HLGR Labor & Employment Newsletter: Spring 2019
For employers with 4 or fewer employees, the deadline to register or submit certification that you provide a retirement plan to your employees was May 15, 2019. (For larger employers, your deadline passed earlier). For more information go to https://www.oregonsaves.com/ or call the OregonSaves technical assistance line for employers: (844) 661-1256.
Under March 2019 administrative rules, some employers may get a notice of “presumed exemption.” OAR 170-080-0020(3) says: “The Program Administrator may, from time to time, compare Form 5500 (Annual Return/Report of Employee Benefit Plan) filings with the database of Employers and Exempt Employers. For an Employer identified as offering a Qualified Plan to some or all of its Employees, or an Exempt Employer identified as continuing to offer a Qualified Plan to some or all of its Employees, the Program Administrator may send written notice of presumed exemption from the Program.”
Potential Changes to Overtime
The Department of Labor has proposed an increase in the minimum salary threshold required for executive, administrative, and professional exemptions, to $35,308 per year, with “periodic” review for possible adjustment. Bonuses and commissions can make up 10% of that figure. Public comments on the proposed changes may be submitted through May 21, 2019. For more information on this and other changes in the proposed rule, see https://www.dol.gov/whd/overtime2019/. Go to https://www.federalregister.gov/documents/2019/03/22/2019-04514/defining-and-delimiting-the-exemptions-for-executive-administrative-professional-outside-sales-and, click on SUBMIT A FORMAL COMMENT to submit your comment.
As a reminder, the current threshold is $23,660. In 2016, the DOL enacted a regulation nearly doubling the threshold, however that increase, along with other changes, was challenged and ultimately withdrawn.
Oregon Legislative Effort
HB 3374 would have raised the salary threshold to “at least two times the state minimum wage rate set pursuant to ORS 653.025 or the federal minimum wage rate, whichever is greater, multiplied by 2,080 hours per year, then divided by 12 months.” It is unclear whether the bill would have imposed a different rate for each of Oregon’s different minimum wage regions, or whether the “Standard Rate” would have applied. As of July 1, 2019, the “Standard Rate” will be $11.25/hour. $11.25 x 2,080 x 2 = $46,800/year, or $3,900/month.
No work session was scheduled by the April deadline, so it appears this bill has died, but of course the legislative session is not over.
- As a reminder, as of July 1, 2019, the minimum hourly rate established for the Portland metropolitan area will be $12.50/hour; for “non-urban” areas, the minimum rate remains at $11.00/hour.
An additional reminder: in addition to receiving the minimum salary prescribed by both federal and state laws, exempt employees must also meet the “duties” test, and they must be paid “on a salary basis,” which means the pay must be the same, week after week, with no reduction related to the quality or quantity of work, except under narrowly prescribed circumstances. Mischaracterizing non-exempt employees as exempt can lead to wage claims (including class actions), resulting in an award of back wages for two or even three years, penalties, interest, and attorney fees.
The regular EEO-1 report for 2018 data is due by May 31, 2019. This report has historically been due by September 30 each year, but the deadline was suspended.
The “Component 2” reports on hours worked and pay, which has been on hold due to pending litigation, is now due on September 30, for 2017 and 2018 data. For more information about the EEO-1 report, see https://www.eeoc.gov/employers/eeo1survey/about.cfm.
There are lots of bills worth watching! Here are just a few of the pending bills we’re following:
- HB 2005 – Paid Family and Medical Leave: Creates a paid family and medical leave program, funded by employer and employee contributions.
- SB 370 – ICE Audits: Requires notification of employees of a pending federal audit of employee identity and eligibility for employment.
- SB 379 – Off-Duty Marijuana:
- Makes it unlawful to refuse to hire, fire, or otherwise discriminate against an applicant or employee for off-duty use of any substance that is legal in Oregon.
- Certain employees would be exempt: Those who work in safety sensitive functions, public transit drivers, and employees subject to a CBA and/or federal law.
- SB 726 – Harassment: Prohibits non-disclosure and non-disparagement terms in settlement agreements related to discrimination or harassment, except under specific circumstances (employee requested the terms, revocation period allowed); extends deadline to file complaint about discrimination or harassment to 5 years; incorporates sexual assault in coverage of harassment laws; and requires policies and procedures for preventing and reporting discrimination and harassment.
- HB 2020 – “Clean Energy Jobs”: Creates a “greenhouse gas” cap, and taxes industries based on emissions; invests funds into rural communities “for projects like wildfire prevention, drought protection and clean energy”; provides retraining for displaced workers. (There is too much in this 55-page bill with over 50 proposed amendments to summarize here. If you’re interested:
- Check out the bill and its amendments here https://olis.leg.state.or.us/liz/2019R1/Downloads/MeasureDocument/HB2020/Introduced and https://olis.leg.state.or.us/liz/2019R1/Measures/ProposedAmendments/HB2020;
- Or check out Renew Oregon’s “2-Pager” at https://d3n8a8pro7vhmx.cloudfront.net/reneworegon/pages/233/attachments/original/1549043489/CEJ_2_pager_feb_2019.pdf?1549043489.
(Lawyerly note: HLGR is not affiliated with Renew Oregon and does not take a position on the bill – the link is provided here only because, as sponsors of the bill, their summary is concise and easy to follow.)
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