Drug Testing, Paid Family Leave, and Other Employment Law Updates - PowerPoint PPT Presentation

Drug Testing, Paid Family Leave, and Other Employment Law Updates Presented by Caroline J. Livett, Stoel Rives LLP Labor & Employment Practice Group Thursday, January 16, 2020

A GENDA • Drug testing • Key new employment laws for 2020 – Workplace Fairness Act – Pregnancy accommodations – Paid family leave – Notice of federal inspections – Pay equity update – Non-competes – Minimum wage 2

D RUG & A LCOHOL T ESTING • No Oregon laws specific to drug testing in the workplace • Restrictions on use of a breathalyzer 3

D RUG T ESTING – B EST P RACTICES • Have a clear policy • Articulate your standard for testing – Random – Reasonable suspicion – Post-accident or injury • Apply your policy fairly and consistently • Provide advance notice 4

I T ’ S Y OUR T URN Katie is a member of my office staff whose performance has recently declined. Based on rumors I’ve heard from other employees, I suspect Katie might be using illegal drugs, or at least marijuana. Can I require her to submit to a drug test? 5

M ARIJUANA IN THE W ORKPLACE • Currently OK to restrict both on- and off-duty use of marijuana • Treat like an illegal drug? • Treat like alcohol? • New legislation? 6

Key New Employment Laws for 2020

W ORKPLACE F AIRNESS A CT • Oregon’s response to #metoo • Extends statute of limitations for most employment claims from 1 to 5 years • Prohibits employers from asking for confidentiality, non-disparagement, or no-rehire terms in certain settlement agreements 8

W ORKPLACE F AIRNESS A CT , C ONT . • Permits employers to void severance agreements for managers who violate harassment or discrimination policies • Requires employers to distribute a written non- discrimination policy with specific language to employees 9

W ORKPLACE F AIRNESS A CT , C ONT . Anti-discrimination policies must include: • A description of the process to report violations • A specific individual + an alternate to receive reports • Notice that employees have 5 years to pursue a claim • Notice that employees may not be required to enter into a non-disclosure or non-disparagement agreement, but an employee may request those terms (and has 7 days to revoke the request) • Advice to employees and employers on documenting alleged violations 10

P REGNANCY A CCOMMODATIONS • Requires reasonable accommodations for applicants and employees for pregnancy-related conditions • Employees can’t be forced to accept an accommodation if they don’t have a known limitation • Employees can’t be forced on leave if other reasonable accommodations are available • Posting and employee notice requirements 11

P REGNANCY A CCOMMODATIONS , C ONT . It’s your turn– what would you do? – The employee who can’t lift more than 15 lbs. – The employee who needs frequent breaks – The employee who needs time off for prenatal appointments – The employee who needs to express breast milk and never works a full day 12

P AID F AMILY L EAVE • Administered by the Oregon Employment Department • Up to 12 weeks of paid family leave for: – Child bonding – Employee or family member’s serious health condition – Safe leave due to domestic violence, stalking, sexual assault, or harassment 13

P AID F AMILY L EAVE , C ONT . Special considerations: • Small employers • Definition of “family member” • Employers who already have leave plans • OFLA vs. paid family leave • Calculation of wage replacement 14

N OTICE OF F EDERAL I NSPECTIONS • Employers must notify employees within 3 days after receiving notice of an upcoming federal inspection or I-9 audit • Notice = – Posting – Reasonable attempts to individually notify employees 15

P AY E QUITY F IX • “Safe harbor” defense expanded so long as (1) employer has done pay equity audit within the past 3 years, and (2) employer has made “reasonable and substantial progress” toward closing wage gaps • Okay to pay employees differently if someone is on light duty due to workers’ comp or another medical reason • “System” (as in merit or seniority system) defined 16

N ON -C OMPETES • Agreement is voidable unless employer provides signed, written copy of agreement within 30 days of termination • Applies to agreements entered into on or after January 1, 2020 17

M INIMUM W AGE • As of July 1, 2019: – Portland metro - $12.50/hour – Statewide - $11.25/hour – Non-urban - $11.00/hour • Numbers will keep going up on July 1 every year 18

Q UESTIONS ? Caroline Livett Attorney at Stoel Rives LLP (503) 294-9222 Caroline.Livett@stoel.com 19