New BOLI Rules for Calculating Payment of Minimum Wage

The first annual increase to Oregon’s minimum wage takes effect on Friday, July 1, 2016.  The rate of increases varies depending on geographic location.  The minimum wage in non-urban counties will increase to $9.50 per hour, while the minimum wage in the rest of the state increases to $9.75 per hour.

The Bureau of Labor and Industries (BOLI) recently issued administrative rules to guide employers on how to calculate wages of individuals who work in more than one geographic region in a given pay period.  http://www.oregon.gov/boli/Legal/docs/2016-MW/839-020_Final_Rule_Showing_Amendments.pdf

  1. Work performed at a permanent fixed business location. If an employee performs more than 50% of his or her work in a pay period at a fixed business location in Oregon, the minimum wage rate for the region where that business is located applies to all hours worked during that pay period.
  2. Delivery workers who begin and end at a fixed business location. If a delivery worker begins and ends his or her work at the employer’s fixed business location, he or she is paid the prevailing minimum wage rate for that location regardless of whether the employee makes deliveries to other geographic regions.
  3. Work performed other than at a fixed business location.  If an employee works in multiple geographic regions during a pay period and does not perform more than 50% of his or her work in a fixed business location, then the employer may (a) track (and maintain record of) the hours worked in each geographic region and pay the applicable minimum wage for each hour worked in each region, or (b) pay the highest applicable minimum wage rate for all hours worked during that pay period.

 

EEOC Issues Sample Notice for Employer Wellness Programs

There has been a lot of talk about how employers can run afoul of the ADA when collecting employee health information in connection with employer wellness programs.  Today, the EEOC issued a sample notice that: “will help employers who have wellness programs comply with their obligations under a recently issued Americans with Disabilities Act (ADA) rule.”  As explained by the EEOC, the recently issued ADA rule requires: “employers who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.”

The sample notice is here:

https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm

FAQs about use of the notice are here: https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-notice.cfm

The EEOC press release is here: https://www.eeoc.gov/eeoc/newsroom/release/6-16-16.cfm

 

BOLI issues Amended Final Rule for Minimum Wage Law

Oregon’s new minimum wage statute sets different wage rates for different regions.  The original Final Rule did not address wage rates for employees who work in more than one region.  Today, BOLI filed an Amendment to the Final Rule to clarify the applicable wage rate where an employee works in regions with different statutory minimum wage rates.

The Final Rule is here:  http://www.oregon.gov/boli/Legal/docs/2016-MW/839-020_Final_Rule_Showing_Amendments.pdf

“When Thunder Roars, go indoors!”

In anticipation of summer thunderstorms, OSHA and NOAA have issued a Fact Sheet on Lightning Safety when working Outdoors.  (In case you were curious, the slogan above comes from NOAA, who advises “that nowhere outside is safe when thunderstorms are in your area.”).

The Fact Sheet encourages employers to recognize lightning as an occupational hazard and put safety protocols in place for employees whose jobs involve working outdoors in open spaces, on or near tall objects, or near explosives or conductive materials (e.g., metal).  Suggested lightning safety best practices include: checking NOAA weather reports; seeking shelter in fully enclosed buildings or, if none accessible, in hard-topped metal vehicles with rolled up windows; avoiding use of “corded phones.”

The Fact Sheet is here: https://www.osha.gov/Publications/OSHA3863.pdf

Challenge to Oregon Sick Leave Law

Yesterday, the Oregonian reported that nine Oregon counties were planning to sue the Governor and BOLI Commissioner seeking to opt out of the State’s paid sick leave law.   The plaintiff counties will be Linn, Yamhill, Douglas, Jefferson, Malheur, Polk, Sherman, Morrow and Wallowa.  The counties plan to challenge the law because it is an unfunded mandate.  Presumably, the counties will argue that because the law requires the local governments to provide a paid sick leave to employees, but does not fund the cost to the counties of providing the paid sick leave, the law violates Measure 30, which requires the state government to pay local governments for the costs of state-mandated programs.  It is unclear what impact the challenge will have to private employers.  We will  follow developments and update this post as we learn more.

http://www.oregonlive.com/politics/index.ssf/2016/05/sick_leave_clash_nine_oregon_c.html#incart_river_home_pop

 

More Info about the DOL’s Final Rule

I have not yet read all 508 pages of the DOL’s Final Rule, but 100 pages in, here are two important points: (i) Employers will be permitted to count non-discretionary bonuses, incentives and commissions toward up to 10% of the required salary threshold as long as the bonuses, incentives and/or commissions are paid at least quarterly; and (ii) the $913 weekly salary number is based on Census numbers for the 40th percentile for full-time salaried workers in the South, which has the lowest weekly wage of all Census regions.

More posts as I digest pages 101-508.

 

 

The Revised DOL Overtime Rules are Out

This morning, the DOL issued the final rule governing exemptions from overtime.  As expected, the salary threshold for eligibility has increased – from $455 per week to $913 per week ($47,476 per year).   This increase is slightly lower than originally anticipated.  The final rule goes into effect on December 1, 2016, and includes automatic increases to the salary threshold every three years.  The  final rule does not change the duties test for exempt executive, administrative or professional employees.

Expect additional posts on the details of the final rule over the next few weeks.

The DOL announcement and link to the rule are here: https://www.dol.gov/featured/overtime

EEOC Guidance on Leave as a Reasonable Accommodation

In the last few years, the EEOC has emphasized that leave can be a reasonable accommodation under the ADA. In an effort to help employers and employees understand how the ADA operates to provide leave as a reasonable accommodation, the EEOC just issued a document that: “seeks to provide general information to employers and employees regarding when and how leave must be granted for reasons related to an employee’s disability in order to promote voluntary compliance with the ADA.”  The document has lots of helpful examples of common scenarios where this issue comes up, and addresses employer leave policies including return to work policies that require employees to be “100% healed” before returning to work.

The document is here: https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

 

Employers Cannot Require a “Positive Workplace”

If your employee handbook legislates that employees maintain a “positive attitude,” a recent NLRB decision might motivate you to make some revisions. The NLRA prohibits employers from maintaining workplace rules that would reasonably tend to chill employees in the exercise of their Section 7 rights (Section 7 gives employees the right to act together to try to improve pay and working conditions).  The law applies to rules that expressly prohibit protected activities and to rules that employees would reasonably construe to prohibit Section 7 activity.

A recent NLRB decision addressed an employer’s Workplace Conduct policy that included the following rule: “Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers and management.”

The NLRB found the requirements violated the NLRA because: “employees would reasonably understand the rule’s requirement that they communicate “in a manner that is conducive to effective working relationships” with coworkers and management as prohibiting disagreements or conflicts, including protected discussions, that the [employer] subjectively deems to not be conducive to ‘a positive work environment.’”

Fundamentally, the policy violated the NLRA because it suggested to employees that they were prohibited from engaging in contentious or controversial communications and discussions. As the NLRB explained: “Because labor disputes and union organizing efforts frequently involve controversy, criticism of the employer, arguments, and less-than-“positive” statements about terms and conditions of employment, employees reading the rule here would reasonably steer clear of a range of potentially controversial but protected communication in the workplace for fear of running afoul of the rule.”

The decision (which also addresses a number of other improper handbook provisions) is here: T-Mobile USA, Inc. Case No. 14-CA-106906. https://www.nlrb.gov/cases-decisions/board-decisions

 

EEOC Issues Fact Sheet on Bathroom Access for Transgender Employees

The EEOC has made very clear that it interprets Title VII’s prohibition on discrimination based on sex, to include discrimination based on gender identity and sexual orientation. This week, the EEOC issued a fact sheet clarifying the agency’s position on employer obligations with respect to bathroom access and made clear that “contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.”

The Fact Sheet is here:

https://www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm