E-Alerts
As a special service to our clients, Barran Liebman LLP provides valuable Electronic Alerts℠ free of charge. The Electronic Alerts℠ summarize new case law and statutes that may impact your business, and suggest methods to comply with new legal requirements.
If you would like a copy of an archived E-Alert emailed to you, please contact Traci Ray by email or phone at 503-276-2115.
9/27/22: Paid Leave Oregon Poster Now Available: What Every Employer Needs to Do Now
September 27, 2022
By Amy Angel
Preparations for Paid Leave Oregon’s debut are in full swing and the Oregon Employment Department (“OED”) just published a model employee notice detailing employees’ rights and duties under the new program. Covered employers must make this (or a substantially similar) notice available to employees on or before January 1, 2023.
In addition to posting the required notice, here is what Oregon employers need to be doing now:
Become familiar with the basics of Paid Leave Oregon. Paid Leave Oregon is a family, medical, and sick leave insurance program that was created to provide eligible employees compensated time off from work for family leave, medical leave, and safe leave. Eligible employees may apply for benefits beginning September 3, 2023. The duration of benefits is generally 12 weeks per benefit year plus an additional 2 weeks for employees with limitations relating to pregnancy, childbirth, or a related medical condition.
Prepare payroll to collect contributions and remit payments. Paid Leave Oregon is funded by a trust fund with both employees and most employers contributing to the fund through payroll taxes. With contributions starting January 1, 2023, it is imperative that your payroll team is ready.
Review current paid time off and leave policies. Beyond understanding the mechanics of the program itself, employers must be aware of the impact Paid Leave Oregon may have on their currently offered employee benefits, especially when it comes to their leave policies. Leave available under Paid Leave Oregon may or may not align with other types of available protected leave, such as leave protected by the Oregon Family Leave Act or federal Family and Medical Leave Act. Similarly, Paid Leave Oregon benefits are in addition to other benefits offered by employers, including Oregon Sick Leave, short-term disability insurance, vacation, or other paid time off benefits. Oregon employers should take a critical look at their current leave policies and benefit offerings, and make decisions as to how those policies should be structured to better align with Paid Leave Oregon moving forward. Additionally, Oregon employers should revise their current policies to add new language regarding job protections and employee rights granted under Paid Leave Oregon.
Decide whether to apply for an equivalent plan. Employers may provide equivalent paid leave plans for their employees as an alternative to participating in the Paid Leave Oregon program. An equivalent plan must meet minimum requirements and be approved by the Oregon Employment Department. The Oregon Employment Department is already accepting applications. To be exempt from paying and remitting contribution payments beginning January 1, 2023, equivalent plan applications must be submitted by November 30, 2022. Employers who intend to apply for an equivalent plan but cannot do so by November 30 may consider submitting a Declaration of Intent in the interim.
If you are a Small Employer, evaluate whether to make the employer contributions. Small employers with fewer than 25 employees are covered by Paid Leave Oregon, but are not required to pay the employer portion of contributions. However, small employers who choose to make the employer contributions may receive assistance grants to help with the costs of hiring a replacement worker or other significant wage-related costs when an employee is on leave.
With multiple decision points and policy revisions ahead, employers should start Paid Leave Oregon preparations now to ensure a smooth transition.
For questions about Paid Leave Oregon-related policy updates, decision-making, or advice, contact Amy Angel at (503) 276-2195 or at aangel@barran.com.
9/26/22: Changes in Remote Work Policies Implicate Employers’ Bargaining Obligations
September 26, 2022
As the world continues to adapt in light of the pandemic, deciding which policies to maintain as part of the “new normal” can be complex as employers weigh the unique needs of their businesses. For employers with unionized employees, this process is further complicated by the potential bargaining requirements imposed by labor laws.
Policies affecting the health and safety of employees are mandatory subjects of bargaining under the National Labor Relations Act, which means unionized employers need to assess their obligations before making any adjustments to policies enacted to deal with the pandemic. While it is well established that work conditions related to the health and safety of employees are a mandatory subject of bargaining, whether an employer must actually bargain over changes related to remote work policies can depend on a number of facts specific to an employer and its union.
When determining whether they can act unilaterally to change remote work policies, the first question employers should ask is whether remote work, or similar COVID-19-related policies, are covered by any terms of an existing Collective Bargaining Agreement (“CBA”). If an employer has a CBA that directly addresses the subject, then the analysis will likely end there, and an employer must proceed according to the terms of the CBA. If the CBA is silent on the issue of remote work, whether an employer must bargain on the issue will depend on the presence of a management rights clause in the CBA and the language of that clause. A broad management rights clause could allow employers to unilaterally change their remote work policies.
If there is not a current CBA in effect between an employer and a union, then the employer’s obligation to bargain on changes to remote work policies typically depends on their established past practices. For employers who have yet to enter into their first CBA with a certified union, a unilateral change of remote work policies is likely prohibited by the National Labor Relations Act. Before companies with unionized employees make unilateral changes to their remote work policies, we recommend that they thoroughly analyze any bargaining obligations.
For questions regarding your company’s right to make changes to employee policies, contact the Barran Liebman team at 503-228-0500.
9/12/22: NLRB Decision Means it is Time to Review Uniform Policies
September 12, 2022
By Nicole Elgin
In August, the National Labor Relations Board (NLRB) issued a decision in Tesla, Inc., 370 NLRB (2022), that reinstated the rule that an employer’s uniform policy that restricts a display of union insignia is presumptively unlawful. Specifically, an employer’s uniform policy that, even implicitly, prohibits an employee from displaying union insignia (including union apparel) is unlawful, unless the employer can demonstrate special circumstances making the uniform policy necessary. The Board’s decision also overturns its 2019 WalMart Stores, Inc. decision regarding union insignia and uniforms.
Special circumstances are not easy to prove. The NLRB has found that an employer demonstrated special circumstances in limited situations, including: when the display of union slogans or apparel may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees. The Tesla decision means that now is a good time for employers to review their employee handbooks and uniform policies to make sure they are following the NLRB’s decision.
Click to access a PDF of this Electronic Alert.
For questions on compliance with these rules or other labor and employment matters, contact Nicole at 503-276-2109 or nelgin@barran.com.
8/31/22: Temporary Exceptions to Oregon Pay Equity Law Set to Expire
August 31, 2022
As we have written about previously, the Oregon Legislature amended the Oregon Equal Pay Act to create an exception to the definition of “compensation” for a limited period of time in order to give employers greater leeway in hiring and retaining workers in the tight labor market. Under these amendments, employers can offer hiring and retention bonuses without them being considered “compensation” under the Oregon Equal Pay Act. These protections are, however, only temporary and are scheduled to expire on September 28, 2022.
Ordinarily, employers must make hiring and retention bonuses (and all other forms of compensation) available to all employees performing work of comparable character on an equal, non-discriminatory basis. If there are any differences in compensation between workers who perform work of comparable character, employers must justify the entire compensation differential on the basis of specific bona fide factors. Now that this exemption will soon expire, employers will once again need to consider how hiring and retention bonuses comply with the Oregon Equal Pay Act. Even with the limited exception under Oregon’s Equal Pay Act, employers still must be mindful of compliance with the federal Equal Pay Act.
Employers should also be mindful that they should issue their bonus payments on or before September 27, 2022, to be covered by this exemption.
As you may recall, the legislature also gave employers leeway to provide incentives for employees to get the COVID-19 vaccine. These protections will continue to remain in effect until the legislature removes them.
Click to access a PDF of this Electronic Alert.
For questions about pay equity compliance, contact Josh Goldberg at 503-276-2107 or jgoldberg@barran.com.
8/25/22: Washington is Updating its Job Posting Requirements: What Employers In (& Out of) Washington Should Know
August 25, 2022
By Nicole Elgin & Blayne Soleymani-Pearson
Beginning January 1, 2023, amendments to Washington’s Equal Pay and Opportunities Act (RCW 49.58) go into effect. The amendments create additional wage disclosure obligations for employers’ job postings for Washington-based employees.
Requirements
If an employer has 15 or more employees, their job postings must include:
a wage scale or salary ranges for the job opening, and
a general description of all of the benefits and other compensation to be offered to the hired applicant.
“Posting” means any solicitation intended to recruit job applicants and includes indirect recruitment through a third party, and to any print or electronic posting. The law also already requires employers to provide the wage scale or salary range for a specific position when requested by an internal employee who seeks transfer or promotion to a new position.
Broad Impact
Prior to this law taking effect, employers were required to disclose wage scale and general benefits descriptions upon applicant request. Beginning in January, covered employers must proactively provide this information in the posting itself.
Oregon and employers in other states should pay attention to this law! Washington’s Department of Labor & Industries (L&I) is currently drafting its guidance for changes to the law. According to the draft proposed guidance by L&I, an employer without a physical presence in Washington may be affected by these changes. According to this draft, an employer would be subject to this law if the employer:
recruits for jobs that can be filled by Washington-based employees, or
posts for remote work that can be performed by a Washington-based employee.
The guidance further warns that employers cannot avoid compliance by indicating they will not consider Washington-based applicants.
The L&I Employment Standards Program has released the second draft of its proposed administrative policy and is seeking public comment. Employers can view the current draft policy and submit feedback to L&I here.
Click to access a PDF of this Electronic Alert.
For questions on compliance with these rules or other labor and employment matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
8/19/22: How to Draft A Proper Remote Work Policy
August 19, 2022
By Jeff Robertson & Iris Tilley
A proper remote work policy protects the organization by defining who can work remotely and what those who are remote must disclose to their employer. This policy should be in written form and may be a separate policy or part of a larger employee handbook. However, where the policy is part of the handbook and not customized from employee to employee, a separate remote work agreement covering the specifics of an employee’s remote work arrangement is best practice. Failure to draft and distribute a clear remote work policy has potential ramifications for paid leave, taxes, workers’ compensation, reimbursement of equipment, and workplace discrimination claims.
A remote work policy and/or remote work agreement should cover:
The employee classes or positions that are eligible for remote work;
The covered employee’s approved work location;
Terms, conditions, and requirements tied to the privilege of remote work, e.g., that employees must continue to adhere to all company policies, expectations regarding the employer’s ability to reach the employee during specified hours, and details regarding specific times the employee must report in-person to the office; and
The employer’s right to revoke the remote work agreement and/or policy.
Remote work policies can vary substantially depending on an employer’s workforce, culture, and work locations. Our employment lawyers are highly skilled at drafting remote work policies and agreements and determining the laws implicated by employees who are working remotely. We work with companies to make sure written remote work policies support employees working remotely as well as to protect companies to the greatest extent possible.
Click to access a PDF of this Electronic Alert.
For any remote work questions, contact authors Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com.
8/15/22: The CDC’s COVID-19 Guidance Has Changed: What Employers Should Know
August 15, 2022
The Centers for Disease Control and Prevention (CDC) released revised COVID-19 guidance last week that may impact employers’ COVID-19 workplace policies. The high levels of immunity from vaccines and prior infections have led the CDC to continue to ease restrictions in non-high-risk communities.
Quarantining
The CDC no longer recommends quarantining just because a person has been exposed to COVID-19.
A person who receives a notification that they have been in contact with another individual who has tested positive for COVID-19 need not quarantine if they remain asymptomatic.
However, persons who have had recent confirmed or suspected exposure to an infected person should wear a mask for 10 days around others when indoors in public and should receive testing five days after exposure (or sooner, if they are symptomatic), irrespective of their vaccination status.
Vaccinated vs. Unvaccinated
The CDC’s COVID-19 prevention recommendations no longer differentiate based on a person’s vaccination status.
What Does the New CDC Guidance Mean for Employers?
Employers are permitted to have COVID-19 workplace policies that provide greater restrictions than what the CDC recommends. For example, employers can still require that their employees wear masks or that they be vaccinated against COVID-19, though employers who have vaccine mandates may have a more difficult time denying religious and disability accommodations based on the CDC’s new guidance.
Despite the change in the CDC guidance, employers still must follow the Oregon Occupational Safety and Health Administration’s COVID-19 workplace rules which require that employers:
Allow employees to voluntarily use facial coverings and provide facial coverings at no cost to employees.
Facilitate COVID-19 testing for employees if such testing is conducted at the employer’s direction by ensuring the employer covers the costs associated with that testing, including employee time and travel.
Continue to optimize the use of ventilation systems to help reduce the risk of COVID-19 transmission.
Follow Oregon Health Authority, public health, or medical provider recommendations for isolation or quarantine of employees for COVID-19.
Provide notice to employees who have had a potential work-related exposure to COVID-19 within 24 hours.
In addition, schools and employers in “exceptional risk workplaces,” including most health care settings, are subject to stricter requirements. It is important for employers to re-visit their COVID-19 policies from time-to-time to ensure that their policies are compliant with state and federal rules. In addition, employers may have COVID-19 policies in place from years prior that are no longer being followed. In these cases, employers should amend or repeal their policies so that they are consistent with day-to-day practices.
For any questions about managing COVID-19 in the workplace, contact the Barran Liebman team at 503-228-0500.
7/20/22: Protected Leave & Workers’ Compensation: Considerations for Employers with Remote Workers
July 20, 2022
By Nick Ball
As employers adapt to the post-pandemic economy, many are finding that remote work is here to stay. This E-Alert is part of a series intended to help employers ensure they are prepared for the unique challenges that remote work poses.
1. I have a remote employee who asked to take leave, and we are willing to provide it. Does it matter what we call it?
Your company may be happy to grant this employee leave, no questions asked. However, ensuring that the employee’s leave is properly classified will negate a number of problems that could arise down the road.
If the employee is taking leave for their own medical condition or that of a close family member, they may be entitled to leave under the Family Medical Leave Act (FMLA). Until the leave is designated as FMLA leave, the employer cannot count the employee’s time off against the employee’s 12-week FMLA entitlement. The employer may not mind granting this first leave request, but may find that their patience runs thin as additional leave requests roll in with no real end in sight. Further, the news that a later leave request is subject to FMLA protections because earlier leave was not designated as FMLA is never welcome news.
An employee’s medical leave may also be protected under various state laws. State laws interact in numerous ways with FMLA. For example, leave protected under both the Oregon Family Leave Act and FMLA will run concurrently. If a covered employer does not designate the leave correctly under federal and state law, the employee may be entitled to additional state law leave too.
2. A remote employee has claimed an injury and is filing a workers’ compensation claim in the state where they live, not the employer’s home state. What should I do?
When a remote employee is injured, the employer’s first priority (other than the injury itself) should be to identify the jurisdiction in which the worker’s claim arises. The employer needs to confirm whether it has coverage in the state where its worker is claiming an injury. While many employers carry national policies, some states disallow employers from obtaining third-party insurance (such as Washington), requiring employers to self-insure or purchase coverage through a state fund.
An employer that does not carry proper state coverage may face penalties related to failure to cover an employee and perhaps failure to provide an employee with information on their rights and how to file claims in the jurisdictions they are working from. An employee may file their workers’ compensation claim in the employer’s home jurisdiction or the employee’s, and no policy can control this choice.
States also vary in allowing claims for at-home injuries. For example, if an employee is walking their dog mid-shift and falls, will their injury be covered? The answer may vary from state to state.
Employers should proactively confirm that their workers’ compensation coverage is valid within the jurisdictions where their employees are working from to ensure that policies and coverage are compliant with the laws in those jurisdictions. A strong remote work policy also may help you proactively identify where an employee is working and where they may file a claim upon injury.
Click to access a PDF of this Electronic Alert.
For any remote work-related questions, contact Nick Ball at 503-276-2150 or nball@barran.com.
7/14/22: EEOC Updates its Guidance Regarding COVID-19 Testing
July 14, 2022
By Amy Angel & Joshua Waugh
On Tuesday, July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers regarding COVID-19 in the workplace. This guidance includes two significant updates related to employer-required testing for COVID-19.
COVID-19 Viral Testing: The EEOC made clear that, going forward, employers that require an employee to be tested for COVID-19 must be able to satisfy the Americans with Disabilities Act’s (ADA) standard for medical examinations and inquiries of employees. Specifically, the employer must show that a viral test for COVID-19 is job-related and consistent with business necessity. Some of the considerations identified by the EEOC that may be used in making the “business necessity” assessment include working conditions, community transmission levels, workers’ vaccination status, breakthrough infection risk, ease of transmissibility of current variants, possible severity of illness, and potential impact on operations if an employee enters the workplace with COVID-19. Additionally, use of a COVID-19 test to screen employees who are or will be in the workplace must be in line with current guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and state and local public health authorities.
COVID-19 Antibody Testing: The EEOC’s updated guidance states that employers may not require an employee to submit to COVID-19 antibody testing to enter the workplace. This update is based on current CDC guidance which explains that antibody testing may not show whether an employee has a current infection, nor does it establish that an employee is immune from infection. Accordingly, at this time, testing for COVID-19 antibodies does not meet the “business necessity” standard under the ADA for medical examinations or inquiries of employees.
The EEOC’s updated guidance highlights the need for employers to continually take into account current pandemic circumstances as well as their individual workplace to remain in compliance with applicable employment laws. Employers should take time now to review and update their policies and practices related to COVID-19 in the workplace in light of current trends and shifting regulatory guidance.
Click to access a PDF of this Electronic Alert.
For questions about compliance with the EEOC guidance and navigating COVID-19 in the workplace, contact Amy Angel at 503-276-2195 or aangel@barran.com.
6/29/22: The Supreme Court Runs Interference on Public Prayer Restrictions
June 29, 2022
On Monday, the United States Supreme Court weighed in on the role of prayer in public sector workplaces when it found in favor of a former football coach from Bremerton School District in Washington who defied his employer’s attempts to uphold religious neutrality and restrict when he may engage in expressive public prayer.
Background
Joseph Kennedy was a part-time high school football coach who, for years, incorporated prayer into his pre- and post-game pep talks with the team. He also publicly prayed at the conclusion of every game he coached by going to the 50-yard line, kneeling, and bowing his head, often while players were celebrating their victories. Initially, the coach prayed on his own, but over time, most of the team joined him.
In response, the school district advised the coach that his conduct may violate the constitutional principles that call for a separation of church and state. The school district also provided him with accommodations to pray privately or once the stadium emptied but insisted that he not engage in outward religious prayer while he was on the job.
The coach temporarily complied with some restrictions and then, in a turnabout, announced his defiance of other restrictions through the media. During one of the post-game prayer rituals, disorder ensued when members of the public sought to join the coach on the field and a stampede elicited student and parent complaints.
Ultimately, the school district believed that, if it allowed the coach to continue his public prayer, the district would be in violation of the First Amendment’s Establishment Clause because students and other attendees might perceive the district as endorsing religion. Since the coach declined to comply with the district’s request to limit his prayers to after games in a private location not observable to students, the district suspended him, gave him a poor performance evaluation, and advised against rehiring him due to his failure to follow district policy regarding religious expression and failure to supervise student athletes after games. The coach subsequently sued the district, alleging it violated both the Free Exercise and Free Speech Clauses of the First Amendment.
Compliance Insights
The Supreme Court’s opinion provides little insight into its decision-making process and is notable to the extent that the Court concluded the coach prevailed without the need of a jury trial.
What is clear is that the Court disagreed with the district disciplining the coach for engaging in prayer and wanted to send a strong signal to all employers about the importance of providing accommodations for sincerely held religious beliefs.
In finding for the coach, the Court found that the district’s policies were not neutral or generally applicable and therefore burdened the coach’s sincere religious practices. The Court also characterized the coach’s prayer as private and personal, and concluded that there was no evidence that the coach was coercing others into following his religious practices. The Court did not address the fact that at least one parent expressed their child felt forced to participate to curry favor with the coach and get playtime on the field. If there was stronger evidence of coercion, this case may have turned out differently.
Public employers can still regulate workplace speech but should be cautious in light of the Court’s willingness to downplay employer rights in favor of religious expression. Ultimately, the Court concluded that the coach’s conduct was protected First Amendment speech and not government speech that could be regulated because (a) he was momentarily on a break and not on the job when he prayed; and (b) his prayer, which the Court concluded was private and personal, was also protected speech on matters of public concern. These findings indicate public employers should carefully review matters of religious expression in the workplace and draft robust, neutral policies on religion in the workplace.
Click to access a PDF of this Electronic Alert.
For questions about responding to requests for accommodations based on religion, contact the Barran Liebman team at 503-228-0500.
6/27/22: Annual Compliance Check: Planned Increase in Oregon’s Minimum Wage is Effective July 1
June 27, 2022
It is that time of year again when employers must ensure that their pay rates are consistent with Oregon’s annual automatic increases to the minimum wage. The new applicable minimum wage rate depends upon both the location of the employer and where employees perform their work.
New Minimum Wage Rates
These are the new minimum wage rates for each region effective July 1, 2022:
Portland metro area within the urban growth boundary: $14.75
Standard minimum wage: $13.50
Rural Oregon: $12.50
The “standard minimum wage” applies to Benton, Clatsop, Columbia, Deschutes, Hood River, Jackson, Josephine, Lane, Lincoln, Linn, Marion, Polk, Tillamook, Yamhill, and Wasco counties as well as parts of Clackamas, Multnomah, and Washington counties outside the urban growth boundary.
Oregon’s rural minimum wage rate applies in Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler counties.
If you are unsure if your company is within the urban growth boundary, please refer to this map maintained by Metro.
Compliance Reminders
Employers should consider taking some proactive steps to ensure compliance with Oregon’s new minimum wage rates. For example, for employers who outsource their payroll to third-party providers, it is worth confirming that your provider has input the appropriate minimum wage and overtime rates. Employers are also required to display an updated minimum wage poster in a conspicuous place beginning on July 1. The poster is available for download here.
Employers may also consider the downstream consequences of these new wage rates, as these increases tend to create wage compression that may need to be addressed. They may also affect employers’ pay equity plans and higher paid employees’ wages, depending on their compensation structure and the specific language in their job offers or employment agreements.
Click to access a PDF of this Electronic Alert.
For questions on wage and hour law, contact the Barran Liebman team at 503-228-0500.
6/13/22: DOL Releases New FMLA Mental Health Resources
June 13, 2022
By Missy Oakley & Becky Zuschlag
Last month, in coordination with National Mental Health Awareness Month, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) published new resources regarding mental health conditions and the Family and Medical Leave Act (“FMLA”). The new resources are intended to aide employers in better understanding how to comply with the FMLA and assist employees in understanding their rights under the FMLA regarding mental health conditions.
FMLA generally provides eligible employees with up to 12 workweeks of job-protected leave each year for their own serious health condition, or to care for a family member with a serious health condition. Physical and mental health conditions are considered serious health conditions under the FMLA if they require inpatient care or continuing treatment by a healthcare provider.
Serious mental health conditions that require continuing treatment by a healthcare provider include conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment—either multiple appointments with a healthcare provider or a single appointment with follow-up care; and chronic conditions that cause occasional periods when an individual is incapacitated and require treatment by a healthcare provider at least twice a year. Chronic conditions may include conditions like anxiety and depression. The DOL’s guidance includes helpful FAQs such as:
(Q) May I use FMLA leave to attend a family counseling session for my spouse who is in an inpatient treatment program for substance abuse?
(A) Yes. Assuming that you work for a covered employer and are eligible for FMLA leave, you may use FMLA leave to provide care for your spouse who is undergoing inpatient treatment for substance abuse. Care could include participating in your spouse’s medical treatment program or attending a care conference with your spouse’s healthcare providers.
Employers play an important role in mental health awareness by providing and promoting mental health-friendly workplaces. Ensuring that employees who are coping with mental health conditions receive the support and job-protected leave they may need is essential, not only in complying with the FMLA, but also to fostering a positive work environment. Employers can review the DOL’s newly published guidance here, which includes a fact sheet on mental health conditions and a list of FAQs on the FMLA’s mental health provisions.
Click to access a PDF of this Electronic Alert.
For questions on the FMLA or for any other employee leave-related matters, contact Missy Oakley at 503-276-2122 or moakley@barran.com.
6/8/22: Where Do My Employees Work for Leave Law & Paid Time Leave Purposes?
June 8, 2022
By Jeff Robertson & Iris Tilley
As you read in last week’s E-Alert regarding an employee’s tax home, remote work compliance remains a key area of concern for employers. In addition to the tax considerations we wrote about last week, we regularly receive questions regarding how to comply with leave laws when an employee works in a state other than the state in which an employer is headquartered or otherwise does business. Stay tuned for additional E-Alerts that will cover considerations such as wage and hour, workers’ compensation, and insurance-based remote work compliance.
Leave Laws
With many states and even cities or counties developing their own unique leave laws, employers are drowning in Google searches and questions to advisors as they try to determine which leave laws to follow. Further complicating the calculus, coverage by state and local leave laws is often subject to the employee-counting considerations in which physical location of both the remote employee and other employees of the employer come into play.
While state and local leave laws require their own consideration, we can offer some certainty around the federal Family and Medical Leave Act (FMLA). Employees who are otherwise eligible for FMLA leave are only covered by the law if they work for an employer with at least 50 employees within 75 miles of the employee’s work location. With that in mind, a single remote employee working out of a state other than the state in which the employer generally operates often will not be covered by FMLA.
For state and local leave laws, the first rule of thumb is the physical location of the employee. It is important to determine whether the company’s general leave policies, including paid time leave, comply with each state in which an employee may work. Company policies requiring employees to inform the company about where they are physically performing work are also important. Employers may wish to mandate that employees perform work from the employer’s office a designated number of days per week to control which leave laws govern a particular employee.
Practice Tip – Handbooks: Employers are often understandably resistant about creating handbooks or customized policies for a single out-of-state remote employee. However, identifying and documenting the contours of an employee’s relationship with the employer is critical. Fortunately, an employer’s current employee handbook can generally be amended to add an addendum for each relevant state in the place of drafting complete handbooks each time an employee begins out-of-state remote work.
Whether you are considering your first out-of-state remote hire, looking to get into compliance after loose policies driven by COVID-19, or already operating as a seasoned multistate employer, our remote work team is ready to assist with any questions that may arise.
Click to access a PDF of this Electronic Alert.
For questions about this E-Alert, contact Jeff Robertson or Iris Tilley at 503-276-2140 or 503-276-2155, or via email at jrobertson@barran.com or itilley@barran.com.
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
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.