At-Will Employment

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Both state and federal laws control employment law in Oregon. Like many states, Oregon is an “at-will” employment state. This means that generally, unless an individual has an employment contact or is subject to union rules (pursuant to a collective bargaining agreement or “CBA”), an employer may choose to hire or discharge an employee for any reason.

 

Exceptions to At-Will Employment: Protected Classes

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Despite Oregon’s “at-will” employment status, under both Oregon and federal law, an employer may not refuse to hire, terminate or discriminate against an employee based on his or her membership in any of the following protected classes:
 

• Sex;

• Gender;

• Race;

• National Origin;

• Religion;

• Disability;

• Age (40+ for federal, 18+ for Oregon);

• Sexual Orientation (Oregon only);

• Expunged Juvenile Record (Oregon only);

• Marital or Family Relationship (Oregon only);

• Child Support Garnishment (Oregon only);

• Injured Worker Status;

• Veteran or Military Membership;

• Family Medical Leave Status; and

• Whistleblower Status.

 
This list is not exhaustive; additional protections may apply to any given worker under a particular set of circumstances.

 

Note, however, that the mere fact that an employee is treated differently than his or her co-workers or is hassled, bullied, or badgered at work does not necessarily mean that the employee has a legal employment discrimination or harassment claim; the treatment must be “because of” one or more of the above categories in order to constitute unlawful discrimination or harassment. If you are unsure whether your claim or a claim against you may fall under one of these categories, contact our office and we will be glad to advise you regarding what options you may have.
 
Wrongful Discharge

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An employer may also be found in violation of Oregon employment law in cases where an employee is terminated because he or she has exercised a job-related right of “important public interest” (such as reporting harassing behavior) or has complied with a public duty (such as serving on a jury). In these instances, an employee may have a cause of action against the employer for wrongful discharge in violation of public policy. 
 
Discrimination

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Employment discrimination generally falls into one of two categories: disparate treatment and disparate impact. Disparate treatment discrimination occurs when one employee or group of employees is treated differently than other employees on the basis of a protected trait. In contrast, disparate impact claims involve a facially neutral policy that, when applied, has the effect of discriminating against a group of people subject to membership in a protected class.
 
Whether you’re an employee who feels as if your rights have been violated by overt or tacit practices, or an employer who wants to be sure your policies are not unfairly discriminatory, our office is happy to discuss your legal rights and responsibilities under Oregon and federal law. 
 
Retaliation

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Just as it is unlawful to terminate or discriminate against someone based on their membership in a protected class, it is also unlawful to terminate or discriminate against someone who decides to report or complain about unlawful or unsafe behavior. 
 
Employees have a right to work in an environment that is free from discrimination and harassment, and should report unlawful behavior to their employers. Employers should encourage employees to report illegal or unlawful behavior so that the employer can take effective steps to remedy it. Likewise, employees should be free to report unlawful activity without fear of reprisal by their employer.
 
Harassment

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There are two types of workplace harassment: “quid pro quo” and “hostile work environment.” When most people think about harassment, they think of quid pro quo sexual harassment, which generally involves a supervisor coercing a subordinate employee to perform sexual favors in exchange for some kind of benefit (such as a promotion) or to avoid some negative consequence (such as a disciplinary letter in the employee’s file). 

Hostile work environment claims are more common, and arise when an employee suffers unwanted harassment that is severe or pervasive; the harasser may be a supervisor, co-worker, or client/customer. Hostile work environment harassment claims may be based on membership in any protected class, not just sex or gender. Quid pro quo harassment is, on the other land, limited to cases where the harassment is sexual or sex-based in nature. 
 
Leave Laws

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Both federal and state laws govern laws related to employee medical leave. The federal law is known as the Family and Medical Leave Act (“FMLA”) and state law is known as the Oregon Family Leave Act (“OFLA”). These laws provide job protection for qualified employees who need to take time off of work to: (1) prepare for or attend to matters relating to the birth or adoption of a child; (2) recover from or treat his or her serious health condition; or (3) care for a family member with a serious health condition. 
 
In order to qualify for medical leave under FMLA, an employee must have worked for a covered employer (50+ employees) for at least 1,250 hours in the twelve months preceding the medical leave.   In order to qualify for medical leave under OFLA, an employee must have worked for a covered employer (25+ employees) for an average of twenty-five hours per week in the 180 days preceding the medical leave.
 
FMLA and OFLA each entitle a qualified employee to take up to twelve (12) weeks unpaid leave from work each calendar year. There are some circumstances under which an employee may take more than twelve weeks per year. The leave does not need to be consecutive (i.e., taken all at one time) and often may be taken intermittently and/or as needed, depending on the specific reason(s) for the leave. 

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Oregon and federal laws relating to protections and accommodations for employees with disabilities may also provide an employee with the right to take leave, depending on the circumstances. 
 
Whether you are an employer who would like to learn more about Oregon and federal leave law mandates and provisions, or an employee wondering about your rights under these leave laws, our office is here to help you.
 
Severance Agreements

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A severance agreement is a contract between an employer and an employee in which, typically, the employer offers to provide the employee with some benefits (usually wages) in exchange for the employee’s agreement to release the employer from legal liability. Severance agreements are common at the end of employer-employee relationships, although their amount and terms vary considerably. 
 
Severance agreements can provide a useful way to extricate an employee from a hostile or discriminatory work place. Further, the agreement works as an assurance to the employer that the employee will not pursue legal action and as a means for the employee to transition out of his/her job while maintaining some security (both financial and otherwise).
 
If you are an employee seeking help with negotiation or advice on the terms of a severance agreement or an employer wondering what is considered fair and just, our office is here to help.
 
Wage and Hour Laws

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Federal and state laws govern wage and hour issues for most employees in Oregon. Employers are required to abide by minimum wage regulations (at different rates for federal and state), and, in most cases, pay overtime at a rate of 1.5x the regular hourly rate of pay for each hour exceeding 40 hours per week.
 
Under Oregon law, covered employees are entitled to 10-minute paid rest periods (or breaks), separate from meal periods, for every 4 hours worked. Meal periods are required for all employees that work more than six hours and should be at least 30 minutes. Employers must also pay their employees for all time worked, including work preparation, concluding or wrapping up work, attending required meetings or training, or even waiting on the job, so long as the time could not be used effectively for the employee’s personal reasons.
 
Oregon also requires employers to maintain regular paydays and to provide their employees with a statement of any deductions from his or her wages. Deductions may be lawfully made for taxes and for the fair market value of meals and lodging for the benefit of the employee. Additional deductions may only be made if they are (1) authorized by the employee and (2) for the employee’s benefit. 
 
When an employee quits a job, he or she should be paid all remaining wages on the final day of work so long as the employee provides forty-eight (48) or more hours of notice. If the employee quits and does not provide notice, all remaining wages must be paid within five (5) business days. If the employee is fired, the employer must pay the employee all of the remaining wages no later than the end of the first business day after the termination. If the employer fails to pay the employee his or her final wages promptly, the employer may be subject to statutory penalties.
 
Penalties, Damages and Compensation

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Depending on the specific facts of a case and underlying causes of action, federal and state statutes – as well as common law claims – provide for a variety of remedies under the law. These remedies include, but are not limited to:
 

• Monetary relief for lost wages and loss of employment benefits;

• Back pay;

• Front pay;

• Injunctive relief;

• Reinstatement;

• Compensatory damages for emotional distress and mental anguish;

• Attorney’s fees and costs; and

• Punitive damages.

 
For these reasons, if you believe that you have been the victim of an unlawful employment practice –  or, in the case of an employer, if you believe you may have knowingly or unknowingly participated in or committed an unlawful employment act – it is extremely important to speak with an attorney experienced in employment law matters 
 
Threshold Requirements and Qualifications

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Generally, both Oregon and federal employment laws have threshold requirements and qualifications for applicability, such as the number of full or part time employees an employer must have, how many hours the employee must have worked to be eligible under the law, and whether the worker is an employee or an “independent contractor.” For an in-depth analysis of your particular circumstances, please contact our office to discuss your situation.