By Christopher Morehead
For the Oregon Beer Growler
With beer festival season getting into full swing, it’s easy to turn one’s attention toward things like spending afternoons in sun-soaked beer gardens or deciding which summer release to fill your growler with (or asking yourself why you only brought one growler…). However, employers in the craft beer industry should also be aware that certain legal obligations, at least with respect to employment laws, are about to change. One is a big-time game changer. One is relatively minor (but necessary to follow). And one will relieve employers from a recordkeeping burden.
1. Oregon’s Pay Equity Bill — Pay Attention to the Details
On June 1, 2017, Gov. Kate Brown signed a bill that seeks to help ensure workers receive equal pay for equal work. The new law makes it unlawful for employers to pay employees performing comparable tasks different amounts on the basis of sex, race, religion, disability, sexual orientation, age or any other protected status. We can all agree that people should not be paid less based on any of those factors. To get there, however, all employers need to pay close attention to what the law requires.
The law specifically prohibits employers from:
· Screening job applicants based on their current or past compensation
· Setting a prospective employee’s compensation based on current or past compensation
· Inquiring about a job applicant’s salary history (including applications) until after making a job offer that includes a compensation amount
While employers can still compensate employees performing comparable work at different rates, the difference must be based on bona fide factors related to the position, such as seniority, merit, production, workplace location, training, education and experience. The potential exposure for employers facing a pay equity suit who can’t “prove their innocence” can be massive. Employees can file complaints with Oregon Bureau of Labor and Industries (BOLI) or go straight to court and seek compensatory damages (such as back pay) as well as punitive damages and attorneys’ fees and costs. In addition — and of particular concern for larger employers — companies will also be exposed to class-action lawsuits, which could easily shutter a once-thriving business.
Luckily, the law gives employers some time to prepare, as the majority of claims cannot be brought until after Jan. 1, 2019 (violations of compensation history inquiries become actionable in 2024). However, employers would be wise to start thinking about revising job applications or once-standard interview questions that would violate the law. In addition, employers may also want to take advantage of a safe-harbor provision, which limits exposure if the employer has conducted an equal-pay analysis within three years of a civil lawsuit.
2. Oregon Minimum Wage Rates Increased July 1, 2017
You may recall that, as part of the national “Fight for $15” campaign last year, Oregon passed a bill that increases the state’s minimum wage rate on an annual basis through July 1, 2022. You may also recall that different minimum wage rates apply depending on where the employer is located.
Employers in the Portland-metro area face the biggest hike and must now pay employees at least $11.25 per hour, a $1.50 increase from the 2016 requirement of $9.75. Employers in “non-urban counties” (defined as Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler) are required to pay employees at least $10 per hour, a $0.50 increase. All employers that are outside the Portland-metro area, but not in a “non-urban county,” must now pay at least $10.25 per hour, also a $0.50 increase from last year.
3. OSHA Electronic Recordkeeping Rule Delayed
Last year, the Occupational Safety and Health Administration (OSHA) issued a rule that, starting July 1, 2017, would have required employers to electronically file employee injury information to an electronic recordkeeping system. However, in May 2017, OSHA postponed the filing requirement for a yet-to-be-determined time period.
For those employers ready to comply with the electronic recordkeeping law, you can take that off of your to-do list for the time being. But please note that this delay does not in any way impact your ongoing obligation to comply with your OSHA Form 300, 300A and 301 recordkeeping requirements. You just don’t have to worry about your workplace accident history being posted on a public website for everyone to see.
Have a safe and wonderful summer!
Chris Morehead is an attorney in the Portland office of Ogletree Deakins, a national labor and employment law firm. He focuses on hospitality employers, with an emphasis on the craft beer industry. He can be reached at email@example.com or 503-552-2140.