Employment Practices

Background

Even before the imposition of mandates responding to the COVID pandemic, Oregon’s employers were reeling from a multitude of policy changes affecting their operations. In just the past five years, employers have been asked to adjust to complex laws related to minimum wages, paid leave, pay equity, scheduling, working-hour limits and expanded liability for employee lawsuits. In addition, they have had to adjust to many regulatory directives from state agencies. Even as they continue to struggle with the effects of the pandemic while adjusting to complex legal and regulatory changes, employers face serious labor shortages. For 2023, OBI urges the Legislature to help businesses in their recovery and spare them additional regulatory and cost burdens.

Policy Principles

Workers’ Compensation

Workers’ Compensation: OBI supports the Management Labor Advisory Council (MLAC) process and opposes legislation not approved by the process. OBI supports exclusive remedy protections for all Oregon employers and opposes legislation that would create presumptions for coverage. OBI supports a strengthened managed care organization structure and opposes legislation that would harm or eliminate self-insurance. OBI supports current definitions of “attending physician” and opposes the expansion of “attending physician” status to physician assistants and nurse practitioners.

Workers’ Benefit Fund: OBI opposes legislation that would reduce or encumber the Workers’ Compensation Benefit Fund.

SAIF: OBI opposes legislation that in any way would weaken the financial position of SAIF or reduces its ability to fulfill its statutory mission to make workers’ compensation insurance available to as many Oregon employers as possible.

OBI’s position includes but is not limited to:

• Any payment by SAIF to the Public Employees Retirement System (PERS) or any other government entity
• Any reduction in the SAIF capital account
• Any encumbrance on or use of future revenue streams.

Unemployment

Unemployment Insurance Benefits: OBI supports strengthening provisions for denial of UI benefits for workplace misconduct and opposes the expanded use of UI benefits beyond their intended use, including legislative “sweeps” of UI funds, the diversion of UI funds for striking workers or employees on family or medical leave, or for job training purposes. OBI opposes legislation and rules that would eliminate the work-search requirement for UI eligibility.

Unemployment Insurance System: OBI supports legislation that would protect the integrity and solvency of the Unemployment Insurance Trust Fund while maintaining a stable and predictable tax structure.

Safety and Health

Oregon OSHA: OBI opposes the expansion of Oregon OSHA authority to cite or penalize employers. OBI opposes increases in Oregon OSHA enforcement staff that are not preceded by increases in consultation staff. OBI continues to oppose any effort by OSHA to act outside of its regulatory authority.

Safety and Health: OBI supports policies and legislation that are consistent with the Oregon Court of Appeals ruling in OSHA v. CC&L Roofing, which determined that employers are not liable for supervisor misconduct. OBI opposes any rulemaking, regulatory action or legislation that undermines the basic principle that employers should not be liable for employee misconduct.

Employment and Labor

Attorney Fees: OBI supports proposals that would provide for prevailing party attorney fees and opposes legislation that would limit attorney fees to prevailing plaintiffs. OBI supports proposals that would allow attorney fees for employers in meritless cases.

Concurrent Leave Laws: OBI supports legislation that would more closely align all Oregon leave laws with federal leave laws to ease unnecessary administrative burdens on Oregon employers.

Discrimination: OBI supports general principles of non-discrimination and existing laws. OBI opposes the expansion of causes of action as well as legislation that would expand the definition of discrimination beyond current law. OBI opposes legislation that would create greater burdens of proof for employers.

Family Leave: To create consistency for employers, OBI supports the alignment of the state’s paid family and medical leave law with the Oregon Family Leave Act and federal Family Medical Leave Act. OBI will promote legislation that removes duplicate benefits under these three programs. OBI opposes any additional regulatory burdens, including the expansion of employer-paid leave mandates.

Labor: OBI supports the right of employees to engage in fair and secret ballot elections in union organizing campaigns. OBI supports the right of employers to communicate their views on unionization with their employees and an election process that gives employers adequate time and a fair opportunity to convey their views. OBI opposes legislation or regulation, including card check systems, that would limit the ability of workers to vote in a secret ballot union election. OBI opposes any expansion of employee rights to use employer resources for the purposes of organizing or other union-related activity. OBI opposes allowing striking workers to use unemployment insurance benefits unless they meet other UI eligibility requirements.

Non-Compete Agreements: OBI opposes legislation that would eliminate the ability of businesses to protect trade secrets through enforcement of non-compete agreements.

Overtime: OBI supports a flexible weekly overtime standard that mandates overtime payments for all hours worked in excess of 40 per week without requiring redundant extra pay for daily and weekly overtime. OBI supports legislation that would restore employer flexibility without restraining the ability of employees to work overtime if they so chose. OBI supports the right of employers and employees to agree to overtime and maximum working hours.

Pay Equity: OBI supports legislation that would prohibit pay discrimination based on the 10 protected classes listed in Oregon’s equal pay law while allowing pay differences based on any non-discriminatory reason. OBI will promote legislation that exempts hiring and retention bonuses from the definition of compensation under the pay equity law.

Penalty Wages: OBI supports legislation that would limit liability for penalty wages when there is a dispute over wages due after an employee has left employment.

Personnel Information: OBI supports appropriate personnel file policies that would protect the secrecy of confidential workplace investigations.

Preemption: OBI supports statewide preemption of employment-related mandates imposed by local governments.

Private Right of Action: OBI opposes the expansion of private rights of action in statute. OBI supports requirements that complaints be filed with state agencies prior to right to sue. OBI opposes legislation that would allow for unions and trial lawyers to file suit outside of existing processes.

Scheduling: OBI supports legislation that would allow employers and employees flexibility in scheduling work hours as well as meal and rest break periods.

Wage and Hour: OBI supports legislation that would create sensible meal and rest-break policies that would give employees flexibility without undue penalties for employers. OBI will promote legislation that would create a de minimis exception when employees voluntarily return to work early on rest breaks.

Workplace Drugs and Alcohol: OBI supports policies and legislation that support an employer’s right to apply and enforce zero-tolerance workplace drug and alcohol policies. OBI opposes policies and legislation that would weaken or undermine the Oregon Supreme Court’s decision in Emerald Steel Fabricators v. BOLI (2010). OBI opposes legislation that would encumber the ability of employers to enforce zero-tolerance workplace drug and alcohol policies and employer drug testing policies.

Workplace Regulation: OBI opposes the expansion of employer liability through new and expanded protected classes and activities.