12/7/23: Senators Introduce Legislation to Include College Athletes as “Employees” Protected by the National Labor Relations Act

December 7, 2023

By Nicole Elgin & Joshua Waugh

On Wednesday, December 6, 2023, U.S. Senators Bernie Sanders, Chris Murphy, and Elizabeth Warren reintroduced the College Athlete Right to Organize Act (CARO). The bill seeks to amend the National Labor Relations Act (NLRA) to specifically include college athletes in the definition of employees who have collective bargaining rights and labor protections under the NLRA. U.S. Representative Jamaal Bowman also introduced similar legislation in the U.S. House of Representatives. If passed, the amendment to the NLRA would give student athletes the statutory right to organize into unions and bargain for their wages, hours, and other terms and conditions of employment.

Senators Murphy of Connecticut and Sanders of Vermont have attempted these changes to national labor law before, in 2021 and in 2019. There is companion legislation in the House of Representatives and support from five different professional sports unions. The Major League Baseball Players Association, National Football League Players Association, National Basketball Players Association, National Hockey League Players Association, and Major League Soccer Players Association have all endorsed labeling student athletes as employees.

This comes at a time when the National Labor Relations Board General Counsel’s office is also prosecuting cases to address the issue of whether student athletes should be considered “employees” under the NLRA. For example, the GC’s office filed a complaint in May 2023 against the University of Southern California, the Pac-12 Conference, and the NCAA, arguing that their failure to use the term “employee” in reference to student athletes in various policies unlawfully discourages athletes from exercising federal labor law rights.

Businesses and organizations involved in college sports should stay updated on potential changes to the law as student athletes having labor law rights under the National Labor Relations Act could fundamentally alter college athletics.

Click to access a PDF of this E-Alert.

For questions and updates on changes to the NLRA, contact Nicole Elgin at nelgin@barran.com or 503-276-2109 or Joshua Waugh at jwaugh@barran.com or 503-276-2138.

P.S. Both authors of this E-Alert are proud Huskies. Go Dawgs!

11/16/23: NLRB General Counsel Issues Guidance on a Post-Cemex World of Union Recognition

November 16, 2023

By Nicole Elgin & Joshua Waugh

The National Labor Relations Board’s (NLRB) General Counsel issued guidance on November 2, 2023, regarding the new standards for employer conduct when a union makes a demand for recognition. The General Counsel’s Memorandum GC 24-01 sets out substantial policy changes that all employers, currently unionized or not, should pay attention to in the aftermath of the Board’s momentous decision in Cemex Construction Materials Pacific, LLC. The sweeping changes also modify how initial demands for recognition must be made as well as the employer obligations that follow.

Just a few takeaways from the memo include:

1. The initial procedure for a union demand for recognition includes informal, oral demands for recognition to anyone acting as an agent of the employer. These oral demands trigger National Labor Relations Act rules and procedure, even if delivered to a lower-level manager without any duties or knowledge in labor management. If the employer does not file an RM petition within two weeks of receiving the demand for recognition, the union can seek a bargaining order from the NLRB.

2. The Cemex Board has widened the scope of employer behavior that will be scrutinized when determining whether an election was invalidated, and therefore must be remedied by a forced bargaining order.

3. Employer unfair labor practices during the “critical period” for an election, beginning on the date of the demand and running through the election itself, can trigger a remedial bargaining order even if there was only one minor violation. This means that rather than the NLRB ordering a new election, the NLRB will order the employer to bargain with the union.

4. The threshold for filing an employer RM petition to oppose the validity of a bargaining unit has increased, and employers must now carry the burden of not only identifying why the proposed unit is flawed, but also specifying the correct unit with an explanation.

In the post-Cemex world, the NLRB is strictly scrutinizing employer behavior as it relates to elections and demands for recognition. Employers need to act promptly if any agent of the employer receives a demand for union recognition.

Click to access a PDF of this E-Alert.

Employers with questions about compliance with the NLRB’s updated standards should contact Nicole Elgin at 503-276-2109 or nelgin@barran.com, or Joshua Waugh at 503-276-2138 or jwaugh@barran.com.

11/2/23: NLRB Broadens Joint-Employer Test with Final Rule

November 2, 2023

By Nicole Elgin

The National Labor Relations Board (NLRB) issued a Final Rule on the Standard for Determining Joint-Employer Status under the National Labor Relations Act (NLRA). The rule is effective December 26, 2023, and will expand the situations where multiple entities will be considered joint employers.

The NLRB’s new standard looks to whether the entities have an employment relationship with the employees and codetermines one or more of the employees’ essential terms and conditions of employment. The Final Rule defines “essential terms and conditions of employment” as:

(1) wages, benefits, and other compensation;

(2) hours of work and scheduling;

(3) the assignment of duties to be performed;

(4) the supervision of the performance of duties;

(5) work rules and direction governing the manner, means, and methods of the performance of duties and the grounds for discipline;

(6) the tenure of employment, including hiring and discharge; and

(7) working conditions related to the safety and health of employees.

The new rule’s key difference from the prior rule is that it does not require employers to actually exercise “substantial direct and immediate control” over the essential terms and conditions of employment. Under the new rule, an entity having the authority to codetermine the essential terms and conditions of employment will be sufficient to establish joint-employer status, regardless of whether an entity actually exercises that authority.

Joint-employer classification under the NLRA has many important impacts for organizations to understand, including that when entities are found to be joint employers, both can be liable for one entity’s unfair labor practices. Joint employers also have a duty to bargain collectively with the employees’ representative over terms and conditions of employment that the joint employer possesses the authority to control.

This Final Rule comes as one of many changes made to federal labor law in recent months. Employers should be aware of the impacts of joint-employer status and carefully assess whether this broader standard will create additional labor law obligations for their operations.

Click to access a PDF of this E-Alert.

Employers with questions about joint-employer status and other labor law issues should contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

10/11/23: Upcoming Changes to Washington’s Paid Sick Leave & Minimum Wage

October 11, 2023

By Nicole Elgin

Paid Sick Leave

In the 2023 legislative session, the Washington State Legislature passed Engrossed Substitute Senate Bill 5111 (ESSB 5111) requiring employers with construction workers who have not reached their 90th calendar day of employment to pay accrued but unused sick leave upon separation of employment. The bill was signed into law by the Governor and is effective January 1, 2024. The Washington Department of Labor & Industries (L&I) is currently in the administrative rulemaking process and will hold public hearings on November 7 and 8, 2023, on its proposed rules that will implement the new law.

The requirement broadly applies to employers who have workers covered under the North American Industry Classification System (NAICS) Code 23 construction. The rulemaking specifically defines “construction worker” as “any nonexempt employee covered under NAICS code 23. Employees who work for an employer that performs construction-related work, but who are not engaged in the construction work itself,” are also covered by the rule, including nonexempt administrative staff. Employers engaged solely in residential building construction (under NAICS 236100) are exempt from the requirements.

The proposed rules provide that accrued and unused sick leave may be paid to construction workers under a valid collective bargaining agreement, provided the collective bargaining agreement establishes equivalent sick leave provisions required by law. In addition to the changes relating to construction workers, L&I’s proposed rules also clarify that employers are not allowed to force employees to use their accrued, unused paid sick leave when a qualifying purpose occurs.

Minimum Wage

Washington’s minimum wage for workers 16 and older will increase from $15.74 to $16.28 per hour effective January 1, 2024 (a 3.4% increase). Employers should be mindful of local rules with minimum wages higher than the state minimum. For example, SeaTac’s minimum wage for hospitality and transportation employees is increasing to $19.71 per hour starting in 2024 (up from $19.06 this year). Tukwila and Seattle also have higher minimum wages, and their minimum wage increases for 2024 are expected to be announced this fall.

Determining the applicable minimum wage and whether an employer is required to pay out accrued and unused sick leave is complex. Washington employers should reach out to their employment counsel to ensure that they remain in compliance with the applicable laws.

For questions on leave, minimum wage compliance, or for any other labor or employment matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

9/28/23: The U.S. Department of Labor Announces Proposed Changes to the FLSA

September 28, 2023

By Nicole Elgin & Becky Zuschlag

On September 8, 2023, the United States Department of Labor (DOL) published a proposed rule that would change the Fair Labor Standards Act (FLSA) regulations for exempt executive, administrative, and professional employees.

Significant proposed revisions include:

• An increase to the standard salary level from $684 per week ($35,568 per year) to $1,059 per week ($55,068 per year).

• Increasing the highly compensated employee compensation threshold from $107,432 per year to $143,988 per year.

• Automatically updating the earning thresholds every three years.

The FLSA generally requires covered employers to pay employees minimum wage and overtime when an employee works more than 40 hours in a workweek. The FLSA provides categories of employees who are exempt from its regulations, including those who are “employed in a bona fide executive, administrative, or professional capacity.” Specific criteria must be met in order for an employer to classify employees as exempt under the FLSA. In particular, an employee (1) must be paid on a salary basis, meaning their salary is not subject to reduction based on the amount or quality of work performed; (2) must be paid a salary that meets the minimum specified amount; and (3) must have job duties that are primarily executive, administrative, or professional in nature, as defined in detail by the FLSA and DOL regulations and guidance.

The DOL’s proposed rulemaking is open for public comment until November 7, 2023. Many may remember the proposed increase to the exempt salary thresholds from 2016 that was blocked by the courts. Employers can expect to see similar legal challenges to this current rulemaking. In the meantime, employers should evaluate the potential impact of the proposed changes on their organization and be prepared to address the rules if they are finalized.

Click to access a PDF of this E-Alert.

For questions on FLSA compliance, contact Barran Liebman attorney Nicole Elgin at nelgin@barran.com or (503) 276-2109.

9/13/23: Flurry of Activity from the NLRB Creates New Rules for Employers

September 13, 2023

By Nicole Elgin

The National Labor Relations Board (NLRB) has issued several decisions and rules in the past weeks that create new standards for covered employers.

Employer’s Duty to Bargain Expanded

On August 30, 2023, the Board issued two decisions (Wendt Corporation and Tecnocap, LLC) that modify the standard for when an employer may lawfully make unilateral changes to the terms and conditions of employment for a unionized workforce. The Wendt Corporation decision removes an employer’s ability to rely on past practices of making unilateral changes before a workforce was unionized. In Tecnocap, LLC, the NLRB held that an employer’s past practice of unilateral changes developed under a management rights clause in a collective bargaining agreement (CBA) cannot beFlurry used as a basis for unilateral changes after that CBA expires. These opinions further restrict what actions employers of unionized workforces can take without providing the union notice and an opportunity to bargain.

Relaxed Standard for Proving Unlawful Employer Conduct

On August 28, 2023, the Board issued Intertape Polymer Corp., clarifying the standard for proving unlawful employer conduct. The current standard comes from a case called Wright Line and requires the General Counsel to establish that (1) an employee engaged in union-related or otherwise protected activity; (2) the employer had knowledge of that activity; and (3) the employer had union or protected concerted activity animus. Intertape states that the Board will evaluate all evidence in the record when determining if there is union animus and that direct or circumstantial evidence can be used. While the NLRB frames the Intertape decision as a clarification, it effectively lowers the General Counsel’s evidentiary burden to establish animus.

New Framework for Union Representation Proceedings

On August 25, 2023, the Board issued Cemex Construction Materials Pacific, LLC, providing a new framework for when employers must bargain with a union without an election. This case is a dramatic shift in the union election and representation process. Now, if a union requests recognition based on majority employee support, the employer must: (1) recognize the union and begin bargaining; or (2) immediately file an RM petition seeking an election to verify the union’s status as bargaining representative. If an employer commits an unfair labor practice that would require setting aside the election, the NLRB will dismiss the employer’s RM petition and order that the employer recognize and bargain with the union.

New Final Rule for Procedures for Representation Elections

On August 24, 2023, the NLRB adopted a Final Rule that changes procedures for representation elections. The NLRB issued this rule to eliminate the “new delays in the election process” created by the 2019 rule amendments. The Final Rule places more pressure on employers to be prepared to respond quickly when faced with a representation petition.

The changes introduced by the new rule include, but are not limited to:

• Shortened timeline for pre-election hearings to occur from 14 business days from service of a Notice of Hearing to 8 calendar days. The deadlines for non-petitioning parties to submit a response to an election petition (the statement of position) corresponds to the date of the hearing, and has therefore been advanced under the new rule. The Regional Director will have discretion to postpone pre-election hearings and the deadline for a party’s statement of position for up to 2 business days upon a showing of special circumstances. Additional extensions may be granted for extraordinary circumstances.

• Shortened deadlines for employers to distribute information to employees during elections. Under the new rule, employers must post the NLRB’s Notice of Petition for Election within 2 business days of service of the Notice of Hearing.

• Removed disputes over eligibility to vote and the scope of a proposed bargaining unit from the subjects resolved during the pre-election hearing.

• Removed 20-business day waiting period after a decision and direction of election (rendered after the pre-election hearing). The Regional Director must schedule elections for “the earliest date practicable” following its decision in a pre-election hearing.

Click to access a PDF of this E-Alert.

Employers with questions about compliance with the NLRB’s updated standards should contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

9/6/23: Common Questions Answered Regarding OFLA & Paid Leave Oregon

September 6, 2023

By Amy Angel

With Paid Leave Oregon benefits beginning on September 3, 2023, the Oregon Employment Department and the Oregon Bureau of Labor & Industries have published a fact sheet to answer common questions regarding the interaction between leave taken under Paid Leave Oregon and leave taken under the Oregon Family Leave Act (“OFLA”). Although Senate Bill 999, which amended both Paid Leave Oregon and OFLA, attempted to bring these two leave laws into alignment, there is still tension between the two laws.

Concurrency of OFLA & Paid Leave Oregon

Generally, employees are eligible to take 16 (or up to 18 weeks) of total leave—including both unpaid OFLA leave and paid leave taken under Paid Leave Oregon—during a Paid Leave Oregon benefit year. Additionally, if an employee’s reason for leave qualifies under both Paid Leave Oregon and OFLA, the leave must be taken concurrently. However, employers may not require that their employees apply for Paid Leave Oregon benefits.

In a nutshell, this means that OFLA leave taken prior to an employee beginning their Paid Leave Oregon benefit year will not reduce the amount of leave under Paid Leave Oregon they may be eligible to take. Similarly, OFLA leave taken before September 3, 2023, will not reduce the amount of leave under Paid Leave Oregon available.

However, assuming that the employer’s Paid Leave Oregon and OFLA benefit years are aligned, this potential for “stacking” is eliminated if an employee chooses to apply for and take Paid Leave Oregon first or concurrently with OFLA. However, if an employee’s reason for leave qualifies under both Paid Leave Oregon and OFLA, but the employee decides not to apply for Paid Leave Oregon benefits at the outset, then that employee is entitled to exhaust their OFLA leave (for up to 36 weeks of protected leave) and subsequently apply for Paid Leave Oregon (for up to 14 weeks of protected leave).

Conversely, if an employee’s reason for leave qualifies under both Paid Leave Oregon and OFLA, but the employee does decide to apply for Paid Leave Oregon benefits at the outset, then that employee will concurrently exhaust their Paid Leave Oregon and OFLA leave and may take up to a maximum of 14 weeks of paid leave under Paid Leave Oregon and up to an additional four weeks of unpaid OFLA leave during the same benefit year.

Intermittent Parental Leave

Additionally, the fact sheet notes that, while OFLA permits an employer to require an employee to take parental leave all at once, Paid Leave Oregon allows parental leave to be taken intermittently.  Accordingly, employers must allow employees using Paid Leave Oregon to take parental leave intermittently so long as they take time off in full day increments.

For additional information relating to Paid Leave Oregon, including all recent E-Alerts and publications that relate to Paid Leave Oregon, visit our Paid Leave Oregon webpage. 

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

8/29/23: Important Reminders for Employers About Oregon’s Wildfire Smoke Rules

August 29, 2023

By Hannah LaChance

With wildfire season in full effect, it is important for employers to remember their obligations under Oregon OSHA’s wildfire smoke protection rules.

When the air quality index (AQI) is at or above 101, primarily generated by wildfire smoke, the wildfire smoke rules apply to covered employers. Employers and employees with internet access can use free government apps and websites to determine air quality. Employers can also purchase testing devices to determine air quality. Testing must occur at the start of each shift and as needed to comply with the communication and exposure control requirements described below.

Key Requirements Under the Rules:

Annual Training: Each year, employers must ensure that employees and supervisors are trained on certain aspects of wildfire smoke protection, including how to use and maintain their filtering facepiece respirators. Only specific NIOSH-approved respirators can be used. Employers subject to the rule are required to provide respirators to employees at no cost.

Documentation: Employers must document that they trained employees and keep records of the training for at least one year.

Communication System: Employers must develop a two-way communication system between supervisors and employees that enables them to communicate wildfire smoke hazards before they are exposed. If changes in the air quality at the work location could necessitate an increase or decrease in the level of exposure controls, employers must inform employees. Employees must be able to report their concerns regarding exposure controls and health symptoms that could require medical attention.

Exposure Controls: Employers subject to the rule must implement certain exposure controls, including engineering and administrative controls (such as air filtering and ventilation in buildings and vehicles or re-locating workers). Moreover, when the AQI is at or exceeds 101, employers must provide filtering facepiece respirators to employees for voluntary use, and when the AQI reaches 251, they must be provided for mandatory use, unless use of the respirator would expose the employee to a substantially more serious injury or illness than the potential acute health effects of wildfire smoke exposure. Additional mandatory requirements apply when the AQI reaches 501. The exposure control requirement does not apply if “the employer can demonstrate that such controls are functionally impossible or would prevent the completion of work.”

If employees are likely to be exposed to an AQI of 101 or above, employers are required to implement a wildfire smoke assessment.

Exemptions:

Fully Exempt Workplaces & Operations

Employers are exempt from the rules when they have:

• Operations in enclosed buildings, structures, and vehicles in which air is filtered by a mechanical ventilation system, and when exterior openings are kept closed except when it is necessary to briefly open doors to enter or exit;

• Employees operating or riding in motor vehicles that have air filtered through a properly maintained cabin air filter system, and the windows, doors and other exterior openings are kept closed (other than briefly opening to enter or exit);

• Decided to suspend their operations to prevent employees from being exposed to wildfire smoke at certain levels; and

• Employees working from home.

Partially Exempt Workplaces & Operations

Other than the requirements to provide training and NIOSH-approved filtering facepiece respirators for employees to use voluntarily, employers are exempt from the rules when they have:

• Work activities in which employees have only intermittent exposure (less than 15 minutes of exposure in an hour to wildfire smoke levels of AQI 101, with a total of less than one hour in a single 24-hour period of exposure);

• Emergency operations that are directly involved in the protection of life or property, public safety power shutoffs, or restoration of essential services; or

• Operations that include wildland firefighting and associated support activities such as fire camp services and fire management.

Heat and wildfire-related illness may lead to a host of other issues, including workers’ compensation claims and the need for medical leave. Through the remainder of the warm and dry months, employers should ensure their policies and practices are in compliance with OR-OSHA’s heat and smoke rules.

Click to access a PDF of this E-Alert.

This E-Alert covers the basics of OR-OSHA’s highly technical and dense rules, and employers are encouraged to reach out regarding specific questions as the rules relate to your workplace. For questions, contact the Barran Liebman team at 503-228-0500.

8/25/23: IRS Issues Secure 2.0 Catch-Up Contribution Provisions Delay

August 25, 2023

By Jeff Robertson & Iris Tilley

Secure 2.0 placed certain limits on catch-up contributions.  In particular, where a plan offers catch-up contributions, Secure 2.0 included a mandate requiring plans to only allow catch-up contributions for those earning $145,000 (as adjusted) in the prior year if the contributions were made on a Roth basis.  Many plans and their providers have been discussing implementation of those provisions, and some plans have already elected to shift catch-up contributions to Roth for some or all employees beginning in 2024.   

Today, August 25, 2023, the IRS announced a two-year administrative delay to the implementation of this provision until January 1, 2026.  

Plans that have already elected to transition catch-up contributions to Roth contributions can elect to rescind that election or may begin implementation.  The IRS additionally provided a few clarification points on this provision and signaled its intention to provide more guidance.  Plans may wish to pause implementation until receiving this updated guidance.   

Click to access a PDF of this E-Alert.

For questions on catch-up contributions or for any other benefits questions, contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com.

8/15/23: Paid Leave Oregon: Employee Applications Are Live!

August 15, 2023

By Stacie Damazo

Today, the Oregon Employment Department (“OED”) announced that employees may begin applying for Paid Leave Oregon benefits from the state trust fund in English or Spanish via Frances Online. Employees will need to sign up for a Frances Online account to apply.

Although benefits under Paid Leave Oregon do not begin until September 3, 2023, the OED is encouraging employees to submit applications early to allow enough time to process initial claims. In addition, the OED states that employees should expect a two-week wait before they start to receive benefit payments.

For guidance on how to best prepare for Paid Leave Oregon benefits to begin on September 3, see our July 31 E-Alert summarizing recent legislative amendments and offering key compliance tips. For additional information relating to Paid Leave Oregon, including all recent E-Alerts and publications that relate to Paid Leave Oregon, visit our Paid Leave Oregon webpage. 

Click to access a PDF of this E-Alert.

For assistance drafting or revising your Paid Leave Oregon policy or assistance preparing for Paid Leave Oregon administration, contact Stacie Damazo at (503) 276-2121 or sdamazo@barran.com.

8/07/23: NLRB Adopts New Standard for Assessing Unlawful Workplace Rules

August 7, 2023

By: Nicole Elgin & Becky Zuschlag

On August 2, 2023, in its decision in Stericycle Inc., the National Labor Relations Board (NLRB) adopted a new legal standard for evaluating workplace rules. Now, when an employer’s rule or policy is challenged, the NLRB’s General Counsel must prove that the rule has a reasonable tendency to chill employees from exercising their rights under Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB explained that “an employer’s intent in maintaining a rule is immaterial.” Rather, if an employee could reasonably interpret the work rule to have a coercive meaning, then the General Counsel will meet their burden of proof. If the burden is met, the rule is presumptively unlawful.

The employer may rebut this presumption by proving that the rule advances a legitimate and substantial business interest, and a more narrowly tailored rule would fail to advance that interest. If the employer is successful in proving its defense, the work rule is lawful to maintain.

One of the policies at issue in Stericycle Inc. restricted employees’ use of personal cell phones to break time and required that these devices be stored in lockers during work hours. The Administrative Law Judge (ALJ), who heard the case prior to it going to the NLRB for review, found this policy to be lawful and not an explicit restriction of Section 7 activity. Another policy prohibited employee conduct “that maliciously harms or intends to harm” the company’s business reputation.  The ALJ found this policy was unlawful because it was vague and included a threat of discipline or termination. This combination was likely to cause employees to “reasonably construe the rule to prohibit Section 7 activity, in violation of Section 8(a)(1).” The NLRB directed the ALJ to reconsider the case, applying the new standard.

The NLRB’s decision rejects prior case law that used a categorical approach to assessing work rules and replaces it with a standard requiring “a particularized analysis of specific rules, their language, and the employer interests actually invoked to justify them.” The new standard builds on and revises the Lutheran Heritage standard and overrules Boeing Co. (2017) and LA Specialty Produce Co. (2019).

When drafting or revising workplace rules, policies, and handbooks, employers subject to the NLRA should consider whether a reasonable employee could interpret the rule as interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.

For questions on compliance with the NLRA, contact Nicole Elgin at nelgin@barran.com or (503) 276-2109.

8/02/23: EEOC Releases Updated Guidance on the ADA & Visual Disabilities

August 2, 2023

By Hannah LaChance

On July 26th, the U.S. Equal Employment Opportunity Commission (EEOC) issued an updated technical assistance document regarding the Americans with Disabilities Act (ADA) and visual disabilities. The guidance addresses how employers should handle voluntary disclosures regarding an applicant’s or an employee’s vision, as well as how to address safety concerns. The guidance also provides insight into the types of accommodations workers with visual impairments may need, including the availability of new free and low-cost technologies.

What Is a Visual Disability?

Under the ADA, a disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities.” This can include a variety of vision-related conditions, including blindness, low vision, limited visual fields, photosensitivity, color vision deficiencies, and night blindness.

Do I Need to Provide a Workplace Accommodation for a Visual Impairment?

Maybe. An employer must provide reasonable accommodations to individuals with disabilities, including those with visual impairments, except where the accommodation would cause an undue hardship on the employer.

Where an employee simply uses glasses or contact lenses to treat a visual impairment, no workplace accommodation may be needed because the visual impairment may not substantially limit a major life activity under the circumstances. However, in other circumstances, employers may need to explore offering one or more other accommodations which might be considered reasonable under the circumstances. This could include, for example, lighting adjustments to the employee work area, the use of a guide dog, or a screen reader.

Medical Inquiries

The ADA restricts when an employer can ask questions related to a disability. As reiterated in the EEOC’s newly released guidance, an employer cannot ask questions related to a visual disability before making a conditional job offer, nor may they ask the applicant to have a medical examination. An employer is, however, permitted to ask an applicant about their ability to perform job functions with or without reasonable accommodation, such as whether they can read labels on packages that need to be stocked.

After a job offer, if an applicant has disclosed that they have a visual impairment, an employer may ask follow-up questions such as what specific visual limitations the applicant experiences. A job offer can be contingent on the employee’s responses or passing a medical exam, but the employer must conduct follow-up questions in a non-discriminatory manner and with confidentiality in mind.

During employment, an employer is permitted to ask disability-related questions and/or require an employee to have a medical examination when the employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition, or that an employee will pose a direct threat at work due to a medical condition, among other circumstances.

Compliance with the ADA can be challenging. Employers should seek advice from counsel if they have questions regarding applicants or employees with disabilities.

Click to access a PDF of this E-Alert.

For questions about ADA compliance or any other employment matters, contact the Barran Liebman team at 503-228-0500.

7/31/23: Paid Leave Oregon: It’s a Go! What You Need to Know About Legislative Amendments & Key Policy Changes to Implement Before Employees Start Applying for Benefits on August 14

July 31, 2023

By Amy Angel

As required by Senate Bill 31, the Oregon Employment Department (“OED”) recently issued a press release stating that, based on current data and projections, the Paid Leave Oregon trust fund is ready for benefits to begin as planned on September 3, 2023. Covered individuals may begin applying for Paid Leave Oregon benefits via the OED’s online platform, Frances Online, on August 14, 2023.

In addition to the OED affirming the program’s solvency, the Oregon Legislature has passed (and Governor Kotek has signed) three bills that impact employers’ Paid Leave Oregon policies and procedures: Senate Bills 912, 913, and 999. Below is an overview of recent amendments to Paid Leave Oregon under Senate Bills 912 and 913. For an overview of Senate Bill 999, see our May 31 E-Alert on the alignment of Paid Leave Oregon and OFLA.

Senate Bill 913:

• Replaces the former place of performance test, which was intended to help employers determine whether to report employees’ wages to Oregon as compared to another state in which the employee may work in, report to, or reside, with language that mirrors Washington’s localization test.

• Expressly provides that an employer may permit an employee to use all or a portion of paid sick time, vacation leave, or any other paid leave earned by the employee in addition to Paid Leave Oregon benefits during a period of leave taken under Paid Leave Oregon. This language replaces the former requirement that an employee must only be brought up to 100% of their average weekly wage. This change allows employers to permit employees to use paid leave while waiting for their Paid Leave Oregon benefits to be processed and paid and will allow for more flexibility for employers who permit employees to “top off” their benefits.   

• Adds eligibility requirements for self-employed individuals and tribal government employees, such as a requirement that the individual has earned at least $1,000 in taxable income during the base or alternate base year.

• Removes the former $132,900 cap on employee wages (and self-employed individuals’ taxable income) subject to contributions under Paid Leave Oregon and, instead, aligns the maximum amount of wages subject to contributions with the Social Security contribution and benefit base limit established by the United States Social Security Administration.

Senate Bill 912:

• Allows the OED to recover overpaid benefits from covered individuals for up to five years following the date the decision establishing the overpayment became final. The methods by which the OED may recover overpaid benefits differ, depending on whether the overpayment was the result of the covered individual’s false statement or misrepresentation.

• Authorizes the OED to assess penalties against employers with non-compliant equivalent plans. The OED may waive collection of a penalty assessed, if (1) the employer corrects the violation within 30 days of receiving a notice of the violation, and the notice is for a first violation; or (2) the OED determines the violation to be an inadvertent error by the employer.

• Incorporates a penalty that may be assessed against assistance grant recipients who obtained the grant by fraud or misrepresentation. The penalty will amount to 50% of the total amount of the grant award.

What to Do Before September 3:

1. Update your Paid Leave Oregon, OFLA, and Oregon Sick Time policies to align with the amended definitions of “family member.” 

2. Align your Paid Leave Oregon, OFLA, and FMLA leave years, to the extent possible. For more information, please see our May 31 E-Alert.

3. Determine whether and to what extent you will permit employees to use other paid benefits during a period of leave taken under Paid Leave Oregon. Note that an employee has the right to use other paid time off during any period in which an employee’s Paid Leave Oregon benefits run concurrently with leave taken pursuant to OFLA.  

4. Confirm your required Paid Leave Oregon notice is posted and be prepared to share information with employees about how to apply for benefits.

5. Keep an eye out for forthcoming administrative rule changes.  

For assistance drafting or revising your Paid Leave Oregon policy or assistance preparing for Paid Leave Oregon administration, contact Amy Angel at (503) 276-1212 or aangel@barran.com.

7/27/23: What’s New with the Form I-9: An Updated Form, E-Verify & Reverification Requirements

July 27, 2023

By Amy Angel & Hannah LaChance

Many of the relics from COVID-19 have started to disappear, and remote inspection of Form I-9 documents is no exception. Starting in March 2020, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) gave employers flexibility to remotely verify documents for the I-9 process as many employers did not see their new hires in person to verify their documents. This practice is now ending.

An End to the Pandemic-Era Remote Verification

As of July 31, 2023, employers may no longer verify Form I-9 documents remotely. This means that, in general, checking documents via video link, fax, or email will no longer suffice.

However, beginning August 1, 2023, employers enrolled in E-Verify may verify Form I-9 documents electronically via a live video call. There is a specific process employers must implement if they wish to use E-Verify. The process begins with the employee sending copies of their I-9 documents to the employer. After receiving the documents, the employer must:

1. Look at copies of the I-9 documents (front and back) or an acceptable receipt to ensure the documents reasonably appear to be genuine.

2. Complete a live video interaction with the document-holder to ensure the documents reasonably appear to be genuine and related to the individual.

3. Mark on the Form I-9 that an alternative procedure was used to examine the documents for Section 2 or for reverification. On the new Form I-9, as discussed below, there is a checkbox for this.

4. Keep a copy of the documentation (front and back if two-sided).

5. In the event of an investigation or audit by federal agencies, make copies of the documentation available.

Reinspection of Documents is Required

Employers who conducted remote verification of Form 1-9 documents between March 20, 2020, and July 31, 2023, must inspect those identity and employment eligibility documents again. In general, an employer must physically reinspect the employee’s I-9 documents in the employee’s physical presence no later than August 30, 2023, and note the updated in-person inspection on the Form I-9.

Employers may use an authorized representative for this purpose. According to ICE, “an authorized representative can be any member of the general public, personnel officer, foreman, agent, or notary public where permissible,” but employees cannot be authorized representatives. Notary publics should not put a notary seal on the Form I-9, as they are not acting in their notary capacity when they verify the documents. The third-party representative must complete all the employer’s Form I-9 duties, including reviewing Section 1 of the Form I-9 after the employee completes it. However, employers will be liable for any violations regarding the I-9 form or verification, including any violations committed by the authorized representative.

Alternatively, beginning August 1, 2023, employers enrolled in good standing in E-Verify may re-inspect an employee’s Form I-9 documentation electronically via a live video call pursuant to the steps outlined above if all the following conditions are met:

1. The employer was enrolled in E-Verify at the time they performed the remote examination of the employee’s Form I-9 documentation;

2. The employer created an E-Verify case for the employee; and

3. The employer performed the remote inspection between March 20, 2020, and July 31, 2023.

To be in good standing, an employer must be enrolled in E-Verify for all hiring sites in the U.S. Employers qualified to use this alternate method may apply it consistently to all workers or to only those who are fully remote. However, a worker may decline to participate in the alternate procedure and submit documentation for an in-person physical inspection.  

Anti-Discrimination Requirements

Employers must be careful not to ask every employee to reverify their I-9 eligibility documents regardless of how they were originally verified, as unnecessary document requests can constitute employment discrimination based on citizenship or immigration. Additionally, employers must administer E-Verify in a non-discriminatory way. While solely using E-Verify for remote employees is acceptable, selecting employees based on criteria that aligns with a protected class is not.

New Form I-9

Beginning August 1, 2023, a new Form I-9 will be available for use. Employers will be required to use the new version beginning November 1, 2023, but can begin using it as of August 1.

The new Form I-9 is a streamlined version of the older version. Notably, it reduces Sections 1 and 2 to a single-sided sheet and reduces the instructions from 15 pages to 8 pages. As discussed above, the new form also allows employers to check a box indicating they examined the Form I-9 documents remotely through a DHS-authorized alternative procedure instead of through physical examination.

With big changes happening in the world of I-9s, it is a great time for employers to check their compliance with the new rules. Employers should contact a trusted legal advisor if they have questions regarding the new Form I-9 requirements.

Click to access a PDF of this E-Alert.

For any questions, contact Amy Angel at 503-276-2195 or aangel@barran.com.

7/26/23: Summer Is Here: Important Reminders for Employers About Oregon’s Heat Illness Prevention Rules

July 26, 2023

By Bruce Garrett & Hannah LaChance

With hot summer days upon us, employers should ensure they are in compliance with the Oregon Occupational Safety and Health Administration (“OR-OSHA”) heat illness prevention rules. The rules—which took effect last year and withstood legal challenges in the courts—apply when the heat index, also referred to as “apparent temperature,” is at or above 80 degrees, with additional requirements setting in when the heat index is at or above 90 degrees. (The heat index factors in both the air temperature and relative humidity. The National Institute for Occupational Safety and Health has developed a mobile application that calculates the heat index in real time.)

Below is a summary of the basic requirements for non-agricultural employers:

Requirements When the Heat Index Is Between 80 & 89 Degrees:

Access to Shade: Employers must provide at least one “shade area.” This area cannot expose employees to unsafe or unhealthy conditions or discourage them from using the shade area. The shade area must be able to accommodate at least the number of employees on recovery, rest, or meal periods so they have room to sit. If providing a shade area is not practical or safe (such as setting up a shade structure in high winds), the employer must identify and provide other cooling measures that provide the same level of protection as shade would.

Drinking Water: Employers must always provide access to cool or cold drinking water. There must be enough drinking water provided that each employee can consume 32 ounces of water per hour. The rule allows employers to supply electrolyte-replenishing beverages (such as sports drinks) so long as the drinks do not contain caffeine and do not completely replace required water supplies.

Heat Illness Prevention Plan: There are certain requirements for what the plan must contain, including the employer’s plan for training employees on the hazards of heat exposure and preventing heat illness. The employer must also provide explanations of other specific ways the employer will prevent heat illness, including how the employer will provide enough cool, potable water in work areas and how they will implement heat acclimatization procedures.

Emergency Medical Plan: Employers must create and implement an emergency medical plan addressing the identification and response to possible heat illness as well as contacting and communicating with emergency medical responders.

Acclimatization: Employers must either develop their own plan for allowing employees to gradually adapt to the heat at the worksite or follow the National Institute for Occupational Safety and Health (NIOSH) guidance, but OR-OSHA notes that the acclimatization plan is not one-size-fits-all, and that employers must consider employee fitness as well as the effects of direct exposure to sunlight when determining whether the employee has been properly acclimatized.

Training: All employees must be trained annually in heat illness risk factors, how to adapt to working in a hot environment, and the procedures for complying with the requirements of this standard before they can begin work at a worksite where the heat index will be 80 degrees or higher. Employers must maintain a record of the training that contains the name or identification of each employee trained, and the name of the person who conducted the training.

Requirements When the Heat Index Is Above 90 Degrees (“High Heat Practices”):

In addition to the above requirements, employers must implement the following when the heat index exceeds 90 degrees:

Effective Communication & Monitoring: Employers must have a voice, observation, or electronic communication system in place so that employees can contact a supervisor when necessary. This can occur via cell phone or text only if reception in the location is reliable. Employers must have a system to monitor employees for signs of heat illness. This can include regular communication with employees working alone, a mandatory buddy system, or another equally effective method. Employers must assign at least one employee and equip them with the ability to call for emergency medical services. Employers must allow other employees to take on this role when the designated employee is not available.

Heat Illness Prevention Rest Breaks: The required work and rest schedules for employees depend on the adjusted temperature (which factors in the amount of sunlight and relative humidity) and the level of physical exertion required. The requirements can be complicated and employers should reference OSHA’s administrative rules table when creating their rules. Generally, employers must ensure that each employee takes a minimum 10-minute rest period in the shade every two hours regardless of the length of the shift. Employers should consider the effect of exposure to direct sunlight when developing their own heat illness prevention and rest break schedules. If the heat index is 100 degrees or greater, 15-minute cool-down breaks must be provided every hour.

Exemptions:

Employers are fully exempt from the rules when:

• Employees are exposed to heat generated from the work process—for example, bakeries. (But note, in these situations, employers are still required to take measures to control the conditions or control the effect on the employee pursuant to separate OR-OSHA regulations).

• Employees work in buildings or structures that have mechanical ventilation systems, such as central air conditioning, which keeps the heat index below 80 degrees.

• Employees that have incidental heat exposure for no more than 15 minutes in any 60-minute period.

• Employees are engaged in emergency operations that are directly involved in the protection of life or property or restoration of essential services, such as rescue, medical, firefighting, law enforcement, and utilities, when employees are engaged in those operations.

Employers are partially exempt from the rules when:

• Employees perform “rest” or “light” workloads (such as sitting, thinking, writing, driving, or standing watch), and the heat index is below 90 degrees.

• Employees work from home (but these employees are not exempt from the training requirements discussed below).

• Employees are engaged in associated support activities for wildland firefighters, such as fire camp services and fire management (but these employees are exempt only from the acclimatization plan described below).

OR-OSHA’s heat illness prevention rules are dense, technical, and ambiguous in places. The implementation of training and monitoring employee compliance can be tricky. Employers who have employees exposed to high heat should consult with a Barran Liebman attorney to ensure that they are in full compliance with the rules.

Click to access a PDF of this E-Alert.

For questions, Bruce Garrett can be contacted at 503-276-2175 or bgarrett@barran.com.

7/18/23: Oregon Adds Independent Contractors to Child Support Reporting Requirements

July 18, 2023

By Hannah LaChance

Earlier this summer, Governor Kotek signed Senate Bill (SB) 184, which modifies the child support reporting requirements for Oregon employers.  Starting January 1, 2024, employers will need to include independent contractors in their reports to the Division of Child Support of the Department of Justice. Employers will be required to report any independent contractors engaged or reengaged on or after this date.

Oregon employers presently play a significant role in the child support system. Under current law, employers must report newly hired or rehired employees within 20 days to the Division of Child Support of the Oregon Department of Justice. “Employees” include any individual who must fill out an IRS W-4 form, which includes temporary staff. “Rehired” employees include any employee who is returning after being laid off, separated, furloughed, granted leave without pay, or terminated from employment for more than 60 days.

Employers are still required to withhold income after receiving an “income withholding order” (IWO) for an employee until they receive an official notification to stop withholding income. Employers must send this income to the Oregon Child Support Program. When an employee whose wages are subject to an IWO ends their employment, employers must also notify the child support agency so the agency can contact the employee’s new employer.

Under SB 184, employers are now subject to similar reporting requirements for independent contractors. Employers must report independent contractors to the Division of Child Support of the Oregon Department of Justice within 20 days of their engagement or reengagement. Pursuant to the new law, “independent contractors” means someone who is required to complete an IRS W-9 form and who is expected to perform services for more than 20 days. “Reengagement” means an independent contractor who previously performed services for the employer, but who has not performed services for them within the previous 60 days.  

These employer reporting obligations apply if the employer has employees or independent contractors working exclusively in Oregon, or in the case of multi-state employers, if the employer has designated Oregon as the employee’s reporting state to the U.S. Secretary of Health and Human Services. Employers must report the employee or independent contractor’s name, first date of work, mailing address, and social security number. In addition, the employer must include the employer’s name, address, and tax identification number. Employers can file reports either through the Oregon Employer Services Portal or by completing the Oregon New Hire Reporting Form and faxing or mailing it to the Division of Child Support of the Oregon Department of Justice. Failing to properly report or withhold income can expose employers to liability, including damages, monetary penalties, and attorneys’ fees. Employers should review their child support reporting policies and procedures to ensure compliance with this new law prior to January 1st of 2024.

Click to access a PDF of this E-Alert.

For questions about child support reporting requirements, or any other employment matters, contact the Barran Liebman team at 503-228-0500.

6/30/23: U.S. Supreme Court Sets New Standard for Evaluating Religious Accommodations

June 30, 2023

By Chris Morgan & Hannah LaChance

Yesterday, the United States Supreme Court set new standards for the evaluation of religious accommodations in the workplace.  Title VII of the Civil Rights Act of 1964 provides that employers must accommodate the “religious observance and practice” of employees and prospective employees unless the employer shows that such accommodation would cause “undue hardship on the conduct of the employer’s business.”

Under the previous standard, an undue hardship was interpreted simply as anything that presented “more than de minimis cost” to the employer.  Yesterday’s ruling in Groff v. DeJoy set a higher bar.  According to the Court, an employer must now provide a religious accommodation unless they can show that doing so would result in “substantial increased costs in relation to the conduct of [the employer’s] business.”

In determining whether an undue hardship exists under the circumstances, the U.S. Supreme Court directs that, from here forward, courts should evaluate “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size, and operating cost of [an] employer’.”

Employers should be aware of this new standard and amend their policies accordingly for purposes of evaluating employee requests for religious accommodations. It is too soon to know whether the decision will be applied in a way that informs the standard used for assessing other types of mandated accommodations such as under the ADA or the new the Pregnant Workers Fairness Act. 

Click to access a PDF of this E-Alert.

For questions on religious accommodations or for any other employment matters, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.

6/29/23: Big Changes in Higher Education as the U.S. Supreme Court Strikes Down Affirmative Action

June 29, 2023

By Natalie Pattison & Melissa Creech

In a major decision released today, the U.S. Supreme Court struck down affirmative action in higher education, limiting the use of race as a factor in college admissions. The Court held that Harvard College and the University of North Carolina’s admissions policies are unlawful, rejecting arguments that their admissions programs are warranted to ensure campus diversity.

The Court held that admission programs allowing for racial considerations violate the Constitution’s guarantee of equal protection and Title VI of the Civil Rights Act of 1964.  The Court stated that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality—it is “universal in [its] application.” Moreover, “Title VI is coextensive with the Equal Protection Clause.” The Court declared that both “programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” Where the Equal Protection Clause applies to public universities and organizations, private organizations and universities need to adhere to Title VI of the Civil Rights Act of 1964. 

Although the Court rejected the current practices at Harvard and University of North Carolina, “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

Importantly, the impact of the Court’s decision is not necessarily limited to higher education—it has the potential to impact all educational admission programs and could lead to increased scrutiny of diversity, equity, and inclusion programs across the country and across industries. Organizations with programs (such as fellowship or scholarships) that have been used to increase diversity could also face potential challenges.

Notably, the Equal Employment Opportunity Commission (EEOC) Chair promptly issued a statement to express the agency’s view that the Court’s opinion “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” One message from today’s opinion, however, is that the manner in which those programs are implemented and managed can be very important. 

Click to access a PDF of this E-Alert.

For any questions about this decision or for any other higher education or employment matters, contact Natalie Pattison at 503-276-2104 or npattison@barran.com.

6/28/23: Now in Effect: What to Know About the Pregnant Workers Fairness Act

June 28, 2023

Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) now requires employers with 15 or more employees to provide reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that providing an accommodation would impose an undue hardship on the employer’s business operations. While Oregon law already provides similar protections to workers under ORS 659A.147, employers who have employees working in other states should pay special attention to this new federal law.

Generally, to qualify for protection under the PWFA, an employee or applicant must be able to perform the essential functions of the position, with or without a reasonable accommodation. However, an employee or applicant will still qualify under the PWFA if: (1) any inability to perform an essential function is for a temporary period; (2) the essential function could be performed in the near future; and (3) the inability to perform the essential function can be reasonably accommodated.

More specifically, the PWFA makes it an unlawful employment practice for employers to:

• Fail to provide a reasonable accommodation for a qualified employee’s known limitation related to the pregnancy, childbirth, or a related medical condition (unless the accommodation would impose an undue hardship on the employer’s business operations);

• Require a qualified employee to accept an accommodation without a discussion about the accommodation between the employee and the employer (i.e., without engaging in the interactive process);

• Deny a job or other employment opportunity to a qualified employee or applicant based on the individual’s need for a reasonable accommodation;

• Require a qualified employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;

• Retaliate against a qualified employee or applicant for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or

• Interfere with any individual’s rights under the PWFA.

The U.S. Equal Employment Opportunity Commission (EEOC) has additional guidance to assist employers in complying with the PWFA. Employers should also review their handbooks and pregnancy accommodation policies, as well as train supervisors, managers, and HR staff about how to implement these policies moving forward.

For questions related to the Pregnant Workers Fairness Act or other employment laws, contact the Barran Liebman team at 503-228-0500. 

6/27/23: Washington Employers Should Think Twice Before Searching Employee Vehicles

June 27, 2023

By Andrew Schpak & Melissa Creech

Effective July 23, 2023, Washington House Bill 1491 goes into effect.  Washington employers are no longer able to search an employee’s privately-owned vehicle, even if it is on their property and the employee waives their privacy right.

There are several exceptions to the law, including where:

• The employer owns or leases the vehicle;

• The search is conducted by law enforcement;

• An inspection is required to ensure it is suited for required/authorized work-related activities;

• It is a security inspection of a vehicle on state or federal military property;

• The vehicle is located on the premises of a state correctional institution;

• Specific employer areas are subject to searches under state or federal law; or

• It is necessary to prevent an immediate threat to human life, health, or safety.

There is also an exception where an employee consents to the search based on probable cause that an employee unlawfully possesses employer property or controlled substances in violation of both federal law and the employer’s written policy prohibiting drug use. (In these circumstances, an employee needs to provide consent immediately prior to a search and can request a witness to be present.)

With this new law, a Washington employer cannot require, as a condition of employment, that an employee waive these protections. Nor can an employer take any adverse action against an employee for exercising their rights under this statute. Adverse actions include (1) denying or delaying wages owed; (2) terminating, suspending, demoting, or denying a promotion; (3) reducing an employee’s work hours or altering a preexisting schedule; (4) reducing pay; and (5) taking action or threatening to take action based on the employee’s or family member’s immigration status.

With this law going into effect, it is a good time for Washington employers to review their handbooks, and in particular, their Drug and Alcohol policy and policies governing the search of employees and their vehicles. If you do not currently have a policy providing for the search of employee vehicles on company property, it is a good time to consider adopting one.

Click to access a PDF of this E-Alert.

For questions about Washington House Bill 1491 or for any other employment-related matters, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com.