PAY EQUITY, PAID TIME OFF, & THE CHANGING FACE OF …...© Trupp HR, Inc. 2017 Christine Thelen,...

© Trupp HR, Inc. 2017

Christine Thelen, SPHR/SCPDirector of HR Services

PAY EQUITY, PAID TIME OFF, & THE CHANGING FACE OF WAGE &

HOUR LAWS


AGENDA

1. Paid Sick Leave2. WA Paid Family & Medical Leave3. OR Predictive Scheduling Law4. Minimum Wage 5. Pay Equity Laws



Portland Mandatory Sick Leave

OREGON & WASHINGTON

PAID SICK LEAVE



WHO NEEDS TO COMPLY?

Employers within Portland city limits

and 6 or more employees also

must provide paid time off


All Employers

OREGON WASHINGTON

Starts January 1, 2018

10 or more – need to provide PTO

9 or less – unpaid time is okay


SICK LEAVE EMPLOYEE ELIGIBILITY

• Includes employees who work within the state

• Includes all employee classifications


Washington: May exclude exempt employees

Oregon: Does not include:• independent contractors,

• employees receiving sick leave under Federal law

• employees covered by a CBA


EARNING SICK TIME –ACCRUAL VS. FRONTLOADING

Accrual FrontloadOregon 1 hour for every 30

hours worked (0.0334 per hour)

Frontload 40 hours

Washington 1 hour for every 40 hours worked

(0.025 per hour)

Written and readily available policy & hours must meet

accrual requirements


• Employees receive hours at the beginning of the year

• Can pro-rate hours in first year• “Year” can be any 12 month period

• 90-day waiting period allowed• Not required to pay out unused time• Not required carryover hours into

subsequent year

FRONTLOADING SICK TIME

Washington: Must monitor to ensure sufficient time is earned


• Employees earn time based on hours worked • Sick time does not need to accrue during times of paid or unpaid

leave• Accrual starts on the employee’s first day; 90 day waiting

period can be applied• Can carryover up to 40 hours into subsequent year• Oregon:• Can limit accrual to 40 hours per year • Can limit accrual to 80 hours total• Can limit use to 40 hours per year• Exempt employees earn based on their standard work

week (presumed to be 40 hours unless regularly work less)

ACCRUING SICK TIME


Diagnosis, care, or treatment of the employee’s, or the employee’s family member’s mental or physical illness, injury or health condition including, but not limited to, pregnancy, childbirth, post-partum care and preventive medical care.

Medical Treatment

QUALIFYING REASONS TO USE SICK TIME - OR

Absences related to domestic violence, harassment, sexual assault or stalking.

Special Circumstances

Public health emergency or exclusion for work for public health reason.

Public Health

Any other reason allowed under OFLA, such as bereavement leave or parental leave.

OFLA



Mental or physical illness, injury, or health condition; medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or preventive medical care.

Medical Treatment

QUALIFYING REASONS TO USE SICK TIME - WA

Absences related to domestic violence, sexual assault or stalking.

Domestic Violence

Public health emergency or exclusion for work for public health reason, or closure of child’s school for health reason.

Public Health



EMPLOYER RULES - OREGON

Can require:• Following employer rules for

requesting and reporting sick time

• Reasonable notice• No more than 10 days, for

foreseeable time off• Reasonable efforts to

scheduling foreseeable time off in a manner that does not “unduly disrupt operations”

Cannot require:• Finding a replacement • Making up missed time;

can allow employees to do so in lieu of taking sick time


EMPLOYER RULES - WASHINGTON

Can require:• Following employer rules for

requesting and reporting sick time

• Reasonable notice• No more than 14 days for

foreseeable time off• By start of shift for

unforeseeable time off• End of the first day for

domestic violence related leave

Cannot:• Finding a replacement • Making up missed time;

can allow employees to do so in lieu of taking sick time

• Discipline for legitimate use of sick time


DEALING WITH SICK TIME ABUSERS -

OREGONHealthcare provider verification can be requested when:

• Employee has more than three consecutive workday absences

• Employee appears to be abusing sick time, such as demonstrating a pattern of abuse

* Employers must pay related out of pocket costs and lost wages



DEALING WITH SICK TIME ABUSERS -WASHINGTON

Healthcare provider verification can be requested when:

• Employee has more than three consecutive workday absences

• Employer publishes policy regarding documentation requirements

• Employees have at least 10 days to submit documentation; except domestic violence related leave

• If concurrent with FMLA, then FMLA rules apply



OREGON• Employees may use accrued sick time in increments of no

more than 1 hour• Undue hardship exception

• Default Sick Leave Pay Rate = Employee’s base rate• Does not include tips, service charges, commissions, bonus,

piece rates, overtime, etc.• Commission/Piece rate only = higher of standard

hourly rate or minimum wage• Multiple rates of pay = What would have been paid or

average wage from previous pay period

PAYING SICK TIME


PAYING SICK TIMEWASHINGTON• Employees may use accrued sick time in increments equal to

increments in which they are paid (but no more than 1 hour)• Good cause exception

• Default Sick Leave Pay Rate = Employee’s base rate• Does not include tips, service charges, commissions, bonus, piece

rates, overtime, etc.• Commission/Piece rate only = Reasonable calculation of

what would have otherwise earned• Suggests average hourly rate of pay in the current or preceding

pay period, whichever yields the higher hourly rate• Multiple rates of pay = hourly rates of pay for which the

employee was scheduled work• Alternative = reasonable calculation of what would have

otherwise earned; suggests average hourly rate of pay in the current or preceding month, whichever yields the higher hourly rate


ADDITIONAL CONSIDERATIONSRehires Separation Rules

Oregon If rehired within 180 days:• Must restore unused

sick leave• Must apply prior service

to any waiting period

Not required to pay out

Washington If rehire within 12 months:• Must restore unused

sick leave that has notbeen paid out

• Must apply prior service to any waiting period

Not required to pay out, but can if mutually agreed upon in writing


NOTIFICATION

OREGON• Notice to all employees of

rights based on BOLI Model Notice

• End of the first pay period• Individual notice, notice

in Handbook or poster• Quarterly notification of

total accrued and unused sick time available for use

WASHINGTON• Notice to all employees of

rights and company policy by:

• March 1, 2018 for current employees

• First day of employment for new hires

• Monthly notification of total accrued and used time, and available balance


WASHINGTON PAID FAMILY AND

MEDICAL LEAVE



PROGRAM STRUCTURE• Includes all Washington employers• Funded through payroll deductions

• Deductions begin January 1, 2019• Premium = 0.4 percent of an employee’s wages• Employer pays at least 37.5%, employee no more than 62.5%

• Employers may opt out if have comparable plan and pay $250 fee to have plan evaluated/approved

• Small Employer Opt Out Considerations• Employers with fewer than 50 employees may elect not to

pay the employer premiums• Small employers (fewer than 150 employees) eligible for

$1,000 to $3,000 grants to offset wage costs related to leave


EMPLOYEE BENEFITSBEGIN JANUARY 2020

Employee Eligibility

• 820 hours in a “qualifying period” (roughly the previous 12 months)

• Can get waiver for temporary Washington employees (less than 820 hours in a qualifying period)

Waiting Period • 7 days, except for birth/placement of child

Qualifying Reasons

• Mirror the Family and Medical Leave Act (FMLA)

Benefit • 90% of average weekly wages at or below state average weekly wage (currently $1,082); 50% for all wages above

• Max benefit=$1,000Benefits Period(Pro-rated)

• 12 weeks of family or medical leave; or• 14 weeks of family or medical leave if the employee

experiences a pregnancy-related serious health condition; or• 16 weeks of combined family and medical leave; or• 18 weeks of combined family and medical leave if the

employee experiences a pregnancy-related serious health condition


PREDICTIVE SCHEDULING

effective July 1, 2018

Applies to:• Food service, hospitality, and retail entities/franchises

who operate in Oregon and have at least 500 employees worldwide

• Non-exempt employees performing services relating to food services, hotels, motels, casino hotels, and retail trade (excludes exempt employees)



REQUIREMENTS IN BRIEF• Written, good faith estimate of employee’s work schedule,

including median number of hours employee can expect to work in an average one-month period, and details around voluntary standby and on-call scheduling

• Post written work schedule at least 7 calendar days in advance (14 days in 2020) and stick to it.

• 10 hour rest period between shifts, unless waived; one-half-times employee’s regular rate of pay for hours worked in violation of this rule

• One hour of pay in addition to wages earned when schedule is changed without consent but does not result in lost hours.

• One-half-times the employee’s regular rate of pay for each scheduled hour that employee does not work (in excess of 30 mins.)


MINIMUM WAGE



WASHINGTON MINIMUM WAGEJan 2017 Jan 2018

Standard Rate* $11.00 $11.50Seattle $13.50 - $15 for 500+ EEs

Depends on benefits offered

$11-13 if <500 EEsDepends on tips and

benefits offered

Annual indexing starts for 500+ EEs

$11.50-14 if <500 EEsDepends on tips and

benefits offeredTacoma $11.15 $12.00City of SeaTac (Hospitality and transportation workers )

$15.34 Annual indexing starts

* Standard rate reaches $13.50 in 2020, then adjusted annually, consistent with Consumer Price Index


OREGON MINIMUM WAGE

July 2017 July 2018

Standard Rate $10.25 $10.75

Portland Metro (within Urban Growth Boundary)

$11.25 $12.00

Nonurban Counties (mostcentral and eastern counties)

$10.00 $10.50

• Portland Metro = $1.25 over standard rate

• Nonurban = $1.00 less than standard rate

• Standard rate reaches $13.50 in 2022, adjusted annually, consistent with Consumer Price Index


OREGON’S PAY EQUITY ACT


THE LEGAL LANDSCAPEFederal Laws

• Equal Pay Act (1963)• Title VII (1964)• EEO-1 Reporting (2017)

State and Municipal Laws• General laws on the books as far back as the 1940s• Big push in last few years to expand these laws in

scope and enforcement• Expanded scope of comparable jobs• Limited acceptable reasons for pay disparities • Reduced the allowable difference• Increased penalties for violations• Added additional, related prohibitions


ANATOMY OF A PAY EQUITY LAW

Pay Equity Law

Prohibition Against

Unequal Pay

Limitations on Use of Prior

Wages

Pay Transparency

Remedies & Safe Harbors

Noticing Provisions

Anti-Retaliation

Clauses


LIMITS ON USE OF PRIOR WAGESEffective 10/9/2017

• Why is this an issue?• Perpetuates pay practices that can lead to

or be construed as pay discrimination • What are the typical limits?

• Asking employee or prior employer about previous pay level

• Using prior pay in making screening decisions• Using prior pay in making new hire pay

decisions


PAY TRANSPARENCYEffective 1/1/2019

What are the typical limits?• Employees must be allowed to inquire about, disclose and discuss their own

pay• Employees cannot waive rights to inquire about, disclose and discuss their

own pay• Employees can inquire about, disclose and discuss pay of others (excludes

unauthorized disclosure by an employee who has access to wage information as part of his/her job function)

Why is it an issue?

Fewer secrets about pay Greater likelihood of equitable pay practices


PROHIBITION AGAINST UNEQUAL PAYEffective 1/1/2019



Who is protected?• Sex/gender, race, color, religion, national origin, sexual

orientation, marital status, veterans status, disability, ageWhat compensation counts?

• Wages, salary, bonuses, benefits, fringe benefits and equity-based compensation

What jobs are considered comparable?• Equal work (skill, effort, responsibility), similar working conditions• Substantially similar work (skill, effort, responsibility and working conditions)

How does geography fit in?• Same establishment• Same geographic region• Treated as a bona fide differentiator*

MEASURING PAY EQUITY


MEASURING PAY EQUITYWhen does different pay become unequal pay?

• Statistical significance vs total equalityWhat are the bona fide factors for pay differences?

• Seniority system• Merit system (Performance)• System that measures earnings by quantity or quality of production• Education/training• Experience• Geography• Travel


FIXING PAY EQUITY

Limits on methods• Can’t reduce employee pay to remedy

situation*• Can’t waive right to equal pay

Remedies• Unpaid wages• Other compensatory and punitive damages• Attorneys fees• Safe harbors


SAFE HARBORS

Oregon – limited defense• Compensatory and punitive damages based on employer’s

fraud, malice, or willful and wanton misconduct can be disputed if:

• Completed an equal-pay analysis of pay practices in good faith that:

• Was reasonable in detail and scope• Related to the protected class asserted • Was done within three years before the date that the

action was filed• Eliminated the wage differentials for the plaintiff• Has made reasonable and substantial progress toward

eliminating wage differentials for the protected class


WHAT CAN WE DO TO PREPARE?

Compensation Philosophy

HiringPractices

Compensation Structure

PayPolicies

Audit Pay & Benefits

AddressInequities

EquipYour People


QUESTIONS?TRÜPPChristine Thelen SPHR/[email protected]


BIGGS INSURANCETyson Fuehrer360.828.3705tyson.fuehrer@biggsinsurance.comwww.biggsinsurance.com

PAY EQUITY, PAID TIME OFF, & THE CHANGING FACE OF …...© Trupp HR, Inc. 2017 Christine Thelen,...

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