New Overtime Rules will Reclassify Many Exempt Employees

Yesterday, the DOL and President Obama announced sweeping changes to the FLSA exemptions from overtime.  Generally, under current law, an employee may be exempt from overtime if the employee meets the duties test for the administrative or executive exemption and makes a salary of at least $455 per week ($23,660 annually).  The proposed rule would increase the minimum salary for exemptions to $970 per week ($50,440 annually).  That means that employees who earn less than $970 per week, regardless of their duties, will be entitled to overtime if they work more than 40 hours per week. It also means that, in anticipation of the final issuance of the new DOL regulations (expected in 2016), employers need to take a close look at how their management/supervisory employees are currently classified and make some preliminary decisions to re-classify exempt employees as non-exempt.

We will continue to follow developments of the new rules.

FAQs are here: http://www.dol.gov/whd/overtime/NPRM2015/faq.htm#9

DOL fact sheet is here: http://www.dol.gov/whd/overtime/NPRM2015/factsheet.htm

Updated Pregnancy Discrimination Guidance from the EEOC

As a result of the Supreme Court’s decision in Young v. UPS, the EEOC has issued updated guidelines on the Pregnancy discrimination Act and ADA as those laws apply to pregnant workers.

The updated guidelines are here: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

The Supreme Court’s decision in Young v. UPS is here: http://www.supremecourt.gov/opinions/14pdf/12-1226_k5fl.pdf

Governor Signs Oregon “Ban the Box” Law

This morning, Governor Kate Brown signed House Bill 3025, which makes it an unlawful employment practice to require job applicants: to disclose criminal convictions on employment applications; to exclude an applicant from an initial interview solely because of a past criminal conviction; or to require disclosure of past criminal convictions prior to an initial interview, or if no interview is conducted, to require an applicant to disclose a criminal conviction prior to a conditional offer of employment.  Employers may still consider criminal convictions when making hiring decisions (as opposed to during earlier stages of the hiring process).  Further, employers in certain regulated industries or where required by law, may still consider criminal convictions during the application process.

BOLI is charged with enforcement of the new law.

https://olis.leg.state.or.us/liz/2015R1/Measures/Overview/HB3025?pubDate=2015-06-26-09-42

Oregon Passes State-Wide Sick Leave Law

On June 22, 2015, the Governor signed Senate Bill 454 which requires private employers in Oregon to provide paid sick leave to employees.  The law goes into effect on January 1, 2016.   Generally, employers outside the City of Portland with 10 or more employees will have to provide up to 40 hours of paid sick leave per year.  Employers within the City of Portland will have to comply with the City of Portland Paid Sick Time Ordinance (the “Ordinance”).  Statewide employers with fewer than 10 employees will be required to provide up to 40 hours of unpaid sick leave (just like employers with 6 or fewer employees under the Ordinance).  Use, accrual and carry over will mirror the Ordinance.  We will provide more details on the new law shortly.

CA Labor Commissioner Uber Ruling a Reminder to Evaluate Independent Contractor Status

The California Labor Commissioner has ruled that an Uber driver is an employee, not an independent contractor, despite the driver’s signing an independent contractor agreement.  (Click here to read the ruling.)  Like Oregon, California law employs a multi-factor test to determine whether a worker is properly classified as an independent contractor — even if the worker agrees he or she is an independent contractor.  Uber plans to appeal the ruling.  In the interim, the ruling is a reminder to businesses to ensure that their workers are properly classified.  Indeed, local attention to the California ruling (article available here) could signal increased focus on Oregon businesses.

Oregon “Ban the Box” Law Passes Senate

House Bill 3025, which prohibits employers from asking job applicants about their criminal history, has passed the Oregon Senate and is now with the House.  The current version of the bill places enforcement for violations of the law with BOLI (applicants will not have a right to sue a prospective employer for violating the law) and exempts certain employers who are required to  consider criminal history when hiring. The bill is here: https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/HB3025/A-Engrossed

Coverage from the Oregonian is here: http://www.oregonlive.com/politics/index.ssf/2015/06/oregon_senate_approves_amended.html#incart_river

Proving Hours Worked for Oregon Wage Claims

Ever wonder what happens when BOLI seeks to collect unpaid wages for an employee but the employer does not have records of how many hours the employee actually worked? A recent BOLI Final Order is a reminder of how the number of hours worked is determined when an employer does not have accurate records (or in this case, any records at all).

By law, employers are obligated to maintain accurate records of time worked by their employees.  When an employer does not maintain accurate records, a court may rely on evidence from which a “just and reasonable inference may be drawn” including credible testimony from the employee as to the amount of hours worked, and credible testimony from co-workers or other people familiar with the hours worked by the employee.  In the Matter of Autoteam, LLC, et al. (internal citations omitted).   In Autoteam, the wage claim was dismissed because the claimant did not appear to testify at the hearing on his wage claim, and no other credible witnesses testified about the hours he worked.  In the absence of such testimony, because the wage claimant bears the burden of proving that they performed work for which they were not properly compensated, BOLI was not able establish how many hours the employee worked (or whether the amount the employee was paid adequately compensated the employee for such hours).

Bottom line: keep accurate records of employee hours and wages paid to employees for all work performed.  And, from a practical standpoint, if your records are incomplete or inaccurate and an employee brings a claim for unpaid wages, make sure you have credible witnesses to establish when the employee worked and what they were paid, or hope the employee and their witnesses fail to show up at the hearing).

http://www.oregon.gov/boli/Legal/BOLI%20Final%20Orders%20issued%20in%202015/Auto_Team%20LLC_01-15.pdf

Low-Wage Workers and Paid Leave

The DOL Blog has some interesting information from a Bureau of Labor Statistics article about leave benefits for private employees with different income levels.  According to the article, “less than two-thirds (61 percent) of workers in the private sector have access to paid sick leave [and] an even lower proportion (only 30 percent) of workers among the lowest paid 25 percent have access to paid sick leave.”  More information can be found here: https://blog.dol.gov/2015/06/08/lack-of-paid-leave-compounds-challenges-for-low-wage-workers/

And here: http://www.bls.gov/spotlight/2015/a-look-at-pay-at-the-top-the-bottom-and-in-between/home.htm