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New Laws Add to Employer’s Challenges in the New Year

By Dunn, Carney, Allen, Higgins & Tongue

In January 2010, Oregon employers will be taking on several new challenges thanks to a host of new or expanded laws enacted by the Oregon Legislature. Dunn Carney’s Employment & Labor Team is committed to helping its clients and friends understand the new obligations and ensure the transition to compliance with these new requirements is a smooth one…“The Big Six” are all effective January 1, 2010, unless otherwise noted below.

Private-Employee Whistleblower Protection

In January, the scope of protection given to Oregon’s whistleblowers who work for private sector employers will expand dramatically. Under the new law, private employers cannot discriminate or retaliate against an employee who has “in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation,” regardless of the severity or importance of the alleged violation.

In contrast, the scope of protection previously provided was much narrower, and applied only to good faith reports of criminal activity, filing a complaint, cooperating with law enforcement conducting a criminal investigation, bringing a civil proceeding against the employer, or testifying in a civil or criminal proceeding or in a legislative setting. The challenges for employers will be in identifying what could fall within the new, broad definition of whistleblowing, and remembering to evaluate whether this protection applies before taking adverse action against an employee.

Religious Accommodation

The Oregon Workplace Religious Freedom Act will change the religious accommodations employers are required to make for their employees. The Act redefines “reasonable accommodation” in a manner more consistent with regulations under the Americans With Disabilities Act (ADA). Previously, an employer need only prove a de minimis or minuscule burden in order to claim undue hardship and avoid the duty to accommodate. Starting in January, in order to reject an accommodation, an employer must show it will result in significant cost and expense or be detrimental to the health and safety of others. Moreover, the Act clarifies that employers must accommodate the scheduling of leave time for religious observance and/or the wearing of religious apparel in the workplace, unless such practices would pose an undue hardship. The changes in this area are significant and will require revisiting discrimination policies and ensuring supervisors are aware of the new accommodation obligations related to employee’s religious beliefs and practices.

Disability Discrimination Law

The new Oregon Disability Discrimination law seeks to bring Oregon law in line with the ADA’s Amendments Act of 2009 by broadening the definition of “disability.” A person will still be required to show: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) that the person is regarded as having such an impairment to be a qualified individual with a disability. The difference is that these terms will have far broader meaning under the new law and many of the grounds for determining that an employee is not covered by the Act have been discarded. For example, employees with a condition that is episodic or in remission will be considered covered by the Act, even if the condition is not active, so long as, when active, it limits a major life activity. Also, the ameliorative effects of “mitigating measures”, such as medication, prosthetics, hearing aids and other devices, can no longer be taken into effect when evaluating the severity of an impairment as part of the coverage inquiry. The only exception to the new rule on disregard of mitigating measures is for ordinary eyeglasses and contacts. Employers will want to revisit their accommodation policies and ensure that supervisors understand that many more employees will be in a position to assert a request for reasonable accommodation so proper and timely handling of such requests is more important than ever.

Oregon Restricts Employer Speech on Religion, Politics, and Labor Unions

Whether you call it the “Worker Freedom Act” (by supporters) or the “Employer Gag Bill” (by detractors), Oregon calls it SB 519, and it becomes law on January 1, 2010. SB 519 prohibits an employer from punishing employees who refuse to attend mandatory employee meetings if the primary purpose of the meeting is to communicate the employer’s opinion about three subjects: religion, politics, and labor unions. The AFL-CIO drafted the bill several years ago and has been looking for a state to pass it ever since. New Jersey, Michigan, West Virginia, and Washington have all come close. But Oregon is the first to actually pass it. SB 519 is enforced by a private right of action; employees may sue their employers for injunctive relief, such as reinstatement and back pay. In addition, any time an employer violates the law, a trial court must award treble damages (back pay) and attorney fees. Expect a court battle over SB 519. The new law may be preempted by the National Labor Relations Act which specifically allows employers to hold mandatory meetings with employees to discuss unionization if there is an organizing campaign in progress. However, unless and until a court makes that ruling, Oregon’s employers—all of them, regardless of size—are expected to comply. As a result, if you have concerns about union organizing efforts, it is critical that you involve legal counsel before you consider speaking to your employees about your position on unions.

Family Military Leave Comes to Oregon

Oregon employers with 25 or more employees now must, in certain circumstances, provide any employee married to a member of the armed forces with unpaid “military leave.” Employees may split a total 14 days of military leave to: (1) prepare for the military spouse’s imminent deployment; and (2) visit with the military spouse during periods of leave from deployment. This Act largely mirrors the 2008 amendments to the Family and Medical Leave Act (FMLA), but applies to any employee who works, on average, more than 20 hours per week. Curiously, this Act contains no private enforcement mechanism; presumably, enforcement is handled exclusively by BOLI. This Act became law on June 25, 2009. If you have not already revised your handbook to incorporate this new law, now is the time to do it.

Military Discrimination Law

This 2009 Act prohibits an employer from discriminating against any person because of that person’s past, present, or future military service. Employers cannot refuse to hire, reemploy, or promote any employee because of the employee’s military service. Employers also cannot discharge, fire, or retaliate against any employee because of that employee’s military service. Violations of this Act are enforceable by a private right of action. Remedies include injunctive relief, compensatory damages, punitive damages, and attorney fees. This Act creates a state analogue to the Uniformed Services Employment and Reemployment Rights Act (USERRA). It applies to all employers, regardless of size, and takes effect on January 1, 2010. This is another issue to be included in your list of handbook policies to be reviewed and revised.

Hands-Free Cell Phone Use Required While Driving

Starting in 2010, all drivers over age 18 will be required to use a hands-free device if they use a mobile communication device while driving. Previously the law prohibited drivers under age 18 who had not yet obtained a regular driver’s license from using a mobile communication device while driving, although police officers were only allowed to enforce the provision as a secondary action. The new law contains various exceptions, including previously-included exceptions for emergencies, and new exceptions for those for whom driving while operating a mobile communication device is necessary for the person’s job, those who are merely activating or deactivating the device or a function of the device, and those using one-way voice communication while engaged in certain activities related to employment or safety. Violation of the law is a Class D traffic violation punishable with a fine of up to $90.

Obviously 2010 brings many changes for employers. We hope this summary has been helpful to raise your awareness of the issues you will be facing. A more detailed review of these laws will be included in a white paper that will be released soon…

Thank you to Laura Althouse, Justin Aida, and Sam Smith for their contributions to this important article. If you have questions please contact Laura, Justin, Sam, or other Team members Tamsen Leachman or Jack Cooper.