WHAT’S NEW IN
EMPLOYMENT LAW
William E. Gaar
Jillian Pollock
ATTORNEYS AT LAW
RETALIATION IS THE LAWSUIT DE JURE
 If you have an employee with a protected
status you have the potential for a retaliation
lawsuit
 Most Common: Workers Compensation, ANY
form of protected discrimination complaint,
denial of available leave
(OFLA/ADA/Workers Comp, Sick Pay,
Domestic Violence)
AVOID RETALIATION THROUGH
PROGRESSIVE DISCIPLINE
 Progressive Discipline requires commitment to
a process for managing employees
 Based on severity most employees will not be
disciplined for initial poor performance
 Based on experience an employee’s poor
performance is overlooked until management
is forced to react
 Ignoring poor performance is the first
ingredient in a Retaliation Lawsuit
What is new in employment law for 2013 Where can the Retaliation Begin?
The 2013 legislative session adjourned on
July 8, 2013.
There were more than 70 employment law
related bills introduced this session.
BEREAVEMENT LEAVE –
WHO IS A COVERED EMPLOYER
Oregon is the first state to require certain private
sector employees to provide bereavement leave
for their covered employees.
 25 or more employees
 working in Oregon
 during each working day of 20 or more
calendar work weeks in which leave will be
taken, or in the preceding year.
ELIGIBLE EMPLOYEE
THINK OFLA
 The employee must have worked for a covered
employer for a period of 180 calendar days
immediately preceding the date that the
requested leave begins; and
 The employee must have worked an average of
25 hours per week during the 180-day period.
WHAT IS BEREAVEMENT LEAVE
Effective January 1, 2014, eligible employees
will be allowed up to 2 weeks of unpaid leave in
a twelve month period to deal with the death of a
“family member”.
FAMILY MEMBER IS DEFINED AS
1) Employee’s Spouse;
2) Same-sex Domestic Partner;
3) Child;
4) Parent;
5) Parent-in-law;
6) Grandparent; or
7) Grandchild.
The same definition applies to the relations of an
employee’s same-sex domestic partner or spouse.
BEREVEMENT LEAVE ENTITLES EMPLOYEE
TO:
A) Attend the funeral or alternative to a funeral
for family members;
B) Make arrangements necessitated by the death
of the family member; and
C) Grieve the death of a family member.
Any leave taken must be completed within 60
days of the date on which the eligible employee
receives notice of the death of a family member.
Eligible Employees Are Allowed Two Weeks
for Each Family Member Who Has Died
If two family members die at the same time, a
covered employee may not require the employee
to take their 2 weeks’ leave concurrently.
The employee may take 4 weeks of leave to deal
with the deaths of the 2 separate family
members.
Proactive approach to Newly Available Leave
 Employers should review their handbooks and
all policies to ensure compliance with the
expansions of OFLA.
 Managing and supervising employees training
on the requirements of bereavement leave.
 Emphasis on training that OFLA does not
reduce the amount of leave to which an
employee is entitled to under FMLA.
Other Employment Law Related Bills that
Passed During the 2013 Legislative Session
 SB 1:
 SB 678:
 HB 2111:
 HB 2654:
Veterans Day Off For Veterans
Protections for LLC Owners From Tort Liability
For Workplace Injuries
Updated Definition of “Disability Under Oregon
Law
Employer Social Media Protections
Veteran’s Day Off for Veterans
Effective April 4, 2013 Employers shall provide their “Veteran”
employees with paid or unpaid time off for Veterans Day if:
(a) The employee would otherwise be required to work on that
day; and
(b) The employee provides the employer with:
(A) At least 21 calendar days' notice that the employee
intends to take time off for Veterans Day; and
(B) Documents showing that the employee is a veteran as
defined in ORS 408.225.
WHO IS A VETERAN?
Generally a Veteran is an employee who has
been honorably discharged and has:
 Served 178 consecutive or more days;
 Served 178 days or less and was released due
to a service related disability;
 Served 1 day in a combat zone.
Protections for LLC Owners From Tort
Liability For Workplace Injuries
Oregon legislature overruled a tortured Court of Appeals opinion
that allowed an employee to sue his employer if the employer
was a member-managed LLC when injured on the job instead of
requiring the employee’s exclusive remedy to be the workers’
compensation system.
Now – Regardless of your entity formation, LLC’s that are
member managed fall within the exclusive protection provisions
afforded by Oregon’s workers’ compensation laws.
HB 2111: Update Definition of “Disability”
Under Oregon Law – Covers Employers with
Six or more Employees
HB 2111 revises standard for determination of whether individual is substantially limited in major
life activity.
Effective January 1, 2014, ORS 659A.104 is amended to read:
659A.104. (1) An individual has a disability for the purposes of ORS 659A.103 to 659A.145 if the
individual meets any one of the following criteria:
(a) The individual has a physical or mental impairment that substantially limits one or more major
life activities of the individual.
(b) The individual has a record of having a physical or mental impairment that substantially limits
one or more major life activities of the individual. For the purposes of this paragraph, an
individual has a record of having a physical or mental impairment if the individual has a history
of, or has been misclassified as having, a physical or mental impairment that substantially limits
one or more major life activities of the individual.
(2) Activities and functions that are considered major life activities for the purpose of determining
if an individual has a disability include but are not limited to: (a) Caring for oneself; (b)
Performing manual tasks; (c) Seeing; (d) Hearing; (e) Eating; (f) Sleeping;
CRITICAL ASPECT OF DISABILITY
DEFINITION IS ITS TEMPORARY NATURE
Employees are not protected if they have
“minor” disability lasting less than six months –
 Minor is not defined but examples are
headaches, minor illness, minor temporary
sickness.
 Is a broken arm a disability?
 Is a back injury that is intermittent over time?
 Is a reconstructed knee a disability?
HB 2654: Employer Social Media Protections
HB 2654 prohibits an employer from requiring or requesting
employee or applicant for employment to provide access to
personal social media account, to add employer to social media
account contact list or to allow employer to view employee’s or
applicant’s personal social media account.
Effective January 1, 2014, ORS chapter 659A
Employers may access information that is available to the Public
through an on-line account.
Proactive Measures – Social Media Policy that satisfies the
NLRB guidelines and does not violate the new Social Media law.
Portland Sick Leave Ordinance – Effective
January 1, 2014
All Employers with employees working at least 240 hours in any calendar year in
Portland must provide sick leave.
Employers who employ six or more employees working in Portland must provide up to
40 hours of sick leave in a given year.
Employers with less than six employees working in Portland must provide the
employee to take up to 40 hours of UNPAID sick leave.
Coverage includes telecommuting employees as well as those who complete work in
Portland even if not based in Portland
The ordinance includes a clause prohibiting employers from discriminating or
retaliating against employees who request, use, or complain that they are not receiving
sick leave. A similar state-wide bill is currently being considered by the Oregon
legislature, but has yet to be passed.
See more at: http://www.ogletreedeakins.com/publications/2013-03-13/portland-paidsick-leave-ordinance-passes#sthash.yKodos6A.dpuf
RATE OF LEAVE ACCUMULATION
 1 hour for every 30 hours performed by
employee
 Six or more: leave is paid
 Six or less: leave is unpaid
MAXIMUM ACCRUAL OF SICK TIME
Unless the Employer allows more, Employees
may accrue and carry over a maximum of up to
40 hours of sick time in a calendar year.
Specific rules apply to use of paid unpaid leave
if Employer fluctuates in size.
Modify paid time off policies to avoid leave
liability
BUCKLEY LAW
THANKS YOU FOR YOUR TIME
QUESTIONS?