3/29/23: NLRB General Counsel Issues Guidance Memorandum on Severance Agreements

March 29, 2023

The National Labor Relations Board (NLRB) Office of the General Counsel (GC) recently issued a memorandum providing guidance on how it is interpreting the Board’s recent opinion in McLaren Macomb. Check out our previous E-Alert on the McLaren Macomb decision here. The GC’s Memorandum does not carry the force of law, but it is important for employers to be aware of how the GC’s office intends to prosecute cases in light of the recent NLRB decision. In McLaren Macomb, the NLRB ruled that non-disclosure and non-disparagement provisions in agreements with employees will be unlawful if they restrain an employee’s exercise of their National Labor Relations Act (NLRA) Section 7 rights. The NLRB emphasized that employers offering such unlawful terms to an employee would be an unfair labor practice, and entering into an agreement with unlawful provisions would be a separate unfair labor practice.

Most importantly, the GC believes that McLaren Macomb has retroactive effect, meaning that it renders agreements entered into prior to the decision unlawful. Furthermore, the GC’s position is that an employee being bound by an agreement containing such unlawful provisions is a continuing violation and will not be barred by the usual six-month statute of limitations for unfair labor practice charges. The memorandum even suggests that employers may be required to notify former employees who signed severance agreements containing unlawful provisions.

The GC indicates that provisions imposing a duty of confidentiality for trade secrets or proprietary information should be lawful; however other restrictions of an employee’s right to disclose the terms and conditions of their employment remain unlawful. The memorandum reiterates the McLaren Macomb decision’s warning that non-disparagement provisions should not limit employee speech unless it is maliciously or recklessly defamatory.

The GC notes its opinion that a disclaimer in an agreement will not necessarily render overbroad provisions lawful. Overbroad provisions, even with a disclaimer that clearly spells out that Section 7 rights are not being restricted, could still have a chilling effect that compels an employee not to exercise such rights. Therefore, the GC views them as unlawful.

The memorandum clarifies that agreements containing unlawful provisions are not entirely void; rather, only the unlawful provisions will be void. The GC’s memorandum provides the caveat that other circumstances may justify completely voiding an entire agreement.

While supervisors cannot be bound by terms that would prevent them from cooperating in NLRB investigations or proceedings, they may be bound by broader confidentiality and non-disparagement restrictions than employees.

Many Oregon and Washington employers are wary of testing the limits of non-disparagement and confidentiality, given that they are already limited in their ability to utilize such provisions in severance and settlement agreements.  As such, employers should ensure their agreements with employees are drafted in consideration of the most up-to-date guidance available.

For questions regarding severance agreements or compliance with the NLRA, contact the Barran Liebman team at 503-228-0500. 

3/22/23: Washington’s L&I Issues New Guidance on Tips, Gratuities & Service Charges

March 22, 2023

The Washington State Department of Labor & Industries (L&I) recently released a draft administrative policy providing guidance to employers on how to comply with the Minimum Wage Act’s requirements for tips, gratuities, and service charges. The policy is subject to public comment and Washington employers are encouraged to submit comments to the agency through April 15, 2023.

Tips & Gratuities

The draft policy explains that tips and gratuities are “amounts freely given by a customer to an employee.” Tips and gratuities must be paid in full to employees, and employers may not count tips towards an employee’s hourly minimum wage. L&I provided examples of various practices that violate the Minimum Wage Act.

One example in the draft policy involves a group of temporary employees from a staffing agency who are hired to work alongside permanent employees at a concert venue. Under this example, the venue employer and staffing agency are considered “joint employers.” All employees were required to contribute all of their tips to a tip pool, but only the permanent employees were paid out from the tip pool. L&I found that this type of arrangement violates RCW 49.46.020(3) and that similarly-situated employees serving customers in the same way are expected to be subject to the same tip pooling. L&I further advises that all employers in a joint employer circumstance will be held responsible individually and jointly for compliance with the Minimum Wage Act.

Another example of a hazardous tipping practice under the Minimum Wage Act is managers collecting a share of a tip pool. L&I’s example involves employees of a café that employs servers, kitchen staff, and a manager. The manager waits tables and serves customers, but meets the definition of an “executive” employee. In this example, the employer is in violation of RCW 49.46.020 because the manager is ineligible to collect from the tip pool.

L&I provides another example of an employee bartender who receives tips. When the register is short because a customer did not pay their bill, the employer deducts the unpaid bill from the employee’s tips. This payment scheme violates the Minimum Wage Act, which prohibits employers from deducting cash register shortages or other business expenses from tips, gratuities, or service charges earned by employees.

Service Charges

Service charges are automatic charges added to a customer’s bill for services related to food, beverages, entertainment, or porterage. Mandatory gratuity automatically added to a bill at a restaurant for service of a party exceeding a set number of customers is an example of a service charge. Employers must pay employees all service charges, unless they provide a disclosure meeting the standards set out under RCW 49.46.160, which would allow the employer to keep clearly-disclosed portions of the service charge. As with tips, service charges cannot be counted towards an employee’s minimum wage.

One example provided by L&I emphasizes the importance of assessing wage practices under municipal laws in addition to the Minimum Wage Act. A porter is employed by a hotel in Seattle. Seattle has imposed a minimum wage exceeding the State’s minimum. The hotel imposes a service charge for each guest, disclosing that the charge is paid entirely to employees. The hotel counts the services charges paid to the porter towards his minimum wage. This is lawful, because the Seattle ordinance specifically allows businesses to credit service charges towards its minimum wage. Because the employer was paying a base wage in excess of the State’s minimum wage, while crediting its service charge payments towards the Seattle minimum wage as allowed by the ordinance, the payment policy was in compliance.

L&I’s guidance is a good reminder for employers to make sure they are in compliance with all applicable wage laws. For questions on compliance with wage laws and policies on tips, gratuities, and service charges, contact the Barran Liebman team at 503-228-0500.

3/20/23: HB 3205 Seeks to Exempt Hiring & Retention Bonuses from Oregon Pay Equity Requirements

March 20, 2023

By Natalie Pattison & Becky Zuschlag

On March 13, 2023, the Oregon Legislature’s Business and Labor Committee held a public hearing to consider HB 3205, which would modify the definition of “compensation” for purposes of pay equity requirements, to exclude hiring bonuses and retention bonuses.

Currently, the definition of “compensation” under Oregon’s Equal Pay Act includes wages, salary, bonuses, benefits, fringe benefits, and equity-based compensation.  This means an employer may only offer hiring or retention bonuses in two situations: if all employees performing work of comparable character receive the same bonus, or if the reason for the pay difference is based on one of the bona fide factors provided in the law.

HB 3205 aims to exempt hiring bonuses offered to prospective employees and retention bonuses offered to existing employee from pay equity considerations. This bill mirrors the Oregon legislature’s move during the pandemic to temporarily exempt hiring and retention bonuses from Oregon’s Equal Pay Act—allowing businesses the ability to pay these bonuses to address pandemic-related workforce challenges. That temporary exemption was in place until September 28, 2022. HB 3205 seeks to make that temporary exemption permanent.

If passed, HB 3205 will provide Oregon employers with greater flexibility in employment decisions and important tools to support ongoing efforts by employers to recruit, hire, and retain workers.

Oregon employers should stay on the lookout for important updates on this bill and reach out to counsel with any questions about the bill or compliance with Oregon’s Equal Pay Act.

Click to access a PDF of this E-Alert.

For any questions, contact Natalie Pattison at 503-276-2104 or npattison@barran.com.

3/17/23: Paid Leave Oregon: Are You Ready for Q2?

March 17, 2023

By Amy Angel

Certain Paid Leave Oregon requirements became effective on January 1, 2023, such as contribution and model notice requirements. With the end of Q1 fast approaching, we want to make sure employers of all sizes are on the right track. Below are upcoming deadlines to keep in mind as you continue to prepare for Paid Leave Oregon benefits to begin on September 3:

March 31, 2023: Deadline to Remedy Failure to Deduct Employee Contributions in Q1

Paid Leave Oregon is funded through employee and employer contributions. Unless an employer has applied for an Equivalent Plan, submitted a Declaration of Intent, or elected to pay the employee portion of the contribution requirement, employers of all sizes must be withholding contributions from their Oregon employees’ pay. Employers who fail to properly withhold the employee portion of the contribution are liable to pay those amounts unless they correct that failure within the same quarter.

May 31, 2023: Deadline to Apply for an Equivalent Plan that is Effective September 3, 2023

Employers that intend to apply for an Equivalent Plan that is effective when benefits under Paid Leave Oregon begin on September 3 must do so by May 31, 2023. This deadline also applies to employers that have alternatively opted to file a Declaration of Intent (DOI). Employers that have filed a DOI, but that fail to ensure the OED receives their Equivalent Plan application by May 31, will be liable for the sum of all unpaid employer and employee contributions due, as well as penalties and interest.

July 5, 2023: Deadline to Modify OFLA & FMLA Leave Years

Under Paid Leave Oregon, the benefit year is forward-looking. To the extent an employer’s current OFLA or FMLA leave policy uses a backward-looking benefit year, protected leave may not run concurrently when it otherwise could. To change the leave year under OFLA or FMLA, the employer must give employees 60 days’ notice. In anticipation of Paid Leave Oregon benefits beginning on September 3, 2023, employers should review whether they want to make a change to their OFLA or FMLA leave year and provide that notice to all employees by July 5, 2023.

For questions on compliance with Paid Leave Oregon-related policy updates, decision-making, or advice, contact Amy Angel at (503) 276-2195 or aangel@barran.com.

3/2/23: Supreme Court Weighs in on Salary Basis Requirement for Exempt Employees

March 2, 2023

By Missy Oakley

On February 22, 2023, the United States Supreme Court found that an employee who earned more than $200,000 a year was entitled to recover overtime pay under the Fair Labor Standards Act (FLSA). In Helix Energy Solutions Group, Inc. v. Hewitt, the Supreme Court examined whether the employer had properly classified the employee as exempt.

Facts of the Case

The employee in this case worked on an offshore oil rig for Helix Energy Solutions Group for 28 days on, followed by 28 days off. When he was on the rig, he typically worked 12 hours a day, 7 days a week, roughly 84 hours a week.

The employee was paid on a daily-rate basis every two weeks. His daily rate changed over time during his employment, but ranged between $963 to $1,341 per day. His pay was calculated by multiplying his daily rate by the number of days he worked in the pay period. Under this compensation scheme, the employee earned more than $200,000 a year. The employer classified him as “exempt” under the executive exemption test, so the employer did not pay him any overtime.

“Salary Basis” Test

To qualify for the executive exemption, which is one of the three commonly referred to “white collar” exemptions under the FLSA, an employee must satisfy three separate tests: (1) “salary basis” test, (2) “salary level” test, and (3) “duties” test. If even one test is not met, the employee does not qualify for the exemption. The employee argued he was entitled to overtime because his compensation structure did not meet the salary basis test.

An employee is considered to be paid on a “salary basis” under § 602(a) of the FLSA “if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” Section 602(a) also states that “an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked.”

Takeaways for Employers

The Supreme Court ultimately agreed with the employee, finding that the employer failed to pay him as required by the salary basis test under § 602(a). Accordingly, he did not qualify as an exempt employee and was entitled to overtime pay. The Court reasoned that even though the employee was paid on a bi-weekly basis, his pay was calculated using the number of days actually worked—meaning his pay was calculated with regard to the number of days he worked—in direct conflict with the rule.

Employers can have daily-rate workers satisfy the salary basis test and qualify for an exemption from overtime. Under § 604(b) of the FLSA, “if the employment arrangement also includes a guarantee of at least the minimum weekly required amount paid on a salary basis regardless of the number of hours, days or shifts worked, and a reasonable relationship exists between the guaranteed amount and the amount actually earned,” the employee meets the salary basis test. In this case, the employer admitted it did not meet the requirements in § 604(b), so it was not applicable.

The Court also discussed whether the employee could have been exempt under the FLSA’s “highly compensated employee” exemption, however, the Court found that exemption is still subject to the salary basis test.

This case is a great reminder that employers should make sure they are familiar with the salary basis requirements for their exempt employees.

Click to access a PDF of this E-Alert.

For questions about FLSA compliance, contact Missy Oakley at 503-276-2122 or moakley@barran.com.

2/23/23: NLRB Further Restricts Non-Disclosure & Non-Disparagement Provisions in Severance Agreements

February 23, 2023

By Nicole Elgin

Private sector employers will want to ensure that their severance agreements are in compliance with the National Labor Relations Board’s latest precedential decision. On February 21, 2023, the Board issued an opinion in McLaren Macomb, affecting releases of employees’ Section 7 rights under the National Labor Relations Act (NLRA). In this decision, the Board held that because the non-disparagement and confidentiality provisions in the employer’s release were unlawful, the employer offering the severance agreement to permanently furloughed employees was also unlawful.

The severance agreement language that the employer presented to 11 permanently furloughed employees in McLaren Macomb expressly restricted the employees from disclosing the terms of the agreement and other confidential information to third-parties. The agreements further required employees “not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer[.]” The agreement provided that the employer would be able to enforce those provisions with injunctive relief and seek substantial monetary damages against an employee in breach.

Importantly, the employer did not notify the employees’ union that it was furloughing the 11 employees nor that it was offering them a severance agreement, meaning the union had no opportunity to bargain and that the employer was in violation of clear direct dealing principles. The Board indicated that “agreements … that restrict employees from engaging in activity protected by the Act, or from filing unfair labor practices charges with the Board, assisting other employees in doing so, or assisting the Board's investigative process, have been consistently deemed unlawful.”

In its opinion, the Board made it clear that the risk of unfair labor practice charges is twofold with employee severance packages. Entering into a severance agreement with an employee that unlawfully restricts an employee’s NLRA Section 7 rights is one type of unfair labor practice. Additionally, the act of offering employees to enter into an agreement containing such unlawful provisions is itself another unfair labor practice.

The McLaren Macomb opinion comes amidst a nationwide trend to limit employers’ ability to enter into confidentiality and non-disparagement agreements with current and former employees. Importantly, the NLRA’s protections for employee conduct are not limited to unionized employees and apply to all “employees” as defined under the NLRA. Employers interested in entering into severance agreements containing limitations on employee disclosures or disparagement should ensure that the terms they are offering comply with the restrictions imposed by the recent wave of laws limiting non-disparagement and confidentiality agreements.

Click to access a PDF of this E-Alert.

For questions on compliance with the rules governing severance agreements and other limitations on employee disclosures, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

2/16/23: The End of the Round-Up? Oregon Federal Court Takes Issue with Employer Rounding Practices

February 16, 2023

By Sean Ray

Fear not—despite the clickbait title, the rodeo is safe. However, the practice of employers rounding employees’ work time to calculate pay may not be. Rounding has been used as a timekeeping method for years and was designed to make calculating employees’ time more practical in the days before everyone had a super-computer in their pocket. Rounding typically works in the following way, sometimes referred to as the “7-Minute Rule”: minutes 0-7 are rounded to 0 minutes, minutes 8-22 to 15 minutes, minutes 23-37 to 30 minutes, minutes 38-52 to 45 minutes, and minutes 53-60 to 60 minutes. The conventional wisdom is that neither the employee nor employer are disadvantaged because the pay balances in the end. For example, an employee may be underpaid when time is rounded down, but will be overpaid when time is rounded up, which, in theory, should even out at the end of the pay period.

This method of rounding employees’ work time is explicitly allowed under federal law, and some states allow it as well, such as our neighbors to the north up in Washington, so long as the rounding does not disadvantage employees overtime (that is, the rounding up and down must effectively even out). However, Oregon law is silent with respect to rounding employees’ time. Recall that employers must follow the law most favorable to the employee, so if federal law allows rounding but state law does not, then employers cannot round employees’ time for payroll purposes and must pay employees for every minute worked.

A recent federal case, Eisele v. Home Depot U.S.A., Inc., held that rounding is prohibited in Oregon and helped shed light on when an employer’s failure to pay an employee’s earned wages is considered “willful.” In the case, Home Depot used a time-keeping software system to log and keep track of employees’ time worked, and then rounded the time to the nearest 15-minute increment when paying out wages. In August of 2020, the plaintiff filed a class action complaint against Home Depot alleging that this rounding practice resulted in a violation of ORS 652.120 and 652.140, which both require that employers pay employees all wages earned and due.

The federal judge ruled that, although Oregon statutes are silent with respect to rounding (they neither allow nor prohibit it explicitly), the Oregon statutes require payment of wages for “all hours worked,” which is in direct conflict with rounding principles (since sometimes employees would not be paid for all hours worked when time was rounded down), particularly where, as was the case in this matter, the employer tracked every single minute worked prior to the rounding.

Nonetheless, Home Depot was able to escape liability for penalties associated with willfully failing to pay wages due to the law being sufficiently uncertain in this area, as well as the employer’s reasonable belief that its action was permissible. There were several factors that helped the judge conclude that the law was sufficiently uncertain, including previous litigation in California, the explicit allowance of the practice under federal law, and previous guidance by the Bureau of Oregon Labor & Industries (“BOLI”) that condoned rounding. However, now that there is a federal court case here in Oregon holding that rounding is not permitted, it may be harder for employers to avoid willfulness penalties in future actions.

In light of this decision, Oregon employers who currently use rounding should rethink their timekeeping and pay practices to ensure compliance with this result and other Oregon employment laws.

Click to access a PDF of this E-Alert.

For questions on compliance with these rules or if you would like assistance in reviewing your timekeeping and pay practices, contact Sean Ray at 503-276-2135 or sray@barran.com

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.