Labor & Employment Law Alert: New Oregon Law Provides Leave for Crime Victims

On August 18, 2003, Oregon Governor Kulongoski signed Senate Bill 610, requiring employers to provide eligible employees with unpaid time off from work to attend criminal proceedings involving crimes in which they or their immediate family members were victims. The law becomes effective January 1, 2004 and is patterned after the requirements of the Oregon Family Leave Act. The key provisions of the new law provide that:

• An employer is subject to the law if it employs six or more employees within Oregon during each working day for 20 or more calendar workweeks during either the calendar year in which an employee requests leave to attend a criminal proceeding or in the immediately preceding year.
• An employee is eligible for crime-victim leave if he or she is employed by a covered employer, has worked an average of 25 hours or more per week in the 180 days prior to a request for leave, and is a "crime victim." The law defines a "crime victim" as an individual who has "personally suffered financial, social, psychological or physical harm as a result of a felony" or who is "a member of the immediate family of" the crime victim. "Immediate family member" includes the spouse, domestic partner, parent, grandparent, sibling, child or stepchild of a crime victim.
• There is no maximum length of crime-victim leave. However, an employer may limit-but not avoid altogether-the amount of leave an employee may take if the employer can show that the employee's leave creates an "undue hardship" on the employer's business. "Undue hardship" is defined as "a significant difficulty and expense to a business" considering both the employer's size and critical need for the employee. Once an employee notifies the prosecuting attorney that taking a leave would cause undue hardship to his or her employer, the prosecuting attorney and the court or hearing body must take the employee's schedule into consideration when scheduling the proceeding.
• Eligible employees must provide reasonable notice of their intention to take crime-victim leave and must provide to the employer copies of any criminal-proceeding scheduling notices.
• Employers must keep all records regarding an eligible employee's crime-victim leave confidential.
• Crime-victim leave is unpaid unless otherwise provided by an employer's policies or an applicable collective bargaining agreement. However, an eligible employee must be allowed to use any paid accrued vacation or other accrued paid time off offered in lieu of vacation to receive compensation during the crime-victim leave. Employers may determine the order in which any accrued paid leave is to be used, if more than one type is available.
• It is an unlawful employment practice for employers to deny an eligible employee crime-victim leave or to discharge, threaten to discharge, intimidate or coerce an employee because the employee requests or takes such leave. The law, however, is not subject to the Bureau of Labor and Industries' administrative review. Instead, an aggrieved employee may proceed directly to court, although, as a result of an apparent drafting error, there is no express statute of limitations. Employers will likely argue that the limitations period should be limited to one year as is typical in unlawful-employment-practices cases. Plaintiffs, however, will likely rely on language that suggests a possible two-year statute of limitations.

Although situations in which crime-victim leave may be appropriate are infrequent, we recommend that all employers update their policies before the law's effective date.