Employer Alert – SB 483
Oregon’s Anti-Retaliation Law Now in Effect
What’s New
On June 15, 2021, the Oregon Governor signed SB 483 into law, effective immediately. This bill extends protections for workplace whistleblowers in Oregon, making it easier for workers to claim retaliation if punished or terminated by their employers after making a workplace complaint. The SB483 law says, if an employee makes a complaint about employment matters or safety, and is terminated within 60 days of that complaint, then the employer is legally presumed to have retaliated.
What’s Changed?
While it is already illegal for employers to retaliate against a worker for reporting workplace health and safety violations, the burden of proof of retaliation had previously rested solely on the worker. The new law now transfers the burden of proof onto employers for the period immediately following such a report, complaint, or testimony, creating a presumption of guilt for employers accused of retaliation.
Why it Matters
There is no requirement that complaints must have merit. In fact, the system was designed that way to help Oregon Occupational Safety and Health Administration (OR-OSHA), or the Bureau of Labor and Industries (BOLI) resolve disputes between employees and employers. This system could be abused by marginal employees who know they are under scrutiny by employers.
How You Terminate an Employee will Impact Your Business
Currently, all employment is “at-will” unless there is an employment contract with different terms. An exception to “at-will” employment is that you cannot terminate someone who has filed a complaint, as doing so would violate the “whistleblowers” public policy. If the employer lets an employee go within 60 days of a complaint about safety to OR-OSHA, the employee is protected from retaliation, i.e., termination.
The Employer Will Need to Prove that the Reason for Termination Was Unrelated to the Complaint
(Recommended) Best practice: Always document the reason(s) an employee was let go. Theft or insubordination are good examples where an employee can or should be terminated. Just make it is a specific reason(s) you can testify for that they were let go.
(Not Recommended) Bad Practice: Take caution in terminating an employee as ‘not a good fit.’ Generally, that is fine in the first 90 days—sometimes longer, depending on the employer’s business practices. Although, be careful to check that there were no whistleblower-type complaints made by the employee. It is critical that you document why the employee was not a good fit on an ongoing basis. It is hard, and not as credible, to go back and piece together why the employee did not work out.