Flexible work schedules are now as common a demand in hiring negotiations as 401(k) matching. More than 75 percent of workers worldwide are millennials who want to be evaluated by what they produce, not where they produce it. When employees work remotely, it reduces the overhead costs of rent and supplies, allowing companies to adapt to slowing global markets.  Health care providers commonly prescribe work from home as a reasonable accommodation for disabled employees. And now, time away from the workplace will help employees slow the spread of COVID-19 and wait out the disease’s incubation period.

There are an increasing number of reasons for allowing employees to work remotely. Yet the majority of employers have not developed policies or practices to prepare for and avoid the legal risks associated with such activity. Remote work impacts pay practices, accrual of sick time, eligibility for family and medical leave, and response to workplace injuries. The same precautions are necessary if you have one remote employee or many.

Follow the right law

As a general rule, employees are covered by the laws of the location in which they work. If the employee is performing the majority of his or her work from a home office out of state, the laws of the home state control. Therefore, wage and hour and leave laws of the state or municipality should be followed instead of the laws of the state where the company is headquartered.

Payment of Oregon minimum wage to remote workers working in the state may be one exception to that general rule. Oregon employers with a fixed office location pay the regional minimum wage rate applicable to that location whenever an employee works on-site at least 50 percent of the pay period. Employees who work less than 50 percent of the pay period at the employer’s fixed location need to be paid the rate applicable to the region where they are working remotely. As a result, remote employees who often come into the office might not be considered remote for purposes of minimum wage.

Check eligibility for leave

Working remotely usually does not disqualify the employee from federal family and medical leave. To be eligible for protections under the Family and Medical Leave Act (FMLA), employees must work at an office of 50 or more employees working within a 75-mile radius.  Oregon-based employers too often make the mistake of denying FMLA leave to teleworking employees, thinking they are only an office of one. The employee’s remote work location is not his or her office location. The location that is important for considering FMLA eligibility is the location that directs and controls the employee’s work – where the supervisor is located and from where the person receives assignments. The employee’s reporting office, if comprised of 50 employees or more within a 75-mile radius, will qualify any remote employee supervised from that office for FMLA coverage.

Every email counts

Monitoring work time outside the office is crucial for ensuring remote employees are paid correctly. Nonexempt employees must be paid for all time worked, including time spent communicating on projects after regular business hours. There is more flexibility for paying employees who are exempt from overtime laws, but even then, protections are needed to avoid making unlawful deductions from exempt employee salaries for times in which they are presumed to not be working but are still sending emails from their sickbed. Uncompensated emails carry a disproportionally high risk of class action – even small increments of screen time balloon into enormous awards, making these types of suits increasingly prevalent.

Bringing the office home

Workplace injuries are compensable wherever the employee’s workplace is located. “The risks of the home environment can be the risks of the work environment” was a finding in Sandberg v. JC Penney – an Oregon Court of Appeals case. That means if an employee trips over her dog while plugging in her laptop and sprains her ankle, she is injured on the job. Injuries that occur during the course of work from home must be reported as if they had occurred at the office. A remote work policy should define the workspace so that the employer does not have to consider the risks of the employee working just about anywhere, and because workers’ compensation law covers only injuries in places where the employee is expected to be.

If you’re sick, you’re sick

Remote employees have more flexibility to work through sickness, which often results in employees neither using nor reporting sick leave. But employers still have the same responsibilities to track and report sick leave balances of remote employees.  Employers that have decided to pay out unused paid time off at separation can expect to pay out large accruals of time if sick time is under-reported by remote workers. This can be avoided by a “boot and suspenders” approach – practices that encourage employees to take advantage of paid time off and policies that discipline remote workers who act like call-in procedures do not apply to them.

These issues and more can be addressed in a remote work policy, ideally drafted by legal counsel. If kept all in one place, these policies will communicate to employees the responsibilities that accompany the privilege of remote work, and alert management to the areas of legal risk.

Charlotte Hodde is an attorney with Barran Liebman LLP. She represents employers in a range of employment law matters. Contact her at 503-276-2102 or chodde@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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Now, two years after #MeToo emerged, Oregon, California and Washington have specific requirements for training and policies about harassment and discrimination. Employers can efficiently update internal policies and employee education tools by minding the similarities and differences among these state rules. Employers with employees in multiple states might need to follow some or all rules and can create material to apply to multiple states. These new rules are also precursors of what is to come as the anti-harassment laws evolve.

California

Employers now have one more year to train California employees according to the minimum requirements. Previously, employers with five or more employees in any state had to train California employees by Jan. 1, 2020. Employers scrambling to revamp training programs and comply with the deadline got a one-year stay – training must be completed by Jan. 1, 2021.  Supervisors, or anyone with authority to discipline or recommend discipline, in California require two hours of training; all other California employees get one hour of training.

There are still very specific requirements for how and by whom the employees get trained, and what topics the training will cover. The training must be interactive, discuss harassment based on gender identity, gender expression and sexual orientation, and be presented by a qualified trainer. The California regulations even go so far as to dictate the curriculum: topics to be covered include remedies available to victims, training on what to do if the supervisor is personally accused of harassment, and the limited confidentiality of the complaint process. Some of the topics are specific to California law, such as defining abusive conduct and explaining strict liability for harassment by supervisors.

Once all the initial training dates are met, employees need repeat training every two years. To prove compliance with the training requirements, employers must keep for two years copies of all materials used by the trainer, including written slides, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer. Employers that have trained California employees this year (2019) according to the requirements above can wait two years to provide a refresher. As new employees join and move throughout the company, training should be implemented within six months of hire or start of a supervisor position. Even short-term California employees need training within the first 30 days or 100 hours of work.

And then there are the requirements for anti-harassment policies for California employees. The California Department of Fair Employment and Housing creates publications for required distribution, but the law also expects dissemination of the employer’s prevention policy. The requirements of this written policy will dictate the methods used when investigating complaints for sexual harassment. Policies must promise a timely response, an impartial investigation by qualified personnel, and documentation and tracking to ensure progress. Any employer whose workforce contains 10 percent or more of people who speak a language other than English must translate the policy into that spoken language.

Oregon

While Oregon still does not regulate requirements for sexual harassment training, effective Sept. 29, 2019, all employers must have a written harassment and discrimination prevention policy covering topics outlined in the new Oregon Workplace Fairness Act. The list of requirements is shorter than California’s, but introduces topics that are not required in California. The policy needs to provide a process for harassment reporting, include the names of two people for reporting, advise employees of the relevant statute of limitations for filing lawsuits, explain when they can refuse to sign a nondisclosure agreement, and more. There are several unique aspects to Oregon policy requirements – for instance, all employees must receive another copy of the policy upon reporting their complaint.

Washington

Washington law focuses protections only on hospitality employees, and has yet to apply these requirements to all industries. Effective Jan. 1, 2020, larger hotels in Washington are required to adopt a sexual harassment policy and provide mandatory harassment and discrimination prevention training to the employer’s managers, supervisors and employees. The requirements lack the specificity we see in Oregon and California, and as a result, employers have flexibility to use existing harassment and discrimination training. At the very least, the training should provide contact information of the federal and state agencies where employees can file employment complaints, and local advocacy groups focused on preventing sexual harassment and sexual assault. Seattle also recently passed new rules that mandate hotels in the city to prevent contact between guests accused of sexual harassment and the employee victim.

Charlotte Hodde is an attorney with Barran Liebman LLP. She represents employers on a range of employment law issues. Contact her at 503-276-2102 or chodde@barran.com.

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Although many of the accused harassers and victims who have come forward so far are high-profile Hollywood stars, business executives and politicians, these very public reports are creating a ripple effect that shows no sign of slowing. As a result, employers, regulators and legislators face increasing public pressure to ensure changes happen.

Many Democrat and Republican politicians are swiftly denouncing colleagues accused of sexual misconduct. Congress passed rules in December requiring lawmakers, staffers and congressional employees in both the House and Senate to complete sexual harassment prevention training.

Here in Oregon, the Legislature plans to hire a consultant to audit personnel policies and evaluate the culture. More and more states, including but not limited to California, now require private employers to conduct harassment prevention training.

The harassment laws have not meaningfully changed in the last few years. Federal and state law prohibit sexual harassment at work, both quid pro quo treatment (supervisors favoring subordinates based on the subordinate’s response to sexual advances) as well as hostile work environments. Employees bringing hostile work environment claims must show that the sexual harassment they experienced was severe and pervasive.

But the reality is that all gender-based harassment and discrimination, even where it does not rise to the level of these legal standards, causes employees emotional distress and deeply disrupts the work environment. Stressful and costly litigation often follows even minor and unsubstantiated accusations. And the recent news reminds us that the public relations fallout can be as damaging as the legal liability.

In the wake of the recent scandals, employers should be more prepared than ever for reports of past or ongoing harassment in their workplaces. In addition to corrective actions needed, employers also must be conscious of issues of legal liability. The usual defense to liability is three-prong: policies, reporting and investigation. Proactive employers should ensure their employee policies prohibit harassment, retaliation and discrimination, and publicize that prohibition to the workforce. Every employee must know the reporting procedures, how to report up the chain of command, and alternative complaint avenues available if their manager is the harasser. Finally, it has never been more important for employers to take every complaint of harassment seriously and promptly initiate an investigation to gather relevant facts and take remedial steps that ensure the improper conduct ceases immediately.

Another component of a strong defense is employee training. It is time to change how employees are educated to recognize and help prevent sexual misconduct. The Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace reported in 2016 that the usual, old sexual harassment prevention training is not working. In fact, some of the ways we have been conducting harassment prevention training could be counterproductive – simply checking a box to minimize legal liability while harassment continues. The task force concluded that workplace harassment training needed to be revamped, suggesting “middle managers and first-line supervisors in particular could be the most valuable resource in preventing and stopping harassment.” A refreshed training program is a strong part of the defense against future misconduct and will communicate to employees that prevention is a priority for the company.

A growing body of research suggests that training will work best when it includes face-to-face interaction, is presented by outside experts, and involves company leaders. The first step is to move past the online training programs. Employees usually watch these trainings in isolation and either fail to absorb or entirely ignore the content. In the past, courts have largely recognized online trainings as legitimate defenses to legal liability, but that trend will definitely change and these overly simplistic trainings are probably encouraging costly lawsuits, as well as prompting talent to quit in the meantime.

Instead, employers can focus on workshops that train employees to be active bystanders, to recognize harassment and discrimination, and to intervene. In turn, these trainings will not only reduce occurrences of harassment, but also cultivate a culture of respect and support for harassed employees that will encourage reporting and boost workplace morale.

Charlotte Hodde is an attorney with Barran Liebman LLP. She advises clients on a range of employment law issues. Contact her at 503-276-2102 or chodde@barran.com.

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Lately, being an Oregon employer feels like being a California one. Our part-time Oregon Legislature is passing bills that affect employers at a breakneck speed. One, the Equal Pay Act of 2017, is touted as the most expansive law of its kind in the country. Historically, California is known as the most tightly regulated state. With a full-time Legislature, California produced about 800 new laws this year. California also has a civilian labor force 11 times the size of Oregon’s, according to 2017 numbers from the United States Bureau of Labor Statistics. So how are we keeping pace with our neighbor to the south when it comes to regulating employers?

Salary inquiries

With laws passed in 2017, it is illegal in both Oregon and California for employers to ask a job applicant about salary history. Unlike California’s salary history ban, Oregon’s law does not allow an employer to confirm salary history before an offer of employment, even if the applicant voluntarily discloses the information. In California, if the applicant volunteers his or her salary history without prompting, the employer can confirm and consider that history in setting future pay. In Oregon, employers must wait to make an offer of employment that includes compensation before confirming prior compensation. Both state laws prohibit an employer from using an applicant’s salary history, once known, to justify a pay disparity.

Pay equity

The California Fair Pay Act, which took effect in 2016, and the Oregon Equal Pay Act are similar in many respects. Both laws require equal pay for jobs requiring equal skill, effort and responsibility, performed under similar working conditions. In both statutes, “pay” means not only base salaries, but other forms of compensation, including bonuses and commissions. Defensible reasons for differentials in pay include a seniority or merit system, as well as the employee’s work location, education, training or experience. However, most importantly, it is the employer’s burden to prove how any pay disparities are justified.

The Oregon Equal Pay Act, which goes into full effect on Jan. 1, 2019, has earned its moniker as the “broadest” for a reason. The law has a very expansive definition of “protected class.” The Oregon law prohibits pay discrimination based not only on gender, race, national origin or color, but also religion, sexual orientation, marital status, veteran status, disability or age. The California law includes classes based only on gender, race and ethnicity. The Oregon law does allow a limited safe harbor provision if the employer has completed a pay equity analysis for the relevant protected class that was reasonable in detail and in scope in light of the size of the employer, and that eliminated the wage differentials for the plaintiff.

Ban the Box

California law has now outpaced Oregon law in regard to Ban the Box. California’s 2017 law makes it unlawful for an employer to include questions about an applicant’s criminal history on any employment application or inquire about the conviction history before extending conditional offer of employment. Employers in Portland might recognize this prohibition as one similar to the city’s Ban the Box rule, which also prohibits inquiries about conviction history prior to a job offer. But California’s law goes further, forbidding an employer to consider specific categories of criminal history in conducting background checks. Employers often use third parties to conduct background checks, but still need to ensure they are not receiving prohibited criminal history from those third parties.

Vacation leave

Oregon employers are not required to pay out an employee’s accrued and unused vacation pay at termination, as long as a clear employment policy establishes that expectation. However, California law continues to prohibit the use of “use it, or lose it” vacation or paid time off policies. To control unchecked vacation time accrual, employers often set caps on how many vacation or paid-time-off hours an employee may accrue. Caps are relatively unregulated in Oregon, but in California accrual ceilings must be “reasonable” compared to the rate at which the employee accrues vacation or paid time off.

Harassment training

California law requires employers with 50 or more employees to provide supervisor training to prevent sexual harassment biennially (every two years). This regulation has been on the books since 2005, but a 2017 bill, SB 396, adds new required topics to that training. Effective Jan. 1, 2018, training curriculum must include practical examples to address harassment based on gender identity, gender expression, and sexual orientation. Oregon has not made harassment training mandatory, but it is a best practice to provide harassment training periodically.

Oregon’s high quality of life and comparatively low cost of doing business attracts California companies to relocate or open facilities here. Oregon employers look to California’s enormous economy and population for growth potential and qualified employees. These dynamics result in many Oregon and California companies spanning the legal divide and needing to comply with both states’ laws. Companies that already have employees in both states, as well as companies that are contemplating expansion along the West Coast, should mind the subtle differences between the state laws. Many of these laws apply to companies with only one employee in the state, so all employers with employees in both states should understand which laws apply.

Charlotte Hodde is an attorney with Barran Liebman LLP. She advises clients on a range of employment law issues and counsels higher education institutions on Title IX and FERPA issues. Contact her at 503-276-2102 or chodde@barran.com.

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Two recent appellate court decisions remind employers to be vigilant about employees who may not be asking for a disability accommodation, but who are nevertheless owed one by law.

An engineer for a gun manufacturer did not have a lot of physical work in his job; he mostly attended meetings and managed people. But his back pain from an old surgery returned and an MRI revealed spinal stenosis and nerve compression. His doctor prescribed pain medication, but did not require work restrictions because his job was sedentary.

However, due to understaffing, the engineer was asked to assemble the company’s manufacturing work stations. The work required unloading materials from a truck, sawing pipe, bending over and standing for long periods of time on the pavement. After complaining about being assigned manual labor, he was allowed to return to computer work for the rest of the day. Later that week he was fired for performance issues.

A medical technician went on leave for corrective neck surgery. She returned to work with a doctor’s note restricting the length of her shifts and how much she could lift, carry, push and pull over the following four-week period. Before the four-week period was over, her employer required that she renew a basic life support certification, which consisted of a written evaluation and a physical demonstration of CPR. The technician passed the written evaluation, but her doctor prescribed four more months of physical therapy before she could complete the CPR demonstration. She was ultimately terminated because she could not perform basic life support.

The Americans with Disabilities Act requires that employers with 15 or more employees provide reasonable accommodations to employees with disabilities who need them to perform their jobs. A reasonable accommodation is generally a change in the work environment or to the customary practices and policies that enable an individual with a disability to perform his or her job or otherwise enjoy the same privileges and benefits of employment that are received by co-workers without disabilities.

In both cases, the trial court found that the plaintiffs had failed to request accommodations, consistent with prior ADA case law. In the past, courts have stated that the employee is responsible for initiating the interactive process to determine whether it is possible to accommodate a disability in the workplace. But both decisions were reversed on appeal because of evidence that the employees had implied their needs for accommodation.

The new standard

These decisions reaffirm the emerging standard that an employee may be entitled to an accommodation even without explicitly asking for one. The obligation to engage in the interactive process is shared between both the employee and the employer. The employee must provide relevant details of his disability and, if not obvious, the reason that he needs an accommodation to perform his job. The employer must then present ideas of reasonable accommodations.

Relevant information of a disability could include, among other things: a diagnosis, a treatment plan, apparent severe symptoms and physician-imposed work restrictions.

The gun engineer had told his HR manager about the results of his MRI. He also had told his manager that he felt like he was hurting his back by standing for long periods on the concrete and assembling the products. He said he was willing to continue building the work stations, but would need to “mix it up.”

The medical technician informed her employer in writing that she could not complete the CPR demonstration because of limitations prescribed by her doctor. She also told her supervisor she was still experiencing neck pain and thanked the supervisor for understanding. And the employer had known about her neck surgery because it approved leave for her recovery. The day before her termination, she left a voice mail for her supervisor with an update from her doctor’s appointment that same day of his recommendation that she continue physical therapy for four months before completing the CPR test.

How to initiate an interactive process

The shift reflects the spirit of the interactive process. It is intended to be an “information and flexible” conversation. An employer need not speculate or inquire about the severity of the employee’s disability. But if the employer has relevant knowledge of the disability, the employee’s limitations and potential accommodations must be discussed.

Reasonable accommodations can include modifying existing leave policies and providing medical leave for disabled employees even when other employees would not have additional leave available, or when that employee has exhausted all leave afforded under the company’s policies. The U.S. Equal Employment Opportunity Commission maintains that anytime an employee requests leave for a medical condition, even without a request for an ADA accommodation, the employer must treat the request as an accommodation request.

The bottom line is that employers need to be attentive. Do not miss the signs that an ADA obligation has been triggered. If an employee requests leave for a medical condition, notifies his or her employer of a medical procedure or test results, or presents a doctor’s note prescribing restrictions at work, it is time to talk to the employee and consider potential accommodations. An employer should start the interactive process as soon as it has knowledge of the medical condition.

Charlotte Hodde is an attorney with Barran Liebman LLP. She advises clients on a range of employment law issues and counsels higher education institutions on Title IX and FERPA issues. Contact her at 503-276-2102 or chodde@barran.com.

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