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Employment Alert - 
Oregon and Washington Legislative Update
January 12, 2018

Happy New Year! 2018 is rolling forward quickly and both Oregon and Washington employers need to take steps to comply with new state employment laws. Below is a summary of new laws introduced by the states of Oregon and Washington.
This newsletter includes only brief summaries prepared by FWW employment law attorneys Kelly Tilden, Trish Walsh and Nathalie Bougenies. 
Please contact  Kelly Tilden , Kim McGair  or  Trish Walsh if you would like us to review your current policies for compliance.

Oregon -
Washington -
Equal Pay Law EqualPayLaw
While Iceland has made headlines in 2018 for being the first country to enact an equal-pay-for-equal-work law, it is not the only place that recently passed such legislation. Here in Oregon, lawmakers last year made it an unlawful employment practice for an employer to discriminate between employees on the basis of a protected class (i.e., race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age) in the payment of wages or other compensation for work of comparable character. In other words, Oregon employers must provide equal pay for work that requires substantially similar knowledge, skill, effort, responsibility and working conditions, regardless of employees' job descriptions or job titles. Among other things, the new law also prohibits Oregon employers from determining compensation for a position based on an applicant's current or past compensation and from asking for an applicant's salary history.
Nevertheless, Oregon's new law does allow employers to pay employees for work of comparable character at different compensation levels if the entire reason for the difference is based on a bona fide factor related to the position, such as a seniority system, a merit system, workplace locations, education, training, or experience. 
Under the new law, employers may avoid paying compensatory and punitive damages to a successful plaintiff-employee if the employer demonstrates that it completed an equal-pay analysis (i.e., an evaluation process to assess and correct wage disparities among employees who perform work of comparable character, in accordance with the statutory guidelines) within three years before the date that the employee filed suit, eliminated the wage differentials for the plaintiff, and made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff.
Most provisions go into effect January 1, 2019, but it is best practice to start preparing for these changes now.
Fair Work Week ActFairWorkWeekAct
Starting on July 1, 2018, under Oregon's new statewide predictive scheduling law, employers with 500 or more employees in retail, food service, and hospitality businesses must provide new hires with a written, good-faith estimate of the worker's schedule and must post employees' schedules seven days in advance.  (Starting on January 1, 2020, employers will need to post schedules fourteen days in advance.) The law also prohibits employers from scheduling employees for work with less than ten hours between shifts.
Caps on Oregon Sick LeaveCapsonOregonSickLeave
Effective January 1, 2018, Oregon's paid sick leave law expressly will allow employers to limit sick time accrual to 40 hours per year.  (The original 2015 law allowed employers to limit the amount of carryover of sick hours from one year to the next, but it was unclear whether employers could limit sick time accrual within a single year.)
Falsifying Documents Related to Wage & Hour Records FalsifyingDocuments
Oregon employees now have a private cause of action against employers who compel, coerce or attempt to induce employees into creating or signing documents containing false information regarding hours worked or compensation received.
Protecting Social Security Numbers SocialSecurity
Effective January 1, 2018, Oregon law has new privacy protections for social security numbers, which include prohibiting the disposal of material or media that displays a social security number unless that information is made unreadable or unrecoverable.
Manufacturing/Food Processing Employers Who Owe Daily and Weekly Overtime ManufacturingFoodProcessing
Oregon's overtime law was also amended to direct manufacturing and food processing employers to pay the greater of daily and weekly overtime when an employee is eligible for both in the same workweek. In addition, certain employees are capped at 55 hours per week. Other provisions apply to manufacturers dealing with perishable products. This amendment specifically overturns a 2017 BOLI decision which required manufacturers to pay both the daily and weekly overtime premiums.
Distracted Driving Law DistractedDriving
Employers whose employees drive as part of their job should take note that Oregon's revised distracted driving law, which went into effect in 2017, prohibits drivers from using any "mobile communication electronic device" that is "not permanently installed in a motor vehicle." The law does not prohibit use of a single touch or swipe to activate or deactivate a device. However, it is not legal to use a device at a stop light, stop sign, in traffic, or the like. Drivers should park safely before using cell phones or other mobile communication devices while on the road.
As of January 1, 2018, Washington joined the ranks of six other states who require specific minimum paid sick leave benefits for employees. The new law covers nearly all employers, regardless of their size. In addition to this statewide law, existing city ordinances will complicate matters by imposing additional requirements. Even though many employers already offer paid time off for illness, the new laws, both at the state and city level, have a number of specific requirements which will require employers to update their practices and policies. Employers must follow both state and city laws and comply with provisions most favorable to employees. A few of these requirements are as follows:

I. State Law

Employees: The new law defines employees entitled to the paid sick leave in general as nonexempt employees and excludes employees who are excluded from the definition of employee under RCW 49.46.010(3). The law offers benefits to fulltime, part-time and seasonal employees.

Frontload/Accrual: Employers may frontload the estimated paid sick leave hours for an employee at the start of the defined year (adjustments would need to be made). Or, employees must accrue a minimum of one hour of paid sick leave for every 40 hours worked. For the average full-time employee, this amounts to 1 hour per week or approximately 52 hours per year. However, there is no cap and employees can work longer hours and earn more the estimated 52 hours. Further, up to 40 hours of unused sick leave must be carried over to the following year. Note that these figures are minimum requirements; employers are therefore free to provide their employees with more generous paid sick leave accrual and carryover policies.

Purpose: Employees may take accrued paid sick leave beginning 90 days after the start of employment. Thereafter, accrued leave must be made available for use no later than one calendar month after the date of accrual. Employees may take paid sick leave when they are sick, but also to care for a family member or to seek preventative care for themselves or a family member. Employees are also permitted to take paid sick leave when their place of work or their child's school or daycare has been closed by order of a public official for any health-related reasons. In addition, employees may use paid sick leave for any absence that qualifies for leave under the Domestic Violence Leave Act (RCW 49.76).

No Retaliation: Employers cannot retaliate against an employee who makes a legitimate sick leave request. An employer may require employees requesting foreseeable paid sick leave to provide "reasonable" notice and may request medical verification only if the employee takes more than 3 consecutive scheduled days of leave. The law imposes restrictions on the information an employer can request for verification. Note that the employer will be required to have a written policy outlining these requirements.

Even if you already offer substantial paid leave, your policies and practices are likely not in compliance with these new laws. Employers must provide written notice of the law by no later than March 2018. Review your policy and contact us to help ensure compliance with each law that impacts your workforce.

(Initiative 1433)
Pregnancy AccomodationsPregnancyWA
Washington has strengthened the protections for pregnant employees. The new Healthy Starts Act law specifies that employers of 15 or more employees are prohibited from firing a pregnant employee because she needs an accommodation, or from forcing a pregnant employee to take leave from work if another reasonable accommodation can be provided.

"Reasonable accommodations" include more frequent restroom breaks; modification of a no food or drink policy; job restructuring; reduced or modified work schedule; reassignment to a vacant position; modification of equipment, seating, or work station; temporary transfer; assistance with manual labor and limit on lifting; and schedule flexibility for pre-natal visits.

Employers can request written medical certification from the employee's health care provider regarding the need for certain accommodations and can work with an employee to identify a reasonable accommodation. Only if an employer can establish that providing the reasonable accommodation would cause an undue burden can an employer decline to provide the accommodation. Employers will not need to provide an accommodation if doing so would impose an undue hardship on the employer. However, the law limits what employers can claim as "undue hardship" and authorizes recovery of damages, costs, and attorney fees if an employer is found in violation of this new regulation.

If you have not yet done so, you should update your policies and train management. Contact us to help ensure compliance with this new law.

(SB 5835)
Distracted Driving LawDistractedDrivingWA
As of July 23, 2017, Washington began enforcing a stricter law regarding distracted driving. Employers who have employees driving during work hours or related to work should take steps to enforce compliance with this law.  
The new law prohibits drivers from using hand-held electronic devices, including cell phones, tablets, laptops, and games, while driving. Specifically, this law bans texting, reading, messaging, scrolling social media sites or talking on an electronic device with the device in hand. This restriction applies even when drivers are stopped in traffic or at a stop light.
The law also interdicts all forms of distractions that interfere with safe driving, such as grooming, smoking, eating, or reading.
Contact us for more information on this new law and on how to best remind your employees of your own distracted driving policies.
(SB 5289)
Seattle Scheduling OrdinancesSeattleScheduling
Since July 1, large retailers and food-service industry employers who employ 500 employees or more worldwide have to comply with new scheduling practices.  For a start, covered employers must provide a written forecast of employees' median hours per work week and whether to expect on-call shifts.  The employers must post work schedules 14 days in advance.  
Before the work schedule is posted, an employer must grant schedule requests related to a "major life event," such as an employee's transportation, housing, other job(s), education, caregiving, and self-care for serious health condition, unless the employer identifies significant cost or disruption.
Employers must pay time-and-a-half for any hours worked between closing and opening shifts that are separated by less than 10 hours.  In addition, employers must pay employees for each instance of adding or subtracting hours when there is a schedule change of more than 15 minutes.
(SMC 14.22)
Paid Family Leave LawPaidFamilyLeave
More to Come: As many of you are aware, the Washington Legislature passed RCW 49.78 which will dramatically change the landscape of Paid Family Leave. Below is a link to a recent article that Kelly Tilden wrote for the Northwest Credit Union Association's publication, Anthem, regarding the new law.
Farleigh Wada Witt Employment Attorneys
Kelly Tilden  focuses her practice in the areas of employment law, business, and litigation. She advises clients regarding the hiring, discipline and termination of employees, compliance with state and federal civil rights, wage and hour laws, and leave laws. Kelly offers practical guidance and experienced-based insight to help employers confidently apply state and federal regulations.

Contact Kelly at 503.228.6044 or ktilden@fwwlaw.com

Kim McGair ' s practice emphasizes a wide range of litigation matters including employment, commercial litigation, commercial collections, personal injury defense, and real estate litigation. She is an advocate for her clients and provides them with sensible advice and strong representation to protect their interests and help them achieve their objectives as efficiently as possible.

Contact Kim at 503.228.6044 or  kmcgair@fwwlaw.com

Trish Walsh  focuses her practice in the areas of litigation and employment law, protecting clients' interests inside and outside the courtroom. In her employment practice, Trish drafts, audits and updates policy handbooks and provides advice on employment issues under Oregon, Washington and federal laws.

Contact Trish at 503.228.6044 or  twalsh@fwwlaw.com

Nathalie Bougenies' international background offers a valuable perspective to clients whose lives and businesses are increasingly shaped and affected by globalization. Nathalie practices in several areas including business law, intellectual property, real estate, and litigation, enabling her to assist companies with a full range of legal and business challenges.

Contact Nathalie at 503.228.6044 or nbougenies@fwwlaw.com

Copyright © 2018 Farleigh Wada Witt. All Rights Reserved.


The contents of this publication are intended for general information only and should not be construed as legal advice or opinion on specific facts and circumstances.


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