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Ninth Circuit Overrules Itself: Prior Salary History Cannot Justify Wage Differential Between Men and Women

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April 9, 2018

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In April 2017, the Ninth Circuit previously confirmed that employers could consider an individual’s prior salary history when justifying a wage differential.  Now, a year later, the circuit court has reversed its own decision, stating that prior salary history cannot be used to justify pay disparities prohibited by the federal Equal Pay Act.

Ninth Circuit: DOL’s 80/20 Tip Credit Rule is Invalid

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All Employers of AK, AZ, CA, GA, HI, ID, MT, NV, OR, WA Employees

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September 6, 2017

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The Department of Labor (“DOL”) permits employers to give a tip credit to tipped employees who spend no more than 20% of their time performing non-tipped duties. In Marsh v. J. Alexander’s, LLC, the Ninth Circuit noted that this rule is only found in the Field Operations Handbook used by the DOL as guidance for investigations by field officers, rather than in a statute or regulation; as a result, the court stated it was not valid.

Oregon: First State in the Nation to Pass Predictive Scheduling Law

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All OR Employers of 500+ Employees Worldwide in Retail, Food Service, or Hospitality Industries

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July 1, 2018

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Last year, Seattle and New York City both implemented secure scheduling ordinances.  Although this type of employee-friendly legislation appears to be gaining ground, Oregon has become the first state in the nation to do so with the signing of its Fair Work Week Act (the “Act”) on August 8, 2017.  The Act imposes a host of new requirements for employers in the retail, food service, or hospitality industries, with staggered effective dates for certain provisions of the Act.

Oregon: Changes to Manufacturing Overtime Rules (Again)

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All Employers with OR Employees in Manufacturing Industries

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August 8, 2017

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Early this year, the Oregon Bureau of Labor and Industries (“BOLI”) published a new interpretation of how employers must calculate overtime hours for employees in a mill, factory, or manufacturing establishment.  This interpretation was swiftly overturned by a county court.  Now, Governor Kate Brown has signed H.B. 3458 into law, which codifies the applicable method to calculate overtime for these employees.

Oregon: State Amends Paid Sick Leave Law Requirements

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Certain Employers with OR Employees

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July 1, 2017 and January 1, 2018

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Oregon’s mandated statewide paid sick leave went into effect on January 1, 2016.  The recently signed Senate Bill 299 amends the Paid Sick Time (“PST”) Law, providing clarification on the application of the law, plus new provisions. Important amendments include the following:

  • New accrual limit. Employers may now limit an employee’s yearly accrual to 40 hours per year.  Employees may carry over up to 40 hours each year for a maximum bank of eighty hours. The accrual rate of 1 hour per thirty hours worked remains the same.
  • Revisions to covered employers and employee headcount.
    • Employers must provide paid, rather than unpaid, sick leave if the employer:
      • Has at least 10 employees working anywhere in Oregon;
      • Employs an average of at least six employees per day in Oregon and maintains a location in a city in Oregon with a population exceeding 500,000 for each workday.
    • Employers located in highly-populated areas (over 500,000) have greater PST obligations. Employers who maintain only a seasonal farm stand or trailer used temporarily on a construction site or for office purposes are excluded from the definition of “employer located on a city with a population exceeding 500,000.”
    • When determining a covered employer’s PST obligations, certain individuals do not need to be included in the employee headcount. These are: directors of a corporation, members of an LLC, partners of an LLP, and sole proprietors who have a substantial interest in the operation (more than 15% and not less than the average of other owners), as well as children, spouses, and parents of these individuals.
  • Calculating pay for piece-rate and commission employees. If an employee who is paid an hourly, weekly, or monthly wage, plus a piece-rate or commission, uses PST, the PST must be compensated at a rate equivalent to the employee’s hourly, weekly, or monthly wage, or the minimum wage, whichever is greater.  

Although Senate Bill 299 went into effect on July 1, 2017, the amendments begin to apply to all hours worked and sick time accrued or used on or after January 1, 2018.

Action Items

  1. Review Senate Bill 299 here.
  2. Have paid sick time policies revised, as applicable, consistent with the new requirements.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.

Oregon: New Oregon Equal Pay Act of 2017 Takes Aim at Pay Inequality

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All Employers with OR Employees

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October 6, 2017 and January 1, 2019*

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Similar to California’s expansion of equal pay protections early this year, the Oregon Equal Pay Act of 2017 (the “Act”) now further restricts an employer’s ability to seek past salary history as part of a nationwide trend of targeting discriminatory pay practices.  Specifically, the Act expands upon existing Oregon pay equality provisions by rewording policy language to require equal pay between “protected classes,” rather than simply indicate equal pay between “the sexes.”

June Updates

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Varies

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Varies

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This Short List addresses the following topics:
  1. IRS Announces 2018 Health Savings Account Limits
  2. Colorado: Wage Violations are Now Public Record
  3. Missouri: Minimum Wage Preemption Bill Soon to be in Effect
  4. Oregon: Final Rules to Implement Retirement Savings Program Published
  5. Washington: Statewide “Blacklist” Statute Revives the Defunct Federal Rule
  6. Minnesota: Preliminary Rules, Other Resources for Minneapolis/St. Paul Paid Sick Leave Now Available
  7. Pittsburgh, PA: Paid Sick Leave Confirmed Off the Table; Appeal Expected

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Ninth Circuit: Prior Salary History may be used to Justify Wage Differentials Between Men and Women

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All Employers with AK, AZ, CA, GU, HI,
ID, MT, NV, OR and WA Employees

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April 27, 2017

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Last week, the Ninth Circuit ruled on Rizo v. Yovino, a wage inequality claim brought under the federal Equal Pay Act.  In reviewing this case, the Ninth Circuit affirmed a previous case, Kouba v. Allstate Insurance Co., and confirmed that prior salary history may be considered a “factor other than sex” for the purpose of justifying a wage differential.

Ninth Circuit: Wage Rates Used for Overtime Hours Cannot Be Lower Than Those Used for Non-Overtime Hours

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All Employers with AK, AZ, CA, GU, HI, ID, MT, NV, OR and WA Employees

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March 21, 2017

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In Brunozzi v. Cable Communications, Inc., the Ninth Circuit stated that wage rates cannot be decreased in weeks when overtime is worked, as compared to weeks when no overtime is worked. There, two cable technicians were paid a piece rate per cable system installed, plus a contractually-based production bonus each pay period as part of their regular wages.  When the employer calculated overtime, it reduced the production bonus by the amount of overtime paid for piece rate work, which meant that employees received lower wage rates than when they did not work overtime.

Oregon: New State OSHA Drug Testing Regulations

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All Employers with OR Employees

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May 1, 2017

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Federal OSHA’s regulations limiting automatic drug testing have been in effect for some time.  Oregon’s state OSHA plan’s Administrative Order 6-2016, originally filed in November of 2016, is modeled on the federal OSHA regulation and is set to go into effect on May 1, 2017.  Similar to the federal OSHA regulation, the Administrative Order is intended to improve tracking of workplace injuries and illnesses.

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