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.
2/14/23: The U.S. Department of Labor Issues Guidance on Telework, FMLA & FLSA Compliance
February 14, 2023
On February 9, 2023, the United States Department of Labor, Wage and Hour Division (“DOL”) published an opinion letter and a field assistance bulletin concerning the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).
The DOL opinion letter clarifies that an eligible employee with a serious health condition requiring limited work hours may use FMLA leave to work a reduced number of hours per day. Under the FMLA, employees may take up to 12 workweeks of leave in a 12-month period. Employees taking intermittent or reduced-schedule leave may use their FMLA leave in the smallest increment of time the employer allows for other forms of leave, provided that the increment is no longer than one hour. If the employee never exhausts their FMLA leave, they may work a reduced schedule indefinitely.
The DOL field assistance bulletin advises employers in (1) ensuring workers who telework are paid properly under the FLSA, (2) applying protections for reasonable break time for nursing employees to express milk while teleworking, and (3) applying FMLA eligibility rules to employees who telework.
The bulletin emphasizes that “short breaks” of twenty minutes or fewer must be counted as compensable hours worked, even when employees are teleworking. By contrast, meal breaks (typically 30 minutes or more) are not counted as compensable hours worked when the employee is completely relieved from duty, meaning the employee is told in advance that they may leave the job and will not have to commence work until a specified time. An employee may also be relieved from duty if the employer permits the employee to choose the time at which they resume working and the break is long enough for the employee to effectively use it for their own purposes.
Additionally, employees working from home or another location must still be provided a place to pump breast milk that is not a bathroom, that is shielded from view, and is free from intrusion by coworkers and the public. The employee must be free from observation from a computer camera, security camera, or web conferencing platform while expressing breast milk, regardless of the location they are working from.
Last, to be eligible for FMLA leave, an employee must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. For FMLA eligibility purposes, their worksite is the office to which they report or from which their assignments are made.
The DOL opinion letter and field assistance bulletin are important reminders to employers and provide several examples of how these rules apply to various employee scenarios. Given the recent rollout of paid family leave in Oregon, in addition to these pointers from the DOL, now is a great time to review your policies for legal compliance.
Click to access a PDF of this E-Alert.
For questions about FMLA and FLSA compliance, contact the Barran Liebman team at 503-228-0500.
1/26/23: EEOC Releases Updated Guidance on ADA Compliance for Individuals with Hearing Impairments
January 26, 2023
The Equal Employment Opportunity Commission provided an updated resource to explain its position on how employers should comply with the Americans with Disabilities Act’s (“ADA”) requirements as they apply to hearing-impaired employees and job applicants. This E-Alert will summarize the key information from the EEOC’s guidance.
The ADA protects individuals who: (1) have a physical or mental impairment that substantially limits one or more major life activity; (2) have a history of a substantially limiting impairment; or (3) are regarded as having a substantially limiting impairment. Importantly, whether an individual is disabled must be determined without considering the effects of any mitigating measures the individual uses, such as a hearing aid. If an individual can show that they are substantially limited in hearing (or another major life activity), or that they have a history of such limitations or are regarded as having such limitations, then the individual is entitled to the protections under the ADA. For example, individuals who have had corrective surgery that largely repaired a hearing impairment may still qualify as disabled because of their history of such limitations.
The guidance addresses the limitations the ADA imposes on employers related to questioning job applicants and employees regarding hearing conditions. The ADA has different rules for questions and exams in the pre-offer, post-offer, and post-acceptance stages. Employers may not question whether a job applicant has or had a hearing condition or treatment related to a hearing condition prior to making a job offer. Applicants are not required to disclose disabilities before accepting a job offer unless they will need reasonable accommodation for the application process itself.
What if an applicant has an obvious hearing impairment or discloses a non-obvious condition? Employers generally cannot ask applicants about obvious impairments, but if the employer has a reasonable belief that the applicant requires accommodation to complete the application process or perform the job, it may ask whether the applicant will need accommodations and what type.
After an offer is made, employers may ask questions regarding an applicant’s health; however, it is important to make inquiries uniformly rather than targeting specific applicants with such questions. Individuals may be asked for specific information if the request is related to previously obtained medical information. If an applicant discloses a hearing condition after receiving a job offer, an employer may ask the applicant questions aimed at assessing the severity of the hearing impairment and how it may affect the applicant’s ability to carry out the job duties. An offer cannot be withdrawn unless the individual is unable to perform the essential functions of a job without reasonable accommodations and without posing a direct threat to the health and safety of the applicant or others.
The EEOC guidance delves into numerous other issues that employers need to be aware of, such as how to respond when an employer suspects an employee’s performance may be suffering because of a hearing impairment, what types of reasonable accommodations hearing-impaired employees may need, and how employers should handle safety concerns due to hearing disabilities.
If you have questions regarding ADA compliance, contact the Barran Liebman team at 503-228-0500.
1/6/23: FTC Proposes Ban on Non-Competes
January 6, 2023
By Natalie Pattison & Andrew Schpak
Non-compete agreements between employers and employees may soon be a thing of the past. The Federal Trade Commission (FTC) issued a sweeping proposal that would ban almost all non-compete agreements with limited exceptions. If the rule goes into effect, it will have major implications for employers and workers.
The FTC’s proposed rule would prohibit employers from entering into or attempting to enter into a non-compete clause with a worker; maintaining a non-compete clause; or representing that a worker is subject to a non-compete clause absent a good faith basis to believe the worker is subject to an enforceable non-compete clause. The rule will require employers to rescind all existing non-compete provisions with current and former workers and provide notice to the worker that the non-compete provision has been rescinded.
Notably, the proposed rule would also ban any contractual term that is a de facto non-compete clause, such as a broad non-disclosure agreement that effectively precludes a worker from working in the same field after the end of their employment. Non-solicitation clauses seem to be in the clear, so long as they are not written so broadly as to be deemed a de facto non-compete clause.
Oregon already imposes significant restrictions on non-competes, including their use among lower-paid employees, but the FTC’s proposed rule would preempt state law and extend to all workers, whether paid or unpaid, regardless of the income level.
The rule does not take effect immediately and legal challenges are likely. There will be a 60-day comment period on the proposed rule and the new rule would go into effect 180 days after the final rule is published. In the meantime, employers with existing non-competes should be aware of the potential impact of the proposed rule and consult with employment counsel regarding how to incorporate potential alternatives, such as non-solicitation and confidentiality agreements, in order to ensure that trade secrets and client relationships are protected should this proposal become the law of the land.
Click to access a PDF of this E-Alert.
For any questions related to non-compete agreements, contact Natalie Pattison at 503-276-2104 or npattison@barran.com, or Andrew Schpak at 503-276-2156 or aschpak@barran.com.
1/5/23: New Laws Provide More Federal Protections for Pregnant & Nursing Employees
January 5, 2023
On December 29, 2022, President Biden signed two pieces of legislation that expand protections for pregnant and nursing workers: the Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act.
Pregnant Workers Fairness Act (“PWFA”)
Employers with 15 or more employees must make reasonable accommodations for employees affected by pregnancy, childbirth, or related medical conditions absent an undue hardship.
Employer Prohibitions Under the Act:
Denying employment opportunities to employees based on their need for reasonable accommodation described above.
Forcing an employee to accept an accommodation other than the reasonable one arrived at and agreed to through the interactive process.
Requiring that a qualifying employee take paid or unpaid leave if another reasonable accommodation can be provided.
Taking adverse actions against a qualified employee requesting or using reasonable accommodations related to the terms, conditions, or privileges of employment.
The PWFA becomes effective on June 27, 2023.
PUMP for Nursing Mothers Act
Since 2010, the Affordable Care Act (ACA) has required that employers with 50 or more employees provide a nursing mother reasonable break time and location to express breast milk after the birth of a child for up to one year after childbirth. The location must not be a bathroom and must be shielded from view and free from employee and public intrusion. The PUMP for Nursing Mothers Act expands on the ACA requirements with additional protections for employees who need to express breast milk. These protections went into effect on December 29, 2022.
Additional Requirements:
Salaried and other workers not covered by the ACA are now covered.
Time spent to express breast milk must be considered hours worked if the employee is also working.
Employees must first notify the employer that they are not in compliance and provide them with 10 days to come into compliance before making a claim of liability.
The U.S. Department of Labor Wage and Hour Division and the Equal Employment Opportunity Commission (EEOC) are expected to release additional guidance to assist employers in complying with these new laws in the coming months. Employers should review handbooks and pregnancy accommodation policies, and train supervisors, managers, and HR staff about how to implement these policies.
Remember that many states have their own robust protections. For details about Oregon’s Pregnancy Accommodation laws, check out our past E-Alert.
Click to access a PDF of this E-Alert.
For questions on compliance with these rules or other employee accommodation matters, contact the Barran Liebman team at 503-228-0500.
12/15/22: NLRB Expands Potential ULP Damages to Include “Consequential Damages”
December 15, 2022
On December 13, 2022, the National Labor Relations Board (NLRB) issued a precedential decision in Thryv, Inc. expanding the possible damages for unfair labor practices (ULPs) to include “consequential damages.” The NLRB held that the employer in that case violated Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA) when it failed to respond to the union’s information requests and did not bargain in good faith over layoffs. Upon finding that the employer violated the NLRA, the Board analyzed how exactly its “make-whole” remedy should be applied.
The Board found it necessary to clarify the previous standards for being made whole, ultimately holding that the remedies available to employees subjected to ULPs should be expanded. The Board explained that since the NLRA’s purpose is for employees to be “made fully whole,” in addition to loss of earnings and benefits, an employer should be liable for all directly related or foreseeable pecuniary harms an employee suffers as a result of a ULP. The Board held that damages for a ULP could include out-of-pocket medical expenses, credit card debt, and even damages related to an employee being unable to make car or mortgage payments and suffering a repossession or foreclosure. Rather than the specific type of expense, the critical inquiry under the NLRB’s new standard is whether those expenses are proven to be a direct or foreseeable result of the ULP.
This broadened interpretation of the NLRA’s make-whole remedy opens employers, and unions, to increased risk associated with ULPs. Now more than ever it is critical for employers to stay up-to-date on the NLRB’s current interpretations of the law to ensure compliance in the workplace.
For questions on compliance with the NLRA, contact the Barran Liebman team at 503-228-0500.
12/14/22: OFLA’s 30-Day Eligibility Rules Are in Effect During the Current State of Emergency
December 14, 2022
On November 14, 2022, the Governor declared a public health emergency in response to increasing RSV cases, triggering the shortened eligibility rules for leave pursuant to the Oregon Family Leave Act (OFLA).
Employers may recall that, in response to the COVID-19 pandemic, the Oregon legislature made amendments to OFLA that apply during a public health emergency, including:
Expanding eligibility for OFLA leave during a public health emergency to employees working at least 30 days immediately prior to taking leave (reduced from 180 days) and an average of 25 hours or more per week during those 30 days, and
Expanding the definition of sick child leave to include providing home care to the employee’s child due to the closure of the child’s school or child care provider as a result of a public health emergency.
This public health state of emergency is currently set to expire on March 6, 2023. When the state of emergency expires, unless it is extended, the ordinary OFLA eligibility rules will resume. In the meantime, employers should double check if any employee may have been eligible for OFLA and had qualifying absences that were not designated as OFLA leave since November 14, 2022.
Notwithstanding the state of emergency, the definition of “serious health condition” has not changed. Accordingly, illness due to RSV or the flu may or may not meet the definition of “serious health condition” under OFLA. Employers should continue to assess whether leave qualifies under OFLA based on the traditional definition of “serious health condition.”
Click to access a PDF of this E-Alert.
For questions on compliance with OFLA eligibility and qualifying absences, contact the Barran Liebman team at 503-228-0500.
12/13/22: It’s Almost January 1 & Paid Leave Oregon Deadlines are Fast-Approaching
December 13, 2022
Contribution and model notice requirements under Paid Leave Oregon kick off on January 1, 2023. Paid Leave Oregon is a family, medical, and sick leave insurance program that will provide eligible employees compensated time off from work.
While benefits will not start until September 3, 2023, here is what all Oregon employers must do before the new year:
Post the Oregon Employment Department’s (OED) Model Notice Poster. Employers are required to make the model notice poster available to employees no later than January 1, 2023. The poster generally describes employees’ rights and duties under the program and is available for download and printing in 11 languages on the OED’s website. Employers must display the poster in each of their buildings or worksites in an area that is accessible to and regularly frequented by employees. Employers must also provide the poster to remote employees by hand delivery, regular mail, or through an electronic delivery method. The poster must be provided in the language the employer typically uses to communicate with its employees.
Prepare payroll. Paid Leave Oregon is funded through employee and employer contributions. Unless an employer has elected to pay the employee portion of the contribution, employers of all sizes must begin withholding contributions from their Oregon employees’ pay beginning January 1. Be sure your payroll team is ready!
Review your current paid time off policies. Paid Leave Oregon benefits will not begin until September 3, 2023, but employers may want to review their paid time off and leave policies now. Benefits under Paid Leave Oregon are in addition to employer-provided paid time off benefits and sick time requirements. It is important to remember that an employer may not require an employee to apply for Paid Leave Oregon benefits when they have a qualifying absence, and they also may not require an employee to use employer-provided benefits before or while receiving Paid Leave Oregon benefits. In anticipation of benefits beginning in 2023, employers should review and update paid time off policies to account for Paid Leave Oregon.
For questions on compliance with Paid Leave Oregon-related policy updates, decision-making, or advice, contact the Barran Liebman team at 503-228-0500.
12/1/22: Don’t Defer Legal Compliance Until It’s Too Late: Lessons Learned from Circle K
December 1, 2022
This week the U.S. Equal Employment Opportunity Commission (EEOC) announced they have entered into a four-year settlement agreement with Circle K Stores Inc. (Circle K). The investigation and resulting settlement reminds employers of the dangers of legally deficient leave and accommodations policies.
Circle K is a multi-state convenience store operator who allegedly subjected employees to involuntary unpaid leave and a policy requiring employees to be 100% healed to return to work. The EEOC also alleged that Circle K retaliated against and terminated employees as a result of their requests for pregnancy and disability accommodations. The settlement agreement will resolve multiple disability, pregnancy, and retaliation discrimination charges filed against the company over several years.
As a result of the EEOC’s investigation into the charges, Circle K will be forced to pay $8 million, including a class fund to compensate impacted employees who worked for Circle K within the past approximately 13 years. Additionally, Circle K has agreed to update its policies, appoint a coordinator to provide policy oversight and guidance on maintaining records, conduct climate surveys and exit interviews focused in part on the company’s accommodation process, provide anti-discrimination training to all employees and management, and evaluate managers based in part on their compliance with equal employment opportunity laws.
In announcing the agreement, the EEOC called out employers with rigid maximum leave policies that lack flexibility for additional leave to accommodate disability or pregnancy-related needs, noting that those policies were likely to violate federal law. The agency also admonished employers who failed to give employees reassignment to an open position if the employer concludes a reasonable accommodation is not available in their current position.
This EEOC settlement is a stark reminder that employers should carefully draft and administer their leave and accommodation policies. Given recent legal changes, including the rollout of paid family leave in Oregon, now is a great time to review your policies for legal compliance.
Click to access a PDF of this E-Alert.
For questions about pregnancy and disability accommodations, including drafting compliant policies, contact the Barran Liebman team at 503-228-0500.
11/15/22: Reminder: NLRA Applies to Nonunion Workplaces!
November 15, 2022
By Nicole Elgin & Becky Zuschlag
Many employers are mistaken in assuming that the National Labor Relations Act (NLRA) only applies to unionized workplaces. One Montana employer learned this lesson the hard way. Recently, the Regional Director of the Seattle Regional Office of the National Labor Relations Board (NLRB) approved a settlement agreement between a Montana fly fishing gear and apparel manufacturer and one of its production employees.
The settlement agreement resolves allegations that the company suspended and then terminated a production employee for discussing workplace concerns and advocating for her daughters, who were also employees of the company. The company allegedly instructed the employee to refrain from “inserting herself” into workplace issues involving her co-workers and instructed one of the employee’s daughters only to discuss issues or concerns related to her employment with her supervisors. The settlement agreement requires the company to:
Post the NLRA notice to employees and employee rights posters in the workplace and on the company’s intranet for 60 days;
Email the posters to all employees who worked for the employer at any time over the past year;
Pay 100% back pay plus front pay to the employee, in addition to health benefits, 401(k) contributions, and a monthly $650 bonus; and
Reimburse the employee for additional mileage to commute to interim employment, and mileage and parking expenses she incurred during her job search.
It is important for employers to be aware of the NLRA and how it applies to their employees. First, the NLRA guarantees the right of most employees in the private sector to organize and bargain collectively with their employers. Among other things, the NLRA affords workers the right to advocate for their wages, hours, and other terms and conditions of employment, including better working conditions for themselves and their co-workers, regardless of whether there is a union in the workplace.
Under the NLRA, employers are prohibited from taking or threatening any adverse employment action against an employee because the employee joins or supports a union, engages in concerted activity for mutual aid and protection, or because the employee chooses not to engage in these activities.
Click to access a PDF of this E-Alert.
If you have questions on NLRA compliance, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.
11/8/22: OED Finalizes Paid Leave Oregon Rules Regarding Benefits
November 8, 2022
By Amy Angel
This week, the Oregon Employment Department (“OED”) announced the adoption of eight permanent rules and one rule amendment that relate to benefits received under Paid Leave Oregon. As a reminder, 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 qualifying reasons. Contribution requirements under Paid Leave Oregon begin January 1, 2023, and benefits begin September 3, 2023.
Here are some key highlights from the new benefits rules:
Written Notice Poster to Employees of Rights & Duties: Employers are required to post a notice detailing employees’ rights and duties under Paid Leave Oregon. The newly finalized rules clarify that employers must display this notice in each of the employer’s buildings or worksites in an area that is accessible to and regularly frequented by employees. For employers with remote employees, employers must provide, by hand delivery, regular mail, or through an electronic delivery method, a copy of the notice poster to each employee assigned to remote work, upon that employee’s hire or assignment to remote work.
Employee Job Protections: Eligible employees who have been employed by the employer for at least 90 consecutive calendar days prior to taking leave under Paid Leave Oregon are entitled to certain job protections. However, employers’ obligations depend on whether they are a “small” or “large” employer. Additionally, employers must maintain any health care benefits the employee had prior to taking their leave, for the duration of their leave, as if the employee was employed continuously during the period of leave.
Initial & Amended Monetary Determinations: OED will notify the claimant of its initial determinations regarding the claimant’s eligibility and weekly benefit amount. Claimants may request OED’s determination be amended. Upon receipt of such a request, the department will investigate by examining records of wages and income submitted to the department by the claimant, employers, and state agencies in an attempt to verify the information.
Penalties for Employer Misrepresentations: OED may assess a civil penalty of up to $1,000 each time an employer makes or causes a willful false statement or willful failure to report a material fact regarding the claim of an eligible employee or regarding an employee’s eligibility for benefits. In determining whether to assess a penalty, the director may consider a variety of mitigating and aggravating circumstances.
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.
11/3/22: NLRB Modifies Standards for Mail-Ballot Union Elections, Increasing Likelihood of In-Person Voting
November 3, 2022
By Nick Ball
The National Labor Relations Board recently issued a series of decisions applying an updated standard for determining whether mail-ballot union elections were appropriate. In its recent Starbucks Corporation decision, the NLRB modified the multi-factor test it had established for assessing whether an election may be held by mail-ballot at the outset of the COVID-19 pandemic. In Starbucks, the NLRB found that the prior reliance on the 14-day positivity rate in the county wherein a bargaining unit resides is no longer appropriate.
The NLRB’s holding in Starbucks refined the standard to instead look at the CDC’s COVID-19 Community Level metric. The Community Level tracker, calculated weekly by the CDC, is based upon a collective assessment of three data points: new COVID-19 cases; new COVID-19 hospital admissions; and the percentage of staffed inpatient beds in use by COVID-19 patients. The NLRB held that “whenever the relevant county is at ‘high’ according to the Community Level tracker, it will not be an abuse of discretion for a Regional Director to order a mail-ballot election.”
While the NLRB rejected the idea that it should return to its pre-pandemic standards for assessing the appropriateness of mail-ballot elections, the implementation of its new standard under Starbucks has quickly ushered in a return of manual elections. As of October 27, 2022, every election scheduled by the NLRB Regional Directors applying the Starbucks test was directed to be held in-person.
Click to access a PDF of this E-Alert.
For questions about union elections or other labor issues, contact Nick Ball at nball@barran.com or (503) 276-2150.
11/2/22: U.S. DOJ Secures Its First Criminal Labor Conviction for Health Care Companies’ Allocation & Wage-Fixing Conspiracy Targeting School Nurses
November 2, 2022
In 2016, the U.S. Department of Justice and the Federal Trade Commission announced that companies engaging in illegal wage-fixing and “no poach” agreements would begin facing criminal, not just civil, liability for their conduct. Last week, marking the DOJ’s Antitrust Division’s first criminal conviction since the 2016 announcement, a Nevada health care staffing company (VDA) pleaded guilty to engaging in a criminal allocation and wage-fixing conspiracy targeting school nurses.
According to the plea agreement, VDA and another health care staffing company servicing Nevada’s Clark County School District entered into a nine-month agreement not to hire nurses from one another, as well as to fix the nurses’ wages. While VDA states that its conduct involved a single telephone conversation and one email between a VDA employee and a competitor’s employee, this was sufficient for the Antitrust Division to charge both VDA and its then regional manager for criminal restraint of trade under § 1 of the Sherman Act.
The court sentenced VDA to pay a fine of $62,000 and restitution to the affected workers of $72,000, totaling $134,000. The fine was calculated by examining VDA’s trade volume and payroll records for wages paid to the nurses during the nine-month conspiracy period. The DOJ case is still pending against VDA’s former regional manager, who has pleaded not guilty and is set to appear for trial in April 2023.
This case serves as the most recent example of the federal government’s action toward companies’ restraint of trade, particularly within the health care industry. Accordingly, employers should remember that they may violate antitrust laws if they agree to set prices with competitors for labor and/or agree to refrain from hiring a competitor’s employees.
For questions related to antitrust law in employment, non-competition agreements, or non-solicitation agreements, contact the Barran Liebman team at 503-228-0500.
10/24/22: EEOC Releases Updated “Know Your Rights” Poster
October 24, 2022
By Missy Oakley
Last week, the Equal Employment Opportunity Commission (EEOC) released a new, updated poster titled “Know Your Rights: Workplace Discrimination is Illegal” to replace the “EEO is the Law” poster.
The new poster uses plain language and is formatted to make it easier for employers to understand their responsibilities and for employees to understand their rights regarding employment discrimination under federal law. Covered employers, which includes most private employers, state and local governments, educational institutions, employment agencies, and labor organizations, are required to display the poster in the workplace.
The poster should be placed in a conspicuous location where notices to applicants and employees are customarily posted. Printed notices should be available in a location that is accessible to applicants and employees with disabilities that limit their mobility. Printed notices should also be available, as needed, in a format that is accessible to persons with disabilities that limit their ability to see or read.
Employers are also encouraged to post the notice digitally in a conspicuous location on their websites. In most cases, posting the notice digitally will be in addition to the physical posting requirement. However, in some cases, the digital notice may be the only posting. Employers with employees who work remotely and who do not work at the physical workplace on a regular basis, or employers without a physical workplace, will want to ensure they post the notice digitally.
Employers can find all versions of the new, updated poster here. In addition to the digital and printable versions of the poster, the EEOC has also made available a PDF version that is optimized for screen readers. For now, the poster is only available in English and Spanish, but translations in additional languages are forthcoming. For employers who downloaded the poster the first day it became available, the EEOC released a revised version on October 20 that replaced and superseded the October 19 version.
The EEOC has not stated the deadline to display the new poster, but employers are encouraged to update their posting now.
Click to access a PDF of this E-Alert.
For any questions on current poster requirements, contact Missy Oakley at 503-276-2122 or moakley@barran.com.
10/17/22: Washington Cares Rolls Out New Exemptions & Clarifies Employer Responsibilities
October 17, 2022
Now that the Washington Employment Security Department (“ESD”) has issued final rules for Washington Long-Term Services and Supports Trust Program (“WA Cares”), employers should prepare themselves to administer WA Cares and collect premium payments for this new long-term care insurance benefit from the state. Under WA Cares, participating employees may be eligible for up to $36,500 in benefits (adjusted annually for inflation) and the premium contribution is 0.58% per paycheck.
Employees must decide for themselves whether they are eligible for an exemption from premium payments, and these new rules clarify that employees must apply for either a permanent or conditional exemption. Employees who already have qualifying long-term care plans before November 1, 2021 must apply for an exemption by December 31, 2022, but employees must wait until January 1, 2023 to apply for the other permanent or conditional exemption. Employees should take these decisions seriously. Any decision about whether to apply for an exemption may have a lifetime impact on eligibility, as the rules only provide for specific circumstances in which exemptions may be claimed or withdrawn.
The new rules clarify that permanent exemptions may be provided to employees who are veterans of the United States military and have a service-connected disability rating by the United States Department of Veterans Affairs of 70% or greater.
Among the key changes to the new rules is that Washington now permits for certain conditional exemptions that employees may apply to after January 1, 2023. Those include:
A spouse or domestic partner of an active duty service member in the United States armed forces;
An employee who holds a nonimmigrant visa for temporary workers; or
An employee with a permanent primary residence outside Washington.
Employers should also begin communicating with employees about eligibility for WA Cares. Since the ESD will not likely inform when employees apply for exemptions or no longer qualify for exemptions, employers should be proactive about communicating with employees about premium payments. Employers should also make clear that employees must inform them and the ESD as required by the rules, when they no longer qualify for an exemption.
Employers should also note that the rules grant the ESD wide-reaching rights to audit employers for compliance, including the ability to use “other data” to determine premiums if the employer does not provide payroll or wage data.
As a reminder, under the new revisions to the program passed earlier this year, contributions to the program will begin July 1, 2023 for employees who have not notified employers that they are exempt, and benefits will become available to employees on July 1, 2026. Self-employed individuals may elect coverage on different timelines.
Click to access a PDF of this Electronic Alert.
For any questions regarding WA Cares, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.
10/13/22: Oregon & Washington Release Joint Letter Regarding Paid Leave Contributions
October 13, 2022
By Amy Angel & Iris Tilley
As Oregon employers with remote workers in Washington have become all too aware in recent years, the question of when to pay into the Washington paid family leave system has not always been clear. Are contributions required when an employee works and lives in Washington but reports to an Oregon employer? What about when the employee spends two days of their workweek at their Oregon employer’s headquarters?
The State of Washington’s answers to these questions have shifted with time, creating a murky compliance roadmap for employers trying to manage an increasingly hybrid workforce. In addition, as contributions to Oregon’s paid leave program loom closer beginning January 1, 2023, new questions have surfaced about an employer’s potential obligation to pay into both programs for the same employee.
Thankfully, Paid Leave Oregon and the Washington Employment Security Department have come to the rescue with a joint letter providing guidance regarding how to determine where to report wages and pay contributions.
The joint letter helpfully provides both general guidance and specific examples for employer reference and (…drumroll please…) does not require employers to pay into both state systems at the same time for the same employee, even if the employee splits their work time between Oregon and Washington.
Employers with employees working in both Oregon and Washington are encouraged to review the joint letter and contact our office with questions. In the meantime, we have distilled some of the key concepts in the following questions and answers:
What factors should employers consider in determining whether to pay paid leave contributions to Oregon or Washington for a hybrid employee?
Where is the work performed?
From which state is the base of operations?
Where does direction and control come from?
Where does the employee reside?
How much time does an employee working for an Oregon employer but living and working remotely from Washington need to spend in Oregon to be an Oregon employee for paid leave purposes?
There is no magic number here, but the employee’s work in Oregon must be regularly scheduled. If the work is sporadic and not based on a regular schedule, and if the employee otherwise works remotely from Washington, contributions will be due to Washington State.
For questions about Paid Leave Oregon-related policy updates, decision-making, or advice, contact Iris Tilley at (503) 276-2155 or itilley@barran.com, Amy Angel at (503) 276-2195 or aangel@barran.com.
10/11/22: The Independent Contractor Rule is Back to Haunt Us
October 11, 2022
On October 11, 2022, the United States Department of Labor (“DOL”) released a proposed regulation outlining how the Biden Administration plans to address workers classified as independent contractors under the Fair Labor Standards Act (“FLSA”). The public will have until 11:59 ET on November 27, 2022, to provide comments.
Recall that in January of 2021, the Trump Administration issued an independent contractor rule that sought to clarify the distinction between employees and independent contractors under the FLSA. Many private employers lauded the effort as the rule remedied inconsistent treatment by the courts and made it easier in most cases to classify workers as independent contractors.
After President Joe Biden took office in January of 2021, the DOL issued a rule postponing the effective date of the Trump-era rule, and later a final rule to withdraw the regulation completely. In March of 2022, a judge in the U.S. District Court for the Eastern District of Texas ruled that the DOL violated the Administrative Procedure Act in withdrawing the Trump-era rule, resulting in the rule going back into effect. The Biden Administration has initiated the current rulemaking to address this court decision.
The proposed regulation uses a multi-factored economic realities test to analyze the “totality-of-the-circumstances” and to ultimately determine whether a worker is economically dependent on the employer for work or in business for themselves. These factors include the opportunity for profit or loss, investment, permanency, the degree of control by the employer over the worker, whether the work is an integral part of the employer’s business, and skill and initiative. Unlike the Trump-era rule, which gave greater weight to two factors in the economic realities test, each factor is not assigned a predetermined weight and each factor is given full consideration.
Workers classified as employees are owed minimum wages, overtime, and other benefits and protections under the FLSA, whereas independent contractors are not. Workers misclassified as independent contractors may expose organizations to a lawsuit under the FLSA that seeks back pay, liquidated damages, and attorneys’ fees. Be sure to follow these new developments closely if you use independent contractors, as the proposed DOL rule is sure to significantly impact worker classifications.
Click to access a PDF of this Electronic Alert.
For questions about employee classification or for any other employment-related questions, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com.
10/7/22: Oregon Employment Department Finalizes Paid Leave Oregon Rules Regarding Contributions
October 7, 2022
By Amy Angel
Yesterday, the Oregon Employment Department (“OED”) announced the adoption of nine new permanent rules that relate to contribution requirements under Paid Leave Oregon. As a reminder, 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 qualifying reasons. Contribution requirements under Paid Leave Oregon begin January 1, 2023.
Here are some key highlights from the new final rules:
Deductions of Employee Contributions: Starting January 1, 2023, employers are responsible for deducting from an employee’s subject wages 60% of the total contribution rate for the PFMLI Fund. Employers who deduct too much may be subject to penalties. Employers who deduct too little are considered to have elected to pay that portion of the employee’s contribution and are liable to pay that portion of the employee share unless the employer corrects the mistake within the quarter.
Employers May Elect to Pay Employees’ Share: Employers who elect to pay all or part of their employees’ share must provide a written notice, policy, or procedure to the employee specifying that the employer is electing to pay the employee contribution. If an employer decides to stop paying or reduce the amount of the employee share it elected to pay, it must provide an updated written notice, policy, or procedure to employees at least one pay period prior to any change.
Place of Performance Test: Employers who operate in both Oregon and Washington, or that have employees who work from or within both states, must understand which state’s paid leave program applies to each employee. Pursuant to the final rules, eligibility under Paid Leave Oregon will depend, at least in part, on where the employee performs services and whether those services are considered “incidental.” Failure to contribute to the correct program may result in the assessment of penalties and interest or give rise to a civil lawsuit. The rules provide several examples to help clarify which wages are subject to Oregon contributions. Employers with doubts as to which paid leave program applies to an employee should consult with counsel to determine their obligations (if any) under both states’ programs.
Successors in Interest: Under certain circumstances, business acquisitions may result in total or partial liability for any unpaid contributions due under Paid Leave Oregon. An employer who acquires a trade or business as a “total” successor in interest may be liable for the full amount of unpaid payroll contributions under Paid Leave Oregon. Unpaid contributions assessed to a total successor in interest will be due immediately upon assessment.
Penalties for Failure to Timely Report Contributions: Finally, the OED has clarified that an employer’s failure to file timely reports required under Paid Leave Oregon will result in a penalty that amounts to 0.02% of the total amount of that employer’s employees’ subject wages or $100, whichever is more. Employers may receive a waiver of the penalty if they are able to establish good cause for the failure to file the report(s) at issue.
While we wait for the OED to issue the remaining final rules, employers should start their Paid Leave Oregon preparations now to ensure a smooth transition. Visit our September 27 E-Alert, Paid Leave Oregon Poster Now Available: What Every Employer Needs to Do Now, for more information.
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.
10/6/22: National Labor Relations Board Reverses 2019 Precedent on Union Dues Checkoff
October 6, 2022
The National Labor Relations Board (“NLRB”) has reversed existing precedent by holding that covered employers are no longer entitled to unilaterally stop union dues checkoff following the expiration of a collective bargaining agreement (“CBA”) that required the employer to make such deductions. Union dues checkoff refers to the practice of an employer, when authorized by the employee, deducting union dues from the employee’s wages so they may be remitted to the union. In Valley Hospital Medical Center, Inc. II, the Board recently reversed its 2019 decision in Valley Hospital Medical Center, Inc. I, where it held that employers are permitted to unilaterally stop union dues checkoff after the expiration of a CBA.
Generally, unionized employers are required to maintain the “status quo” or bargain over changes to the terms and conditions of employment under a CBA once it has expired absent valid impasse. However, as with many areas of labor law, this general rule is subject to numerous exceptions. Before an employer takes action related to its employees after the expiration of its CBA, it should examine the specific terms of the expired CBA as well as the most recent NLRB case law. As illustrated by Valley Hospital Medical Center, Inc. I & II, the NLRB frequently makes changes to the precedent it has established. Therefore, it is always critical to evaluate whether a seemingly permissible action is compliant with the NLRB’s current interpretation of labor laws.
For questions about union dues checkoff or other collective bargaining agreement obligations, contact the Barran Liebman team at 503-228-0500.
10/5/22: New Seattle Independent Contractor Requirements in Effect
October 5, 2022
The City of Seattle recently had a new set of requirements go into effect related to protections for independent contractors in the city, titled the Independent Contractor Protections Ordinance. If you have independent contractors currently working in Seattle, immediate action may be required.
The ordinance applies to any contractor that a “commercial hiring entity” hires who (a) has no employees, (b) performs any part of their work in Seattle, and (c) will receive or may reasonably expect to receive at least $600 in total compensation from you in any given year (importantly, this can be over several contracts). “Commercial hiring entities” is defined as a “hiring entity regularly engaged in business or commercial activity.” Under the law, a “hiring entity is regularly engaged in business or commercial activity if the hiring entity owns or operates any trade, occupation, or business, including a not for profit business[.]”
The ordinance requires that a hiring entity provide the following to any contractor who falls under those requirements:
A pre-work notice of rights under the ordinance;
A pre-work written notice that identifies the proposed terms and conditions of work and the terms and conditions of payment before starting work, including much of the information usually included in a formal independent contractor agreement or contract;
Timely payment in accordance with the terms and conditions of the pre-work written notice or contract, or if the contract is silent on the time for payment, within 30 days after the completion of services under the contract; and
A written notice that gives specific itemized payment information each time that payment is made.
Employers who contract with independent contractors that complete any part of their work in Seattle should review their current agreement forms and how they generally complete them to ensure that the required information is included and the level of detail required by the ordinance is met. Additionally, notices of rights under the ordinance and of itemized payment information to be included with any payment will need to be generated and provided to such contractors in compliance with the new requirements.
Importantly, the requirements apply retroactively to any ongoing contracts, so entities should review any ongoing contracts for anywhere work is or will be performed in Seattle, and make the required disclosures in those instances as soon as possible.
Click to access a PDF of this Electronic Alert.
For questions regarding Seattle’s Independent Contractor Protections Ordinance, contact Wilson Jarrell at 503-276-2181 or wjarrell@barran.com.
9/28/22: Certain Employees Covered by CBAs No Longer Exempt from Oregon Sick Time Law
September 28, 2022
By Nicole Elgin & Missy Oakley
In 2021, the Oregon legislature passed SB 588, removing the Oregon sick time exemption (located in ORS 653.646) for employees, other than longshore workers, covered under a collective bargaining agreement, who are employed through a third party (e.g., a hiring hall), and whose benefits are provided by a joint multiemployer-employee trust or benefit plan. Oregon sick leave requirements will now apply to these employees. This change becomes effective January 1, 2023.
Beginning January 1, 2023, employers utilizing hiring halls can still be in compliance with Oregon’s Paid Sick Leave requirements if:
The terms of the agreement provide a sick leave policy or other paid time off program that is substantially equivalent to or more generous than the minimum requirements of ORS 653.601 to 653.661 for the benefit of employees:
(a) Who are employed through a hiring hall or similar referral system operated by the labor organization or a third party;
(b) Whose terms and conditions of employment are covered by the multiemployer collective bargaining agreement; and
(c) Whose employment-related benefits are provided by the joint multiemployer-employee trust or benefit plan;
The trustees of the trust or benefit plan have agreed to the level of benefits provided under the sick leave policy or other paid time off program; and
The contributions to the trust or benefit plan are made solely by the employer signatories to the agreement.
Last Friday, Oregon’s Bureau of Labor & Industries filed a notice of proposed rulemaking related to SB 588. The notice states that BOLI plans to repeal OAR 839-007-0060, the rule that contains the sick time exemption. Deadline for public comment is 5:00 p.m. on October 31, 2022. Employers can anticipate the rule will be repealed.
In advance of the January 1, 2023, effective date, employers with unionized workforces should review whether repeal of this Oregon sick time exemption affects their employees and determine whether bargaining over the change with the union is required.
Click to access a PDF of this Electronic Alert.
For questions regarding Oregon’s sick time law, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com, or Missy Oakley at 503-276-2122 or moakley@barran.com.