Pending Employment Legislation: Should Employers Be Worried?

The Oregon Legislature is back in session. As in prior years, the new session brings many bills that should give employers cause for concern. Given the even number of Republican and Democrats in the House of Representatives, it is likely that the need for compromise may prevent or mitigate both highly undesirable and employer-friendly bills. Nevertheless, employers should stay informed about the progress of pending legislation.

Here is a summary a few of the significant employment-related bills on the slate for 2011:

DISABLED EMPLOYEE DEFINITION (HB 2036)

The Americans with Disabilities Act (ADA) was recently amended to make it easier for employees with physical or mental impairments to find protection under the law. If an employee has a “disability” as defined by the ADA, the employer must work to provide reasonable accommodations that allow the employee to do his or her job. HB 2036 would lower the standard for what constitutes a “disability” under Oregon’s version of the ADA even further, by allowing virtually any impairment, whether or not the impairment significantly restricts the employee, to be sufficient to meet the definition. This change in the law could require employers to engage in a reasonable accommodation dialog about minor or insignificant impairments that employees have or claim to have.

SHORT-TERM DISABILITY INSURANCE PROGRAM (HB 2355)

Leaves of absence for sickness, disability and other health-related reasons are typically unpaid once an employee uses up any employer-provided paid time off. In prior sessions, the legislature has considered “Baby UI” bills that would provide paid family leave benefits by tapping the state’s unemployment insurance fund. This bill is a variation on that theme, in that it would create a new short-term disability program, funded through employee contributions, to pay employees who are unable to work. If the bill passes, it is likely to increase absenteeism by ensuring that a portion of employees’ wages will be paid while on family and medical leave.

JOB REFERENCES (HB 2360)

This bill is helpful to employers who wish to give honest references regarding former employees. Under current law, a “bad faith” reference can result in liability for the employer, and the standard for proving bad faith is not very employer-friendly. This bill would make it much more difficult for an employee to prove that a job reference was made in bad faith.

MINIMUM WAGE RATE ADJUSTMENT

Oregon law currently adjusts the state minimum wage rate each year to account for inflation. This bill would link annual minimum wage rate adjustments to Oregon’s rate of unemployment. If Oregon’s monthly average unemployment rate is higher than the national average, the minimum wage rate would remain static whether or not there is an increase in the cost of living index. This bill would fix or mitigate the current one-way ratchet in minimum wages, which recently caused the minimum wage rate to rise despite a two year average drop in the cost of living.

FAMILY LEAVE EXPANSION

In every session, there are attempts to expand the coverage of the family leave laws. In this session, there are bills seeking to give employees up to two weeks off for bereavement purposes (SB 506) and to include siblings in the definition of a “family member” under the Oregon family leave laws. Another bill (HB 2905) would allow employees to take up to 18 hours of family leave to attend school conferences to discuss academic and disciplinary issues. Although many employers allow time off for all of these purposes, it is important for employers to be able to structure attendance and leave of absence policies to best accommodate their business needs and the needs of their employees. These legislative mandates would severely restrict such flexibility for employers with 25 or more employees.

CAPTIVE AUDIENCE LAW

Oregon law currently makes it unlawful to discharge, discipline or otherwise penalize an employee who declines to attend an employer-sponsored meeting, if the primary purpose of the meeting is to communicate the employer’s opinion about religious or political matters. The law defines “political matters” to expressly include discussions about supporting or joining labor unions. The captive audience bill was pushed hard by labor unions in the 2009 session, and was viewed by employers as an attempt to tie their hands when speaking to employees during a union organizing campaign. There are at least two bills seeking to modify this law. HB 2446 would eliminate mandatory back pay awards and limit penalties now allowed under the law. HB 2771 would repeal the captive audience law in its entirety.

These are only a few of the many employment-related bills pending before the Oregon Legislature. If you are an employer who is interested in participating in the legislative process by writing letters or testifying before legislative committees, we can help by directing you to organizations that would appreciate your assistance. In addition, our firm closely monitors legislative developments through its involvement with Associated Oregon Industries’ Employment Practices Steering Committee and statewide volunteer leadership roles with the Society for Human Resource Management (SHRM) Oregon State Council. If you are interested in receiving regular updates about the status of pending employment law bills, please contact Randy Sutton at rsutton@sglaw.com.