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Legislative update!

    March 4, 2020

    Oregon State Council - SHRM Legislative Report – January 2020

    Randall Sutton – Saalfeld Griggs PC


    New Proposed Bill re: Noncompete Agreements for 2020 Session 

    Noncompete would be unenforceable unless minimum salary of $97,631 (currently about $90,748)

    Maximum duration of noncompete to be 6 months (rather than 18 months)

    Would not impact non-solicitation agreements

    • Effective 1/1/20 - Signed noncompete agreement must be presented to employee 30 days after termination to be enforceable. Termination checklists should be updated to hand a copy of signed agreement to employee at exit interview.


    New DOL Rule re: effect of fringe benefits on calculating OT Regular Rate. The Final Rule clarifies that the following don’t need to be included in the Regular Rate OT calculation: o the cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;

    • payments for unused paid leave, including paid sick leave or paid time off;
    • payments of certain penalties required under state and local scheduling laws;
    • reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred "solely" for the employer's benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se "reasonable payments";
    • certain sign-on bonuses and certain longevity bonuses;
    • the cost of office coffee and snacks to employees as gifts;
    • discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples and;
    • contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.


    California Development - AB 5 & Dynamex - California law really shakes up the ability for organizations to retain independent contractors to perform services on the organization’s behalf. There are many exceptions and nuances, but the coverage is very broad. For most jobs, the law imposes an “ABC” test of independent contractor status, where all three factors must be satisfied:


    • The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.


    • The person performs work that is outside the usual course of the hiring entity’s business.


    • The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.


    New Oregon Laws Effective January 1, 2020 –


    • Pregnancy Accommodations - Employees entitled to reasonable accommodations for pregnancy-related conditions. In addition to OFLA/FMLA, reasonable accommodations may include modification of equipment or workstations, assistance with manual labor, more frequent or longer breaks, and modification of work schedules or job assignments. Employers cannot require pregnant employees to take family medical leave if they can reasonably accommodate the employee’s limitations.
    • Nursing Mothers - Employees who are entitled to protections to express milk at work may do so “as needed.” Time spent expressing milk beyond paid rest breaks may take unpaid time
    • Pay Equity – New definition for “System” to address bona fide pay disparities.
      • New Definition: “A consistent and verifiable method in use at the time that a violation is alleged.”
      • Old Definition: A devised coherent, consistent, verifiable and reasonable method that was in use at the time of the alleged violation to identify, measure and apply appropriate variables in an orderly, logical and effective manner.” (emphasis shows factors retained in the new definition)


    New Oregon Laws Effective October 1, 2020 –


    • Statute of Limitations - The statute of limitations for discrimination and harassment claims is now five years, not one. This is a huge change and will greatly expand the number of discrimination claims against employers. It may also impact employers’ retention policies.
    • Workplace Fairness Act Notice - Must be provided at hire, in handbook, and if a complaint is made. Notice must include:
      • Process for reporting discrimination, sexual assault and harassment
      • Identify individual to receive reports and alternate
      • Reference 5-year statute of limitations
      • Explain limitations on NDAs
      • Explain right to request severance agreement & rules re: revocation of agreement
      • Advise employees and managers to document incidents of unlawful discrimination, sexual assault and harassment
    • Agreements with Employees - Confidentiality, nondisparagement, & no-rehire provisions in agreement re: discrimination/ harassment are prohibited, unless requested by employee