Employment Law in Oregon

Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. There are numerous illegal reasons for termination. Typically such reasons fall into one of two large categories: illegal discrimination or illegal termination in violation of a public policy. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. In Oregon, employers may be required to follow their handbooks and use the same procedures with each employee. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

The Oregon Occupational Safety and Health Division is a division of the Oregon Department of Consumer and Business Services. Its mission is to advance and improve workplace safety and health in Oregon. It administers the Oregon Safe Employment Act and enforces Oregon's occupational safety and health rules, which establish minimum safety and health standards for all industries and outline specific standards for individual industries.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

Workers' compensation insurance pays for medical services and provides wage-subsidy payments if you must be off work due to your on-the-job injury. You may be entitled to the following disability benefits:

• Temporary partial disability (TPD) is a work-related injury or illness that allows you to return to a modified light-duty or part-time job that pays less than your job paid at the time of your injury and benefits, which are based on your weekly wage when injured, are payable until your partial disability ends
• Temporary total disability (TTD) is due to a work-related injury or illness that leaves you completely unable to work for a limited period and benefits equal two-thirds of your gross wage up to a maximum of 133% of Oregon's average weekly wage
• Permanent partial disability (PPD) is the loss of use or function of any portion of your body and benefits depend on the severity of your disability
• Permanent total disability (PTD) is the loss of use or function of any portion of your body that permanently incapacitates you from regularly performing work at a gainful and suitable occupation and benefits are paid monthly for the rest of your life if you remain totally disabled

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Small business may not need to comply with federal family leave laws, but Oregon has family leave laws that place requirements on private employers with fewer than 50 employees. Oregon's family leave law applies to employers that employ 25 or more people. Eligible employees are entitled to 12 weeks of unpaid leave within any one-year period. If you are a female employee, you may also take a total of 12 weeks of leave within any one-year period for an illness, injury or condition related to pregnancy or childbirth that disables you from performing any available job duties offered by the employer.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide temporary monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

The maximum benefit that you can receive is $419 per week and depends upon the work that you performed. The minimum benefit is $98 per week. If your wages during the qualifying period are at least $7,644, you will be eligible for 26 weeks of benefits.

Your unemployment insurance claim will be based on your recent work record for the 12-month period known as the base year. The base year is the first four of the last five calendar quarters completed at the time you first file your claim. To qualify for benefits you must meet one of the following two tests:

• You have total base period wages of at least one and one-half times the wages in your highest quarter in the base period and at least $1,000 in wages earned during your base year
• You have 500 hours of employment during your base year

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Under Oregon continuation of coverage law, you may be eligible to continue your group policy if your benefits are affected by termination from employment, dissolution of marriage, legal separation or you are a surviving spouse who does not qualify for federal COBRA coverage. Your former employer must have fewer than 20 employees. A continuation-of-coverage policy provides protection for a maximum of six months or until you are eligible for other coverage, whichever occurs first.

Related Web Links:

- Oregon Occupational Safety & Health Division
- Oregon Workers' Compensation Division
- Oregon Employment Department
- Oregon Department of Consumer & Business Services, Insurance Division
- US Department of Labor
- US Department of Labor OSHA
- Employment Law for Employees message boards for more help