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6 new Oregon business laws take effect 2010

December 1, 2009

New Laws Add to Employer’s Challenges in the New Year
By Dunn, Carney, Allen, Higgins & Tongue

In January 2010, Oregon employers will be taking on several new challenges thanks to a host of new or expanded laws enacted by the Oregon Legislature.  Dunn Carney’s Employment & Labor Team is committed to helping its clients and friends understand the new obligations and ensure the transition to compliance with these new requirements is a smooth one…“The Big Six” are all effective January 1, 2010, unless otherwise noted below.

Private-Employee Whistleblower Protection

In January, the scope of protection given to Oregon’s whistleblowers who work for private sector employers will expand dramatically.  Under the new law, private employers cannot discriminate or retaliate against an employee who has “in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation,” regardless of the severity or importance of the alleged violation. 

In contrast, the scope of protection previously provided was much narrower, and applied only to good faith reports of criminal activity, filing a complaint, cooperating with law enforcement conducting a criminal investigation, bringing a civil proceeding against the employer, or testifying in a civil or criminal proceeding or in a legislative setting.  The challenges for employers will be in identifying what could fall within the new, broad definition of whistleblowing, and remembering to evaluate whether this protection applies before taking adverse action against an employee.

Religious Accommodation

The Oregon Workplace Religious Freedom Act will change the religious accommodations employers are required to make for their employees.  The Act redefines “reasonable accommodation” in a manner more consistent with regulations under the Americans With Disabilities Act (ADA).  Previously, an employer need only prove a de minimis or minuscule burden in order to claim undue hardship and avoid the duty to accommodate.  Starting in January, in order to reject an accommodation, an employer must show it will result in significant cost and expense or be detrimental to the health and safety of others.  Moreover, the Act clarifies that employers must accommodate the scheduling of leave time for religious observance and/or the wearing of religious apparel in the workplace, unless such practices would pose an undue hardship.  The changes in this area are significant and will require revisiting discrimination policies and ensuring supervisors are aware of the new accommodation obligations related to employee’s religious beliefs and practices.

Disability Discrimination Law

The new Oregon Disability Discrimination law seeks to bring Oregon law in line with the ADA’s Amendments Act of 2009 by broadening the definition of “disability.”  A person will still be required to show: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) that the person is regarded as having such an impairment to be a qualified individual with a disability.  The difference is that these terms will have far broader meaning under the new law and many of the grounds for determining that an employee is not covered by the Act have been discarded.  For example, employees with a condition that is episodic or in remission will be considered covered by the Act, even if the condition is not active, so long as, when active, it limits a major life activity.  Also, the ameliorative effects of “mitigating measures”, such as medication, prosthetics, hearing aids and other devices, can no longer be taken into effect when evaluating the severity of an impairment as part of the coverage inquiry.  The only exception to the new rule on disregard of mitigating measures is for ordinary eyeglasses and contacts.  Employers will want to revisit their accommodation policies and ensure that supervisors understand that many more employees will be in a position to assert a request for reasonable accommodation so proper and timely handling of such requests is more important than ever.

Oregon Restricts Employer Speech on Religion, Politics, and Labor Unions

Whether you call it the “Worker Freedom Act” (by supporters) or the “Employer Gag Bill” (by detractors), Oregon calls it SB 519, and it becomes law on January 1, 2010.  SB 519 prohibits an employer from punishing employees who refuse to attend mandatory employee meetings if the primary purpose of the meeting is to communicate the employer’s opinion about three subjects: religion, politics, and labor unions.  The AFL-CIO drafted the bill several years ago and has been looking for a state to pass it ever since.  New Jersey, Michigan, West Virginia, and Washington have all come close.  But Oregon is the first to actually pass it.  SB 519 is enforced by a private right of action; employees may sue their employers for injunctive relief, such as reinstatement and back pay.  In addition, any time an employer violates the law, a trial court must award treble damages (back pay) and attorney fees.  Expect a court battle over SB 519.  The new law may be preempted by the National Labor Relations Act which specifically allows employers to hold mandatory meetings with employees to discuss unionization if there is an organizing campaign in progress.  However, unless and until a court makes that ruling, Oregon’s employers—all of them, regardless of size—are expected to comply.  As a result, if you have concerns about union organizing efforts, it is critical that you involve legal counsel before you consider speaking to your employees about your position on unions.

Family Military Leave Comes to Oregon

Oregon employers with 25 or more employees now must, in certain circumstances, provide any employee married to a member of the armed forces with unpaid “military leave.”  Employees may split a total 14 days of military leave to: (1) prepare for the military spouse’s imminent deployment; and (2) visit with the military spouse during periods of leave from deployment.  This Act largely mirrors the 2008 amendments to the Family and Medical Leave Act (FMLA), but applies to any employee who works, on average, more than 20 hours per week.  Curiously, this Act contains no private enforcement mechanism; presumably, enforcement is handled exclusively by BOLI.  This Act became law on June 25, 2009.  If you have not already revised your handbook to incorporate this new law, now is the time to do it.

Military Discrimination Law

This 2009 Act prohibits an employer from discriminating against any person because of that person’s past, present, or future military service.  Employers cannot refuse to hire, reemploy, or promote any employee because of the employee’s military service.  Employers also cannot discharge, fire, or retaliate against any employee because of that employee’s military service.  Violations of this Act are enforceable by a private right of action.  Remedies include injunctive relief, compensatory damages, punitive damages, and attorney fees.  This Act creates a state analogue to the Uniformed Services Employment and Reemployment Rights Act (USERRA).  It applies to all employers, regardless of size, and takes effect on January 1, 2010.  This is another issue to be included in your list of handbook policies to be reviewed and revised.

Hands-Free Cell Phone Use Required While Driving

Starting in 2010, all drivers over age 18 will be required to use a hands-free device if they use a mobile communication device while driving.  Previously the law prohibited drivers under age 18 who had not yet obtained a regular driver’s license from using a mobile communication device while driving, although police officers were only allowed to enforce the provision as a secondary action.  The new law contains various exceptions, including previously-included exceptions for emergencies, and new exceptions for those for whom driving while operating a mobile communication device is necessary for the person’s job, those who are merely activating or deactivating the device or a function of the device, and those using one-way voice communication while engaged in certain activities related to employment or safety.  Violation of the law is a Class D traffic violation punishable with a fine of up to $90.

Obviously 2010 brings many changes for employers.  We hope this summary has been helpful to raise your awareness of the issues you will be facing.  A more detailed review of these laws will be included in a white paper that will be released soon…

Thank you to Laura Althouse, Justin Aida, and Sam Smith for their contributions to this important article.  If you have questions please contact Laura, Justin, Sam, or other Team members Tamsen Leachman or Jack Cooper.

  
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Discuss this article

bud December 1, 2009

Another business expense, that is how I see the cell-phoen driving ban and how it will hit delivery drivers.

bill December 3, 2009

Looks like the ongoing “Attorney Relief Act” is alive and well. The cozy relationship between lawyers and our government clearly make this “partnership” profitable for both sides, at the expense of job creation. Lawyers are constantly nibbling away .. finding new and imaginative ways to blackmail and extort money from those who dare organize a business enterprise in Oregon.

Grant Beldin December 15, 2009

Does the cell phone law apply to those under 18 also? Please respond

Joe Shaddix December 27, 2009

So, I’m going to be pulled over by a cop for using a cell phone and failure to signal BY a cop on a cell phone failing to signal. I just need to learn my place.

Sandy December 29, 2009

My husband has been hit and injured by a driver on a cell phone at a RED STOP light. The driver was so busy talking that he drove into the back of the car totaling it out at 35 miles an hour..!!!!!! This is a good law…

Doug December 30, 2009

This law is *totally* useless and is here only because of emotional responses and ignorance on the part of the public and lawmakers both. Think about it: This does NOT stop cell phone use (and the focus on the cell conversation!), it only stops you from holding the phone to your ear. That’s it.

Here is a quote from one study on this (there are many, many, MANY more saying **exactly** the same thing): “There was no difference in accident statistics between drivers using hand-held cell phones compared to those using a hands-free cell phone device.” (http://www.newsdial.com/technology/communication/cell-phone-statistics.html

Further, there have been additional studies comparing OTHER activities in the car with cell phone use… guess what?: Cell phone use was a **minor** contributor to accidents. Read the stats *carefully* and thoughtfully and don’t be sucked in by the phrasing… look for what is missing in the data gathering.

Tell me this: how many people cause accidents while changing a CD in their player? How about turning around to talk to an errant child? Focusing on a conversation with other persons in the car? Reaching for a cup of coffee? Spilling chips or a sandwich?

Bottom line: the public and lawmakers have focused on cell phone ONLY because you can SEE them in use when someone drives stupidly and then blames that for the problem. You can’t often see all the other things going on so those issues are ignored. Face it- there are bad, inattentive drivers out there that will cause accidents. This is true regardless of the activity. AND we ALREADY have laws against inattentive driving! So why not just use THAT instead creating *yet another* useless, stupid law on the books?

Most of us often will NOT keep both hands on the wheel and will put an elbow on the window, adjust our mirrors or heat, or grab a coffee with one hand, or adjust a map or directions while driving or tune the radio, or… or…

Hand free cell conversations? Stupid useless law that only serves to INCREASE the loss of attention while driving since you now have to fiddle not only with your phone to initiate conversations or adjust volume or whatever, but ALSO mess with your “hands-free” device to adjust volume, answer or initiate the call. And for those without Bluetooth, you also have that additional cable now dangling from your ear that can interfere with motion or case a momentary distraction at a fatal moment. AND now there is only one ear available to hear traffic sounds and emergencies. In some states, it is illegal to wear headphones while driving for this very reason. So, all those with impaired hearing in one ear, there is only one ear left for the hands-free cell earpiece, leaving them totally impaired for traffic sound attention.

Summary: Everyone go and spend money, still drive with only one hand, still inattentive to driving during conversation, still drink coffee and tune radios, change CD’s, pick up things dropped in lap, relax against the door. What has changed? NOTHING except we now have a difficult to enforce law loaded with exceptions. We have reacted emotionally to those who have suffered losses *just because* we SAW someone using a cell phone and ASSUMED (in most cases) this was the cause. In the cases were cell phone WAS the cause, it has been singled out (mostly because it is visible) and ALL OTHER CAUSES have been ignored to the detriment of good thinking and good solutions. This is mostly illegal in courts: circumstantial evidence; it is the basis for many superstitions (walking under a ladder, black cat crossing your path).. and we like to think of ourselves as beyond that kind of thinking… but no… let’s pass a law that is popular… only based on circumstantial evidence and very poor science and data gathering. Incredibly dumb and wasteful and people show their ignorance by taking such mental shortcuts in their thinking. Sad that our lawmakers have demonstrated their foolishness and ignorance instead of standing up for what is fact.

Jacob January 1, 2010

Spot on, Bill. Your insight is quite thoughtful, and accurate. And Sandy, just because someone makes a mistake doesn’t mean there should be a law against whatever they’ve done. Would you like it if car stereos were banned so that nobody has the chance to be distracted by their own singing? Or how about we criminalize eating in the car, too? Surely someone has been hit at “35 miles [per] hour!!!!!!” by a driver snacking on some late night drive-thru burritos. It is a rediculous “liberal” (not to be confused with “democratic”) fantasy that there should be a law governing every action that COULD possibly result in someone’s fault. Laws like this that punish the average citizen by maliciously disturbing their finances will never replace good old fashioned common sense, whether or not it gives us a cozy feeling to think otherwise.

M January 1, 2010

I just have to say. I am relieved that there are restrictions for cell phone use while operating a vehicle…finally. My mother-in-law has totaled two cars now both under one year old because she dropped her cell phone during a call and bent over into the passenger floorboard area to retrieve it while driving down the road. TWICE PEOPLE! I ride with a co-worker who is on their cell phone constantly and they drive totally different (BAD) when they are blabbing and trying to manage their car. I’m in constant fear of an accident. I remember back in the day. We actually got by just fine by using the phone at home or public phones. Now we can’t seem to be able to go grocery shopping without advice from the “All Mighty Cell Phone”. I’m tired of being subjected to people who stand in line and talk loud enough for EVERYONE to hear their all important conversation. Trust me…No one wants to know your business people. I conduct business across the cont. U.S. and clock a lot of miles. I carry a cell phone for emergency use only. If a call comes in while I’m on the road, oh well. That’s what voice mail is for right? In conclusion. Let’s make the roads a safer place for everyone to be. Kudos to a new start OREGON lawmakers.

daisy January 3, 2010

How sad that there are people in need of restraining our lives and putting restrictions on how we live and what we choose to do. People need to stop voting for removal of our rights. Freedom is what this country is based upon, then freedom is what we should protect.

ALMA March 26, 2010

I AM HAPPY THAT THERE IS A LAW THAT RESTRICTS ALL OREGON RESIDENTS TO TALK HANDS FREE. ONCE I WAS DRIVING WITH MY TWO KIDS IN THE CAR AND I ALMOST GOT HIT BY A YOUNG LADY THAT WAS TEXTING AND DRIVING. I WAS ABLE TO MOVE TO THE SIDE SO I WOULDN’T GET HIT. I HAVE A CELL PHONE THAT I ONLY USE FOR EMERGENCYS. FOR EXAMPLE ROAD ASSISTANCE. THIS LAWS DOESN’T RESTAIN US FROM OUR FREEDOM BUT IS SAVING LIVES IN A WAY. IF YOU WANT TO TALK ABOUT RESTRAINING OUR FREEDOM THEN YOU MIGHT WANT TO GO TO CUBA.

Tim April 15, 2010

This cell phone law,like many others is only as good as the enforcer. It does not sound like it is being enforced to its fullest. So like many other laws, this one will probably fade away.

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