(Un)Common Sense Lawyer: Portland, Oregon Small Business Law Blog

Congratulations!  Your Oregon small business is successful enough that you can afford to hire some help.  Hiring your first employee is a monumental step on your journey to grow your business into the next Google (well, okay, I embellish for dramatic flare, but it’s a big step nonetheless).  Now just make sure you don’t fall victim to the pratfalls of failing to comply with Oregon and federal employment laws.

Something as seemingly innocuous as screening and interviewing potential employees needs to be approached carefully.  Numerous state and federal statutes exist to protect employees and prospective employees from illegal discrimination.  Do your homework!  And follow this little axiom: Don’t ask any question to a potential employee unless it’s relevant to the job he or she will perform, ESPECIALLY if the question relates to a protected class or status.  And after you’ve hired someone, do not, do not, do not, make advancement decisions or create policies that disfavor or disadvantage members of a protected class.

And as long as we’re putting important things in bold: remember that unlike most federal statutes, Oregon law prohibits discriminating against protected classes even if you only have one employee.  New employees are great, but disgruntled employees or rejected interviewees who have grounds to sue you are not!  This section discusses protected classes that you need to be aware of when making hiring and advancement decisions and in crafting employment policies.

Protected classes under federal and Oregon law

The protected classes outlined under Title VII of the 1964 Civil Rights Act kick in when an employer employees 15 employees.  The Oregon protections, however, kick in after the first employee (I know I already mentioned this, but it’s important).

Federally protected employee classes under Title VII

• Race
• Color
• Gender
• National Origin
• Religion
• Association with the above protected classes
• Retaliation (you cannot take adverse action against an employee who objects to unlawful employment practices, files a complaint, or otherwise exercises his or her rights under federal law).

But wait, there’s more federally protected employee classes

• Disability under the ADA
• Military and veteran’s status under the USERRA (applies even if you only have one employee)
• Age if the applicant or employee is over 40 (must have over 20 employees to be applicable)
• Family and medical leave under FMLA (over 50 employees)

Oregon protected employee classes

• Race
• Color
• Gender
• National origin
• Religion
• Sexual orientation and gender identity
• Association with the above protected classes
• Retaliation
• Age if over 18
• Oregon family and medical leave (25 or more employees)
• Physical or mental disability (six or more employees)

Additional Oregon statutory protections for employees:

• Marital Status
• Family Relationship
• Prohibition on Genetic Screening and Brain-wave Testing
• Right to Testify at Employment Division Hearings
• Access to Employer-owned Housing
• Right to Report Health Care Violations
• Volunteer firefighter leave, ORS 476.574
• Expunged Juvenile Record
• Prohibition on Polygraph Exams
• Limits on Breathalyzer and Blood Alcohol testing
• Leave to Donate Bone Marrow
• Victims of Domestic Violence
• Leave for Victims of Domestic Violence
• Injured Workers (six or more employees)
• Leave for spouses of military service members called to active duty (in companies with 25+ employees)
• Military services member status
• Veterans status
• Veterans’ preference in public employment
• Child support garnishment, ORS 25.424