3/7/24: Update: Dartmouth Basketball Players Vote to Unionize

March 7, 2024

By Nicole Elgin & Natalie Pattison

Dartmouth Update

In a historic vote, Dartmouth College’s men’s basketball players voted 13-2 in favor of joining Service Employees International Union (SEIU), Local 560. While student athletes have tried to form unions in years past, this makes Dartmouth the country’s first unionized college sports team. Our previous E-Alert details the recent NLRB board decision that paved the way for this vote.

Broader Implications for Colleges & Universities

Dartmouth’s vote to unionize is just another step in a broader trend of converting student athletes to employee status under several laws, not just the National Labor Relations Act. For instance, pending litigation in the Third Circuit (Johnson v. NCAA) asks whether student athletes could be employees under the Fair Labor Standards Act because of their participation in interscholastic athletics. The implications of converting student athletes to employee status are broad. For example, considerations could include wage and hour scheduling requirements, meal and rest breaks, overtime tracking, tax implications, employee benefits programs, non-payroll expenses, workers’ compensation, paid and unpaid protected leave, and other federal and state laws governing employment (e.g., pay equity laws, the Affordable Care Act, age discrimination laws, etc.).

Evolving Discussion for All Employers

All employers should be paying attention to these developments, as they signal a larger discussion about how the idea of employees is evolving more broadly (not just in collegiate athletics) and how employment and labor law protections are being applied in a broader sense than they have been in the past. Employers should stay abreast of these developments, as the agency often works like a pendulum depending on the administration. Oregon employers should also note that state law covering public sector employees is different (but often more generous) to employees than federal law in Oregon. 

Click to access a PDF of this E-Alert. 

For any questions, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com, or Natalie Pattison at 503-276-2014 or npattison@barran.com.

2/28/24: Big Changes to OFLA & Paid Leave Oregon Are Coming (Again)

February 28, 2024

By Amy Angel & Stacie Damazo

The Oregon legislature has passed Senate Bill 1515 A to repeal the provisions of the Oregon Family Leave Act (“OFLA”) that are duplicated by Paid Leave Oregon and to minimize stacking of leave under these two laws. We anticipate that Governor Tina Kotek will sign the bill into law in the coming days. Except as noted below, the majority of the changes will go into effect on July 1, 2024, which means Oregon employers have four months to prepare for the changes.

Here are the key highlights:

• OFLA will no longer cover parental leave or serious health condition leave. Leave for these purposes will only be available under Paid Leave Oregon.

• Sick child leave under OFLA is expanded. An employee may take leave under OFLA to care for a child suffering from any illness, injury, or condition that requires home care (even if it may qualify as a serious health condition). An employee may still also use OFLA sick child leave to care for a child whose school or place of care has been closed in conjunction with a statewide public health emergency declared by a public health official.

• Bereavement leave under OFLA is capped at four weeks per year. An employee’s entitlement to bereavement leave under OFLA will be capped at four weeks per leave year.

• OFLA still allows for an additional 12 weeks of pregnancy disability leave. In addition to any other OFLA leave used for sick child leave and bereavement leave, an employee may still take up to 12 additional weeks of OFLA leave for their own pregnancy disability in the same leave year.

• OFLA is temporarily amended to cover two additional weeks of leave for the fostering or adoption process.  In addition to the OFLA leave above, between July 1, 2024, and December 31, 2024, an employee may take an additional two weeks of OFLA leave to effectuate the legal process for the placement of a foster child or the adoption of a child.

• OFLA leave will be in addition to leave under Paid Leave Oregon. That is, OFLA leave may not be taken concurrently with any leave under Paid Leave Oregon.

•  Use of PTO during a period of leave under Paid Leave Oregon is changing (again). An employee will now be permitted to decide whether to use any accrued paid time off in addition to their Paid Leave Oregon benefits, as long as the total amount received by the employee does not exceed their regular pay. However, an employer may still permit an employee to use their paid time off such that the total combined amounts exceed their regular pay.

• Family leave under Paid Leave Oregon will include leave for the fostering and adoption process. Beginning January 1, 2025, Paid Leave Oregon will include leave to effectuate the legal process required for the placement of a foster child or the adoption of a child.

• Predictive scheduling relief. Employers will be exempt from the predictive scheduling compensation penalties if (1) an employee provides less than 14 days’ notice of the need for or return from leave under Paid Leave Oregon, OFLA, or any other leave under ORS Ch. 659A, and (2) the employer makes a change to the schedule of an employee who was temporarily assigned to specific shifts to cover for an employee on leave.

In response to these changes, employers should take the following actions:

1. Revise leave policies, including OFLA, Paid Leave Oregon, as well as FMLA policies if they are integrated with an OFLA policy.

2. Update leave tracking systems.

3. Inform employees about these upcoming changes.

4. Watch for revised rules and posters.

Click to access a PDF of this E-Alert.

To discuss how SB 1515A impacts your leave policies and administration, contact Amy Angel at (503) 276-2195 or aangel@barran.com, or Stacie Damazo at (503) 276-2121 or sdamazo@barran.com.

2/21/24: Be Aware of the Corporate Transparency Act

February 21, 2024

By Jeff Robertson & Iris Tilley

Flying under the radar in the general news is the Corporate Transparency Act (“CTA”), requiring filing from certain eligible entities.

The CTA is intended to counter the use of shell companies utilized for financial and tax fraud and illicit corporate practices.  While there are few bad actors, the CTA requires a large number of entities to file information regarding the individuals who own or control the company.  If this is the first time you have heard of the CTA, you are not alone. 

Reporting Entities

A Reporting Company is broadly defined.  It means a company that is created by the filing of a document such as a registration with the State Corporation Division.  Exempt entities include those entities already regulated elsewhere such as public companies, insurance providers, 501(c)(3) nonprofits (but not other nonprofit organizations), and governmental entities.  There is also an exemption for “large operating companies.”

Entities Formed After 1/1/2024 vs. Existing Companies as of 1/1/2024

Anyone forming a new entity in 2024 should evaluate whether they must file under the CTA within 90 days of formation.  Entities operating prior to 1/1/2024 have a longer period to consider filing. 

Penalties

As the CTA is part of a broader national security package, the penalties for noncompliance are steep and serious. 

Next Steps

All entities should make a considered evaluation regarding the CTA impact and filing requirements.  Contact Jeff Robertson, Iris Tilley, or your Barran Liebman attorney to receive additional information regarding the CTA and its requirements. Jeff Robertson can be reached at 503-276-2140 or jrobertson@barran.com, and Iris Tilley can be reached at 503-276-2155 or itilley@barran.com.

Click to access a PDF of this E-Alert.

2/20/24: NLRB Regional Director Rules that Dartmouth Basketball Players are Employees

February 20, 2024

By Nicole Elgin & Natalie Pattison

On February 5, 2024, the National Labor Relations Board (NLRB) Regional Director for Region 01, issued a decision that Dartmouth College’s men’s basketball players are employees under the National Labor Relations Act (NLRA) and may vote to unionize (a vote which could make them the first unionized NCAA athletes).

Dartmouth Basketball Players are Employees

The Regional Director concluded the Dartmouth men’s basketball players are employees under the NLRA based primarily on the following: 

A. The basketball players perform work that benefits Dartmouth, regardless of whether the basketball program is profitable; 

B. Dartmouth has the right to control the work performed by the men’s varsity basketball team; and

C. The basketball players perform that work in exchange for compensation.

Compensation: Although the players do not receive athletic scholarships, the Regional Director concluded that they still received compensation in other ways, including equipment and apparel (e.g., basketball shoes), tickets to games, lodging, meals, the benefits of Dartmouth’s Peak Performance program, and other fringe benefit payments such as academic support, career development, sports and counseling psychology, sports nutrition, leadership and mental performance training, strength and conditioning training, sports medicine, and integrative health and wellness. According to the Regional Director, another form of compensation is the benefit of “early read” for admission prior to graduating high school.

Vote to Unionize Scheduled

Upon determining that the basketball players are employees within the meaning of the NLRA, the Regional Director issued a direction of election to allow the approximately fifteen students who comprise the men’s basketball team to vote on whether to be represented by Service Employees International Union (SEIU), Local 560.

A vote to unionize is scheduled for March 5, 2024.

Appeal of Decision Likely

Dartmouth is reportedly appealing the decision to the NLRB in D.C. The NLRB previously addressed student-athletes at private universities in a 2015 case involving Northwestern University, but ultimately declined to exercise jurisdiction over the football players seeking to unionize.

Other Proceedings & Proposals Pending

The overarching question in this case is a familiar one: are student-athletes employees? Although the NLRA does not apply to public employers, the Dartmouth ruling is just the latest development in a wave of various proposals and proceedings that could require colleges and universities to convert their student-athletes to employee status. (See our previous E-Alert for more details on one of those proposals: the College Athlete Right to Organize Act).

Click to access a PDF of this E-Alert.

For questions, contact Natalie Pattison at 503-276-2104 or npattison@barran.com, or Nicole Elgin at 503-276-2109 or nelgin@barran.com.

2/8/24: Can the NLRB Really Require Employers to Reopen Closed Stores?

February 8, 2024

By Nicole Elgin & Joshua Waugh

On December 13, 2023, the prosecutorial wing of the National Labor Relations Board (NLRB) moved to compel Starbucks to “immediately reopen” stores that it had recently closed. While only eight of the stores had unionized, the NLRB counsel seeks to force Starbucks to reopen 23 stores.

Can the NLRB force employers to reopen closed stores?

Yes, unless the employer shows that it would be “unduly burdensome.” The National Labor Relations Act (NLRA) gives the Board broad remedial powers, including the power to order remedies that “make whole” the employee who was wronged.

Take the RAV Truck & Trailer Repairs series of decisions from 2020 - 2022. In 2020, the NLRB found that an employer unlawfully laid off employees who signed union authorization cards and partially closed down in 2018 with the purpose of chilling union activity. The Board ordered the employer to reopen its business, restore operations as they had been in 2018, reinstate two employees, and bargain with the union.

The employer appealed and the D.C. Circuit Court of Appeals sent the case back to the NLRB noting that “the Board typically orders an employer to restore the status quo by reestablishing a discriminatorily closed operation unless the employer can show that such a remedy would be unduly burdensome.” Here, the Court said that the NLRB “failed to cite any authority to support the legal legitimacy of an order … to compel a company to ‘reopen’ an operation that no longer exists due to the loss of a lease …”.

On remand, the NLRB found that the employer showed an undue burden because it no longer had a lease and restoration would have required renewing a lease that ended 4 years prior and none of the employer’s other facilities were suitable to house RAV.

When is closing a store unlawful under the NLRA?

The Labor Board generally looks to a line of cases stemming from the Supreme Court case Textile Workers Union v. Darlington Manufacturing Company to determine whether or not store closures are unlawful. In that case, the Supreme Court held that an employer has the right to completely terminate its business, even if motivated by antiunion animus. However, a partial closing is unlawful if it is “motivated by a purpose to chill unionism.” Generally, the factors identified in Darlington that are used to identify when an employer’s closure constitutes an Unfair Labor Practice under the NLRA are:

1. Whether the employer has an interest in another business that could benefit from discouraging unionization via store closure;

2. Whether the employer closed the store in question for the purposes of chilling union activity; and

3. If it is foreseeable that employees at another branch or store will be discouraged from engaging in unionization.

Employers should seek labor counsel when considering a partial closure, especially if there is known union activity.

Click to access a PDF of this E-Alert.

Employers with questions about business closures and labor compliance should contact Nicole Elgin at 503-276-2109 or nelgin@barran.com, or Joshua Waugh at 503-276-2138 or jwaugh@barran.com.

2/7/24: Remember to Storm-Proof Your Inclement Weather Policy

February 7, 2024

By Amy Angel

With the ice and snowstorm causing so much disruption last month, many employers are reviewing their inclement weather policies to ensure compliance with best practices and applicable laws, especially when it comes to whether to pay employees for missed time.  Here are a few considerations to be sure you are ready for the next major weather event.

Be sure your policies are clear on how and when employees will be notified in the event you decide to close due to inclement weather.  For unionized employers, inclement weather policies are mandatory subjects of bargaining.

Even if you remain open, most businesses should leave it to each employee to decide whether it is safe for them to report to work based on the conditions in their immediate area.  State who they must report to in the event they will be late or are unable to report to work.  If employees are expected to work from home, your policy should address that as well.

Be clear whether an employee will be paid for missed time or if they must use accrued paid time off.  Non-exempt employees must be paid for all hours actually worked, including time spent working from home or an alternate location.  While a nonexempt employee paid by the hour does not need to be paid for any time missed due to inclement weather, they can be allowed (or required) to use paid time off to cover any time they miss.  

In general, an employer must pay exempt employees their full salary for any workweek in which they perform any work.  If the business is closed for less than a full workweek due to inclement weather, exempt employees who are ready and willing to work must receive their full salary for that week if they performed any work during the workweek.  If the business remains open and an exempt employee chooses not to report to work, the employer is not required to pay them so long as the employee performs no work during that day.  Keep in mind that checking email from home would be considered performing work.

But what if a business closes its offices and instructs their employees to work from home?  Whether to pay exempt employees under these circumstances may depend on the employee’s individual circumstances.  For example, whether you must pay them may depend on why they are not working.  Is it because their power or internet is out?  Or is it because they chose to spend the day sledding? 

Regardless, an employer may require exempt employees to use accrued paid time off for time missed due to inclement weather.  However, if an exempt employee has exhausted their PTO, there are still circumstances in which they must still be paid their regular salary. 

Click to access a PDF of this E-Alert.

For questions relating to inclement weather policies and how to pay employees during inclement weather or other emergency closures, contact Amy Angel at 503-276-2195 or aangel@barran.com.

2/5/24: Restrictions on No-Rehire Provisions in Workers’ Compensation Settlement Agreements

February 5, 2024

By Becky Zuschlag & Hannah LaChance

Though every workers’ compensation claim is different, it is not uncommon for a claim to end with a settlement agreement, which is often accompanied by an additional agreement that includes an employment release. It used to be common practice for the employment release agreement to include a “no-rehire” provision. A no-rehire provision is a provision that prohibits a worker from seeking future employment, reemployment, or reinstatement with the employer.

When HB 3471 was made effective in the summer of 2023, this changed the rules around offering a worker an employment release that includes a no-rehire provision. The idea behind the rule change is that employees may want to maintain their workers’ compensation reinstatement and reemployment rights even after the settlement of a workers’ compensation claim. (Remember that a worker may retain their reinstatement and reemployment rights for up to three years from the date of injury unless their rights are extinguished by other means.)

Accordingly, now, under ORS 659A.390, it is an unlawful employment practice for an employer to make an offer to negotiate a settlement agreement conditional upon a worker also entering into an agreement that includes a no-rehire provision unless, prior to making the offer, the worker has provided the employer with written confirmation of their willingness to enter into an agreement that includes a no-rehire provision and the settlement offer affirmatively states that entering into the settlement agreement is conditional upon the worker also entering into an agreement that includes a no-rehire provision.

What does this mean for employers? If you are in the process of settling a workers’ compensation claim with a worker, you can ask the worker whether they are also interested in entering into an employment release with or without a no-rehire provision, but you should clarify that settlement is not contingent on the no-rehire provision. If the worker confirms in writing that they are willing to enter into an agreement with a no-rehire provision, then you may make an offer that specifically states that entering into the settlement agreement is conditioned upon the worker agreeing to the no-rehire provision.

Because of the complexity of this new rule and the potential for penalties, employers should consult with an employment law attorney before offering an employment release in conjunction with a workers’ compensation settlement agreement.

Click to access a PDF of this E-Alert.

For questions, contact Becky Zuschlag at 503-276-2151 or bzuschlag@barran.com.

1/12/24: The U.S. Department of Labor Has Issued Its Final Rule, Changing the Independent Contractor Test (Again)

January 12, 2024

By Andrew Schpak

On January 10, 2024, the U.S. Department of Labor published its final rule regarding the classification of workers as employees or independent contractors under the Fair Labor Standards Act (FLSA). The final rule replaces the 2021 Independent Contractor Rule (ICR) and aims to reduce the risk that employees are misclassified as independent contractors while providing a consistent approach for businesses that engage with individuals who are in business for themselves.

Effective Date: The final rule is set to become effective on March 11, 2024, which allows businesses approximately two months to adapt to the revised standards.

Key Distinctions from the 2021 Rule: While sharing similarities with the 2021 ICR, the final rule introduces some notable distinctions. For example, unlike previous guidance, the final rule’s analysis can be applied to workers in any industry. The final rule also returns to a totality-of-the-circumstances economic reality test, which now considers six factors as opposed to the previous rule which only considered five. These six factors include:

(1) opportunity for profit or loss depending on managerial skill;

(2) investments by the worker and the potential employer;

(3) degree of permanence of the work relationship;

(4) nature and degree of control;

(5) extent to which the work performed is an integral part of the potential employer’s business; and

(6) skill and initiative.

The final rule gives examples as to how to apply each of these factors.  In contrast to the 2021 rule, no factor or set of factors is entitled to more weight than the others, with the focus instead being on the degree to which the worker is economically dependent on the company.

Interaction with Other Laws: It is important to note that the final rule only revises the Department’s interpretation under the FLSA and does not impact worker classification under other laws at the federal, state, or local levels. For example, the Internal Revenue Code and the National Labor Relations Act have different statutory language and judicial precedent governing the distinction between employees and independent contractors, and those laws are interpreted and enforced by different federal agencies. Similarly, this rule has no effect on those state wage-and-hour laws, including those which use an “ABC” test, such as California.

Practically speaking, it will be harder for a worker to qualify as an independent contractor under the new test as compared to under the old test.  As the effective date approaches, employers should consider auditing their independent contractor relationships to confirm that their documentation and how those relationships operate in practice minimize the risk of worker misclassification claims.

Click to access a PDF of this E-Alert.

For questions related to worker classification or the final rule, contact Andrew Schpak at 503-276-2156 or aschpak@barran.com.

1/10/24: 2024 Updates to Washington Wage Thresholds

January 10, 2024

By Nicole Elgin & Hannah LaChance

As employers prepare for a strong start to the New Year, it is important to note the following updates for Washington employee wages.

• Overtime Exemptions: For workers in Washington to be exempt from overtime laws, they must make at least $67,724.80 per year ($1,302.40 per week). This is part of a gradual implementation schedule. The salary thresholds for future years are projections based on the Consumer Price Index (CPI). Employers should note that in addition to the salary threshold requirements, to be properly exempt from overtime, many employees must meet additional criteria, including being paid on a salary basis and meeting one of the duties tests.

• Outside Employment Restrictions: Employers generally cannot restrict an employee from having outside employment or being self-employed unless the employee is paid at least $32.56 per hour.

• Noncompete Thresholds: Generally, an employee must earn $120,559.99 or more to be subject to a noncompetition agreement. The threshold is higher for independent contractors at $301,399.98.

• Dairy & Agricultural Workers: These workers are eligible for overtime for all hours worked over 40 per week. This was also a part of a gradual implementation plan, as the 2023 version of the policy required agricultural workers to work over 48 hours to be eligible. The overtime pay rate must be at least 1.5x the employee’s regular rate of pay.

• Minimum Wages for 2024:

  • Washington State: $16.28 per hour

  • Seattle: $17.25 to $19.97 per hour ($17.25 for small business employers (500 or fewer) if employees receive $2.72 per hour in medical benefits or tips)

  • SeaTac: $19.71 per hour (Hospitality and Transportation Industry)

  • Tukwila: Large employers (500+ employees): $20.29 per hour; Mid-size employers (15 to 500 employees): $18.29 per hour ($19.29 per hour effective 7/1/2024)

Click to access a PDF of this E-Alert.

For questions relating to Washington’s new wage thresholds, or for any other labor or employment matters, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

12/20/23: DOL’s Nondisplacement Rule Creates Challenges for Federal Contractor Employers

December 20, 2023

By Nicole Elgin

On December 14, 2023, the Department of Labor announced a final rule implementing Executive Order 14055 that places numerous nondisplacement employment requirements on federal contractors and subcontractors.

The core requirement of the rule, known as the nondisplacement clause, provides that a successor contractor must extend employment offers to covered service employees who were employed under a predecessor contract when the two contracts involve “the same or similar work.” The rule gives those employed on a predecessor contract the right of first refusal of employment on a successor contract under most circumstances.

The successor contractor is permitted to employ more or fewer employees than were employed under the predecessor contract, depending on what is most efficient for the performance of the contract. A successor contractor is required to make a written bona fide offer of employment to each service employee who worked during the last month of the predecessor contract. The DOL’s nondisplacement requirements apply regardless of the location of the successor contract, which represents a shift from prior nondisplacement requirements that only applied to same or similar services at the same location. The Final Rule is effective February 12, 2024, and will apply to solicitations issued on or after the effective date.

Notice Requirements

The Final Rule creates a detailed procedure for predecessors, contractors and subcontractors, including:

• At least 30 days prior to completion of the contract, the predecessor contractor must provide a list of service employees working under the contract to the Contracting Officer.

• The nondisplacement clause must be included in all covered contracts and subcontracts.

• Offers must be made in writing and the employee needs to be allowed 10 business days to consider the offer.

Exceptions

There are numerous exemptions to the nondisplacement clause, most notably, it does not apply:

• When there is reliable evidence that a particular employee’s past performance would give “just cause” to discharge the employee if the employee were employed by a contractor or subcontractor. However, the nondisplacement clause provides that there is a presumption that there is no just cause to discharge an employee.

• To contracts that are below the “simplified acquisition threshold” (currently, those under $250,000).

• To employees who are employed under a federal service contract and a non-federal service contract that is part of a single job.

• When a government agency determines that the nondisplacement rules are inefficient for effectuating a particular contract.

The technical nature of the nondisplacement clause creates administrative and recordkeeping compliance risk for contractors. Federal contractor employers who are entering successor contracts should consult an employment attorney to ensure they are not running afoul of the DOL’s new nondisplacement requirements.

For questions about this new rule, or for any other labor and employment questions, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

12/14/23: Employer Policy Checklist for the New Year

December 14, 2023

By Nicole Elgin

Employers should plan ahead for the many legal changes in the new year that may require updating policies. This E-Alert is an overview of some of the legislative changes employers with employees working in Oregon and Washington should prepare for come 2024:

Oregon:

Changes to OFLA Leave Year: Senate Bill 999 made a variety of changes to Paid Leave Oregon and the Oregon Family Leave Act. This includes the requirement that by July 1, 2024, covered employers must ensure their “one-year period” for the Oregon Family Leave Act (OFLA) is the 52-week period starting the Sunday before the first day of covered leave. This is to align with Paid Leave Oregon’s calculation of the one-year period, so many employers are implementing this change sooner than the deadline. Covered employers under the Family and Medical Leave Act (FMLA) may also want to align their leave year with this calculation. If so, the FMLA requires employers to give employees 60 days’ notice of that change to the FMLA leave year calculation.

Protected Leave for Bias Crime Victims: House Bill 3443 expands protections for victims of bias crimes. Victims of bias may take reasonable leave under ORS 659A.272. “Crime involving bias” means intimidation by display of a noose (a crime under ORS 163.191).

Protections for Employee Refusal to Perform Unsafe Work: Senate Bill 907 prohibits employers from discriminating or retaliating against an employee who, in good faith, refuses to perform a task that the employee reasonably believes would result in serious injury or impairment to the health and safety of the employee or other employees.

Respectful Workplace Policy: Senate Bill 851 requires the Bureau of Labor and Industries to create a model respectful workplace policy that employers may adopt and informational materials that identify the harms to employees and employers caused by workplace bullying.

Washington:

Anti-Discrimination for Cannabis Use: Senate Bill 5123 makes it unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based on: the person’s use of cannabis off-the-job and away from the workplace, or an employer-required drug screening test that found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Sick Leave for Temporary Construction Workers: Senate Bill 5111 created paid sick leave payout requirements for certain commercial construction workers. Check out our prior E-Alert here for more information.

Updated Regulations for Paid Sick Leave: While preparing the paid sick leave rules for temporary construction workers, the Department of Labor & Industries (L&I) also revised other paid sick leave regulations that apply to all covered employers. For example, added to WAC 296-128-630, is that an employee’s right to take paid sick leave “means an employee has the choice about whether or not to use accrued, unused paid sick leave when a qualified purpose occurs and an employer may not require an employee to use accrued, unused paid sick leave if the employee does not choose to request to use paid sick leave.” There are also clarifications on notice and tracking that employers must provide to employees if they use a Paid Time Off program to meet the paid sick leave requirements. This includes notifying employees that the PTO program is intended to satisfy paid sick leave requirements. The employer’s PTO program that combines protected and unprotected leave can be more generous than the state paid sick leave requirements if: the compliant sick leave meets all requirements of Washington’s paid sick leave law, the compliant paid sick leave is tracked separately, and there is no requirement or encouragement for the employee to use their protected leave for more generous purposes before accessing additional PTO. The final updated rules are available here.

Access to PFMLI Claim Information: Senate Bill 5586 allows “interested parties” to access the following information from the state agency related to an employee’s Washington paid family or medical leave claim: type of leave being taken, requested duration of leave including approved dates of leave, and whether the employee was approved for and paid benefits in any given week. The information may only be used to administer internal employer leave or benefit practices under established employer policies.

As always, the laws are frequently changing at both the federal and state level when it comes to labor, employment, and benefits. Employers should check in with their counsel to ensure their handbooks and policies are compliant.

Click to access a PDF of this E-Alert.

For questions on labor and employment compliance changes in 2024, contact Nicole Elgin at nelgin@barran.com or (503) 276-2109.

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.