New Oregon and Washington Legislation Will Require Employers to Make Some Changes

07.16.18

WHAT'S NEW IN OREGON?
Oregon has a number of laws that will be going into effect during the summer, most notably predictive scheduling requirements for certain employees.

Oregon’s Predictive Scheduling Law
Oregon’s Predictive Scheduling Law, Senate Bill 828, seeks to address scheduling concerns faced by hourly workers, who often balance families and multiple jobs. The new law requires certain large employers to provide employees with predictable scheduling with advance notice of work schedules and time to rest between shifts. The bulk of the law goes into effect on July 1, 2018.

What is a Covered Employer?
Any employer in the retail, hospitality, or food-services industry that employs 500 or more employees worldwide is covered.

Who is a Covered employee?
Any worker employed in a retail, hospitality, or food-service establishment that provides services related to retail trade, hotels and motels, or food services is covered.

Who is a Noncovered Employee?
Noncovered employees include salaried employees who are exempt from minimum wage, workers supplied by a worker leasing company, and employees of a business that provides services to or on behalf of an employer.

What Practices Does the Law Require?
Employers must:

  • Provide each new employee with a written, good-faith estimate of the employee’s work schedule at the time of hire. The estimate must include the median number of hours that the employee can expect to work in an average one-month period.
  • Provide current employees with work schedules in writing at least seven calendar days in advance. This requirement will increase to 14 calendar days beginning July 1, 2020. The employer must also post a copy of the schedule in a conspicuous and accessible place.
  • Provide rest periods of at least ten hours between shifts, unless an employee requests or consents to work during a rest period. If the employee elects to work during a rest period, the employer must compensate the employee at one and one-half times the employee’s regular rate of pay.

Good-Faith Estimate
The Bureau of Labor and Industries (BOLI) defines “good faith estimate” as “a reasonable prediction which may be based on forecasts, prior hours worked by an employee or a similarly-situated employee, or other information.” This estimate may be based on the previous year for seasonal work.

Changes in Work Schedules
If an employer requests changes to the written work schedule, the employer must provide “timely notice” of the change, which is “a good faith effort to contact the employee promptly and without undue delay after learning of the need for changing the employee’s work schedule.” Notably, employees may decline any work shifts not included in the employer’s work schedule.

An employer must provide compensation to an employee for work-schedule changes without at least seven (7) days’ advance notice (14 calendar days, effective July 1, 2020). An employee is entitled to an additional hour’s pay at the regular rate, in addition to regular wages earned, when the employer:

  • Adds more than 30 minutes of work to the employee’s shift;
  • Changes the date, start time, or end time of the employee’s work shift with no loss of hours; or
  • Schedules the employee for an additional work or on-call shift.

An employee is entitled to one-half times the employee’s regular rate of pay, per hour, for each scheduled hour that the employee does not work when the employer:

  • Subtracts hours from the employee’s shift before or after the employee reports for duty;
  • Changes the date, start time, or end time of the employee’s shift, resulting in a loss of work-shift hours;
  • Cancels the employee’s work shift; or
  • Does not ask the employee to perform work when the employee is scheduled for an on-call shift.

Oregon’s New Withholding Tax
The 2017 Oregon Legislature passed House Bill 2017, which included the new statewide transit tax. On July 1, 2018, employers must withhold the tax (one-tenth of 1 percent, or .001) from:​

  • Wages of Oregon residents (regardless of where the work is performed).
  • Wages of nonresidents who perform services in Oregon.

The statewide transit tax is calculated based on the employees wages as defined in ORS 316.162. The definition of “wages” excludes amounts paid to certain types of employees and independent contractors. Self-employment income is not subject to this tax.

Transit payroll taxes are imposed on the employer based on the amount of payroll. The statewide transit tax is imposed on the wages of each employee, but Oregon employers are the parties responsible for withholding, reporting, and remitting the statewide transit tax.

Oregon employers are responsible for:

  • Withholding the tax from employees wages.
  • Reporting taxes withheld on a quarterly or annual return.
  • Remitting taxes withheld quarterly or annually.
  • Reconciling quarterly or annual reports on the annual reconciliation return.

Any tax that an employer collects must be held in trust to be remitted and reported to the Department of Revenue on or before the last day of the month following the previous calendar quarter.

Oregon residents who perform services outside the state may ask their out-of-state employers to withhold the tax from their wages as a courtesy. But out-of-state employers may refuse because they fall outside Oregon’s jurisdiction. Therefore, out-of-state employees are responsible for reporting and paying the new withholding tax when they file personal income tax returns.

Updated Minimum Wage Rates
Oregons minimum wage will increase effective July 1, 2018, to June 30, 2019. The minimum wage rate varies depending on where an employer is located. The minimum wage increases on July 1 of every year until 2023, according to a set schedule. Applicable minimum wage increases can be found here. Employers should be prepared to update their Oregon Minimum Wage posters (regulated by BOLI). The new posters can be found here.

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WHAT'S NEW IN WASHINGTON?
Washington also has several new laws that go into effect this summer. We reviewed this legislation for you in previous articles titled "A Potpourri of New Restrictions and Requirements for Washington Employers" and "2018 Washington Gender Equal Pay Act Amendments: Same Pay for ‘Similar’ Jobs." What follows is a refresher on new employer obligations under these statutes and an additional new law to watch out for in 2019.

Washington Fair Chance Act
On March 13, Governor Inslee signed the Washington Fair Chance Act (a.k.a. the "ban-the-box" law), which prohibits employers from inquiring into an applicant’s criminal history background before making an initial determination on whether the applicant is otherwise qualified for the job opening. Employers are also prohibited from advertising open positions in a way that discourages job applicants with criminal records from applying.

The law does not apply to (1) applicants who may have unsupervised access to children under 18 or a vulnerable adult, (2) employers that are expressly permitted or required to consider an applicant’s criminal record, (3) employment by law enforcement or criminal justice agencies, (4) nonemployee volunteers, or (5) entities that are self-regulated under the Securities Exchange Act.

While the law does not create a private right of action, the state Attorney General's Office is tasked with enforcing the law by investigating complaints and issuing penalties, including a monetary fine of up to $750 for the second violation and up to $1,000 for every violation thereafter. Washington's Fair Chance Act became effective on June 7, 2018.

Washington Equal Pay Opportunity Act
The Washington Legislature amended the state Equal Pay Act to reduce differences in compensation between men and women who perform the same or similar jobs. Under these amendments, employers have three noteworthy obligations. First, employers may not discriminate against “similarly employed” individuals of different genders by compensating them differently, unless the difference is based on bona fide job-related factors. If an employer relies on this exception, it is also required to connect the job-related factors to business necessity.

Second, employers may not, on the basis of gender, limit or deprive an employee of career-advancement opportunities that would otherwise be available. There is also a bona fide job-related exception to this requirement. But if the Washington Department of Labor and Industries determines that an employer has a pattern and practice that violates this provision on advancement, the law provides for damages and statutory penalties.

Finally, employers may not prohibit an employee (of any gender) from disclosing wages or discussing wages with other employees, or take any action against an employee for making such a disclosure or engaging in discussions about wages.

Washington's Equal Pay Opportunity Act became effective June 6, 2018.

Additional Protections for Victims of Domestic Violence
This year new employment protections were added to Washington's Domestic Violence Leave Act (RCW 49.76) for victims and survivors of domestic violence, sexual assault, or stalking. In addition to providing reasonable leave to an employee who is a victim of domestic violence, sexual assault, or stalking, or who has a family member who is such a victim and needs the employee’s assistance, employers have two new obligations under the amendments to RCW 49.76.

Employers may not refuse to hire, discharge, or otherwise discriminate or retaliate against an applicant or employee because the person is a victim or a perceived victim of domestic violence, sexual assault, or stalking. We recommend that employers amend their antidiscrimination policies to add “victim of domestic violence, sexual assault, or stalking” as a protected category.

An employer must also now provide “reasonable safety accommodations” requested by an individual who is a victim of domestic violence, sexual assault, or stalking. Reasonable safety accommodations can include but are not limited to: a transfer, reassignment, modified schedule, changed work telephone number and e-mail address, changed workstation, installed lock, or implemented safety procedure. The employer must consider these and other adjustments to a job structure, facility, or work requirement in response to an actual or threatened domestic violence situation. But the employer may refuse to provide a safety accommodation when doing so would impose an "undue hardship" on the operation of the business, meaning that the accommodation would entail significant difficulty or expense.

These amendments to Washington's Domestic Violence Leave Act became effective June 7, 2018.

Washington Paid Family Leave
In July 2017, Governor Inslee signed the Washington Paid Family and Medical Leave Act (RCW 50A.04), which provides employees with partial wage replacement while on leave to recover from an illness or injury, to bond with a new child, for certain military events, or to take care of a sick or injured family member. The new law created an insurance program that will be administered by the Washington Employment Security Department (ESD) and funded by premiums paid by both employers and employees. Starting on January 1, 2019, ESD will begin collecting premiums to fund the state program. Eligible employees may apply for benefits beginning on January 1, 2020.

Covered Employers
The law applies to all private employers and all local and state government employers. Employers with fewer than 50 employees, however, are not required to pay the employer portion of the premium.

Employer Obligations
Covered employers are required to collect and remit a total premium of 0.4 percent up to the social security cap for each employee. According to the ESD, the employer portion of this amount will be approximately 37 percent. For example, if an employee makes $60,000 annually, the total annual assessment would be $240, of which $151.20 would be paid for by the employee and $88.80 would be paid for by the employer.

Employee Eligibility
Employees are eligible for family and medical leave benefits after working for at least 820 hours for any employer(s) during the qualifying period. The qualifying period is the first four of the last five full calendar quarters, or the last four full calendar quarters.

Benefit
Eligible employees are entitled to 12 weeks of paid family leave, 12 weeks of paid medical leave, or a combination of the two up to 16 weeks with partial wage replacement. If an employee experiences a serious health condition with a pregnancy that results in incapacity, she may be eligible for an additional two weeks of leave. The amount of the benefit will vary depending on the employee’s weekly wage, the state average weekly wage, and other factors.

An employer may apply to opt out of the state-run program, if it has a comparable benefit plan and pays a $250 fee to ESD.

If you have any questions about or need further assistance in bringing your business into compliance with the new laws discussed above, please feel free to contact an attorney on Miller Nash Graham & Dunn's Employment Law and Labor Relations team.

David Hori, Miller Nash Graham & Dunn 2018 Summer Associate, provided research and contributed to this article.

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