Forums For Adjudicating Employment Disputes
Employment-related claims can be asserted in state or federal courts or administrative agencies, including the Oregon Bureau of Labor and Industries (BOLI) and federal Equal Employment Opportunity Commission (EEOC). Certain claims based on federal law must first be filed with the EEOC before they can be filed in court. A person is not required to file a complaint with BOLI before filing a state law civil lawsuit.
Employees and employers may agree to have employment disputes adjudicated in private arbitration but Oregon has statutory and formal requirements that must be followed to do so. Also based upon Oregon case law, there is also an argument that the Oregon statue may be pre-empted by the Federal Arbitration Act – so counsel should be consulted.
The Main Sources Of Employment Law
The main sources of employment law are federal and Oregon state statutes, regulations, agency interpretations, and judicial interpretations. State employment statutes include ORS 659A. (which includes most employment discrimination laws), the Oregon’s minimum wage and overtime law, workers compensation statutes, various leave laws, and whistleblower protection laws.
Additional restrictions on employment conditions can be created by agreement between employers and employees, or by collective bargaining agreements between labor unions and employers. Employee handbooks can also sometimes create binding agreements between employers and employees.
National Law And Employees Working For Foreign Companies
Federal and Oregon state law will typically apply to employees who work in Oregon, regardless of the employer or employee’s nationality.
National Law And Employees Of National Companies Working In Another Jurisdiction
Federal law applies to most employees working in the United States and, in some circumstances, to employees outside of the United States for United States-based companies or government agencies. Oregon law may also apply to employees working elsewhere for Oregon-based companies depending on the circumstances – and in certain instances the employee can be protected by both Oregon and the law of the state in which they work.
Oregon employers may monitor employees with cameras or videos in public work areas. Employers may also monitor an employee's work computer and email. It is best practice to inform employees of workplace monitoring in advance, and may be a mandatory subject of bargaining if the workforce is unionized/represented.
Oregon law prohibits recording of private communications without the prior consent of the employee, with limited exceptions for telephone conversations. Likewise, employers cannot request or require that an employee or job applicant grant them access to social media accounts.
Legal Requirements As To The Form Of Agreement
There is no other legal formal requirements for an employment agreement than common-law contract principles, including offer, acceptance and consideration. However, certain employment terms, such as a post-employment covenant not to compete, may be subject to Oregon statutory requirements that it be in a written agreement as well as other requirements addressed at “Restricting Future Activities” below.
Absent an agreement that states otherwise, employment in Oregon is “at-will,” which means that either party may end the employment relationship at any time, for any reason (so long as the reason is not prohibited by law), with or without cause or notice.
Employers are not required to provide employees with a trial or probationary period, although they may do so.
Hours Of Work
Generally, hours of work are not regulated. There are laws, however, that restrict the number of hours and times that minors may work. Also, employees who work more than 40 hours in a week must be paid overtime unless they are exempt. Oregon’s exempt tests may slightly differ from federal law as well. Exemptions are set forth in ORS 653.020 and OAR 839-020-0005.
Maximum hours of work in certain industries are also regulated by federal and Oregon law. For example, employees in “manufacturing” (which is broadly defined) may not be required to work more than 55 hours per week or 13 hours in a single day, and are entitled to overtime for any hours worked in excess of 10 per day. ORS 652.020.
Oregon's minimum wage depends on the location of the employee, with special rules for employees who may work in multiple areas due to travel for their job. As of July 1, 2020, the standard minimum wage is $12.00 an hour, $13.25 for the Portland metropolitan area, and for "nonurban counties" $11.50 an hour. Minimum wages increase on July 1 each year. A table with the full information about the various minimum wages and locations is published by BOLI.
Oregon requires an employer to provide eligible veterans with paid or unpaid time off for Veterans Day. Otherwise, there is no legal requirement for employees to receive or take holidays or vacations. Many employers choose to provide full time employees with a certain number of unpaid personal days or vacation days per year by agreement. The number of personal days or vacation days available to an employee commonly increases with the number of years of employment.
Under Oregon law, rest and meal breaks are mandatory for most employees, unless they are exempt. The time and duration of these breaks depend on the working time of the employee.
There are very limited exceptions to the meal break requirement, including a hardship exception that requires specific documentation.
Children under 14 are generally prohibited from employment. Employers who employ minors must follow Oregon’s child labor laws, in addition to other employment laws. Those seeking to employ minors must apply for an Annual Employment Certificate from the state. Employers must also verify the age of each minor hired from an appropriate proof-of-age document, maintain a list of all minors employed, and comply with all federal and state child-labor laws.
There are no maximum age limits and employers may not discriminate against employees who are over 18 years of age.
Numerous federal and Oregon laws pertain to ill and injured workers, including the Family and Medical Leave Act of 1993 (“FMLA”), Oregon Family Leave Act of 1995 (“OFLA”), Americans with Disabilities Act of 1990 (“ADA”), Oregon’s “mini ADA,” state and federal anti-discrimination laws, and workers’ compensation laws.
Oregon law also mandates that employees receive job-protected sick leave. Employers within the City of Portland with six or more employees must provide the sick leave as a paid benefit; Portland employers with fewer than six employees can provide the leave as an unpaid benefit. For Oregon employers outside the City of Portland, ten is the threshold to provide sick leave as a paid benefit.
Some parties are not covered by Oregon's sick leave law. The federal government is exempt. Independent contractors, railroad workers, individuals employed by a family member, participants in work-training programs, and participants in work-study programs are not eligible for sick leave under the law.
Covered employers are required to provide one hour of sick time for every 30 hours worked (or one and one-third hours for every 40 hours worked). Accrual must begin on the first day of employment, but employees are not eligible to use accrued sick time until the 91st day of employment unless the employer allows leave to be used earlier. Once the employee is eligible to use accrued leave, he or she must be permitted to take sick leave in hourly increments as it accrues. Employees must be permitted to accrue at least 40 hours of sick time per year. Employees must also be permitted to roll over at least 40 hours of accrued but unused sick time from year to year. Employers may limit accrual to 80 hours total or may cap usage at 40 hours per year. If the leave is paid, it must be paid at the employee's regular rate.
Sick time must be allowed for at least the designated purposes.
The law contains notice requirements and guidelines for requesting medical documentation and verification. It is enforced by BOLI and there is a private right of action for violations of the law.
An employer is required to allow employees to use accrued paid sick leave while on OFLA leave, even if the employer's policy would not otherwise allow them to do so. An employer must also allow employees to use this leave to engage in religious observance or practices unless the leave is restricted in the manner in which it may be used or use of the leave will create an undue hardship on the employer.
Location Of Work/Mobility
Oregon law requires employers to pay employees for travel time between work locations in certain circumstances. This requirement is set forth in the law and may not be changed, waived or eliminated by private agreement.
Oregon law does not require a pension plan. The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for retirement and health benefit plans in private employment. ERISA does not require the employer to establish a plan. If an employer chooses to establish a plan, however, ERISA requires the plan to meet certain minimum standards such as regularly providing participants with information about the plan, setting minimum standards for participation, vesting, benefit accrual and funding, and requiring accountability of plan fiduciaries.
Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
Pregnancy discrimination is prohibited by statute in Oregon. The federal (FMLA) and Oregon (OFLA) family and medical leave laws provide up to 12 weeks of unpaid parental leave for certain eligible employees. Parental leave includes the birth of a child and may also be taken to care for a newly adopted child or when a foster child is placed with the employee. Oregon law provides an additional 12 weeks of unpaid leave if there is a pregnancy-related disability and an additional 12 weeks for sick child leave.
Parental leave must generally be taken as one continuous block of time and must be completed within one year after the birth, adoption, or placement of the child. Intermittent leave or reduced schedules must be permitted as necessary for pregnancy disability or prenatal care. Often, but not always FMLA and OFLA leave will apply concurrently, but the OFLA provides additional circumstances where leave may be used that may exceed the FMLA and therefore cannot count toward the same 12week entitlement.
Pregnant employees are also entitled to reasonable workplace accommodations that would not pose an undue burden on the business, f.e. longer, or additional rest breaks.,.
For a period of up to eighteen months after childbirth, employers must provide lactating employees with reasonable break times and a suitable room to express breast milk for a nursing child.
The parties are free to agree upon terms, but some provisions may not be enforceable as a matter of public policy. If a statute or regulation requires a particular term or condition of employment, the parties may not agree to a less favorable term or condition.
Types Of Agreement
Employment in Oregon is “at-will” employment unless the employer and employee agree otherwise. “At-will” employment means that the employee is employed for an indefinite period of time and that the employer or employee may terminate the employment relationship at any time with or without cause and without prior notice, subject to any statutory limitations on termination (for example, it must not be discriminatory, retaliatory or in violation of any whistleblower laws). An employer and employee may enter into an oral or written employment agreement. Employment agreements may, under certain circumstances, be implied by actions an employer takes or by policies or written promises that employer makes in offer letters, a policy manual or employee handbook.
Written or oral employment agreements can cover a variety of subjects including length of employment, signing bonuses, and bonus structure. Typically, such agreements are used for high-level executives. If the workplace is unionized, a collective bargaining agreement may also address cover certain workplace issues.
Oregon has adopted the Uniform Trade Secrets Act, which many states have adopted. Under Oregon’s trade-secret statutes, employees must keep an employer’s trade secrets confidential during and after employment. In addition, employers and employees may enter into express agreements that create broader confidentiality obligations on employees.
An employer may not require an employee, as a condition of employment or afterwards unless the employee expressly requests it, to sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault in the workplace.
Ownership of Inventions/Other Intellectual Property (IP) Rights
In the absence of a written agreement between the parties, ownership of IP rights is determined by federal law. Generally, an employer owns work created by an employee during employment or with information or “know how” belonging to an employer.
Oregon “ban the box” law prohibits employers from obtaining information about a job applicant's criminal records until after the employer determines the applicant meets the minimum qualifications for the position. The law also prohibits employers from advertising openings that exclude people with criminal records from applying.
Employers may not discriminate against employees or applicants based on national origin. However, federal law requires employers to verify that employees are eligible to work in the United States, which includes completing the Employment Eligibility Verification Form (I-9). Employers are subject to penalties for employing people who are not authorized to work in the United States.
Hiring Specified Categories Of Individuals
Federal and Oregon state discrimination laws prohibit an employer from discriminating against individuals based on a legally protected characteristic, including disability, race, color, creed, national origin, sex, marital status, age, sexual orientation, gender identity or expression, veteran or military status, whistleblower status, or protected genetic information. Entities that contract with the federal government may be required to have affirmative action programs. There are restrictions on the types of work that minors can be required to undertake.
Outsourcing And/Or Sub-Contracting
Like most states, and under most federal laws, Oregon has special rules for when someone may qualify as an independent contractor or consultant, otherwise they will be considered an employee and entitled to all rights and privileges (and associated taxation) by default.
Oregon also requires special licensure/registration for: farm/forest labor contractors, construction labor contractors, and property services/janitorial contractors. It also has statutory restrictions on “employment agency” activities.