What’s An Employer To Do?
By Jennifer Paul
The close of any legislative session is a great time to dust off your employment manual and review it for legal compliance. This is particularly true following the 2013 Oregon Legislative Session. This year’s session adjourned on Monday, July 8, 2013. During the course of the session there were more than 70 employment-related bills introduced, and a number of those bills were signed into law. Below is a summary of significant employment legislation that passed, many of which require policy updates for your business:
Veterans Day Legislation
The Veterans Day bill was signed into law early in the session. The bill is already effective, meaning employers will need to comply with new requirements for this upcoming Veterans Day, November 11, 2013. The law applies to all employers regardless of size, and requires that employers provide Veterans Day off to eligible employees. Eligible employees are generally those who served in active duty with the Armed Forces for at least six months and received an honorable discharge. It is up to the employer to determine whether the time-off for Veterans Day is paid or unpaid. Employees are required to provide proof of eligibility and notice that they wish to receive Veterans Day off at least 21 days prior to Veterans Day. The employee’s discharge papers should have the requisite information for the employer to determine proof of eligibility. The employer must let each employee know whether they will be granted the requested time off and whether or not the time off will be paid or unpaid within 14 days of Veterans Day.
The law includes an undue hardship exception, which allows employers to deny requested time off. It is always difficult to predict what will qualify as an “undue hardship,” as such a determination depends on many factors. In any event, this will likely apply where the employer has a large percentage of veterans in its workforce and it would be an economic or operational disruption to provide Veterans Day off for all eligible employees. Even in the case of undue hardship, the law requires that employers select a subsequent day off to honor the employee’s service in the Armed Forces before the next Veterans Day.
Veterans Day Manual Tip
The Veterans Day bill will impose additional administrative burdens for employers in determining which employees are eligible for time off, providing notice to employees about whether time off will be paid or not paid and providing notice to employees as to when the time off is scheduled to occur. Including a section in the “Holiday” portion of your employment manual, specifically addressing Veterans Day, is the first step to dealing with this new law and educating your workforce about the law. It also may be helpful to assess your workforce now to determine whether you have a significant amount of employees eligible to take Veterans Day off, and whether you may need to invoke the undue hardship protections under the law.
Mandatory Bereavement Leave/OFLA Legislation
A bill requiring mandatory bereavement leave now applies to those employers who are subject to the Oregon Family Leave Act (“OFLA”) and those employees eligible to take OFLA leave. Eligible employers are generally those that have 25 or more employees on the payroll. An employee is eligible if he or she has worked 180 days prior to the requested leave and has worked 25 hours per week on average. Eligible employees are entitled to up to two weeks of OFLA leave per each qualifying family member’s death, up to a maximum of 12 weeks off in any leave year. Leave can be taken to deal with the death of a family member; attend a funeral or funeral alternative; make arrangements necessitated by the death of a family member; or otherwise grieve the death of a family member. Time taken for bereavement leave, pursuant to this law, is unpaid and can be subtracted from the employees OFLA leave bank of unused leave. Leave must be completed within 60 days of when the employee receives notice of the family member’s death. This law becomes effective on January 1, 2014.
Mandatory Bereavement Leave/OFLA Manual Tip
Employers subject to OFLA should review their current bereavement leave policy to make sure it is at least as favorable to employees as the new law. Employers should be mindful that a “family member,” for purposes of the law, is defined by OFLA to be the employee’s spouse, child, parent, one standing in the place of a parent or child, grandparents, grandchildren, parents-in-law, and same sex domestic partners. Whether or not your business has a bereavement leave policy, you should consider adding a paragraph to the “Family Leave Law” section of your manual addressing mandatory bereavement leave. For employers that are also subject to the Federal Family and Medical Leave Act (“FMLA”), it is important for employers to track bereavement leave separately from FMLA qualifying leave, since bereavement leave will not count against the employees 12 week FMLA allotment.
Legislation passed allowing employers to require payment by direct deposit in a financial institution, at its discretion. Previously, employers needed an employee’s upfront consent for payment by direct deposit. The new law does, however, require that employers pay wages by check upon written or oral request of the employee. This new law will become effective on January 1, 2014.
Direct Deposit Manual Tip
Direct deposit can save time and money for an employer and its payroll department. Direct deposit also makes delivery of final paychecks more of a sure thing. Employers should decide whether they wish to require direct deposit of wages for its employees, and if so, update the employment manual and payroll practices to reflect this new requirement.
Leave For Victims of Stalking etc. Legislation
Since 2007, Oregon law has provided that eligible victims of domestic violence, sexual assault, harassment, or stalking are entitled to take either accrued paid leave or unpaid leave to deal with law enforcement or seek legal help, counseling, or safe housing. This law applies to employers with 6 or more employees on the payroll for 20 or more work-weeks in a year. The new legislation eliminates the former requirement that to be eligible, under the law, any employee needed to work an average of 25 hours per week for 180 days preceding the leave requested. The new legislation also requires that employers comply with certain posting requirements about leave benefits. Changes to the law take effect on January 1, 2014.
Leave for Victims of Stalking etc. Manual Tip
Generally, employers with 6 or more employees should have a policy addressing leave for victims of stalking, domestic violence, harassment and sexual assault. To the extent you already have such a policy, language related the employee’s eligibility requirements should be deleted from the policy. Additionally, employers should take steps to acquire the new posters related to leave for victims of stalking, domestic violence, harassment and sexual assault, which will be available from BOLI.
Saalfeld Griggs can help you review your current employment manual to make sure it is compliant with the above-referenced legislation, in addition to all the new laws that passed in the 2013 Oregon Legislative Session. In light of new court cases and ever-changing employment laws, regular updates to your employment manual are essential.