No Questions Asked: Oregon’s Equal Pay Act

Oregon’s Equal Pay Act Prohibits Questions About Salary

On May 22, 2017, the House unanimously re-passed House Bill 2005. The legislation, which is more commonly known as the Equal Pay Act of 2017, was amended by the Senate last week, and is now headed to Governor Brown for her signature.

While the majority of the media attention has been on the provisions in the bill that will prohibit discrimination against women in the payment of wages, there are other provisions affecting employment practices that employers should be aware of.

Under the new legislation, it will be a prohibited practice for an employer to screen a job applicant based on the applicant’s current or past compensation. Other than for internal hires, it will also be a prohibited practice to determine compensation for a position based on current or past compensation of a prospective employee. Additionally, a prospective employer may not seek an applicant’s salary history information from the applicant or from the applicant’s current or former employer, unless the prospective employer has made an offer of employment, with an amount of compensation included, to the prospective employee.

If an employer were to screen a job applicant, determine compensation, or seek out salary information in violation of the Act, they could face a lawsuit to recover up to two years of back pay, court costs, attorney fees, and other damages.

If Governor Brown signs the bill into law, as she is expected to do, the screening and compensation provisions will become effective January 1, 2019. The prohibition on seeking information on an applicant’s salary history will become effective 91 days after the Legislature adjourns.

“Not So Fast” – Federal Judge Grants Injunction Against Overtime Regulation

Rule Expanding Overtime Halted by Federal Judge

On Tuesday, November 22, a Federal District Court Judge in Texas granted a nationwide preliminary injunction against an Obama administration regulation, which sought to expand the eligibility of millions of workers for overtime pay.

The regulation was ruled by Judge Mazzat to have likely exceeded the authority of the Obama administration because it nearly doubled the overtime salary threshold. The regulation would raise the minimum annual salary amount from $23,660 to $47,476. It would automatically qualify workers for overtime pay, so long as their annual salary was below the new $47,476 threshold.

Twenty-one states and over fifty business organizations have backed the request for an injunction to delay the regulation’s effective date of December 1, 2016, until the judge could make a final ruling based on the merits.

Small business owners and business organizations applauded the decision, arguing that the regulation would substantially burden business owners with increased labor costs. The Labor Department and worker advocacy groups argue that by blocking the regulation, workers who already put in 40 hours a week will continue to work longer hours for unfair pay.

Many employers have been making plans for the effective date of the new regulations, which is now just eight days away. Employers may have already notified employees about their new pay arrangements. Should employers reverse those salary decisions and postpone their implementation? There are many unknowns at play, not the least of which is that the Trump administration will take over responsibility for this litigation in January 2017. Might a Trump administration concede this case, and let an injunction remain in place?  That is a possibility. Might the new administration have the Department of Labor issue new regulations extending the date for implementation of the new salary/overtime rules? That’s also possible. One other possibility is an appeal and a higher court vacating the injunction. In that case, could the December 1, 2016 effective date be made enforceable retroactively?

Each employer must make a business decision about what is appropriate for their workforce, and determine how much risk (given the uncertainty) they are willing to accept. One important point for employers – adjustments to compensation terms can be made prospectively, but it is dangerous for an employer to retroactively modify an employee’s compensation, particularly if the modification is to reduce pay. An employer and employee have a contractual relationship, with many applicable state and federal regulations. Employers should be cautious about any course of action that could be seen as a breach of the employment contract, or a violation of state or federal laws.

For more information, read this article from Bloomberg.

No Sharing: Defend Trade Secrets Act (DTSA)

Employers should be sure that they are in compliance with the DTSA

On May 11, 2016, President Obama signed the popular Defend Trade Secrets Act (DTSA), which gives employers a federal cause of action for trade secret misappropriation. One of the key features is that the DTSA allows employers to obtain equitable remedies, actual damages, punitive damages, and attorney’s fees as well as remedies available under state law.

There are a few circumstances where an employee or contractor is immune from prosecution for sharing trade secrets: (1) when disclosing to the government or government attorneys solely for the purpose of reporting or investigated a suspected violation of law; (2) when disclosing to a personal attorney in connection with a retaliation lawsuit for reporting a suspected violation of law; and (3) when disclosing in any complaint or other document filed in a lawsuit, as long as its filed under seal.

The DTSA requires employers to provide notice of these immunities in any agreement with an employee or contractor related to trade secrets or other confidential information. If the employer does not provide this notice, their available damages will be reduced. They will not be entitled to punitive damages or attorney fees, which limits the effectiveness of the agreement.

The good news? This only applies to agreements entered into on or after May 11, 2016. Agreements entered into before then do not have to include the notice provisions. But looking forward, employers should contact their legal counsel to make sure that any agreements they enter into will comply with the DTSA.

Piece-Rate Workers Entitled to Rest Period Pay

A major change has taken place for piece-rate workers in Washington. The Washington Supreme Court decided in March of 2015 that piece-rate workers are entitled to receive wages during their rest periods. Not only are piece-rate workers entitled to rest period pay, they must receive the greater of either their regular rate of pay or minimum wage. Moving forward, agricultural employers who employ piece-rate workers may need to change their practices to comply with the holding of the case.

Pursuant to these new rules, agricultural employers must provide workers with a full, uninterrupted 10-minute break in each four-hour period of work. In addition, employers must pay piece-rate workers separate compensation for their rest period, and the separate payments must be based on the regular rate of pay or minimum wage, whichever is greater. To compute the regular rate, the employer must divide the total compensation earned in a workweek by the total active hours of work (not including the break time). Then, the employer must use the greater of their regular rate of pay or minimum wage, and multiply it by the amount of time the worker spends on rest periods. This amount should be added to the piece-rate workers weekly pay. For more information on compliance, the Washington Department of Labor and Industries has issued a helpful Administrative Policy.

If you still have questions, please contact the attorneys at Samuels Yoelin Kantor, LLP. We provide employers with advice and representation for a wide variety of legal issues. Our attorneys practicing employment law advise employers on how to avoid problems. We represent employers in State and Federal court, as well as in administrative proceedings with the Equal Employment Opportunity Commission, the Civil Rights Division of the Oregon Department of Justice, and the Oregon State Wage and Hour Division.

Sick Time Ordinance Goes Into Effect

As of January 1, 2014 employers in the City of Portland are required to provide sick-time for their employees. Employers with 6 or more employees are required to provide 1 hour of paid sick leave for every 30 hours an employee works. Employees with 6 or fewer people are required to provide the same amount of unpaid sick leave. Some confusion regarding the new ordinance surrounds whether an employer is located inside Portland city limits. For example, construction, delivery, and other businesses may have headquarters located outside of city limits, but have employees working within city limits. Employees are covered for the hours they spend working inside city limits, regardless of where the employer is located. The City of Portland’s website (http://portlandoregon.gov/sicktime) has an extensive list of FAQs, as well as other resources for employers and employees regarding the ordinance. Employers may also find it helpful to sit down with their attorney to determine whether their sick leave policy is compliant with the new ordinance.

Employers Must Provide Notice on Health Insurance Marketplace by October 1, 2013

The Patient Protection and Affordable Care Act (“PPACA” sometimes referred to as Obamacare) creates a number of new requirements for employers. Recently, the Internal Revenue Service and Department of Labor announced that some of these requirements will be delayed until 2014 or 2015 to give employers, and the government, more time to ensure a smooth transition.

However, one requirement that has not been delayed until next year is the requirement that all employers subject to the Fair Labor Standards Act give notice to employees about the new Health Insurance Marketplace. The Marketplace is a government-run website that gives individuals and employees of small business the ability to find and compare private health insurance options. Under the PPACA, applicable employers must, by October 1, 2013, provide written notice to employees of the following:

  • The existence of the Marketplace, including a description of the services provided and how to access those services;
  • The eligibility of the employee for a premium tax credit if the employee purchases a qualified plan through the Marketplace; and
  • Notice that the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer if the employee purchases a qualified health plan through the Marketplace.

The notices must be provided to all employees, regardless of whether they are full or part-time or if they’re currently covered by the employer’s health care policy. Employees hired after October 1, 2013 must be given the notice within 14 days of the employee’s start date.

The Department of Labor has two model notices available on its website at www.dol.gov/ebsa/healthreform, one for employers without a health plan and one for employers with a health plan. Note that the model notices are not state specific and some employers may want to alter the notice to give employees more comprehensive information. More information on the notices is provided by the Department of Labor in Technical Release No. 2013-02, provided at http://www.dol.gov/ebsa/newsroom/tr13-02.html.

The employment and tax lawyers at Samuels Yoelin Kantor LLP are available to provide counseling and answers on PPACA-related questions.
 

Indefinite Delay: Court of Appeals Enjoins NLRB’s Poster Rule

Employers preparing for the upcoming April 30, 2012 implementation date of the National Labor Relations Board’s (NLRB) poster display rule can put down the thumbtacks and tape – at least for a little while longer.

In light of conflicting district court decisions and pending appeals as to whether the NLRB has authority to order this mandatory poster rule, on April 17, 2012 the Washington D.C. Circuit Court of Appeals issued a temporary injunction against the agency. This means that employers will not be required to hang the poster until the question of NLRB authority is settled. Oral arguments for the case are scheduled to begin September 2012.

See this blog’s October 3, October 12, 2011 and January 18, 2012 posts for a full chronology of the NLRB poster requirements and deadline extensions.
 

Another Delay: April 30, 2012 is New Deadline for NLRA Poster

This blog reported on the National Labor Relations Board’s (NLRB) latest notice-posting requirement for employers falling under its jurisdiction (see our October 3 and October 12, 2011 posts). Once again, the NLRB has extended the deadline to hang the mandatory and controversial 11-by-17 inch poster. The original deadline was November 14, 2011, then extended to January 31, 2012, and now extended to April 30, 2012.
Why the extensions?

The NLRB reported that its first deadline extension was to grant confused employers more time to determine whether they were required to hang the poster.

Now, this second extension comes on the heels of a Washington D.C. federal judge’s request that the NLRB postpone the rule’s effective date pending current legal challenges to the Board’s authority regarding the rule. In addition to the Washington lawsuit (consolidated from originally two suits filed by various trade and labor organizations), the US Chamber of Commerce and South Carolina Chamber of Commerce also filed lawsuits in the US District Court of South Carolina challenging the notification rule.

Pending a court ruling on the matter, employers are expected to comply with the current rule. Contact SYK attorneysTim Resch or Steve Seymour for help with this or other employment and labor questions.
 

Update: NLRB Extends New Poster Deadline to January 31, 2012

Citing an influx of questions from businesses and trade organizations, the NLRB has extended the deadline to hang the mandatory new 11-by-17 inch poster by a few months. This extension gives employers more time to clarify whether they fall under the NLRB’s jurisdiction. No other changes were made as to which employers must display the new poster and where to display it in the workplace.

See this blog’s previous October 3, 2011 post (Employers Must Display New NLRA Poster . . .) for more information. SYK attorneys Steve Seymour or Tim Resch can help with labor, employment, or human resource questions for both employers and employees.

Employers Must Display New NLRA Poster by November 14, 2011

Following a recent ruling by the National Labor Relations Board (NLRB), most private sector employers must display a new official poster notifying employees of their rights under the National Labor Relations Act (NLRA). An employer’s knowing and willful failure to display the new poster may be considered evidence of an unlawful motive if the employer is later accused of other NLRA violations.

Here are highlights of the new requirements:

Which employers must hang the new poster?
All private sector employers within the NLRB’s jurisdiction must hang the new poster. The NLRA rights apply, and the new poster must be hung, in both union and non-union workplaces, as well as both for-profit and non-profit organizations.

Certain agricultural, railroad and airline employers are not within the jurisdiction of the NLRB and do not have to hang the new poster. Likewise, certain very small businesses are exempt from the NLRB and do not have to hang the new poster. The rules governing which small businesses qualify for this exemption can be complex. Generally, the NLRB categorizes small businesses into “retail” and “non-retail” businesses. “Retail” businesses (including home construction) with less than $500,000 in gross annual volume of business are exempt and do not have to hang the poster. “Non-retail” businesses with either a gross annual “inflow” (goods or services purchased from out of state) or “outflow” (goods sold or services provided out of state) of less than $50,000 are exempt. Some specific categories of businesses (such as nursing homes, private schools, day care centers, office buildings, libraries and museums) have different annual gross revenue requirements for NLRB exemption. A labor and employment attorney can help clarify your status if you are unsure whether your business is exempt.

Where to get the new poster:
You can purchase the poster from a commercial supplier, request free copies from any NLRB regional office, or simply download it from the NLRB’s website and print it yourself. Since the poster must be at least 11-by-17 inches in size, you can download either an 11-by-17 version or a two-page, 8.5-by-11 version and tape the two pages together. Click here to download either version: https://www.nlrb.gov/poster

If more than 20% of the organization’s employees are not proficient in English and speak another language, the employer must post both the English language poster and a version in that other language (obtainable on request from an NLRB regional office).

Where to display the new poster:
The poster should be hung in a “conspicuous” place in each business premises, such as where other company notices and workplace rights information are customarily posted. If the workplace typically puts such notices and rules on an internet or intranet site, the poster should be added to that electronic site (as well as physically hung in a conspicuous place). If employees work at sites away from the main business premises, the poster should be hung in those locations as well.

Contact SYK attorneys Steve Seymour orTim Resch with any questions about the new NLRA poster, as well as any general labor, employment, or human resources questions.