In his State of the Union address on Jan. 28, President Obama promised to work with Congress to pass a bill that would increase the federal minimum wage to $10.10 and index it to inflation thereafter. That represents an increase to the federal minimum wage of nearly $3 per hour and, more importantly for Oregon employers, an increase of nearly $1 per hour to the minimum wage they would have to pay.

Although support for a significant minimum wage increase is gaining momentum nationwide (Delaware, for example, raised its minimum wage last month, and the city of SeaTac, Wash., raised its minimum wage to $15 per hour in November), the legislation is considered unlikely to pass in an election year.

Obama, knowing he would have an uphill battle in Congress, last month signed an executive order that raised the minimum wage to $10.10 for people working on certain types of new federal contracts. The executive order covers workers under new federal contracts in the construction industry or who are performing services, and who previously would have been paid less than $10.10 an hour. Examples include civilian workers on military bases who wash dishes, serve food and handle laundry.

Obama believes that boosting wages will reduce turnover, increase morale and lead to higher productivity overall. He points out that when Maryland passed its living wage law for companies contracting with the state, more contractors began to bid. More competition can help ensure better quality.

Microsoft co-founder Bill Gates urged caution, however, and said the policy would create an incentive for employers to “buy machines and automate things.” Gates appears to be right. Robotics and automation are already displacing workers at a higher rate than ever before.

For example, The U.S. Bureau of Labor Statistics reported in 2012 that the number of general merchandise retail stores has grown by 23 percent over the last 10 years, while total employment at those companies has fallen by 6 percent. Much of this is due to self-service checkout counters that reduce the need for salespeople and checkers.

Robotics and automation are already having a significant impact on employment in manufacturing and health care. A major increase in the minimum wage may drive automation in other industries as well. For example, Oregon is home to Intellibot, a manufacturer of R2D2-like, industrial floor-scrubbing robots that incorporate up to 19 sensors allowing them to operate and clean without the use of a hands-on operator. A minimum wage of $10.10 may make this kind of robot more attractive and lead to a reduction in custodial employment.

The fast food industry also is in a position to become automated. Andy Puzder, CEO of Carl’s Jr.’s parent company, CKE Restaurants, has warned legislators that a higher minimum wage is “encouraging automation.” Software that allows customers to order their food without relying on wait staff, and machines that can make hamburgers faster, more hygienically and more uniformly than human workers, are already being tested in some large restaurant chains. A higher minimum wage will only cause automation to be ushered in more quickly.

If not a robot, then maybe a drone

Amazon made big news recently when CEO Jeff Bezos announced a bold plan to use drones to cut Amazon’s delivery time to 30 minutes after an order is placed. Last month a Minnesota microbrewery tested drones to deliver its beer to thirsty ice fishermen on midsize lakes. The Federal Aviation Administration, however, quickly shut the brewery’s test flights down.

While concerns tied to safety and other issues keep commercial drone delivery illegal, the FAA is reviewing a set of guidelines and expects to publish proposed rules on small unmanned aircraft less than 55 pounds later this year. Regulations governing commercial drones are expected to be issued in 2015.

In Oregon, HB 2710 was signed into law on July 29, 2013. The new law addresses a number of safety and privacy issues surrounding the use of drones in Oregon. It makes illegal the use of weaponized drones by the state, city and local governments as well as private individuals. And it makes inadmissible any evidence obtained by drones that have not been approved by the FAA. Interestingly, the law’s restrictions on the use of drones to gather evidence will be repealed by the same statute on Jan. 2, 2016.

Regardless of the conclusions that the FAA reaches, there is no doubt that emerging technology will have an impact on commercial drivers. Whether packages are delivered by drone or by driverless vehicles now being pioneered by Google and others, the handwriting is already on the wall declaring that in the not-too-distant future, fewer jobs will require humans to operate vehicles.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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Employers in 2013 paid $372.1 million – the most ever in one year – to resolve discrimination and retaliation claims through mediation, conciliation and other administrative enforcement efforts. Employers paid $39 million more in monetary relief through lawsuits. Although the number of claims is the lowest in four years, the dollar amount paid by employers set a new record.

These figures come from the U.S. Equal Employment Opportunity Commission’s Performance and Accountability Report released recently for the 2013 fiscal year. The report, which was a month late due to the government shutdown, lists the number and types of discrimination charges as well as the resolution and dollar amounts recovered. The EEOC’s major efforts for 2013 were:

• A total of 97,252 charges were resolved in 2013.

• The EEOC litigated 209 lawsuits obtaining $39 million in monetary relief. Of these resolutions, 135 pertained to race, color, national origin, sex or religion, 59 were disability discrimination claims, 16 contained age discrimination claims, four contained equal pay claims, and one invoked the Genetic Information Nondiscrimination Act (GINA).

• Thirteen cases went to trial in 2013. Eleven of these trials were heard before juries. The EEOC was victorious in nine of the 11 jury trials, resolved one by consent decree, and lost one trial before a judge.

• A total of 131 lawsuits were filed in 2013. Of these lawsuits, 89 were individual actions; 21 were nonsystemic class suits, and 21 were systemic suits. Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area. Of these new cases, 78 contained race, color, national origin, sex or religion claims, 51 contained disability discrimination claims, seven contained age discrimination claims, five contained equal pay claims, and three contained GINA claims. By the end of the 2013, 231 cases remained on the EEOC’s active docket.

• The agency filed 21 systemic lawsuits in 2013.

• The EEOC resolved 29 systemic cases – seven included at least 50 alleged victims of discrimination and 14 included at least 20 alleged victims of discrimination.

• EEOC field offices completed 300 systemic investigations that resulted in 63 settlements or conciliation agreements, and $40 million in awards for more than 8,300 individuals.

• The EEOC issued 106 reasonable cause determinations in systemic investigations during 2013.

The full Performance and Accountability Report for 2013 is at www.eeoc.gov/eeoc/plan/upload/2013par.pdf.

Beware of GINA’s hidden pitfalls

Most employers know that GINA added genetic information to the ever-expanding list of characteristics that cannot lawfully form the basis for an employment decision. However, in reality, GINA is much more. It is a privacy statute that strictly regulates employers’ collection, use, safeguarding and disclosure of “genetic information.”

Critical to understanding GINA’s broad sweep beyond genetic tests is the statute’s definition of the term “genetic information.” That term includes not just genetic test results but also “the manifestation of a disease or disorder in a family member.” Notably, this definition is not limited to “genetic” diseases or disorders; any disease or disorder satisfies the definition of “genetic information.”

Further expanding this definition’s scope, GINA defines “family member” to include: a dependent, whether born to the individual or adopted; a relative to the fourth degree of the individual; and a relative to the fourth degree of the individual’s dependents.

How does this affect employers? Under GINA, it is unlawful for an employer to “request, require or purchase genetic information” of an employee or the employee’s family members. In both the first single claimant complaint filed under GINA and the first GINA class action, it was the mere alleged collection of family medical history (i.e., the privacy violation) that triggered the lawsuit and not any use of that information.

The EEOC currently identifies GINA as one of six areas where it will focus its enforcement efforts in 2014. In addition, the number of charges filed with the EEOC alleging violations of GINA, while still small, increased by nearly 50 percent between 2010 and 2012.

Employer efforts should consider:

• Eliminating direct requests for family medical history from employees and applicants;

• Including the following “safe harbor” language in any HIPAA authorization provided to a medical provider for release of an employee’s medical information:

‘The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services;’

• Training recruiters and other employees who may access applicants’ or employees’ social media content not to record genetic information or rely on it for any employment decision. This includes information about applicants’ or employees’ family members, descendants and ancestors going back four generations.

While these steps should help mitigate the most significant risks arising from GINA, employers should conduct a comprehensive review of their compliance with this statute as the enforcement environment becomes less forgiving.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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Both the Oregon Legislature and Portland City Council were busy in 2013. Employers must address many changes before 2014 begins. To prepare, review the following brief guide to the new laws and ordinances affecting employers. Please note that these are brief descriptions and not intended as either a full treatment of each law or a substitute for legal advice.

Oregon has four new leave periods: 1, sick time (Portland employees only); 2, Veterans Day leave; 3, bereavement leave; and 4, domestic violence victims leave. Employers should be sure that their handbooks, policies and procedures are updated and that HR professionals, managers and supervisors are trained on the new leave laws.

In addition to penning the new leave requirements, Oregon lawmakers have created employee protections for interns, same-sex couples and social media users.

Portland sick time

Beginning Jan. 1, 2014, private employers and the city of Portland must provide sick leave accrued at the rate of one hour for every 30 hours worked for a maximum of 40 hours of leave in a calendar year. The major points of the city ordinance are:

• Employers with six or more employees must provide paid sick leave to Portland employees; employers with fewer than six employees must provide the same amount of sick leave, but it may be unpaid.

• Eligible employees are all employees who spend any time working in Portland, including full-time, part-time and temporary employees.

• Portland employees will begin to accrue sick leave on Jan. 1.

• Employees hired after Jan. 1 will begin to accrue sick leave on the first day of work.

• Employees cannot use accrued sick leave until they have worked 240 hours within the city of Portland in a single calendar year and not until the 91st day of employment (or, for existing employees, the 91st day of 2014).

• Employees can roll over up to 40 hours of unused sick leave, but can use only 40 hours in a given year.

• Existing PTO policies that meet or exceed the Portland requirements qualify under the ordinance as long as the PTO can be used freely for sick leave. Qualifying uses include: diagnosis, care or treatment of the employee or the employee’s family member for any mental or physical illness, injury or health condition, including preventive medical care; issues related to domestic violence, harassment, sexual assault or stalking; work, school or child care closure due to a public health emergency; and when a family member’s health is a public health concern, or when the employee is excluded from the workplace for health reasons.

For additional information or to download notice posters and letter templates, visit www.portlandonline.com/fritz/index.cfm?c=55242.

Veterans Day leave

As of Veterans Day 2013, U.S. veterans in Oregon may take Veterans Day off by requesting the leave 21 days prior to the holiday. Employers must grant the request unless doing so would be a “significant economic hardship.”

If leave is denied, the employer must deny leave to all employees who requested the time off under the new law, or deny leave to the minimum number of employees needed to avoid “significant economic hardship.” If a veteran is denied leave, the employer must offer a replacement day within the same year.

Bereavement leave

Eligible Oregon employees may take up to two weeks of leave per death of a family member to make arrangements necessitated by the death, to attend the funeral or memorial service, or to grieve.

Domestic violence victims leave

This leave is available to eligible Oregon employees who are victims of domestic violence, harassment, sexual assault or stalking for the purpose of seeking legal or medical assistance, obtaining counseling or victims services, or relocating. Victims may take as much leave time as is “reasonable” given their individual circumstances. Following the leave, the employee must be allowed to return to the same job or a job with a reasonably equivalent status, pay, benefits and other employment terms.

Intern protection

Unpaid interns in Oregon are now entitled to most of the same protections under the law as regular employees. Under the new law, unpaid interns are now protected from discrimination and retaliation on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, age, military service and disability. The statute also provides protection for unpaid interns who report, in good faith, information that the intern believes is evidence of a violation of a state or federal law, rule or regulation.

The new law also extends discrimination protection to Oregon unpaid interns who are victims of domestic violence, harassment, sexual assault or stalking. In addition, interns receive the same level of protection as employees against privacy intrusions in the form of breathalyzer tests, polygraph tests, psychological stress tests or brain wave tests.

Same-sex marriage

Although Oregon still does not license same-sex marriages, it now recognizes legal marriages between same-sex couples. Married employees must be treated the same whether they are married to a same- or opposite-gender spouse. Employers should review payroll, benefits and leave policies to be sure they are in compliance; they also should train their HR professionals and managers.

Social media

Oregon employers are prohibited from requiring or requesting employees or job applicants to disclose or provide access to personal social media accounts. An employer may not require or request that it be added to its employee’s or applicant’s social contact list or that it be allowed to view employee’s or applicant’s personal social media accounts.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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On Oct. 7, 2013, a new unemployment insurance (UI) law went into effect in Oregon; it requires employers to respond timely and adequately to Employment Department notices regarding claims by former employees. Under the new law, employers who fail to comply and whose record shows a pattern of failing to respond in a timely or adequate manner will have their unemployment account charged for any overpayment of benefits.

In addition, the new law makes several changes to the Work Share Program, which allows employees to accept reduced hours and received partial unemployment benefits in lieu of being laid off during a slow work period. The new law excludes seasonal, temporary or intermittent workers from the program and specifies that the shared work plan must include a description of how program requirements will be implemented. It also requires the employer to estimate the number of layoffs avoided and certify that certain retirement benefits will be provided as if the workweek had not been reduced.

The new law specifies that employers will not be billed for benefits when the program is fully funded by the federal government and allows individuals receiving extended benefits to receive self-employment assistance benefits.

Oregon law requires employers to pay unemployment taxes on employee wages by filing quarterly tax reports. Individuals who are hired and compensated for their services are considered employees, and their compensation for service is considered taxable wages unless specifically excluded by law.

The new law specifies that an employer seeking relief from a requirement to pay UI benefits must file a request for relief within 30 days of receiving notice that a claim has been made. In instances where an employer establishes a pattern of failure to respond to notices in a timely manner, a failure to respond within the 30-day period will result in a charge to the employer’s account of the benefits paid to the individual in question, even if the benefits were the result of an overpayment.

The new law came about as a result of a 2011 federal law – the Trade Adjustment Assistance Extension Act (TAAEA) – that requires all states to implement laws by Oct. 21, 2013, and provide penalties for employers that fail to respond and demonstrate a pattern of failures to respond to state UI notices.

Congress’ intention in penning the TAAEA was to substantially reduce UI overpayments. Some employers, particularly those already paying UI taxes at the maximum rate, have not routinely responded to UI claim notices and simply accepted their reserve account charges as a cost of doing business.

Over the past several years, the amount of UI overpayments made to ineligible claimants has been estimated to be in the billions of dollars. Studies show, however, that a relatively small amount of the overpayments are due to employer non-responsiveness; rather, administrative agency errors and employee fraud have been overwhelmingly identified in the government’s reports to be primarily responsible for such overpayments.

To help avoid penalties for untimely responses, an early legal review of all terminations is recommended. Employers should consider developing a process for reviewing the circumstances of all terminations, whether employee- or employer-initiated, even before any claim is received. Also, given the emphasis on avoiding unnecessary overpayments, separation agreements providing that an employer will not contest UI claims should likely be avoided.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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Agencies are limiting their functions during the federal government shutdown. Some of these limitations will last only as long as the shutdown itself and some will have ongoing repercussions for the immediate future. Following are some of the agency actions that have implications for employers.

The U.S. Department of Labor’s Office of Administrative Law Judges will not perform any case-related activities during the shutdown. Cases scheduled to be heard by the OALJ have been canceled, and they will not be rescheduled for hearing until an appropriations bill or continuing resolution takes effect.

In addition, deadlines occurring during the shutdown that involve case-related activities – such as responses to discovery requests, scheduled depositions or responses to orders – have been suspended. Due dates for these events must therefore be recalculated by the parties based on the number of days of the shutdown – e.g., if the government experiences a lapse in funding for 15 days, responses to discovery requests, orders and the like will be due 15 days later than the original due date.

Any disputes regarding due dates should be resolved by the parties themselves and should not require agency intervention. Before a dispute may be brought before the agency for resolution, the parties must have engaged in a good faith effort to resolve the dispute.

The National Labor Relations Board is closed during the government shutdown, and a notice on its website states, “Only such government activities necessary to prevent an imminent threat to the safety of human life or the protection of property may be undertaken…”

The NLRB’s website functions are largely unavailable, so charges cannot be filed electronically. Because of this, the NLRB is granting an extension of time to file or serve any document “for which the grant of an extension is permitted by law.”

Accordingly, the filing deadlines will be extended a day for each day the shutdown continues and the NLRB offices are closed. The NLRB emphasizes, however, that the six-month statute of limitations for filing unfair labor practice charges remains in effect.

For purposes of filing and service during the shutdown, the NLRB intends to treat the days that its office is closed the same as “Saturday, Sunday or a legal holiday” in its rules. This should have the effect of putting most filing and service deadlines “on hold” during the time the government is shut down.

The NLRB advises that persons wishing to file an unfair labor charge, and for whom the six-month statute of limitations period may expire during the interruption in the NLRB’s normal operations should fax a copy of the charge to the appropriate regional office.

Employers should be aware that it is not the NLRB’s responsibility to serve a copy of the charge on a person against whom the charge is made, and this courtesy will not likely be carried out during the shutdown.

All hearings scheduled for the week of Oct. 7 and beyond have been postponed indefinitely.

The NLRB announced that all election or pre- or post-election hearings scheduled to be conducted through this week will be postponed indefinitely.

The Department of Homeland Security announced that E-Verify, the federal government’s Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be unavailable during the federal government shutdown. Employers will be unable to access their E-Verify accounts, and E-Verify customer support and related services will be closed. As a result, employers will be unable to determine eligibility of new hires or take any other action in E-Verify until the shutdown ends.

EEOC clarifies guidance on criminal background checks

The Equal Employment Opportunity Commission recently responded to a letter sent by a number of state attorneys general urging the agency to reconsider its guidance on the use of criminal background checks in employment. The guidance at issue, which seemed to advise employers that the use of criminal background checks could open them up to discrimination charges, has been criticized since its release last year.

According to the EEOC, this criticism is based on a misunderstanding of what the guidance suggests, and it emphasized that it is not illegal for employers to conduct or use the results of criminal background checks.

The EEOC’s response states that the guidance encourages a two-step process for job applicants, with individualized assessment as the second step. Under this process, an employer would first use a “targeted” screen of criminal records, which the EEOC says “considers at least the nature of the crime, the time elapsed, and the nature of the job.” Following the use of this targeted screen, employers should then individually assess the applicants who were screened out by the first step.

According to the EEOC, the individualized assessment “is a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.” The support set forth in the EEOC’s guidance for individualized assessment only for those who are identified by the targeted screen also means that individualized assessments should not result in “significant costs” for businesses.

Oregon minimum wage increases

Effective Jan. 1, 2014, Oregon’s minimum wage will increase by 15 cents to $9.10.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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The U.S. Occupational Safety and Health Administration has released a proposed rule that would set new workplace permissible exposure limits (PELs) for respirable crystalline silica at half of what is currently permissible in Oregon. Here, the PEL allowed for crystalline silica is 0.1 milligrams per cubic meter of air averaged over an eight-hour period. The proposed federal rule would be 0.05 milligrams.

The proposed rule includes other ancillary provisions for employee protection, such as preferred methods for controlling exposure, respiratory protection, medical surveillance, hazard communication and recordkeeping.

Occupational exposure to airborne silica dust occurs in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products, and in operations using sand products, such as glass manufacturing, foundries and sand blasting.

The proposed rule sets separate standards for construction versus general industry and maritime employment. The standard applicable to the construction industry would require employers to:

• measure the amount of silica to which workers are exposed if the exposure amount may be at or above 25 micrograms of silica per cubic meter of air, averaged over an eight-hour day;

• protect workers from respirable crystalline silica exposures above the PEL of 50 micrograms, averaged over an eight-hour day;

• limit workers’ access to areas where they could be exposed to levels above the PEL;

• use dust controls to protect workers from silica exposure to levels above the PEL;

• provide respirators to workers when dust controls cannot limit exposure to the PEL;

• offer medical exams – including chest X-rays and lung function tests – every three years for workers exposed to levels above the PEL for 30 or more days per year;

• train workers on work operations that result in silica exposure and ways to limit exposure; and

• keep records of workers’ silica exposure and medical exams.

OSHA will begin holding public meetings on the proposed rule in March 2014.

NLRB woes not over yet

A Washington state federal court has determined that National Labor Relations Board Acting General Counsel Lafe Solomon was not properly appointed to his position. This decision comes on the heels of recent challenges to the NLRB’s authority under President Obama’s recess appointments of board members Sharon Block and Richard Griffin.

Hundreds of NLRB decisions reached after Block’s and Griffin’s appointments have been called into question as the courts, including the U.S. Supreme Court, determine whether those appointments were valid.

Last month, a federal district court in Washington granted an employer’s motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating employees for engaging in concerted activity. In reviewing the employer’s arguments, the court found that the NLRB did not have the power to issue a complaint against the employer in the first instance, because the NLRB lacked a properly appointed quorum of at least three members.

Because President Obama appointed two of the three sitting board members through recess appointment power when the U.S. Senate was technically still in session, the court found that those two appointments were invalid. Thus, the court reasoned, the board did not have a quorum to act and, without a quorum, could not have legally issued the complaint that served as the basis for the injunction petition.

In response, the NLRB argued that even if it did not have the legal authority to issue a complaint, Solomon, whose office investigates and prosecutes unfair labor practice charges, could delegate his statutory authority to the regional director to initiate a suit for injunctive relief against the employer.

The court dismissed that argument as well, finding that Solomon’s appointment was also invalid. President Obama appointed Solomon to the position pursuant to the Federal Vacancies Reform Act.  The FVRA, however, authorizes the appointment of an individual to acting general counsel only if the appointee within the past year served as the “first assistant” or deputy general counsel. After discovering that Solomon never served as deputy general counsel, the court ruled that Solomon’s appointment was invalid. Accordingly, Solomon could not have lawfully delegated authority to the regional director to file a petition for injunction in federal court.

This decision may prompt a strong response from employers facing unfair labor practice litigation before the NLRB. The questionable validity of Solomon’s appointment may provide an additional affirmative defense for employers. However, it seems unlikely that the NLRB will change its approach to litigation based on Solomon’s status unless and until the U.S. Supreme Court affirms the ruling.

NLRB undaunted by notice decision

Now that two federal appellate courts have invalidated the NLRB’s rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act, the NLRB has developed a new way to disseminate this information. On Aug. 30, the board launched a mobile app that provides employers, employees and unions with information regarding their rights and obligations under the NLRA.

This app links to sections of the NLRA describing the rights enforced by the NLRB, as well as contact information for NLRB regional offices. In addition, the app “details the process the NLRB uses in elections held to determine whether employees wish to be collectively represented.” The free app is available for both iPhone and Android users.

 Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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The state of Oregon and the city of Portland have instituted a number of new rights and protections for employees in 2013.

Unpaid interns now have virtually the same discrimination protection as paid employees; employees’ and job applicants’ social media accounts now are protected from employers’ view; veterans now have the right to take Veterans Day off if they choose; and in Portland, employees now have up to 40 hours per year of paid sick leave.

Effective Jan. 1, 2014, Oregon will become the first state to require private employers to provide bereavement leave to their employees. The new law, which will become part of the Oregon Family Leave Act (OFLA), applies to employers with 25 or more employees who worked for 20 or more workweeks in the year the leave is taken or in the preceding year. To be eligible to take bereavement leave, employees must have worked for a covered employer for 180 days immediately preceding the date that the requested leave begins and must have worked an average of at least 25 hours per week during that period.

Eligible employees may take up to two weeks of leave per death of a family member, up to a maximum of 12 weeks in a 12-month period. The purpose of the leave can include making funeral arrangements, attending a funeral or memorial service, or grieving. Family members include the employee’s spouse, same-sex domestic partner, child, parent, parent-in-law, grandparent, or grandchild, or the same family members of the employee’s spouse or same-sex domestic partner.

Under the law, an employee who wishes to take bereavement leave must do so within 60 days of receiving notification of a family member’s death. The employee is not required to give prior notice to the employer, but oral notice must be provided within 24 hours of beginning leave and written notice must be given to the employer within three days of returning to work. However, unlike other types of leave under OFLA, an employer may not reduce the leave time if the employee fails to give notice.

If more than one family member dies during a one-year period, the employer may not require the leave periods to run concurrently. Also, unlike other types of leave under OFLA, if an employee’s spouse or domestic partner works for the same employer, the employees may take bereavement leave at the same time. The Oregon Bureau of Labor and Industries is developing rules to implement the law.

Employers should review their handbooks, policies, procedures and practices to ensure compliance with the new law. Employers also should consider training their managers and supervisors on bereavement and other leave requirements under OFLA.

Human Resource professionals who track leave should be aware that the new bereavement law does not reduce an employee’s entitlement to leave under the Family and Medical Leave Act. In other words, bereavement leave will not, typically, run concurrently with FMLA leave.

Veterans to get Veterans Day off

An Oregon law that took effect this year entitles veterans who are scheduled to work on Veterans Day to take the day off. Employees are eligible if they served in the military for six consecutive months and were honorably discharged, or served fewer than six months but were discharged because of a service-connected disability. Employees with military service in the Reserve or National Guard do not qualify unless they were deployed or served on active duty for at least six consecutive months.

An eligible employee seeking Veterans Day off must make the request at least 21 days in advance. The employer must, in turn, inform the employee within 14 days of Veterans Day whether the request has been granted or denied. An employer may deny the requested time off only if granting it would cause a significant operational disruption or undue hardship.

If the employee’s request is denied, the employer must either deny time off to all employees who request it, or deny time off to the minimum number of employees needed to avoid the disruption or hardship. If the eligible employee is not granted the requested day off, the employer must provide a replacement day off before the following Veterans Day.

The employer may require the employee to provide documentation showing that the employee is an eligible veteran, and it is up to the employer whether the time off is paid or unpaid.

Veterans Day is Nov. 11, and the law is in effect. Employers should:

• Assess business and operational needs, and determine whether to grant the time off if requests are made. If the decision is made to not grant the time off, be sure to identify how granting it would be a significant operational disruption or undue hardship. Also, determine if time off must be denied to all veterans or to a minimum number. If it is the latter, determine how those requests will be handled fairly.

• Determine whether to require documentation proving eligibility.

• Determine whether the day off will be paid or unpaid.

• Train managers and supervisors in the new law and company policies.

Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-889-8874 or dstait@littler.com.

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