2022 Legislation Update – Oregon

CROWN Act

Oregon CROWN Act (HB 2935) prohibits hairstyle discrimination. The definition of race under the Oregon Fair Employment Practices Law is amended to include physical characteristics which are historically associated with race, including but not limited to natural hair, hair texture, hair type and protective hairstyles.

• • Protective hairstyle means a hairstyle, hair color or manner of wearing hair including but is not limited to braids, regardless of whether the braids are created with extensions or styled with adornments, locs, and twists.
  • The amendment does not prohibit an employer from enforcing an otherwise valid dress code or policy as long as:
    • The employer provides for reasonable accommodation based on an individual’s health and safety needs; and
    • The dress code or policy does not have a disproportionate adverse impact on a protected class.

The law is effective January 1, 2022.

Driver’s License as Condition of Employment

Oregon law restricts the reasons for which employers may require an employee or prospective employee to possess or present a driver license (SB 569). Oregon law prohibits an employer from:

• • Requiring, as a condition for employment or continuation of employment, an employee or prospective employee to possess or present a valid driver license unless the ability to legally drive is an essential function of the job or is related to a legitimate business purpose; and
  • Refusing to accept from an employee or prospective employee, as an alternative to a driver license, any other identification documents deemed acceptable for the purpose of forms prescribed by the US Citizenship and Immigration Services that are used for verifying the identity and employment authorization of individuals hired for employment in the US.
  • An employer may continue to accept a driver license as identification if voluntarily offered by an employee or prospective employee.

The law is effective January 1, 2022.

Enforceable Noncompete Agreements

On May 21, 2021, Oregon Governor Kate Brown signed legislation (SB 169) amending the state’s noncompetition agreement law by clarifying that these agreements are void and unenforceable unless all of the following are met:

• • The employer has a protectable interest, which is when the employee:
    • Has access to trade secrets;
    • Has access to competitively sensitive confidential business or professional information that isn’t a trade secret, including product development plans, product launch plans, marketing strategy or sales plans; or
    • Is employed as an on-air talent by a broadcasting employer.
  • The employer gives a signed, written copy of the noncompetition agreement to the terminated employee within 30 days of when they were terminated; and
  • The employee’s annual gross salary and commissions in total, and annually calculated, exceeds $100,533 when they were terminated. This dollar amount is annually adjusted for inflation.

If the noncompetition agreement is valid, then it is enforceable for the duration of the agreement–for up to 12 months–if the employer agrees (in writing) to pay the employee as follows when they are restricted from working (because of the agreement), whichever is greater:

• • Pay that equals at least 50 percent of the employee’s annual gross base salary and commissions at termination; or
  • $50,266.50 (50 percent of $100,533, annually adjusted).

A noncompetition agreement is a written agreement (can’t be a verbal agreement) between an employer and employee where the employee agrees that they, either alone or as an employee of another, will not compete with the employer in providing products, processes, or services that are similar to the employer’s, for a period of time or within a specified geographic area, after they are terminated.

The law only applies to noncompetition agreements that are entered into on or after January 1, 2022.

Expanded Uses of Sick Leave

On July 22, 2021, the Oregon Bureau of Labor and Industries issued an administrative order (BLI 9-2021)  temporarily expanding the use of accrued sick leave when:

• • Evacuation orders of level 2 (SET) or level 3 (GO) are issued by a public official and the affected area includes the employee’s workplace or home address; or
  • A determination by a public official that the air quality index or heat index is at a level where continued exposure would jeopardize the employee’s health.

The order expires January 17, 2022.

Family Leave Act (OFLA)

Oregon amends and expands (HB 2474) its Family Leave Act to:

• • Allow employees of a covered employer to take leave during a public health emergency, with certain exceptions;
  • Allow employees who separate from employment to take leave if they are eligible for leave at the time of separation and are reemployed within 180 days;
  • Allow employees to take leave if they are eligible at the beginning of a temporary cessation of scheduled hours of 180 days or less and return from work at the end of the temporary cessation of scheduled hours of 180 days or less; and
  • Codify regulatory provisions providing for child care leave due to a public health emergency and verification of such leave.

The new provisions of the law go into effect January 1, 2022.