Oregon Amends the Oregon Family Leave Act (OFLA)

In response to the COVID-19 pandemic, the Oregon Legislature amended OFLA reducing eligibility requirements and expanding its protections.

House Bill 2474 expands eligibility to all employees of a covered employer during a period of public health emergency, if the employee worked for the employer for at least 30 days prior to the date on which the family leave is to be begin and also worked for the covered employer an average of 25 or more hours per week. The amendments add that an eligible employee can now take leave to care for a child who requires home care due to school closure or child care as a result of a public health emergency. The amendments also make employees separated from their employment for any reason illegible to take leave if they are reemployed by the covered employer within 180 days after the separation and were the employee was otherwise eligible to take leave prior to being separated. Finally, the amendments replaced gendered language allowing a "female eligible employee" to take leave for pregnancy disability reason to "an eligible employee". These changes take effect on January 1, 2022.

Employers should review their employee policies and work with their counsel to update them consistent with the above amendments.

Employees Now Have a Rebuttable Presumption of Retaliation

Employees terminated within 60 days after complaining about health and safety issues in the workplace now have a rebuttable presumption of retaliation against their employer.

Signed by Governor Brown on June 15, 2021, Senate Bill (SB) 483 amends the Oregon Safe Employment Act (Act) increasing protections for whistleblowers of unsafe health or safety conditions. The Act already makes an unlawful employment practice for any person to bar or discharge or otherwise discriminate against any employee or prospective employee because the employee complained about health or safety issues in the workplace. Oregon Revised Statute 654.062. SB 483 amends the Act by creating a rebuttable presumption of discrimination or retaliation where the employer bars, retaliates, or discriminates against the employee or prospective employee within 60 days after the employee has complained about any violation of law, regulation, or standard pertaining to safety and health in the workplace. The amendments further clarify that an employer can rebut the presumption by demonstrating by a preponderance of the evidence that it did not retaliate or otherwise discriminate against the employee or prospective employee. The amendments took effect immediately.

Oregon Modifies its Noncompetition Law

Oregon amended its noncompetition statute making it harder for employers to perfect or enforce noncompetition agreements.

On May 21, 2021, Oregon amended its noncompetition statute, Oregon Revised Statute (ORS) 653.295 making it harder for employers to perfect and enforce noncompetition agreements. Senate Bill (SB) 169 changed the language in ORS 653.295 making noncompetition agreement "void" as opposed to "voidable" where the employer does not otherwise comply with the statute's requirements. This change is in direct opposition with prior case law interpreting that the "voidable" language in the statute meant that the noncompetition was enforceable, unless the employee took affirmative steps to void the agreement prior to the employer seeking to enforce it. SB 169 shortened the enforcement period from 18 months to a period of no more than 12 months.

Under the previous version of ORS 653.295, for a noncompetition agreement to be enforceable, the employee had to first be exempt as either an executive, professional, or administrative (White Collar) employee and receive a compensation above the median family income for a family or four, as determined by the U.S. Census Bureau. Under the amendments, an employee must still be an exempt White Collar employee. However, the minimum salary threshold was increased to $100,533, calculated on an annual basis at the time of the employee's termination. The amendments further provide that an employer may enforce a noncompetition agreement against an employee that does not meet the White Collar or salary requirements where the employer provides a written agreement and pays the employee the greater of 50% of the employees annualized gross salary or 50% of the statutory $100,533 amount during the period of the noncompetition, as adjusted annually for inflation.

SB 169 does not change the requirements for employers to provide written notice of the noncompetition agreement at least 14 days prior the employee's first day of work and to provide a signed written copy of the agreement within 30 days after termination of employment. Finally, the current version of ORS 653.295 or the amendments set out by SB 169 do not apply to other restrictive covenants, such as nondisclosure and nonsolicitation agreements. The amendments become effective on January 1, 2022.

This is a good time to start looking ahead and work with legal counsel to update your noncompetition agreements and policies to ensure compliance with the changes made by SB 169.