6/2/22: Where Do My Employees Live for Tax Purposes?

June 2, 2022

By Jeff Robertson & Iris Tilley

If you have employees working out-of-state and have been wondering how to manage income tax withholdings for these employees, you are not alone. In this COVID world, fully remote and hybrid work is the norm for many office jobs, raising plenty of tax questions.

When employees were first sent home in an effort to limit community spread, many states informally or formally issued “COVID pause” policies to the specific state rules, similar in operation to “convenience of employer laws.” However, as the pandemic has shifted, numerous states have ended these pandemic policies, leading to confusion for many employers with remote workers.

This E-Alert focuses exclusively on tax laws, but stay tuned for a future E-Alert addressing local laws and leave.

Tax Laws

Convenience of Employer Laws – Most notably found in New York, convenience of employer laws are designed to stop tax avoidance by individuals working remotely. Under these laws, if an employee is working for an employer in another state, and is working on a remote basis solely for their own personal benefit, they are taxed in the state in which their employer is located. Oregon does not have a convenience of employer law. Convenience of employer laws often result in double taxation because under these laws, an employee may be taxed both by their employer’s home state and the state in which they perform their work. For example, if Oregon had a similar rule in place, an employee working for an Oregon employer in California could face taxation in both Oregon and California.

Location-Based Taxation – States without convenience laws usually have tax provisions requiring employers to withhold taxes based on where the employee performs the work. This is how the rules in Oregon currently operate. Location-based taxation leads to a question of whether the employee is performing their work in the state in which the employer is located, or whether the employee is performing their work in the state in which they reside when all direction and control comes from the employer’s state.

What is the Future? States that have lost revenue due to employees’ migration to other states will want to implement convenience laws, whereas states that have received the remote workers will want to retain location-based taxation.

What is the Now? Under current rules, an employer must withhold Oregon state income tax from all wages paid to Oregon resident and nonresident employees working in Oregon. There is no Oregon requirement to withhold for Oregon residents if an employer has no employees in the State of Oregon. However, Oregon asks employers to register and courtesy-withhold for these resident employees.

Where employees perform work in other states, employers must evaluate whether states have a convenience of employer rule or a location-based taxation rule. Employers also need to be aware of creating nexus with states in which their employees physically reside and may wish to take a position that all of their employees work from Oregon (as employees working out-of-state can seek a refund for taxes paid to the State of Oregon). There is no easy answer or best practice, and every situation is different.

No matter your remote work challenge, Barran Liebman is here to offer guidance and support. Our attorneys partner with employers across the country to navigate the special challenges posed by remote work.

Click to access a PDF of this Electronic Alert.

Should you have any remote work tax-related questions, contact Jeff Robertson or Iris Tilley at 503-276-2140 or 503-276-2155, or at jrobertson@barran.com or itilley@barran.com. For any other remote work questions, contact anyone from our remote work team.

5/17/22: Oregon OSHA’s Wildfire Smoke & Heat Illness Prevention Rules: Important Reminders & New Changes

May 17, 2022

By Becky Zuschlag

On May 10, the Oregon Occupational Safety and Health Administration (“OR-OSHA”) announced permanent rules regarding workplace hazards posed by excessive heat and wildfire smoke. This E-Alert provides only a summary of employers’ basic obligations under both the heat and smoke rules. Employers should review the rules and be prepared for their effective dates this summer: June 15, 2022 for the heat illness prevention rules and July 1, 2022 for wildfire smoke rules.

Heat Illness Prevention

Employers must provide protection to employees who perform work activities, whether indoors or outdoors, when the heat index equals or exceeds 80 degrees, with additional requirements when the heat index is over 90 degrees.

Access to Shade

Employers must maintain at least one “shade area” that does not expose employees to unsafe or unhealthy conditions or discourage them from utilizing the shade area. If providing a shade area is not safe or practical, an employer must implement alternative cooling measures of equivalent protection. 

Drinking Water

Employers must ensure a sufficient supply of “cool” or “cooled” drinking water that is immediately and readily available to exposed employees at all times and at no cost when the heat index in the work area equals or exceeds 80 degrees. The new rule allows for employers to supply electrolyte-replenishing beverages (such as sports drinks) so long as the drinks do not contain caffeine and do not completely replace required water supplies.

High Heat Practices

When the heat index exceeds 90 degrees, employers must ensure effective communication at all times, observe employees for alertness, signs and symptoms of heat illness, and monitor affected employees to determine whether medical attention is necessary. Employers must ensure each employee takes a minimum 10-minute rest period in the shade every two hours regardless of the shift length. The new rule notes that employers should consider the effect of exposure to direct sunlight when developing employer-specific heat illness prevention and rest break schedules.

Emergency Medical Plan

Employers must create and implement an emergency medical plan addressing the identification and response to possible heat illness and contacting and communicating with emergency medical responders.

Training

Employers must train all employees on heat-illness prevention on an annual basis –  this includes employees working from home! Employers must maintain a record of the training that contains the name or identification of each employee trained, and the name of the person who conducted the training.

Notable workplaces and operations that are exempt from heat illness prevention include buildings or structures that have a mechanical ventilation system that keeps the heat index below 80 degrees, incidental employee exposure to heat where the employee is not required to perform work activities for more than 15 minutes in any 60-minute period, and exposures to heat generated from the workplace (such as bakeries).

Protection from Wildfire Smoke

The wildfire smoke rules apply to employers whose employees are or will be exposed to an air quality index (AQI), primarily generated by wildfire smoke, that is at or above 101.

Training

Important changes in the new rules include that wildfire smoke training must be delivered to all employees, including new employees and supervisors. In addition, employers are required to train employees on how to use and maintain their filtering facepiece respirators, and employers subject to the rule are required to provide the respirators to employees at no cost. Lastly, employers are required to document the fact that they gave the training to their employees and keep records of the training for at least one year.

Communication System

The wildfire smoke rules require employers to develop and implement a two-way communication system between supervisors and employees to communicate wildfire smoke hazards before exposure occurs. The rules require that employers inform employees of changes in the air quality at their work location that could necessitate an increase or decrease in the level of exposure controls.

Exposure Controls

Employers subject to the rule must implement certain exposure controls, including engineering and administrative controls (such as air filtering and ventilation in buildings and vehicles) and voluntary and mandatory use of respirators for employees depending on the AQI. The new rules expand on the exception to the exposure control requirement, stating the requirement does not apply if “the employer can demonstrate that such controls are functionally impossible, or would prevent the completion of work.”

The new rules also add that employers are required to implement a wildfire smoke assessment when employees are or are likely to be exposed to an AQI of 101 or above. Lastly, workplaces in enclosed buildings and structures in which the air is filtered by a mechanical ventilation system and employees working from home are exempt from the rule. 

This E-Alert covers only the basics of these rules, which are dense and include many technical requirements for employers. As summer approaches, employers should ensure that their policies and practices are in compliance with both rules.

For questions regarding wildfire smoke and heat illness prevention rules, contact Becky Zuschlag at 503-276-2151 or bzuschlag@barran.com.

4/28/22: The OED Wants to Know: Are You Planning to Enroll in Oregon’s Paid Leave Program, or Create Your Own Equivalent Plan?

April 28, 2022

This week, the Oregon Employment Department (“OED”) announced it is conducting a survey to gauge employers’ interest in participating in Oregon’s new Paid Family and Medical Leave Insurance (“PFMLI”)—recently rebranded by OED as Paid Leave Oregon—program. In short, OED wants to know if employers are most likely to: (1) use the state-offered plan; (2) develop or purchase their own plan; or (3) use an existing employer-administered paid leave plan. OED states responses to the survey are non-binding and for informational purposes only. If you would like to participate in the survey, you may do so here.         

As a refresher, Paid Leave Oregon is a family, medical, and sick leave insurance program that was created to provide eligible individuals, including certain employees, compensated time off from work for certain qualifying purposes. The program is funded by employer and employee contributions to the PFMLI Fund. OED will begin collecting contributions in January 2023, and eligible individuals may begin to use the program in September 2023.     

Employers can either:

• Enroll in the state’s program; or

• Submit an application for approval of an Equivalent Plan.

An Equivalent Plan may be administered by an employer. Alternatively, an employer may purchase an insurance policy from an insurance company, through which the requisite benefits are administered.

In addition to providing leave insurance benefits that are equal to or greater than the weekly benefits and duration of leave that an eligible employee would qualify for under the state program, Equivalent Plans must, among other things:

• Provide for benefit decisions to be made in writing;

• Provide an appeal process to review benefit decisions; and

• Ensure that contributions retained under an Equivalent Plan are used solely for Equivalent Plan expenses.

If you intend to apply for an Equivalent Plan, it may be advantageous to do so sooner rather than later. OED plans to begin accepting Equivalent Plan applications beginning in September 2022. Approved Equivalent Plans become effective on the first day of the calendar quarter immediately following the date of approval by OED. So, depending on OED’s timeline for review and approval of Equivalent Plan applications, employers may be required to participate in the state program for a period of time while waiting for OED’s decision.         

While an Equivalent Plan may provide employers additional flexibility to design a program that better suits the needs of its workforce, employers who choose to administer an Equivalent Plan assume all financial risk associated with the administration of that plan. This is true, even if employers work with third party administrators to assist with implementation of an Equivalent Plan.   

For questions about Paid Leave Oregon or for other leave-related questions, contact the Barran Liebman team at 503-228-0500.

4/26/22: Surge in Union Organization Efforts at Amazon & Starbucks Mirrors Nationwide Increase in Union Activity

April 26, 2022

By Nicole Elgin

Employers are seeing a surge in union organization. Despite the overall decrease in the rate of private sector union membership in 2021, unions are all over the headlines. Recent victories by organizers at Starbucks and Amazon, coupled with the uptick in strikes highlight why employers should be paying attention to this trend.

Amazon workers at the Staten Island JFK8 fulfillment center made history on April 1, 2022, when they voted to join the Amazon Labor Union (“ALU”). This marks the first time in Amazon’s history that its workers have successfully unionized and follows a failed attempt by Amazon workers in Bessemer, Alabama to unionize last year. During the union organizing efforts, Amazon faced criticism for its captive audience meetings.

On April 7, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum indicating that she would be seeking to prevent employers from holding captive audience meetings. Abruzzo’s memorandum argues that captive audience meetings run afoul of Section 7 of the National Labor Relations Act (NLRA) because of the inherent “threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” Abruzzo indicated that she plans to urge the Board to reconsider the current rules that allow these meetings and find them unlawful.

Starbucks employees in New York, Arizona, and Washington have voted in favor of unionization. At this point, there are more than 100 Starbucks stores nationwide that have filed petitions to unionize. Starbucks requested that the NLRB prevent workers from voting in single store bargaining units, claiming that the single store voting was allowing organizers to circumvent obstacles posed by regional bargaining units. On February 23, 2022, the NLRB denied review of a Regional Director’s decision that a single store unit was appropriate for workers in Starbucks Store 5610, located in Mesa, Arizona. The Board’s decision notes that a single store unit in a retail chain is “presumptively appropriate” and that employers bear the “heavy burden” of proving otherwise.

Since the rise in unionization at Starbucks, the company has faced multiple unfair labor practice charges. Workers in Buffalo, New York alleged that Starbucks held captive audience meetings where pro-union employees were allegedly barred from attending. Starbucks was also accused of discriminating against union workers in its enforcement of rules on dress codes, language, and COVID-19 quarantining. The discharge of several employees has also resulted in complaints to the NLRB. The NLRB Regional Director in Phoenix alleged that Starbucks violated the NLRA by conducting surveillance of union supporters, disciplining a union supporter for taking a “previously tolerated medical absence,” and punishing workers based on communications with management about staffing issues.

While Starbucks was dealing with allegations of unfair labor practices, the D.C. Circuit Court of Appeals issued a decision in Wendt Corporation v. NLRB. There, the court decided that five of the employer’s practices had violated the NLRA. These included management’s denial of a request for a union representative to be present during a disciplinary meeting, temporary furloughing of ten unit employees, assigning a highly skilled worker, who was an active union leader, to low-skilled work, delay of performance reviews for unit employees despite reviews being timely for non-union workers, and promoting three unit employees to supervisory roles while making them continue to perform their prior functions without filling the positions they left.

These examples illustrate how precarious it is for employers to take action against employees during organizing drives without first ensuring that they are within their rights under the NLRA. With the surge in organization efforts around the nation and the new makeup of the NLRB, it is critical that employers continue to stay apprised of best practices in dealing with employee organization efforts.

Click to access a PDF of this Electronic Alert.

For questions on labor issues under the National Labor Relations Act, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

4/25/22: COVID-19 Workplace Rule Changes: What Employers Should Know

April 25, 2022

By Chris Morgan

The lifting of COVID-19 health and safety rules has caused confusion for employers because while most COVID-19 workplace restrictions have been lifted, some remain in place.

COVID-19 Workplace Rule Changes

Last month, the Oregon Safety and Health Administration (OR-OSHA) announced that it was initiating the rulemaking process to rescind numerous COVID-19 workplace requirements that apply to most workplaces, including dropping requirements that employees must wear face coverings indoors, conduct contact tracing, and adhere to certain sanitation and ventilation procedures. While the rule is not expected to be finalized until June, OR-OSHA has said that it will not enforce any of these requirements.

COVID-19 Requirements That Remain in Place

Despite the loosening of workplace restrictions, under the rules, employers are still required to:

(1) Allow workers to voluntarily wear face coverings (and the employers must provide facial coverings at no cost); and

(2) Cover the cost associated with employee COVID-19 testing, including time and travel, if the employer facilitates the testing.

In addition, most of the COVID-19 restrictions, including mask and sanitation requirements, still apply to employers in “exceptional risk workplaces.” OR-OSHA defines exceptional risk workplaces as settings where an employee performs job duties such as direct patient care, environmental decontamination services in a healthcare setting, aerosol-generating healthcare or postmortem procedures, direct client service in residential care or assisted living facilities, emergency first responder activities, personal care activities (such as toileting or bathing), or handling or transporting human remains.

Other Considerations for Employers

Importantly, employers are permitted to implement workplace policies that are stricter than what OR-OSHA requires, such as policies that require employees wear face coverings or be vaccinated against COVID-19. Like all workplace policies, employers should implement and enforce COVID-19 policies consistently and uniformly.

While not required to, employers are encouraged to closely monitor and follow the Oregon Health Authority (OHA) guidance concerning isolation and quarantine for employees who contract COVID-19, and provide notice to workers who have had potential work-related exposure to COVID-19 within 24 hours.

As we have seen over the last two years, COVID-19 policies are dynamic and shift according to the evolving nature of the pandemic. Employers should continue to closely monitor public health guidance and consult with counsel to ensure that they are compliant with the latest developments in the law.

For any questions related to COVID-19 in the workplace, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.

4/22/22: Washington-Based Employees or Independent Contractors? Beware of H.B. 1795

April 22, 2022

H.B. 1795, also known as Washington’s “Silenced No More Act” (“Act”), will take effect on June 9, 2022. As we approach the Act’s effective date, employers should review their agreements for compliance with the new law. 

Prohibited Contract Provisions

The Act prohibits contract provisions that forbid employees from disclosing or discussing conduct, or the existence of a settlement related to such conduct, that the employee reasonably believed under Washington state, federal, or common law was: 

• Illegal discrimination;

• Illegal harassment;

• Illegal retaliation;

• A wage and hour violation;

• Sexual assault; or

• Conduct recognized as against a clear mandate of public policy.

This includes conduct that occurred at work, at work-related events, between employees, between an employer and an employee, and regardless of whether the conduct occurred on or off the employer’s premises. The Act further prohibits employers from discharging, discriminating, or retaliating against an employee that discussed or disclosed the type of conduct described above. The law allows enforcement of a contract provision that prohibits disclosure of the amount paid in a settlement. 

Broad Application

The Act applies to current, former, and prospective employees, in addition to independent contractors. The Act also applies to employment agreements, independent contractor agreements, settlement agreements, and “any other agreement between an employer and an employee.” 

Retroactive Application

The Act retroactively invalidates prohibited nondisclosure and nondisparagement provisions in agreements created before June 9, 2022, and which were agreed to at the outset or during the course of employment. However, the law does not apply retroactively to settlement agreements. 

Violations

Employers violate the Act when they request or require an employee to agree to a prohibited contract provision, and when employers attempt to enforce a prohibited contract provision, which can occur in a lawsuit, a threat to enforce the provision, or “any other attempt to influence” a person to comply with the illegal provision. A violation of the Act will cost employers actual damages or statutory damages of $10,000, whichever is greater, in addition to the plaintiff’s attorneys’ fees and costs.

Click to access a PDF of this Electronic Alert.

For questions about H.B. 1795 or for any other employment-related questions, contact the Barran Liebman team at 503-228-0500.

4/14/22: Covered Employers May Now Report 2021 EEO-1 Component 1 Data (Are You Covered? And What Will You be Reporting?)

April 14, 2022

By Paula Barran

This week, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that the 2021 EEO-1 Component 1 data collection process is now open, and this year’s deadline is May 17.

The EEO-1 Component 1 Report reflects an annual data collection requirement imposed on certain private and federal employers, and seeks demographic workforce data, including race/ethnicity, sex, and job categories. Following the May 17 deadline, the EEOC will enter the “failure to file” phase until June 21, 2022.

There is also a new filer support system to streamline the process. The Filer Support Team Message Center allows filers to submit, update, track, and terminate requests for assistance; and provides a number of self-service capabilities.

Let’s unpack this message: 

Who Must File a Report?

• Subject to certain exemptions, these requirements apply to the following:

• Private employers with 100 or more employees;

• Private employers with fewer than 100 employees, if the company is owned or affiliated with another company, or there is centralized ownership, control or management, such that they legally constitute a single enterprise and the entire enterprise employs 100 or more employees; and

• Federal contractors with 50 or more employees.

If you received an EEO-1 Component 1 notification letter, but you do not believe you are required to report, you must access the EEO-1 Component 1 Online Filing System to complete the eligibility screener and confirm your status. 

What Information Do You Need to Collect?

If you are required to participate, you need to collect and submit a “workforce snapshot” for all full-time and part-time employees (including those who worked remotely), during the timeframe specified by the EEOC. The workforce snapshot includes information such as employee demographics and job categories.

How Will You Collect the Required Data?

You are required to offer employees the opportunity to use self-identification to complete the Report. If an employee declines to self-identify race and/or ethnicity, employment records or observer (visual) identification may be used to complete the Report.

A Note for Third-Party Human Resource Organizations:

In February, the EEOC announced updated procedures for third-party human resource organizations. Among other things, third-party human resource organizations may not submit a Report that includes itself and a client employer, or a Report that includes multiple client employers. For more information as to the updated procedures, see the EEOC’s Fact Sheet for Third-Party Human Resource Organization Reporting Procedures (including PEOs).

For questions about EEO-1 Component 1 Data Collection or for any other employment-related questions, contact Paula Barran at 503-228-0500, or at pbarran@barran.com. 

3/9/22: USWNT Settlement: A Reminder for Oregon Employers to Keep Their Head in the Game

March 9, 2022

By Missy Oakley

Last month, the U.S. Women’s National Team (USWNT) scored a major victory when it settled its lawsuit against the U.S. Soccer Federation for $24 million. The lawsuit, which drew national attention, alleged in part that the players on the Women’s National Team were paid less than their male counterparts on the Men’s National Team in violation of the Equal Pay Act. 

The Equal Pay Act is a federal law that protects against wage discrimination on the basis of sex and requires equal pay for equal work. In 2017, the Oregon legislature passed a similar law, the Oregon Equal Pay Act of 2017. The law prohibits employers from paying employees in comparable jobs different compensation based on a protected class. Unlike the federal law, Oregon’s Equal Pay Act extends pay equity protections to all protected classes, not just sex. 

The federal Equal Pay Act allows employers to pay employees differently where the difference is based on a “factor other than sex.” Oregon’s law is more strict, in that it allows employers to pay employees who perform work of comparable character differently only if all of the difference is based on one or more of the law’s bona fide factors. 

Oregon’s law also contains an equal pay analysis safe harbor provision for employers. An equal pay analysis is simply an evaluation process employers undertake to assess and correct wage disparities among employees who perform work of comparable character. These analyses can be used by employers as an affirmative defense against an award of compensatory and punitive damages if the employer can show that within three years of an employee’s pay equity claim, they conducted a good-faith equal pay analysis and made reasonable and substantial progress toward eliminating wage differentials.

The USWNT’s settlement comes roughly three years after Oregon’s Equal Pay Act went into effect on January 1, 2019. Thus, it serves as a convenient reminder for employers that if it has been more than three years since their last equal pay analysis, it is time for another.

Click to access a PDF of this Electronic Alert.

For questions on pay equity or for any other employment-related matters, contact Missy Oakley at 503-276-2122 or moakley@barran.com.

3/4/22: Oregon Legislature Approves End to Agricultural Worker Overtime Exemption

March 4/ 2022

By Wilson Jarrell

Yesterday, the Oregon legislature passed a contentious bill to end the long-standing overtime exemption for agricultural workers. 

House Bill 4002 operates to phase out the overtime exemption over the next five years, while temporarily providing tax credits to farmers to compensate for the inevitably higher labor costs. The bill defines agricultural worker broadly, applying the term to any individual who performs services in the following areas:

• Farming in all its branches, including the cultivation and tillage of the soil;

• Dairying;

• The production, cultivation, growing, and harvesting of any agricultural or horticultural commodity;

• The raising of livestock, bees, fur-bearing animals, and poultry; and

• Any other practice performed by a farmer or on a farm as an incident to or in conjunction with farming operations, including preparation for market, delivery to storage or to market, or delivery to carriers for transportation to market.

The bill excludes individuals who are otherwise exempt from minimum wage requirements under ORS 653.020(1), as well as employees exempt from minimum wage and overtime requirements who qualify as administrative, executive, or professional salaried employees.

The phase-in schedule gradually reduces the number of hours agricultural workers in Oregon need to work in a workweek to receive overtime pay:

• 55 hours beginning January 1, 2023;

• 48 hours beginning January 1, 2025; and

• 40 hours beginning January 1, 2027.

Similarly, a tax credit will be available for employers of agricultural workers in three separate tiers, based on whether they employ more than 50 workers, between 25 and 50 workers, or less than 25 workers. The tax credit will be equal to a percentage of the additional wages paid as required overtime, and that percentage will decline over time as follows: 

A special tax credit applies to dairies, which will receive a 100% tax credit with no time limit if they have fewer than 25 workers, or fall into the middle tier above (with its associated time limit) if they have more.

The bill is currently awaiting the Governor’s signature.

Click to access a PDF of this Electronic Alert.

For questions about the end to Oregon’s agricultural overtime exemption and what this bill means for your workplace’s unique circumstances, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.

3/4/22: New #MeToo Law Prohibits Enforcement of Arbitration Provisions for Workplace Sexual Assault Claims

March 4, 2022

By Wilson Jarrell & Nicole Elgin

Yesterday, President Biden signed into law H.R. 4445, a bill that was recently passed by Congress in a bi-partisan effort and hailed as a major victory for the #MeToo movement. 

The new law largely prohibits the enforcement of mandatory pre-dispute arbitration provisions to the extent they apply to “a case” that relates to workplace sexual harassment or assault. The law amends the Federal Arbitration Act to ban agreements that were signed prior to an incident of workplace sexual harassment or assault. The law also prohibits any pre-dispute waivers of the right to participate in a joint, class, or collective action alleging such conduct. However, it is important to note that such an agreement is still allowed and enforceable if a worker chose to sign the agreement after any sexual harassment or assault dispute arises.

Importantly, the new law’s use of the term “case” rather than “claim” when referring to allegations of workplace sexual harassment or assault introduces some uncertainty as to how courts will handle claims that include other claims in addition to those involving workplace sexual harassment or assault. Courts may read the language broadly and require that an entire case stay in court, or narrowly to force all non-harassment or assault claims into arbitration. Courts may also decide the issue on a case-by-case basis, based on how connected all the claims alleged are. This will inevitably result in significant litigation around the issue.

President Biden has supported this legislation throughout its progression through Congress, and the White House has previously said the law “advances efforts to prevent and address sexual harassment and sexual assault, strengthen rights, protect victims, and promote access to justice.” The law goes into effect immediately. 

Practically, employers should be aware that pre-dispute mandatory arbitration provisions in agreements will not be enforceable with respect to any dispute or claim of workplace sexual harassment or assault that arises on or after today’s date. Additionally, employers should review any mandatory arbitration provisions in their agreements to ensure that they comply with the new law.

Click to access a PDF of this Electronic Alert.

For questions about H.R. 4445 or for any other employment-related questions, contact Wilson Jarrell or Nicole Elgin at 503-228-0500, or at wjarrell@barran.com or nelgin@barran.com.

3/1/22: SB 1514 Extends Pay Equity Exceptions

March 1, 2022

By Wilson Jarrell & Amy Angel

Last year, the Oregon legislature passed HB 2818, which made several notable amendments to Oregon’s Equal Pay Act, including a provision which temporarily exempted hiring bonuses offered to prospective employees and retention bonuses offered to existing employees from the definition of “compensation.” This was a crucial change, giving Oregon employers more leeway to offer bonuses to attract and retain employees in a particularly challenging labor market without violating Oregon’s Equal Pay Act. However, this amendment was temporary and was effective only until today, March 1, 2022.

Fortunately for employers, the Oregon legislature took up this issue again in the short session and passed SB 1514. SB 1514 extended the exemption of hiring and retention bonuses from the definition of “compensation” for Equal Pay Act purposes. The exemption is again temporary, this time set to expire on the 180th day after the expiration or termination of the current state of emergency. The Governor has indicated she will lift the state of emergency effective April 1, 2022, in which case the exemption will remain in effect until September 28, 2022. The bill currently awaits signature by the Governor.

Click to access a PDF of this Electronic Alert.

For questions about SB 1514 or for any other questions related to pay equity, contact Wilson Jarrell or Amy Angel at 503-228-0500, or at wjarrell@barran.com or aangel@barran.com.

2/28/22: Some COVID-19 Workplace Mandates & Restrictions Will Lift Soon: What Employers Should Know

February 28, 2022

Governor Kate Brown announced this morning that masks will no longer be required in most indoor settings, including schools, effective March 12, 2022.  With the exception of healthcare settings, the Oregon Occupational Safety and Health Administration (OSHA) will no longer mandate that employers require their employees or others in the workplace to wear masks indoors. Multnomah County will still require masks in certain county buildings, such as healthcare and corrections settings.

Last week, the Centers for Disease Control and Prevention (CDC) announced that it is changing its guidance for when individuals should wear masks or take other COVID-19 precautions. The CDC analyzes the number of hospital beds being used, hospital admissions, and the number of COVID-19 cases in a given area and it assigns a low, medium, or high “community level” rating. In low community levels, the CDC recommends individuals wear masks based on their personal preference. In medium community levels, the CDC recommends individuals at high risk for severe illness (such as those 65 years or older or those with compromised immune systems) wear masks. In high community levels, the CDC recommends that everyone wear masks in indoor settings.

For all three levels, the CDC recommends that people continue to get vaccinated and boosted, individuals with symptoms, a positive test, or exposure to someone with COVID-19 wear masks, and individuals get tested for COVID-19 if they experience symptoms. As of February 28, 2022, the CDC has assigned a “medium” community level to the three Oregon counties in the Portland-metro area.

Once Oregon’s mask mandate ends, it’s entirely up to employers if they want to require their employees or others in the workplace to wear masks. Employers also have discretion to mandate that their employees be vaccinated against COVID-19, provided they allow for disability and religious accommodations.  

While government mandates are ending, public health officials warn that COVID-19 is still a threat. Accordingly, employers should monitor COVID-19 in the workplace to protect the health and safety of their employees, and to minimize business disruption when outbreaks occur.

Meanwhile, Oregon OSHA has announced that it is re-visiting other COVID-19 workplace rules concerning infection control planning, exposure risk assessments, sanitation, and notification requirements. It is unclear when Oregon OSHA will rescind these requirements.

Click to access a PDF of this Electronic Alert.

For any questions about mask mandates or navigating COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.

2/22/22: Be Careful When Disciplining Employees for Complaining About Work on Social Media!

February 22, 2022

By Natalie Pattison

Private sector employers take note: an employee’s social media post complaining about work may be entitled to protections under the National Labor Relations Act (“NLRA”). This is true regardless of whether the private sector workplace is unionized or not, because under the NLRA, private sector employers are restricted from disciplining an employee if the post involves “protected concerted activity” absent a few limited exceptions.

The NLRA protects employees’ rights to participate in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Employers may not interfere with this right by, for example, disciplining an employee for conduct that constitutes protected concerted activity.
Employees commonly engage in protected concerted activity when they discuss wages, benefits, or other working conditions with one or more coworkers. However, even a single employee may engage in protected concerted activity if the employee is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. Protection also extends to communications between employees that do not directly call for group action if they involve “inherently concerted” discussions about vital categories of workplace life such as wages, scheduling, or job security.

The National Labor Relations Board (“NLRB”) Office of the General Counsel recently released an advice memo (Johns Creek Surgery 10-CA-270348) about an employee who was terminated after complaining about her employer in a Facebook post. (Advice Memos are useful indicia of how the General Counsel’s office may choose to litigate unfair labor practices and other proceedings against employers before the Board.) The memo advised that the employer likely violated the NLRA by terminating the employee. A single Facebook post by one employee blaming employee attrition on bad management practices was protected concerted activity because the Facebook post elicited support from coworkers over scheduling, management, and employee attrition—issues that had been topics of concern for employees. The Facebook post was also protected to the extent it discussed workplace topics, such as job security, that are “inherently concerted.”

Although not all work-related comments made online are protected concerted activity, the memo clearly indicates that posts eliciting support from coworkers about a working condition, as well as communications that involve “inherently concerted” discussions, likely rise to the level of protected concerted activity.

It is important for all private sector employers to know what constitutes protected concerted activity because the NLRA’s protections apply even when no union is involved and no collective bargaining is contemplated by the employees. Before disciplining an employee for work-related social media posts, employers should evaluate whether the employee’s post may be protected concerted activity and consult their labor counsel as needed.

For questions about protected concerted activity, the National Labor Relations Act, or unions, contact Natalie Pattison at 503-276-2014 or npattison@barran.com.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.

2/1/22: Current Status of Federal & State Vaccine Rules for Healthcare Employers

February 1, 2022

By Natalie Pattison & Amy Angel

Healthcare employers in Oregon take note: the Oregon Health Authority (“OHA”) filed a permanent rule keeping in place vaccination requirements in healthcare settings, and enforcement begins for the Center for Medicare & Medicaid Services (“CMS”) vaccine rule recently upheld by the Supreme Court.

OHA Vaccine Requirement for Healthcare Workers

On January 31, 2022, OHA filed a permanent rule keeping in place requirements regarding vaccination and masking for healthcare providers and staff in healthcare settings.

The permanent rule largely tracks the temporary rule which recently expired. Like the temporary rule, the permanent rule provides that healthcare providers and healthcare staff may not work, learn, study, assist, observe, or volunteer in a healthcare setting unless they are fully vaccinated or have provided documentation of a medical or religious exception. 

The CMS Rule

In the wake of the Supreme Court’s decision upholding the CMS vaccination rule discussed here, covered Oregon healthcare employers should review the rule carefully, as it may apply to workers not covered by OHA’s rule.  

The CMS Rule requires that staff working at almost all CMS-certified facilities that participate in the Medicare and Medicaid programs be vaccinated unless exempt for qualifying medical or religious reasons. The rule applies to all current staff as well as any new staff who provide care, treatment, or other services for the facility and/or its patients, including facility employees, licensed practitioners, students, trainees, and volunteers. It also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.

Covered employers are required to establish a process or policy to fulfill the staff vaccination requirement over two phases:

Phase 1: Covered staff must have received, at a minimum, the first dose of a primary series or a single dose COVID-19 vaccine prior to staff providing any care, treatment, or other services for the facility and/or its patients. For Oregon, the deadline for Phase 1 was January 27, 2022.

Phase 2: Covered staff must complete the primary vaccination series (except for those who have been granted exemptions from the COVID-19 vaccine or those staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by the CDC). For Oregon, the deadline for Phase 2 is February 28, 2022.

Note that the deadlines for compliance vary by state, so employers should be aware of the deadlines applicable to the states in which their employees are located. 

Employers should reach out to counsel with questions regarding coverage or compliance with these rules.

For questions about vaccine mandates or for any other matters related to COVID-19 in the workplace, contact Natalie Pattison or Amy Angel at 503-228-0500, or at npattison@barran.com or aangel@barran.com.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.

1/25/22: Employers Must Notify Employees About the Earned Income Tax Credit

January 25, 2022

By Missy Oakley

The Earned Income Tax Credit (EITC) is a federal and state tax credit for certain employees making up to $57,414 in 2021. As employers prepare to send out Form W-2s, the Oregon Bureau of Labor and Industries (BOLI) recently issued a notice reminding Oregon employers they are required to notify their employees that they may be eligible for this tax credit.

At a minimum, employers should provide employees written notice about the EITC along with the employee’s Form W-2 each year. This notice can be sent by regular or electronic mail, hand-delivery, or in any electronic manner used to provide the employee’s federal Form W-2, and must include information on the EITC website from the Oregon Department of Revenue and the IRS.

To help employers meet these notice requirements, BOLI provides sample text that employers can use. The sample text as well as more information on the EITC can be found on BOLI’s EITC page.

For questions on employee payroll and other notice requirements, contact Missy Oakley at moakley@barran.com or 503-276-2122.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.

1/19/22: U.S. Labor Agencies Form Pact to Collaborate on Investigations into Worker Misclassification Claims

January 19, 2022

By Nicole Elgin

On January 6, 2022, the United States Department of Labor (DOL) and the National Labor Relations Board (NLRB) announced the agencies’ plan to collaborate on investigations, specifically targeting allegations of independent contractor misclassification and retaliation against workers. These are increasing areas of contention in the growing gig economy.

The agency collaboration effort is memorialized in a Memorandum of Understanding (MOU) and will make it easier for these agencies to investigate and cite employers for violations of laws that both agencies are tasked with enforcing. The announcement noted that “all too often, workers face adverse action for speaking out about their compensation, whether it is discussing their wages, fighting back against wage theft, or advocating for higher wages.”

As a reminder for employers, under the National Labor Relations Act (NLRA), whether a worker is an employee versus an independent contractor is determined by the following factors, with no single factor being determinative:

• The extent of control the employer has over the work;

• Whether the worker is engaged in a distinct occupation or business;

• Whether the work is usually done under the direction of the employer or without supervision;

• The skill required in the particular occupation;

• Whether the employer or the worker supplies the instrumentalities, tools, and the place of work;

• The length of time for which the worker is employed;

• Whether the worker is compensated by time worked or by the job performed;

• Whether the work is a part of the regular business of the employer;

• Whether the parties believe they are creating an employer-employee relationship;

• Whether the work is part of the regular business of the employer; and

• Whether the principal is or is not in business.

In late 2021, the NLRB invited public comment on whether to revisit this standard. In making independent contractor classification determinations, it is also important to note that not all laws utilize the same criteria. For example, the Oregon Employment Department must use the definition of “independent contractor” from ORS 670.600 which contains a list of slightly different criteria.

In light of these investigation and enforcement efforts, employers should take this opportunity to review whether any workers may be improperly classified as independent contractors.

For questions regarding labor issues under the National Labor Relations Act or independent contractor classification issues, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.

1/14/22: U.S. Supreme Court Stays OSHA ETS—Upholds CMS Vaccine Mandate

January 14, 2022

By Natalie Pattison

After much anticipation, the U.S. Supreme Court has released two key decisions on vaccinations in the workplace: The Court upheld the Center for Medicare & Medicaid Services (CMS) vaccine mandate, and it blocked enforcement of the Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

CMS Rule

The Court upheld the CMS vaccine mandate, which requires vaccines and testing for select healthcare workers, including workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government. Covered facilities should ensure compliance with the rule as soon as possible.

OSHA’s ETS

In a separate decision, the Court voted 6-3 to stay enforcement of OSHA’s ETS requiring private employers with 100 or more employees to require vaccination or weekly testing pending disposition of the matter in the Sixth Circuit Court of Appeals. In other words, the ETS will not take effect until further notice.

The Court’s decision on OSHA’s ETS centered on the question of whether OSHA—a federal agency whose governing statute does not explicitly authorize vaccine requirements—had the authority to enact the mandate in the first place. Specifically, the majority opinion, writing per curiam, states:

The question before us is not how to respond to the pandemic, but who holds power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans.

The majority further states, “Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization[.]” Essentially, the majority views the COVID-19 pandemic not as an “occupational hazard,” but rather a “kind of universal risk [that] is no different from the day-to-day dangers that all face[.]”

In dissent, Supreme Court Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan argued that OSHA did precisely what Congress mandated it to do: “It took action to address COVID-19’s continuing threat” in the workplace, adding that the ETS falls within the scope of OSHA’s mission, which is “to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents[.]”

Oregon OSHA

In light of the Court’s decision on federal OSHA’s ETS, Oregon OSHA posted a notice on their website announcing they will not be moving forward with adopting the same or similar standard in Oregon.

What Now?

While private employers that were covered under OSHA’s ETS need not worry about complying with the rule for now, employers should stay up to date on any changes as the matter continues to evolve. Further, employers should pay careful attention to state and local mandates, as the Court’s decision does not dispute the states’ authority to issue their own rules pertaining to vaccine mandates and testing requirements.

Note, the Court’s decision does not restrict an employer’s ability to implement their own vaccine or testing mandates, so long as the policy complies with applicable federal and state law, including Title VII and the ADA. 

In light of these updates, here are a few steps employers can take right now:   

• Familiarize yourself with any vaccine mandates that are still in effect and how they may apply to your employees.

• Update your company’s current policies around vaccination and testing, if needed, and communicate any changes to employees.

• Stay tuned! Stay alert to legal updates at both the federal and state level.

For questions about responding to vaccine mandates or for any other matters related to navigating COVID-19 in the workplace, contact Natalie Pattison at 503-228-0500 or npattison@barran.com.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2022 by Barran Liebman LLP.

12/21/21: Stay on OSHA’s Vaccine or Test Mandate Overturned

December 21, 2021

By Chris Morgan

In a 2 – 1 opinion, a three-judge panel from the Sixth Circuit Court of Appeals has overturned the nationwide Stay on the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”).  

Here’s what you need to know: 

• The ETS standard, which had previously been put on hold by the Fifth Circuit Court of Appeals, requires private employers with 100 or more employees to either be vaccinated or be subject to weekly testing.

• Dissolution of the Stay means that employers again need to plan immediately for compliance with the full provisions of the ETS.

• OSHA has said that they will not issue citations to employers for non-compliance with the ETS testing requirements until February 9, 2022, so long as the employer is exercising “reasonable, good faith efforts” to come into compliance.

• OSHA has said that they will not issue citations for violations of the other provisions of the ETS, including requirements for indoor masking and collecting vaccination records, until January 10, 2022. A full list of ETS requirements is available here.

• Shortly after the Stay was lifted, the ruling was immediately appealed to the United States Supreme Court, who will ultimately determine whether the ETS will be allowed to move forward while the underlying litigation is pending. U.S. Supreme Court Justice Brett Kavanaugh, who is assigned to oversee the Sixth Circuit, has ordered the U.S. Government to respond to the appeals by December 30, 2021, signaling that the entirety of the Court may hear and decide the matter early in the New Year.

For now, employers should plan for compliance while keeping closely attuned to changing information from the federal courts. 

For questions related to vaccine mandates or for any other questions about navigating COVID-19 in the workplace, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.

12/17/21: Washington Delays Premium Assessment for WA Cares Fund

December 17, 2021

By Iris Tilley & Wilson Jarrell

This morning, Washington Governor Jay Inslee and Washington Democratic Legislative leaders issued a joint statement announcing an agreement to delay the new WA Cares payroll tax on employees. The statement described that they will conduct further work to address concerns over the new long-term care program.

The WA Cares program was approved in 2019, with the intention that it would act as a safety net to help people pay for care for themselves in old age and sickness, funded through a 0.58% payroll deduction on workers. That payroll deduction was originally set to begin on January 1, 2022.

Gov. Inslee stated that he was ordering the Washington Employment Security Department not to collect premiums from employers for this program before they come due in April, and that the state would not collect those funds until the Washington Legislature sorted through issues with the program, including growing concerns that under the current structure, workers would pay into the program but never be eligible to receive benefits.

The Washington Legislature is expected to put forward proposals to address concerns with the program in January, when the Legislature will gather for a short, 60-day session. Washington Democratic Legislative leaders stated that the delay will allow the Long Term Care Commission time to “study and make recommendations about residents who move out of Washington to retire and assure that those who have opted out of the program maintain their private insurance policies.”

In the meantime, employers can be assured that they will not incur any penalties or interest from not withholding WA Cares taxes from wages. Although employers are not restricted from collecting the premiums, and technically remain able to do so, the joint statement “strongly encourages” them to pause in doing so until legislation can be passed next year.

For questions about the WA Cares payroll tax, contact Wilson Jarrell or Iris Tilley at 503-276-2181 or 503-276-2155, or at wjarrell@barran.com or itilley@barran.com.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.

12/13/21: New Year Resolutions: 401(K) & Health Plan Considerations for End-of-Year

December 13, 2021

By Jeffery Robertson & Iris Tilley

As we move towards the end of the calendar year, now is the time to consider the impact of the New Year on your 401(k) and Group Health Plans. We have included five important items to consider as we usher in 2022.

Required Minimum Distributions Due December 31

With the delays of the pandemic and changes in the Required Minimum Distribution rules, it is easy to forget that 2021 RMDs are due by December 31st. The RMD requirement is further complicated by the change in minimum age last year – 70 ½ to 72 and next year’s change in life expectancy tables.

Cyber Security Policies 401(k) Plans

The U.S. Department of Labor continues to provide evidence that a documented Cyber Security Policy is a critical step for Plan Fiduciaries. Every 401(k) Plan Committee should consider a simple and documented Cyber Security Policy related to the oversight of 401(k) Plan Vendors. An important component of the Cyber Security Policy is to understand the contractual limitations of responsibility in vendor agreements. All vendor agreements should be reviewed regarding the rights and responsibilities in the event of a Cyber Security attack or breach.

HIPAA COVID-19 Vaccine Status

As vaccine requirements have become more and more common, an equally common question is whether an employee’s COVID-19 vaccine status is HIPAA-protected. HIPAA does not prohibit an employer or business from requesting information from an employee or individual as to their vaccine status. HIPAA may prohibit a health care provider from sending patient vaccine information without individual authorization. Please note that additional laws are important when evaluating employee vaccine status, and whether or not HIPAA applies, an employee’s medical records should be treated as confidential information.

Local Taxes

Local payroll taxes are becoming a greater avenue of revenue for local authorities and a large compliance concern for employers. In the Portland metro area, an employer may be forced to consider the Washington Long-Term Care Tax and the Multnomah County Preschool Tax for its employees. When employees work from home, the analysis is even more complicated.

COVID-19 Testing & Health Plan Expenses

Employers with group health plans, especially those with self-funded plans, will be faced with 2022 compliance concerns regarding COVID-19-related expenses. These will include COVID-19 testing reimbursement (including for the cost of at home tests), cost-sharing requirements, plan provisions encouraging vaccination, and many others. We recommend engaging knowledgeable partners to review your COVID-19-related health plan policies.

For 401(k), health plan, or any other benefits questions, contact Jeff Robertson or Iris Tilley at 503-276-2140 or 503-276-2155, or at jrobertson@barran.com or itilley@barran.com.

Click to access a PDF of this Electronic Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. 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 begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2021 by Barran Liebman LLP.