Employers in Oregon are facing new restrictions in hiring when it comes to applicants’ ages, thanks to House Bill 3187. To reduce the opportunity for age-based discrimination, the law prohibits employers from requiring or requesting disclosure of certain age-related information, including such able to serve as a proxy for age, while applicants are in the beginning phases of a hiring process.

This requirement applies to employers, prospective employers, and employment agencies. The prohibited information includes the applicant’s age, date of birth, dates that the applicant attended an educational institution, and dates that the applicant graduated from an educational institution.

This information is not prohibited outright but is instead subject to a timing limitation. For organizations that do not conduct job interviews, this information is prohibited until after they make a conditional offer of employment. For organizations that do conduct job interviews, this information is prohibited until after an initial interview is completed.

The narrow exception to this prohibition is when the information is required to confirm that the applicant meets bona fide occupational qualifications, or to comply with any provision of a federal, state or local law, rule or regulation.

Employers in Oregon have long understood that age is a protected category, and that employment and hiring decisions should not generally include consideration of age or reference to it. These recent changes acknowledge that certain application information, such as date of birth or graduation date, effectively provide the same or similar information, and can lead to hiring decisions that are discriminatory, or can lead to stereotypes based on age.

To the extent that the information can still be requested at a later stage of the hiring process, this gives the applicant the opportunity for a conditional job offer without consideration of age-related information, or the opportunity to be evaluated on the merits of an initial interview, prior to consideration of such information. This is an effort to curtail the likelihood of such stereotypes resulting in prejudging.

As an immediate step, employers should check their application materials to ensure that standardized forms or online submissions do not request age, date of birth, or educational institution attendance and graduation dates. When employers make use of recruiters or similar services, it is worth checking that they, too, are complying.

For those individuals who are involved in the hiring process, such as human resources professionals who might reach out to candidates for information or scheduling, or employees who participate in interview panels or processes, they should also be instructed and trained that they should not ask for such information during their pre-offer communications or during an initial interview.

Managers who regularly conduct interviews may already have the muscle memory to avoid certain topics, whereas other employees who may be asked to participate in interview panels on an infrequent or one-off basis may require more careful instruction and explanation. For example, the natural course of conversation in an interview may result in an employee noting an educational institution and stating, “I went to the same university; what year were you there?!” This seemingly innocuous point of connection may result in an unintended inquiry that violates the statute.

If a candidate offers such information of their own accord, there has been no resulting violation by the employer or employment agency. In particular, candidates may be used to submitting resumes that default to inclusion of attendance or graduation dates. Employers may consider revising job advertisements and requisition materials to note that candidates are asked to provide a resume but need not include dates of attendance or graduation. When a voluntary disclosure is made verbally, employers should document that the information was shared by the applicant without request or prompt.

The bill adds the statutory protection to the existing construct of ORS 659A.030, which focuses on unlawful discrimination in employment. Violations of this statute generally permit an individual a private right of action to bring a suit seeking both damages and attorney’s fees.

The bill’s effective date is 91 days after the date on which the legislative assembly adjourns, which was June 27, 2025. These requirements are therefore slated to take effect on September 26, 2025.

Shayda Le is a Barran Liebman LLP partner. She advises employers on a wide range of employment issues and litigation. Contact her at 503-276-2193 or sle@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.

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The Equal Employment Opportunity Commission published final guidance on harassment in the workplace on April 29, 2024. While this guidance is not law, it provides employers with an official agency resource on legal standards and employer liability in relation to federal harassment laws. While the existing legal framework for analyzing harassment claims has not changed, there are some new areas of focus, and updated recommendations, which employers can incorporate into how they evaluate allegations of harassment in the workplace, and how they investigate such concerns.

Areas of emphasis

Remote work: In recognition of the proportion of EEOC charges that include allegations of harassment, and in recognition of the fact that the number of charges has increased despite the prevalence of remote work or hybrid work arrangements, the new guidance includes focus on how harassment can occur in a remote work environment. It specifically recognizes discussions during videoconferences, comments made within a chat feature, racist images that might be visible in someone’s background, and conduct occurring away from work like posts on a personal social media page.

Intraclass harassment: This is where harassment is based on a protected characteristic, but the harasser is a member of the same protected class. The new guidance emphasizes that such conduct still counts as harassment despite the harasser’s own identifying characteristics, and provides several examples of what this can look like.

Pregnancy and reproductive care: The EEOC makes clear that harassment based on sex is not limited to consideration of gender; it encompasses pregnancy, childbirth, or related medical conditions, and therefore employees are afforded protection when it comes to decisions related to pregnancy, lactation, contraceptive choices, or the decision to have or not have an abortion.

LGBTQ+ rights: This area of emphasis reflects new cases that have interpreted and expanded rights. In Bostock v. Clayton County (2020), the Supreme Court held that discrimination based on sex is not limited to consideration of gender; it affirmatively includes sexual orientation, gender identity, and transgender status. Examples provided in the new guidance include denial of access to a bathroom consistent with gender identity, intentional and repeated misgendering of an employee, harassing behavior related to the fact that an employee does not present in a manner that is stereotypically associated with their gender, and outing a person’s sexual orientation or gender identity without their permission.

Takeaways for workplace investigations

When allegations of harassment arise in the workplace, employers are obligated to evaluate the concerns and determine if corrective action is necessary. The EEOC guidance provides updated takeaways for employers in the conduct of such reviews or investigations.

Protected characteristics: The protected characteristics covered under Title VII are confirmed and clarified, which provides a better roadmap for navigating the nuances of a workplace complaint and investigation. If an employee complains about gendered behavior and the treatment at issue manifested in more nuanced and less obvious ways, this guidance provides a helpful basis with which to analyze the contours of that claim. If an employee complains about intersectional harassment, where there are combined protected characteristics at issue, this guidance helps us to consider each characteristic plus the overlapping characteristic.

Causation: The guidance provides additional focus on understanding causation and how to determine if the conduct at issue was caused by an employee’s protected class. This directly relates to an employer’s analysis of whether the complaint the employee has raised is just frustrating conduct, versus harassment connected to a protected class. Some of the factors suggested for consideration are stereotypes, context, timing, and comparative evidence.

Internal investigators: Typically, externally hired investigators are charged to reach factual findings and conduct an analysis of the workplace complaint but are then separated from the internal decisions that are made about appropriate next steps following the conclusion. However, internal investigators are more likely to be involved in making recommendations about next steps. This guidance can serve as a helpful tool in evaluating existing employer policies and aiding internal investigators to assist with appropriate remediation.

Investigative process: It has always been the case that workplace investigations are supposed to be prompt and adequate, but the new guidance elaborates these points. A prompt investigation ought to be conducted reasonably soon after the employer has notice of possible harassment, although the specific timeframe is fact sensitive, depending on the nature and severity of the alleged conduct, and on the reason for delay, if there is one. The adequacy of the investigation refers to the thoroughness and impartiality. Adequate means that the process was sufficiently thorough to arrive at a reasonably fair estimation of the truth, which includes seeking information from the parties involved, ensuring that the subject of the investigation does not have supervisory authority over the investigator, selecting an investigator who is well trained in harassment law and has the skills required for interviewing witnesses and evaluating credibility, following an investigative plan, and conducting a robust analysis to explain how and why the outcome was reached.

Decision to investigate: The guidance also emphasizes that doing an investigation is important. An employer’s duty to exercise reasonable care in the face of an allegation of harassment includes figuring out what is truly going on so that the steps taken are adequate for the situation. An employer may be able to hold up an affirmative defense to a claim of harassment by demonstrating that it fulfilled its obligations and took appropriate measures to address and respond to harassing conduct. Conducting an investigation is tied to fulfilling the employer’s obligations under employment laws and is tied to the employer’s ability to hold up that affirmative defense.

Shayda Le is a Barran Liebman LLP partner. She advises employers on a wide range of employment issues and litigation. Contact her at 503-276-2193 or sle@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.

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Oregon noncompetition laws have changed through multiple rounds of legislation. As Oregon employers are navigating the contours of a challenging labor market, it is a good time to consider key reminders for noncompetition compliance, as well as evaluation of the positions for which such agreements remain valuable.

History of change

Over the last few years, Oregon legislators have limited employers’ ability to restrict employee mobility between competitors, in particular through revisions to noncompetition laws. The maximum length of a noncompetition agreement was earlier reduced from 24 months to 18 (and then reduced again more recently). Then they were prohibited for home care workers, and employers were obligated to provide the employee a written copy of the agreement at issue within 30 days of the end of employment. Most recently, as of Jan. 1, 2022, the maximum duration of the noncompetition agreement was further reduced to 12 months, and the salary minimum was raised to $100,533 (a figure to be adjusted annually for inflation).

Requirements

Changes aside, consider these primary requirements and parameters around usage of noncompetition agreements.

The employer must:

• inform the employee, in writing, that the noncompetition agreement will be required at least two weeks before the first day of employment, or entered into upon a bona fide advancement for an existing employee;
• put the agreement itself in writing;
• limit the duration of the restriction period (during which an employer can restrict a departing employee’s ability to work for a competitor) to 12 months;
• have a protectable interest, such as when it entrusts the employee with trade secrets or competitively sensitive confidential business information; and
• provide a signed copy of the agreement to the employee within 30 days of the separation of employment.

To qualify, any given individual employee must:

• fall within a white-collar exemption, and be paid on a salary basis;
• have access to trade secrets or competitively sensitive confidential business information; and
• earn a minimum of $100,533 in salary and commissions.

In circumstances where an employee has access to sensitive information but does not meet the other requirements, a noncompetition agreement can still be enforced if the employer has agreed in writing to continue to pay the employee after separation of employment, while the employee rides out the noncompetition period. The amount of pay must be 50 percent of the employee’s annual gross base salary and commissions at the time of termination, or 50 percent of $100,533, whichever is greater.

Other options

At its core, a noncompetition agreement holds that the employee will not depart from employment with one organization only to go immediately work for a competitor within a relevant geographic area and provide products or services or processes similar to those of the organization they just left. It restricts the employee’s ability to take another job. The agreement’s duration is intended in part to create some separation between the employment with two competitors.

There are other tools available to employers to restrict employees from engaging in certain behaviors that are potentially harmful to their current or former organization that do not result in outright restricting the employee’s ability to take a certain job. These include confidentiality agreements (agreeing to keep employer information confidential during and after employment, regardless of where they work), and non-solicitation agreements (agreeing not to solicit customers or employees of the organization, which might otherwise divert business and talent away from their current or former organization).

The restrictions outlined here do not apply to confidentiality and non-solicitation agreements. Employers are free to evaluate their use either in parallel to, or in place of, a noncompetition agreement.

Analysis

In considering the potential utility of a noncompetition agreement, employers must assess the role or occupation of the individual employee, their access level to sensitive information, and their income level. But what else should the employer assess? When and how the employee is being hired, or whether the existing employee is entering into a more sensitive role that will qualify as a bona fide advancement, will further determine whether a noncompetition agreement can be feasibly considered. In an even deeper dive, employers may want to consider whether a typical employee who would meet the parameters of the position would be willing to agree to a yearlong restriction on their future employment, and whether the actual candidate the organization has in mind or would really like to entice may be unwilling to accept the role in such circumstances.

The applicant pool itself may be more limited – where potentially ideal candidates may self-select out of applying for the role if they know a noncompetition agreement may be required. Even when accepting the position, the candidate may be more demanding in negotiating salary and other benefits when they know that a substantial limitation will be required of them. While these considerations have always been present, the contours of a tight labor market may make existing challenges to hiring even more difficult when a substantial restriction like a noncompetition agreement may dissuade candidates. Employers may wish to consider whether such agreements are useful in more limited circumstances, and/or whether confidentiality and non-solicitation agreements might otherwise achieve most or all their goals.

Shayda Le is a partner at Barran Liebman LLP. She advises and represents employers, management and higher education institutions on a wide range of issues. Contact her at 503-276-2193 or sle@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.

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The U.S. Equal Employment Opportunity Commission received 7,609 sexual harassment charges in 2018, which represents a 13.6 percent increase from 2017. In the wake of the #MeToo movement, this is perhaps unsurprising. As a default position, many companies believe that receiving a workplace complaint of sexual harassment is a problem, and that receiving a larger number of complaints indicates an even bigger problem.

To the contrary, a complaint is information about a problem, not a problem itself. Unreported problems are actually one of the biggest issues facing employers, which leads to the conclusion that complaints are preferable to silence. Against this backdrop, what can an employer do to encourage internal complaints?

1. Stop reacting to complaints as if they are catastrophes. Employee complaints are an opportunity for the organization to review behavior, address existing problems, educate employees who may misunderstand appropriate workplace behavior (including the employee raising the complaint), and improve internal processes. If you have an appropriate process for responding to complaints, you will be prepared when one arises and be able to respond thoughtfully and meaningfully. A measured process includes responding to employees promptly, thanking them for bringing the issue forward and allowing the opportunity for review, expressing that the organization takes complaints seriously and will investigate (without promising or commenting on a likely outcome), and stating that the organization will follow up throughout the process and at the conclusion invite questions.

2. Work to ensure that employees understand what will happen when a complaint is made. We do not want employees to hold back complaints for fear that they will not be taken seriously or that “nothing will happen in the end,” but we also do not want employees to refrain from raising complaints because they misunderstand the process and “don’t want to get anyone fired.” Therefore, in advance of receiving complaints, provide an explanation of your process. Include an outline of the steps involved and possible outcomes within your written policies – how an employee can make a complaint, to whom, what happens next, what a typical review or investigation looks like, who might be involved in that process, interim measures that might be available to a complainant or respondent, and range of potential discipline that may result if a concern is substantiated. Incorporate this information into onboarding and trainings, and consider providing periodic updates at staff meetings or via email to remind employees of the process.

3. Suggest outcomes, when appropriate, that are solution-focused. As an employment lawyer who conducts outside investigations, I encounter many instances when a complainant or respondent indicates the desire for a less formal process to allow for a facilitated conversation with others involved rather than a discipline-oriented outcome. Similarly, in investigations where the conclusion is that no policy was violated, the employer may still wish to proactively meet with the affected individuals and identify possible solutions for more positive future interactions. When employees appreciate that raising a complaint can lead to a productive outcome and not just finger-pointing followed by discipline, the more willing they may be to raise concerns proactively that improve the work environment for everyone.

4. Utilize the power of managers and supervisors. Managers and supervisors are often the first line of defense for addressing problematic behavior – that is their job. Human resource professionals and supervisory employees should treat complaints as an opportunity, not a problem, and refrain from commentary that might indicate a distaste for complaints or a preference that they not be raised. Otherwise, managers and supervisors who perceive that the organization dislikes complaints could be more likely to (consciously or subconsciously) indicate the same to the employees they supervise. Through both formal training and informal conversation, arm your managers with appropriate tools and language for how to respond to complaints. It can take courage and cause anxiety for an employee to come forward with a perceived concern – whether or not that concern ultimately ends up being substantiated. It is therefore critical that the employee not be met by a manager with unintended or flippant statements that might convey that the concern is not a big deal, that the manager himself or herself would not be personally offended by such behavior, that the concern raised is simply a harmless personal idiosyncrasy about that particular employee, or that a conversation about the concern will not be accommodated or will be a one-time discussion that cannot be raised again.

5. Discourage and prohibit behaviors that might dissuade complaints. In the wake of the #MeToo movement, many of us have heard stories of potentially well-intentioned efforts to prevent discrimination against women by reducing or limiting interactions with women. For example, some men fearing a potential complaint have reduced work interactions with women, including work travel, mentoring, or work-related social activities such as one-on-one dinners or lunches. This itself is a form of discrimination against women, and such behaviors are all but certain to discourage an employee from raising a complaint.

Ultimately, all businesses prefer to reduce incidents leading to complaints. However, for those problems that exist, we are better armed to address and resolve such issues when our employees are willing to raise complaints and allow us the chance to explain, address or alleviate an issue that is important to both the health of the organization as well as the individual complainant.

Shayda Zaerpoor Le is a partner with Barran Liebman LLP. She advises employers, management and higher education institutions on a wide range of employment issues. Contact her at 503-276-2193 or sle@barran.com.

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Workplace harassment has always been a point of concern for prudent employers, but the time is ripe to reassess policies to evaluate efficacy and the potential for improvement. The following questions can be a starting point for assessing where current policies stand.

Q: Are my policies too focused on legal definitions and requirements, or do they represent my organization’s standards and culture?

A: Legal definitions are important, but without more, employees may have a hard time making use of legalese as a practical tool. The average employee is more likely to read the legal definition for harassment and instead default to a subjective evaluation of what would feel like harassment to him or her. Also, legal requirements serve as a floor for workplace behavior, not a ceiling. While we want our employees to abide by legal requirements, a productive workplace environment should aim for higher. Setting the bar higher for workplace conduct makes it easier to maintain compliance with legal requirements and communicates to employees that unacceptable (and unproductive) behavior will not be tolerated, even if such behavior is not unlawful.

Instead consider: Provide additional information in plain language that is more likely to be understood and followed. For example, the policy can explain that harassment has both an objective and subjective component, and that the circumstances and the perspective of the individual affected are relevant to the evaluation. Also, determine whether policy language encourages desired behaviors, rather than just prohibiting illegal ones. If not, highlight the type of work environment desired and state that all employees contribute to the culture of the organization and are charged with maintaining those standards.

Q: Are my policies focused only on sexual harassment?

A: Although we are in an environment of renewed (and justifiable) focus on sexual harassment, policies should not be too narrow, and differential behavior based on any protected class should be implicated. Helping employees understand that “protected classes” cover many categories beyond just gender, race or disability can help them appreciate that workplace behavior can also implicate many types of people. Military status, use of leave, family relationship or issues of domestic violence are all examples of protected categories that an average employee may take for granted.

Instead consider: The policies can provide an understanding of these categories and what differential treatment can look like, and the fact that the different protected classes are important in part because they highlight the diversity of characteristics within our workplaces. Our expectation is that employees will be mindful that these characteristics may be present even when they are not physically visible.

Q: Do my policies provide any tangible examples of behaviors we expect our employees to avoid?

A: Consider providing some examples of behaviors that can be problematic. All employees should understand it is illegal to require another employee to submit to a sexual advance as a condition of a workplace term or benefit. However, many employees may not appreciate that a social invitation or a request for a date may feel like an uncomfortable advance, particularly if it is declined and subsequently repeated. Similarly, many employees may not understand that comments about gender-based stereotypes are often problematic, even when they do not relate to sexuality or physical attractiveness. Providing a few examples of behaviors that are discouraged can help to shape the culture.

Q: Do my policies outline what will happen in the event of a complaint or a possible violation?

A: Some employers may be hesitant to provide a detailed complaint-reporting process out of concern that it may provide a road map to claims or that it may encourage additional issues. Although no organization wants to receive a complaint or allegation of harassment, it is a much larger problem when issues of harassment go unreported – complaints are in fact preferable to silence.

Instead consider: The complaint policy should outline what types of issues must be reported, such as instances when an employee has credible information about an issue and not simply where the employee was affected by the event or witnessed it directly. It should also explain where reports can be lodged, what resources exist for an employee to request assistance or accommodations while the complaint is under review, and assurance that all complaints are reviewed promptly and thoroughly. This can help assure employees that information of this nature can and should be freely reported. In terms of prohibiting retaliation, employees are likely to feel much more secure when the policy makes clear that it does not simply prohibit retaliation in the form of outward hostility, but also protects against more nuanced outcomes such as shift assignments, work allocation and even the cold shoulder. Consider outlining what the responsive process may entail, such as reviewing any available materials, talking to other individuals, and doing one’s best to yield an outcome that appropriately redresses the issue. In practice, many employees do not raise smaller complaints out of concern that a fellow co-worker may be seriously punished or terminated, so an understanding that discipline will be tailored to the circumstances at issue may help employees feel that smaller issues can be raised before they escalate into significant ones.

A user-friendly policy can be an important component of keeping employees informed about appropriate behavior, as well as helping them feel comfortable enough to provide officials with the information they need to take appropriate steps and mitigate instances of potential harassment.

Shayda Zaerpoor Le is a partner with Barran Liebman LLP. She advises employers, management and higher education institutions on a wide range of employment issues. Contact her at 503-276-2193 or sle@barran.com.

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On Jan. 27, President Trump issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The executive order suspends the entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days; it suspends the United States Refugee Admissions Program for 120 days; it prioritizes refugee claims relating to religious persecution in instances where the refugee is considered a member of a minority religion in the country of his or her nationality; and it suspends the entry of all Syrian refugees indefinitely.

In addition to the confusion and upheaval many of us witnessed on the news and in person at airports around the country, many businesses faced immediate and significant personnel questions. As initially implemented, the executive order applied to individuals with common employment-related visas such as H-1B and L-1 visas, and also to students, individuals with dual nationalities, and lawful permanent residents. Many employers advised employees covered by these categories to avoid international travel, and even United States citizens with dual nationality were encouraged to exercise caution and re-evaluate travel plans. Students were unable to return to their studies, and many businesses had key employees suddenly stranded abroad.

The executive order was quickly subject to a temporary restraining order, which was granted on Feb. 3. A temporary restraining order is a directive from the court relating to short-term implementation of an action or preservation of the status quo. While the opposing parties argue the merits of their relative positions, one party may ask the court to temporarily halt action taken by the opposing party, usually based in large part on the argument that the party will suffer immediate and irreparable harm if they are not given temporary relief from the proposed action, at least until a decision is reached on the ultimate legality of that action.

Here, the state of Washington, joined by Minnesota, filed a lawsuit challenging several sections of the executive order. The states claimed that EO 13769 “unconstitutionally and illegally stranded (their) residents abroad, split their families, restricted their travel, and damaged the states’ economies and public universities.” The state of Washington also argued that the executive order was not directed against terror attacks, but was actually “intended to enact a ‘Muslim ban’ as the president had stated during his presidential campaign that he would do.” The district court concluded, as a preliminary matter, that the executive order’s implementation was causing significant harm to a substantial number of people, and that the states were likely to be able to prove that the executive order was unlawful.

The federal government filed an immediate appeal to the United States Court of Appeals for the Ninth Circuit, which issued an executive order upholding the temporary restraining order on Feb. 9. The Ninth Circuit emphasized the states’ arguments surrounding injury to their public universities, the harm to their research missions, and their inability to consider attractive student and faculty candidates from the seven listed countries. The court noted that the universities “rely on such visiting students, scholars and faculty to advance their educational goals,” and that the states have standing to assert the rights of those individuals affected by EO 13769.

The court also acknowledged that courts generally owe substantial deference to the president and the political branches in relation to immigration and national security policy. However, the federal government had argued that the president’s decisions in these areas are entirely unreviewable, even if they potentially run afoul of constitutional protections. The court declared that “there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy … neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”

The Court of Appeals evaluated due process requirements and expounded on the likelihood of due process violations caused by EO 13769. The Fifth Amendment’s Due Process Clause prohibits the government from depriving individuals of their “life, liberty or property without due process of law,” or without an opportunity to receive notice of the proposed deprivation and to respond against it. These procedural protections are likely violated when lawful permanent residents and non-immigrant visa-holders are denied re-entry to the United States or are prevented from exercising their rights to travel abroad and re-enter the United States.

The court did acknowledge that several days after EO 13769 was issued, “White House counsel Donald F. McGahn II issued ‘authoritative guidance’ stating that sections … of the executive order do not apply to lawful permanent residents.” However, the court found this to be unreliable, given that the government did not provide “authority establishing that the White House counsel is empowered to issue an amended order superseding the executive order signed by the president … Moreover, in light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”

The court concluded that, in addition to the immediate harm, the government failed to establish that it was likely to succeed on its due process arguments. The court also was swayed by the states’ argument that the executive order appears intended to disfavor Muslims, noting that this raised “serious allegations and presented significant constitutional questions,” but the court did not address the merits of this argument given the government’s failure to meet its burden for its request.

As a result of this ruling, EO 13769 will not be enforced while the temporary restraining order is in effect, immigrants and non-immigrants who were affected can enter the United States, and U.S. Customs and Border Protection should be reinstating previously canceled visas. However, there is no guarantee how long this temporary restraining order will be in effect, because the court has the authority to revoke the order at any time.

Shayda Zaerpoor Le is an attorney with Barran Liebman LLP. She advises employers, management and higher education institutions on a wide range of employment issues. Contact her at 503-276-2193 or sle@barran.com.

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Many employers use the summer months to focus on updating and revamping their policies, planning for implementation of upcoming adjustments, and taking stock of potential changes in the pipeline. Here’s a primer on a few of the most significant changes in 2016.

Overtime and salary levels

The U.S. Department of Labor has long held that in order for an employee to qualify as “exempt” or salaried, not subject to the requirements of overtime pay, he or she must receive a minimum salary of $23,660 per year (in addition to other qualifications relating to how they are paid and their job duties). Effective Dec. 1, 2016, this minimum salary level is more than doubling, to $47,476 per year. This means that salaried employees who are paid less than this amount will now be entitled to overtime pay, regardless of their title, duties or pay structure. To comply with these rules, employers may choose to increase salaries to meet the new threshold, pay overtime for weekly hours in excess of 40, or reduce hours to avoid overtime.

Minimum wage increase

Effective July 1, 2016, Oregon’s base rate minimum wage increased to $9.75 per hour. In addition to the increase, Oregon moved to a tiered system, providing for different minimum wage rates in different areas of the state; rates are pegged to the population density for particular counties. Areas defined as low density must now pay employees at least $9.50 per hour, and areas of high density must pay $9.75 per hour. The rate is determined by the area in which the work is performed, which could differ from where the employer is located, and could also differ from one employee to the next. The new structure has also defined a system for future increases, which are set to take effect on July 1 of each year. The absolute figures have been calculated through June 30, 2023, at which point the base rate will be $13.50 per hour. Thereafter, the base rate will be adjusted based on the Consumer Price Index, with low density areas below the base rate by $1 per hour, and high density areas above the base rate by $1.25 per hour.

Transgender issues in workplaces

In Oregon, employers cannot discriminate on the basis of sexual orientation, which is defined by regulation to include gender expression and gender identity, “whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth.” With significant media attention surrounding accessibility to restroom facilities, this is an emerging topic for many employers to consider and effectively plan for. It’s clear that in Oregon, individuals must be allowed to use the restroom consistent with their expressed gender identity.

Itemized paystubs

Effective Jan. 1, 2017, employers in Oregon must include additional categories of information on itemized paystubs. Part of the intention is to provide greater transparency in pay practices and expose employer wrongdoing. Among other details, the paystub must provide information about: rates of pay; whether the employee is paid by the hour, shift, day or week, or on a salary, piece, or commission basis; the amount and purpose of each deduction made during the respective pay period; the regular hourly rate or rates of pay, the overtime rate or rates of pay, the number of regular hours worked and pay for those hours, and the number of overtime hours worked and pay for those hours; and the piece rate, the number of pieces completed at each rate, and the total pay for each rate. For those employers providing this itemized information in electronic form, the employee must have expressly agreed to that delivery method, and he or she must have the ability to print or store the statement at the time of receipt. These time and pay records must also now be retained by the employer for three years from an employee’s date of termination, and must be provided to the employee for inspection upon request.

Litigation and production requests

A recent Multnomah County case, in which a jury awarded a former Daimler employee $1.2 million, provides a timely reminder of the importance of production requests in litigation. Daimler was not permitted to defend itself against the employee’s age discrimination claim because the judge found bad faith for failure to provide evidence requested by the employee’s attorneys. This was a sanction for failing in their obligation to comply with discovery requests as part of the litigation. Particularly as the world of electronic information grows in diversity and complexity, where most employees have multiple devices and some use their devices for both business and personal uses, it is increasingly important for companies to carefully outline and organize their discovery obligations as part of litigation. Not only is it required by the rules of civil procedure, but failure to comply can result in disastrous consequences.

The employment arena is one of frequent changes to laws and regulations. Effective compliance requires regular updates and strategic planning. Employers should follow developments in the law closely to remain in compliance. Reviewing changes and incorporating adjustments during the summer is a wise investment.

Shayda Zaerpoor Le is an attorney with Barran Liebman LLP. She advises employers, management and higher education institutions on a wide range of employment issues. Contact her at 503-276-2193 or sle@barran.com.

The post OP-ED: Employment law updates to account for in 2016 appeared first on Daily Journal of Commerce.

Hiring effectively and following best practices in interviewing will help employers reap the benefits of a stronger talent pool, and reduce the occurrence of discriminatory hiring claims and the need for future terminations. There are many important components to hiring, such as deciding what to ask for on the employment application, whether to use background checks, and whether to conduct an Internet search about an applicant. Following is a look at which questions an interviewer may ask and which questions should be avoided.

Determine the job requirements

The best way to start crafting interview questions is to allow the job requirements to drive the process. What do you actually need to know about the applicant in order to evaluate them for the particular position? Employers must avoid soliciting or receiving “unwanted” information, because certain categories and circumstances cannot be used as a basis for making hiring decisions.

Asking questions that yield these types of information may force the employer into a position where it must prove, in a subsequent lawsuit, that such information was not used in making an adverse employment decision. This can happen even when the hiring choices have been based entirely upon legitimate grounds. These categories of “unwanted” information include national origin or citizenship, race, religion, age, marital status, arrests and convictions, union activity, sexual orientation, pregnancy, financial status, family structure, disability issues, military services, use of protected leave and more.

Family

There is a legitimate business need to determine if a person can work overtime, travel, or come in on weekends. However, asking a female applicant, for example, “do you have a husband to take care of your kids?” presumes too much, and requests too much. Whereas, a simple “can you work weekends?” will yield what the employer needs to know.

Similarly, questions such as “are you married?” or “when do you plan to start a family?” are problematic. While a person’s family obligations may legitimately impact his or her availability or ability to perform the job, the questions must be tailored toward that specific end. “Are you available to travel frequently?”, “can you work overtime on short notice?”, or “can you work evenings and weekends?” are questions tailored to generate job-related information and avoid making personal inquiries.

Religion

Instead of asking an applicant about his or her participation in outside activities, or whether he or she is available on Sundays, an interviewer may ask, “are you able to work the schedule of the position, including overtime?” An applicant is free to answer yes or no without indicating the possible reason for their unavailability.

Disability

An applicant’s physical limitations may significantly impact his or her ability to perform the job. However, the interviewer must not ask questions about medical history, even if a disability is visible or if the individual volunteers such information. For instance, if the position requires a commercial driver’s license and the interviewer suspects that an applicant has epilepsy, instead of asking specifically about the condition, the interviewer might say, “this position involves driving and requires that the employee have a commercial driver’s license and an excellent driving record; do you meet these requirements?” Instead of asking the applicant about his or her physical limitations, the employer should instead explain the physical requirements of the job and then ask if the applicant can perform the requirements with or without a reasonable accommodation (without asking if the applicant will require a reasonable accommodation to do the job).

Pregnancy

Employers are prohibited from discriminating on the basis of pregnancy, childbirth or related medical conditions. This prohibition considers current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. An interviewer should therefore focus questions on the requirements of the job and ask if the applicant will be able to meet the necessary scheduling and performance requirements with or without a reasonable accommodation. Pregnancy-related questions or comments should be avoided altogether.

Other inquiries

With respect to national origin and citizenship, employers should avoid asking questions such as “what type of accent is that?”, “what country are you from?”, or “what nationality is your last name?” Instead, interviewers may ask the applicant “if you are hired, are you able to provide documentation to prove that you are eligible to work in the U.S.?”

When it comes to education and training, these questions should again be job-related, encompassing facts such as where the applicant went to school and what degree or certification he or she earned. In contrast, the date of graduation has a more tenuous relationship with relevancy, because it can be indicative of age, which is another problematic category.

In a similar vein, many employers will inquire about criminal history in an effort to protect employer assets and avoid negligent hiring claims. However, arrest records provide little valuable information because the absence of a resulting conviction can render the occurrence wholly irrelevant. In addition, minorities are arrested disproportionately in comparison to non-minorities, and hiring practices that disproportionately impact minorities may lead to discrimination claims. Therefore, questions regarding non-conviction arrest records should be avoided.

While there are many categories of “unwanted” information that an interviewer should avoid, the primary goal of each interview is to communicate the requirements of the position and to phrase questions in such a manner that they relate to those requirements, rather than the personal circumstances of the applicant. Following these tips will help an employer choose the right person without asking the wrong questions.

Shayda Zaerpoor Le is an attorney with Barran Liebman LLP. She advises on a wide range of employment law issues. Contact her at 503-276-2193 or sle@barran.com.

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