Corvallis attorney John Barlow, an expert in employment law, says the Oregon Legislature is making survival more difficult for small businesses by extending additional benefits through the state’s new family leave act and other laws.
“I think they’re doing it with the best of intentions, but…” Barlow said in a recent interview, his voice trailing off.
Barlow will discuss the Legislature and other aspects of employment law during the Corvallis Chamber of Commerce’s lunch forum on Wednesday. The event is scheduled from noon to 1:30 p.m. at the Courtyard by Marriott, and the admission cost is $20 for members and $30 for nonmembers. For more information, go to http://www.corvallischamber.com/calendar.html.
Part of the problem with the Legislature, Barlow said, is that it doesn’t have enough small business owners such as state Rep. Shelly Boshart Davis as members.
“People like that need to get involved,” Barlow said. Boshart Davis, a Republican who represents Albany, Millersburg, Tangent and other areas, is part of a farm family and the owner of a trucking company.
“She’s a good voice for small businesses because she comes from that background,” Barlow said.
Too many politicians are detached from the realities of running a shop or restaurant, he added.
Another factor is the supermajority held by Democrats in both the Oregon Senate and the Oregon House of Representatives. A supermajority means that one party has three-fifths control in each chamber. The supermajorities mean that Democrats could pass tax increases without the support of a single Republican lawmaker.
“A lot of these folks are pretty beholden to public employee unions,” Barlow said.
From that perspective, extending benefits has outweighed the concerns of small business owners, he added.
Barlow said the Legislature is stepping up to become more active in labor issues in part because of declines in the number of unionized employees.
When he started practicing law nearly four decades ago, about a quarter of the country’s workforce was unionized.
Today, that stands at close to 11 percent, and only about 6 percent of private sector workers belong to unions, Barlow said.
In terms of small business, he said, the biggest decision to come from the 2019 legislative session is Oregon’s new family leave act.
The time workers will be able to take off under the new law is far more extensive than before, Barlow said.
While the federal family leave law impacts companies of 50 workers or more, and the old Oregon law covered businesses of 25 or more, the new law covers all businesses, Barlow said.
The law, which has been described as the first of its kind in the nation, will provide for employers to be paid up to 100 percent of their wages. “It’s a fairly generous weekly wage, up to $1,200 a week,” Barlow said.
“What’s going to be interesting now is there’s going to be a fund distributed like unemployment compensation. More people will take leave because there’s more prospect for payment,” he predicted.
Barlow said there’s no question employers will have to be more flexible when key workers take leave.
He also was concerned that the family leave act was passed on the final day of the legislative session. “When you put up a bill 12 hours before adjournment, not everyone is going to have a full understanding of what the implications are,” Barlow said.
The act will result in more effort and expenditures for small businesses.
“Most mom and pop restaurants, they don’t have an HR director. They’re doing payroll on a table at night,” Barlow said.
Actions by previous legislatures also are continuing to take effect, as well:
• Another minimum wage hike for Oregon takes place in July. The schedule of minimum wage increases was passed in 2015.
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The minimum wage increases put pressure on smaller employers, resulting in raises given to people being paid more than the minimum, Barlow said. Those costs end up being passed down to consumers, he added.
• Oregon’s pay equity act of 2017 also is starting to be implemented.
Employers need to start analyzing workers’ duties to ensure they are paying people the same for the same work and not inadvertently discriminating.
• The health insurance premium act of 2017 could result in rate increases for small businesses.
• Another law, the predictive scheduling law, designed to impact franchise restaurants, was passed in 2017 and has taken effect. The law requires employers to provide more notice of workers’ schedules.
Barlow worried the threshold for the scheduling law would get lower and lower and could hit small businesses.
Law isn’t just created by the Legislature, and the status of independent contractors has been more firmly defined thanks to recent courtroom decisions, Barlow said.
Regarding unemployment and workers compensation, “I have a red flag when someone says there’s an independent contractor relationship. Most of them aren’t,” Barlow said.
Barlow also plans to discuss issues such as sexual harassment and discrimination and marijuana in his remarks at the chamber session.
He said there’s never been a time in his career when he didn’t have an active sexual harassment or sexual discrimination case.
Employers can inoculate themselves by having clear policies and educating employees.
“The policy is only good if they employees know about it,” Barlow said.
Such policies covering sexual harassment, discrimination and other factors used to be a good idea. Now they’re required by law, he said.
Much of sexual harassment and discrimination is due to intentional conduct, and a generational disconnect is fueling many claims, Barlow said.
“Times have changed. What was OK a generation ago isn’t OK anymore. People do things that they think are funny. Remember when people told Polish jokes?” he said.
The disagreement between state and federal laws is another sign of the times.
Barlow said Oregon employers can fire a worker for failing a drug test, even if they are medical marijuana card holders.
A zero-tolerance policy for drug use is necessary for certain workplaces, such as rare metal firms in Albany, he said. But he cautioned that a zero tolerance policy might not be a good idea for many businesses. In other workplaces, a zero tolerance policy ends up in talented workers being fired for using marijuana off the job.
“It’s a horrible place for employers to be in,” Barlow said.
Barlow, who grew up south of Portland, became fascinated by labor issues early in life.
His father was a millwright who went on a “wildcat” strike — without authorization from the union — and walked the picket line with other workers during the winter of 1964.
The wildcat strikers thought their union wasn’t doing enough for West Coast pulp mill workers, and they were prepared to tighten their belts during the holidays.
But they were brought back to work during the Christmas flood of 1964 to jack up massive pump machines and other equipment.