HB 2016 – Fact or Fiction?

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Diana Moffat

From our Spring 2020 e-newsletter

*For a full list of the provisions of HB 2016 you can refer to LGLG’s previous newsletters and for a copy of the complete text of HB 2016 you can go here:

https://olis.oregonlegislature.gov/liz/2015R1/Downloads/MeasureDocument/HB2016/Enrolled

Where were you on June 27, 2018? Do you remember the Janus decision being announced that day? I certainly remember that day. I was in bargaining with a local LIUNA union. The mood immediately became sullen, on the part of the union. Mark Janus, the plaintiff in the Supreme Court case, issued a statement: “My name is Mark Janus, and I was the plaintiff in the Supreme Court case Janus v. AFSCME. On June 27, 2018, the Court ruled that government employees like me could not be forced to pay a government union as a condition of working in public service. This landmark ruling was a tremendous victory for workers’ rights, and I was privileged to be a part of it.”

Fast forward to June 20, 2019, when, in reaction to the Janus decision, Oregon Governor Brown, signed House Bill (“HB”) 2016 into law, which placed numerous new restrictions and requirements on how public sector employers do business with unions and unionized workforces. Those provisions went into effect on January 1st of this year.

There seems to be a lot of fact v. fiction in the Oregon labor arena as to what HB 2016 does, or doesn’t do. So, let’s take a look at FACT or FICTION.

Paid leave time for union collective bargaining preparation. Some unions are asserting that HB 2016 requires an employer to allow employees to be paid, with no deduction from their paid leave banks, to PREPARE for collective bargaining sessions. FACT or FICTION? Mostly fiction:

First let’s look at the actual language of HB 2016. Section 3 provides that: “A public employer shall grant public employees who are designated representatives reasonable time to engage in the following activities during the public employee’s regularly scheduled work hours without loss of compensation, seniority, leave accrual or any other benefits.” Subsection (d) lists one of those activities as being when an employee acts “as a representative of the exclusive representative for employees within the bargaining unit for purposes of collective bargaining.” Unlike subsection (c) wherein the legislation specifically provides for time to “participate in or prepare” for certain activities, no such provision is made for preparation time under subsection (d). Now with that said, however, paid time for purposes of employees participating in, and even preparing for, collective bargaining has been, and remains, a mandatory subject of bargaining. However, the new legislation does not REQUIRE that the employer agree to pay for preparation time. It is also important to note that the legislation does not define what constitutes “reasonable time” for participation in bargaining. That remains a subject of bargaining.

Release time. Some unions have asserted that release time requires a public employer to allow union employees to conduct union business on paid time, with no deletions from the employee’s paid leave bank. FACT or FICTION? Mostly fiction:

The new law defines “release time” as “the period of time when a public employee who is a designated representative takes a leave of absence from the employee’s regular public employment to conduct labor organization business.” Release time has nothing to do with conducting business on an occasional basis. It involves a complete leave of absence from the employee’s position. Section 4 goes on to provide for a “reasonable term” of release time – again, a matter of bargaining, followed by specific provisions as to job re-entitlement, reimbursement by the union for any costs of compensation and benefits to the employer, etc.

Forced union membership. Some unions claim that they can limit an employee’s right to withdraw their union membership by confining the withdrawal of membership to a specific, and limited, period. FACT or FICTION? Mostly fact:

In reality the union’s practice of limiting members’ ability to withdraw from their membership in the union has been going on for a long time. Most folks just never knew about it. That was mainly because, prior to the Janus decision, the employee’s payment of money/dues happened regardless of their membership in the union, or not. If they elected to no longer be a member of the union, the employee still had to pay their “fair share” dues. The limitation for withdrawing from the union was usually printed in small print on the union dues authorization card. The typical language limited a change in membership status to a small window of time once per year, or to the end of the period of the applicable Collective bargaining agreement. When the Janus decision was announced, which prohibited fair share dues, unions became alarmed that they might lose union members AND lose union dues.

HB 2016 was the union’s push back to that likely reality of the Janus decision.

Section 6 provides that the “employee may enter into an agreement with a labor organization that is the exclusive representative to provide authorization for a public employer to make a deduction from the salary or wages of the public employee … to pay dues, fees and any other assessments or authorized deductions to the labor organization ….” Note that the agreement (authorization) is between the employee and the union – not between the employee and the employer. Subsection (4) provides that the “authorization is independent of the employee’s membership status in the labor organization to which payment is remitted and irrespective of whether a collective bargaining agreement authorizes the deduction.” Subsection (6) provides that the “employee’s authorization for a public employer to make a deduction … shall remain in effect until the public employee revokes the authorization in the manner provided by the terms of the agreement.”

Changes to Workplace Harassment Policies and Procedures Under Senate Bill 479

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Dan Lawler

From our Spring 2020 e-newsletter

With the passage of SB 479 during the 2019 Legislative Session, public employers must make a variety of changes to the policies and procedures that they use to address workplace harassment. This article provides a general summary of the changes that the bill requires and how local governments can make these changes. However, this article is not intended to replace legal advice tailored to the specific needs of each public employer. If your local government needs assistance in complying with SB 479, our firm would be happy to provide guidance on any of the bill’s requirements, to draft a new anti-harassment policy, or to modify an existing anti-harassment policy to comply with the bill.

What Changes Must Employers Make?

1)       Adopt a Written Anti-Harassment Policy (Effective January 1, 2020)

SB 479 requires employers to adopt a written anti-harassment policy and to provide a copy of the policy to all employees. The bill contains a list of specific items that the policy must include to help employees understand the options and resources available to them to address instances of workplace harassment. If employers have already adopted a workplace harassment policy, we recommend reviewing the policy closely against the provisions of SB 479. Any workplace harassment policy that lacks one or more of the items that the bill lists is non-compliant and should be revised as soon as possible. Please let our firm know if your local entity desires assistance with drafting a policy that complies with SB 479.

2)       Develop an Internal Investigation Procedure (Effective January 1, 2020)

SB 479 also requires employers to develop written procedures to investigate reports of workplace harassment from employees. We recommend including these procedures as part of the workplace harassment policy discussed above. The bill lists specific items that the investigation procedures must include, such as the person designated to receive reports of harassment, instructions on maintaining records related to workplace harassment, and how an employee can file a complaint of harassment. Although existing anti-harassment policies may include some or all of the required items, employers should examine their existing policies and procedures to determine whether updates are needed. Our firm would be happy to help your entity determine whether changes are required and to ensure compliance with the bill.

3)       Be Cautious with Nondisclosure or Nondisparagement Agreements (Effective October 1, 2020)

Beginning on October 1, 2020, employers will be subject to greater restrictions on the use of nondisclosure or nondisparagement agreements related to instances of workplace harassment. These restrictions will prohibit employers from requiring employees aggrieved by workplace harassment to enter into agreements that have the purpose or effect of preventing employees from discussing the workplace harassment incident. However, an employer can enter into such an agreement if the victim of workplace harassment requests one and has seven days to revoke the agreement. An employer can also enter into a nondisclosure or nondisparagement agreement with the alleged violator of the harassment policy if it makes a good faith determination that the person engaged in workplace harassment. Please let us know if your locality desires help drafting any agreements discussed in this paragraph to comply with SB 479’s requirements.

How Can Employers Make These Changes?

If your local government does not have an anti-harassment policy in place, now is a good time to develop one that meets the requirements of SB 479 and fits the specific needs of your locality. Our firm would be happy to consult with your staff to draft such a policy. We can also review and revise any template or sample anti-harassment policies to ensure compliance with SB 479, if desired.

If your local government does have an adopted anti-harassment policy, we recommend reviewing the policy to determine whether to: 1) replace the policy in its entirety; or 2) modify the policy to include the items that SB 479 requires. Most existing anti-harassment policies can be modified to comply with the bill without too much difficulty, though some local governments may prefer a wholesale replacement. Making changes to comply with SB 479 also presents a valuable opportunity for local governments to evaluate the effectiveness of existing features within their anti-harassment policies. If your local entity desires assistance with reviewing and modifying an existing anti-harassment policy, we would be happy to help determine whether changes are needed and to revise the policy to comply with SB 479.

Things to Watch Out For

After reviewing SB 479 and numerous anti-harassment policies drafted in response to the bill, our firm has identified a handful of requirements that are easily overlooked or are likely to cause confusion for entities. The following bullets describe these requirements in greater detail. Please feel free to reach out with any questions about the items below.

  • Legal Resources and Counseling Services. SB 479 requires anti-harassment policies to provide information to connect victims of workplace harassment to specific legal resources and counseling services. One easy way to do this is to insert website links and phone numbers for groups that provide these resources and services. However, employers should monitor these links and phone numbers over time to ensure their accuracy and to maintain compliance with SB 479.
  • Timeline for Relief. SB 479 requires anti-harassment policies to provide the timeline available for victims of workplace harassment to seek relief. Under the bill, victims have five years to file an internal complaint, a complaint with the Bureau of Labor and Industries, or a legal action. We recommend including information about the five-year relief timeline in a prominent, noticeable location within your entity’s anti-harassment policy.
  • The Meaning of Nondisclosure and Nondisparagement. SB 479 requires anti-harassment policies to contain a statement that the employer may not require an employee to enter into a nondisclosure or nondisparagement agreement, including a description of the meaning of those terms. The bill does not explicitly define these terms, but we recommend using the following language to describe them: “nondisclosure and nondisparagement agreements generally have the purpose or effect of preventing employees from disclosing or discussing workplace harassment.”

Pregnancy Accommodation Law

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Christy Monson

From our Winter 2020 e-newsletter

Oregon has a new pregnancy accommodation law. These types of accommodation requirements should be pretty familiar to employers because the ADA and Oregon law already requires that we accommodate certain employees with disabilities. However, the new law now automatically extends these requirements to pregnant women who are not otherwise covered under the ADA (because pregnancy was not automatically considered a “disability” under those laws). The new law also requires that you enter into the ADA “interactive process” with a pregnant employee-which is simply a requirement that you must sit down with the employee and ask her what you can do to help her accomplish her essential duties-and then listen and decide.

Effective January 1, if you have six or more employees (either full or part time), you must provide reasonable accommodations to employees and applicants who have some limitations related to pregnancy, unless doing so would impose an undue hardship on the employer. These types of reasonable accommodations can include, but are not limited to:

  • Acquisition or modification of equipment or devices;
  • More frequent or longer break periods or periodic rest;
  • Assistance with manual labor; or
  • Modification of work schedules or job assignments.

Employers do not have to provide reasonable accommodations if doing so would impose an undue hardship or if it would entail the employee not performing the essential functions of the job. Tread carefully regarding this determination, however, for it is not easy for an accommodation to qualify as an “undue hardship.” To qualify, the requested accommodation must require significant or substantial difficulty or expense. Some of the factors to consider when determining if an undue hardship exists are: the cost, your financial resources, your number of employees, the impact on operations, and the nature of the services you provide.

It’s important to note that this new law also prohibits employers from being overprotective, such as imposing unnecessary accommodations or requiring a pregnant employee to take leave when other reasonable accommodations are available (such as rest breaks or a special chair/workspace).

Employers must also provide written notification of the Employer Accommodation for Pregnancy Act to new hires at the time of hire, within 180 days of the Act’s effective date (i.e., by June 29, 2020) to all existing employees, and within 10 days to an employee who has informed her employer of a pregnancy. Employers must also post signs on their premises informing their employees of the protections under the Act.

Here’s a good synopsis of the new law:

https://www.oregon.gov/boli/TA/Pages/FactSheetsFAQs/PregnancyRelatedConditions.aspx 

DPSST TRAINING ACADEMY HOURS: A New Year Reminder

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Diana Moffat

From our Winter 2020 e-newsletter

In January of the new year, the Oregon Department of Public Safety Standards and Training’s (DPSST) will once again be opening its training grounds to newly hired police officers, among others, from departments around the State, who seek to obtain their Basic Police Certification through attendance at what is known as the Training Academy.

As you may recall, however, there was some legal wrangling around this time last year regarding officer paid overtime, or lack thereof, while attending the Academy. In the 2018 case, a new Officer from the Ashland Police Department made a complaint regarding the failure of his department to pay him for, what he claimed were, 60 or more hours of unpaid overtime. Following the complaint, the Bureau of Labor and Industries (BOLI) conducted an investigation.

In November of last year, BOLI provided a state-wide “to whom it may concern” letter to Oregon law enforcement agencies regarding the tracking of hours while an agency’s employee is in attendance at the training academy and any resulting overtime hours.

Now is a good time to review the guidance from BOLI and to explore some options for your agency

The Academy training course lasts for 16 weeks. The normal class schedule runs Monday through Friday from 8AM to 5PM with an hour for lunch, and various breaks throughout the day. There are some exceptions to this schedule. When trainees attend the Academy, they are paid by their hiring agency, not by DPSST. In addition, and to further complicate things, DPSST does not track trainees’ hours while they are at the Academy. It had been a fairly standard practice for an agency to pay its Officers, while attending the Academy, at a straight 40-hours per week, despite frequent occasions when a trainee is required to put in additional hours.

As part of BOLI’s investigation, it made the following findings, in part:

1)    “Title 29 of the Code of Federal Regulations, §785.11, states that “work not requested but suffered or permitted is work time” and must be paid. In addition, Oregon Revised Statute (ORS) 653.010(11) defines “work time” to be “both time worked and time of authorized attendance.” This is further clarified by Oregon Administrative Rule (OAR) 839-020-0004(19), which defines “hours worked” to be “all time the employee is suffered or permitted to work.” Finally, OAR 839-020-0040 expands on this to add that “if the employer knows or has reason to believe that work is being performed, the time spent must be counted as hours worked.” Training time must be paid as hours worked if the training is during the employee’s regular working hours, attendance is mandatory, the training is directly related to the employee’s job and the employee performs productive work during their attendance. OAR 839-020-0044.

Trainees at the Academy often work more than 40 hours per week. Such trainees are often only getting paid by their agencies for 40 hours per week. The Bureau strongly recommends that agencies sending trainees to the Academy pay the trainees for all hours worked, including time spent at Colors and completing assignments at the Academy. Failure to do so could expose these agencies to liability for unpaid wages and civil penalties.

The above is fairly straight forward. A law enforcement agency should not ignore actual hours a trainee is required to put in to complete his or her training at the Academy.

2)    “Generally speaking, hours worked in excess of 40 hours per week would be considered overtime and be required to be paid at one-and-one-half the employee’s regular rate of pay. However, ORS 653.269(3) carves out an exception to this general rule for public employers whose employees are engaged in “law enforcement activities” as defined. Oregon Administrative Rule 839-020-0250 states that attending basic training at the police academy is considered a “law enforcement activity.”

While trainees at the DPSST must be paid for all hours worked, the Bureau does not believe that said trainees must be paid overtime unless there is a collective bargaining agreement in place that states otherwise.”

This is better known as the FLSA 7(k) exemption. Your agency can negotiate with your police union, assuming that they are unionized, for an extended work cycle for their Officers who are attending the Academy, before overtime hours would have to be paid. (*Note you would still have to pay straight time for all hours actually in attendance at the Academy.)

Here is some sample language from a recent Memorandum of Understanding (MOU):

“The parties acknowledge and agree that for the purposes of Academy training, officers will be placed on an FLSA 7(k) exemption using a 14-day work period, with the statutory maximum hours of straight time set at 86 hours in the work period. Employees will only earn overtime for hours worked over 86 hours in the 2-week work period. Overtime hours beyond the 86-hours must be pre-approved by a supervisor or the Chief of Police. This will include any non-mandatory, or optional, classes.” (emphasis added)

If you don’t have something like the above in place, you will pay overtime just as you would pay to any of your Officers.

3)    Finally, BOLI noted that: “Oregon Revised Statute 653.045 requires employers to maintain records showing ‘actual hours worked’ by each employee on a weekly and per-pay-period basis.”

Employers need to have trainees keep track of their hours while in attendance at the Academy.

In response to the BOLI investigation, DPSST updated their “Student Rules and Regulations” handbook, available on DPSST’s website, to state, in part that:

“While DPSST makes a good faith effort to ensure a 40-hour training week, there are circumstances that may occasionally require student time beyond 40 hours. Any overtime compensation for an Academy activity or training function is the responsibility of the student’s agency subject to that agency’s policy or collective bargaining agreement. Students should immediately report any overtime to their employer. Students must receive agency authorization prior to participating in optional evening or weekend training offered by DPSST by completing and submitting the Optional Training Release Form to the Class Coordinator.”