Oregon News & Analysis

  • Recent developments in Oregon workers' compensation law

    Oregon appellate courts recently issued two opinions clarifying the scope of workers' compensation in Oregon. The rulings clarified whether job applicants may qualify for workers' comp benefits and whether the "exclusive remedy" defense extends to an officer or director who personally owns the property where the workplace injury occurred.

  • When determining contractor status, ABC test applies retroactively

    The U.S. 9th Circuit Court of Appeals (whose rulings apply to all Oregon employers) recently ruled the California Supreme Court's 2018 Dynamex decision, which adopted the "ABC" test to determine whether a worker is an employee or an independent contractor, applies retroactively to claims that arose years ago, when individual franchisees claimed their national franchisor was their employer under state law.

  • Oregon employers must respond to gender identity issues in the workplace

    As we reported in June, the U.S. Supreme Court will finally take a look at whether sexual orientation and gender identity are protected characteristics under existing federal law—specifically, Title VII of the Civil Rights Act of 1964 (see "Supreme Court will decide whether LGBT discrimination is unlawful" on pg. 3 of our June issue). Federal law offers no express nationwide protection against workplace discrimination based on a person's sexual orientation or gender identity. Just under half of all states have laws that do provide express protections against both sexual orientation and gender identity discrimination. One state prohibits only sexual orientation discrimination. On April 29, 2019, the Supreme Court announced it will decide whether Title VII provides federal protection against both sexual orientation and gender identify discrimination.

  • Supreme Court ruling raises stakes in Title VII claims

    If an employee files a timely Equal Employment Opportunity Commission (EEOC) charge, can she later raise new discrimination allegations after the filing deadline has passed? That's the issue addressed in a new decision from the U.S. Supreme Court. Spoiler alert: The answer is no, unless the employer—or more accurately, its attorney—doesn't notice. To understand the Court's ruling, it's helpful to understand the EEOC's role in discrimination claims.

  • DOL updates opinion on independent contractors for the gig economy

    Under the Trump administration, the U.S. Department of Labor (DOL) has taken a decidedly industry-friendly approach to the independent contractor analysis. If there was any doubt before, that was made clear by its recent issuance of a whopping 10-page opinion letter examining the nature of the relationship between a virtual marketplace company (think Uber) and the "gig" workers they employ (e.g., Uber drivers).

  • Agency Action

    NLRB reveals rulemaking plans. The National Labor Relations Board (NLRB) in May announced its rulemaking priorities, which include proceeding with its rulemaking on a standard for joint employment. The Board's agenda also includes plans for rulemaking in the following areas: representation-case procedures; standards for blocking charges, voluntary recognition, and the formation of bargaining relationships in the construction industry; the standard for determining whether students who perform services at private colleges or universities in connection with their studies should be considered employees; and standards for access to an employer's private property.

  • Washington joins Oregon in limiting noncompetition agreements

    Washington has just passed a new law that will substantially limit the use of noncompetition agreements. Declining to follow California's approach of fully prohibiting noncompetition agreements in employment, Washington has joined Oregon and a handful of other states in restricting the use of the agreements without completely prohibiting them. Engrossed Substitute House Bill (ESHB) 1450—which, once signed, will go into full effect on January 1, 2020—substantially limits the use of noncompetition agreements in the employment setting and for independent contractors.

  • Supreme Court will decide whether LGBT discrimination is unlawful

    The U.S. Supreme Court has agreed to decide the long-unresolved question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation or gender identity. The issue has been percolating in the lower courts for quite a while. As it frequently does, the Court declined to consider the question until there was a conflict between several appellate courts. Let's take a look at the history of the Court's decisions, the arguments on both sides of the issue, and what we can expect next.

  • Former employers can subpoena personnel records from a current employer

    When suing a former employer, one of the last things an employee wants is for her former employer to subpoena or contact her current employer. Current employers are unlikely to have relevant information in most cases, and employees will often have legitimate concerns about their privacy, potential embarrassment, and even repercussions with their new job. As a recent decision makes clear, however, those arguments are not always successful, and an employee's privacy interests alone will not necessarily preclude discovery (pretrial exchange of evidence) into current or subsequent employment.

  • ADA claims don't have a prayer without documentation of need for extended leave

    The U.S. 9th Circuit Court of Appeal (whose rulings apply to all Oregon employers) recently explained the scope of the "religious organization exception" to the prohibition on religious discrimination under Title VII of the Civil Rights Act of 1964. The court also addressed the limits of the duty to accommodate under the Americans with Disabilities Act (ADA). Let's take a look.