City of Portland Passes More Restrictive Ban the Box Ordinance

December 4, 2015


By Jean Ohman Back

On November 25, 2015, in a 5-0 vote, the City of Portland passed a ban the box ordinance that is more restrictive than the new ban the box law recently passed by the Oregon legislature. The Oregon state bill restricts an employer from asking about an applicant’s criminal history on a job application, but allows employers to inquire about an applicant’s criminal history in the initial interview. The City of Portland’s ordinance is more restrictive. Employers within the city limits who perform background checks should take heed. Here are the particulars of the Portland ordinance:

When does the Ordinance take effect: The Ordinance and its administrative rules are scheduled to go into effect on July 1, 2016. The City Attorney for the City of Portland will draft the administrative rules and the public will have an opportunity to provide written and oral testimony with respect to the administrative rules.

Who does it apply to? The Portland ordinance applies to all employers within the Portland city limits who have six or more employees. The U.S. government and the State of Oregon are excluded from the definition of an employer.

Are there exceptions? Yes, the ordinance does not apply where a federal, state or local law or regulation requires or authorizes the consideration of a person’s criminal history, including but not limited to:

  • Law enforcement employment in the criminal justice system;
  • Private security employment where a license is required by the state of Oregon;
  • Employees who have direct access to or provide services for children, the elderly, persons with disabilities, persons with mental illness, or individuals with alcohol or drug dependence or substance abuse disorders;
  • Employees who are required to be licensed, registered, or certified by the State of Oregon.

What does it do? The ordinance codifies aspects of the Equal Employment Opportunity Commission’s (EEOC) guidance on performing background checks that was released in 2013.

First, it limits the ability of an employer to access or make inquiries into an applicant’s criminal history until after making a “Conditional Offer of Employment.”

Second, if an employer decides to rescind the Conditional Offer of Employment based upon the applicant’s criminal history, an employer must “determine that a specific offense or conduct has a direct relationship to a person’s ability to perform the duties or responsibilities of the employment.” This means that there must be some connection between the employee’s job duties and the conviction.

  • For example, an applicant with a conviction of theft, fraud, embezzlement, or the like and whose job duties include working with finances, sensitive information, or cash would have a direct connection. Similarly, an applicant who must work in close contact with other employees, or the public, but who has a conviction related to a violent offense would also have a connection that might justify a rescission of the job offer.
  • In order to determine whether there is a connection between the job duties and the conviction, an employer must conduct an “individualized assessment” that includes the following inquiries:
    • The nature and gravity of the offense;
    • The time that has elapsed since the offense took place; and
    • The nature of the employment held or sought.

In addition, the Portland ordinance specifically indicates that an employer may not consider the following:

  • An arrest not leading to a conviction, except where the crime is unresolved or where charges are
  • Convictions that have been judicially voided or expunged; or
  • Charges that have been resolved through the completion of a diversion or deferral of judgment program.

Third, if an employer determines that there is a relationship between the job duties and the conviction, then the employer must provide a “Written Notice of Adverse Employment” decision, similar to what is required by the Fair Credit Reporting Act, and must provide information about the criminal history report, and provide the employee with an ability to request a reconsideration of the decision in the form of an “individualized assessment,” which reviews a variety of specific factors to determine whether the employee has been rehabilitated.

Who is responsible for enforcement? Portland will contract with the state Bureau of Labor and Industries (BOLI) to enforce the Ordinance. If you have any additional questions regarding this ordinance, the attorneys in Schwabe, Williamson and Wyatt’s employment group are ready to assist.

European Court of Justice Judgment Finds U.S.- EU Safe Harbor Framework Inadequate for Protecting Data

October 20, 2015

By Colin Folawn and JoAnn Lee Kohl

On October 6, 2015, the European Court of Justice invalidated the European Commission’s prior finding that the U.S.-EU Safe Harbor Framework was an adequate means for protecting data transfers between the European Union and the United States. For thousands of United States companies that self-certified as complying with the Safe Harbor, and European companies with whom they do business, this raises significant questions about whether they are in compliance with the various laws of the EU countries.

What to do? There are a variety of options. Deciding how to respond will depend upon the unique circumstances of the company, the data that it transfers, and the EU countries from which the company collects data. A good Safe Harbor program can serve as a starting point for developing a more robust privacy program that complies with the specific EU-country laws. Companies might consider executing, implementing, and carefully following standard contractual clauses issued by the European Commission. Large multinational companies might consider adopting binding corporate rules to internally regulate data transfers within a corporate group. Companies should also consider whether any derogations apply (e.g., unambiguous consent by the data subject).

Although the ECJ’s ruling poses a new challenge to United States companies, it is not insurmountable. Companies seeking to update their privacy policies or confirm compliance should consult with foreign and domestic privacy lawyers of their choice.

National Labor Relations Board Drastically Revises ‎Standards for Determining Joint-Employer Status

August 31, 2015

by Thomas M. Triplett, Attorney at Law

The National Labor Relations Board in Browning–Ferris Industries of California Inc. has drastically revised the standards for determining if an employer–user of the employees of a temporary agency, is a joint employer of the temporary employees. This decision represents a dramatic change for employers who are franchisors, employers who subcontract part of their operations, and employers who use staffing agencies, to name a few. Prior to this ruling, companies had to actually exercise “direct and immediate control” over another company’s workers in order for a joint–employer situation to exist. Now it appears that the NLRB wants to apply an “economic realities” test, in which the main factor in determining whether an employer–employee relationship exists is whether the company has a potential to exercise control over a worker’s wages and working conditions. This ruling has brought uncertainty to the outcome of future cases by dismissing a simpler to prove test and adopting legal principles that cannot be accurately applied by employers. Employers must now evaluate even the most routine business decisions, like whether to fire a contractor or how to structure operations, in terms of how the decision might affect union organizing efforts.

BFI is a waste disposal company. At its sorting operation, it contracted with Leadpoint, to provide sorters and on–site supervision. In the agreement between BFI and Leadpoint, BFI reserved the following rights:

  • No employee assigned to BFI sorting would be paid more than a BFI employee performing the same work. Within that cap, Leadpoint was free to establish wages and fringe benefits.
  • All Leadpoint employees would have to be drug tested.
  • Leadpoint was paid on a cost plus basis.
  • Leadpoint was to exercise reasonable effort not to assign an employee who had previously been fired by BFI.
  • Leadpoint was solely responsible for recruiting, interviewing, testing, selecting, hiring, and discipline of its employees.
  • Leadpoint would employ site supervisors to supervise its employees deployed on the site.
  • BFI established the facility’s work schedule, including when the conveyors would stop for facility–wide rest breaks.
  • Each day the site managers of both companies would meet to coordinate daily activities.
  • Leadpoint performed initial training of its employees, but BFI occasionally provided pointers and tips.

The NLRB (though very divided along party lines) ruled that joint employment would be found if the business entities, while separate, share or codetermine those matters governing the essential terms and conditions of employment. Critically, the majority held that it was unnecessary to find that BFI had actually exercised its rights reserved in the agreement; rather, the mere existence of the right sufficed. Further, it held that the alleged joint employer need have no direct and immediate control; rather, indirect control would suffice. 

Unfortunately, the majority does not clarify for employers whether possession of any one of the elements of control was sufficient to find joint employment. Is the mere fact that BFI had the right to exclude a Leadpoint employee from the premises decisive or merely one of a number of factors to be considered? The decision does not provide an answer. The failure of the Board to provide clear direction on these key issues leaves them to future case-by-case determinations, a most unsatisfactory result for employers. 

Further, the decision does not explain how joint employers are to bargain. What if they are joint employers on a single construction site, but not at other sites? How do the joint employers bargain? Together? Separately? The Board suggests the duty to bargain will depend upon who has the power of decision on a particular issue. Collective bargaining is difficult enough without coping with this artificial construct. If there is a silver lining, the Court of Appeals will likely overturn this very impractical decision, though unfortunately that will be at least eighteen months from now.

New Paid Rest Break Ruling Burdens Washington Agriculture — Oregon May Be Next?

August 3, 2015

By Stephanie Berntsen and Jean Ohman Back, Attorneys at Law

In a closely watched decision, Demetrio v. Sakuma Bros. Farms, Inc., Washington’s Supreme Court has held that agricultural workers paid on a piece rate basis must be paid for rest breaks. Workers must be paid for their rest breaks — likely 10 to 20 minutes — each day plus their piece rate. The Court soundly rejected Sakuma’s argument that payment for rest breaks is covered by the piece rate. The Court reasoned that when workers are paid on a piece rate basis, they are incentivized not to take breaks because they do not make money during that time.

The Court looked specifically at the Washington regulation that says: “Every employee shall be allowed a rest period of at least ten minutes, on the employer’s time, in each four-hour period of employment.” And, it concluded that “on the employer’s time” means the employer must pay for rest breaks.

To determine pay for breaks, the Court directed employers to calculate the worker’s regular rate of pay. Employers must tally the total piece rate earnings and divide those earnings by the hours the worker worked (excluding rest breaks). The employer must then pay the worker for rest breaks at that rate of pay, or the applicable minimum wage, whichever is greater.

While this calculation may sound simple, it significantly complicates payroll for agricultural employers who have workers earning different rates of pay each week depending on the crop and harvest schedules. The Court’s direction requires employers to calculate the rate of pay for each worker each week.

Oregon courts have not ruled on this issue, but Oregon’s rest break regulation contains a similar concept. It states, in part, “Every employer shall provide to each employee … a rest period of not less than ten continuous minutes during which the employee is relieved of all duties, without deduction from the employee’s pay.” Workers who are paid on a piece rate basis would arguably make less because they would harvest less during their ten minute break. In light of the Sakuma decision, Oregon agricultural employers could face a similar challenge on rest breaks for piece rate workers.

It’s Time (It’s Really Time!) to Evaluate Independent-Contractor Classifications

July 20, 2015

by Jean Ohman Back, Brian K. Keeley, Thomas M. Triplett, Attorneys at Law

Does your business or organization use independent contractors? Do you report any payments using Form 1099? Does your business have “owners,” “partners,” or “members of a limited liability company” who receive payments as distributions in those roles but not compensation as employees? If so, your business or organization might want to re-evaluate (or evaluate) those relationships in light of new guidance issued by the U.S. Department of Labor’s Wage and Hour Division (US DOL WHD).

On Wednesday, July 15, 2015, the WHD provided an “Administrator’s Interpretation” about employers’ classification of workers as independent contractors. This guidance document by David Weil, the Administrator of the WHD (the highest-ranking person in the division) explains why the WHD takes the position that “most workers are employees” under the laws that the WHD enforces. These laws include the federal Fair Labor Standards Act (FLSA), the federal minimum wage and overtime law; the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), the federal law regarding payment for many or most agricultural workers; and the federal Family and Medical Leave Act (FMLA), the federal law that provides job-protected unpaid leave for workers to address their own or their family members’ health conditions.

The FLSA does not define the term employee. However, the WHD Administrator defines “employ” to mean “to suffer or permit to work,” and thus a person suffering or permitting a person to work is an employer. The WHD and courts interpreting the FLSA have applied an “economic realities” test to determine whether a particular worker is “employed” and therefore covered under the FLSA, or is instead an independent contractor to whom the FLSA does not apply. The “economics realities” test is intended to determine whether a worker is economically dependent on the employer (and therefore an employee) or whether a worker is in business for himself or herself (and therefore an independent contractor, and not an employee). The test involves several factors to be considered and weighed in each case, in a non-mechanical, non-formulaic way, in an effort to answer the ultimate question of whether a worker is economically dependent on the employer. The WHD discussed the factors that it does consider to be important:

1)  Is the work an integral part of the employer’s business?

2)  Does the worker’s managerial skill affect the worker’s opportunity for profit and loss?

3)  How does the worker’s relative investment compare to the employer’s investment?

4)  Does the work performed require special skill and initiative?

5)  Is the relationship between the worker and the employer permanent or indefinite?

6)  What is the nature and degree of the employer’s control?

The WHD’s interpretation suggests that the control factor, which has over time been given less and less weight, might now be given so little weight that a worker could be deemed an employee even if the employer exercises almost no control over the worker. And the WHD noted, as it has historically done, that an independent-contractor label that an employer gives a worker or the existence of a contract between an employer and a worker that designates or describes the worker as an independent contractor is irrelevant to this analysis, and not even considered as a factor.

The WHD’s explanation of these factors is here:

The WHD looks to continue its focus on workers who have been classified as independent contractors and increase its enforcement efforts on this area. Businesses should remember that the WHD shares information with the IRS and with state enforcement agencies in a number of states, including Washington and Oregon, about businesses that it determines are incorrectly classifying workers as independent contractors. Given the WHD’s apparent increased emphasis on this area and these information-sharing agreements, employers should be prepared for a greater possibility of audits by the WHD or state agencies. The financial risk of misclassification is substantial: the employer may be required to pay back income tax withholdings and payroll taxes with interest and penalties, or may be required to pay workers additional compensation above minimum wage or for overtime, along with penalties and possible attorney fees.

Any business or nonprofit organization that engages any person as an independent contractor should consider evaluating those relationships against this guidance document and assessing whether any independent-contractor relationships should be characterized as employment relationships. In addition, businesses and organizations with independent contractors should take care to ensure that the independent-contractor agreements document as thoroughly as possible the reasons why those relationships are consistent with the WHD’s interpretation. Your Schwabe employment lawyers can help you navigate this tricky area.

Oregon Paid Leave Bill Passed – Employers Required to Provide Employees with Leave

June 24, 2015

Sick leave

By Leora Coleman-Fire, Attorney

Employers with any employees in Oregon will now be required to provide sick leave to employees starting next year. Nearly all of the Senate’s Democrats and none of the Senate’s Republicans voted on June 10th in favor of the sick leave bill. The House voted 33-24 late Friday, June 12, in favor of the bill, sending it to Governor Kate Brown, who is expected to sign the bill. The bill is detailed, lengthy, and in many respects replicates pieces of the Portland Protected Sick Time Ordinance. The following provides a brief overview of what the new law will require and a few exceptions:

1. All businesses will be required to provide their Oregon employees with up to 40 hours of protected leave per year.

2. However, the law does not apply to properly classified independent contractors, a limited group of employees whose terms and conditions of employment are covered by a collective bargaining agreement, and certain home care workers.

3. Businesses with 10 or more employees will be required to provide workers with paid leave. Businesses with fewer than 10 employees will be required to provide employees with unpaid leave.

4. Adding complexity, for employers located in Portland, the threshold number that requires employers to provide paid leave will be 6 employees. In other words, employers located in Portland will be required to provide paid leave to workers if they have 6 or more employees working anywhere in Oregon. If a Portland employer has fewer than 6 employees working in Oregon, it will only be required to provide unpaid leave. This requirement comes directly from the Portland Protected Sick Time Ordinance, which you can Click Here to read more about.

5. Employees will accrue 1 hour of leave for every 30 hours that they work. Employers can avoid the administrative hassle of accrual calculations if they choose to “front-load” employees with their total sick leave for the year as soon as the employee is eligible to use sick leave and at the start of each subsequent year.

6. Employees are eligible to use sick time on the 91st calendar day of their employment regardless of the number of hours worked in the interim, so long as it exceeds 30.

7. The law will cover much more than “sick leave.” Employers generally must allow employees to take time off for everything from a family member’s illness to a regular doctor’s visit to assisting a family member with a domestic violence situation.

8. Employees may take sick leave in increments as small as one hour, unless this causes an undue hardship on the employer and the employer allows employees to take at least 56 hours of paid leave per year in increments as small as four hours for any of the reasons allowed by the new law.

9. Employers are not required to pay out accrued but unused sick time at an employee’s termination from employment. However, if employees return to the same employer within 180 days, the employer will have to restore the employee’s progress toward eligibility and any accrued but unused sick time.

10. Employers with paid time off (“PTO”), paid vacation policies, or other similar paid time off programs that are substantially equivalent to or more generous than the requirements of the new law will be deemed to be in compliance with most of the requirements of the law. In addition, if employees use all of their PTO, the employer is not required to provide additional leave based on this law (although other laws may require that an employee receive unpaid leave).

11. Employers can require that employees follow certain policies and procedures for requesting leave and providing medical verification, but there are strict limitations on when and how this is done.

12. Employers will be required to provide at least quarterly notice to each employee of the amount of accrued and unused sick time available for use by the employee.

13. Employers are prohibited from denying, interfering with, restraining, or failing to pay sick time or taking any steps to discriminate or retaliate against an employee who requests or takes sick leave.

14. The law will preempt all local sick leave laws. Thus, when this law becomes effective, neither the ordinance in Eugene nor the ordinance in Portland will remain enforceable.

There is no need to take action on this new law quite yet. It will become effective on the 1st day of January, 2016. However, well before the end of the year, you should review your handbook and other policies regarding employee leave. In reality, all employers with Oregon workers will need to make some adjustments to their policies and provide new notices and postings. This new law is complicated. Consult your trusted legal advisor to ensure that you are prepared for next year. We are closely following the development of sick leave laws in the Pacific Northwest and will continue to keep you informed.

Employers Beware—Reserving Light Duty for On-The-Job Injuries May Violate the ‎Pregnancy Discrimination Act

April 16, 2015

By Rebecca Boyette, attorney

Many employers have policies that reserve light duty work assignments for employees who would otherwise be on time loss because of a work-related injury. On March 25, 2015, the Supreme Court released a ruling under the Pregnancy Discrimination Act (PDA) that limits an employer’s right to reserve light duty work for on-the-job injuries. The name of the case is Young v. United Parcel Service.  

Plaintiff Peggy Young requested a light duty assignment after she became pregnant and her doctor recommended that she not lift packages heavier than 20 pounds. UPS required employees in Young’s position to be able to lift up to 70 pounds. UPS denied Young’s request for light duty work, citing an internal policy that reserved light duty for employees who had been injured on the job, had a condition that qualified as a disability under the ADA, or had lost their license to drive a commercial vehicle.

Young sued UPS in federal court, arguing that UPS’s policy violated the PDA, which prohibits employers from discriminating against employees who become pregnant and are unable to perform some or all of their job duties. The specific section of the PDA that was at issue in Young provides that it is a form of pregnancy discrimination for an employer to treat pregnant employees differently from other employees with similar limitations on their ability to perform job duties. The lower courts dismissed Young’s claim. But on March 25, the Supreme Court announced a new standard for proving PDA claims and decided to give Young another opportunity to prove her claim against UPS under that new standard.

The Supreme Court’s decision in Young requires a PDA plaintiff to show that (1) she sought a modification to her job duties when she became unable to perform all or part of her normal job due to pregnancy, (2) the employer refused to provide the requested modification, and (3) non-pregnant workers with a similar inability to perform their normal jobs were treated more favorably. Once a female employee makes this preliminary showing, the burden shifts to the employer to demonstrate that it did not intentionally discriminate against the employee based on her pregnancy but was instead motivated by a neutral, business-related policy. The female employee then has an opportunity to show that the policy, though neutral, places a significant and unjustified burden on female workers.

Since Peggy Young filed her pregnancy discrimination claim, UPS modified its policy to allow for light duty assignments to pregnant employees. In light of the Supreme Court’s decision, employers across the country should revisit their light duty policies to assess whether they are at risk for pregnancy discrimination claims. In particular, employers should be aware that policies reserving light duty assignments for workers with on-the-job injuries will likely not pass muster under the new standard for PDA claims.

Top Five Things Employers Should Know about the New Recreational Marijuana Law

March 19, 2015

By Amanda Gamblin, employment attorney

Oregon’s Measure 91 will go into effect July 1, 2015, allowing personal non-public use and possession of small amounts of marijuana. What does this mean for employers? Not much. An employer can prohibit an employee from coming to work high, just like it can prohibit an employee from coming to work drunk. Impairment is impairment. However, employers will want to make a few policy changes to ensure it maintains maximum flexibility and protection with respect to drug testing. And employers will need to keep apprised of possible changes in the law with respect to whether an employer may have to reasonably accommodate a disabled employee’s medical marijuana use.

1. Employers Do Not Have to Accommodate a Disabled Employee’s Marijuana Use Despite Measure 91

Measure 91 expressly states that it does not affect state or federal employment laws or the Oregon Medical Marijuana Act. Under Oregon’s Medical Marijuana Act, some disabled employees have attempted to persuade courts that an employer should accommodate their off-duty use of marijuana by allowing them to continue working (or to escape discipline) if they test positive for marijuana in violation of the employer’s drug and alcohol policy.

The Oregon Supreme Court has held that employers have no such obligation to make exceptions to their policies or otherwise accommodate a disabled employee’s marijuana use. This is true, in part, because marijuana is illegal under federal law. The law makes sense because the sophistication of marijuana testing makes it difficult to identify if an employee is currently impaired. An employee could say he or she smoked marijuana the night before, and the employer has no way of verifying. Because Measure 91 expressly does not affect state or federal employment laws, the law should remain that an employer has no obligation to allow a disabled employee to fail its drug test.

2. Over Time, the Law May Change if Social Attitudes Change

This law could change, but it is unlikely to do so in the short term. Measure 91 does contain some language that appears to be intended to get around the Oregon Supreme Court’s ruling. And although marijuana is illegal under federal law, the federal government is currently refraining from enforcing that law in states with recreational marijuana laws. If recreational use results in a shift of public opinion about marijuana and testing improves such that employers can more accurately test for current impairment, a future court could hold that an employer must accommodate a disabled employee’s off-hours marijuana use. Even if a change does occur, it will not be immediate.

3. Federal Contractors and Federal Grant Recipients Must Continue to Comply with Federal Laws

Measure 91 expressly does not require anyone to break federal law, exempt a person from federal law, and change a federal contractor’s obligations under a federal contract or a federal grant recipient’s obligations under a grant. Therefore, companies that are required to comply with federal drug-free workplace laws must continue to do so.

4. Review Your Drug and Alcohol Testing Policies

Federal contractors, federal grant recipients, maritime industry employers, the manufacturing industry, drivers regulated by DOT, and employers with other safety-sensitive positions may need to maintain a zero tolerance drug and alcohol policy. If your company employs a zero-tolerance policy, review it for the following areas:

  • Do not use an “under the influence” standard. Rather, use a “no detectable amount” standard. Therefore, any positive urine test could result in discipline up to and including termination.
  • Use random testing in addition to post-accident and reasonable suspicion testing.

Other employers may wish to have more tolerance. If so, consider the following:

  • Consider an “under the influence” standard or a mixture of an “under the influence” and a “no detectable amount” standard. For certain drugs, any detectable amount could result in termination, but for others the employer could have the discretion to reasonably discern impairment.
  • Consider blood tests. Blood tests allow the employer to more accurately test for impairment. If a company decides to include the option of blood tests, be sure to include a notice that the employer may use a blood test. Otherwise, a blood test could be considered an invasion of an employee’s privacy.
  • Even with a tolerance policy, prohibit possession, distribution, and use at the workplace. Marijuana is still illegal under federal law.
  • Ensure no safety risks and no federal contracts or grants.
  • Consider limiting testing to only post-accident or reasonable suspicion.

For all drug and alcohol policies, consider the following in light of Measure 91:

  • Call it a “Drug and Alcohol Policy,” or similar name. Avoid calling it an “abuse” policy.
  • Clearly state that it covers drugs illegal under local, state, or federal law.
  • Explicitly include marijuana. Employees are confused given Measure 91. Make it clear.
  • Include a prescription drug policy to avoid an employee arguing that he or she has a “prescription” for marijuana. Employees may not use prescription drugs that may cause impairment, or use (or test positive for) drugs for which they do not have a prescription.

5. Update Your Driving Policy

Measure 91 includes a specific provision prohibiting marijuana use while driving. Revise your policy to prohibit marijuana use in company vehicles or while driving on company time.

Update on Public Hearing on Oregon Statewide Mandatory Sick Leave ‎Legislation

February 18, 2015

By Leora Coleman-Fire and Nathan Sramek, Attorneys at Law

On February 16, 2015, the Oregon Senate Workforce Committee and ‎the House Business and Labor Committee held a joint public hearing on ‎the proposed statewide mandated paid sick leave legislation, HB 2005 ‎and SB 454. Over the course of two and a half hours, the committees ‎heard extensive testimony in support of and in opposition to the ‎legislation. In addition to those who testified, hundreds of people—‎many wearing stickers in support of paid sick leave—attended the ‎hearing, filling three legislative hearing rooms and spilling out into the ‎capitol’s halls.

Among those who testified, many employers voiced concerns that the ‎added cost of providing paid sick leave would result in increased costs ‎to consumers, reduced pay and benefits to employees, and decreased ‎staffing levels. Some, opposing the legislation outright, urged the ‎committees to recognize the unique position of an individual employer ‎to craft benefits packages tailored to their employees’ ‎needs. They contended that a statewide, one-size-fits-all paid sick ‎leave requirement would eliminate their ability to offer employees ‎alternative benefits, pay raises, or bonuses. Others emphasized that ‎the legislation would be particularly onerous on small businesses, and ‎they urged the committees to adopt a definition of “employer” in line ‎with the Oregon Family Leave Act, which applies only to employers ‎with twenty-five or more employees. Still other employers that already offer ‎paid sick leave testified in support of the bill, arguing that it increases ‎employee morale and retention. They urged the legislature to level ‎the business playing field so that employers that offer paid sick leave ‎cannot be undercut by competitors that do not.

One common theme between many witnesses in support and in ‎opposition of the legislation was the need for statewide ‎preemption. Business owners cited the increased cost of complying ‎with multiple regulations, and county representatives described the ‎tension and division that currently exist between Portland, Lane ‎County, Eugene, and their neighboring cities.

In addition, agricultural employers were particularly well represented ‎at the hearing. They voiced concerns over the difficulty of ‎administering the paid sick leave requirements in the context of a small ‎farming operation, with predominately seasonal and transient ‎employees, an unyielding harvest timeline, and a general lack of ‎human resources or other administrative support. In addition, to the ‎extent that the legislation will increase their operating costs, farm and ‎orchard operators emphasized they operate on very tight margins with ‎little or no control over the prices that they can charge for their ‎produce, which is overwhelmingly purchased by five national ‎retailers. Given those unique hardships, many of them asked the ‎committees to consider adding an agricultural exemption to the ‎legislation. However, the Oregon Farmworkers Union opposed an agricultural exemption, citing the low wages and frequent illnesses and ‎injuries that stem from farm work.

Finally, numerous employees testified about the hardships they face ‎when they must either go to work while they or a family member are ‎sick, forego their own wages to stay home, or find someone else to ‎care for their sick family members. Several home-care providers ‎testified that, because of the lack of available paid sick leave, they are ‎often forced to care for their elderly and medically fragile patients while ill. And several education professionals testified that frequently ‎children will attend school while ill, exposing teachers, administrators, ‎and other children, because their parents cannot afford to miss work in ‎order to care for them at home.

If you have any concerns of your own, the committees are still ‎accepting written testimony until this Friday, February 20.  To submit your written testimony, ‎e-mail both and

Legislature 2015: A cheat sheet on Oregon’s Statewide Mandatory Paid Sick Leave Bills

February 13, 2015

As published, Portland Business Journal, Feb. 13, 2015

Statewide paid sick leave may soon be a reality in Oregon. This Monday, February 16, at 6 p.m., the legislature will hold a public hearing on the pending statewide sick leave bills (House Bill 2005 and Senate Bill 454).

This is an opportunity for businesses to send in comments or appear in person to voice their feedback, including how mandatory paid leave will affect their business, whether they support the bills, and any proposed changes.

Don’t have time to read the bills? Below is a cheat sheet of ten important points that every business should be aware of.

1. The draft bills will require all employers to provide at least 56 hours of paid leave to each employee per year.

2. “Employees” include home care workers, temporary workers, and seasonal workers.

3. Employers must give employees at least 1 hour of protected paid sick leave for every 30 hours of work.

4. After 89 days of employment, employees can use their accrued sick leave in increments as small as 1 hour.

5. Employees can use their paid leave for everything from feeling sick to taking care of a family member dealing with mental health issues or needing a ride to the dentist and more.

6. The definition of who qualifies as a “family member” is broader than other Oregon laws and includes someone who is “related by blood or affinity” to the employee.

7. The statewide bills do not preempt, limit, or otherwise affect any other law, policy, or standard that provides for greater use of paid or unpaid sick time. This means that the City of Portland’s current Protected Sick Time Ordinance, as well as the City of Eugene’s Sick Leave Ordinance, which will be effective on July 1, 2015, will still apply. Employers with employees in or around these cities will need to be aware of what specific sections of each law provide a greater benefit to these employees and then meet the higher requirements.

8. Not all employers are required to comply with these statewide sick leave bills. For example, employees in the building and construction industry, longshoremen, or stage hands whose terms and conditions of employment are covered by a collective bargaining agreement do not have to comply.

9. Employers can require notice for an employee’s need for leave. However, the draft bills permit an employer to require only up to 10 days’ advanced notice “or as soon as otherwise practicable” if an employee’s need for paid leave is foreseeable. If the employee’s need for leave is not foreseeable (injured in a car accident, domestic violence situation, sudden sickness, etc.), then the employer can only require notice as soon as is practicable for the employee.

10. If an employee takes more than 24 consecutive hours of paid sick time, the employer may require medical verification or certification of the employee’s need for leave.

The draft bills are lengthy and complex, but the above ten points should help you assess what a statewide paid sick leave law will mean for your business.

Then, head to the Oregon State Capitol (900 Court Street NE, Hearing Room F) in Salem on Monday, February 16th at 6 p.m. for the public hearing to voice your thoughts.

If you are unable to attend but want the ‎legislature to hear your thoughts on the statewide mandatory sick leave bills, email me, Leora Coleman-Fire, at, and I will ‎make sure your comments are heard.

Leora Coleman-Fire is an Employment Law Attorney at Schwabe, Williamson & Wyatt.

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