Chiefly L&E: Summer 2013 Issue: Legislative Updates

by Jeff Matthews, Shari Lane, and Kate Grado
jeff matthews headshotshari lane headshot
At HLGR, our Labor and Employment Team monitors current legislation that has the potential to affect clients. The following information is a summary of various bills affecting employers that passed in the 2013 session. This is not intended to be an exhaustive list, or to provide all relevant details. If you would like an in-depth analysis of how any of the legislation summarized below may impact you and your business, please contact us. We are happy to assist you.

OREGON

  • Disability: Oregon employers with at least 6 employees: Effective 1/1/2014
    • HB 2111: Revises the definition of disability. Currently, a “qualified person with a disability” is an individual who “has a physical or mental impairment that substantially limits one or more major life activities.” The current law explains: “An individual is substantially limited in a major life activity if the individual has an impairment, had an impairment or is perceived as having an impairment that materially restricts one or more major life activities of the individual.” HB 2111 removes the word “materially” from the statute, expanding the standard for evaluating who is entitled to reasonable accommodation and other protections of the law.
  • Social Media: Oregon employers: Effective 1/1/2014
    • HB 2654: Makes it an unlawful employment practice for employers to: request an employee’s or applicant’s social media username or password, require an employee or applicant to add the employer to his or her list of social media contacts, compel an employee or applicant to access a personal social media account in the presence of the employer, or retaliate against an employee or applicant for refusing to do any of the above. HB 2654 allows employers limited access to an employee’s or applicant’s social media content for purposes of conducting certain investigations and clarifies that the bill does not prohibited employers from accessing social media information available to the public.
  • Interns: Oregon employers: Effective 6/13/2013
    • HB 2669: Defines and extends statutory protection against various forms of discrimination and harrassment to “interns.”  “An intern is considered to be in an employment relationship with an employer for the purposes of the employee protections provided under ORS 659A.030, 659A.082, 659A.109, 659A.112, 659A.136, 659A.142, 659A.199, 659A.230, 659A.233, 659A.236, 659A.290, 659A.300, 659A.303, 659A.306 and 659A.315.”
  • Wages: Oregon employers: Effective 1/1/2014
    • HB 2683: Oregon wage law previously required employers to obtain employees’ consent prior to using direct deposit for the payment of wages. HB 2683 amends Oregon wage law to allow employers to use direct deposit without first obtaining consent from an employee, however an employer is required to pay wages to an employee by check if the employee requests.
  • Posting of Employment Laws: Oregon employers with 6 or more employees: Effective 1/1/2014
    • HB 2903: Requires “covered employers” to post BOLI summaries of specified employment statutes and rules in “a conspicuous and accessible place;” amends definition of “eligible employee” by deleting the requirement that an employee had to have worked an average of 25 hours per week for the last 180 days. Summaries required to be posted can be obtained from BOLI.
  • Medical Leave: Oregon employers with at least 25 employees: Effective 1/1/2014
    • HB 2950: Amends Oregon’s Family Leave Act to require covered employers to provide up to 2 weeks of unpaid bereavement leave for death of a family member. “Bereavement” includes grieving, attending a funeral, and “making arrangement necessitated by the death of a family member.” Bereavement leave must be completed within 60 days after the employee received the notice of death.The total accrual of family and medical leave per year does not change (12 weeks, plus additional for pregnancy disability, parental, and/or sick child care), however an employee may take more than one 2-week bereavement leave in one accrual year, if s/he loses more than one family member that year. Other OFLA rules apply (such as the definition of family member, and the rules regarding spouses working for the same employer taking OFLA leave at the same time).
  • Union Organizing: Oregon public employers: Effective 7/1/2013
    • HB 3342: Prohibits public employers from (1) using public funds to support actions to assist, promote or deter union organizing; (2) discharging, demoting, harassing or otherwise taking adverse action against an employee for participating in any way to enforce this section.
  • Veteran’s Day Leave: Oregon employers: Effective 4/4/2013
    • SB 1: Requires employers to provide paid or unpaid Veteran’s Day Leave to veteran-employees who are scheduled to work on Veteran’s Day, unless providing such leave would cause “significant economic or operational disruption.” Employees must provide proof of veteran status, and request leave at least 21 days in advance. Employers must notify the employee whether the request will be granted at least 14 days in advance. Employers may offer a different day off, if they deny the request for Veteran’s Day Leave for permitted reasons.
  • Unemployment Benefits: Oregon employers subject to Oregon unemployment insurance: Effective 10/8/2013
    • SB 192: Asserts employer’s unemployment account will be charged if the employer fails to respond to the Oregon Employment Department (OED) request for information about a benefits claimant, the OED later determines the claimant wasn’t eligible (resulting in overpayment of benefits), and the employer “has a pattern of failing to respond timely or adequately to requests” by the OED. NOTE: This seems like a fairly narrow scope; however, many employers choose not to respond to OED inquiries as part of a negotiated separation agreement. On a completely unrelated issue, the bill also adds requirements for participation in the shared work unemployment benefit program.
  • Drug Testing: Oregon School Districts and Contractors: Effective 1/1/2014
    • SB 193: Requires school transportation providers to have in-house drug and alcohol testing program or be members of consortium that provides testing. The transportation providers must certify compliance yearly, and must report any positive drug tests.
  • Unemployment Insurance: Oregon employers: Effective 10/8/2013
    • SB 252: Increases the penalties the Oregon Employment Department may assess against employers who fail to timely file quarterly tax reports or quarterly reports of employees’ wages and hours worked.
  • Public Employee Collective Bargaining Act: Oregon employers: Effective 1/1/2014
    • SB 264: Amends the definition of “managerial employee” under the Public Employee Collective Bargaining Act (PECBA) to include employees of the Oregon University System who possess authority to formulate and carry out management decisions or who represent management’s interests by taking or effectively recommending discretionary actions that control or implement employer policy, and who have discretion in the performance of these management responsibilities beyond the routine discharge of duties.
  • Social Media: Oregon public and private educational institutions: Effective 1/1/2014
    • SB 344: Prohibits all educational institutions except K-12 from requiring or compelling student or prospective student to provide institution with access to personal social media accounts, and prohibits taking any action (such as refusing to admit the prospective student, or refusing to allow a student to participate in educational or extracurricular activities), based on the student’s or prospective student’s refusal to provide access to his or her social media account. The bill makes an exception for social media accounts created solely for education purposes, or created by the educational institute and provided to the student along with notice that the account may be monitored.
  • Transfer of Services: Oregon public employers: Effective 6/26/2013
    • SB 643: Redefines “public employer” to include school districts and educational service districts (along with the state, cities, counties, special districts) within the scope of statutes regulating transfer of services from one public entity to another.
  • Wages: Oregon agricultural employers: Effective: 1/1/2014
    • SB 677: Creates exception to the (current) requirement that wages due to seasonal farmworker must be paid immediately after termination (other than resignation without notice).  The employer may pay final wages by noon the day after termination if: the employer meets the statutory definition of a “farmworker camp operator”; the termination occurs at the end of the harvest; and the employee is provided housing at no cost until all wages are paid.
  • Workers’ Compensation: Oregon limited liability companies (LLCs): Effective 6/24/2013
    • SB 678: Extends the exclusive remedy protection afforded employers under Oregon’s workers’ compensation laws to limited liability company owners and members.

WASHINGTON

  • Unemployment: Washington employers: Effective: 7/28/2013
    • EHB 1396: Revises rules applicable to shared work benefits programs.
  • Overtime: Washington employers: Effective 7/28/2013
    • SHB 1853: Exempts real estate brokers from overtime compensation eligibility “ …unless the individual is providing real estate brokerage services under a written contract with a real estate firm which provides that the individual is an employee.”
  • Unemployment: Washington employers: Effective 1/1/2014
    • HB 1903: Provides relief from the cost of claims where the claimant continues to be employed by the employer on a “permanent, part-time basis.”
  • Family Leave: Washington employers: Effective 9/28/2013
    • HB 2044: Delays start of paid family leave benefits program to such time as “the legislature has specifically appropriated funding and enacted an implementation date for benefits.”
  • Employing Minors: Washington employers: Effective 7/28/2013
    • SB 5056: Allows an employer with a master application on file to simply register changes and/or a continuation, rather than filing a complete new master application to employ minors.
  • Social Media: Washington employers: Effective 7/28/2013
    • SSB 5211: Prohibits employers from requesting or requiring access to social media accounts from applicants or employees (including requesting/requiring the password, access in the employer’s presence, and/or adding the employer to the approved contacts list or changing the privacy settings), and may not take adverse action (such as refusing to hire, or firing) based on the applicant’s or employee’s refusal to provide such information. There are many exceptions and caveats, so when in doubt, consult a lawyer.
  • Unemployment Insurance: Washington employers: Effective 10/20/2013
    • SB 5355: Charges unemployment benefits improperly paid out to the employer if “a benefit payment was made because the employer failed to respond timely or adequately to a written request of the department for information relating to the claim…and the employer has a pattern of such failures [defined as at least 3 times in the prior two years or at least 20% of the claims filed].”
  • Independent Contractors: Washington employers: Effective 7/28/2013
    • SB 5476: Exempts from the definition of “employee” newspaper delivery persons and free-lance writers.

IDAHO

  • Unemployment: Idaho employers: Effective 10/22/2013
    • HB 44: Charges unemployment benefits improperly paid out to the employee because the employer failed to respond timely (defined as within 7 days), or adequately to a written request of for information relating to the claim, and the employer has a pattern of such failures (defined as at least 2 times in the past).
  • Health Insurance: Idaho employers: Effective “Immediately” unless the federal HHS announces a new deadline
    • HB 248: Establishes a health insurance exchange for employers and employees.
  • Unemployment: Idaho employers: Effective 4/3/2013
    • SB 91: Exempts polling and other election workers from unemployment insurance obligations, if they earn less than $1,000 per year.
  • Workers’ Compensation: Idaho employers: Effective 7/1/2013
    • SB 254: The legislative summary asserts this bill reduced the workers compensation tax; however, it is unclear from the text of the bill what reduction occurred.