization. Under Babcock & Wilcox Co., such meetings were affirmatively protected under free speech principles and were not considered to be in violation of the NLRA, so long as they did not occur within 24 hours of a representation election. 

The New Standard

Under Amazon.com Services LLC, captive-audience meetings will no longer be considered lawful. The NLRB supported its ruling through an analysis indicating that such meetings “override[] employees’ right to freely be informed about unionization – or not.” The NLRB held that such meetings provide an unlawful mechanism for an employer to observe and surveil employees as it addresses the exercise of their rights.

A Note for Oregon and Washington Employers

Although the Amazon.com ruling applies only prospectively, both Oregon and Washington have longstanding laws in place that prohibit employers from taking adverse action against employees who refuse to attend or participate in captive-audience meetings. 

Can I Still Hold Meetings About Unionization Efforts?

Yes, the NLRB specifically states in its Amazon.com decision that its ruling does not “broadly prohibit employers from holding workplace meetings with their employees to express their lawful views on unionization in a noncoercive manner.” However, employers must be careful to balance their First Amendment right to persuade with their employees’ right to make their own decisions regarding unionization. 

In order to ensure employers understand how to strike that balance, the NLRB in Amazon.com provided a list of assurances required to hold a lawful meeting. An employer will not be found to have violated the NLRA if, “reasonably in advance of the meeting, it informs employees that:

1. The employer intends to express its views on unionization at a meeting at which attendance is voluntary;

2. Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and

3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.”

An employer must provide and see through the following assurances to ensure the lawfulness of their meeting. With an upcoming change in administration, labor practitioners expect this recent ruling will not be prosecuted under a new NLRB General Counsel and that the Board may return to Babcock & Wilcox Co. However, until then, employers should be mindful of this recent change.

 For any questions regarding unfair labor practices or your role as an employer in the unionization process, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

11/18/24: Judge Vacates DOL Overtime Rule That Went into Effect in July

Missy Oakley & Nicole Elgin

Earlier this year, the U.S. Department of Labor (“DOL”) announced the Final Rule: Restoring and Extending Overtime Protections (“Final Rule”). The Final Rule increased the salary threshold for the bona fide executive, administrative, and professional exemptions (“white-collar exemptions”) and the total annual compensation threshold for the highly compensated employee (“HCE”) exemption. We outlined the requirements of the Final Rule in a prior E-Alert, which you can find here.

The first set of salary increases went into effect on July 1, 2024, and the next set were scheduled to go into effect on January 1, 2025. However, on Friday, November 15, 2024, a federal judge in Texas vacated the Final Rule, finding that it exceeded the DOL’s authority. The judge’s decision blocks application of the Final Rule nationwide.

It is unclear whether the DOL will appeal the court’s ruling. Employers can anticipate other changes from federal employment agencies with the incoming change in administration. We will continue to monitor developments related to the Final Rule; however, for now, employers are relieved of its requirements. This means that the salary threshold for the white-collar exemptions is back to $684 per week ($35,568 per year), and the total annual compensation threshold for the HCE exemption is back to $107,432.

For questions about wage and hour requirements, contact Missy Oakley at 503-276-2122 or moakley@barran.com, or Nicole Elgin at 503-276-2109 or nelgin@barran.com.

10/28/24: Learning from Hurricane Helene: What Not to Do in the Face of Inclement Weather

By: Amy Angel & Lex Shvartsmann

In the aftermath of Hurricane Helene, one employer’s apparent failure to have and adhere to a common sense inclement weather policy has underscored why having such a policy is so important. Impact Plastics, a Tennessee employer, reportedly required its employees to remain on-site as the conditions of Hurricane Helene continued to worsen, and five employees died in the floodwaters. Impact Plastics now faces a $25-million wrongful death suit and is being investigated by the Tennessee Bureau of Investigation and the Tennessee Occupational Safety and Health Administration.

Although Pacific Northwest weather rarely reaches extremes comparable to Hurricane Helene, this tragic story serves as a reminder to employers that the costs of failing to prepare and implement an adequate inclement weather policy are too high to ignore. Now is the best time to set in motion proper policies for inclement weather to avoid the chaos and potentially deadly costs of impromptu decision-making.

Here are some considerations to keep in mind when crafting your policies and preparing your business for inclement weather:

• Be clear on how and when employees will be notified in the event you decide to close due to inclement weather.

• Consider allowing employees to decide for themselves whether it is safe to report to work based on the conditions in their immediate area.

• Make clear to your employees the expectations in place in the event they are unable to report to work or need to work remotely.

• Ensure employees are aware of whether they will be paid for missed time or if they must use accrued paid time off.

• Ensure that your practices for paying exempt employees during these periods are in compliance with applicable state and federal laws.

Employers should prioritize the health and safety of their employees in all circumstances. This includes creating and maintaining an emergency safety plan, as well as ensuring that employees are sufficiently educated to carry out that plan in the case of an emergency.

For more advice on compliance and best practices in the face of inclement weather, check out our previous E-Alert on storm-proofing your inclement weather policy here.

For questions relating to inclement weather policies and how to pay employees during inclement weather or other emergency closures, contact Amy Angel at 503-276-2195 or aangel@barran.com.

10/23/24: Reminders for Implementing the Pregnant Workers Fairness Act

By: Amy Angel & Lex Shvartsmann

This is your friendly reminder to consider the Pregnant Workers Fairness Act (PWFA) before denying accommodations (including leave) to an employee who is pregnant or has recently given birth.

On June 27, 2023, the federal Pregnant Workers Fairness Act (PWFA) went into effect, providing additional protections for workers experiencing known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The Equal Employment Opportunity Commission’s (EEOC) final regulation to carry out the law went into effect on June 18, 2024. More information on the PWFA is available in our prior E-Alerts: PWFA Now in Effect and EEOC Final Rule on PWFA.

As employers continue to familiarize themselves with the Act and begin to come across PWFA accommodation requests, here are a few reminders to consider:

Consider the PWFA in Addition to PLO/OFLA/FMLA Leave

The PWFA itself does not contain a leave allowance for eligible employees. However, the EEOC’s guidance has indicated that time off for pregnancy, childbirth, and related medical conditions is considered a reasonable accommodation under the Act. Accordingly, employers should remember to consider leave under PWFA as an option when an employee either is not covered by the Oregon Family Leave Act (OFLA) or the federal Family and Medical Leave Act (FMLA) or who has exhausted their leave under OFLA/FMLA and Paid Leave Oregon (PLO).

Here are some examples of scenarios where an employee may be entitled to leave under the PWFA:

• An employee who works for a small employer with between 15 and 24 employees will not be covered by OFLA or FMLA. If the employee exhausts their 14 weeks of Paid Leave Oregon benefits before giving birth due a pregnancy disability, the employee will not have any protected leave available for parental leave but may still be entitled to additional pregnancy disability leave following the birth under the PWFA.

• An employee who has a difficult pregnancy may exhaust 12 weeks of leave under FMLA and OFLA’s pregnancy disability rules and then exhaust their 14 weeks of Paid Leave Oregon benefits. Should the employee have an ongoing need for leave if they are still recovering from childbirth, the employee may be entitled to additional unpaid leave under the PWFA.

• An employee who suffers a miscarriage or a stillbirth and is still recovering (mentally or physically) after exhausting their other leave entitlements may be afforded additional time off under the PFWA.

PWFA Only Affords Accommodations Relating to the Limitations of the Employee

Although the PWFA requires an employer to provide reasonable accommodations for an employee who has a known limitation related to, affected by, or arising out of pregnancy or related medical conditions, the EEOC has made clear that only those medical conditions “relating to the pregnancy or childbirth of the specific employee in question” are protected. Therefore, employees seeking PWFA accommodation due to their newborn’s condition—and not their own condition—are not entitled to accommodation unless they are eligible for leave under OFLA, FMLA, or Paid Leave Oregon. For example, an employee who is seeking additional time off because their infant is refusing to bottle feed will not be entitled to an accommodation under the PWFA but may be eligible for OFLA sick child leave. However, an employee experiencing their own condition that makes pumping difficult may still be entitled to an accommodation under the PWFA.

Employers should ensure that supervisors, managers, and HR staff maintain an understanding of these nuances to ensure compliance with the PWFA.

For questions about the Pregnant Workers Fairness Act or for any other workplace compliance matters, contact Amy Angel at 503-276-2195 or aangel@barran.com.

10/14/24: Washington Labor and Industries Announces Minimum Wage for 2025

By Nicole Elgin & Hannah LaChance

Washington State Department of Labor & Industries announced an increase to the state minimum wage that will take effect January 1, 2025. The increase also impacts the overtime exempt threshold for both small and large employers.

The Washington state minimum wage, which applies to workers aged 16 and older, will increase from $16.28 per hour to $16.66 per hour. For workers ages 14 and 15, the state minimum wage will increase from $13.84 per hour to $14.16 per hour. Remember that Seattle, SeaTac, Tukwila, Renton, and Bellingham have established their own local minimum wages that may apply to employees working in those areas. Burien will have its own minimum wage in 2025.

The increase to the state minimum wages will impact the minimum salary required for employees to be classified as exempt from overtime. The requirements differ based on status as a small employer (50 employees or less) versus a large employer (51 or more employees). For small employers to classify a worker as exempt, the employer must pay the worker at least double the minimum wage ($1,332.80/week or $69,305.60/year). Larger employers will have to pay workers 2.25 times the minimum wage to classify them as exempt ($1,499.40/week or $77,968.80/year). Different rules apply for a variety of job classifications including rules for exempt computer professionals and rideshare drivers.

The Washington wage threshold required for noncompetition agreements in 2025 will be $123,394.17. This is coupled with other significant state and federal restrictions when a noncompetition agreement can be presented to an employee.

Employers will want to plan to provide notice to employees and make any classification or payroll changes prior to January 1st, 2025, in order to ensure compliance with state and local laws.

For any questions about wage compliance or takeaways for your workplace’s specific labor relation needs, contact Hannah LaChance at hlachance@barran.com or Nicole Elgin at nelgin@barran.com.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

10/8/24: NLRB Decision Ends Longstanding Precedent of Approving Employer Proposed Consent Orders

By Nicole Elgin and Lex Shvartsmann

On August 22, 2024, the National Labor Relations Board (“NLRB” or “the Board”) issued a decision overruling the prior standard for approving consent orders and holding that the Board will no longer approve of consent orders for resolving unfair labor practice charges.

What are Consent Orders?

A consent order is a type of settlement agreement where a party against whom an unfair labor practice (ULP) charge has been filed may propose a resolution to be approved by the Board without agreement from the charging party or the General Counsel.

Previous Standard for Approving Consent Orders

The use of consent orders to resolve ULP charges was established in 1971, when the Board first approved its use in Local 201, Int’l Union of Elec., Radio & Mach. Workers, 188 NLRB 855 (1971). In the following years, some back and forth on the propriety of the standard for evaluating consent orders ensued. In 2017, the NLRB issued UPMC, 365 NLRB 152 (2017), re-establishing the “reasonableness” standard for evaluating consent orders.

The New Standard: Metro Health, Inc.

The holding in Metro Health, Inc., 373 NLRB 89 (2024) establishes that the Board will “entirely end the practice of approving consent orders.” In reaching this conclusion, the Board cites to the lack of support for consent orders in the Board’s Rules and Regulations, stating consent orders “fail[] to effectuate the policies of the Act.” Further, the Board held that consent orders create an “administrative burden” and “interfere with the General Counsel’s statutory prosecutorial authority.”

What This Means for Employers

Moving forward, employers will not be able to resolve unfair labor practice charges with consent orders. Although the Board in Metro Health, Inc. clarified that “true” mutual settlements are still an available pathway for resolving ULP claims, there is an increased likelihood of litigation for these charges.

For any questions regarding unfair labor practice claims, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

9/16/24: Washington L&I Releases Draft Rules on Amendment to Equal Pay and Opportunities Act

September 16, 2024

By Nicole Elgin & Hannah LaChance

The Washington State Department of Labor & Industries (L&I) published a draft of its administrative rules on Washington’s Equal Pay and Opportunities Act (EPOA) and is accepting comments on the draft until September 27th, 2024. The administrative rules were drafted in light of SB 1905, which amended the EPOA to protect against pay discrimination based not only on gender, but also discrimination based on status as a member of a protected class.

According to SB 1905 and the draft administrative rules, “protected class” means “a person’s age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability…” The proposed administrative rules protect not only membership in a protected class but also perceived membership in a protected class.

While the current rules are only in draft form, Washington employers should keep an eye out for the final rules and prepare to make any necessary changes to their policies. Employers can also submit comments during this rulemaking period or attend stakeholder meetings with the Department of Labor & Industries.

For any questions about pay equity laws or takeaways for your workplace’s specific labor relations needs, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

8/29/24: NLRB Regional Director Pursuing Charge That Amazon Is a Joint Employer with Its Contractor for Delivery Drivers

August 29, 2024

By Nicole Elgin & Hannah LaChance

The Regional Director of Region 31 of the National Labor Relations Board is pursuing a charge against Amazon that claims the company is a joint employer with Battle Tested Strategies (BTS), a contractor that Amazon uses to provide delivery drivers. The issue is whether employees of BTS are also employees of Amazon – i.e., whether the companies are joint employers. If Amazon is a joint employer with BTS, Amazon has labor law obligations to follow when dealing with BTS employees.

The original unfair labor practice charge in Case No. 31-CA-319781 was filed in June 2023. An amended charge was filed on August 7 and August 21, 2024. The International Brotherhood of Teamsters allege that BTS and Amazon failed to bargain in good faith over the impacts to BTS delivery drivers when Amazon did not renew its contract for BTS’s delivery services. Procedurally, a complaint is likely to issue against the alleged joint employers soon and the parties will head to a hearing before an Administrative Law Judge.

The issue of whether an entity is a joint employer with a contractor has been subject to contentious legal debate and litigation throughout the history of labor and employment law. This case serves as a reminder to employers working with contractors that they should analyze their relationship with the contractor in order to ensure compliance with relevant labor and employment laws.

For any questions about joint employment relationships or takeaways for your workplace’s specific labor relations needs, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

8/26/24: Federal Judge Sets Aside the FTC’s Recent Non-Compete Ban

August 9, 2024

By Nicole Elgin & Hannah LaChance

On August 20, 2024, Federal District Court Judge Ada Brown in the Northern District of Texas blocked enforcement of the Federal Trade Commission's (FTC) non-compete rule. In April, the FTC issued a rule banning most employers across the United States from enforcing non-competition provisions as a term or condition of employment and largely voiding existing non-competition clauses. The rule was expected to take effect in September. More information on the rule is available from our prior E-Alert.

The court that blocked the rule held that while the FTC has limited authority to create rules that restrict unfair competition, the FTC does not have the right to create substantive rules through the methods that it used to enact the non-compete ban. In essence, the federal judge stated that the FTC over-reached its power when it issued the non-compete ban, and that the ban is therefore invalid. 

The FTC may try to appeal the decision, but will now be unable to enforce the rule on a broad scale, though the agency claims that it can pursue case-by-case actions to restrict the use of non-competition agreements. Non-competition agreements are still increasingly difficult for employers to maintain given recent developments from the National Labor Relations Board and state law restrictions, like in Oregon and Washington. 

For questions regarding non-competition agreements, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

8/9/24: Employers: Stop Signing Personnel Document Certifications Under Penalty of Perjury

August 9, 2024

By Chris Morgan & Lex Shvartsmann

Under ORS 652.750, an employer is required to furnish a “certified” copy of an employee’s personnel records within 45 days of the employee’s request. The statute does not expressly specify what is considered a “certified copy.”

An increasing number of employees and their counsel are including forms in their requests which seek an employer’s signed affirmation “under oath” that the personnel documents being produced are accurate and complete. Although employers should attest that the records being produced are accurate and complete to the best of their current knowledge, employers should not sign anything under oath or subject to penalty or perjury. The statute does not require it, and employers should avoid it.  

For questions regarding responses to employee personnel file requests, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

8/8/24: $35.8M Judgment Reminds Employers to Ensure Compliance with FLSA Compensation Requirements

August 8, 2024

By Nicole Elgin & Lex Shvartsmann

In a July 22, 2024 judgment in the U.S. District Court for the Western District of Pennsylvania, 6,000 workers of residential skilled nursing and rehab facilities were awarded $35.8 million in back wages and damages under the Fair Labor Standards Act (FLSA). This is one of the nation’s largest wage recovery judgments under the FLSA for the failure of their employers to abide by FLSA overtime standards. The bench trial resulted from an investigation by the Wage and Hour Division in Pittsburgh finding that the employers:

• Failed to pay employees for all hours worked, including for work performed during meal periods;

• Failed to properly calculate overtime pay, including by failing to include non-discretionary bonuses and shift differentials in calculating an employee’s overtime rate;

• Misclassified employees as exempt from the FLSA’s overtime requirements; and

• Failed to keep accurate records of employees’ hours worked and compensation due accordingly.

The FLSA establishes minimum wage, overtime pay, recordkeeping, and employment standards which both private and government employers must follow. Under these standards, employers are required to properly record non-exempt employees’ time worked and compensate employees for that time. Where hourly non-exempt employees work more than 40 hours in a week, the FLSA entitles them to pay for those hours at a rate of 1.5 times their regular rate of pay. For employees who earn compensation beyond their base hourly rate, employers are required to follow strict rules regarding what other types of compensation must be included in calculating the regular rate of pay (such as non-discretionary bonuses and shift differentials).

Employers should take heed of this historically large recovery judgment and review their own overtime compensation practices to ensure compliance with the FLSA.

For questions on the Fair Labor Standards Act or overtime compensation requirements, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.