This year, the Washington Legislature has taken note from states like Oregon that seek to include additional protections to employees speaking about issues of sexual assault, abuse, and discrimination. Under the “Silenced No More Act” (SNMA), certain nondisclosure and non-disparagement agreements will be declared unlawful and trigger penalties if they are overbroad and prevent employees or independent contractors from discussing workplace conduct that they reasonably believe is unlawful.

Both Oregon and Washington employers should be mindful of these restrictions and consider reviewing their policies and agreements because portions of the SNMA apply to all Washington residents, regardless of where employees work. This means Oregon employers that employ Washington residents need to comply with the SNMA.

Overview

Under the SNMA, employers may not include nondisclosure or non-disparagement provisions in any agreement – including employment contracts, employment agreements, or severance forms – that have the force or effect of preventing employees from discussing certain workplace conduct. These topics include workplace conduct that employees or independent contractors reasonably believe constitutes:

• unlawful discrimination, harassment, or retaliation,
• sexual assault
• a wage and hour violation, or
• a breach of a clear mandate of public policy.

The SNMA’s anti-discrimination provisions prevent Washington employers from disciplining or terminating employees for discussing these topics as well. The SNMA goes so far as to penalize any employer for merely requesting these provisions, attempting to enforce the agreement, or trying to influence a party to comply with a provision in any agreement that is prohibited by the SNMA.

Employers remain free to protect their trade secrets, proprietary information, and “confidential information that does not involve illegal acts.”

Comparing Oregon and Washington laws

There are a handful of notable differences between the SNMA and the Oregon Workplace Fairness Act. (Oregon employers should note that the Legislature this year made some changes to the Oregon Workplace Fairness Act that will take effect on Jan. 1, 2023.)

In Oregon, certain employees may request inclusion of nondisclosure or non-disparagement provisions as part of severance or settlement agreements. However, in Washington, under the SNMA, employers may not agree to such a request.

Additionally, under Washington’s law, there is no exemption for employees tasked by law to receive confidential reports of discrimination or independent contractors. The SNMA also allows Washington employers to treat the amount of any settlement payment as confidential and prevent employees from disclosing the settlement amount, while under Oregon law, employers may not.

Retroactive application

The SNMA applies retroactively to all nondisclosure or non-disparagement provisions in agreements that were agreed to at the outset of employment or during employment prior to June 9, 2022. However, there is a safe harbor provision for claims of damages arising from employment agreements entered before the effective date, but an employer loses the protection of this safe harbor if it attempts to enforce the agreement. Retroactivity does not apply to a nondisclosure or non-disparagement provision contained in an agreement to settle a legal claim.

Compliance considerations

Under Washington’s law, the penalties for noncompliance are steep. For violations, employees can claim a statutory penalty of $10,000 or actual damages, whichever is greater. Employees may also recover reasonable attorneys’ fees and costs.

In light of the steep penalties the SNMA provides, employers should take time to review their handbook policies, employment agreements (including noncompetition or non-solicitation agreements), independent contractor agreements, and form severance agreements to determine whether they are compliant. Many standard agreements can include broad categories of personnel information that could impermissibly restrict employees’ speech. These provisions may need to be redrafted and disclaimers will help insulate employers and manage risk.

Employers may also rethink other policies and practices as to how they handle confidential information. Before seeking to enforce nondisclosure or non-disparagement agreements or policies, or discipline employees for violations, employers should discuss compliance strategies with counsel.

Conclusion

Sustained efforts from the #MeToo movement have created significant changes to how employers can protect the secrecy of their confidential information. Employers will have to be mindful of these changes to appropriately draft and enforce their employment agreements to avoid penalties. Employers also should think twice before disciplining an employee for disclosing sensitive information, depending on the nature of that information.

Josh Goldberg is an attorney with Barran Liebman LLP. He advises and represents employers on various issues. Contact him at 503-276-2107 or jgoldberg@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily 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.

The post OP-ED: What Oregon employers should know about new Washington law appeared first on Daily Journal of Commerce.

As the Oregon Legislature frequently does, it made significant changes to employment laws this past session. To assist employers in reviewing their hiring practices and policies, following is a look at key bills that all employers should note before they take effect on Jan. 1, 2022.

New hiring best practices

First, starting Jan. 1, employers can require employees to provide a copy of their driver’s licenses in only limited circumstances. Although employees remain free to provide copies for their I-9 forms, employers may not make a driver’s license a requirement for a position, unless the ability to drive legally is an essential function of the job or is related to a legitimate business purpose.

Second, with additional restrictions placed on noncompetition agreements entered into on or after Jan. 1, 2022, employers should review and update their agreements for new employees. (These changes do not affect agreements in place before Jan. 1, 2022.) Employers may also want to take this opportunity to consider supplementing their agreements or exchanging them for well-crafted non-solicitation and nondisclosure agreements that are exempt from many of the restrictions placed on noncompetition agreements. Because emerging litigation trends indicate courts are more readily voiding non-solicitation agreements as improper noncompetition agreements in disguise, employers would be wise to review their non-solicitation agreements as well.

Finally, from a pay equity standpoint, employers that provide hiring or retention bonuses should note the Legislature’s one-time, narrow exemption expires on March 1, 2022. As of May 25, 2021, hiring bonuses and retention bonuses were excluded from the definition of “compensation” and did not have to be considered when evaluating pay parity under the Oregon Equal Pay Act. (The intent behind this change was to assist employers in using all of the tools at their disposal to navigate the current labor shortages and incentivize employment.) Employers that choose to continue offering these bonuses should consult their favorite employment attorney on the best ways to assess what preventive measures can be taken to reduce the risk of a pay equity claim.

Updates to job-protected medical leave

There are three important amendments to the Oregon Family Leave Act (OFLA) that will require employers to revise their handbooks. First, Oregon will allow employees who have a break in service due to termination, temporary furlough, or layoff of 180 days or less, to retain their OFLA eligibility and count time prior to the break in service. Employers already have similar obligations under Oregon’s Sick Leave Law.

In response to COVID-19, the Legislature also expanded OFLA eligibility during a public health emergency to employees who have worked at least 30 days immediately prior to taking leave (reduced from 180 days) and an average of 25 hours or more per week during those 30 days.

Finally, BOLI’s temporary rule on sick child leave has been adopted permanently, so employers must continue to provide sick child leave when an employee must take leave due to the closure of the child’s school or child care provider as a result of a public health emergency. As a reminder, employers may request only the following information to certify sick child leave: (a) the name of the child requiring home care; (b) the name of the school or child care provider that is subject to closure; (c) a statement from the employee that no other family member of the child is willing and able to care for the child; and (d) a statement that special circumstances exist that require the employee to provide home care for the child during the day, if the child is older than 14 years.

Dress code policy

With the passage of the CROWN Act (“Create a Respectful and Open World for Natural hair”), Oregon joined 11 other states in providing statutory protections to physical characteristics historically associated with race.

These new protections were passed in response to courts that held Title VII and antidiscrimination statutes only narrowly protect “immutable characteristics” associated with race and not “mutable characteristics” such as personal appearance. These courts had, for example, permitted employers to terminate employees for having dreadlocks. In affirming the broad protections afforded by Title VII, the CROWN Act targets dress code policies that may appear to some as neutral but have a disproportionate and adverse impact on employees because of their race and hair textures, hair types and protective hairstyles such as braids, locs and twists.

Dress code policies should be reviewed to ensure they do not prohibit these hairstyles. Employers should also consider training managers so that they’re aware comments about certain hairstyles and hair textures may now be the basis of a racial discrimination claim and that religious exemptions should be permitted. Employers can also consider a number of policy revisions to foster compliance, including requiring a second opinion from Human Resources before disciplining an employee for an infraction.

Josh Goldberg is an attorney with Barran Liebman LLP. He provides counsel to companies of all sizes on employment law matters. Contact him at 503-276-2107 or jgoldberg@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily 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.

The post OP-ED: Take note of Oregon employment laws that take effect next year appeared first on Daily Journal of Commerce.

Today’s economy requires businesses to work together in new and innovative ways. Companies that rely on staffing agencies to supply their workforce, or vendors to provide services, sometimes run the risk of being classified as joint employers. These risks can be costly, because joint employers are equally liable for paying employees’ wages for all hours worked for both employers.

New definition of joint employer

In an effort to provide additional certainty to employers, the U.S. Department of Labor (DOL) on Jan. 16 published new rules clarifying and restricting the definition of a joint employer under the Fair Labor Standards Act (FLSA). The final rules use a four-factor test modeled after the seminal Ninth Circuit case, Bonnette v. California Health & Welfare Agency. It considers whether the potential joint employer: 1, hires or fires the employee; 2, supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; 3, determines the employee’s rate and method of payment; and 4, maintains the employee’s employment records. The DOL has also supplemented its new rules with 11 examples that provide even more guidance on how it will apply its new test.

The DOL appears to have struck a middle ground. The rules add that the degree of control over the employee’s work must be substantial, but do not require day-to-day supervision or control over an employee’s work schedule for a company to fall within the ambit of a joint employment relationship, as the business community wanted.

The DOL’s new test has another important feature. The touchstone for a joint employment relationship is that the company actually exercise significant control over the terms and conditions of the employee’s work. The DOL will not consider any theoretical or potential control that the potential joint employer could assert over the employee.

As a result, under the DOL’s new rules, contracts or arrangements that provide the potential joint employer with the right to fire the employee or consult on important employment-related decisions does not necessarily create a joint employment relationship. The caveat is that the potential joint employer must never actually exercise that control. Nonetheless, companies should seek the advice of counsel before executing contracts that run the risk of creating a joint employment relationship.

Long-standing business practices embraced

The DOL drafted its new rules in recognition that long-standing business practices and arrangements should not run the risk of joint employer liability. Under the rules, certain relationships between companies, such as contractor-subcontractor or franchisor-franchisee, have no bearing on whether a company is a joint employer.

Under the DOL’s new rules, companies can also exercise more control over their relationships with business partners and staffing agencies in a variety of ways. Businesses can agree to follow standards that affect the quality of the work product, brand or business reputation without making joint employer liability any more or less likely. Similarly, businesses can also provide training, offer an association health or retirement plan, and require certain employment policies. The DOL will also not hold it against businesses if they share other forms and documents relating to staffing and employment, so long as the potential joint employers do not retain supervision over the employees.

Where the test remains largely the same

In many respects, the DOL’s new rules bring a fresh, welcomed clarity to the type of business arrangements that risk joint employer liability. There is one type of scenario where the rules have not changed significantly. That scenario is where one employer employs a worker for one set of hours in a workweek, and another employer employs the same worker for a separate set of hours in the same workweek. In these situations, the DOL will consider whether the two companies are “sufficiently associated” or share control over the employee. Accordingly, employers finding themselves in such a position should remain cautious and avoid any unnecessary entanglements over the employee’s work for other companies.

As the rules go into effect on March 16, their ultimate impact on case law remains to be seen. No matter how the DOL’s new final rules affect wage claims under the FLSA, they will not affect the definition of joint employment or change the standards of liability in the context of other federal or state antidiscrimination statutes. The Equal Employment Opportunity Commission is expected to propose new joint employer rules for some of those statutes in upcoming months.

Josh Goldberg is an attorney with Barran Liebman LLP. He advises management and higher education institutions on a variety of employment law matters. Contact him at 503-276-2107 or jgoldberg@barran.com.

The post OP-ED: New federal rules aim to provide clarification for employers appeared first on Daily Journal of Commerce.

As states like Oregon codify more robust and expansive employee protections, the federal government has been helping employers clarify and navigate murky federal statutes. The United States Department of Labor (DOL) issued two new opinion letters recently, bringing renewed life to the 70-year-old practice that then-President Obama temporarily stopped in 2010. This welcomed change may provide safe harbor to employers who take good-faith, reasonable efforts to conform to the advice offered in the letters. Such reliance may provide businesses with a defense in certain circumstances should an issue arise and litigation ensue.

The first opinion letter clarifies when time spent traveling by an employee must be compensated under the Fair Labor Standards Act (FLSA). Determining how much of an employee’s travel time is compensable can bedevil even the most experienced human resources professionals, especially when employees have irregular work hours.

Generally, the DOL will review time records to discern a regular workday, and while travel from jobsite to jobsite is compensable, employers need not worry about preliminary or postliminary travel to or from employees’ principal activities in ordinary workdays (think commuting time). In some instances, however, an employer may be required to compensate for travel when it cuts across the employee’s workday because “the employee is simply substituting travel for other duties” the employee would otherwise be performing for the employer. Compensation may be required even if the employee travels over the weekend.

When there are no clearly established “regular” work hours for the employee’s workdays, the DOL will allow an employer to average the start and end times. If there is no easy math to capture the complexities of irregular workdays, businesses can also negotiate and agree on a reasonable amount of compensable travel time with the employee. Although the DOL will carefully scrutinize any arrangement where the employee does not have a regular schedule, any reasonable method for determining employees’ normal working hours could pass muster and limit exposure from a wage claim.

The second letter opinion explains that employees are not always entitled to compensation for taking breaks at work. Generally, when employers provide rest breaks, the DOL considers rest breaks of up to 20 minutes to be compensable time. The DOL reasons these breaks primarily benefit the employer by giving employees opportunities to re-energize and remain productive at work. However, employers do not generally need to compensate for employees who are allowed additional breaks or leave pursuant to the Family and Medical Leave Act (FMLA).

Notably, federal law does not require employers to offer employees any breaks; however, some state laws, such as Oregon’s, do require mandatory breaks, depending on the length of the employee’s shift. Employers should bear in mind that state law may be more favorable to employees, and employers must comply with the law most beneficial to employees.

In the case that prompted the DOL to issue this opinion letter, sharp back pain required an employee to take eight breaks a day, effectively shortening the employee’s workday from eight hours to six. The FMLA protected these breaks because a doctor certified the employee’s health condition. The DOL found such frequent breaks accommodated the employee’s serious health condition. Because the employee primarily benefited from these accommodations and not the employer, the FLSA did not require the employer to compensate the employee for all of these breaks.

However, the DOL reminded the employer that it still must compensate the employee for some of the breaks, since “employees who take FMLA-protected breaks must receive as many compensable rest breaks as their co-workers receive.” Therefore, if an employer allows all of its employees to have two 10-minute breaks a day and compensates employees for this time as hours worked – in accordance with Oregon law – then the employer must still compensate an employee who needs multiple FMLA-protected breaks throughout the workday for two 10-minute breaks, even if those breaks are taken for FMLA purposes.

While these clarifying opinion letters are not game-changers, they are positive steps in the right direction and give employers sound, practical advice. As the DOL adopts more employer-friendly initiatives and has already reinstated 17 opinion letters Obama withdrew, the DOL will continue to issue opinion letters. While keeping abreast of these changes can help one’s business navigate thorny wage and hour issues as well as provide some protection from exposure, nothing beats a call to employment counsel to ensure compliance with wage and hour laws.

For more on wage and hour laws, join Barran Liebman LLP for its next Food for Thought seminar: “Beyond the Basics of Wage & Hour Law: Advanced Training for Employers.” To register for this May 8 training, please email Jessica Timm at jtimm@barran.com.

Josh Goldberg is an attorney with Barran Liebman LLP. He provides employment advice and defends employers against a variety of claims. Contact him at 503-276-2107 or jgoldberg@barran.com.

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