BOLI Enacts Temporary Rules Implementing Senate Bill 483
Senate Bill 483 was signed into law by Governor Brown on June 15, 2021. Yesterday, the Bureau of Labor and Industries filed Temporary Rules with the Secretary of State implementing the bill.
SB 483 creates a rebuttable presumption in the Oregon Safe Employment Act. Under SB 483, if an adverse action is taken against an employee within 60 days of the employee engaging in a protected activity, it is presumed that the adverse action was because of the protected activity. This means there is a presumption the employer has engaged in retaliation and/or discrimination. Protected activities under the Oregon Safe Employment Act include (but are not necessarily limited to):
Opposed a practice forbidden by the Oregon Safe Employment Act;
Made any complaint or instituted or caused to be instituted any proceeding under or related to the Oregon Safe Employment Act or testified in or is about to testify in any such proceeding;
Exercised on behalf of the employee, prospective employee or others any right afforded by the Oregon Safe Employment Act; or
In good faith reported an assault that occurred on the premises of a health care employer as defined in ORS 654.412 or in the home of a patient receiving home health care services.
The rebuttable presumption shifts the burden to the employer only where disciplinary action is taken within 60 days after protected activity. If an adverse action is taken against the employee within 60 days of the protected activity, the employer must then produce evidence of a non-discriminatory reason for the adverse action. SB 483 does not make any changes to situations where the disciplinary action is taken more than 60 days after the protected activity. In those instances, the employee still bears the burden to prove discrimination for engaging in protected activity.
What this means for employers is that documentation of performance issues has become that much more important. It is pivotal that performance issues be documented as soon as they are observed and regularly followed up with and documented thereafter. Documentation of a performance issue that led to the adverse action could rebut the presumption that the adverse action was taken because of the protected activity. Employers should also look at updating their anti-retaliation and discrimination policies to include whistleblowing activity. Finally, employers should be cognizant of issues raised by anonymous complaints. Although an employer can point to the anonymous nature of a complaint to rebut allegations of discrimination, it is also important to safeguard anonymous complaints. Too often, in an effort to find out who filed a particular anonymous complaint, employers jeopardize this potential defense.
As written, the BOLI rules appear to suggest an employer can rebut a presumption by showing the violation did not occur. This does not appear to be consistent with SB 483 and we have written to BOLI to suggest alternate language.
If you have any questions regarding this or any other employment matter, please contact me at 503-412-3105 or .