News for Oregon Employers from the 2007 Legislative Session

News for Oregon Employers from the 2007 Legislative Session

Oregon’s 2007 Legislative Session was eventful and evidenced different priorities
than in years past. Now that the session is over, it is time to learn about the new
requirements. Unless otherwise specified, the changes described in this Alert will take
effect on January 1, 2008.


Arbitration Agreements and Noncompetition Agreements
Senate Bill 248 amends ORS 36.260 (arbitration agreements) and ORS 653.295
(non-competition agreements) to significantly limit the ability of employers to utilize and
enter into with their employees valid and enforceable arbitration and noncompetition
agreements. The changes affecting arbitration agreements are simpler and more
straightforward; the changes affecting noncompetition agreements are more complex.

Arbitration Agreements
Under existing Oregon law, agreements to arbitrate disputes involving
employment matters are governed by the general statute regarding arbitration
agreements. This statute provides that arbitration agreements are valid, enforceable
and irrevocable except for reasons for which a contract can be revoked. Under the new
law, an agreement between an employer and an employee to settle employment
disputes by arbitration will only be valid under the following circumstances:

1. Upon initial employment if the employer, in a written employment offer,
received by the employee at least two weeks before the employee’s first
day of employment, informs the employee that an arbitration agreement is
a condition of employment;
– or –
2. The arbitration agreement is entered into between the employer and the
employee upon a subsequent bona fide advancement of the employee.
If these conditions are not met, the arbitration agreement will be voidable and is
not enforceable in court.

Noncompetition Agreements
Under existing law, noncompetition agreements, generally, are valid and
enforceable if entered into upon the initial employment of the employee or upon a
subsequent bona fide advancement of the employee. Under the new law, the following
conditions must be met to create a valid and enforceable noncompetition agreement:

1. Similar to the new rules that will govern employment arbitration
agreements, to create a valid, enforceable noncompetition agreement, the
agreement must either be entered into upon initial employment or upon a
subsequent bona fide advancement of the employee. If entered into upon
initial employment, the agreement must be contained in a written
employment offer, received by the employee at least two weeks before the
employee’s first day of employment, in which the employer informs the
employee that a noncompetition agreement is a condition of employment;

2. The employer must have a protectable interest. This is defined as the
employee having access to trade secrets, competitively sensitive
confidential business or professional information (such as product
development plans, product launch plans, marketing strategy or sales
plans) or when the employee is employed as an “on-air talent” (for which
special rules apply);

3. The employee must be salaried and engaged in administrative, executive
or professional work – essentially, the employee must meet the
requirements under the FLSA and Oregon law for being an “exempt

4. Have a gross annual salary (including commissions) which, at the time of
the employee’s termination, exceeds the median family income for a fourperson
family “as determined by the United States Census Bureau for the
most recent year available at the time of the employee’s termination.” It is
not clear whether this is based on Oregon or national statistics. For 2005,
the most recently available year, those numbers are $60,262 and $70,312,
respectively; and

5. The term of the noncompetition agreement cannot exceed two years from
the date of the employee’s termination.
If these conditions are not met, the noncompetition agreement is voidable and is
not enforceable in court.

The new law does provide an option if these conditions are not met and the
employer wants to create a valid, enforceable, noncompetition agreement. The
employer can pay compensation to the employee equal to 50 percent of the employee’s
annual gross base salary and commissions at the time of the employee’s termination or
50 percent of the median family income for a four-person family, as determined by the
U.S. Census Bureau, for the most recent year available at the time of the employee’s

The new law does not restrict or affect covenants not to solicit employees or
business customers of the employer. It also does not affect the validity of “bonus
restriction agreements.” To be valid, noncompetition agreements must still be limited to
a reasonable geographic area.

The law, which takes effect on January 1, 2008, only affects arbitration
agreements and non-competition agreements entered into on or after that date.


Discrimination Based on Sexual Orientation
The 2007 session saw a major expansion of the rights of gays and lesbians in
the workplace. The Oregon Equality Act (Senate Bill 2) extends the Oregon
discriminatory employment practices law to prohibit discrimination based on sexual
orientation. Effective January 1, 2008, it will be unlawful to refuse to hire, discharge, or
otherwise discriminate in the terms and conditions of employment or compensation
based on a person’s sexual orientation. Churches and religious institutions are exempt
from the law’s requirements under certain circumstances.

Sexual orientation is defined broadly as “an individual’s actual or perceived
heterosexuality, homosexuality, bisexuality, or gender identity, regardless of whether
the individual’s gender identity, appearance, expression or behavior differs from that
traditionally associated with the individual’s sex at birth.” Oregon employers should
update their EEO and anti-harassment and discrimination policies to reflect these
changes. All employees, and supervisors in particular, should have training on up-todate

Scope of Damages for Discrimination Claims Under State Law
Currently, state law claims for discrimination against an employee based on race,
religion, color, sex, national origin, marital status and age are tried to a court, not a jury,
and the remedies are limited to injunctive and equitable relief, including reinstatement
and back pay. General compensatory damages, including emotional distress damages,
and punitive damages, are unavailable to successful claimants.

Effective January 1, 2008, with the passage of HB 2260, employers will be liable
under Oregon’s law against discrimination not only for back pay and other forms of
equitable relief, but for the full spectrum of compensatory and punitive damages. In
addition, at the request of any party, such discrimination claims will be tried to a jury, not
a judge. Unlike the basic federal law against discrimination, Title VII, Oregon’s law
against discrimination will contain no cap on compensatory damages.

Practice Tip

It is critical for employers to remain vigilant in preventing workplace
discrimination and harassment of all forms.
With the passage of HB 2260, expect an increase in discrimination claims
filed under state law.

Statute of Limitations for Filing Retaliation Claims
HB 2259 extends the statute of limitations from 30 to 90 days for an employee to
file an administrative complaint with BOLI alleging retaliation for opposing violations of
Oregon OSHA or exercising the right to complain under that law. As before, this
limitation runs from the date the employee had reasonable cause to believe that the
discriminatory violation occurred. This bill took effect June 1, 2007, and applies only to
employment practices occurring after that date.


The Oregon Family Fairness Act establishes a domestic partnership system that
provides legal recognition to same-sex relationships. Under this Act, individuals who
meet age and other requirements and who wish to become partners in a domestic
partnership may complete and file a Declaration of Domestic Partnership with the
county clerk. The county clerk will register the Declaration in a domestic partnership
registry and return a Certificate of Registered Domestic Partnership to the partners.
Registered domestic partners have the same legal rights and responsibilities under
Oregon law as granted to or imposed on married persons. As Oregon state law cannot
control federal rights, the Act does not create new rights or responsibilities under federal

As the Act grants all privileges, rights, immunities, benefits, and responsibilities
afforded to married people and their children to domestic partners and their children,
employers should note the following implications:

Employers will need to bring subject benefit plans into compliance by
extending such plans to domestic partners and children as if the partners
were married. Note important caveats to this rule. First, the Act does not
require the extension of an employee benefit plan that is subject to federal
regulation under ERISA. It also does not require or permit the extension
of any employee benefit plan under PERS, the Oregon Public Service
Retirement Plan, or any other retirement, deferred compensation, or
employee benefit plan if the plan administrator concludes that such
extension would conflict with a condition for tax qualification or favorable
tax treatment under Federal law.

The law requiring payment of final paycheck to a surviving spouse will
apply to a surviving domestic partner.

OFLA rights for leave to care for a spouse with a serious health condition
will apply equally to domestic partners. As the Act does not create rights
under federal law, FMLA remains unchanged and does not provide leave
for a seriously ill domestic partner.

The law prohibiting discrimination against a person because a member of
the individual’s family works or has worked for the employer will apply to
domestic partners.

Key areas of employer handbooks that should be updated are:
bereavement policies, OFLA policies, sick leave notification policies, and
status-change notification policies.


Health Insurance Rate Regulation for Small and Medium Employer Plans
HB 2002 provides for increased regulation of health insurance rates for mediumsized
employers. The bill creates incentives for businesses employing 26-50 people to
offer insurance and healthy lifestyle programs which promote preventive care.

Insurance carriers are also allowed to take more factors into account in setting small
group rates. This bill became effective on June 30, 2007.

Mandated Benefits
The Legislature passed a number of bills mandating coverage of specific medical
conditions, equipment, or services in certain insurance plans. These requirements do
not place any obligation on employers, but some argue that they could increase the cost
of insurance.

HB 2348 – Health insurance policies other than disability income policies must
cover the treatment of injuries and illnesses caused in whole or in part by the insured’s
use of alcohol or controlled substances.

HB 2517 – All policies providing coverage of hospital, medical, or surgical
expenses must provide coverage for prosthetic and orthotic devices. The bill only
mandates coverage of devices that are medically necessary to allow the insured to
complete activities of daily living or essential job-related activities. The policy need not
cover devices solely for the comfort or convenience of the insured.

HB 2918 – Health benefit plans must cover treatment of any pervasive
development disorders of an enrolled child under 18 years of age. A “pervasive
development disorder” is defined as a neurological condition that includes Asperger’s
syndrome, autism, developmental delay, developmental disability or mental retardation.

SB 8 – Health benefit plans that provide coverage for chemotherapy must
provide coverage for orally administered anti-cancer medication on at least as favorable
a basis as intravenously administered or injected cancer medication.

SB 59 – This bill reenacts a lapsed requirement that health insurance policies
which cover acupuncture services by a physician must cover acupuncture services by a
licensed acupuncturist.

SB 491 – If a health insurer provides coverage for cochlear implants, the insurer
must provide coverage for bilateral cochlear implants.


Attorney-Client Privilege for Investigation Records Compiled by Public Entities
SB 671 amends the Public Records Law and potentially alters the scope of the
attorney-client privilege for public entities when conducting investigations into “possible
wrongdoing by the public body.” Investigations of “possible wrongdoing” are common in
personnel matters – in fact, “possible wrongdoing” forms the basis of most personnelrelated

The new provisions of the Public Records Law added by SB 671 apply to “factual
information compiled in a public record” when the factual information is compiled “as
part of an investigation on behalf of the public body in response to information of
possible wrongdoing by the public body.” If factual information is compiled as a result of
an investigation into allegations of possible wrongdoing by “the public body” under the
direction of an attorney on behalf of the public body, the factual information may be
subject to disclosure, despite being compiled by or under the direction of legal counsel,
if the following apply:

1. The basis of the public entity’s claim of exemption from disclosure is the
attorney-client privilege;

2. The factual information is not otherwise prohibited from disclosure under
state or federal law, a regulation, court order or another applicable
provision of the Oregon Public Records Law;

3. The factual information was not compiled in preparation for litigation,
arbitration or an administrative proceeding that has been initiated or is
reasonably likely to be initiated by or against the public body; and

4. The holder of the privilege (i.e. the public body) has made or authorized a
public statement “characterizing or partially disclosing the factual
information compiled by or at the attorney’s direction.”

Perhaps the most important thing for public entities to remember is disclosure is
only required if the holder of the privilege – that is, the client who receives the results of
the investigation – makes or authorizes “a public statement characterizing or partially
disclosing the factual information.”

If a situation requires disclosure or the public entity chooses to disclose
information about the investigation, the public entity has the option of releasing a
condensation of “significant facts that are not otherwise exempt from disclosure.” A
person or entity seeking to inspect or receive a copy of a condensed version of
significant facts provided by the public entity may file a petition for review of the
condensed record with the Attorney General, the district attorney or the court, as
applicable and as otherwise provided in the Public Records Law.

The new law clarifies that a voluntary or compelled disclosure of facts does not
constitute a waiver of the attorney-client privilege. The changes to the law do not affect
the confidentiality of opinions or legal analysis given by counsel to clients.

If legal counsel is involved in the investigation, be sure to consult with your
attorney before disclosing or discussing facts or information developed during the
course of the investigation. The bill took effect upon its passage on June 20, 2007 and
applies to records created after that date.

Timely Response to Requests to View Personnel Records
HB 2254 creates a 45-day deadline for employers to respond when an employee
or former employee requests inspection or a copy of his or her personnel records. The
employer and employee may agree to extend this time if the records are not readily
available. The legislature added teeth to this bill by including a $1,000 civil penalty for
failure to comply. Under the personnel records law, an employer is permitted to charge
an employee only the actual cost of services resulting from furnishing the records. This
law applies to requests made after January 1, 2008.

Mediation of Interpersonal Disputes Between Public Entity Employees
Communications and agreements between two public bodies in mediation are
generally not confidential. HB 2139 allows confidential mediation of workplace
interpersonal disputes between employees of a public body.

Disclosure of Education Employee’s Disciplinary and Investigatory Records
Before the passage of SB 380, a public or private K-12 provider had a statutory
obligation to turn over investigations of suspected child abuse by employees upon law
enforcement request. The schools were also required to turn over disciplinary records
to any person who asked for them upon an employee’s conviction of certain crimes.
This bill adds to (or clarifies) this requirement by directing the schools to turn over
records of former employees under the same circumstances. The bill took effect May
30, 2007.


Leave of Absence for Victims of Domestic Violence and Other Crimes
Senate Bill 946 requires an employer to grant an eligible employee a leave of
absence if the employee or that employee’s minor child or dependent needs time to
address domestic violence, sexual assault, or stalking. Upon receipt of notice from an
employee, employers must provide reasonable leave to seek legal or law enforcement
assistance, seek medical treatment, recover from injuries, obtain counseling, relocate or
secure a home, or seek the help of a victim services provider. Employers may limit the
amount of leave for these purposes only if the employee’s absence creates an “undue
hardship,” meaning a significant difficulty and expense to an employer’s business.

The law applies to employers with six or more employees. An eligible employee
is one who worked an average of 25 hours or more per week for at least 180 days
immediately before taking leave, and who is a victim of domestic violence, sexual
assault or stalking, or is the parent or guardian of a minor child or dependent who is a
victim. An employee is required to give reasonable advance notice of the employee’s
intention to take crime victim leave, unless giving advance notice is not feasible.

The employer may require certification of the victimization, and the law provides
that police reports, protective orders, and documentation from an attorney, law
enforcement officer, health care professional, licensed counselor, clergy member or
victim services provider are sufficient forms of certification. That information, including
the fact that crime victim leave was requested or obtained, must be kept confidential by
the employer. The leave is unpaid, but an employer must allow an eligible employee to
apply vacation leave (or other paid leave offered in lieu of vacation leave) to the
absence. There is no fixed limit on the amount of leave that must be given. Rather the
employee is entitled to “reasonable” leave, and what is reasonable will depend on the

Like OFLA leave, crime victim leave is legally protected. An employer may not
deny leave to an eligible employee or discriminate or retaliate against an employee with
regard to any terms and conditions of employment because the employee took the
protected leave.

In light of this new law, employers should develop new policies and processes for
addressing crime victim leave, and notify and train employees on the changes. The bill
took effect on May 25, 2007, and created a civil cause of action for an employer’s failure
to comply with the law.

Employer Cannot Require OFLA Leave to Recover From Work-Related Injuries
HB 2460 amends provisions of the Oregon Family Leave Act (OFLA) and the
Oregon Workers’ Compensation Law to address the relationship between OFLA leave
and workers’ compensation leave. The law changes OFLA’s definition of “family leave”
to exclude leave taken by an eligible employee who is unable to work because of a
“disabling compensable injury.” A “disabling compensable injury” is one that entitles the
worker to compensation for disability or death under the Workers’ Compensation Law.
In general, then, OFLA leave will no longer run concurrently with a workers’
compensation leave.

Currently, an injured worker who refuses an employment offer for light duty or
modified employment, will lose his or her right to reinstatement under workers’
compensation rules. Although HB 2460 does not change that, it does provide that an
employee who refuses a light duty offer while on a workers’ compensation leave will
automatically commence OFLA leave (provided that he/she is otherwise entitled to
OFLA). No written or oral notice of this commencement of OFLA to the employer is

Employees May Apply Accrued Sick Leave For Any OFLA Absence
Under existing law, an employee on OFLA leave is entitled to use accrued
vacation leave, but not accrued sick leave, unless the purpose of the leave is to care for
an infant or newly adopted child, or a mentally or physically disabled child incapable of
self-care. HB 2485 amends OFLA to provide that employees may apply accrued sick
leave unconditionally to any OFLA-covered absence.

OFLA Leave Will Be Available To Care For Seriously Ill Grandparents and

Under existing law, employees are permitted to use OFLA leave to care for family
members with serious health conditions, but the definition of family member does not
include grandparents or grandchildren. In HB 2635, the 2007 Legislature changed that.

That law redefines “family member” to include an employee’s grandparent and
grandchild. As a result, an eligible employee may take OFLA leave in order to care for
a grandparent or grandchild with a serious health condition. FMLA remains unchanged
and does not extend to leave to care for a seriously ill grandparent or grandchild.
Note that HB 2635 did not change the provisions of sick child leave under OFLA.

Thus, it remains the case that OFLA leave is available to an eligible employee who is
the parent of a child who is suffering from an illness, injury or condition that is not a
serious health condition but that requires home care. This type of leave – commonly
referred to as “sick child leave” – is in addition to any leave that an employee is entitled
to when he or she is needed to care for a family member with a serious health condition
and may only be taken by the parent of a child.


Accommodation of Breastfeeding Mothers
In 2005, legislators balked at passing a mandatory law requiring employers to
provide a private area other than a public restroom or toilet stall for employees to
express breast milk. In 2007, legislators went beyond the aspirational guidelines
enacted in 2005, passing HB 2372. That law requires employers to make reasonable
efforts – meaning efforts that do not impose an undue hardship on the operation of the
business – to provide a private location for an employee to express milk. The employee
must provide her employer reasonable notice of her intent to express milk upon
returning to work.

In addition, unless otherwise agreed between employer and employee, an
employer must provide a 30 minute rest period to express milk for each four hours of
work. If feasible, the employee should take this rest period at the same time as other
rest or meal periods that are otherwise provided to the employee. To the extent the
break period needed to express milk exceeds the employee’s paid rest period, it is
unpaid, though an employer may allow an employee to work before or after her normal
shift to make up the amount of time used during the unpaid rest periods. If the
employer’s contribution to the employee’s health insurance is based on the number of
hours worked, the break counts as paid work time for the purpose of measuring the
number of hours the employee works.

These requirements will apply to employers with 25 or more employees and
across all industries. Administrators, executives and professionals fall within its scope.
School districts must adopt rules to ensure compliance. The law also directs BOLI to
develop an advisory committee to address compliance difficulties in specific industries
or professions.

Relaxed Break Requirements for Tipped Food and Beverage Service Workers
SB 403 directs the Commissioner of BOLI to adopt rules regarding meal periods
for food and beverage service workers who receive tips and report those tips to their
employer. The rules will permit the employee to waive meal periods, and forbid an
employer from coercing the employee to do so. An employer who coerces an employee
to waive their meal period is subject to a civil penalty of up to $2000 for each separate
violation. In the case of a continuing violation, each day constitutes a separate and
distinct violation. The law sunsets in 2012.


Timely Payment of Wages Upon Notice of Payday Mistakes
HB 2258 ensures timely payment of wages after the employer receives notice
that an employee did not receive the full amount owed on payday. If the amount is less
than 5 percent of the employee’s gross wages due on the regular payday, the employer
must pay the unpaid amount by the next regular payday. If the amount is greater than 5
percent, the employer must pay within three days of notice, excluding Saturdays,
Sundays, and holidays. These time mandates are conditioned on there being no
dispute as to the amount of unpaid wages.

Timely Payment of Withheld Wages to Appropriate Recipient
If an employer deducts wages pursuant to a law or an agreement with its
employee, HB 2674 requires the employer to pay the amount deducted either (1) within
the required or agreed upon time or (2) within seven days of when the employee is due
the remainder of the paycheck. Failure to do so may result in a civil penalty of up to

Agreements for Electronic Payment of Wages Between Employer and Employee
ORS 652.110 describes the medium permitted for paying employees. HB 2256
amends that law to provide for an expanded range of electronic payment to employees,
such as direct deposit, automated teller machine cards, payroll cards, or any other
means of electronic transfer. Wage payments through such media must be pursuant to
a written agreement with the employee. Agreements to make and accept wage
payments electronically must allow the employee to make an initial withdrawal of the
entire amount without cost, or to choose another means of payment involving no costs.

Conditions for Garnishment of Wages
SB 303 provides that wages may not be garnished if the writ of garnishment is
delivered within two days of the pay period and payment of the debtor’s wages has
already been set in motion. This law only applies if the employer uses direct deposit, or
contracts with the Department of Administrative Services as a payroll administrator.


Smoking Prohibition Extended to (Almost) All Workplaces
Of particular importance to food and beverage industries, SB 571 prohibits
smoking in or near any place of employment. Employers are expressly required to
provide a place of employment that is free of tobacco smoke for all employees. This
includes a “10 foot rule” from all entrances, exits, windows that open, and ventilation
intakes. The bill does contain some limited exceptions. Smoking will not be prohibited
in smoke shops and cigar bars. Hotels may designate up to 25 percent of sleeping
rooms as smoking rooms.

An employer’s failure to follow this law is a Class A violation punishable by a fine
of not more than $500 per day, not to exceed $2,000 for a single employer in a 30-day
period. In addition, administrators or persons in charge of hospitals who permit a
person to smoke in a prohibited area are subject to civil penalties of the same amount
employers face in fines. This law takes effect January 1, 2009, giving bars and
restaurants an extra year to develop outdoor areas for their customers who smoke.

Oregon Safe Employment Act – Necessity of a Workplace Safety Committee
Currently, every employer with more than 10 employees is required to have a
safety committee to establish procedures for workplace safety inspections and to
evaluate accident and illness prevention programs. With the passage of HB 2222,
every employer – irrespective of size – is to establish and administer a safety committee
and hold safety meetings in accordance with rules issued by the State of Oregon
Department of Consumer and Business Services (DCBS).

Oregon Safe Employment Act –Health Care Employer’s Responsibility to Prevent

HB 2022 creates an entirely new health and safety statute. It requires proactive
measures on the part of health care employers to prevent assaults against their
employees. Employers are required to assess threats, implement safety programs, and
maintain detailed records of assaults. The law allows employees to refuse to treat a
patient who assaulted the employee in the past unless accompanied by a second
employee. Employees who provide home health care may do the same if they have
reason to believe the patient may assault the employee, and may also demand a
communication device to alert others of any assault. Employers also may not sanction
an employee for using self-defense that is justifiable under the terms of statute. This
law took effect July 1, 2007.


Safety and Staffing Within Bounds of Collective Bargaining for Public Safety

In collective bargaining negotiations, certain public safety employees who are
prohibited from striking currently cannot require their employers to address safety
issues and staffing levels that impact the employees’ job safety. SB 400 adds these
issues to the definition of “employment relations” that are mandatory in collective
bargaining with corrections workers, parole and probation officers, 9-1-1 workers,
police, and firefighters.

Public Transit Worker Strike Prohibition
HB 2537 prohibits any employee of a mass transit district, transportation district,
or municipal bus system from striking or recognizing another union’s picket line in the
performance of the employee’s official duties. The law took effect June 26, 2007.

Adult Foster Care Home Providers May Collectively Bargain With the State
Under SB 858, those who provide foster care for adults in their own home and
receive fees from the State may collectively bargain with the State. For the purposes of
collective bargaining alone, such individuals are deemed employees of the state. The
law expressly prohibits the providers from going on strike.

Unemployment Insurance Available During Lockout Due to Labor Dispute
Current law only allows an individual to collect benefits during a lockout in a
limited situation where the employer is solely at fault for any further continuation of the
dispute, or where the out-of-work employee is not a participant in the dispute. HB 3339
allows collection of unemployment benefits any time the employer refuses to permit
employees to work because of an employment dispute.

“Card Check” Amendment for Organization of Public Sector Employees
The passage of HB 2891 significantly affects the ease with which labor
organizations can organize public sector employees. The law, which took effect
immediately upon signature by the Governor in June of this year, allows (requires) the
Employment Relations Board (ERB) to certify a labor organization as the exclusive
representative of employees if ERB finds that the majority of employees in the unit have
signed authorizations designating the labor organization designated in a certification
petition as the employees’ bargaining representative. This only applies if no other labor
organization is currently certified or recognized as the exclusive representative of the
employees in the bargaining unit. This commonly is referred to as “card check.”

Essentially, this does away with the requirement of an election if no competitive labor
organization is involved and a sufficient number (a majority) of prospective bargaining
unit members simply sign a card authorizing the labor organization to serve as the
employees’ exclusive representative.


Nothing requires a lawmaker to assess the political feasibility of an idea before
proposing it for adoption. As a result, many bills barely see the light of day. Others
receive extensive attention but fall just short of the needed support or collapse under
their own weight. While there are too many bills to cover here, the following is a
selection of notable labor and employment legislation which failed to become law.

Family Leave Benefits Insurance Program
HB 2575 would have created the Family Leave Benefits Insurance Program. The
program would have paid up to $250 per week for six weeks to employees taking family
leave to recover from a serious health condition or care for a family member or
dependent. The program would have been funded by withholding one cent per hour
from employee paychecks. The House passed the bill at the tail end of the session, but
it failed by a narrow margin in the Senate.

Bullying in the Workplace
A bill to allow civil suits by employees for workplace bullying died in committee.
SB 1035 outlawed “harassment, intimidation or bullying,” which was broadly defined as:

[A]ny persistent verbal or physical act of an employer
or employee, unrelated to the employer’s legitimate business
interests, that a reasonable person would find threatening,
intimidating, humiliating, hostile or offensive. “Harassment,
intimidation or bullying” includes, but is not limited to,
derogatory remarks, insults or epithets, physical conduct that
a reasonable person would find threatening, intimidating or
humiliating, or the gratuitous sabotage or undermining of an
employee’s work performance.

While employers should voluntarily do what they can to prevent workplace
bullying, the failure of this bill likely saved employers a great deal of frivolous litigation

Labor and Employment Practice Group


Mark P. Amberg
Christine Cusick Nesbit
Sharon A. Rudnick
Jens Schmidt

Our firm’s Employment Alerts are intended to provide general information
regarding recent changes and developments in the labor and employment area. These
publications do not constitute legal advice, and the reader should consult legal counsel
to determine how information may apply to any specific situation.

For more information about Harrang Long Gary Rudnick P.C.’s Labor and
Employment Practice, please visit our website at, or contact any of
our outstanding lawyers.

Mark P. Amberg
(541) 485-0220
[email protected]

Sharon A. Rudnick
(541) 485-0220
[email protected]

Christine Cusick Nesbit
(541) 485-0220
[email protected]

Jens Schmidt
(541) 485-0220
[email protected]

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