E-Alerts

As a special service to our clients, Barran Liebman LLP provides valuable Electronic Alerts℠ free of charge. The Electronic Alerts℠ summarize new case law and statutes that may impact your business, and suggest methods to comply with new legal requirements.

If you would like a copy of an archived E-Alert emailed to you, please contact Traci Ray by email or phone at 503-276-2115.

Jessica Peterson 12/20/24 Jessica Peterson 12/20/24

12/20/24 The New Year Brings New Changes to Paid Leave Oregon and OFLA

December 20, 2024

By Ashley Korkeakoski-Sears & Lex Shvartsmann

Effective January 1, 2025, eligible employees will be able to claim Paid Leave Oregon (PLO) benefits to facilitate the legal processes related to placement of a foster child or adoption of a child. Other PLO benefits available during a benefit year are not expanded by this addition.

Currently, the Oregon Family Leave Act (OFLA) provides an additional two weeks of unpaid leave for this purpose pursuant to a temporary amendment that expires on December 31, 2024. Accordingly, as of January 1, 2025, leave to facilitate the legal processes related to placement of a foster child or adoption of a child will no longer be an OFLA qualifying event. Employees seeking leave for this purpose will be able to do so through Paid Leave Oregon only.

This update to PLO and OFLA adds onto the recent changes that went into effect on July 1, 2024. For information regarding the changes to PLO and OFLA that became effective July 1, 2024, see our February 28 E-Alert.

As we head into the new year, employers should review their employee handbooks to ensure they are updated with the changes to PLO and OFLA that went into effect this year.

For questions regarding the Oregon Family Leave Act or Paid Leave Oregon or any other employment matters, contact Ashley Korkeakoski-Sears at 503-276-2132 or asears@barran.com.

Jessica Peterson 12/19/24 Jessica Peterson 12/19/24

12/19/24 New Protections for Warehouse Distribution Centers Effective January 1, 2025

By Ashley Korkeakoski-Sears & Lex Shvartsmann

Effective January 1, 2025, Oregon House Bill (HB) 4127 (2024) will implement new protections for employees working at covered warehouse distribution centers by requiring employers to provide each employee with written documentation summarizing quotas the employee is expected to meet.

Important Definitions:

Covered “warehouse distribution centers” include centers engaged in services relating to (1) warehousing and storage, (2) merchant wholesale of durable or nondurable goods, or (3) retailing using electronic shopping and mail-order houses.
“Quota” is defined as “a work standard under which an employee is assigned or required to perform at a specified productivity or speed, perform a quantified number of tasks or handle or produce a quantified number of materials, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”

New Requirements

Under the new standard, employers will need to provide employees with written documentation about quotas that apply to them. That documentation should include:

The number of tasks to be performed or materials to be produced or handled within a defined time period, and
A description of potential consequences which may result from the employee’s failure to meet the defined quota.

For new employees, employers should provide this documentation at the time of hire. For current employees, employers should provide this documentation on January 1, 2025, within two days of changing an employee’s applicable quota, and whenever an employee is subject to an adverse employment action for failing to meet their applicable quota.

Takeaways

Beginning January 1, 2025, employers affected by HB 4127 should provide the documentation described above to each current employee and incoming new hires. Employers should refrain from taking an adverse employment action against an employee for failing to meet a quota unless the employee has received this documentation.

For questions relating to HB 4127 involving quotas in warehouse distribution centers or other employment matters, contact Ashley Korkeakoski-Sears at 503-276-2132 or asears@barran.com.

Jessica Peterson 12/3/24 Jessica Peterson 12/3/24

12/3/24 NLRB Overrules Standard Regarding Lawful Predictions of the Effects of Unionization

By Nicole Elgin & Lex Shvartsmann

On November 8, 2024, the National Labor Relations Board (NLRB) issued Siren Retail Corp d/b/a Starbucks, overruling a 40-year-old precedent regarding what employers can lawfully communicate to employees on predictions about the impact of unionization.

Previous Standard

Under the NLRB’s decision in Tri-Cast, Inc. (1985), employers could lawfully make statements about the impact of unionization on the relationship between employers and employees. For the past 40 years, this standard has held that employers may lawfully explain to employees that their relationship may change when employees select a union to represent themselves.

New Standard

Under Siren Retail Corp. d/b/a Starbucks, the standard for what employer statements qualify as lawful is significantly different. Instead of being deemed categorically lawful, an employer’s statements about the impacts of unionization on the employer-employee relationship will now be assessed on a case-by-case basis, guided by the pre-existing standard set forth by the U.S. Supreme Court in NLRB v. Gissel Packing Co, Inc. (1969). Under this standard, an employer’s communications must be either grounded in objective fact or predict negative consequences that would result from the employer’s own actions. Predictions which are not grounded in one of those two bases will be perceived by the NLRB as an unlawful “threat of retaliation based on misrepresentation and coercion.”

For example, an employer’s broad prediction that unionization will “necessarily foreclose employees’ ability to address issues individually with their employer” would not be lawful. In contrast, an employer may lawfully state that “the relationship that existed between the employees and the employer will not be as before.”

Impact on Employers

The new standard set forth in Siren Retail Corp. will apply only prospectively. Moving forward, employers should exercise a heightened level of caution when making statements or predictions about the potential effects of unionization on the employer-employee relationship.

For any questions regarding unfair labor practice claims, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Jessica Peterson 12/2/24 Jessica Peterson 12/2/24

12/2/24 Five Employee Benefits Steps to Take Today Before the End of the Year

By Jeff Robertson & Iris Tilley

A few steps of prevention and foresight planning can save your organization time and money into 2025. We offer five steps to think about as 2024 closes and 2025 begins.

1. Update 401(k) Plan Documents and Payroll Procedures for Secure 2.0

There are many provisions coming into effect related to Secure 2.0. Employers must make sure their plan documents contain the proper Required Minimum Distribution ages and procedures; consider updating Hardship provisions; and prepare for Roth designation of high wage earner catch-ups (which takes effect in 2026). Payroll policies and procedures must be prepared for the beginning of “Long Term Part Time” employees as eligible employees.

2. Mental Health Parity in Health Plan Documents

This fall several departments worked together to issue final regulations relating to Mental Health Parity. The final regulations focus on Non-Quantitative Treatment Limitations (“NQTL”) and link medical and surgical benefit offerings with mental health benefits. It is important to review both your plan documents and active procedures to ensure mental health parity compliance in 2025.

3. Take Advantage of Non-Qualified Deferred Compensation Opportunities

Many non-qualified deferred compensation benefits must be adopted prior to December 31, and some prior to December 1, in order to qualify for tax favored benefits relating to non-qualified deferred compensation.

4. Update Plan Documents for Cybersecurity and Fiduciary Best Practices

With the Supreme Court’s recent decision overturning the Chevron deference and the continued assault on Plan assets from cybersecurity threats, it is critical to update Plan Documents for both retirement and health plans to ensure the deference enjoyed by Fiduciary decisions will survive the Chevron decision. In addition, Plan Documents and Summary Plan Descriptions should be updated for cybersecurity responsibility and procedures. All employers should maintain an annual record of a formal review of vendor cybersecurity policies. It is also important to review and understand third-party service agreements that may have been entered into several years ago and not updated for changes in the law.

5. Review your Plan Offerings for Current Marketplace

We often find employers have entered into a relationship with their retirement and/or health plan offerings based on what might have been in the market five or ten years prior and have not reviewed new opportunities over several years. With the pandemic and current economic conditions, it is easy to find that 5-10 years have passed since clients reviewed service providers and opportunities with the plan. We encourage clients to ask themselves, “What if I was going to market now - would I recommend the same technology, price, and

benefits?” Regular review is a key fiduciary concept.

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans. Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

Jessica Peterson 11/20/24 Jessica Peterson 11/20/24

11/20/24: National Labor Relations Board Rules Captive-Audience Meetings Unlawful

By Nicole Elgin & Lex Shvartsmann

On November 13, 2024, the National Labor Relations Board (NLRB) issued a decision in Amazon.com Services LLC (2024), overruling its prior precedent in Babcock & Wilcox Co. (1948) and holding that an employer violates the National Labor Relations Act (NLRA) when it convenes “captive-audience meetings.”

What is a Captive-Audience Meeting?

A “captive-audience meeting” refers to a mandated meeting in which an employer expresses its views on potential unionization. Under Babcock & Wilcox Co., such meetings were affirmatively protected under free speech principles and were not considered to be in violation of the NLRA, so long as they did not occur within 24 hours of a representation election.

The New Standard

Under Amazon.com Services LLC, captive-audience meetings will no longer be considered lawful. The NLRB supported its ruling through an analysis indicating that such meetings “override[] employees’ right to freely be informed about unionization – or not.” The NLRB held that such meetings provide an unlawful mechanism for an employer to observe and surveil employees as it addresses the exercise of their rights.

A Note for Oregon and Washington Employers

Although the Amazon.com ruling applies only prospectively, both Oregon and Washington have longstanding laws in place that prohibit employers from taking adverse action against employees who refuse to attend or participate in captive-audience meetings.

Can I Still Hold Meetings About Unionization Efforts?

Yes, the NLRB specifically states in its Amazon.com decision that its ruling does not “broadly prohibit employers from holding workplace meetings with their employees to express their lawful views on unionization in a noncoercive manner.” However, employers must be careful to balance their First Amendment right to persuade with their employees’ right to make their own decisions regarding unionization.

In order to ensure employers understand how to strike that balance, the NLRB in Amazon.com provided a list of assurances required to hold a lawful meeting. An employer will not be found to have violated the NLRA if, “reasonably in advance of the meeting, it informs employees that:

The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
The employer will not keep records of which employees attend, fail to attend, or leave the meeting.”

An employer must provide and see through the following assurances to ensure the lawfulness of their meeting. With an upcoming change in administration, labor practitioners expect this recent ruling will not be prosecuted under a new NLRB General Counsel and that the Board may return to Babcock & Wilcox Co. However, until then, employers should be mindful of this recent change.

For any questions regarding unfair labor practices or your role as an employer in the unionization process, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Jessica Peterson 11/18/24 Jessica Peterson 11/18/24

11/18/24: Judge Vacates DOL Overtime Rule That Went into Effect in July

Missy Oakley & Nicole Elgin

Earlier this year, the U.S. Department of Labor (“DOL”) announced the Final Rule: Restoring and Extending Overtime Protections (“Final Rule”). The Final Rule increased the salary threshold for the bona fide executive, administrative, and professional exemptions (“white-collar exemptions”) and the total annual compensation threshold for the highly compensated employee (“HCE”) exemption. We outlined the requirements of the Final Rule in a prior E-Alert, which you can find here.

The first set of salary increases went into effect on July 1, 2024, and the next set were scheduled to go into effect on January 1, 2025. However, on Friday, November 15, 2024, a federal judge in Texas vacated the Final Rule, finding that it exceeded the DOL’s authority. The judge’s decision blocks application of the Final Rule nationwide.

It is unclear whether the DOL will appeal the court’s ruling. Employers can anticipate other changes from federal employment agencies with the incoming change in administration. We will continue to monitor developments related to the Final Rule; however, for now, employers are relieved of its requirements. This means that the salary threshold for the white-collar exemptions is back to $684 per week ($35,568 per year), and the total annual compensation threshold for the HCE exemption is back to $107,432.

For questions about wage and hour requirements, contact Missy Oakley at 503-276-2122 or moakley@barran.com, or Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Jessica Peterson 10/28/24 Jessica Peterson 10/28/24

10/28/24: Learning from Hurricane Helene: What Not to Do in the Face of Inclement Weather

By: Amy Angel & Lex Shvartsmann

In the aftermath of Hurricane Helene, one employer’s apparent failure to have and adhere to a common sense inclement weather policy has underscored why having such a policy is so important. Impact Plastics, a Tennessee employer, reportedly required its employees to remain on-site as the conditions of Hurricane Helene continued to worsen, and five employees died in the floodwaters. Impact Plastics now faces a $25-million wrongful death suit and is being investigated by the Tennessee Bureau of Investigation and the Tennessee Occupational Safety and Health Administration.

Although Pacific Northwest weather rarely reaches extremes comparable to Hurricane Helene, this tragic story serves as a reminder to employers that the costs of failing to prepare and implement an adequate inclement weather policy are too high to ignore. Now is the best time to set in motion proper policies for inclement weather to avoid the chaos and potentially deadly costs of impromptu decision-making.

Here are some considerations to keep in mind when crafting your policies and preparing your business for inclement weather:

Be clear on how and when employees will be notified in the event you decide to close due to inclement weather.
Consider allowing employees to decide for themselves whether it is safe to report to work based on the conditions in their immediate area.
Make clear to your employees the expectations in place in the event they are unable to report to work or need to work remotely.
Ensure employees are aware of whether they will be paid for missed time or if they must use accrued paid time off.
Ensure that your practices for paying exempt employees during these periods are in compliance with applicable state and federal laws.

Employers should prioritize the health and safety of their employees in all circumstances. This includes creating and maintaining an emergency safety plan, as well as ensuring that employees are sufficiently educated to carry out that plan in the case of an emergency.

For more advice on compliance and best practices in the face of inclement weather, check out our previous E-Alert on storm-proofing your inclement weather policy here.

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.

Jessica Peterson 10/23/24 Jessica Peterson 10/23/24

10/23/24: Reminders for Implementing the Pregnant Workers Fairness Act

By: Amy Angel & Lex Shvartsmann

This is your friendly reminder to consider the Pregnant Workers Fairness Act (PWFA) before denying accommodations (including leave) to an employee who is pregnant or has recently given birth.

On June 27, 2023, the federal Pregnant Workers Fairness Act (PWFA) went into effect, providing additional protections for workers experiencing known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The Equal Employment Opportunity Commission’s (EEOC) final regulation to carry out the law went into effect on June 18, 2024. More information on the PWFA is available in our prior E-Alerts: PWFA Now in Effect and EEOC Final Rule on PWFA.

As employers continue to familiarize themselves with the Act and begin to come across PWFA accommodation requests, here are a few reminders to consider:

Consider the PWFA in Addition to PLO/OFLA/FMLA Leave

The PWFA itself does not contain a leave allowance for eligible employees. However, the EEOC’s guidance has indicated that time off for pregnancy, childbirth, and related medical conditions is considered a reasonable accommodation under the Act. Accordingly, employers should remember to consider leave under PWFA as an option when an employee either is not covered by the Oregon Family Leave Act (OFLA) or the federal Family and Medical Leave Act (FMLA) or who has exhausted their leave under OFLA/FMLA and Paid Leave Oregon (PLO).

Here are some examples of scenarios where an employee may be entitled to leave under the PWFA:

• An employee who works for a small employer with between 15 and 24 employees will not be covered by OFLA or FMLA. If the employee exhausts their 14 weeks of Paid Leave Oregon benefits before giving birth due a pregnancy disability, the employee will not have any protected leave available for parental leave but may still be entitled to additional pregnancy disability leave following the birth under the PWFA.

• An employee who has a difficult pregnancy may exhaust 12 weeks of leave under FMLA and OFLA’s pregnancy disability rules and then exhaust their 14 weeks of Paid Leave Oregon benefits. Should the employee have an ongoing need for leave if they are still recovering from childbirth, the employee may be entitled to additional unpaid leave under the PWFA.

• An employee who suffers a miscarriage or a stillbirth and is still recovering (mentally or physically) after exhausting their other leave entitlements may be afforded additional time off under the PFWA.

PWFA Only Affords Accommodations Relating to the Limitations of the Employee

Although the PWFA requires an employer to provide reasonable accommodations for an employee who has a known limitation related to, affected by, or arising out of pregnancy or related medical conditions, the EEOC has made clear that only those medical conditions “relating to the pregnancy or childbirth of the specific employee in question” are protected. Therefore, employees seeking PWFA accommodation due to their newborn’s condition—and not their own condition—are not entitled to accommodation unless they are eligible for leave under OFLA, FMLA, or Paid Leave Oregon. For example, an employee who is seeking additional time off because their infant is refusing to bottle feed will not be entitled to an accommodation under the PWFA but may be eligible for OFLA sick child leave. However, an employee experiencing their own condition that makes pumping difficult may still be entitled to an accommodation under the PWFA.

Employers should ensure that supervisors, managers, and HR staff maintain an understanding of these nuances to ensure compliance with the PWFA.

For questions about the Pregnant Workers Fairness Act or for any other workplace compliance matters, contact Amy Angel at 503-276-2195 or aangel@barran.com.

Jessica Peterson 10/14/24 Jessica Peterson 10/14/24

10/14/24: Washington Labor and Industries Announces Minimum Wage for 2025

By Nicole Elgin & Hannah LaChance

Washington State Department of Labor & Industries announced an increase to the state minimum wage that will take effect January 1, 2025. The increase also impacts the overtime exempt threshold for both small and large employers.

The Washington state minimum wage, which applies to workers aged 16 and older, will increase from $16.28 per hour to $16.66 per hour. For workers ages 14 and 15, the state minimum wage will increase from $13.84 per hour to $14.16 per hour. Remember that Seattle, SeaTac, Tukwila, Renton, and Bellingham have established their own local minimum wages that may apply to employees working in those areas. Burien will have its own minimum wage in 2025.

The increase to the state minimum wages will impact the minimum salary required for employees to be classified as exempt from overtime. The requirements differ based on status as a small employer (50 employees or less) versus a large employer (51 or more employees). For small employers to classify a worker as exempt, the employer must pay the worker at least double the minimum wage ($1,332.80/week or $69,305.60/year). Larger employers will have to pay workers 2.25 times the minimum wage to classify them as exempt ($1,499.40/week or $77,968.80/year). Different rules apply for a variety of job classifications including rules for exempt computer professionals and rideshare drivers.

The Washington wage threshold required for noncompetition agreements in 2025 will be $123,394.17. This is coupled with other significant state and federal restrictions when a noncompetition agreement can be presented to an employee.

Employers will want to plan to provide notice to employees and make any classification or payroll changes prior to January 1st, 2025, in order to ensure compliance with state and local laws.

For any questions about wage compliance or takeaways for your workplace’s specific labor relation needs, contact Hannah LaChance at hlachance@barran.com or Nicole Elgin at nelgin@barran.com.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

Jessica Peterson 10/8/24 Jessica Peterson 10/8/24

10/8/24: NLRB Decision Ends Longstanding Precedent of Approving Employer Proposed Consent Orders

By Nicole Elgin and Lex Shvartsmann

On August 22, 2024, the National Labor Relations Board (“NLRB” or “the Board”) issued a decision overruling the prior standard for approving consent orders and holding that the Board will no longer approve of consent orders for resolving unfair labor practice charges.

What are Consent Orders?

A consent order is a type of settlement agreement where a party against whom an unfair labor practice (ULP) charge has been filed may propose a resolution to be approved by the Board without agreement from the charging party or the General Counsel.

Previous Standard for Approving Consent Orders

The use of consent orders to resolve ULP charges was established in 1971, when the Board first approved its use in Local 201, Int’l Union of Elec., Radio & Mach. Workers, 188 NLRB 855 (1971). In the following years, some back and forth on the propriety of the standard for evaluating consent orders ensued. In 2017, the NLRB issued UPMC, 365 NLRB 152 (2017), re-establishing the “reasonableness” standard for evaluating consent orders.

The New Standard: Metro Health, Inc.

The holding in Metro Health, Inc., 373 NLRB 89 (2024) establishes that the Board will “entirely end the practice of approving consent orders.” In reaching this conclusion, the Board cites to the lack of support for consent orders in the Board’s Rules and Regulations, stating consent orders “fail[] to effectuate the policies of the Act.” Further, the Board held that consent orders create an “administrative burden” and “interfere with the General Counsel’s statutory prosecutorial authority.”

What This Means for Employers

Moving forward, employers will not be able to resolve unfair labor practice charges with consent orders. Although the Board in Metro Health, Inc. clarified that “true” mutual settlements are still an available pathway for resolving ULP claims, there is an increased likelihood of litigation for these charges.

For any questions regarding unfair labor practice claims, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. E-Alerts are not intended as legal advice, but as employment law, labor law and employee benefits announcements. If this has been forwarded to you, and you would like to receive Electronic Alerts directly, call 503-276-2115 or email clientservices@barran.com. Copyright © 2024 by Barran Liebman LLP.

Jessica Peterson 9/16/24 Jessica Peterson 9/16/24

9/16/24: Washington L&I Releases Draft Rules on Amendment to Equal Pay and Opportunities Act

September 16, 2024

By Nicole Elgin & Hannah LaChance

The Washington State Department of Labor & Industries (L&I) published a draft of its administrative rules on Washington’s Equal Pay and Opportunities Act (EPOA) and is accepting comments on the draft until September 27th, 2024. The administrative rules were drafted in light of SB 1905, which amended the EPOA to protect against pay discrimination based not only on gender, but also discrimination based on status as a member of a protected class.

According to SB 1905 and the draft administrative rules, “protected class” means “a person’s age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability…” The proposed administrative rules protect not only membership in a protected class but also perceived membership in a protected class.

While the current rules are only in draft form, Washington employers should keep an eye out for the final rules and prepare to make any necessary changes to their policies. Employers can also submit comments during this rulemaking period or attend stakeholder meetings with the Department of Labor & Industries.

For any questions about pay equity laws or takeaways for your workplace’s specific labor relations needs, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Jessica Peterson 8/29/24 Jessica Peterson 8/29/24

8/29/24: NLRB Regional Director Pursuing Charge That Amazon Is a Joint Employer with Its Contractor for Delivery Drivers

August 29, 2024

By Nicole Elgin & Hannah LaChance

The Regional Director of Region 31 of the National Labor Relations Board is pursuing a charge against Amazon that claims the company is a joint employer with Battle Tested Strategies (BTS), a contractor that Amazon uses to provide delivery drivers. The issue is whether employees of BTS are also employees of Amazon – i.e., whether the companies are joint employers. If Amazon is a joint employer with BTS, Amazon has labor law obligations to follow when dealing with BTS employees.

The original unfair labor practice charge in Case No. 31-CA-319781 was filed in June 2023. An amended charge was filed on August 7 and August 21, 2024. The International Brotherhood of Teamsters allege that BTS and Amazon failed to bargain in good faith over the impacts to BTS delivery drivers when Amazon did not renew its contract for BTS’s delivery services. Procedurally, a complaint is likely to issue against the alleged joint employers soon and the parties will head to a hearing before an Administrative Law Judge.

The issue of whether an entity is a joint employer with a contractor has been subject to contentious legal debate and litigation throughout the history of labor and employment law. This case serves as a reminder to employers working with contractors that they should analyze their relationship with the contractor in order to ensure compliance with relevant labor and employment laws.

For any questions about joint employment relationships or takeaways for your workplace’s specific labor relations needs, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Jessica Peterson 8/26/24 Jessica Peterson 8/26/24

8/26/24: Federal Judge Sets Aside the FTC’s Recent Non-Compete Ban

August 9, 2024

By Nicole Elgin & Hannah LaChance

On August 20, 2024, Federal District Court Judge Ada Brown in the Northern District of Texas blocked enforcement of the Federal Trade Commission's (FTC) non-compete rule. In April, the FTC issued a rule banning most employers across the United States from enforcing non-competition provisions as a term or condition of employment and largely voiding existing non-competition clauses. The rule was expected to take effect in September. More information on the rule is available from our prior E-Alert.

The court that blocked the rule held that while the FTC has limited authority to create rules that restrict unfair competition, the FTC does not have the right to create substantive rules through the methods that it used to enact the non-compete ban. In essence, the federal judge stated that the FTC over-reached its power when it issued the non-compete ban, and that the ban is therefore invalid.

The FTC may try to appeal the decision, but will now be unable to enforce the rule on a broad scale, though the agency claims that it can pursue case-by-case actions to restrict the use of non-competition agreements. Non-competition agreements are still increasingly difficult for employers to maintain given recent developments from the National Labor Relations Board and state law restrictions, like in Oregon and Washington.

For questions regarding non-competition agreements, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Jessica Peterson 8/9/24 Jessica Peterson 8/9/24

8/9/24: Employers: Stop Signing Personnel Document Certifications Under Penalty of Perjury

August 9, 2024

By Chris Morgan & Lex Shvartsmann

Under ORS 652.750, an employer is required to furnish a “certified” copy of an employee’s personnel records within 45 days of the employee’s request. The statute does not expressly specify what is considered a “certified copy.”

An increasing number of employees and their counsel are including forms in their requests which seek an employer’s signed affirmation “under oath” that the personnel documents being produced are accurate and complete. Although employers should attest that the records being produced are accurate and complete to the best of their current knowledge, employers should not sign anything under oath or subject to penalty or perjury. The statute does not require it, and employers should avoid it.

For questions regarding responses to employee personnel file requests, contact Chris Morgan at 503-276-2144 or cmorgan@barran.com.

Click to access a PDF of this E-Alert.

Jessica Peterson 8/8/24 Jessica Peterson 8/8/24

8/8/24: $35.8M Judgment Reminds Employers to Ensure Compliance with FLSA Compensation Requirements

August 8, 2024

By Nicole Elgin & Lex Shvartsmann

In a July 22, 2024 judgment in the U.S. District Court for the Western District of Pennsylvania, 6,000 workers of residential skilled nursing and rehab facilities were awarded $35.8 million in back wages and damages under the Fair Labor Standards Act (FLSA). This is one of the nation’s largest wage recovery judgments under the FLSA for the failure of their employers to abide by FLSA overtime standards. The bench trial resulted from an investigation by the Wage and Hour Division in Pittsburgh finding that the employers:

Failed to pay employees for all hours worked, including for work performed during meal periods;
Failed to properly calculate overtime pay, including by failing to include non-discretionary bonuses and shift differentials in calculating an employee’s overtime rate;
Misclassified employees as exempt from the FLSA’s overtime requirements; and
Failed to keep accurate records of employees’ hours worked and compensation due accordingly.

The FLSA establishes minimum wage, overtime pay, recordkeeping, and employment standards which both private and government employers must follow. Under these standards, employers are required to properly record non-exempt employees’ time worked and compensate employees for that time. Where hourly non-exempt employees work more than 40 hours in a week, the FLSA entitles them to pay for those hours at a rate of 1.5 times their regular rate of pay. For employees who earn compensation beyond their base hourly rate, employers are required to follow strict rules regarding what other types of compensation must be included in calculating the regular rate of pay (such as non-discretionary bonuses and shift differentials).

Employers should take heed of this historically large recovery judgment and review their own overtime compensation practices to ensure compliance with the FLSA.

For questions on the Fair Labor Standards Act or overtime compensation requirements, contact Nicole Elgin at 503-276-2109 or nelgin@barran.com.

Click to access a PDF of this E-Alert.

Jessica Peterson 8/2/24 Jessica Peterson 8/2/24

8/2/24: NLRB Finalizes Its Fair Choice & Employee Voice Final Rule

August 2, 2024

By Iesha Comia & Joshua Waugh

On July 26, 2024, the National Labor Relations Board (NLRB) finalized its “Fair Choice-Employee Voice Final Rule.” The Final Rule changes three procedures: the blocking charge policy, voluntary recognition, and Section 8(f) and 9(a) relationships in the construction industry.

Blocking Charge Changes

Effective September 30, 2024, an NLRB Regional Director may delay an election if an unfair labor practice charge is filed and the alleged conduct interferes with employee free choice in the pending petition.

This rule changes a Regional Director’s authority in an election environment where there are alleged unfair labor practices. Prior to the rule change, if unfair labor practices interfered with an employee’s free choice, Regional Directors were required to run elections but could have impounded the ballots immediately after, meaning the vote was not tallied.

Now, a Regional Director has the authority to delay an election when unfair labor practices are sufficiently serious to interfere with employee free choice.

Key takeaways from the reinstated blocking charge policy, which will apply to all petitions filed after September 30, 2024:

Parties can file unfair labor practice charges to automatically block representation and decertification elections.
Parties alleging an unfair labor practice must be able to provide adequate proof and agree to make witnesses available.
Regional Directors have the authority to delay the processing of an election petition at the request of the party who filed the unfair labor practice charge.

Voluntary Recognition Changes

The NLRB’s updated rules reinstate the voluntary recognition bar, meaning no party will be able to petition for a new election for a reasonable amount of time after an employer voluntarily recognizes a union. Additionally, employees were previously able to challenge their employer’s voluntary recognition by filing a petition within 45 days of recognition, but that route is also removed in the updated rules. Moving forward, it will be much more difficult to contest an employer’s voluntary recognition of a union.

Construction Industry Changes

The final rule will also impact voluntary recognition and contracts specific to the construction industry. Come September 30, 2024, the Final Rule will re-establish a six-month limitations period on election petitions challenging a construction employer’s 9(a) voluntary recognition of a union. Contract language may also be sufficient to serve as evidence of 9(a) recognition of a union, so construction industry employers operating under Section 8(f) will have to exercise increased caution in negotiating contract language after the rule takes effect.

For questions on the National Labor Relations Act or labor law compliance, contact Joshua Waugh at 503-276-2138 or jwaugh@barran.com.

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Jessica Peterson 6/18/24 Jessica Peterson 6/18/24

6/18/24: SCOTUS Clarifies Requirements for Obtaining Injunctive Relief Under the NLRA

June 18, 2024

By Joshua Waugh & Lex Shvartsmann

On June 13, 2024, the U.S. Supreme Court decided Starbucks Corporation v. McKinney, confirming the heightened standard the National Labor Relations Board (NLRB) must meet to obtain a preliminary injunction against employers charged with unfair labor practices.

This decision stems from the discharge of some employees after they allegedly entered the store after-hours, opened the safe after-hours without authorization, brought third parties into the closed store, and hosted media interviews behind the bar promoting their unionization efforts. The NLRB, alleging the terminations were unfair labor practices, requested an injunction that would force Starbucks to reinstate the fired employees. Using a two-prong “reasonable cause” analysis, the District Court granted the NLRB’s request. The U.S. Sixth Circuit Court of Appeals affirmed. Given the Circuit split on the appropriate injunction standard, the U.S. Supreme Court agreed to hear the case.

The Supreme Court took issue with the highly deferential analysis used by the lower courts, under which the Court found it “hard to imagine how the [NLRB] could lose.” Under the test that the Sixth Circuit affirmed, the NLRB needed only to show that there was reasonable cause to believe that unfair labor practices occurred and that injunctive relief was just and proper.

Taking this case as an opportunity to clarify the proper analysis required to grant injunctive relief under the National Labor Relations Act (NLRA), the Court confirmed the equitable principles set forth in Winter v. Natural Resources Defense Council, Inc. in 2008. Under the clarified standard, the NLRB must meet a more stringent four-part test to secure injunctive relief. When seeking an injunction, the Board must clearly show:

(1) they are likely to succeed on the merits of the case;

(2) they are likely to suffer irreparable harm in the absence of preliminary relief;

(3) the balance of equities tips in their favor; and

(4) that an injunction is in the public interest.

This standard increases the burden on the NLRB to prove the need for preliminary injunctions and provides much needed guidance to the lower courts as to what that burden entails.

For questions on the National Labor Relations Act or labor law compliance, contact Joshua Waugh at 503-276-2138 or jwaugh@barran.com.

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Jessica Peterson 6/7/24 Jessica Peterson 6/7/24

6/7/24: Boeing Agrees to Pay Millions in Unpaid Travel Time: A Reminder for Employers to Review Their Own Policies

June 7, 2024

By Missy Oakley & Lex Shvartsmann

When was the last time you reviewed your policies related to compensating employees for travel time? Washington just gave us a great reminder as to why now is a great time to consider those policies. A recent Washington State Department of Labor & Industries (L&I) investigation into complaints it received regarding Boeing’s travel time policies found that, between 2019 and 2023, the company had not paid its non-exempt employees for all hours worked while traveling out-of-town for work. Based on those hours, Boeing also owed these employees overtime and sick leave accrual.

Boeing’s failure to comply with Washington’s travel time rules cost the company $11.5 million in back pay to nearly 500 employees – the largest amount of back pay returned to workers in L&I’s history.

Washington Travel Time

Washington employees must be compensated for all “hours worked,” meaning “all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed work place.” WAC 296-126-002(8). Generally, this requirement includes (1) time spent traveling to a different worksite during the workday, (2) time spent traveling to a different city but returning the same day, and (3) work-related out-of-town travel that requires an overnight stay, including hours during and outside of normal working hours.

Oregon Travel Time

In Oregon (and under the federal Fair Labor Standards Act), travel time compensation requirements are less generous than in Washington. While almost all the same travel time rules apply, work-related out-of-town travel that requires an overnight stay only includes hours traveled during normal working hours. Time spent on work-related out-of-town travel outside of an employee’s regular working hours is excluded from an employee’s “hours worked.” OAR 839-020-0045.

Employers should review their policies to ensure compliance with their state’s travel time compensation rules and avoid costly wage and hours issues.

For any wage and hour questions, contact Missy Oakley at 503-276-2122 or moakley@barran.com.

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Jessica Peterson 6/6/24 Jessica Peterson 6/6/24

6/6/24: BOLI Proposes Rules to Clarify Employer Obligations When Responding to Harassment Allegations

June 6, 2024

By Missy Oakley & Lex Shvartsmann

Under some of Oregon’s employment laws, when workplace harassment occurs, employers who knew or had reason to know of the conduct may be held liable unless they can show they took “immediate and appropriate corrective action.” OAR 839-005-0010 and OAR 839-005-0030. Further, when it comes to harassment by an employee’s supervisor, part of the Bureau of Labor and Industries’ (BOLI) analysis for finding that the employer should have known of the harassment is whether the employer can show they exercised reasonable care to prevent and “promptly correct any harassing behavior” (or “promptly correct any sexually harassing behavior”). OAR 839-005-0010(4)(e) and OAR 839-005-0030(5)(b).

On May 24, 2024, BOLI filed a Notice of Proposed Rulemaking that would amend OAR 839-005-0010 and OAR 839-005-0030 and define “appropriate corrective action” and “promptly correcting harassing behavior.” BOLI’s proposed rules seek to clarify employer obligations following allegations of workplace harassment. Under the proposed definitions, “appropriate corrective action” and “promptly correcting harassing behavior” means that an employer:

Intervenes without avoidable delay to effectively halt harassing behavior;
Adequately investigates and ascertains the extent of harassing behavior;
Takes appropriate disciplinary measures proportionate to the seriousness of the offense;
Does not penalize the reporting employee or make the aggrieved party worse off; and
Effectively acts to prevent further harassment or retaliation against the reporting employee or aggrieved party for reporting or exercising rights concerning harassing behavior.

The proposed rules also state that the “success or failure of [the] corrective action in stopping harassment is relevant, but not dispositive, as to employer liability in determining whether [the] corrective action was reasonably likely to prevent the harassment from recurring.”

BOLI’s proposed rulemaking is open for public comment until July 15, 2024. Nonetheless, now is a good time for employers to evaluate their current policies for responding to harassment allegations.

For questions about BOLI’s proposed rules, contact Missy Oakley at 503-276-2122 or moakley@barran.com.

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Jessica Peterson 5/16/24 Jessica Peterson 5/16/24

5/16/24: Temporary Rule Permits OFLA-Covered Employers to Rescind Leave Previously Designated as OFLA Leave Effective July 1

May 16, 2024

By Amy Angel

In February, the Oregon State Legislature passed Senate Bill 1515 which, among other things, repealed provisions of the Oregon Family Leave Act (“OFLA”) that were duplicative of Paid Leave Oregon benefits. The majority of the changes imposed by SB 1515 will go into effect on July 1, 2024. For additional information regarding SB 1515, see our February 28 E-Alert.

More recently, BOLI issued a temporary rule that allows employers to rescind a designation or approval of leave as OFLA leave if the period of OFLA leave is scheduled to occur on or after July 1, 2024, by taking the following steps:

As soon as practicable, but no later than June 1, notify the employee in writing that the leave is not protected by OFLA on or after July 1.
Concurrently provide written information to the employee that informs them of their ability to apply for benefits under Paid Leave Oregon that includes contact information for Paid Leave Oregon or the employer’s equivalent plan administrator.

Similarly, if an employee submits a new request for leave that would have been protected by OFLA prior to July 1, the employer must, as soon as practicable but no later than 14 calendar days from the request, inform the employee in writing that they can apply for benefits under Paid Leave Oregon and provide the applicable contact information. An employer may comply with these written notice requirements by providing the employee with the model notice made available by the Oregon Employment Department. Although it is best practice to notify employees of their ability to apply for benefits under Paid Leave Oregon, this rule is only in effect until July 1, 2024.

Note that rescinding a prior designation or approval of OFLA leave does not relieve an employer of their obligations to comply with other leave laws, including the Family and Medical Leave Act, the Americans with Disabilities Act, Oregon’s disability law, and Oregon’s sick time law.

To discuss how SB 1515 or this temporary rule impacts your leave policies and administration, contact Amy Angel at 503-276-2195 or aangel@barran.com.