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Model Policies and Forms

for Oregon Employers


And How to Use Them

Copyright © 2009 by American Chamber of Commerce Resources, LLC. All rights reserved. No
part of this publication may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including (but not limited to) photocopy, recording, or any information
storage and retrieval system, without the express written consent of American Chamber of
Commerce Resources.

The information in this guide is being provided by the authors and publisher as a service to the
business community. Although every effort has been made to ensure the accuracy and
completeness of this information, the authors and publisher of this publication cannot be
responsible for any errors or omissions, or any agency’s interpretations, applications and
changes of regulations described in this publication.

“This publication is designed to provide accurate and authoritative information in regard to the
subject matter covered. It is sold with the understanding that the publisher is not engaged in
rendering legal, accounting or other professional service. If legal advice or other expert assistance
is required, the services of a competent person should be sought.”

– from a Declaration of Principles jointly adopted by a committee of the American Bar


Association and a Committee of Publishers and Associations.

i
Copyright © 2009 by American Chamber of Commerce Resources, LLC. All rights
reserved. No part of this book may be reproduced or copied in any form without permission
from the publisher, except where expressly permitted.

This publication presents a summary of information that is intended to be accurate and


authoritative. The publisher and the authors cannot be responsible for any errors, omissions, or
changes in the material presented, nor for any administrative or adjudicative body’s interpretation
or application of the legal premises upon which this material is based.

This publication is an attempt to summarize certain legal principles in the field of employment-
related and labor laws and regulations, but should not be considered legal advice. Varying factual
circumstances may require special consideration. Should you have any questions, you should
contact legal counsel for advice related to specific topics and circumstances.

This publication is available from:


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(866) 439-2227
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Price: For information on ordering, including quantity discounts and distribution arrangements,
contact American Chamber of Commerce Resources at (866) 439-2227.

ACCR Dedication: This book, and the entire Human Resources Library, is dedicated to
Dick Apland, who spoke his piece, shared a piece and was at peace. Thanks Dad.

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Foreword from Associated
Oregon Industries

2009 Model Policies and Forms for Oregon Employers


Published by Associated Oregon Industries

Leading Oregon to Greater Prosperity

It is the goal of the 2009 edition of the AOI Model Policies and Forms for Oregon
Employers guide to help you achieve a new level of efficiency and productivity in your
workplace environment.

This manual contains, as of the printing date, the most recent revisions to statutes and
regulations. Employers, who keep current, are able to focus their time and effort on running
their business – rather than dealing with personnel issues.

With 16 chapters, 326 pages, an easy-to-use index, sample policies, and examples the 2009
edition of Model Policies and Forms for Oregon Employers minimizes the need to cull
through multiple resources. You will find the information you need quickly in this manual. And,
best of all, everything in this manual is written for Oregon businesses.

This publication is made available by the members Associated Oregon Industries as a service to
the Oregon business community. AOI has more than 1,600 member companies, in every region
of Oregon, who employee over 200,000 people. This is a large, active and motivated
membership. For over 113 years, AOI has been the organization Oregon businesses trust to work
on issues the company can’t manage alone. To learn about AOI and how your company will
benefit from membership visit www.aoi.org or call 503-588-0050.

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About Barran Liebman LLP

Barran Liebman LLP attorneys practice labor and employment law exclusively for employers.
Our attorneys constantly study new developments in the laws and regulations that affect
employers.

Many of our attorneys have been practicing for almost three decades and have solidly established
national reputations. Consequently, our attorneys are sought-after speakers in labor and
employment issues, both locally and nationally. Our attorneys are called upon to help train
judges and other attorneys on topics related to labor and employment law in seminars held
throughout the year. Radio, newspaper and TV reporters frequently rely on our lawyers as
sources of important information on labor and employment law issues.

To learn more about any of our attorneys or our law firm, please get in touch with us using the
contact information below:

Barran Liebman LLP


601 SW 2nd Avenue, Suite 2300
Portland, OR 97204-3159
Phone: (503) 228-0500
Fax: (503) 274-1212
Website: www.barran.com

Client Services Director


Traci Hopfe
Phone: (503) 276-2115
Email: thopfe@barran.com

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About the Editor

Tamara E. Russell – Tamara E. Russell is a partner of Barran Liebman LLP. Her practice
focuses on representing management and employers in a full spectrum of employment law
matters in state and federal courts and before state and federal administrative agencies. Russell is
a frequent presenter on legal issues in the human resources field. In June 2006, Oregon Governor
Kulongoski appointed Tamara to serve as a management member of the Oregon Department of
Employment’s Employment Advisory Council. In 2007, State Superintendent of Public
Instruction, Susan Castillo, selected Tamara to serve on her “Business Advisory Team.” The
same year, she was selected by the Portland Business Journal as one of Oregon’s “Forty Under
40.” In 2008, Tamara was named in Oregon Super Lawyers as a “Rising Star.” She received her
J.D., with honors, from Boston University School of Law. She is admitted to practice in Oregon
and Washington.

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Editor’s Foreword

Dear Reader:

On behalf of the Associated Oregon Industries and Barran Liebman LLP, welcome to the 2009
edition of the Model Policies and Forms for Oregon Employers.

We believe that successful (and mutually beneficial) employer-employee relationships start with
employment policies and procedures that are clear, accessible and well-publicized. At the same
time, changes in employment law can create uncertainty and add complexity to this vital
relationship. Thus, all employment policies should strive to be flexible yet compliant, adaptable,
and practical. A well-written employee handbook can assist in achieving all of that.

In creating and updating the 2009 edition, we endeavored to create a user-friendly guide that took
into account these principles. We also considered and implemented significant legal requirements
and practical employee relations issues every Oregon employer should consider before
implementing, updating or deleting any personnel policy. We hope you will agree that Oregon
employers deserve a reference guide like Model Policies that appreciates the unique nature and
scope of Oregon’s employment laws, and not a one-size-fits-all (or out-of-state) employee
handbook reference guide. We also hope that by using both the sample policies and legal
concepts provided, you will emerge with a more complete understanding of the complexities of
the employment relationship in Oregon.

We hope that as you begin to develop or revise your company’s employee handbook or
employee policies that you will find this guide of benefit. If, in the process of using this guide,
you have questions regarding the policies or the accompanying legal discussions, please contact
me by phone at (503) 276-2182 or by e-mail at trussell@barran.com.

With best wishes for beneficial employee relations,

Tamara E. Russell
Partner
Barran Liebman LLP
601 S.W. Second Avenue, Suite 2300
Portland, Oregon 97204-3159
www.barran.com

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x
Chapter Table
of Contents

How to use this book......................................................................................... 1

1. Introduction....................................................................................................... 3

2. Job descriptions and applications....................................................................... 7

3. Candidate screening...........................................................................................29

4. Time of hire ......................................................................................................39

5. General policies ................................................................................................51

6. EEO policies .....................................................................................................89

7. Time off and leaves of absence..........................................................................97

8. Employee benefits ..........................................................................................153

9. Hours of work and overtime............................................................................205

10. Performance reviews, promotion and layoff ....................................................221

11. Confidentiality and conflicts of interest...........................................................239

12. Complaint-reporting procedures .....................................................................247

13. Personnel records and recordkeeping requirements ..........................................253

14. Miscellaneous issues.......................................................................................261

15. Termination of employment............................................................................281

16. Acknowledgment-of-receipt of handbook........................................................291

A. Posting requirements.......................................................................................293

xi
B. Compliance thresholds ....................................................................................305

C. Index of forms and sample policies..................................................................309

Index...............................................................................................................313

xii
Table of Contents

Introduction
How to use this book .............................................................................1
Chapter 1
Introduction............................................................................................3
Why have a handbook ....................................................................................................3
Oregon courts approve of and enforce employee handbooks...........................................4
What information must be included in an employee handbook .......................................4
Chapter 2
Job descriptions and applications..........................................................7
Job descriptions..............................................................................................................7
Job applications..............................................................................................................7
Job description .............................................................................................................10
At-will employment application ...................................................................................11
At-will employment application (Second Version) .......................................................14
At-will employment application (Third Version) ..........................................................20
At-will employment application (Fourth Version) ........................................................23
Fair Credit Reporting Act Disclosure and Authorization...............................................27
Chapter 3
Candidate screening ............................................................................29
Interviewing applicants ................................................................................................29
Employment interview analysis ....................................................................................31
Interviewer evaluation..................................................................................................32
Background and reference checks.................................................................................33
Reference release form .................................................................................................34
Reference inquiry .........................................................................................................35
Employment reference..................................................................................................36
Authorization for release of information.......................................................................37
Chapter 4
Time of hire ..........................................................................................39
Required documentation...............................................................................................39
New employee checklist ...............................................................................................40
W-4 form................................................................................................................41
I-9 form ..................................................................................................................43
New employee checklist .........................................................................................48

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Chapter 5
General policies....................................................................................51
Introduction to the handbook........................................................................................51
Sample policy.........................................................................................................52
Employment status .......................................................................................................53
Full and part-time employees..................................................................................53
Exempt and non-exempt employees........................................................................53
Sample policy...............................................................................................................54
Introduction period.......................................................................................................55
Sample policy.........................................................................................................55
General rules and regulations........................................................................................56
Sample policy.........................................................................................................57
Sample policy.........................................................................................................58
Attendance policies ......................................................................................................60
Unemployment compensation.................................................................................60
ADA/Oregon’s disability law .................................................................................60
FMLA/OFLA .........................................................................................................61
Sample policy.........................................................................................................61
Sample policy.........................................................................................................62
Disability accommodation policy .................................................................................64
Sample policy.........................................................................................................66
Interactive process questionnaire ............................................................................67
Safety and health policies .............................................................................................69
Sample policy.........................................................................................................70
Sample policy.........................................................................................................72
Substance abuse policy.................................................................................................72
Sample policy.........................................................................................................74
Sample policy.........................................................................................................75
Drug-free workplace policy – government contractors..................................................80
Sample policy.........................................................................................................81
No solicitation/distribution policies ..............................................................................82
Sample policy.........................................................................................................83
Non-fraternization policy..............................................................................................83
Sample policy.........................................................................................................84
Personal conduct policy................................................................................................84
Sample policy.........................................................................................................85
Sample policy.........................................................................................................85
Policies prohibiting “bullying” in the workplace...........................................................86
Sample policy.........................................................................................................87
Cell phone usage ..........................................................................................................87
Sample policy.........................................................................................................88
Chapter 6
EEO policies .........................................................................................89
Equal employment opportunity policy ..........................................................................89
Sample policy.........................................................................................................90
Sexual harassment ........................................................................................................90
Sample policy.........................................................................................................93

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Harassment based on race, color, religion,
gender, age and other protected class statuses .........................................................95
Sample policy ...................................................................................................95
Complicated claims of sexual harassment ...............................................................96
Chapter 7
Time off and leaves of absence............................................................97
Vacation.......................................................................................................................97
When vacation can be taken....................................................................................97
Accumulating vacation ...........................................................................................97
Vacation pay...........................................................................................................97
Sample policy.........................................................................................................98
Sick days......................................................................................................................98
Sample policy.........................................................................................................99
Paid time off (PTO) / paid leave bank (PLB) ................................................................99
Sample policy.........................................................................................................99
Holidays..................................................................................................................... 101
Sample policy....................................................................................................... 101
Medical leave ............................................................................................................. 102
Notice/certification requirements.......................................................................... 104
Communicating with employees regarding leave .................................................. 106
Form WH-1420 – Employee Rights and Responsibilities ................................ 106
Form WH-381 – Notice of Eligibility & Rights and Responsibilities............... 107
Form WH-382 – Designation Notice............................................................... 107
OFLA ............................................................................................................ 108
Pregnancy leave.................................................................................................... 108
Care for a sick child.............................................................................................. 108
OFLA and workers’ compensation ....................................................................... 109
FMLA and military leave...................................................................................... 109
Qualifying exigency leave (QE leave)............................................................. 109
New Form WH-384 – Certification of
Qualifying Exigency for Military Family Leave ........................................ 110
QE leave categories................................................................................... 111
Military caregiver leave........................................................................................ 113
New Form WH-385 – Certification for Military Caregiver Leave ................... 113
Sample policy ................................................................................................. 114
Sample policy ................................................................................................. 115
Employee Rights and Responsibilities under the FMLA ............................................. 123
Certification of Health-Care Provider (Employee) ...................................................... 124
Certification of Health-Care Provider (Family Member)............................................. 128
Notice of Eligibility and Rights and Responsibilities .................................................. 132
Designation Notice..................................................................................................... 134
Certification of Qualifying Exigency.......................................................................... 135
Certification for Serious Injury or Illness of Covered Servicemember......................... 138
Physician’s release to return to work .......................................................................... 142
Employers not covered by FMLA/OFLA ................................................................... 143
Sample policy (if employer not covered by FMLA/OFLA)................................... 143
Request form for non-FMLA/OFLA leave.................................................................. 144
Request for leave of absence (non-FMLA/OFLA) ...................................................... 145

xv
Domestic violence leave............................................................................................. 147
Sample policy....................................................................................................... 148
Pregnancy Discrimination Act (PDA)......................................................................... 148
Americans with Disabilities Act (ADA),
Oregon’s disability law and workers’ compensation ................................................... 149
Personal leaves of absence.......................................................................................... 149
Sample policy....................................................................................................... 150
Bereavement leave ..................................................................................................... 150
Sample policy....................................................................................................... 150
Military leave ............................................................................................................. 150
Uniformed Services Employment and Re-employment Rights Act (USERRA)..... 151
Sample policy....................................................................................................... 152
Jury duty .................................................................................................................... 152
Sample policy....................................................................................................... 152
Chapter 8
Employee benefits .............................................................................153
Health insurance......................................................................................................... 153
Sample policy....................................................................................................... 153
COBRA ..................................................................................................................... 153
COBRA information............................................................................................. 156
Model COBRA Continuation Coverage
(for use by single-employer group health plans).................................................... 157
Model General Notice of COBRA Continuation
Coverage Rights (for use by single-employer group health plans) ......................... 164
Model COBRA Continuation Coverage Election Notice....................................... 168
Model COBRA Continuation Coverage Supplemental Notice............................... 181
Model COBRA Continuation Coverage Additional Election Notice...................... 189
Short- and long-term disability plans .......................................................................... 202
Sample policy....................................................................................................... 202
Sample policy....................................................................................................... 202
401(K) plan................................................................................................................ 203
Sample policy....................................................................................................... 203
Continuing education ................................................................................................. 203
Sample policy....................................................................................................... 204
Chapter 9
Hours of work and overtime ..............................................................205
Hours of work ............................................................................................................ 205
Meal and rest breaks ............................................................................................. 205
Sample policy ................................................................................................. 207
“Undue hardship” notice to employees regarding meal and rest periods .......... 208
Notice to employees regarding meal and rest periods ...................................... 209
Restaurant and beverage service industries...................................................... 210
Employees expressing breast milk................................................................... 210
Sample policy ........................................................................................... 211
Request and agreement to waive meal periods ................................................ 212
Timekeeping requirements.................................................................................... 213
Sample policy ................................................................................................. 213

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Overtime .................................................................................................................... 213
Sample policy....................................................................................................... 214
Direct deposit ............................................................................................................. 215
Payroll direct deposit form ......................................................................................... 216
Employee payroll change notice ................................................................................. 217
Salary change recommendation form.......................................................................... 218
Payroll advances......................................................................................................... 219
Sample policy....................................................................................................... 219
Chapter 10
Performance reviews, promotion and layoff.....................................221
Sample policy............................................................................................................. 222
Performance appraisal ................................................................................................ 223
Performance appraisal summary................................................................................. 227
Performance appraisal ................................................................................................ 230
Performance evaluation .............................................................................................. 233
Compensation reviews................................................................................................ 236
Sample policy....................................................................................................... 236
Promotions and transfers ............................................................................................ 236
Sample policy....................................................................................................... 236
Layoff and recall ........................................................................................................ 237
Sample policy....................................................................................................... 238
Chapter 11
Confidentiality and conflicts of interest.............................................239
Confidentiality of company information ..................................................................... 239
Sample policy....................................................................................................... 239
Sample policy....................................................................................................... 241
Confidentiality of employee information .................................................................... 241
Protecting Social Security Numbers...................................................................... 241
Notification of a security breach ........................................................................... 241
Safeguarding personal information ....................................................................... 242
Conflicts of interest .................................................................................................... 243
Sample policy....................................................................................................... 244
Social security numbers.............................................................................................. 245
Chapter 12
Complaint/grievance procedures.......................................................247
Sample policy............................................................................................................. 249
Sample policy............................................................................................................. 250
Sample open door policy ............................................................................................ 251
Chapter 13
Personnel records and recordkeeping requirements ........................253
Definition of “personnel records” ............................................................................... 253
Employee access to personnel records ........................................................................ 254
Record review policies ............................................................................................... 254
Sample policy....................................................................................................... 255

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Recommended recordkeeping periods for employment records .................................. 256
Records related to discrimination claims............................................................... 257
Payroll, wage and hour, overtime records ............................................................. 258
Occupational safety records .................................................................................. 258
Affirmative action information ............................................................................. 259
Immigration records ............................................................................................. 259
Employee benefit records ..................................................................................... 259
Miscellaneous records .......................................................................................... 260
Chapter 14
Miscellaneous issues...........................................................................261
Employee suggestions ................................................................................................ 261
Sample policy....................................................................................................... 261
Employee suggestion program entry form .................................................................. 262
Reference requests...................................................................................................... 263
Sample policy....................................................................................................... 263
Sample policy....................................................................................................... 264
Reference release form ............................................................................................... 265
Employment of relatives............................................................................................. 266
Sample policy....................................................................................................... 266
Smoking..................................................................................................................... 267
Sample policy....................................................................................................... 268
Sample policy....................................................................................................... 268
Dress codes ................................................................................................................ 269
Sample policy....................................................................................................... 269
Telephone usage......................................................................................................... 269
Sample policy....................................................................................................... 270
Inspection of property................................................................................................. 270
Sample policy....................................................................................................... 271
Sample policy....................................................................................................... 271
Use of electronic media .............................................................................................. 272
Sample policy....................................................................................................... 272
Sample policy....................................................................................................... 274
Arbitration agreements ............................................................................................... 276
Translation of employee handbooks into non-English languages ................................ 276
Providing access to employee handbooks in electronic format.................................... 276
Company and personal vehicles.................................................................................. 277
Sample policy....................................................................................................... 277
Chapter 15
Termination of employment...............................................................281
Sample policy............................................................................................................. 283
Exit checklist.............................................................................................................. 284
Employee exit interview............................................................................................. 285
Exit interview............................................................................................................. 286
Separation summary ................................................................................................... 289
Employee separation clearance checklist .................................................................... 290

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Chapter 16
Acknowledgment-of-receipt of handbook .........................................291
Sample acknowledgment form ................................................................................... 292
Appendix A
Posting requirements.........................................................................293
Federal posters ........................................................................................................... 293
Oregon posters ........................................................................................................... 294
Appendix B
Compliance thresholds.......................................................................305
Appendix C
Index of forms and sample policies ...................................................309

Index ..................................................................................................313

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xx
Introduction

How to use this book

Employment laws change every year and staying up to date on all the changes can be a full time
job. This is even a tall order for the experienced attorneys who write our books. We’ve organized
this book to fit your needs, helping you make sure your policies and business practices are in
compliance with the law, and the risk of litigation is minimized.

• Introduction
This chapter explains the importance of employee handbooks and carefully drafted
policies. Once you understand the benefits of having handbooks and policies, you’ll be
prepared to jump into the rest of the book and begin creating a plan for your company
that will save you time, money, and headaches.

• Using the index


Turn to our comprehensive index and find the topic you’re looking for and the exact
page(s) where you can find out more information.

• Using the CD-ROM


All of the policies and forms you find in the book can be found on the CD-ROM, making
printing and copying policies incredibly easy. Simply insert the disc into your computer,
find the file on your desktop, and personalize and print what you need.

• Read it straight through


Once you’ve addressed your immediate needs, begin to explore other sections of the
book. There may be other areas you are overlooking and this is where the trouble can
start. The comprehensive nature of our books will prepare you for what would otherwise
be unexpected.

1
How to use this book

2
Chapter 1

Introduction

Why have a handbook


Employee handbooks or policy manuals serve many valuable purposes, but they also carry risks
and obligations.

For example, handbooks can be valuable communication and employee relations tools. They can
be helpful in maintaining consistency among departments, locations, and types of employees.
Employers can use handbooks to communicate values and visions, and let employees know about
the company that employs them. Reducing policies and procedures to writing also reduces the
level of tension in an uncomfortable situation, because everyone is operating from the same set
of expectations. In sum, everyone benefits from an environment where the expectations, rules
and policies are predictable, clear and published.

Well-written and publicized handbooks can serve as an effective tool in defending against
employment-related claims. Consistency and uniformity in applying policies, for example,
reduces the risk of a discrimination or “disparate treatment” claim. Further, jurors like to see
policies in writing. Even if an employer has a well-established practice, a typical juror tends to
favor and believe the written policy versus the intangible “practice.” For jurors who believe the
Other “F” Word – fairness – is the benchmark for analyzing and valuing an employment law
claim, a well-written and publicized policy known to the plaintiff-employee, yet not followed by
the plaintiff-employee, could make the difference between a costly plaintiff’s verdict and a
verdict for the defendant-employer.

On the other hand, if your company issues a handbook but does not keep it up to date, or
neglects to follow the policies as written, your company could find itself facing claims of
discrimination or other types of employment-related claims. Even a well-written handbook
serves little value if it is left on a shelf to collect dust. If you are unwilling to devote the time and
attention to the handbook that it requires, you may need to find another way to communicate
with your employees.

Further, employers should be wary about providing too much information in an employee
handbook. A well-written handbook, for example, should not state or lay out every law or legal
right available to an employee, and employee handbooks should not simply restate the law,
either. For example, it is not recommended that employee handbooks include provisions
regarding an employee’s “right” to seek unemployment benefits, or information about the steps
that may occur if an employee’s claim for workers’ compensation benefits is denied. Remember:
An employee handbook is a guide, not an encyclopedia!

3
Introduction

Oregon courts approve of


and enforce employee handbooks
Oregon courts have had multiple opportunities over the years to assess and consider employee
handbooks and the claims brought by employees who either rely on or disregard those policies.
Because of these court opinions, employee handbook provisions have been upheld, and have
given employers an extra “shield” against breach of contract claims, and the right to enforce an
otherwise at-will employment status.

For example, in Gilbert v. Tektronix, Inc., the employee handbook at issue contained language
stating that “either party may wish to terminate the relationship at some time. [Employer]
intends to preserve the right of either party to do so.” The handbook further stated that the
employer “reserves the discretion to determine whether in our judgment the termination, or any
other disciplinary action, was justified.” The Oregon Court of Appeals held that the employer
had, via disclaimer language, retained the right to discharge employees at any time and for any
reason and that the parties had not modified the at-will relationship.

On the other hand, Oregon courts have held that an enforceable contract can be created through a
policy in an employee handbook, even if the employer did not intend to do so. In Yartzoff v.
Democrat-Herald Publishing Co., Inc., the employee handbook in question stated that a new
employee would be “on probation” for three to six months, but that the employee could be
terminated at any time during this period if he or she could not “properly handle his job or
cannot become a productive member of the team.” The defendant-employer discharged the
plaintiff-employee during this probationary period, and the employee sued the employer under a
breach of contract theory, claiming that she had been able to properly handle her job and had
become a productive member of the team. The Oregon Supreme Court ruled that the employee’s
claims could be presented to the jury because the employee handbook set forth certain
procedures that had to be followed prior to termination. Thus, if not carefully drafted, an
employee handbook provision can be construed as a contract.

What information must be


included in an employee handbook
The following are good, general subjects for an employer to include in a handbook, and some are
required by law (as noted). But, employers must evaluate the needs and culture of their
individual workplaces to decide whether other discretionary topics – including some of those
included in this book – should be included.

• Statement of at-will employment. The employee handbook must include a statement that
the employment relationship is at-will, meaning that the employer or the employee may
end the relationship at any time, with or without notice. It is recommended that the
handbook include this statement in the handbook receipt/acknowledgement form as well,
and any other place in the handbook where appropriate.

4
Introduction

• A disclaimer that the handbook does not create an employment contract of any kind,
express or implied. In some situations, Oregon courts have held that a disclaimer in an
employee handbook or personnel policy is sufficient to retain an employee’s at-will
status, and to avoid contractual claims relating to other provisions in the handbook.

• A statement that oral statements regarding any changes to the employee’s employment
relationship will not be valid unless in writing and signed by one company representative,
such as the president or CEO. Do not assign this authority to more than one person.

• A statement that the handbook is a guide. Employee handbooks are not intended to cover
every detail, or cover every possible situation, that may arise in the employment
relationship.

• A statement that the handbook supersedes any prior handbooks or policy statements. It
is effective on a certain date, and trumps any earlier versions or other statements regarding
employee policies.

• A statement that the company prohibits discrimination and harassment of all types. It is
not enough to prohibit sexual harassment only; harassment can occur because of other
protected statuses as well. Employers, regardless of the number of employees they
employ, must include a policy prohibiting harassment in the workplace that includes
specific examples of prohibited activity, a complaint reporting procedure, information
about investigations, and a clear statement that the company does not tolerate retaliation
against those who make good-faith complaints of harassment. The U.S. Supreme Court
has held that an employer, under certain circumstances, may have an affirmative defense
to a claim of sexual harassment if an employee handbook or other written publication
includes these features. See generally Burlington Industries, Inc. v. Ellerth; Faragher v.
Boca Raton. See Chapter 6, EEO policies for more information and sample anti-
harassment policies.

• Information regarding an employee’s proper use of electronic information and other


systems, including e-mail, voice mail, and internet access. See Chapter 14,
Miscellaneous issues for more information and sample electronic/systems use policy.

• Information regarding Oregon Family Leave Act and Family Medical Leave Act policies.
FMLA requires employers to include information about an eligible employee’s rights and
responsibilities in their employee handbooks, and it is recommended to include similar
language if the employer is required to provide OFLA leave as well. See Chapter 7, Time
off and leaves of absence for more information and a sample leave of absence form.

• An employee acknowledgement/receipt form. Employers need proof that the employee


received the handbook on a particular date and an acknowledgement that the employee
had an opportunity to ask questions about it (and acknowledge the employee’s at will
status). See Chapter 16, Acknowledgment-of-receipt of handbook for more
information and a sample acknowledgement form.

5
Introduction

6
Chapter 2

Job descriptions
and applications

Job descriptions
Before beginning the employment application and hiring process, an employer should write a job
description for the position needing to be filled. This will allow the employer to pinpoint the
exact qualifications required for the position and will assist greatly in the hiring process. A
thorough, thoughtful job description will also assist an employer who defends against a disability
discrimination claim: “[I]f an employer has prepared a written description before advertising or
interviewing . . ., this description shall be considered evidence of the essential functions of the
job.” Employers may ask applicants about their ability to perform essential functions of a job,
with or without a reasonable accommodation. Finally, according to new FMLA regulations that
went into effect January 16, 2009, employers who wish to have employees returning from a
“serious health condition” leave complete a fitness-for-duty examination must inform the
employee of this requirement and provide the employee with a job description at the beginning of
the leave.

A template for a job description is included in this chapter. When listing the functions of the job,
an employer should carefully consider whether the functions should are “essential” or “marginal.”
Under the Americans With Disabilities Act and corresponding Oregon law, whether a specific job
function is an “essential” one is a necessary first step in determining whether someone with a
physical or mental disability can adequately work at the job at hand, because the person must be
able to perform only the “essential” functions. Employers should consider identifying
“attendance” as an “essential job function” for positions where attendance is, in fact, essential.
The ADA and the EEOC regulations suggest ten reasons or factors to be considered. (For more
information, See 29 CFR § 1630.2(n).)

Job applications
It is important that the application only request information pertinent to the job at hand.
Employers should not to request any information that would provide the employer with the age
of the applicant, such as the applicant’s birth date. If such information is provided, it could lead
to claims of age discrimination by the applicant if he or she was not chosen for the position.
Information about an applicant’s marital status, family background and the like should not be
sought at any point during the advertising, screening or interviewing process. Finally,
applications should include a statement indicating that if the employer discovers any

7
Job descriptions and applications

discrepancies or false statements in the application during the interview process or during the
employee’s employment (if hired), the employee may be subject to termination.

Given recent publicity regarding the employment of illegal aliens or others who are not lawfully
authorized to work in the United States, and the fines levied on employers who employ such
individuals, employers must proceed with caution when making inquiries regarding an applicant’s
immigration status. Employers should not ask if an employee has a visa or make inquiries
regarding an applicant’s immigration status (for example, “Are you a United States citizen?”).
By doing so, an employer runs the risk of a discrimination claim (for example, discriminatory
failure to hire because of an applicant’s national origin). The best approach is to simply ask if
the applicant is lawfully authorized to work in the United States or whether the employee can
provide proof of his or her eligibility to work. Then, if the applicant is hired, the employer can
verify the applicant’s eligibility to work by completing the I-9 process and/or using E-Verify, the
internet-based system operated by the Department of Homeland Security in partnership with the
Social Security Administration that allows participating employers to electronically verify the
employment eligibility of their newly hired employees. See www.dhs.gov/ximgtn/programs
/gc_1185221678150.shtm.

Some other job application tips are as follows:

• If you intend to do a pre-hire drug screen, notice must be provided to the applicant. One
way to ensure that the applicant has notice is to include the following language above the
line where the applicant certifies the accuracy of the contents of the application:

“I understand that any job offer is contingent upon my successfully


passing a pre-employment drug test. I hereby agree to such pre-
employment drug test if requested and authorize the testing facility
to release the test results to the Company.”

• There are restrictions on obtaining genetic information, using polygraph stress or brain
wave tests during the application and hiring process. Consult legal counsel if you intend
to use any of these tests.

• Qualified public entities must include a notice of requirements for criminal records and
fingerprinting checks on application forms (including mass transit).

• Employers may not use an application form that requests information about expunged
juvenile criminal records.

• An employer may not reject a candidate with an academic degree in theology if the degree
requirement is not related to the job.

Four employment applications have been provided in this manual. Before inserting any additional
information into any of these forms, employers are strongly encouraged to obtain legal counsel.

8
Job descriptions and applications

If a company intends on performing a criminal background check, or other background check on


an applicant, the employer must secure written permission from the applicant to do so. A
sample authorization is included at the end of this chapter (see page 27, Fair Credit Reporting
Act Disclosure and Authorization). This is required under the Fair Credit Reporting Act
(FCRA), which requires a company to disclose the information it obtains about an applicant if
that information is relied upon in making an employment-related decision.

9
Job descriptions and applications

JOB DESCRIPTION

Job Title: ________________________________________________________________________


Date of this Description: ____________________________________________________________
Job Summary: ____________________________________________________________________

ESSENTIAL FUNCTIONS of the job:


1.
2.
3.
4.
5.

MARGINAL JOB FUNCTIONS:


1.
2.

SKILLS REQUIRED TO PERFORM THE DUTIES OF THE JOB:


1.
2.

EDUCATIONAL REQUIREMENTS NEEDED TO PERFORM THE DUTIES OF THE JOB:


1.
2.

WEIGHT LIFTING (OR OTHER PHYSICAL) REQUIREMENTS TO PERFORM THE


DUTIES OF THE JOB:
1.
2.

LICENSING OR OTHER SPECIAL CERTIFICATIONS REQUIRED:


1.
2.

Job Description Approved by: ________________________________________________________

Signature/Title: ______________________________ Date: __________________________


***THIS COMPANY RESERVES THE RIGHT TO MODIFY, INTERPRET, OR APPLY THIS JOB DESCRIPTION IN ANY WAY THE
COMPANY DESIRES. THIS JOB DESCRIPTION IN NO WAY IMPLIES THAT THESE ARE THE ONLY DUTIES, INCLUDING
ESSENTIAL DUTIES, TO BE PERFORMED BY THE EMPLOYEE OCCUPYING THIS POSITION. THIS JOB DESCRIPTION IS NOT
AN EMPLOYMENT CONTRACT, IMPLIED OR OTHERWISE. THE EMPLOYMENT RELATIONSHIP REMAINS “AT-WILL.” THE
AFOREMENTIONED JOB REQUIREMENTS ARE SUBJECT TO CHANGE TO REASONABLY ACCOMMODATE QUALIFIED
DISABLED INDIVIDUALS.***

10
Job descriptions and applications

AT-WILL EMPLOYMENT APPLICATION

11
Job descriptions and applications

12
Job descriptions and applications

13
Job descriptions and applications

AT-WILL EMPLOYMENT APPLICATION (SECOND VERSION)

We consider applicants for all positions without regard to race, color, religion, creed, gender, national
origin, age, marital or veteran status, disability, sexual orientation or any other legally protected status.
(PLEASE PRINT)
Position Applied for: Date of Application:

How Did You Learn About Us?


□ Advertisement □ Friend □ Walk-In
□ Employment Agency □ Relative □ Other______________________________

Last Name First Name Middle Name

Address City State Zip Code

Telephone Number(s) Social Security Number

Can you provide required proof of your eligibility to work in the United States?
(Proof of eligibility to work in the United States will be required upon employment.)  Yes  No

Have you ever filed an application with us before?  Yes  No If Yes, give date

Have you ever been employed with us before?  Yes  No If Yes, give date

Are you currently employed?  Yes  No

May we contact your present employer?  Yes  No

On what date would you be available to work?

Are you available to work:  Full Time  Part Time  Shift Work  Temporary

Are you currently on “layoff” status and subject to recall?  Yes  No

Can you travel if a job requires it?  Yes  No

Have you been convicted of a crime within the last 7 years?  Yes  No
Conviction will not necessarily disqualify an applicant from employment.

If Yes, please explain

This application will remain active for 180 days.

14
Job descriptions and applications

Education
Name and Address of Years Diploma
School Course of Study Completed Degree
Elementary
School
High
School
Undergraduate
College
Graduate
Professional
Other
(Specify)

Indicate any foreign languages you speak, read, and/or write


FLUENT GOOD FAIR
SPEAK
READ
WRITE

Describe any specialized training, apprenticeship or skills.


_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

Describe any job-related training received in the United States military.


_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________

15
Job descriptions and applications

Employment Experience
Start with your present or last job. Include any job-related military service assignments and volunteer activities. You may
exclude organizations that indicate race, color, religion, gender, national origin, disabilities, sexual orientation or other
protected status.

Dates Employed
1. Employer Work Performed
From To

Address
Telephone Number(s) Hourly Rate/Salary

Starting Final

Job Title

Reason for Leaving


Dates Employed
2. Employer Work Performed
From To

Address

Telephone Number(s) Hourly Rate/Salary

Starting Final

Job Title
Reason for Leaving
Dates Employed
3. Employer Work Performed
From To

Address

Telephone Number(s) Hourly Rate/Salary

Starting Final

Job Title
Reason for Leaving
Dates Employed
4. Employer Work Performed
From To

Address
Telephone Number(s) Hourly Rate/Salary

Starting Final

Job Title

Reason for Leaving

If you need additional space, please continue on a separate sheet of paper.

16
Job descriptions and applications

List professional, trade, business, or civic activities and offices held.


You may exclude memberships that would reveal gender, race, religion, national origin, age, ancestry, disability, sexual
orientation or other protected status:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

Additional Information
Other Qualifications
Summarize special job-related skills and qualifications acquired from employment or other
experience.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

Specialized Skills: Check Skills/Equipment Operated


Production/Mobile
CRT Fax Machinery (list): Other (list):
PC Lotus 1-2-3 ___________
Calculator PBX System PPP _____________ ___________
Typewriter Wordperfect PPP _____________ ___________

State any additional information you feel may be helpful to us in considering your
application.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

17
Job descriptions and applications

References

1. _________________________________________( )________________
Name Phone #
___________________________________________________________________________________________
Address
2. _________________________________________( )________________
Name Phone #
___________________________________________________________________________________________
Address
___________________________________________________________________________________________

3. _________________________________________( )________________
Name Phone #
___________________________________________________________________________________________
Address
___________________________________________________________________________________________

*WE ARE AN AT-WILL, EQUAL OPPORTUNITY EMPLOYER*


FOR PERSONNEL DEPARTMENT USE ONLY

Position(s) Applied For Is Open:  Yes  No

Position(s) Considered For: Date

NOTES: ________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________

Applicant’s Statement
I certify that answers given herein are true and complete to the best of my knowledge.

I authorize investigation of all statements contained in this application for employment as may be
necessary in arriving at an employment decision.

This application for employment shall be considered active for a period of time not to exceed 45 days.

Any applicant wishing to be considered for employment beyond this time period should inquire as to
whether or not applications are being accepted at that time.

I HEREBY UNDERSTAND AND ACKNOWLEDGE THAT, IF HIRED, MY EMPLOYMENT


RELATIONSHIP WITH THIS ORGANIZATION WOULD BE OF AN “AT WILL” NATURE,
WHICH MEANS THAT THE EMPLOYEE MAY RESIGN AT ANY TIME AND THE
EMPLOYER MAY DISCHARGE EMPLOYEE AT ANY TIME AND FOR ANY OR NO
REASON. IT IS FURTHER UNDERSTOOD THAT THIS “AT WILL” EMPLOYMENT
RELATIONSHIP MAY NOT BE CHANGED BY ANY WRITTEN DOCUMENT OR BY

18
Job descriptions and applications

CONDUCT UNLESS SUCH CHANGE IS SPECIFICALLY ACKNOWLEDGED IN WRITING


BY AN AUTHORIZED EXECUTIVE OF THIS ORGANIZATION.

In the event of employment, I understand that false or misleading information given in my application or
interview(s) may result in discharge. I understand, also, that I am required to abide by all rules and
regulations of the employer.

Signature of Applicant Date

*WE ARE AN AT-WILL, EQUAL OPPORTUNITY EMPLOYER*

FOR PERSONNEL DEPARTMENT USE ONLY

Arrange Interview  Yes  No

INTERVIEWER DATE

Employed  Yes  No Date of Employment

Hourly Rate/
Job Title Salary Department

By
NAME AND TITLE DATE

*WE ARE AN AT-WILL, EQUAL OPPORTUNITY EMPLOYER*

19
Job descriptions and applications

AT-WILL EMPLOYMENT APPLICATION (THIRD VERSION)

20
Job descriptions and applications

21
Job descriptions and applications

22
Job descriptions and applications

AT-WILL EMPLOYMENT APPLICATION (FOURTH VERSION)

The Company is an equal opportunity


employer and will not discriminate
against any applicant on the basis of
any characteristic that is protected by
state or federal law.
THE COMPANY IS AN AT-WILL EMPLOYER, MEANING
THAT EITHER THE EMPLOYER OR EMPLOYEE CAN END
THE EMPLOYMENT RELATIONSHIP AT ANY TIME AND
FOR ANY OR NO REASON.

Position Applied For:_______________________________ Date of Application: ______________


Date You Can Start:_______________________________
Please note that this application will only remain active for six months, after which the applicant will need to reapply.

Name:__________________________________________ _____Social Security #:_____________


Last First Middle

Present Address:___________________________________________________________________
Street City State Zip

Permanent Address: ________________________________________________________________


Street City State Zip

Telephone #: Home (_____)___________________ Work (_____)______________________

Are you 18 years or older?  Yes  No

Are there any hours or days of the week you cannot work?  Yes  No
If so, when? _______________________________________________________________

Salary Desired____________________

Type of Employment:  Full-time  Part-time

Are your employed now?  Yes  No


May we contact your present employer?  Yes  No

Did you ever apply to this Company before?  Yes  No Where? ____________________

Under what name? _____________________________ When? ______________________

23
Job descriptions and applications

EDUCATION:

NO. OF
YEARS DID YOU SUBJECT/
NAME AND ADDRESS OF SCHOOL ATTENDED GRADUATE? MAJOR

Elementary
School
High
School

College
Specialized
Training

Are you lawfully entitled to be employed in the United States?  Yes  No

Have you ever been convicted of a crime except a minor traffic violation?  Yes  No
(Conviction of a crime will not necessarily disqualify an applicant from employment.)
If so, please state citation, date and place where offense occurred: ___________________________
________________________________________________________________________________
________________________________________________________________________________

Please provide any additional information such as special skills, training, management experience,
equipment operation, or qualifications you feel will be helpful to us in considering your application:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

REFERENCES: Three Individuals Not Related To You, Whom You Have Known For At Least
One Year.

YEARS
NAME ADDRESS & TELEPHONE RELATIONSHIP ACQUAINTED

Emergency Contact ________________________________________________________________


Name/Street/City/State/Telephone

24
Job descriptions and applications

CURRENT AND FORMER EMPLOYERS: (Most Recent One First)

DATE NAME, ADDRESS & SALARY: LAST POSITION REASON


MONTH/ TELEPHONE NO. STARTIN HELD/ FOR
YEAR OF EMPLOYER G/ENDING RESPONSIBILITIES LEAVING
From:

To:

From:

To:

From:

To:

From:

To:

From:

To:

25
Job descriptions and applications

* * * *
Please read the following statement carefully before signing to indicate your understanding:

I understand that if I receive a conditional job offer, and prior to beginning employment, I may be
requested to undergo a pre-employment medical examination. In the event that I have a disability
that will affect my ability to take the test, I will so inform the Company prior to the administration
of the test so that a reasonable accommodation can be made. The Company reserves the right to
require medical documentation regarding the need for accommodation.

I certify that the facts contained in this application are true and complete to the best of my
knowledge and understand that, if employed, falsified statements on this application may result in
termination.

I understand and agree that, if hired, my employment is AT-WILL. THIS MEANS THAT, IF
HIRED, EITHER THE COMPANY OR I CAN END THE EMPLOYMENT RELATIONSHIP
AT ANY TIME AND FOR ANY OR NO REASON.

I authorize investigation of all statements contained in this application for any employment-related
purpose. I release the listed references and all employers to provide you with any and all applicable
information they may have. I hereby release these references and former employers from all liability
for any information they may give to you, including but not limited to any defamation claims I may
now have or will have against them.

________________ _______________________________________
Date Signature

*THE COMPANY IS AN AT-WILL, EQUAL OPPORTUNITY EMPLOYER*

For Employer Use Only

Interviewed By:________________________ Date:_________________ Hired:  Yes  No

Starting Date:____________________Position:_______________ Wage:______________

*THE COMPANY IS AN AT-WILL, EQUAL OPPORTUNITY EMPLOYER*

26
Job descriptions and applications

FAIR CREDIT REPORTING ACT DISCLOSURE AND AUTHORIZATION

Disclosure

ABC Company, when considering your application for employment, when making a decision
whether to offer you employment, when deciding whether to continue your employment (if you
are hired), and when making other employment related decisions directly affecting you, may wish
to obtain and use a “consumer report” about you from a “consumer reporting agency.” These
terms are defined in the Fair Credit Reporting Act (FCRA), which applies to you. As an
applicant for employment or employee of the company, you are a “consumer” with rights under
FCRA.

A “consumer reporting agency” is a person or business that, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly assembles or evaluates consumer credit information or
other information on consumers, including credit reports or criminal records, for the purpose of
furnishing “consumer reports” to others, such as the company.

A “consumer report” is any written, oral, or other communication of any information by a


“consumer reporting agency” bearing on a consumer’s credit worthiness, credit standing, credit
capacity, character, general reputation, criminal arrest or conviction history, personal
characteristics, or mode of living, which is used or collected for the purpose of serving as a factor
in establishing the consumer’s eligibility for employment purposes.

If the company obtains a “consumer report” about you, and if the company considers any
information in the “consumer report” when making an employment related decision that directly
and adversely affects you, you will be provided with a copy of the “consumer report” before the
decision is finalized. You also may contact the Federal Trade Commission about your rights
under FCRA as a “consumer” with regard to “consumer reports” and “consumer reporting
agencies.”

Authorization

By signing below, I (PRINT NAME), ___________________________________, hereby


voluntarily authorize the company to obtain a “consumer report” about me from a
“consumer reporting agency” and to consider that report when making decisions
regarding my employment at the company. I understand that I have rights under the
FCRA, including the rights discussed above.

_________________________________ ____________________________________
Signature Date

_________________________________ ____________________________________
Witness’s Name Date

27
Job descriptions and applications

28
Chapter 3

Candidate
screening

Interviewing applicants
The job interview is a process of candidate screening that is necessary, but one that also is filled
with many legal pitfalls. The purpose of the interview is to gain only information that is
essential to determining if the candidate meets the skill requirements of the position.

Laws such as the Americans with Disabilities Act (ADA), Oregon’s disability law, the Age
Discrimination Act in Employment (ADEA), Title VII of the Civil Rights Act (Title VII) as well
as corresponding Oregon law prevent employers from considering certain information during the
screening process. To ensure compliance with these laws employers should not ask any
questions that might solicit information in regard to:

• race or color

• national origin

• religion

• garnishments

• family status, pregnancy, or childcare arrangements

• sexual orientation

• age

• labor union activity

• credit references or indebtedness

• number of sick days at former job

• disability (unless related to an employee’s request for a reasonable accommodation)

• past workers’ compensation history.

29
Candidate screening

Questions concerning any of these topics should be avoided at all costs. If a candidate begins
providing such unsolicited information, the interviewer needs to refocus the interview into job-
related areas.

30
Candidate screening

EMPLOYMENT INTERVIEW ANALYSIS

NAME OF APPLICANT ________________________________________________________

POSITION APPLIED FOR _______________________________________________________

NAME OF INTERVIEWER ______________________________________________________

DATE OF INTERVIEW _________________________________________________________

TRAITS COMMENTS
1. Knowledge of specific job and job-
related topics
2. Experience
3. Communication ability
4. Interest in position and our organization
5. Overall motivation to succeed
6. Insight and alertness
COMMENTS & RECOMMENDATIONS:

31
Candidate screening

INTERVIEWER EVALUATION

Interviewer Comments:

1. Overall Reaction (10 being most favorable) 1 2 3 4 5 6 7 8 9 10

2. Did anyone else meet with this candidate?  Yes  No


If yes, who? ______________________________________________________________

3. Reactions by individual(s) who met with applicant:_______________________________


________________________________________________________________________
________________________________________________________________________

4. Response promised to applicant by (date): ______________________________________

5. Responded to applicant (date) by letter/telephone

6. Offered Position:  Yes  No

7. Starting Salary:___________________________
1st Evaluation Date:_______________________
1st Salary Review Date:____________________

8. Accepted Position:  Yes  No

9. If offered and accepted, when will employment commence?

Date: Time:_________________

32
Candidate screening

Background and reference checks


One potential lawsuit facing employers today is negligent hiring. Employers that thoroughly
check every job applicant’s background can limit their negligent hiring liability.

Employers who intend to do background checks on an applicant must provide an authorization


on the application form permitting the employer to verify and investigate the information
provided on the application by the candidate. Such authorization can help protect former
employers and others from defamation claims and thus might make them more willing to provide
any requested information.

In addition, employers should have candidates provide proof of any diplomas, transcripts,
licenses, etc, if education or licensure is a job requirement. The employer should then verify with
the corresponding institutions or agencies that the information provided is accurate and/or
current.

It is extremely important that an employer verify all information provided by the applicant prior
to offering him or her a position with the company. Inaccurate or incomplete information could
subject the employer to unwanted claims at a later date.

If the Fair Credit Reporting Act applies to your background check, you must secure the
necessary authorization from the applicant first. (See page 37, Authorization for release of
information.)

33
Candidate screening

REFERENCE RELEASE FORM

Employee Reference Release

I, ___________________________________, agree to the release of the following information


concerning my employment with {Company Name}, as may be requested by prospective
employers:

Job Reference Information May Be Released May Not Be Released

1. Dates of Employment __________________ _____________________

2. Job Title(s) __________________ _____________________

3. Salary At Time of Termination __________________ _____________________

4. Attendance Record __________________ _____________________

5. Performance Review Ratings __________________ _____________________

6. Reason for Termination


❏ Resignation
❏ Resignation By Mutual Agreement
❏ Retirement
❏ Downsizing
❏ Discharged For________________________________________________________
❏ Other (Be Specific) ____________________________________________________

7. Eligible for Rehire? ❏ Yes ❏ No

8. Other information that may be requested (be specific)_____________________________


________________________________________________________________________
________________________________________________________________________

Signed:

Employee_____________________________ Manager _________________________________

34
Candidate screening

REFERENCE INQUIRY

REPLY TO: Human Resources Manager

TELEPHONE:_____________________

TYPE OF REFERENCE:

EMPLOYMENT

OTHER

APPLICANT’S NAME SOCIAL SECURITY NO.

Dear Madam or Sir:

The above-named person has applied for employment with our company for the position of
_________________and has authorized us to contact you as a reference.

We would greatly appreciate your furnishing the information requested on the attached form for the
type of reference checked above.

For your convenience in replying, a self-addressed stamped envelope is enclosed.


Thank you for your assistance.

Very truly yours,

______________________________________
(Company Rep./Title)

______________________________________
(Date)

35
Candidate screening

EMPLOYMENT REFERENCE

Name of applicant:_______________________________________________________________

Stated dates of employment: _______________________________________________________

1. Employed from:____________________________ to __________________________

2. Reason for termination: _____________________________________________________

3. First job title:_______________________________________ Pay rate ______________

4. Last job title:_______________________________________ Pay rate ______________

5. Description of duties in last position: __________________________________________

6. Eligible for rehire: ❏ Yes ❏ No

If no, why not?____________________________________________________________

________________________________________________________________________

PLEASE RATE
THE OUT- ABOVE BELOW
FOLLOWING: STANDING AVERAGE AVERAGE AVERAGE

Skills
Quality of Work
Quantity of Work
Conduct
Attendance

Date: ___________________ Signature: ____________________________________

Title: ________________________________________

Company: ____________________________________

36
Candidate screening

AUTHORIZATION FOR RELEASE OF INFORMATION

(Another version of this authorization can be found on page 27.)


As part of the employment process, ABC Company may obtain a consumer report and/or Investigative
Consumer Report. The Fair Credit Reporting Act as amended by the Consumer Reporting Reform Act of
1996, requires that we advise you that for the purposes of employment only, a Consumer Report may be
made which may include information about your credit standing, credit capacity, character, general
reputation, personal characteristics or mode of living. Upon written request, additional information as to
the nature and scope of the report, if one is made, will be provided, in the event the Report contains
information regarding your character, general reputation, personal characteristics or mode of living.
During the application process and at any time during any subsequent employment, I hereby authorize
ABC Company to procure a Consumer Report, which I understand may include information regarding my
credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics,
or mode of living. This report may be compiled with information from credit bureaus, court record
repositories, departments of motor vehicles, past or present employers and educational institutions,
governmental occupational licensing or registration entities, business or personal references, and any
other source required to verify information that I have voluntarily supplied. I understand that I may
request a complete and accurate disclosure of the nature and scope of the background verification; to the
extent such investigation includes information bearing on my character, general reputation, personal
characteristics or mode of living, I authorize without reservation, any party or agency contacted to furnish
the above mentioned information and release all parties involved from liability and responsibility for
doing so. This authorization and consent shall be valid in original, fax, or copy form.

_________________________________________________________
Applicant’s Signature and Date

The following information is required by law enforcement agencies and other entities for identification
purposes when checking records. It is confidential and will not be used for any other purpose.

Print Full Name: ________________________________ Sex: Male ( ) Female ( )


Date of Birth: _______________ Social Security Number: ___________________
Print other names you have used: ____________________________________
Dates used: _______________
Address ____________________________________________________________
Street City State Zip Code

Current Driver’s License Number: _________________________________

Issuing State: ________________

Any other States which have issued you a driver’s license: _____________

37
Candidate screening

38
Chapter 4

Time of hire

Required documentation
At the time of hire, employers are legally required to have the newly hired employee complete
two forms:

• the federal Form W-4

and

• the federal Form I-9, Employment Eligibility Verification.

The versions of both forms current as of the date of publication are included in this chapter.
Employers are encouraged to visit the websites of the Internal Revenue Service and the
Department of Homeland Security to ensure that they are using the current versions of both
forms:

• www.irs.gov

• www.uscis.gov/i-9.

The Form W-4 is utilized by the employer for payroll purposes in calculating both federal and
Oregon tax withholdings. The form is also available in Spanish (at www.irs.gov/formspubs/index.
html).

All U.S. employers are responsible for completing and retaining a Form I-9 for each individual
they hire for employment in the United States. Employers should not ask applicants to fill out
Form I-9s. Form I-9s must be “completed at the time of hire, which is the actual beginning of
employment.” Some other facts about the latest version of the Form I-9 (OMB No. 1615-0047):

• Do not file Form I-9s with U.S. Immigrations and Customs Enforcement (ICE) or the
United States Citizenship and Immigration Services. Form I-9s must be kept by the
employer either for three years after the date of hire or for one year after employment is
terminated, whichever is later. The form must be available for inspection by authorized
U.S. Government officials (for example, Department of Homeland Security, Department
of Labor, Office of Special Counsel).

39
Time of hire

• Do not maintain Form I-9s in an employee’s personnel file. Form I-9s should be kept in
a separate filing system. Employers may also now retain electronic versions of signed
Form I-9s.

• An employee is not obliged to provide his or her Social Security number in Section 1 of
the Form I-9, unless he or she is employed by an employer who participates in E-Verify.

• If you employ Spanish-speaking individuals, you may wish to refer to the Spanish
version of the Form I-9, available at the USCIS web site, when completing the English
version of the Form I-9. Unfortunately, you may not use or maintain the Spanish version
in the United States; U.S. employers may only complete the form in English to meet
employment eligibility verification requirements.

• Documents presented during the eligibility verification process cannot be expired. If a


document does not contain an expiration date, such as a Social Security card, it will be
considered unexpired.

• Employers may only accept documents specified on the List of Acceptable Documents
to evidence identity and employment authorization. DHS has added new documents to
the list, including the Unexpired Employment Authorization Document (Form I-766), and
eliminated other documents from the list, including the Temporary Resident Card (Form
I-688) and the Employment Authorization Cards (Forms I-688A and B).

• When an employee must be reverified because his or her employment authorization has
expired, employers must use the revised Form I-9 and require documentation in
accordance with the revised List of Acceptable Documents. An employer may not re-
verify the employee by completing Section 3, Updating and Reverification, of the
previous version of the Form I-9.

New employee checklist


Although not required, a “new employee checklist” like the sample provided at the end of this
chapter (page 48), may be beneficial to employers. One reason to use a new employee checklist
is to ensure that HR staff remember to give new employees all of the information they should
receive as a new hire. Another reason is that a checklist can serve as a secondary record of when
the new hire received this information (in case a dispute arises later). Some employers ask
employees to initial each category in an effort to prevent an employee from stating later that he
or she did not receive a particular document. If you do choose to use a checklist, be sure to use it
for all new hires, and be prepared to explain why some employees did not receive certain
documents when other employees did (if applicable). Also, be sure to use a checklist that is
appropriate for your company – the sample checklist may have categories that are not related to
your industry or company..

40
Time of hire

41
Time of hire

42
Time of hire

43
Time of hire

44
Time of hire

45
Time of hire

46
Time of hire

47
Time of hire

NEW EMPLOYEE CHECKLIST

NAME:
POSITION:
START DATE:

DATE
DATE GIVEN COMPLETED
TASK TO EMPLOYEE OR RETURNED

ARRANGE:
Office/Cubicle Location
Prepare Appropriate Supplies
Telephone
Post Phone Instructions
Post Employee Extension List
Voicemail Code/Password
Computer Type
Software for Computer
PC Law
Lexis/Nexis
Word
Excel
StampPDFDE
Redax 4.0
Dymo
Softpro
(Estate Info)
Computer Passwords
Phone Access Number
E-mail with electronic signature
Set-up Voicemail
Security Procedures
Press Release, if appropriate
Add Employee Info to contacts in PCLaw

DISTRIBUTE:
New Employee Packet
Leave Form/Timesheet
Current Employee Manual

48
Time of hire

DATE
DATE GIVEN TO COMPLETED
TASK EMPLOYEE OR RETURNED
Employee Manual Acknowledgement
New Employee Benefit Letter

VERIFY BENEFITS:
Health Insurance
Dental Insurance
Life Insurance
AFLAC Coverage (optional)
OR
Waivers

OBTAIN COMPLETED FORMS:


Paytime Automatic Deposit Application
Form I-9, Employment Eligibility
Verification
Verify I-9 documents
and copy for file
Form W-4
Health Care Enrollment
Application
Dental Enrollment/
Change Form
Company Group Term Life Insurance
AFLAC Coverage (optional)
OR
Waiver of Health Care
PA New Hire Form
File online with L&I
Malpractice Coverage (for professionals)
Employee Manual Acknowledgement

MISCELLANEOUS TO-DOS:
Notify Staff of hiring
Add name to internal e-mail lists
Revise phone directory and quick reference
cards
Set-up email/distribution lists
Set-up internal IM
Note Employee’s Birthday
Set-up Scan folder on Copier and Desktop

49
Time of hire

DATE
DATE GIVEN TO COMPLETED
TASK EMPLOYEE OR RETURNED
Set-up recurring appointments
(For type of employee)
Tie VM to email
Check privileges on computer
Add to “Duty” Lists
Open Leave file in on computer and
paper file
TRAINING:
Specialized Software
Email
Voicemail
IM
Reception
Copier/Scanner/Counter
Stamps.com
Overnight Delivery
Local Delivery Service
Local Copy Service
Expense Recovery
Scanning Procedure
Time Sheets
Leave Slips

50
Chapter 5

General policies

Introduction to the handbook


Although not necessarily required by law, an introduction to a handbook can serve practical
purposes. The introduction to your handbook provides an opportunity to give employees an
overview of the company’s history or philosophy, as well as explain the purpose of the
employee handbook. It also may identify which employees are covered by the terms of
employment contained in the handbook and which employees, if any, are excluded from coverage.
The introduction should at least state that the current handbook or manual supersedes any prior
handbooks, manuals, or other inconsistent policy or benefit statements.

Because Oregon recognizes the doctrine of at-will employment, the introduction should include a
statement to the effect that an employee’s employment is at-will is vital (unless it is governed by
a written contract). Employers should avoid the use of phrases such as “permanent
employment,” “long-term employment,” or “a promising career with the company.” While it is
important that employees feel secure in their jobs, the use of such phrases may be viewed as
inconsistent with the concept of at-will employment.

The introduction may include a statement to the effect that the employer may change any of the
handbook’s provisions at any time, with or without prior notice. This is advisable because it is
impossible to cover all possible future events or contingencies with a single document. This
forewarning gives the employer the flexibility to cope with unforeseen circumstances by
amending the handbook or manual when necessary. Additionally, the use of the word
“summary” prevents employees from claiming that every possible contingency is governed by
the terms of the handbook. This gives the employer additional leeway to react in the proper
manner to any situation that is not specifically covered by a provision in the written policies and
procedures.

A statement in the introduction that an employee with questions concerning the policies set forth
in the handbook or manual should contact the human resources manager, or other specified
management employee, is important for two reasons. First, it opens lines of communication
between the employer and its employees. Second, such a provision is a good tool to use in
litigation with a former employee. If the employee claims that he or she did not understand a
particular policy, the employer can show that the employee had an opportunity to have the
provision explained, yet chose not to do so.

51
General policies

Finally, a statement in the introduction that no person other than the president (or other
designated company representative) may modify either the at-will relationship or the terms of
the handbook also is important. It makes no sense to adopt a set of policies and procedures that
may effectively be amended by nothing more than an offhand comment by a supervisor.
Supervisors also should be instructed that they may not change the terms and conditions of
employment for their subordinates. This provision also prevents anyone in the company other
than the president from modifying an employee’s at-will status.

SAMPLE POLICY
Welcome to ABC Company – we’re glad to have you on our team. At ABC, we believe
that our employees are our most valuable asset. In fact, we attribute our success as a
company in significant part to our ability to recruit, hire, and maintain a motivated and
productive workforce. We hope that during your employment with ABC you will become a
productive and successful member of the ABC team.

This employee handbook describes, in summary form, the personnel policies and
procedures that govern the employment relationship between ABC Company and its
employees. The policies stated in this handbook are subject to change at any time at the
sole discretion of the Company with or without prior notice. This handbook supersedes any
prior handbooks or written policies of the Company that are inconsistent with its provisions.
You may receive updated information concerning changes in policy from time to time, and
those updates should be kept with your copy of the handbook. If you have any questions
about any of the provisions in the handbook, please ask your supervisor or the Human
Resources Manager.

This handbook does not create a contract of employment between ABC Company and its
employees. All employment at ABC Company is “at will.” That means that either you or
the Company may terminate this relationship at any time, for any reason, with or without
cause or notice. Our employment relationship remains at-will notwithstanding any
provision in this handbook. No supervisor, manager, or representative of ABC other than
the president has the authority to enter into any agreement with you regarding the terms of
your employment that changes our at-will relationship or deviates from the provisions in
this handbook.

Sincerely,

John Doe, President


ABC Company

52
General policies

Employment status
Appropriate employee classifications are essential for every organization, and affect eligibility
for benefits, duration of employment, compensation, and employment expectations. Employee
classifications should be clearly defined and drafted to avoid any implication that employment is
anything other than at-will. For instance, employers should never refer to as an employee’s
status as “permanent” because this language is inconsistent with at-will employment.
Probationary periods can also be considered inconsistent with at-will employment, and such
periods may be better defined as “introductory” rather than “probationary.” See page 55,
Introduction period.

Full and part-time employees


Employers may define part-time employment status at any level they wish. Part-time
employment may be defined as any employee scheduled to work less than 40 hours per
week, less than 32 hours per week, or less than whatever maximum number of hours
chosen by the employer, While classification as a part-time employee may affect
discretionary benefits, such classification will not affect an employee’s eligibility under
the FMLA, OFLA or federal/state overtime laws. For instance, if a part-time employee
works more than 1,250 hours in a designated 12-month period, the employee may still be
eligible for a job-protected leave of absence under the federal Family and Medical Leave
Act (FMLA), if the employer is covered by that statute and the employee is otherwise
eligible. Similarly, part-time employees that have worked 180 calendar days may also be
eligible for a job-protected leave of absence under the Oregon Family Leave Act (OFLA).

Exempt and non-exempt employees


Employers must be careful in designating employees as either exempt or non-exempt
under the federal wage and hour law (known as the Fair Labor Standards Act (FLSA)) and
related state statutes. The employer’s designation is not controlling, and either the
Department of Labor or the Oregon Bureau of Labor and Industries (BOLI) will perform
its own analysis based upon the job duties performed by the individual employee to
determine whether the employee has been properly classified (and paid) by the employer.
Exempt categories, along with criteria relevant to each exemption, can be found at
www.dol.gov. (For more information, see also Oregon Administrative Rules 839-020-
0004 et. seq.) Employers should note the specific minimum salary requirements and the
exercise of independent discretion and judgment are required in most exempt positions.
Employers are strongly advised to consult with an attorney regarding the exempt status
of any employee.

53
General policies

SAMPLE POLICY
ABC Company classifies employees as follows:

1. Regular Full-time: Employment in an established position requiring 40 hours or


more of work per week. Full-time employees are eligible for full participation in
benefit programs.

2. Regular Part-time: Employment requiring less than 40 hours of work per week.
Normally a part-time schedule, such as portions of days or weeks, will be
established. Participation in benefits programs for part-time employees is limited to:

• Participation in the retirement plan, if the employee works over 1,000 hours in a
year and is at least 21 years of age.

• Participation in paid, company-observed official holidays.

• Eligibility for workers’ compensation benefits.

3. Temporary: Employment in a job established for a specific purpose, for a specific


period of time, or for the duration of a specific project or group of assignments.
Participation in benefits programs for temporary employees is limited to eligibility
for workers’ compensation. Temporary employment can either be full-time or part-
time.

Additionally, all employees are defined as either:

1. Exempt: Those employees who are employed in an executive, administrative, or


professional capacity, or other legally exempted categories of employees, and who
are not covered by the federal minimum wage and maximum hours laws; or

2. Non-Exempt: Those employees who are not employed in an executive,


administrative, or professional capacity, or other legally exempted categories of
employees, and who are covered by the federal minimum wage and maximum hours
law.

All employees, regardless of employment classification, are subject to all Company rules
and procedures.

54
General policies

Introduction period
Employers may establish orientation or introductory periods of employment in order to closely
monitor a new employee’s performance to determine whether that employee is suited for the
position. Employees are frequently not eligible for benefits during this period. Rather than
labeling this period as “probationary” or as an “orientation” which may be inconsistent with the
at-will nature of employment in Oregon, employers should characterize such periods by terms
such as or “introductory.” Any policy providing for an introductory period should emphasize
that employment at the company remains at-will, during and after completion of the
introductory period.

SAMPLE POLICY
New employees are subject to an introductory period of three months. This is to give a new
employee and ABC Company an opportunity to evaluate the employee’s interest in the job
and the ability to perform the work. An orientation program will be conducted during this
time to give you a clear understanding of what is expected. Also, during this time, your
supervisor will closely monitor your performance.
If at any time your work is unsatisfactory or you don’t appear to be suited to the position,
your status will be reviewed with you by your Supervisor. Upon successful completion of
the introductory period, ABC Company will review your performance. If ABC Company
finds your performance satisfactory, your status will be changed to that of a regular
employee and, and you will be advised of any improvements expected from you.

Completion of the introductory period or continuation of employment after the


introductory period does not entitle you to remain employed by ABC Company for any
definite period of time. Both you and ABC Company are free to terminate the employment
relationship, at any time, with or without notice and for any reason not prohibited by law.
After successful completion of the introductory period, eligible employees receive additional
benefits described in this handbook

55
General policies

General rules and regulations


A statement of general rules and regulations, as well as the company’s policy for administering
discipline, is a vital part of any employee handbook or personnel manual. These policies put
employees on notice as to what behaviors will not be tolerated. Disciplined employees may be
less likely to pursue a claim alleging that the employee did not know that his or her actions were
improper or that the employer was inconsistent in applying its rules. Supervisors are also
provided guidance as to when to take disciplinary action, thereby allowing for the uniform
implementation of rules throughout the facility.

The uniform application of these rules can also provide a strong defense against claims of
discrimination based solely on circumstantial evidence (for example, treatment of similarly
situated employees differently).

Maintaining employer discretion in deciding when and how to discipline employees is essential.
Employers should never designate a specific form of discipline for a particular infraction because
the employer should reserve the discretion to impose whatever discipline it believes to be
appropriate in each situation. Thus, the policy should contain an express statement that
discipline is discretionary, and the employer retains its right to determine appropriate discipline,
up to and including termination.

Nor should a policy provide that an employer will engage in “progressive discipline” prior to
termination. While an employer may decide to provide a verbal warning, written warning, and/or
suspension prior to termination, in any specific case, the employer should retain the discretion to
immediately terminate any employee without prior utilization of lesser discipline.

Finally, to preserve the principle of at-will employment, employers should not include any
provision stating grounds for discipline or discharge (for example, “for cause” or “just cause”
terminations) because such a provision may be construed as limiting an employer’s discretion to
terminate employees even without sufficient grounds or bases.

The sample policy is intended for manufacturing settings. It is important to individually tailor
the provisions of this policy to meet each employer’s own business needs and objectives, and
clearly advise employees of the general rules, regulations and disciplinary procedures the
employer intends to follow.

56
General policies

SAMPLE POLICY
(Option 1)

Prohibited Conduct

The following conduct is prohibited and will not be tolerated by the Company. Violation
may result in discipline, up to and including termination. This list of prohibited conduct is
illustrative only; other types of conduct injurious to security, personal safety, employee
welfare and Company’s operations may also be prohibited.

• Falsification of employment or other Company records.


• Recording of work time of another employee of allowing any other employee to
record your work time, or allowing falsification of any time sheets, either your own
or another employee’s.
• Theft or the deliberate or careless damage or destruction of any Company property,
or the property of any other employee or customer.
• Unauthorized use of Company equipment, materials or facilities.
• Provoking a fight or fighting during work hours or on Company property.
• Carrying firearms or any other dangerous weapon on Company premises at any
time.
• Engaging in criminal conduct while at work.
• Causing, creating or participating in a significant or substantial disruption of work
during working hours on Company property.
• Insubordination, including but not limited to failure or refusal to obey the orders or
instructions of a supervisor or member of management, or the use of abusive or
threatening language toward another Company employee, customer or vender.
• Failure to notify a supervisor when unable to report to work, or when leaving work
during normal working hours without permission from a supervisor to do so.
• Failure to observe work schedules, including rest and meal periods.
• Failure to provide a physician’s certificate when requested to do so.
• Sleeping or malingering on the job.
• Excessive personal telephone calls during working hours.
• Unauthorized overtime, or refusing to work assigned overtime.
• Unprofessional appearance during normal business hours.
• Violation of any safety, health, security or Company policy, rules or procedures.
• Unlawful harassment or discrimination.

This statement of prohibited conduct does not alter Company’s policy of at-will
employment. Either you or the Company remains free to terminate the employment
relationship at anytime, with or without cause or notice.

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General policies

SAMPLE POLICY
(Option 2)

ABC Company expects every employee to adhere to the highest standards of job performance
and personal conduct. This expectation extends to interactions with ABC Company personnel
and outside business contacts.

The following is a list of some examples of unacceptable performance or conduct:

• Unsatisfactory quality or quantity of work


• Repeated or unexcused absences or lateness
• Refusing or failing to do work assignments
• Failing to act respectfully towards others in the workplace
• Incompetence
• Careless or unsafe driving of vehicles on ABC Company premises or while on ABC
Company business
• Failing to follow instructions or Company procedures
• Failing to follow established safety or work regulations and policies, procedures and/or
work instructions
• Falsifying an employment application or any other Company records or documents
• Failing to record working time accurately or recording time on a co-worker’s timesheet
• Insubordination or other refusal to perform
• Using vulgar, profane, or obscene language, including any communication or action that
violates ABC Company’s policy against harassment and other discrimination
• Any other violation of ABC Company’s policy against harassment and other
discrimination
• Disorderly and/or disruptive conduct, fighting or other acts of violence
• Engaging in physical, emotional or verbal abuse of coworkers, customers or suppliers
• Misusing, destroying or stealing Company property or another person’s property
• Possessing on or in, entering with, or using weapons on or in Company property
• Reporting to work under the influence of or possession or use of alcohol or drugs in
violation of ABC Company’s drug and alcohol policy
• Violating conflict of interest rules
• Unauthorized removal or dissemination of ABC Company property or proprietary
information
• Dishonesty or theft
• Violating applicable local, state, or federal laws
• Conduct endangering the health, welfare or safety of a co-worker
• Disclosing or using confidential or proprietary information without authorization
• Violating ABC Company’s computer or software use policies
• Being convicted of a crime that indicates unfitness for the job

58
General policies

• Abuse of ABC Company equipment or property


• Any other violation of any ABC Company policy

The above list is not exhaustive but gives only some examples of unacceptable performance or
conduct. Other examples of prohibited conduct that may result in discipline, up to and including
discharge, are described elsewhere in this Handbook.

ABC Company may discipline or terminate the employment of any employee for violation of
any of the above-listed or any other ABC Company policy, practice, or rule of conduct or for
any other reason. Discipline may be in the form of a verbal warning, written warning,
suspension, demotion, discharge, or other action. In all cases, ABC Company retains sole
discretion to determine the nature and extent of any discipline based upon the circumstances of
each individual case. And at all times, ABC Company retains the right to terminate any
employee’s employment at any time and for any reason, with or without advance notice or other
prior disciplinary action.

59
General policies

Attendance policies
An employer’s attendance policy is an important part of its written employment policies
because it allows the employer to set fixed standards for attendance. Obviously, good employee
attendance is critical to business. An attendance policy can be a fairly simple statement that
consistent attendance is expected of every employee to a more elaborate “no-fault policy.”
Regardless of the type of policy adopted, consistent application is essential to avoid claims of
favoritism or discrimination. Finally, a uniformly enforced attendance policy may boost
employee morale by minimizing resentment on the part of some employees toward co-workers
who suffer no consequences for being chronically absent.

On a practical level, any attendance policy should be harsh enough to allow the employer to
discipline those employees whose absences cause problems, yet, to achieve the goal of uniform
enforcement, lenient enough that the employer does not have to terminate good employees who
are absent infrequently. Also, the employer may have different attendance policies for different
departments so long as there is a legitimate business reason for doing so. It should be noted,
however, that differing policies may cause morale problems for those who are subject to the
harsher attendance requirements.

Some employers chose to implement more complicated point-based attendance policies. These
types of policies are not appropriate for all workplaces, may be time consuming to administer,
and should be carefully considered prior to implementation. They may, however, encourage
employees with prior absenteeism problems to improve their attendance. These types of
policies are usually calculated on a rolling 12-month period, with accumulated points or
disciplinary warnings being dropped after 12 months have passed. It also should provide for
varying treatment of different types of absences so as to encourage preferred absences (for
example, pre-approved leaves over spontaneous single-day absences). Further, rewarding
employees for good attendance is good for employee morale and ultimately may improve overall
attendance.

Unemployment compensation
An attendance policy can be an effective defense to an unemployment compensation
claim by an employee terminated for excessive absenteeism. Such a policy allows the
employer simply to show that the employee violated the uniformly enforced policy and
was discharged for doing so. Again, the policy must be reasonable, uniformly enforced,
and in writing to be effective.

ADA/Oregon’s disability law


A well-written, uniformly enforced attendance policy may also provide a defense to
employees protected by the ADA and Oregon’s disability law where the employee’s
disability prevents regular and consistent attendance. The employer’s reasonable
attendance standards may be deemed an essential function of the job, which may not have
to be relaxed as part of a reasonable accommodation, if spelled out in advance and
uniformly and consistently applied. Further, employers should consider identifying

60
General policies

attendance as an essential job function in all job descriptions. Note, however, that
absences from work may be viewed as a “reasonable accommodation,” depending on the
facts and circumstances.

FMLA/OFLA
The FMLA/OFLA specifically prohibits covered employers from disciplining or
discharging an eligible employee for an absence caused by a protected reason under the
leave laws. Where medically necessary, such leave may even be taken intermittently or
on a reduced hours leave schedule. Although the FMLA/OFLA does impose certain
requirements upon employees with respect to eligibility for leave – notice to the
employer, and medical certification – employers covered by this law should not assess
points to, discipline, or discharge an employee absent on an
FMLA/OFLA-protected leave.

SAMPLE POLICY
(Option 1)

Punctuality and regular attendance are essential functions of each employee’s job at ABC
Company. Any tardiness or absence causes problems for fellow employees and
supervision. When an employee is absent, his or her work must be performed by others.

Employees are expected to report to work as scheduled, on time, and prepared to start
work. Employees also are expected to remain at work for their entire work schedule, except
for break periods or when required to leave on authorized Company business. Late arrival,
early departure, or other absences from scheduled hours are disruptive and must be avoided.

In all cases of absence or tardiness, employees must provide their supervisor with an honest
reason or explanation. Documentation of the reason may be required. Employees also must
inform their supervisor of the expected duration of any absence. Absent extenuating
circumstances, an employee must call in advance of his or her regular starting time on any
day on which the employee is scheduled to work and will not report to work.

Excessive absenteeism (excused or not) may be grounds for discipline up to and including
termination of employment. Each situation of excessive absenteeism or tardiness will be
evaluated on a case-by-case basis, and the Company will not retaliate against an employee
who has taken or is taking an FMLA/OFLA leave of absence. However, even one
unexcused absence may be considered excessive, depending on the circumstances.

Any employee who fails to report to work without notification to his or her supervisor for
a period of three consecutive days or more will be considered to have voluntarily terminated
the employment relationship.

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General policies

SAMPLE POLICY
(Option 2)

You are hired to perform an important function at ABC Company. As with any group
effort, it takes cooperation and commitment from everyone to operate effectively.
Therefore, your attendance and punctuality are very important. Good attendance is
something that is expected from all employees. You should be at your work station by the
start of each workday at the time designated by the department. Excessive, unexcused
absenteeism or tardiness will not be tolerated and will be cause for disciplinary action up to
and including discharge.

We do realize, however, that there are times when absences and tardiness cannot be
avoided. This is why we have a no-fault system that allows you to accumulate some points
before any disciplinary action will be taken against you. It is expected that everyone will
accumulate some points under this system. It is only when points become excessive, and
warnings are issued, that an employee need be concerned about his or her attendance
practices.

Regardless of the reason for your absence, you are expected to properly notify your
supervisor on duty at least one hour in advance of your scheduled work time. Lack of a
telephone or absence from town is not an excuse for failing to notify your supervisor of
absence or tardiness. You should call every day that you are absent unless you are on an
approved leave of absence. Unreported and unexcused absences of two consecutive work
days will be considered a voluntary termination of employment with the Company.

Each employee’s absenteeism and tardiness records are kept on file with the Human
Resources Department. The absenteeism and tardiness records are kept on a point system
basis. Depending upon the nature of the absence, a certain number of points are
accumulated by an employee on their personnel record. When an employee reaches various
point totals, certain notice and disciplinary actions will be taken. An employee may receive
a written notice, a written warning, a final written warning, or will be discharged depending
upon the number of points he or she accumulates.

Any employee who accumulates 24 or more points in a 12 month period under this system
will be discharged. On the first day of each month, points accumulated during that same
month one year prior will be removed from the employee’s record for purposes of this
policy.

If only three points or less are accumulated during any rolling 12 month period by an
employee, he or she will receive one day off with pay. Upon earning a day off with pay, the
employee will begin a new 12-month period for purposes of earning another day off under
this program. Absences from work will accumulate points in the following manner:

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General policies

No Points

1. Off work due to a work-related injury with medical verification that the employee is
unable to work.

2. Off work due to jury duty, military leave, medical leave, FMLA/OFLA leave, lack of
work, subpoenas, scheduled vacation, or any other absence expressly authorized by
the Company, the terms of Company policy, or the law.

3. Off work because of adverse weather conditions resulting in the closing of schools
and/or roads in this or the surrounding counties by the local authorities.

4. Off work due to an accident in which you are involved coming to work and which
you can verify through police records or other satisfactory evidence. Car trouble is
not excused.

One (1) Point

1. Late to work by 15 minutes or less for any reason not excused above.

2. Leaving work two hours or less before the end of your scheduled work time for any
reason not excused above after notifying your supervisor.

Two (2) Points

1. Late to work by more than 15 minutes for any reason not excused above.

2. Leaving work more than two hours before the end of your scheduled workweek for
any reason not excused above after notifying your supervisor.

Three (3) Points

1. Absence for any reason not excused above with proper call-in.

Twelve (12) Points

1. Absence for any reason not excused above without proper call-in.

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General policies

The accumulation of the following number of points will result in the following action
being taken by the Company:

• 12 Points: A written notice that the employee has accumulated 12 or more points.

• 16 Points: A written warning to the employee.

• 20 Points: A final written warning to the employee.

• 24 Points: The employee will be discharged.

EXAMPLE:
Employee is late on one occasion by 30 minutes, leaves work 1 hour early on another
occasion, and has three reported absences that are not excused.

2 points + 1 point + 9 points = 12 points = Written Notice

The Company will not notify you that through the passage of time you have lost points.
However, each time you re-accumulate enough points to trigger a notice or warning, you
will receive such notice or warning. You also may check with the Human Resources
Department at any time to determine your point status.

Disability accommodation policy


Effective January 1, 2009, Oregon employers with 15 or more employees became subjected to
new laws affecting the Americans With Disabilities Act (ADA). The new laws, sometimes
referred to as the ADA Amendments Act of 2008 (or ADAAA), will also likely affect Oregon
employers who are covered by Oregon’s disability discrimination laws (employers with six or
more employees), because Oregon’s disability discrimination laws closely follow the ADA, and
certain provisions of Oregon’s disability discrimination laws “shall be construed to the extent
possible in a manner that is consistent with any similar provisions of” the ADA. Although too
detailed to explain here, the ADAAA effectively broadened the coverage of the ADA and will
likely increase the number of employees who ask for accommodation (and who are legally
“disabled” under the law). Accordingly, and given the greater spotlight placed on employees
with disabilities, due to passage of the ADAAA, employers are strongly encouraged to include
some type of policy statement regarding the employer’s commitment to abide by the ADA and
support the rights of its employees who are protected under it.

In light of the ADAAA, now, more than ever, job descriptions and lists of “essential functions”
should be up-to-date and accurate. If a job description is not up to date, and an employee
currently holds the position, it is recommended that employers work with that employee to
create a job description that is accurate and complete. Although the law specifies that a written
job description must be prepared before advertising or interviewing for a job in order to be
effective under the ADA/ADAAA, courts and fact-finders have still given deference to job

64
General policies

descriptions that were created after those two events occur, as long as the job descriptions
accurately reflect a particular job’s duties and essential functions, and particularly if the job
description was created with the employee’s input. In sum, it is better to create and have a job
description listing accurate essential functions, even if the job description was prepared after-the-
fact.

The policy listed below is a general disability accommodation policy. This is still important to
include in a handbook even if you have a general EEO policy that prohibits discrimination
against, among other protected classes, individuals with a disability, simply because of the
increased focus now on employees with disabilities.

Not included here is a sample form by which employees can request a reasonable accommodation
in writing. Although some employers require this, and utilize forms like the EEOC’s internal
Form 557 for that purpose, such an approach is not advisable. Employers are better advised to
specify in its policies:

• to whom requests for accommodation should be made (manager, a “disability


coordinator,” etc.)

• that requests for accommodation should be made as soon as possible after an employee
recognizes a need for an accommodation

and

• that, if possible, requests for accommodation should be in writing, but that oral requests
will be accepted if the employee’s requested accommodation makes clear that a written
request is impractical (or impossible).

Finally, although not a required or recommended form, a sample “interactive process


questionnaire” is included. This is the type of document you may wish to use when consulting
with an employee’s physician about essential job functions, accommodation, and the like.
Remember that the ADA (and the ADAAA) allows for communication with health care
providers and medical inquiries under limited circumstances. Consult with legal counsel before
initiating contact with an employee’s health care provider for any reason. Employers are
strongly advised to document each stage of the interactive process, and include information such
as:

• date accommodation was requested, and nature of accommodation

• the date on which the employer met with the employee to discuss the employee’s
requested accommodation, the name(s) of the individual(s) who attended the meeting

• a list of issues addressed at the meeting (including what accommodations were proposed
by both management and the employee)

• a list of date(s) on which contact was attempted or made with the employee to discuss
the interactive process (and what was discussed during each conversation).

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Additionally, employers should document what efforts, if any, they took to research the
employee’s accommodation request (for example, by contacting the Job Accommodation
Network or referring to other resources).

SAMPLE POLICY

Accommodations

Company will make reasonable efforts to accommodate a qualified applicant or employee


with a known disability, unless such accommodation creates an undue hardship on the
operation of Company. Company is committed to complying fully with the Americans
with Disabilities Act (ADA) and applicable Oregon disability discrimination/
accommodation laws. Company is also committed to ensuring equal opportunity in
employment for qualified persons with disabilities.

Requesting an Accommodation

The ADA provides protections to people with disabilities in employment. In recognition of


the barriers to full participation faced by this group, and in compliance with the ADA,
accommodations may be implemented to the extent that they are not an undue hardship for
Company.

A reasonable accommodation is any change or adjustment to a job or work environment that


does not cause an undue hardship on the department or unit [or the Company] and which
permits a qualified applicant or employee with a disability to participate in the job
application process, to perform the essential functions of a job, or to enjoy benefits and
privileges of employment equal to those enjoyed by employees without disabilities. For
example, a reasonable accommodation may include providing or modifying equipment or
devices, job restructuring, allowing part-time or modified work schedules, reassigning an
individual, adjusting or modifying examinations, modifying training materials or policies,
providing readers and interpreters or making the workplace readily accessible to and usable
by people with disabilities.

Employees should request an accommodation as soon as it becomes apparent that a


reasonable accommodation may enable the employee to perform the essential duties of a
position or participate in the employment process. All requests for accommodation should
be made with the employee’s immediate supervisor [or designate a specific individual/title],
and should specify which essential functions of the employee’s job cannot be performed
without a reasonable accommodation. In most cases, an employee will need to secure
medical verification of his or her need for a reasonable accommodation.

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General policies

INTERACTIVE PROCESS QUESTIONNAIRE

To: [PHYSICIAN NAME]

Name of Employee: [EMPLOYEE]

Job Evaluated: [POSITION]

Please answer and return the following questionnaire to your patient within the time frame
indicated. Please respond to every question. We need your complete medical opinion, so please
feel free to include a more detailed narrative response to any and all questions if needed to
answer more fully. Thank you for your anticipated cooperation.

IMPORTANT NOTE TO HEALTH CARE PROVIDER: When answering these questions, you
may consider ordinary eyeglasses or contact lenses but please do not take into consideration
ameliorative effects of any other mitigating measures, such as medications, medical supplies,
equipment, or appliances, low-vision devices, prosthetics including limbs and devices, hearing
aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies; use of assistive technology; reasonable accommodations or
auxiliary aides or services; or learned behavioral or adaptive neurological modifications.

1. Does [EMPLOYEE] have a physical or mental impairment? Yes No


If so, please state the type of impairment:

2. Does [EMPLOYEE’S] impairment substantially limit any major life activities?


Yes No
3. If so, which major life activity or activities are limited?

4. For each major life activity that is limited by the impairment, please describe how
[EMPLOYEE] is restricted as to the condition, manner, or duration under which that
activity can be performed, as compared to the way in which an average person in the
general population can perform that activity:

5. What is the duration or expected duration of [EMPLOYEE’S] impairment?

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General policies

6. Attached is a job description for the [POSITION NAME] position. Please review the job
description and assess whether [EMPLOYEE] can perform all job functions: Yes No
7. If not, which job functions can not be performed, and why not?

8. Please describe any reasonable accommodations that would allow this employee to be
able to perform the job functions identified in your response to Question No. 7:

9. If medical leave is one of the possible accommodations listed above, please provide an
estimated duration for the leave:

10. Would performing any of the job functions listed in the job description result in a direct
safety or health threat to this employee or other people (co-workers, members of the
general public, etc.)? Yes No
11. If yes, please describe:
• Which job function(s) would pose such a threat:

• The direct safety or health threat posed:

• Any reasonable accommodations that would eliminate the direct safety or health
threat, or reduce it to an acceptable level:

Signature:
Title:
Date:

Printed Name and Address:

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General policies

Safety and health policies


Health and safety policies are important for all work settings to make employees more safety
conscious and reduce the likelihood of injury to employees and visitors, thereby reducing the
employer’s potential exposure to criminal, civil, and workers’ compensation claims. This policy
also gives employees a mechanism for reporting safety concerns and on-the-job injuries so that
the employer can respond promptly and appropriately. While the first sample policy is
intended to apply to a manufacturing setting, all employers should at least adopt a short
statement that demonstrates the employer’s concern for health and safety. An alternative policy
is provided for this purpose. Employers should be careful to ensure complete compliance with
all applicable federal and state occupational safety and health laws throughout the facility.

The policy should also address under what circumstances documentation (including releases)
from the employee’s physician will be required. All such documents should be kept confidential
and separate from the employee’s personnel file. As to medical releases, the employer may
provide the employee’s personal physician with information regarding the types of work
performed at the company, and in particular the specific job functions performed by the
individual employee in his or her job. Without this information, the physician will not be able to
properly assess the effect that the employee’s injury or illness on his or her ability to perform
the required work. If the physician’s statement is ambiguous, the employer may request
clarification from the physician or a second professional opinion regarding the employee’s ability
to perform essential job functions.

Finally, the policy should provide a disciplinary point of reference for dealing with employees
whose presence in the workplace may subject themselves or others to a significant risk of
substantial harm. This may be very helpful under the ADA and/or Oregon’s disability law in
dealing with employees whose disabilities create such risks.

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General policies

SAMPLE POLICY
(Option 1)

ABC Company will continue to make reasonable provisions for the safety and health of its
employees at the plant during the hours of their employment.

Protective Devices and Other Equipment

Protective devices and other equipment necessary to protect employees from injury will be
provided by the Company at its expense in accordance with applicable laws and safety
needs. All employees are required to use properly, and are responsible for, safety and other
equipment issued to them. Equipment will be replaced only upon return of the item that
needs to be replaced.

Promptly Report Accidents and Injuries

On-the-job accidents, injuries, and illnesses, regardless of how minor, must be reported to
your supervisor immediately. Failure to do so may disqualify you from receiving workers’
compensation benefits or an excused absence and may result in disciplinary action.

Physician’s Statement Upon Return to Work

You must give your supervisor a physician’s statement releasing you to return to work
following any injury or illness for which you received a doctor’s care or that resulted in
your absence for three or more consecutive scheduled working days. The doctor’s release
must state that you are released to return to work either: (a) without limitation; or (b) with
limitations, listing them specifically.

Safety Committee*

The Company is vitally concerned with maintaining and improving safety conditions in the
work area. A safety committee comprised of two supervisors and three employees
appointed by the health and safety office will meet on paid time, not to exceed two hours
unless otherwise agreed, on the first Monday of each month. The sole purposes of this
meeting will be to conduct a safety walkaround in the work area and to discuss safety issues
in the workplace.

Note: Effective January1, 2008, all Oregon employees subject to Oregon OSHA and
regardless of size, are required to establish safety committees or hold and administer safety
meetings.

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General policies

Combustibles

Combustibles must be stored in marked, covered containers in designated areas.


Combustibles may be brought into the facility only in proper containers.

Do not smoke, use a flame, or create sparks in areas posted No Smoking or in the vicinity of
any combustibles (for example, gas, oil, paint, varnish, thinner, solvents, and glue).

Do not store, even temporarily, any combustibles in any area where smoking is permitted
without advance authorization from your supervisor.

Dispose of cigarette butts and tobacco in the designated containers.

Visitors in the Work Area

Because of potential safety and other problems, we cannot allow non-business visitors
(including family members and, particularly, children), in any working area at any time
without advance permission of the plant manager. If you observe any unauthorized
non-business visitor in any working area at any time, please immediately notify the office or
the Company official in charge of the work area at that time.

Safety Rules

Safety rules will be formulated from time to time by the employee safety committee or
management and posted in the work area. In addition, the following safety rules must be
observed by all Company employees:

1. Horseplay on Company premises is strictly prohibited at all times.


2. Do not drive or behave recklessly or carelessly on Company premises at any time.
3. Observe common safety practices.
4. Always use safety and protective devices and equipment as directed by the
Company.
5. All employees and visitors must wear approved safety glasses at all times while in
the production or maintenance areas.
6. You are expected to wear approved steel toe safety shoes while you are working at
any location in the production or maintenance areas.
7. Good housekeeping is part of safety, good health, and good work. Each employee is
responsible for keeping his or her immediate working area clean.

Employees who violate any of these rules or any aspect of the safety and health policy may
be disciplined, up to and including discharge.

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SAMPLE POLICY
(Option 2)

Safety is everybody’s business. Every employee is responsible for his or her own safety as
well as for others in the workplace. Safety must be a primary concern in every aspect of
planning and performing all ABC Company activities. We want to protect our employees
against preventable injury or illness in the workplace to the greatest extent possible.

All injuries (no matter how slight) must be reported to management immediately.
Employees also are expected to report promptly to management any apparent health or
safety hazards. Below are some general safety rules. Each manager or department head also
may post other safety procedures in specific departments or work areas:

• Avoid overloading electrical outlets with too many appliances or machines.

• Use flammable items, such as cleaning fluids, with caution.

• Use stairs one at a time.

• Report to your manager immediately if you or a co-worker becomes ill or is injured


in the workplace.

• Ask for assistance when lifting heavy objects or moving heavy furniture.

• Smoke only in designated smoking areas.

• Keep cabinet doors and file and desk drawers closed when not in use.

Employees who violate any of these rules or any aspect of the Company’s safety policies
may be disciplined, up to and including discharge.

Substance abuse policy


There is no legal requirement for Oregon employers to drug test its employees or applicants
(with specific exemptions relating to certain regulated industries, such as transportation), and
Oregon’s civil rights laws do not specifically address an employer’s right to drug test employees.
But employers have legitimate concerns about the use of drugs and alcohol in the workplace, and
a substance abuse and drug/alcohol testing policy puts employees on notice that the employer
will not tolerate the use or possession of drugs and alcohol in the workplace.

A substance abuse/testing policy must be drafted and administered to ensue that it applies only
to those individuals who currently abuse drugs, use alcohol or illegal drugs at work, or report to
work under the influence of alcohol or drugs, and not to those who have recovered from their

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addictions or are otherwise protected by law. Employers are strongly encouraged to work with
their legal counsel and a qualified laboratory testing service to ensure that the policy used clearly
and fully advises employees that they could be subject to testing. Further, the policy should
advise employees how they can be selected for testing, such as pre-hiring testing, random testing,
for “cause” testing (such as when the employer has a reasonable suspicion of drug use), or when
an employee is involved in a workplace incident or accident.

Once the policy is prepared and given to the employees, apply it consistently. As BOLI
notes, “To avoid charges of discrimination or wrongful discharge, enforce your drug testing
policy in a fair and consistent manner. If you test employees randomly, be certain you can
document that your selection methods are truly random. If you test employees ‘for cause,’ be
certain you can articulate the facts (not merely rumors or gossip) which gave you reasonable
suspicion of an employee’s drug use.” See www.oregon.gov/BOLI/TA/T_FAQ_
Drugtesting.shtml.

If an employer does test employees in a proper, consistent manner, the employer may discipline
or terminate employees who test positive for current use of illegal drugs, because such individuals
are not protected by the Americans With Disabilities Act or Oregon disability laws. Under the
Oregon Medical Marijuana Act (OMMA), employers may have an obligation to accommodate a
disabled applicant or employee who lawfully utilizes medical marijuana during non-working
hours, even if that employee shows the presence of marijuana in his or her system while at work.
The law in this area is changing, however, and employers should consult their attorney for the
latest laws applicable to accommodating OMMA-covered employees.

Employers may conduct pre-employment drug screens without violating the ADA or any
Oregon law only after a conditional offer of employment has been made to the applicant.

Finally, employers with certain federal contracts are required to adopt a “Drug Free Workplace”
policy with certain provisions mandated by the government. Obligations under the Drug Free
Workplace Act do not recognize any obligations an Oregon employer may have under the
OMMA. The next section addresses the Drug Free Workplace Act.

The sample policies below are optional. The first policy is appropriate for all employers,
regardless of whether the employer intends to conduct drug testing. This policy does not address
the testing issue, but still contains strong language regarding prohibited conduct. The second
policy is appropriate only for those employers who intend to require drug testing as a condition
of employment. The policy includes provisions for pre-employment drug testing, randomized
drug testing of all employees, and suspicion-based testing of individual employees. Employers
are cautioned to adopt only those provisions of the policy which they intend to utilize.

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General policies

SAMPLE POLICY
(Option 1)

The Company is concerned about the use of alcohol, illegal drugs or controlled substances as
it affects the workplace. Use of these substances, whether on or off the job, can adversely
affect an employee’s work performance, efficiency, safety and health and therefore
seriously impair the employee’s value to the Company. In addition, the use or possession
of these substances on the job constitutes a potential danger to the welfare and safety of
other employees and exposes the Company to the risks of property loss or damage, or
injury to other persons.

Furthermore, the use of prescription drugs and/or over-the-counter drugs also may affect an
employee’s job performance and seriously impair the employee’s value to the Company.

The following rules and standards of conduct apply to all employees either on Company
property or during the workday (including meals and rest periods).

The Company strictly prohibits the following:

(1) Possession or use of alcohol while on the job (except at an approved Company
function);

(2) Being under the influence of alcohol or illegal drugs while on the job;

(3) Driving a vehicle while under the influence of alcohol or drugs on Company
business;

(4) Distribution, sale or purchase of an illegal or controlled substance while on the job;

(5) Possession or use of an illegal, controlled substance while on the job.

Violation of the above rules and standards of conduct will not be tolerated. The Company
also may bring the matter to the attention of appropriate law enforcement authorities.

An employee’s conviction on a charge of illegal sale or possession of any controlled


substance while off Company property will not be tolerated because such conduct, even
though off duty, reflects adversely on the Company.

An employee who is using prescription or over-the-counter drugs that may impair the
employee’s ability to safely perform the job, or affect the safety or well-being of others,
must notify a supervisor of such use immediately before starting or resuming work.

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The Company will encourage and reasonably accommodate employees with chemical
dependencies (alcohol or drugs) to seek treatment and/or rehabilitation. To this end,
employees desiring such assistance should request a treatment or rehabilitation leave. The
Company is not obligated, however, to continue to employ any person whose performance
of essential job duties is impaired because of drug and alcohol use, nor is the Company
obligated to re-employ any person who has participated in treatment and/or rehabilitation if
that person’s job performance remains impaired as a result of dependency. This policy on
treatment and rehabilitation is not intended to affect the Company treatment of employees
who violate the regulations described above. Rather, rehabilitation is an option for an
employee who acknowledges a chemical dependency and voluntarily seeks treatment to end
that dependency.

SAMPLE POLICY
(Option 2)

ABC Company recognizes that the future of the company is dependent on the physical and
psychological health of its employees. The company also recognizes drug and alcohol
dependency as an illness and a major health problem.

ABC Company will utilize every reasonable means to maintain a drug-free work
environment for its employees, including supervisor training, employee education, providing
employees access to information concerning drug and alcohol abuse programs, and
implementing substance abuse testing of employees and job applicants to detect use of
illegal substances.

It is the responsibility of the company’s supervisors to counsel employees whenever they


see changes in performance or behavior that suggest an employee has a drug problem.
Although it is not the supervisor’s job to diagnose personal problems, the supervisor should
encourage such employees to seek help and advise them about available resources for getting
help. Everyone shares responsibility for maintaining a safe work environment, and co-
workers should encourage anyone who has a drug problem to seek help.

Definitions

As used in this policy, the term:

A. Alcohol means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from
whatever source or by whatever process produced.

B. Drug means amphetamines, methamphetamines, cannabinoids, cocaine,


phencyclidine (PCP), methadone, methaqualene, opiates, barbiturates,
benzodiazepines, propoxyphene, or a metabolite of any such substances.

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C. Employee means any person who works for salary, wages, or other remuneration for
ABC Company.

D. Job applicant means a person who has applied for a position with ABC Company
and has been offered employment conditioned upon successfully passing a substance
abuse test and may have begun work pending the results of the substance abuse test.

E. Nonprescription medication means a drug or medication authorized pursuant to


federal or state law for general distribution and use without a prescription in the
treatment of human disease, ailments, or injuries.

F. Prescription medication means a drug or medication lawfully prescribed by a


physician for an individual and taken in accordance with such prescription.

G. Substance means drugs or alcohol.

Prohibited Conduct

The primary goal of ABC Company is to maintain a safe, productive, and drug-free working
environment. For this reason, the company has established the following policy:

A. It is a violation of company policy for any employee to use, possess, sell, trade,
offer for sale, or offer to buy illegal drugs or otherwise engage in the illegal use of
drugs on or off the job.

B. It is a violation of company policy for anyone to report to work under the influence
of illegal drugs or alcohol.

C. It is a violation of company policy for anyone to use prescription medication


illegally. However, nothing in this policy precludes the appropriate use of
prescription or non-prescription medications.

Violations of this policy are subject to disciplinary action up to and including termination.

Pre-Employment Drug Testing

A. Prior to an offer of employment being made, job applicants will be notified that they
will be required to submit to a drug test as a condition of employment. Once a
conditional offer of employment has been made, the job applicant will undergo
testing for the presence of drugs as a condition of employment.

B. Job applicants will be required to submit voluntarily to a drug test at a laboratory


chosen by this company and, by signing a consent agreement, will release ABC
Company from liability connected to the pre-employment drug testing.

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C. Any applicant with a confirmed positive test will be denied employment.

D. Refusal to submit to a drug test will be interpreted as a voluntary withdrawal of


application for employment.

E. If the physician, medical official, or lab personnel has reasonable suspicion to believe
that the job applicant has tampered with the specimen, the applicant will not be
considered for employment.

F. ABC Company will not discriminate against applicants for employment because of a
past history of drug abuse. It is the current use of illegal drugs or unauthorized use
of prescription medication that is prohibited.

G. Applicants with a confirmed positive test result may, at their option and expense,
have a second confirmation test made on the same specimen. An applicant will not
be allowed to submit another specimen for testing. Applicants must present
themselves drug-free as demonstrated by the drug testing selected by this company.

H. Individuals who have failed a pre-employment test may initiate another inquiry with
the company after a period of not less than six months. However, they must
present themselves drug-free as demonstrated by the drug testing selected by this
company.

Employee Drug Testing – General Procedures

A. An employee reporting to work visibly impaired will be deemed unable to properly


perform required duties and will not be allowed to work. If possible, the employee’s
supervisor will first seek another supervisor’s opinion to confirm the employee’s
status. Next, the supervisor will consult privately with the employee to determine
the cause of the observation, including whether illegal drug use has occurred. If, in
the opinion of the supervisor, the employee is considered impaired, a drug test may
be required. If a drug test is not immediately possible, the employee will be sent
home or to a medical facility by taxi or other safe transportation alternative
depending on the determination of the observed impairment) and accompanied by
the supervisor or another employee if necessary. An impaired employee will not be
allowed to drive.

B. To ensure that the decision to test is reasonable, the supervisor will discuss with the
appropriate departmental supervisor his or her reasons for believing that testing is
warranted. If the employee is a departmental supervisor, the Company president
will instead be consulted.

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General policies

Employee Drug Testing

A. ABC Company has adopted testing practices to identify employees who use illegal
drugs on or off the job. It shall be a condition of employment for all employees to
submit to drug testing under the following circumstances:

1. When there is reasonable suspicion to believe that an employee is using illegal


drugs. The following circumstances could cause reasonable suspicion:

a. Observable phenomena while at work such as direct observation of drug use


or of the physical symptoms or manifestations of being impaired due to drug
use;

b. Abnormal conduct or erratic behavior while at work or a significant


deterioration in work performance;

c. A report of drug use provided by a reliable and credible source;

d. Evidence that an individual has tampered with any drug test during his or her
employment with ABC Company; or

e. Evidence that an employee has used, possessed, sold, solicited, or transferred


drugs while working or while on the company’s premises or while operating
the company’s vehicle, machinery, or equipment.

An employee who has been asked to undergo reasonable suspicion testing may
be required to transfer to another position at the company’s discretion, pending
the results of the testing.

2. When employees have caused or contributed to an on-the-job injury that resulted


in a loss of worktime for any employee. Loss of worktime means any period of
time during which an employee stops performing the normal duties of
employment and leaves the place of employment to seek care from a licensed
medical provider.

3. As part of a follow-up program of treatment for drug abuse.

4. When a drug test is conducted as part of a routinely scheduled employee fitness-


for-duty medical examination that is part of ABC Company’s established policy
or that is scheduled routinely for all members of an employment classification or
group.

5. As part of ABC Company’s random drug testing policy. All employees are
subject to random testing. Employees will be notified if they have been

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randomly selected for substance abuse testing. Employees must provide a


specimen within 12 hours from the time of notification, by means of the drug
testing method selected by the company.

B. Employees with a confirmed positive test result may, at their option and expense,
have a second confirmation test made on the same specimen. An employee will not
be allowed to submit another specimen for testing. An employee will be suspended
without pay pending the results of the second confirmation test.

C. If the physician, medical official, or lab personnel has reasonable suspicion to believe
that the employee has tampered with the specimen, the employee is subject to
disciplinary action up to and including termination.

D. ABC Company may terminate any employee with a confirmed positive test result.
If a decision not to terminate is made, the employee is suspended without pay
pending a confirmed negative test result. The employee must provide a confirmed
negative test result, at the employee’s own expense, within 30 days from the date of
the positive test result.

E. Employees unable to provide an acceptable urine sample within a three-hour time


period after arrival at the testing location will be deemed as “refusing to test.”
Employees needing an accommodation because of a disability or other medical
condition should contact the company sufficiently in advance so that alternate
testing procedures can be developed and agreed upon.

Alcohol Abuse

A. An employee who is under the influence of alcohol, as defined in subpart B, at any


time while on company business or at any time during the hours between the
beginning and ending of the employee’s work day, whether on duty or not and
whether on ABC Company business or property or not, shall be guilty of
misconduct and is subject to discipline up to and including termination.

B. An employee shall be determined to be under the influence of alcohol if:

1. the employee’s normal faculties are impaired due to the consumption of alcohol;
or

2. the employee has a blood alcohol level of .05 or higher.

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Employee Assistance

ABC Company offers resource information on various means of employee assistance in our
community, including but not limited to drug and alcohol abuse programs. Employees are
encouraged to use this resource file, which is located in the administrative department of
each of the divisions of ABC Company. In addition, we will distribute this information to
employees for their confidential use.

Employee Education and Supervisor Training

A. Each year, all employees including supervisory personnel shall be required to


participate in two one-hour educational programs on substance abuse and its effects
on the workplace.

B. In addition, all supervisory personnel shall be required to participate in a minimum


of two hours of supervisory training each year on how to recognize signs of
employee substance abuse, how to document and collaborate signs of employee
substance abuse, and how to refer substance abusing employees to the proper
treatment providers.

Confidentiality

ABC Company shall treat as confidential all information received by the company through
its drug and alcohol testing program, consistent with the provisions of the Drug-Free
Workplace Act, and other applicable federal, state, and local laws. Except as provided
therein, release of such information shall be solely pursuant to a written consent form signed
by the person tested.

Drug-free workplace policy –


government contractors
Employers who have federal or state government procurement contracts in the amount of
$25,000 or more must publish and distribute to all employees a drug-free workplace policy such
as the sample policy. Such a policy serves purposes similar to the substance abuse policy
discussed previously, and should be included in the employee handbook The Drug-Free
Workplace Act requires that employees working on the government contract receive a copy of
the policy and abide by its terms as a condition of employment. Employers should therefore
have employees sign the acknowledgment and consent form.

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General policies

SAMPLE POLICY
Purpose

ABC Company is committed to providing a safe and productive work environment. We


also expect our employees to report to work each day fit to perform their jobs. To meet
these objectives, as well as our obligations under applicable federal and state laws, we must
take a firm and positive stand against substance abuse. This policy is intended to ensure a
drug-free work environment for the benefit of our employees and customers.

Policy Statement

The unlawful manufacture, distribution, dispensation, possession, or use of a controlled


substance while on the Company’s premises or in the performance of services for the
Company is strictly prohibited.

As a condition of continuing employment with the Company, each employee must:

1. Abide by the terms of this policy; and

2. Notify the Company of any criminal drug statute conviction for a violation occurring
in the Company’s workplace no later than five days after such conviction.

Any violation of this policy will result in either discipline, up to and including discharge,
and/or a requirement of satisfactory participation in a drug abuse assistance or rehabilitation
program, depending on the nature and seriousness of the offense.

Drug-free Awareness Program

To assist in ensuring compliance with the Company’s Drug-free Workplace Policy, we have
established a Drug-free Awareness Program to inform employees about:

1. The dangers of drug abuse in the workplace;

2. The Company’s policy of maintaining a drug-free workplace;

3. Any available drug counseling, rehabilitation, and employee assistance programs; and

4. The penalties that may be imposed upon employees for drug abuse violations.

Participation in our Drug-free Awareness Program by all employees is mandatory.

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Reservation of Rights

The Company reserves the right to interpret, modify, or expand upon this policy in whole
or in part, with or without notice. Nothing in this policy alters an employee’s at-will
status.

Acknowledgment and Consent

I hereby acknowledge having received a copy of ABC Company’s Drug-free Workplace


Policy. I agree, without reservation, to abide by the policy.

___________________ ________________________________
Date: Employee’s Signature

________________________________
Employee’s Name (Printed)

No solicitation/distribution policies
A no solicitation/distribution policy serves several important purposes.

1. It helps ensure that employees will use their working time for company business and not
for personal solicitations such as selling raffle tickets for their kids or distributing sales
catalogues.

2. It can help prevent union organizers from attempting to organize employees during
company time. The sample policy is carefully tailored to meet the requirements for
curtailing union solicitations.

3. Its uniform application can help avoid a discrimination claim if some organizations –
whether political, religious or otherwise – try to recruit or solicit employees at work.

A no solicitation/distribution policy must be enforced uniformly to be effective. The employer


must prohibit even such minor solicitations as candy and cosmetic sales. Although this may
seem petty, the overall benefit of uniform enforcement may well be worth the price. Once the
employer has deviated from the policy, however, the employer may be prevented from relying
upon it to prevent subsequent organizing efforts.

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SAMPLE POLICY
Working time is, of course, for work. The Company cannot permit solicitations or
distributions during working time. Prohibited solicitations include, without limitation,
collections for other employees during working time; catalog, raffle, ticket, or other sales
during working time; charitable or union solicitations during working time; and distribution
of literature of any kind during working time. Each employee should strictly observe the
following basic, common-sense policies.

1. Do not solicit or distribute any printed material to any other employee for any
purpose at any time during your working time or that employee’s working time.
(Working time includes any time that an employee is on the clock, but does not
include break periods and meal times or other similar specified periods during the
workday when an employee is properly not engaged in performing his or her work
tasks.)

2. Do not distribute any written or printed materials in any working area at any time.

3. Do not post on the premises, or remove from the premises, any notices, signs, or
printed material. The Company maintains an employee bulletin board exclusively
for personal announcements, pictures, and want/sale ads, which should be dated and
submitted to your supervisor for posting. Postings will be removed after a
reasonable period. If you would like a posted item returned to you, please tell your
supervisor when you ask him or her to post it.

4. Off-duty employees should not visit any working area during their off-duty hours
(except that an employee may report for work a reasonable time in advance of the
start of his or her scheduled work time).

5. Non-employees are prohibited from soliciting or distributing any written or printed


material of any kind for any purpose on the Company premises at any time. Do not
invite or encourage any non-employee to violate this rule.

Non-fraternization policy
Consensual romantic relationships present many potential problems in the workplace. Because
they are consensual in nature, these types of relationships do not generally fall under the policy
concerning sexual harassment. Nonetheless, these relationships can create a whole host of legal
and practical concerns.

By maintaining a non-fraternization policy, the employer may minimize the risks associated with
relationships between employees. As the policy itself suggests, these risks include possible
sexual harassment or wrongful discharge claims that may result from the souring of relationships
between supervisors and their subordinates. Additionally, such a policy should assist in

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General policies

maintaining positive employee morale by ensuring that employees do not feel that supervisors
have favorites among them. However, extending such a policy to relationships between lower
level (for example, non-supervisory) employees might prove to be problematic, if the employer
is unable to demonstrate a legitimate business justification for such a rule.

SAMPLE POLICY
While ABC Company does not wish to interfere with the off-duty and personal conduct of
its employees, certain types of off-duty conduct and relationships may interfere with the
Company’s legitimate business interests. To prevent unwarranted harassment claims,
uncomfortable working relationships, morale problems among other employees, and even
the appearance of impropriety, managers and supervisors of the Company are strictly
prohibited from engaging in romantic or sexual relationships with any managers,
supervisors, or lower-level employees of ABC, even if the relationship is consensual.

If a romantic or sexual relationship develops between a manager and/or supervisor and


another employee, Human Resources should be advised so that it can determine whether a
change in reporting structure is warranted.

This policy is intended to supplement our existing sexual harassment policy. If you have
any questions concerning the intent of this policy or its application to any existing or
contemplated relationship, please consult the Company’s Human Resources Manager. All
such inquiries will be treated confidentially and consistently with the legitimate business
needs of ABC.

Personal conduct policy


With an ever-increasing sensitivity to employee privacy concerns among policy-making bodies
and courts at both the federal and state levels, many employers are reluctant to take disciplinary
action against employees on the basis of their conduct during non-working hours. Still, an
employee’s inappropriate off-duty behavior may reflect poorly on the employer’s business,
particularly for employees in positions such as outside sales or other capacities in which the
nature of the job is to represent the employer to the public. An employee’s off-duty
misconduct, particularly criminal activity, may reflect negatively upon an employee’s character
and fitness to perform a job with the employer’s full confidence.

Because Oregon remains an at-will employment state, employers may take appropriate
disciplinary action against employees who engage in inappropriate off-duty conduct as
contemplated by the sample policy. The touchstone in every case should be
business-relatedness: Does the employer have a legitimate, nondiscriminatory, business reason
for disciplining the off-duty conduct at issue? If so, then the employer may safely discipline the
employee in a manner fitting with the employee’s misconduct.

Two sample policies follow. The second policy prohibits employees from having a job outside
of work under specific circumstances. Regardless of whether an employer uses a policy regarding

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General policies

off-duty conduct, all employers should consider whether a policy prohibiting off-duty
employment jobs is appropriate or necessary.

SAMPLE POLICY
(Option 1)

ABC Company respects the privacy interests of its employees and recognizes their right to
conduct their personal lives free from interference from the Company. Nonetheless,
employees should keep in mind that, even while off-duty, they represent the Company to
the public and should strive to preserve the Company’s reputation. In addition, certain
types of off-duty conduct may reflect poorly upon an employee’s character and judgment
and thereby influence his or her standing as an ABC employee. Therefore, employees who
engage in unprofessional or criminal conduct or other serious misconduct off-duty may be
subject to disciplinary action by the Company, including termination of employment, if
such conduct is determined by management to be harmful to our corporate image,
inconsistent with expectations of our employees, or otherwise adversely affects our
legitimate business interests.

SAMPLE POLICY
(Option 2)

While the Company does not seek to interfere with the off-duty and personal conduct of its
employees, certain types of off duty conduct may interfere with the Company’s legitimate
business interests. For this reason, employees should be aware of the following policies:

Employees are expected to conduct their personal affairs in a manner that does not
adversely affect the Company’s integrity, reputation or credibility. Illegal off-duty conduct
on the part of an employee that adversely affects the Company’s legitimate business
interests or the employee’s ability to perform his or her job will not be tolerated.

While employed by the Company, employees are expected to devote their energies to their
jobs with the Company. For this reason, second jobs are strongly discouraged. The
following types of outside employment are strictly prohibited, unless the employee
received prior approval.

(1) Employment that conflicts with an employee’s work schedule, duties and
responsibilities;

(2) Employment that creates a conflict of interest or is incompatible with the


employee’s employment with the employer;

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General policies

(3) Employment that requires the employee to conduct work or related activities on the
Company’s property during working hours or using the employee’s working hours
or using the Company’s facilities and/or equipment;

(4) Employment that directly or indirectly competes with the business interests of the
Company.

Employees who wish to engage in outside employment that may fall into one of the
categories listed above must submit a written request to the employee’s immediate
supervisor and Company Human Resources representative explaining the details of the
outside employment. If the outside employment is authorized, the Company assumes no
responsibility to the outside employment. The Company will not provide workers’
compensation coverage or any other benefit for injuries occurring from or arising out of
outside employment. Authorization to engage in outside employment can be revoked at any
time.

Policies prohibiting
“bullying” in the workplace
Companies often consider whether to include a policy that prohibits workplace bullying in the
workplace. This is a valid consideration, because even the “equal opportunity offender” can
result in liability to a company, depending on the facts and circumstances of the case. Further,
even minor incidents of workplace bullying can create a hostile and intimidating environment for
employees, thereby decreasing their productivity. At a minimum, the handbook should contain
language that required all employees to treat each other with respect.

Some employers may also wish to include a policy prohibiting violence in the workplace. A
sample policy follows.

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General policies

SAMPLE WORKPLACE VIOLENCE POLICY


Prohibition of Work Place Violence/Weapons

Company has a “zero tolerance” policy for any actions that threaten its employees, members,
students, or vendors. This includes verbal and physical harassment, verbal and physical threats,
verbal or physical confrontations, and any actions that cause others to feel unsafe in the
workplace. As part of this policy, employees are prohibited from bringing weapons of any kind
to work or on Company premises

Any person who makes substantial threats, exhibits threatening behavior, or engages in violent
acts on Company property or premises will be removed from the premises as quickly as safety
permits, and shall remain off Company premises pending the outcome of an investigation.
Company will initiate an appropriate response that may include, but is not limited to,
suspension and/or termination of any business relationship, reassignment of job duties,
suspension or termination of employment, and/or criminal prosecution of the person(s) involved.

All Company personnel are responsible for notifying a supervisor or manager, or the human
resources department, of any threats that they have witnessed, received, or have been told that
another person has witnessed or received. Even without an actual threat, employees should also
report any behavior they witness which they regard as threatening or violent, when that behavior
is job-related or might be carried out on a Company-controlled site, or is connected to Company
employment.

Cell phone usage


Cell phone use while driving may distract the driver and may lead to an increased risk of
accidents. Some states have banned the use of cell phones while driving, and others mandate the
use of “hands free” devices while driving. Some employers have faced claims and lawsuits by
third parties who were injured when an employee was involved in an accident while using a cell
phone. In order to provide some protection to the employer, some companies have adopted
policies which limit the use of cell phones, and generally prohibit the use of cell phones while
driving. These policies advise employees that such use of a cell phone is contrary to Company
policy. If an accident occurs while an employee is talking and driving, the employer can attempt
to limit liability by arguing that the employee was violating company policy.

A newer problem faced by some employers is the presence of camera phones in the workplace.
Use of such phones can be misused by employees to invade other employee’s privacy or to
misappropriate employer and customer information. Just as employers would not allow an
employee to bring a regular camera on the worksite and photograph other employees, sensitive
documents or working conditions, employers should also be careful about allowing camera
phones at work.

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General policies

Note:
At press time, the Oregon Legislature was contemplating several bills that would prohibit a driver
from most forms of cell phone use, texting, etc. Consult with your attorney regarding the status
of these bills and the law.

SAMPLE POLICY
Cell phones are a common method of communication. The use of cell phones while at work,
however, can have a disruptive effect on the smooth operation of the Company.
Accordingly, the Company has adopted to following rules regarding cell phones in the
workplace.

Cell phones in general. Employees are allowed to bring cell phones to work with them.
During working hours, however, employees are not permitted to use their cell phones for
personal use except in an emergency or during a rest or meal period.

Camera phones. Cameras are prohibited in the workplace, including camera phones. If an
employee’s cell phone or other electronic device includes a camera or video device, that
function must be disabled while at work or on company business. The use of any camera or
video equipment while at work is strictly prohibited.

Cell phones while driving. The use of a cell phone while driving may present a hazard to the
driver, other employees and the general public. This policy is meant to ensure the safe
operation of company vehicles and the operation of private vehicles while an employee is
on work time and conducing business.

Employees must adhere to all federal, state or local rules and regulations regarding the use of
cell phones while driving. Accordingly, employees must not use cell phones if such conduct
is prohibited by law, regulation or other ordinance. If you are not sure whether the use of a
cell phone while driving is prohibited in a particular area, please check with Human
Resources.

Employees should not use hand held cell phones for business purposes while driving.
Should an employee need to make a business call while driving, he should locate a lawfully
designated area to park and make the call. Employees may use hands-free cell phones to
make business calls, but only in emergency situations. Such calls should be kept short and
should the circumstances warrant (for example, heavy traffic, bad weather), the employee
should located a lawfully designated area to park to continue the call.

Violation of this policy will subject an employee to disciplinary action up to and including
immediate termination.

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Chapter 6

EEO policies

Equal employment opportunity policy


Employers are highly advised to include one or more general statements in its employee
handbook regarding its commitment to equal employment opportunity. Although not required
by law, such statements are further proof of an employer’s commitment to lawful employment
practices, and a statement to employees that the employer takes equal employment issues
seriously.

All employers in Oregon are subject to certain equal employment opportunity laws. In
Oregon, employers with one or more employees must comply with the laws that prohibit
discrimination because of an employee’s:

• race

• religion

• color

• sex

• sexual orientation

• national origin

• marital status

• age.

See generally Oregon Revised Statutes Chapter 659A. Other equal employment laws applicable
to Oregon employers are identified elsewhere in this chapter.

Employers who are covered by Executive Order 11246 should consult with legal counsel about
equal employment opportunity requirements. Executive Order 11246 prohibits federal
contractors and federally-assisted construction contractors and subcontractors, who do over
$10,000 in Government business in one year, from discriminating in employment decisions on
the basis of race, color, religion, sex, or national origin. The Executive Order also requires
Government contractors to take affirmative action to insure that equal opportunity is provided in
all aspects of their employment. For more information, go to
www.dol.gov/esa/regs/compliance/ofccp/ca_11246.htm

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EEO policies

Oregon’s laws also prohibit discrimination based on certain diverse categories of protected
classes that are not covered under federal employment laws. This includes, for example, a
prohibition against employees who lawfully use tobacco products during off-hours. Further,
some city and county ordinances prohibit discrimination on bases that are not included under
state or federal laws. For that reason, any policy regarding equal employment opportunity or
prohibitions of harassment must include a catch-all phrase to encompass all the protected classes
recognized by law.

SAMPLE POLICY
Equal employment opportunity (EEO) policy

Company provides equal employment opportunity to all qualified employees and applicants
without unlawful regard to race, color, religion, gender, sexual orientation, national origin, age,
disability, marital status, or any other status protected by applicable federal, state, or local law.
This EEO policy applies to all aspects of the employment relationship – including but not
limited to, recruitment, hiring, compensation, promotion, demotion, transfer, disciplinary action,
layoff, recall, and termination of employment.

All employees are expected to comply with Company’s EEO policy. Any employee’s failure to
do so may result in discipline, up to and including, termination.

Disability accommodation policy

Company is committed to complying fully with the Americans with Disabilities Act (ADA) and
applicable state disability discrimination laws. We are also committed to ensuring equal
opportunity in employment for qualified persons with disabilities.

Sexual harassment
Sexual harassment refers to behavior having sexual overtones that is unwelcome and offensive.
Occasional compliments of a socially acceptable nature (for example “You look nice today” or
“That’s a pretty dress you have on”) are generally not considered examples of sexual harassment.
Sexual harassment is defined as unwelcome, or unwanted conduct of sexual nature, whether it is
verbal or physical when:

• submission to or rejection of the individual’s conduct is used as a factor in decisions


affecting the hiring, promotion, transfer, evaluation, financial status, or other aspects of
employment

or

• the conduct interferes with an individual’s employment or creates an intimidating, hostile,


or offensive work environment.

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EEO policies

The following is a non-exclusive list of examples of sexual harassment:

• demands for sexual favors in exchange for favorable treatment or continued employment

• repeated sexual jokes, flirtations, advances or propositions

• verbal abuse of a sexual nature

• graphic verbal commentary about an individual’s body, sexual prowess or deficiency

• leering, whistling, touching, assault, sexual or suggestive acts, insulting or obscene


comments or gestures

• displaying in the workplace any sexually suggestive objects or pictures.

Similar behavior (for example, derogatory comments, jokes, cartoons, physical aggression, etc.)
when based on race, color, age, religion, national origin, disability or any other protected status
are also prohibited by the law, and should be addressed in a separate policy. See page 95,
Harassment based on race, color, religion, gender, age and other protected class
statuses.

Under current law, an employer can be liable for any unlawful harassment caused by a non-
supervisory or non-managerial employee, or non-employees, only if the employer knew or had
reason to know of the harassment and failed to remedy it. In a recent case, the court stated that
an employer is liable for a co-worker’s sexual harassment only if, after learning of the alleged
conduct, the employer “fails to take adequate remedial measures.” These measures must include
immediate and corrective action reasonably calculated:

• to end the current harassment

and

• to deter future harassment from the same offender or others.

If an employee alleges that a supervisor or managerial employee caused the harassment, the
employer may be liable (regardless of whether anyone other than the alleged harasser knew about
the conduct) unless it can prove what is called an affirmative defense. If there is no evidence of a
tangible adverse employment action culminating from the alleged hostile environment, the
employer must prove two things:

1. that the employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior

and

2. that the plaintiff unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.

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EEO policies

Whether the employer has a stated anti-harassment policy is relevant to the first element of the
defense. And an employee’s failure to use a complaint procedure provided by the employer will
normally be enough to satisfy the employer’s burden under the second element of the defense.

The Civil Rights Act of 1991 and Oregon law have exposed employers to punitive and
compensatory damages and jury trials for unlawful harassment. Additionally, courts have found
that when sexual harassment has a physical component, the employer may be liable for not only
statutory civil rights claims but also for physical torts such as battery. Therefore, it is imperative
that employers identify and eliminate acts of sexual harassment (harassment of a sexual nature)
and sex-based harassment (harassment based on a person’s gender) in the workplace.

A written sexual harassment policy staunchly condemning this type of conduct is a necessary
first step:

• It should require employees to notify the employer that sexual harassment is occurring.
This enables the employer to take action to stop the harassment and thereby accomplish
its goal of eliminating workplace harassment.

• With a policy in place that encourages employees to request that any perceived
harassment be stopped, an employer can monitor possible incidents of harassment in the
workplace, conduct internal investigations of such incidents, and remedy problems before
they result in litigation.

• An employee who is being harassed and is aware of the policy is less likely to resign
employment (and later file a suit) if he or she knows that complaints of sexual harassment
are taken seriously by the company and that there are procedures within the company to
resolve such problems.

When facing specific complaints of sexual harassment, employers must consider each claim with
the utmost seriousness. Complaints should be investigated and resolved promptly, thoroughly
and, to the greatest extent possible, confidentially. Obviously, confidentiality may be difficult if
not impossible to maintain in many situations. If the employer concludes that improper conduct
has occurred, then the alleged harasser should be disciplined accordingly. An effective sexual
harassment policy should also contain a clear statement that the employer will not retaliate
against any employee making such a claim or for cooperating with any sexual harassment
investigation.

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EEO policies

SAMPLE POLICY
The following sample policy combines yet distinguishes between prohibitions against sexual and
other forms of harassment. Employers may combine the policies, as it is done so here, or it may
keep them separate (see next section). If the policies are separated, however, it is extremely
important to include consistent complaint reporting procedures and prohibitions against
retaliation for those who make good-faith complaints.

Sexual harassment
Sexual harassment has been defined as unwelcome sexual advances, requests for sexual favors, or
other verbal or physical conduct of a sexual nature, when:

(a) submission to such conduct is made either implicitly or explicitly a term or


condition of employment;

(b) submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual; or

(c) such conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or offensive
work environment.

Some examples of conduct that could give rise to sexual harassment are unwanted sexual
advances; demands for sexual favors in exchange for favorable treatment or continued
employment; sexual jokes; flirtations; advances or propositions; verbal abuse of a sexual nature;
graphic, verbal commentary about an individual’s body, sexual prowess, or deficiency; leering,
whistling, touching, assault, sexually suggestive, insulting, or obscene comments or gestures;
display in the workplace of sexually suggestive objects or pictures; or discriminatory treatment
based on sex. The foregoing list is not exhaustive.

Other forms of harassment


This policy covers and prohibits other forms of harassment as well. Other forms of prohibited
harassment include harassment against an individual based on the individual’s race, color, religion,
national origin, age, sexual orientation, marital status, disability, protected activity, or any other
status protected by applicable law.

Such harassment may include verbal or physical conduct that denigrates or shows hostility or
aversion toward an individual because of any protected status, such as epithets, slurs, negative
stereotyping, or threatening, intimidating, or hostile acts that relate to a protected class or written
or graphic material that denigrates or shows hostility or aversion toward an individual or group
because of the protected status.

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EEO policies

Complaint Procedure
Each member of management is responsible for creating an atmosphere free of discrimination and
harassment, sexual or otherwise. Further, employees are responsible for respecting the rights of
their coworkers and strictly adhering to the letter and spirit of this policy. All employees are
encouraged to discuss this policy with their immediate supervisor, any member of the
management team, or the President, at any time if they have questions relating to the issues of
discrimination or harassment.

If you believe that you have experienced any harassment or discrimination, you are expected and
required to bring the matter to the attention of your immediate supervisor as soon as possible. If
you believe that it would be inappropriate to discuss the matter with your immediate supervisor
or if you are uncomfortable discussing the issue with your supervisor, you may bypass your
immediate supervisor and report the matter directly to any manager or supervisor, including the
President.

In addition, any employee who observes any conduct that he or she believes constitutes
harassment or discrimination must immediately report the matter to his/her supervisor, any
supervisor or manager, or the President.

Investigation
All complaints and reports will be promptly and impartially investigated and will be kept
confidential to the extent possible, consistent with the Company’s need to investigate the
complaint and address the situation. If discrimination or harassment in violation of this policy is
found to have occurred, the Company will take prompt, appropriate corrective action, and any
employee found to have violated this policy will be subject to disciplinary action, up to and
including termination of employment.

Protection Against Retaliation


Company prohibits retaliation in any way against any employee because the employee has made
a good-faith complaint pursuant to this policy, has reported harassing or discriminatory conduct
directed at others, or has participated in an investigation of such conduct. Any employee who is
found to have retaliated against another employee in violation of this policy will be subject to
disciplinary action up to and including termination of employment.

Confidentiality
All complaints under this policy will be treated as confidentially as is possible under the
circumstances and as is consistent with Company’s need to investigate and respond to the
complaint.

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EEO policies

Harassment based on race,


color, religion, gender, age
and other protected class statuses
While sexual harassment is the most well-known form of prohibited harassment, federal
and Oregon law prohibit harassment based on race, color, religion, gender, national origin,
age, sexual orientation, disability as well as other protected statuses. In addition, many
courts have recognized claims of harassment based on an employee’s use of the Family
Medical Leave Act or Oregon Family Leave Act leaves of absence, as well as claims for a
hostile work environment due to an employee’s use of a complaint reporting procedure or
because of that person’s protected class status. The same types of damages available to a
successful plaintiff alleging sexual harassment claims are available to successful plaintiffs
alleging harassment based on some other form of protected class status. And as with
sexual harassment policies, policies prohibiting harassment based on employee’s
protected status may limit an employer’s potential liability – if the policy is known to
employees and consistently followed by employers.

SAMPLE POLICY
In providing a productive working environment, ABC Company believes that its employees
should be able to enjoy a workplace free from all forms of discrimination, including
harassment on the basis of race, color, religion, gender, national origin, age, disability and
sexual orientation, and any other status protected by law. It is ABC’s policy to provide an
environment free from such harassment.

It is against Company policy for any employee, whether a manager, supervisor, or co-
worker, to harass another employee. Prohibited harassment occurs when verbal or physical
conduct that defames or shows hostility toward an individual because of his or her race,
color, religion, gender, national origin, age, disability or sexual orientation, or that of the
individual’s relatives, friends, or associates; creates or is intended to create an intimidating,
hostile, or offensive working environment; interferes or is intended to interfere with an
individual’s work performance; or otherwise adversely affects an individual’s employment
opportunities because of the applicant or employee’s inclusion in any legally protected
category.

Harassing conduct includes, but is not limited to:

• Epithets, slurs, negative stereotyping, or threatening, intimidating or hostile acts,


which relate to race, color, religion, gender, national origin, age, disability or sexual
orientation.

• Written or graphic material that defames or shows hostility or aversion toward an


individual or group because of race, color, religion, gender, national origin, age,
disability or sexual orientation and that is placed on walls, bulletin boards, or
elsewhere on the Company’s premises, or that is circulated in the workplace.

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EEO policies

Any employee who believes he or she has been harassed in violation of this policy should
report the conduct immediately to his or her supervisor; or, if that person is responsible for
the harassment, to the Human Resources Department. The employee always has the option
of reporting the conduct directly to the Human Resources Department if he or she prefers,
or to the company’s president or any other manager with whom he or she feels comfortable.

A thorough and impartial investigation of all complaints will be conducted in a timely and
thorough manner. Confidentiality will be maintained during the investigation to the extent
possible without jeopardizing the thoroughness of the investigation. Any employee of the
Company who has been found, after appropriate investigation, to have harassed another
employee in violation of this policy will be subject to disciplinary action up to and including
termination. Retaliation against the individual reporting the harassment is expressly
prohibited.

Complicated claims of sexual


or other forms of harassment
Employees who make good-faith complaints of harassment, sexual or otherwise, should
not be punished or disciplined for it. In fact, in the sample policies above, a strong
statement about no retaliation against people who make good-faith complaints of
harassment is included. What, however, should an employer do if it discovers during the
course of investigating a hostile work environment complaint that the employee was
contributing to the harassment? This question must be answered on a case-by-case basis.
Generally speaking, if the employee’s complaint was corroborated, then the alleged
harasser should be disciplined in accordance with your policy. If the employee’s
complaint was corroborated and the complainer turns out to be a contributor to a hostile
work environment, discipline may be appropriate. It is difficult, however, to argue to a
jury that a company responded promptly and appropriately to a complaint of
harassment when part of that “response” includes discipline to the complainer, even if the
discipline was legitimate. It is recommended that employers consult with legal counsel
any time it appears that discipline should be issued to the complainer.

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Chapter 7

Time off and


leaves of absence

Vacation
Employers are not required by federal or state law to provide vacation benefits to their
employees. There are no laws that require an employer to give an employee a specific amount of
vacation time, and there are no laws that specify how vacation time is accrued. But if your
company offers vacation benefits, ensure that your handbook clearly states the employee’s
eligibility for vacations and vacation pay policies are communicated to all employees.

When vacation can be taken


The employer may place reasonable limitations on when employees can take vacation, as,
for example, by requiring employees to take one week of vacation during an annual plant
shutdown.

Accumulating vacation
Employers may prohibit employees from accumulating vacation over time rather than
taking it. Although an employer should never require an employee to forfeit earned
vacation, the employer may prevent the accumulation of vacation from year to year by
providing that no further vacation will be earned until previously earned time has been
taken.

Vacation pay
Oregon courts, and the Oregon Bureau of Labor and Industries, recognize vacation pay as
an example of a wage agreement which may be made between employers and employees
as part of an employee’s total compensation package. Under Oregon law, an employer is
required to honor any established policy or agreement relating to the payment of benefits
such as accrued vacation upon termination. If an employee qualifies for payment of
benefits under the employer’s policy, the employee should be paid for these upon
termination. Oregon law also recognizes, however, an employer’s right to specify when
vacation pay will not be paid upon termination, such as when an employee is terminated
for gross misconduct. Again, the vacation pay policy must be clear, communicated, and
consistently enforced so that an employer may enforce it.

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Time off and leaves of absence

SAMPLE POLICY
It is the policy of ABC Company to provide each full-time employee with vacation time on
a periodic basis. The amount of vacation to which an employee becomes entitled is
determined by the employee’s length of service as of his or her employment anniversary
date. For full-time employees, vacation accrues as follows:

1. At the end of the first year of service, one week, or 40 hours, of vacation.

2. Two years or more but less than five years of service, two weeks, or 80 hours, of
vacation per year.

3. Five years or more but less than 10 years of service, three weeks, or 120 hours, of
vacation per year.

4. Ten years or more of service, four weeks, or 160 hours, of vacation per year.

Regular part-time employees earn vacation on their employment anniversary date in the
proportion that their normally scheduled number of hours bears to 40 per week. For
example, a regular, part-time employee who usually works 20 hours per week would earn 20
hours of vacation upon completing his or her first year of service.

Vacation does not accrue between employment anniversary dates and may not be taken until
it is earned. Vacation time must be used in the anniversary year after which it is earned and
may not be carried over past the employee’s next anniversary date. For example, an
employee with two weeks’ vacation as of his or her third anniversary date must use the two
weeks prior to his or her fourth anniversary date. If an employee fails to take his or her
earned vacation time before the employee’s anniversary date in violation of this policy, the
employee will not earn any further vacation until that unused vacation has been taken.

Earned vacation must be taken. Employees are not entitled to pay in lieu of taking time off
for vacation.

Sick days
As with vacation pay, there is no legal requirement in Oregon to offer employees paid sick days.
However, the employer should consider the possible loss of the salaried exemption under the
FLSA if an otherwise salaried-exempt employee loses pay for sick days without an opportunity
to have those days paid (by accrual or otherwise) under the employer’s benefit or compensation
policies.

If the employer does elect to have paid or unpaid sick days, the policy should be spelled out in
clear and detailed terms so that employees understand the nature and limitations of the benefit.

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Time off and leaves of absence

SAMPLE POLICY
ABC Company recognizes that an employee’s inability to work because of illness or injury
may cause economic hardship. For this reason, the Company provides paid sick days to
full-time employees. The days are provided only for the employee’s own illness or injury.

Eligible employees accrue sick days at the rate of one-half day per month to a maximum of
six days per calendar year. Unused sick days may be accumulated to a maximum of 30
days. Sick days may be used as they are earned, following the Company’s regular call-in
policy. Any more than two consecutive days of absence due to illness must be supported by
a doctor’s statement. Employees are not entitled to be paid for earned but unused sick days,
either before or when their employment is terminated for any reason.

Paid time off (PTO)


Paid leave bank (PLB)
With an ever-increasing emphasis on flexibility and accommodation in the workplace, many
employers are beginning to offer paid time off (PTO), paid leave bank (PLB), or similar benefits
to employees instead of paid vacation, sick days, and personal days. Such a policy offers
employees greater freedom to enjoy PTO in a manner that reflects their own personal values,
commitments, and lifestyle choices. More importantly, the policy eliminates the need for the
employer to police – and the incentive of the employee to fabricate – the reasons an employee
uses to take time off.

The decision to use a conventional vacation/sick days/personal days policy or to adopt a more
progressive PTO or PLB policy must be made by each employer based upon the particular
human resource philosophy and management style of the business. The law does not prefer one
approach more than another. However, if an employer does elect to use a PTO or PLB policy,
the employer needs to consider, in advance, whether terminating employees will be paid for
earned but unused days in their PTO or PLB banks.

Please consult with an attorney if your company decides to switch from paid vacation/sick days
to a PTO or PLB policy. To avoid confusion, do not offer a PTO or PLB policy and a paid
vacation/sick days policy, unless it expressly excludes the paid vacation/sick days policy or
eligibility.

SAMPLE POLICY
ABC Company provides its employees with paid time off (PTO) benefits in lieu of the
traditional benefits of paid vacation, personal days, and sick days. PTO may be taken by
employees, with prior supervisory approval, at such times and in such increments as best
accommodates each employee’s own schedule. PTO is intended to allow employees paid
time off from work for reasons such as vacation, personal illness, family illness, medical

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appointments, religious or ethnic holidays, or personal or family business. Employees who


are absent from work for any reason are required to take any accrued but unused PTO
before taking unpaid time off.

For full-time ABC employees, PTO accrues according to the following schedule:

1. During the first year of service, one day (eight hours) of PTO per month.

2. During the second through fifth years of service, one and one-fourth days (10 hours)
of PTO per month.

3. During the sixth through 10th years of service, one and one-half days (12 hours)
PTO per month.

4. After completing the 10th full year of service, two days (16 hours) of PTO per
month.

Regular part-time employees accrue PTO benefits at a rate of one day (eight hours) of PTO
per 175 hours worked.

PTO benefits are not earned until the final day of the month, and may not be taken until the
month after the PTO is earned. Neither full-time nor part-time employees begin to accrue
any PTO until they have completed one full month of employment with ABC Company.
Part-time employees do not earn the benefit until the 175th hour has been worked. No
subsequent PTO benefits for part-time employees are earned until the 175th hour has been
worked each interval.

PTO may be taken in four hour increments only. Employee absences that occur after all
available PTO has been used will be unpaid and may be subject to appropriate disciplinary
action by the Company.

Only 10 days (80 hours) of earned PTO may be carried over from one calendar year to the
next. [All additional earned PTO will be paid out during the first payroll period of January
each year.][PTO will not be paid out at the termination of employment.

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Holidays
There is no obligation under either federal or Oregon law to pay employees extra for working on
holidays or to pay them premiums for work performed on holidays. Nor does the law require an
employer to recognize one holiday versus another. If the employer does choose to provide the
benefit to employees, it makes good practical sense to put the policy in writing to avoid
confusion and enhance employee morale. Employers should designate in advance:

• who is entitled to holiday pay

• which holidays will be recognized

• any conditions for the receipt of holiday pay

• the rate of holiday pay

• the employer’s practice regarding the observance of holidays occurring on weekends,


normal days off, and during vacations or other approved times off.

SAMPLE POLICY
ABC Company recognizes seven holidays each year. All full-time employees will receive
their regular straight-time compensation for each holiday. Regular part-time employees
receive pay for each designated holiday in the proportion that their normally scheduled
number of hours equals 40 hours per week. The holidays celebrated are:

• New Year’s Day • Labor Day • Christmas Day


• Memorial Day • Thanksgiving Day
• Independence Day • Day after Thanksgiving

A holiday that falls on a weekend will be observed on either the preceding Friday or the
following Monday to coincide with local custom.

To be eligible for holiday pay, an employee must have worked his or her regularly scheduled
hours the workday before and the workday after the holiday, or have been on an approved
vacation day or any other excused absence under Company policy. If an employee is on
vacation when a holiday is observed, the employee will be paid for the holiday and will be
granted an alternate day of vacation at a later date.

Any hourly, non-exempt employee required to work on a holiday will receive double-time
payment for the hours worked.

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Medical leave
A covered employer under the Family and Medical Leave Act (FMLA) has at least 50
employees within 75 miles of an employee’s work site. Eligible employees must be employed
for at least 12 months (which may be based on separate stints of employment) and have worked
at least 1,250 hours during the 12 months preceding the date leave is to begin. Under FMLA, an
eligible employee may take up to 12 weeks of unpaid leave within a 12-month period for the
following purposes:

• to care for a newborn, newly adopted, or newly fostered child

or

• to care for a spouse, child, or parent with a serious health condition

or

• to care for the employee’s own serious health condition, including an illness, injury or
condition related to pregnancy or child birth that disables the employee

or

• “call to active duty” or “qualifying exigency” leave (12 weeks), or to care for an injured
servicemember (up to 26 weeks).

FMLA also provides leave for members of the Armed Services and their guidelines. For more
information, see page 109, FMLA and military leave.

Employers with 25 or more employees in Oregon are covered by the Oregon Family Leave Act
(OFLA). Under OFLA, an eligible employee may take up to 12 weeks of unpaid leave within a
12-month period (and sometimes more, under certain circumstances) for the following purposes:

• to care for a newborn, newly adopted, or newly fostered child (parental leave)

or

• to care for a spouse, same-sex domestic partner, child, parent, parent-in-law, grandparent
or grandchild with a serious health condition

or

• to care for the employee’s own serious health condition

or

• to care for a sick, but not seriously ill, child.

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Effective January 1, 2008, the definition of “family member” expanded to include a grandparent
or a grandchild of an eligible employee.

Unlike other provisions of OFLA, this provision does not extend coverage to grandparent-in-
laws. It has to be a grandparent or grandchild of the employee. In addition, this change adds a
category that is not addressed under federal law, FMLA, something that further complicates the
administration of this already complicated law.

Employees are eligible to take OFLA-protected leave if they have been employed for the
preceding 180 calendar days and for an average of at least 25 hours per week. Employees need
not meet the hourly requirement to be eligible for parental leave.

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Notice/certification requirements
Under OFLA and FMLA, an employer may require an employee to provide notice of
intent to take a leave of absence under the following guidelines:

Nature of leave OFLA – Notice employee FMLA – Notice employee


may be required to give may be required to give

Anticipated leave Employers may require up to Same, and employers may ask
30 days’ advance written the employee to give reasons
notice, including an why 30 days notice is not
explanation of the need for practicable.
leave. Employee must follow
employer’s policy.

Leave anticipated Employees should give as Employees must give notice as


less than 30 days much notice as practical. Any soon as practicable.
in advance written notice requirements
should be flexible.

Unanticipated or Employees or someone acting Employee should give as


emergency on their behalf must give much notice as practical
situations verbal or written notice within “within the time prescribed by
24 hours of starting leave. the employer’s – usual and
Employer may require written customary notice requirements
notice within three days after applicable to such leave.”
employee returns to work

Note that under both OFLA and FMLA, the employee is not required to specify that the
leave is for OFLA or FMLA in order to be eligible for leave.

Under OFLA, when an authorized period of OFLA leave has ended and an employee
does not return to work, an employer having reason to believe the continuing absence
may qualify as OFLA leave must request additional information, and may not treat a
continuing absence as unauthorized unless requested information is not provided or
does not support OFLA qualification.

If an employee fails to give notice as required by law or the employer’s policies, the
employer may reduce the period of unused OFLA leave by up to three weeks in that
one-year leave period and discipline the employee if the employer has posted the
required BOLI family leave act notice (or can establish that the employee had
knowledge of the notice requirement). Federal regulations allow an employer to deny
or delay the start of FMLA leave because of improper notice.

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Under both FMLA and OFLA, an employer may request additional information to
determine that a requested leave qualifies for designation as OFLA or FMLA leave. Note,
however, that in cases of OFLA parental leave, no medical certification is required, and
under OFLA sick child leave, no medical verification may be required until after three
occurrences of sick child leave.

Under both FMLA and OFLA, an employer may ask an employee in writing to provide a
medical certification from the employee’s health care provider to clarify what assistance
the employee needs as a result of the employee’s condition. For the purposes of both
laws, the employer may use the Forms WH-380E and WH-380F, created by the U.S.
Department of Labor (DOL), available on the DOL web site, to request medical
certification (see pages 124 and 128). The employee must generally return the
certification either before she takes leave (if the leave was foreseeable) or within 15
calendar days of the employer’s request. If the employee fails or refuses to provide a
certification, the employer may treat any absences as unexcused and unprotected by
FMLA/OFLA (and therefore subject to the employer’s absenteeism policy), provided
that the employer advised the employee of these consequences at the time it requested
the certification.

Note:
Recertification. Employers may require additional medical certifications for pregnancy-
related disabilities, chronic conditions, or permanent/long-term conditions requiring the
continuing supervision of a health care provider. But an employer may do so no more
often than every 30 days (except in the case of intermittent leave, and then no more often
than the minimum period specified on the certification as necessary for such leave) and
only in connection with an absence, unless:

• circumstances have significantly changed

or

• the employer receives information that casts doubt upon the employee’s stated
reason for the absence.

If the leave is intermittent or for any other kind of covered serious health condition, the
employer may also request recertification if the employee requests an extension of the
leave.

Note:
Employers may require employees to use:

• any accrued paid sick leave

or

• any paid accrued vacation leave

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or

• “any other paid leave that is offered by the employer in lieu of vacation leave”
(such as paid time off) during an OFLA or FMLA leave of absence.

Communicating with
employees regarding leave
Under new federal regulations that became effective January 16, 2009, an employer’s
notice obligations under FMLA changed significantly. There are three employer notices:

1. a new poster, replacing the one issued in 1995 (Form WH-1420)

2. a new Notice of Eligibility and Rights and Responsibilities form, which along with
portions of new Form WH-382, replaces the current Form WH-381

3. a new form called a Designation Notice, which is Form WH-382.

Although OFLA’s laws and regulations do not contain similar requirements, BOLI has
publicly taken the position that most, if not all, of these notice requirements can apply to
leaves running concurrently under OFLA and FMLA. There are two important points to
keep in mind:

1. As of press time, the only FMLA forms expressly approved by BOLI are the
Forms WH-380E and WH-380F (medical certification forms for an employee’s
own or a family member’s “serious health condition.”). Thus, the various FMLA-
approved forms described below may or may not be suitable for OFLA-only,
qualifying leaves – consult with legal counsel before using one of the forms
described below for an OFLA-only qualifying leave.

2. In all circumstances, OFLA/FMLA covered employers must apply the regulation


or law that is most beneficial to the employee’s circumstances for leave under
both OFLA and FMLA.

Form WH-1420 –
Employee Rights and Responsibilities
A covered employer is required to post and distribute a general notice, even if its
employees are not eligible to take FMLA leave. Posting requirements may be
satisfied through an electronic posting. Covered employers with eligible
employees also must distribute the general notice either by including it in an
employee handbook or other policy guides, or if employers do not maintain
handbooks or policy guides, by providing the notice to new employees at the time
of hire.

The DOL has drafted a revised general notice form, titled “Employee Rights and
Responsibilities Under the Family and Medical Leave Act” for employers to use.

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It replaces the current form, which goes by the same publication number. This
poster is located on page 123, and is available for download at:
www.dol.gov/esa/whd/fmla/finalrule/fmlaposter.pdf.

Form WH-381 –
Notice of Eligibility & Rights and Responsibilities
An employer is required to provide an eligibility notice within five business days
(absent extenuating circumstances) of being advised by the employee that he/she
needs to take FMLA leave or has been made otherwise aware of the employee’s
need for such leave. (Previously, employers were required to provide such notice
within two business days.) Form WH-381 replaces a DOL form with the same
publication number and titled “Employer Response to Employee Request for
Family or Medical Leave.”

Form WH-381 differs from the original form; notably, if an employer advises the
employee that he/she is not eligible for FMLA leave, the employer has to provide
at least one reason why the employee is not currently eligible for such leave. An
employee’s eligibility is determined the first time such leave is requested in the
applicable 12-month period. If an employee provides notice of a subsequent need
for leave during that year for a different reason and the employee’s eligibility has
not changed, the employer need not provide a new eligibility notice. If, however,
the employee’s eligibility status has changed, the employer must notify employee
of the change within five days of the leave request.

Along with the eligibility notice, an employer must provide the employee with a
notice containing his or her FMLA rights and responsibilities (for example,
submitting medical certification, requiring substitution of paid leave, maintenance
of benefits, etc.). This information is contained in the DOL’s new Form WH-381
(see page 132).

The DOL’s new Form WH-381 satisfies an employer’s eligibility and rights and
responsibilities notice obligations. It is available for download at: www.dol.gov/
esa/whd/forms/wh-381.pdf.

Form WH-382 – Designation Notice


Once an employer has sufficient information to determine whether an employee’s
leave is FMLA- qualifying, an employer now has five business days (absent
extenuating circumstances), instead of two days, to provide the employee with a
notice stating that the leave (specifying the amount) has been designated as
FMLA qualifying or, in the alternative, that additional information is needed in
order to determine whether the leave is FMLA qualifying, and explain what
additional information is needed.

The DOL has drafted a new form, titled “Designation Notice,” that employers
may use. If an employer requires the substitution of paid leave, the designation

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form must include a statement to that effect. The form also advises the employee
of the right to request the amount of FMLA leave that will be counted against the
FMLA entitlement once in a 30-day period if leave was taken in the 30-day
period. If an employer wants an employee returning from FMLA leave to provide
a fitness-for-duty (FFD) certification, a statement to that effect must be included
in the designation notice, along with a list of the employee’s essential job
functions, which will be provided to the physician responsible for completing the
FFD certification (see page 134). It is available for download at: www.dol.gov/
esa/whd/forms/wh-382.pdf.

OFLA
Employers covered by OFLA must post in English (and Spanish, if appropriate)
the latest version of BOLI’s OFLA “Notice to Employees and Employers.” It is
available for download at www.oregon.gov/BOLI/TA/2009_OFLA_English_
poster.pdf (see page 302). Covered employers must also provide notice to the
employee of the designation of leave as OFLA-covered, and of any requirements
regarding use of paid leave. Not particular form is required, and BOLI has not yet
formally approved the use of the revised FMLA forms described above with
leaves of absence that qualify under OFLA only.

Pregnancy leave
Under OFLA, a female employee is entitled to use up to 12 weeks’ of leave for any
period of disability related to her pregnancy or childbirth. An employee who uses up to
12 weeks for pregnancy-related leave under OFLA may also use up to 12 weeks for any
other qualifying family leave. Both male and female employees may also take up to 12
weeks’ OFLA or FMLA leave for the birth of a child or to care for a newly placed
adoptive or foster child under 18 years of age or over 18 years of age if incapable of self-
care because of mental or physical disability. The leave can commence before actual birth
or placement.

In the revised FMLA regulations, a husband of a female “eligible employee” may take
FMLA leave to care for his expectant spouse if she is incapacitated (which includes
providing “psychological comfort and reassurance”). Such leave is not available to a non-
spouse father of the child (for example, boyfriend, domestic partner, fiancée, unmarried
father of the child).

Care for a sick child


OFLA provides that an employee is entitled to leave to care for a child of the employee
who is suffering from an illness, injury, or condition that is not a serious health condition
but that requires home care. An employee who takes the full 12 weeks of parental leave
under OFLA is entitled to up to 12 weeks of sick-child leave within the same 12-month
period.

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Note:
An employee must use all of his or her 12 weeks of parental leave to qualify for this
additional benefit. For example, a male employee who takes 12 weeks of parental leave
may also take up to 12 weeks of sick-child leave, but if he takes only 8 weeks of parental
leave, he may take only 4 weeks of additional leave for any other purpose. A female
employee may take up to 36 weeks of OFLA leave in a 12-month period:

• 12 weeks of pregnancy or childbirth disability leave

and

• 12 weeks of parental leave

and

• 12 weeks of sick-child leave.

Employers are strongly encouraged to consult with legal counsel, BOLI and/or the DOL
regarding the leave of absence laws.

OFLA, FMLA and workers’ compensation


Employers may not count a work-related injury against OFLA or FMLA leave, even if
the work-related injury might also be considered a “serious heath condition” under
OFLA/FMLA. Thus, OFLA and FMLA leave cannot run concurrently with leave for a
workers’ compensation injury. Further, employees will still have a full OFLA “bank”
after a workers’ compensation-related absence.

FMLA and military leave


In 2008 and 2009, new federal laws and regulations expanded FMLA to create two new
categories of protected leave:

1. leave to employees who care for family members injured in the line of duty (also
known as “military caregiver leave”)

and

2. leave for family members of service-members called to active duty (also known as
“qualified exigency” leave).

Qualifying exigency leave (QE leave)


Under the new regulations, employees may be eligible for up to 12 weeks of
FMLA leave for a “qualifying exigency” arising from a spouse, child, or parent
being on active duty or called to active duty. The term “active duty or a call to
active duty status” is specifically defined in the new regulations as duty under a
federal call or order to active duty, or a State call if (and only if) the State call is
ordered by the President in support of a “contingency operation” under specific

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provisions of 10 U.S.C. 688. These calls to active duty are only made to members
of the National Guard or Reserve, or to retired members of the regular Armed
Forces or Reserve. An employee is not eligible for Qualifying Exigency leave
relating to a servicemember who is a member of the Regular Armed Forces.

The eligible family members for QE leave of “spouse, child or parent” are more
broadly defined than for regular FMLA (and, notably, is different than for
Military Caregiver Leave). While “spouse” and “parent” are self-explanatory, a
child for the purposes of QE leave is a biological, adopted, foster or step-child or
legal ward, or for “in loco parentis” situations.

The new regulations establish seven “specific and exclusive” reasons for which an
employee can take qualifying exigency leave, which are described in more detail
below:

• short-notice deployment

• military events and activities

• school and childcare activities

• financial and legal arrangements

• counseling

• rest and recuperation

• post-deployment activities.

Other activities which arise from active duty may be eligible if the employee and
the employer agree – including agreement on the scheduling and duration of the
leave.

Employees seeking QE leave must give reasonable and practicable notice where
foreseeable. The notice must inform the employer of the active duty status or
call, cite one of the 7 listed reasons for QE leave, and provide an anticipated
duration of the absence.

New Form WH-384 –


Certification of Qualifying Exigency for Military Family Leave
An employer may require two different types of certification with respect
to military exigency leave. First, an employer may require a certification
that the covered military member is a member of the National Guard or
Reserve who is on active duty or called to active duty in support of a
contingency operation. A copy of the military member’s active duty

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Time off and leaves of absence

orders will suffice, as it will often contain the information necessary for an
employer to confirm the employee’s eligibility to take leave. Once an
employee furnishes the certification, the employer may not require the
same certification again for subsequent absences related to the same active
duty of that particular military member.

In addition, the employer can require a statement from the employee


(including available written support documentation) about the nature and
details of the specific reason for the QE leave, the amount of leave needed,
and the employee’s relationship to the military member. An employer can
also verify the use of QE leave with third parties associated with the leave,
such as the teacher for a parent/teacher conference for which QE leave is
used, or a financial planner for a meeting for which QE leave is used.

Both certifications must be provided within 15 days absent unusual


circumstances. The Department of Labor has developed a prototype form
for QE certification, the WH-384, also called “Certification of Qualifying
Exigency for Military Family Leave” (see page 135). Employers should
use the form whenever possible or practical to do so. A copy of this new
form is available for downloading by going to the U.S. Department of
Labor web site: www.dol.gov/esa/whd/forms/WH-384.pdf.

QE leave categories
The new regulations specify in great detail the seven categories of QE
Leave. The lengthy definition and explanations limit QE leave to the
following situations:

• Short-notice deployment – when a covered military member is


notified of an impending call or order to active duty in support of a
contingency operation seven or less calendar days prior to the date
of deployment;

• Military events and related activities – to attend official,


military-sponsored events that are related to the active duty or call,
or to attend “family support or assistance programs and
informational briefings sponsored or promoted” by the military,
the American Red Cross, or military service organizations “that are
related to the active duty or call.”

• Childcare and school activities – “to arrange for alternative


childcare when the active duty or call . . . necessitates a change in
the existing childcare arrangement[.]” This category also includes
situations where childcare is required “on an urgent, immediate
need basis (but not on a routine, regular, or everyday basis),” to
enroll or transfer to a new school or day care facility a child of a
covered servicemember, and to attend meetings with staff at a

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school or daycare facility, “such as meetings with school officials


regarding disciplinary measures, parent-teacher conferences, or
meetings with school counselors.” In all cases, attendance by the
covered employee at these activities must be “necessary due to
circumstances arising from the active duty or call to active duty
status of a covered military member.”

• Financial and legal arrangements – “To make or update


financial or legal arrangements to address the covered military
member’s absence while on active duty . . . such as preparing and
executing financial and healthcare powers of attorney, transferring
bank account signature authority, enrolling in the Defense
Enrollment Eligibility Reporting System (DEERS), obtaining
military identification cards, or preparing or updating a will or
living trust.” This category includes situations where the covered
employee must act as the covered military member’s representative
“for purposes of obtaining, arranging, or appealing military service
benefits while the covered military member is on active duty or call
to active duty status, and for a period of 90 days following the
termination of the covered military member’s active duty status.”

• Counseling – QE Leave is available when the covered employee


attends counseling for him/herself, for the covered military member
or child of the covered military member, “provided that the need
for counseling arises from the active duty or call to active duty
status of a covered military member.”

• “Rest and recuperation” – When the covered employee needs to


spend time with a covered military member who is on short-term,
temporary, rest and recuperation during the period of deployment,
but no more than five days “for each instance of rest and
recuperation.”

• Post-deployment activities – When the covered employee attends


arrival ceremonies, reintegration briefings and events, “and any
other official ceremony or program sponsored by the military for a
period of 90 days following the termination of the covered military
member’s active duty status.” This definition also provides a
covered employee with time to “address issues that arise from the
death of a covered military member while on active duty status,
such as meeting and recovering the body of the covered military
member and making funeral arrangements.”

• Additional activities – “To address other events which arise out


of the covered military member’s active duty or call to active duty
status provided that the employer and employee agree that such

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Time off and leaves of absence

leave shall qualify as an exigency, and agree to both the timing and
duration of such leave.”

Military caregiver leave


An employee may take up to 26 weeks of Military Caregiver leave during a single
12-month period on a per-covered servicemember, per-injury basis (which may be
taken continuously, intermittently, or on a reduced schedule basis).

Military Caregiver Leave is available to an eligible employee who is the spouse,


son, daughter, parent or next of kin of a “covered servicemember.” A “covered
servicemember” for MC leave is a current member of the Regular Armed Forces,
National Guard or Reserve, including those on the temporary disability retired list
(the TDRL). The rules suggest that a former member of the military with an
injury or illness that did not manifest itself until after discharge from the military
is not a “covered servicemember.”

In addition, the covered servicemember must be receiving medical treatment or


oversight by a Department of Defense health care provider, a Veterans Affairs
health care provider, a Department of Defense TRICARE network, or a non-
network authorized private health care provider.

Regardless of which 12-month calculation period/rule for establishing the leave


year that an employer follows, employers must calculate an employee’s eligibility
for military caregiver leave by looking at a single 12-month period measured
forward from the date an employee’s leave to care for the covered servicemember
begins. Then, once a single 12-month period expires, the employee becomes
eligible for another 26 weeks of military caregiver leave during a subsequent single
12-month period to care for a different covered servicemember or to care for the
same covered servicemember if he/she incurs a subsequent serious injury or illness.
A complication or an aggravation of the same injury which gave rise to the
previous Military Caregiver Leave is not a “subsequent injury or illness.”

During any single 12-month period, the employee’s total leave entitlement is
limited to a combined total of 26 weeks for all qualifying reasons under FMLA
and military leave.

New Form WH-385 –


Certification for Military Caregiver Leave
The Department of Labor has developed a prototype form, WH-385, to be
used for certification of MC leave situations. In general, however, an
employer may require information from the health care provider and from
the employee and/or covered servicemember to support military caregiver
leave. A copy of WH-385, entitled “Certification for Serious Injury or
Illness of Covered Servicemember for Military Family Leave”, is available
for downloading by going to the U.S. Department of Labor web site:
www.dol.gov/esa/whd/forms/WH-385.pdf.

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Section I of the WH-385 relates primarily to the servicemember’s military


status and the care to be provided. Section II is a medical certification of
the servicemember’s serious injury or illness to be completed by a
Department of Defense or Veteran’s Affairs health care provider, or a
DOD TRICARE network or non-work authorized private health care
provider. Both certifications must be provided within 15 days, absent
unusual circumstances.

SAMPLE OFLA/FMLA POLICY


The following sample policy could be used by an employer who is subject to both OFLA
and FMLA. Oregon employers with fewer than 50 employees should remove references to
FMLA (and leaves provided under FMLA), and discuss with legal counsel other provisions
included in this policy that may not apply. For example, the following sample policy states
that health insurance will continue during the course of the leave, and this is because during a
FMLA-qualified leave, group health plan benefits must be maintained on the same basis as
coverage would have been provided if the employee had been continually employed during
the leave period. Employers who fall under OFLA only, however, need not provide
continuing benefits during family medical leave unless the employer has a policy or practice
to continue benefits. Again, consult with your company’s legal counsel to determine which
provisions apply to your company.

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SAMPLE FAMILY AND MEDICAL LEAVE POLICY


________ recognizes that employees need support in balancing work, personal and family
responsibilities. _________’s policies are in compliance with federal and Oregon leave laws
and will administer this policy in accordance with all legal requirements. In the event that
any part of this policy is in conflict with current state or federal law, then the state or
federal law takes precedence over the conflicting provision of this policy. All other non-
conflicting provisions of this policy will remain in full force and effect.

Employees seeking further information should contact ________. Please also refer to the
“Employee Rights and Responsibilities” notice posted in __________, which is
incorporated here by reference.

Definitions

Family member

• For purposes of FMLA, “family member” is defined as a spouse, parent (biological,


adoptive, step, foster, or in loco parentis), or child (biological, adopted, step, foster,
or in loco parentis).

• For purposes of OFLA, “family member” also includes a parent-in-law, grandparent,


grandchild, same-gender domestic partner, and parent or child of same-gender
domestic partner.

Child – For purposes of OFLA parental and sick child leave, “child” includes a biological,
adopted, foster or stepchild, the child of a same-gender domestic partner or a child with
whom the employee is in a relationship of in loco parentis.

Serious health condition – ”Serious health condition” is defined under FMLA as an


illness, injury, impairment or physical or mental condition that involves:

1. inpatient care, including any period of incapacity connected with inpatient care or
any subsequent treatment connected with such inpatient care, or

2. continuing treatment for:

a. an incapacity of more than three consecutive, full calendar days and any
subsequent treatment or period of incapacity relating to the same condition that
also involves:

• in-person treatment by a health care provider two or more times within 30


days of the first day of incapacity, with the first treatment occurring within 7
days of the first day of incapacity, or

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• in-person treatment by a health care provider on at least one occasion


occurring within 7 days of the first day of incapacity, which results in a
regimen of continuing treatment under the supervision of a health care
provider;

b. any period of incapacity due to pregnancy or prenatal care;

c. any period of incapacity or treatment for a chronic serious health condition (i.e.,
asthma, diabetes, epilepsy, etc.);

d. permanent or long-term incapacity for which treatment may not be effective but
is under the continuing supervision of a health care provider (i.e., Alzheimer’s,
severe stroke, terminal stages of a disease, etc.); or

e. multiple treatments by a health care provider for and recovery from restorative
surgery after an accident or other injury or a condition that if not treated would
result in incapacitation of more than three calendar days (i.e., chemotherapy or
radiation for cancer, physical therapy for severe arthritis, dialysis for kidney
disease, etc.).

The common cold, flu, earaches, upset stomach, minor ulcers, headaches other than migraine,
routine dental or orthodontia problems, periodontal disease, and cosmetic treatments
(without complications), are examples of conditions that are not generally defined as serious
health conditions.

Reasons for Taking Leave

Family Medical Leave may be taken under any of the following circumstances:

1. Parental Leave: For the birth of a child or for the placement of a child under
18 years of age for adoption or foster care. Parental leave must be completed within
12 months of the birth of a newborn or placement of an adopted or foster child.

2. Family Member’s Serious Health Condition Leave: To care for a family


member with a serious health condition.

3. Employee’s Serious Health Condition Leave: To recover from or seek treatment


for an employee’s serious health condition, including pregnancy-related conditions
and prenatal care.

4. Sick Child Leave: To care for a child who suffers from an illness or injury that
does not qualify as a serious health condition but that requires home care. This type

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of leave does not provide for routine medical and dental appointments or issues
surrounding the availability of childcare when the child is not ill or injured. Sick child
leave is not available if another family member is able and willing to care for the
child. This type of leave is available only to employees who are eligible under
OFLA.

5. Call to Active Duty Leave: Eligible employees with a spouse, son, daughter or
parent on active duty or call to active duty status in the National Guard or Reserves
in support of a contingency operation may use their 12-week leave entitlement to
address certain “qualifying exigencies.” “Qualifying exigencies” may include
attending certain military events, arranging for alternative childcare, addressing
certain financial and legal arrangements, attending certain counseling sessions, and
attending post-deployment reintegration briefings. This type of leave is available
under FMLA only.

6. Servicemember Family Leave: Eligible employees may take up to 26 weeks of


leave to care for a “covered servicemember” during a single 12-month period. A
“covered servicemember” is a current member of the Armed Forces, including a
member of the National Guard or Reserves, who has a serious injury or illness
incurred in the line of duty on active duty that may render the servicemember
medically unfit to perform his or her duties for which the servicemember is
undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or
is on the temporary disability retired list. This type of leave is available under
FMLA only.

Eligible Employees

OFLA – To qualify for Oregon Family Leave for a serious health condition or sick child
leave, an employee must have been employed for at least 180 days and worked an average of
at least 25 hours per week. To qualify for parental leave under Oregon law, an employee
must have been employed for at least 180 days (no per-week hourly minimum is required).

FMLA – Employees are eligible for federal Family Leave if they have worked for a covered
employer for at least one year (which may be based on separate stints of employment), for
1,250 hours during the 12 months preceding the date leave is to begin, and if they are
employed at a worksite where 50 or more employees are employed by the employer within
75 miles of that worksite.

Part-time Employees – Part-time employees who meet the hourly eligibility requirements
for family leave are entitled to a pro-rated equivalent of 12 workweeks of leave during the
year. If a part-time employee works a varying schedule, the leave entitlement is based on the
average weekly hours over the twelve weeks worked prior to the beginning of the leave
period.

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Leave under state and federal law will run concurrently when permitted. Please contact
____________ for more information on eligibility.

Length of Leave

In any one-year calculation period, eligible employees are entitled to Family Medical Leave
within the following limits:

• twelve weeks of Family Medical Leave (parental leave, serious health condition
leave, sick child leave, or call to active duty leave);

• twelve weeks of leave for an illness, injury or condition related to pregnancy or


childbirth that disables the employee; and

• employees who take the entire twelve weeks of parental leave are entitled to an
additional twelve weeks of leave to care for a sick child.

When leave is taken for Servicemember Family Leave, an eligible employee may take up to
26 weeks of leave during a single twelve-month period to care for the servicemember.
During the single 12-month period in which servicemember family leave is taken, an eligible
employee is entitled to a combined total of 26 workweeks of leave for purposes of parental
leave, serious health condition leave, or call to active duty leave.

One-Year Calculation Period

The “twelvemonth period” during which leave is available (also referred to as the “one-year
leave calculation period”) will be determined by a rolling twelve-month period measured
backward from the date an employee uses any Family Medical Leave. Each time an
employee takes Family Medical Leave, the remaining leave entitlement would be any
balance of the twelve weeks which has not been used during the immediately preceding
twelve months.

Intermittent Leave

Intermittent or reduced schedule leave may be taken when medically necessary due to the
serious health condition of a covered family member or the employee or the serious injury or
illness of a covered servicemember. Additionally, leave due to a qualifying exigency may be
taken on an intermittent or reduced leave schedule basis. An employee may be temporarily
reassigned to a position that better accommodates an intermittent or reduced schedule;
employees covered by OFLA will not be reassigned without their express consent and
agreement. Employees must make reasonable efforts to schedule planned medical treatments

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so as to minimize disruption of _________ operations, including consulting ___________


prior to the scheduling of treatment in order to work out a treatment schedule which best
suits the needs of both the company and the employee. Intermittent leave for parental leave
is not available.

Employee Responsibilities – Notice

Employees must provide at least 30 days advance notice before Family Medical Leave is to
begin if the reason for leave is foreseeable based on an expected birth, placement for
adoption or foster care, planned medical treatment for a serious health condition of the
employee or of a family member, or the planned treatment for a serious injury or illness of a
covered servicemember.

If 30 days notice is not practicable, such as because of a lack of knowledge of approximately


when leave will be required to begin, a change in circumstances, or a medical emergency,
notice must be given as soon as practicable.

For Call to Active Duty Leave, notice must be provided as soon as practicable, regardless of
how far in advance such leave is foreseeable.

Whether leave is to be continuous or is to be taken intermittently or on a reduced schedule


basis, notice need only be given one time, but the employee shall advise Human Resources
as soon as practicable if dates of scheduled leave change or are extended, or were initially
unknown.

If circumstances change during the leave and the leave period differs from the original
request, the employee must notify Human Resources within three business days, or as soon
as possible. Further, employees must provide written notice within three days of returning
to work.

Regardless of the reason for leave, or whether the need for leave is foreseeable, employees
will be expected to comply with Company’s normal call-in procedures. Employees who fail
to comply with Company’s leave procedures may be denied leave, or the start date of the
employee’s Family Medical Leave may be delayed.

Certification

Generally speaking, employees must provide sufficient information for Company to


determine if the leave may qualify for FMLA or OFLA protection and the anticipated
timing and duration of the leave. Sufficient information may include that the employee is
unable to perform job functions, the family member is unable to perform daily activities, the

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need for hospitalization or continuing treatment by a health care provider, or circumstances


supporting the need for either Call to Active Duty or Servicemember Family Leave.
Employees also must inform the employer if the requested leave is for a reason for which
FMLA leave was previously taken or certified. Additionally:

1. Employees requesting serious health condition leave for themselves or to care for a
covered family member will be required to provide certification from the health care
provider of the employee or the covered family member to support the request.

2. Employees requesting sick child leave under OFLA may be required to submit a
medical certificate if the employee has requested to use more than three days (i.e.,
one three-day occurrence or three separate instances) of sick child leave within a one-
year period.

Employees must furnish Company’s requested medical certification information within 15


calendar days after such information is requested by the Company.

In some cases (except for leave to care for a sick child), Company may require a second or
third opinion, at Company’s expense. Employees also may be required to submit
subsequent medical verification.

Fitness-for-Duty Certification

If Family Medical Leave is for the employee’s own serious health condition, the employee
must furnish, prior to returning to work, medical certification (fitness-for-duty certification)
from their health care provider stating that the employee is able to resume work.

Substitution of Paid Leave for Unpaid Leave

Employees may use any available paid time off while on approved Family Medical Leave. If
the employee’s PTO time is exhausted, the leave will be unpaid. Employees shall inform
their supervisor or Human Resources if they wish to use PTO or other paid leave during a
qualifying leave of absence.

Holiday Pay While on Leave [Optional]

Employees receiving short- or long-term disability will not qualify for holiday pay.
Employees using PTO during a portion of approved Family Medical Leave in which a
holiday occurs will qualify to receive holiday pay. Employees who are on unpaid leave
during a holiday will not qualify to receive holiday pay.

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On-the-job Injury or Illness

Periods of employee disability resulting from a compensable on-the-job injury or illness will
qualify as Federal Family Medical Leave (FMLA) if the injury or illness is a “serious health
condition” as defined by applicable law. Periods of employee disability resulting from a
disabling compensable workers’ compensation injury will not be counted as OFLA leave
unless the injury or illness is a “serious health condition” of the employee as defined by
Oregon law and the employee has refused a bona fide offer of light-duty or modified
employment.

If the employee’s serious health condition is the result of an on-the-job injury or illness, the
employee may qualify for workers’ compensation time-loss benefits.

Benefits While on Leave

If an employee is on approved Family Medical Leave under FMLA, Company will continue
the employee’s health coverage under any “group health plan” on the same terms as if the
employee had continued to work.

If an employee is on approved OFLA Leave, Company will continue the employee’s health
coverage under any “group health plan” through the end of the month in which the leave
began. Employees wishing to maintain health insurance during a period of approved OFLA
leave will be responsible for bearing the cost of coverage. Please see ____ for more
information regarding health insurance coverage.

Job Protection

Employees returning to work from Family Medical Leave will be reinstated to their former
position. If the position has been eliminated, the employee may be reassigned to an available
equivalent position. Reinstatement is not guaranteed if the position has been eliminated
under circumstances where the law does not require reinstatement.

Employees are expected to promptly return to work when the circumstances requiring
Family Medical Leave have been resolved, even if leave was originally approved for a longer
period. With the exception of employees on leave as the result of an on-the-job injury or
illness or otherwise required by law, reinstatement shall not be considered if the leave period
exceeds the maximum allowed.

The use of Family Medical Leave cannot result in the loss of any employment benefit that
accrued prior to the start of an employee’s leave.

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Employees are on leave because they are unable to work. Employees who work for other
employers during their leave, or who use Family Medical Leave for reasons other than the
reason for which leave had been granted, may be subject to discipline up to and including
termination.

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EMPLOYEE RIGHTS AND RESPONSIBILITIES UNDER THE FMLA

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CERTIFICATION OF HEALTH-CARE PROVIDER (EMPLOYEE)

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CERTIFICATION OF HEALTH-CARE PROVIDER (FAMILY MEMBER)

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NOTICE OF ELIGIBILITY AND RIGHTS & RESPONSIBILITIES

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DESIGNATION NOTICE

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CERTIFICATION OF QUALIFYING EXIGENCY

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CERTIFICATION FOR SERIOUS INJURY


OR ILLNESS OF COVERED SERVICEMEMBER

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PHYSICIAN’S RELEASE TO RETURN TO WORK

Employee’s name:___________________________________ Date of release:_______________


Physician’s name and field of specialization:__________________________________________
I last examined or treated the employee on: ___________________________________________
I expect that condition to continue until: _____________________________________________

 In my opinion, the employee may return to work without restriction on: ________________
 In my opinion, the employee may return to work with the restrictions described below on:
__________________________________________________________________________

The employee has the following restrictions (indicate all restrictions on the employee’s work
activities, including but not limited to, hours of work, specific job duties the employee may
perform on a limited basis, and specific job duties the employee may not perform at all):
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________

The employee’s restrictions will continue until (indicate the date each restriction listed in the
preceding answer will end): _______________________________________________________
______________________________________________________________________________
______________________________________________________________________________

I will next examine the employee on: ________________________________________________

Physician’s Signature/Date

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Employers not covered by FMLA/OFLA


Until the enactment of the FMLA/OFLA, employers in Oregon had broad discretion to define
their medical leave of absence policies. Those employers not covered by the FMLA/OFLA still
have that discretion. Whatever policy an employer chooses to use, however, it must be
consistently applied.

SAMPLE POLICY
(if employer not covered by FMLA/OFLA)
If an employee expects to be absent from work for more than three consecutive days
(weekends included) as a result of illness, injury, or other disability (including pregnancy),
he or she must submit a written request for medical leave to the Human Resources
Department at least 30 days before the anticipated commencement of the leave. In the case
of an emergency or when 30-days’ notice cannot otherwise be provided, the employee or a
member of the employee’s immediate family must notify the employee’s supervisor or
manager as soon as possible. The written leave request normally should follow this
notification by no more than three days.

In all situations, the employee’s request for medical leave must be supported by a
physician’s certification of the medical need for leave. This certification must be furnished
within 15 days of the employee’s leave request. The employee also may be required to
submit to an examination by a physician selected by the Company before the leave of
absence will be approved. If circumstances require an extension of the leave for any reason,
the employee must provide the Company with a physician’s statement attesting to the
employee’s continued medical condition and inability to work. In addition, an employee
returning from medical leave must submit a doctor’s statement indicating that the employee
has been released to return to work.

The maximum duration of a medical leave of absence is 26 weeks. If an employee is unable


to return to work after 26 weeks, his or her employment will be terminated. Unless
otherwise required by applicable law, the Company cannot guarantee reinstatement of the
employee upon completion of an approved leave of absence. Nonetheless, the Company
will make every effort to return the employee to a comparable job, subject to budgetary
restrictions, the Company’s need to fill vacancies, and the Company’s ability to find
qualified temporary replacements.

As a general matter, medical leaves of absence under this policy are unpaid. However, an
employee on medical leave may be eligible for paid sick days, short-term disability benefits,
and/or long-term disability benefits under the Company’s policies.

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REQUEST FORM FOR NON-FMLA/OFLA LEAVE

Employee’s name:______________________________ Date of request: _____________________


My department and job title are: ______________________________________________________
My supervisor is: __________________________________________________________________
My seniority date is:________________________________________________________________
I request a leave of absence for the following reason: _____________________________________
 Personal illness or injury
 Illness or injury of a family member
 Military duty
 Jury duty
 Subpoenaed as witness
 Other _______________________________________________________________
____________________________________________________________________
____________________________________________________________________
I would like the leave to begin on:_____________________________________________________
I expect to return to work on:_________________________________________________________
Address and phone number while on leave: _____________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

________________________________________________________________________________
Employee’s Signature Date

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REQUEST FOR LEAVE OF ABSENCE (NON-FMLA/OFLA)

This form must be completed by the personnel director AND the employee.

DATE: {Date}
TO: PERSONNEL DEPARTMENT
FROM: {Employee Name}

GENERAL INFORMATION
1. Type of leave of absence requested: (Medical or non-medical) _______________________
__________________________________________________________________________
__________________________________________________________________________

2. Reason for leave of absence:___________________________________________________


__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

3. Date of leave of absence:


FROM: _____________________ TO: ___________________
Day leave begins Day leave ends

4. This leave of absence period includes ___________ days of paid vacation and _________
days of personal leave.

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TERMS AND CONDITIONS RELATING TO YOUR LEAVE OF ABSENCE:


Returning to Work
I understand that if my leave was for medical reasons, I must present a doctor’s statement (stating
that I am unable to work or identifying any limitations to my work activity) when I return to work.
I also understand that the Company will make every reasonable effort to place me in the same or a
comparable position when I return to work.
I further understand that if I refuse, without reasonable cause, any of the positions offered to me
upon my return, my employment will be terminated.

Employee’s Signature/Date

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Domestic violence leave


In 2007, a new Oregon law went into effect that permits employees who are victims of domestic
violence, sexual assault or stalking to take unpaid leave from work for a reasonable period of time
to seek assistance. The law applies to victims, as well as parents or guardians of minor children
who are victims.

The law applies to employers with 6 or more employees in Oregon for each working day during
20 or more calendar workweeks in the year in which an eligible employee takes leave. An
employee is eligible to take leave if he or she:

• has worked an average of more than 25 hours per week for at least 180 days immediately
before the date the employee takes leave

• is a victim of domestic violence, sexual assault or stalking or is a parent or guardian of a


minor child or dependent who is a victim

and

• leave is for an authorized purpose.

An “authorized purpose” includes seeking legal or law enforcement assistance or remedies –


seeking medical treatment or recovering from injuries; obtaining counseling or services from a
victim services provider; or relocating or taking steps to secure a safe home for the employee or
minor child.

Unless required by contract, collective bargaining agreement or employer policy, an employer is


not required to grant paid leave – however, an employer must permit the employee to use any
accrued vacation or other paid leave. An employee must give the employer reasonable advance
notice of the intention to take leave unless unfeasible and the employer may require certification
of the need for leave. All information and documentation pertaining to the leave, including the
fact the employee requested or obtained leave, must be kept strictly confidential and cannot be
released without the employee’s express authorization.

Except where it would impose undue hardship, an employer must provide domestic violence
leave to an eligible employee. Moreover, an employer is prohibited from discriminating or
retaliating against an employee who requests and or takes leave.

Employers should review and revise leave and other affected policies to ensure immediate
compliance. Documents pertaining to an employee’s leave should be kept in a separate file from
the employee’s personnel file and access should be restricted. Depending on the circumstances,
domestic violence leave may overlap with other types of unpaid leave, including family and
medical leave, leave provided as a reasonable accommodation under disability laws, and leave for
victims of crime.

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DOMESTIC VIOLENCE LEAVE POLICY


(leave to address specific crimes)
Any Oregon employee who has worked an average of at least 25 hours per week for 180 days is
eligible for reasonable unpaid leave to address domestic violence, sexual assault, or stalking of the
employee or his or her minor dependants.

Reasons for taking leave include the need to seek legal or law enforcement assistance or remedies,
to seek medical treatment for or recover from injuries, to seek counseling from a licensed mental
health professional, to obtain services from a victim services provider, or to relocate or secure an
existing home. Leave is generally unpaid, but you may use any accrued vacation or similar paid
time off while on this type of leave.

When seeking this type of leave, you should provide as much advance notice as is practicable of
your intention to take leave, unless giving the advance notice is not feasible. Notice of need to
take leave should be provided by submitting a request for leave in writing to your supervisor as
far in advance as possible, indicating the time needed and when it is needed and the reason for the
leave. Company will then generally require certification of the need for the leave, such as a police
report, protective order or other evidence of a court proceeding, or documentation from a law
enforcement officer, attorney, healthcare professional, member of the clergy, or victim services
provider.

If more leave than originally authorized needs to be taken, you should give Company notice as
soon as is practicable prior to the end of the authorized leave. When taking leave in an
unanticipated or emergency situation, you must give oral or written notice as soon as is
practicable. When leave is unanticipated, this notice may be given by any other person on your
behalf.

Pregnancy Discrimination Act (PDA)


Employers of 15 or more employees should be aware of the Pregnancy Discrimination Act
(PDA). The PDA amended Title VII to provide that discrimination on the basis of pregnancy,
childbirth, or related medical conditions is a form of prohibited sex discrimination. Female
employees who are pregnant must therefore be allowed to take disability leaves of absence for
pregnancy that are commensurate with leaves available to other employees for other medical
conditions. In essence, employers cannot treat pregnancy leave less favorably than they
treat other types of disability leave. Moreover, employers should be cautious in adopting leave
policies that provide no leave or insufficient leave for pregnancy-related disability to avoid
drawing a discrimination charge on the theory that such a policy has an adverse impact on female
employees.

Pregnancy leave is unique because it may encompass two different types of leave.

1. It constitutes a disability leave due to the medical aspects of pregnancy and childbirth.

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2. It also may be a type of parenting leave to the extent that it provides the employee with
time to care for her newborn child. If an employer allows its female employees to take
this latter type of parenting leave, that leave also must be made available to male
employees on an equal basis. Therefore, if an employer not covered by FMLA/OFLA
does not wish to allow its male employees leave to care for a newborn child, then the
employer should treat pregnancy leave solely as a type of disability leave and not allow
the mother additional time off solely to care for the child.

Overlap of Americans with


Disabilities Act (ADA) and Oregon’s
disability law and workers’ compensation
Employers of 15 or more employees (or six or more under Oregon’s disability law) also should
be aware of the potential application of the ADA and Oregon’s disability law in cases involving
medical leaves of absence. Under the ADA and Oregon’s disability law, an employee who takes
a medical leave, including a leave protected by the FMLA/OFLA, might be considered a qualified
individual with a disability upon his or her return to work. Such an employee would be entitled
to a reasonable accommodation of his or her disability if the employee could perform essential
job functions with such an accommodation. Employers therefore should be careful not to
terminate an employee who desires to return to work but whose leave period has expired without
first determining whether the employee is protected by the ADA or by Oregon’s disability law.

Additionally, employees who sustain on-the-job injuries and who qualify for workers’
compensation benefits may be eligible for leave periods greater than what FMLA or OFLA
requires. Employers are advised to consult with an attorney regarding these overlapping laws.

Personal leaves of absence


Employers are not obligated by either federal or state law to provide personal leaves of absence
to their employees, except to the extent required by FMLA/OFLA, if applicable. If an employer
chooses to voluntarily provide such leave, its policy should state whether the employee will be
entitled to pay during this period and the conditions for taking such leave. Additionally, the
employer should draft the policy carefully so as to avoid any apparent promise of reinstatement
upon completion of an employee’s personal leave.

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SAMPLE POLICY
A full-time employee who has completed at least one year of service with the Company
may request an unpaid personal leave of absence for a period of up to 30 days. A personal
leave must be requested in writing at least two weeks in advance, unless necessitated by an
emergency, in which case oral notification should be followed by written application for the
leave.

Personal leave may be granted for any justifiable reason at the Company’s discretion,
provided the leave does not seriously disrupt the Company’s operations. All unused,
accrued vacation and personal days must be used before a personal leave will be granted.

The Company cannot guarantee reinstatement to employees returning from personal leave
(unless such leave is covered by the Family and Medical Leave Act), but will make every
effort to reinstate employees to their former positions if business requirements permit.

Bereavement leave
There is no obligation under federal or state law to provide unpaid or paid bereavement leave to
employees. If bereavement leave is offered, the law does not require employers to provide any
specific amount of such leave. However, employers should be aware, from the standpoint of
recruiting and retaining the most highly qualified employees, that this is a benefit commonly
offered by employers. A bereavement leave policy should specify eligibility requirements and
conditions for such leave, including the relationship of the deceased to the employee. Some
employers also require proof of the death or the relationship to the employee to prevent abuse of
the benefit.

SAMPLE POLICY
Bereavement leave will be granted to full-time employees in the event of absence
necessitated by the death of a family member. In the event of the death of an employee’s
spouse, child, parent, or sibling, the employee will be granted three days off work with pay.
In the event of the death of an employee’s grandparent, father- or mother-in-law, or son- or
daughter-in-law, the employee will be granted one day off work with pay. Personal days or
vacation days may be used if additional time off is needed.

Requests for bereavement leave should be made to the employee’s immediate supervisor
before the leave is to begin.

Military leave
The sample policy contains a provision for partial wage payments to employees on a short-term
military leave of absence. Although such payments are not mandated by law (except as
discussed below), federal law creates certain job protections for employees who take temporary
leaves of absence for active or reserve military duty.

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Uniformed Services Employment and


Re-employment Rights Act (USERRA)
The Uniformed Services Employment and Re-employment Rights Act of 1994
(USERRA) prohibits employers from terminating any employee – unless the employee is
employed for a brief, non-recurrent period and has no reasonable expectation that
employment will continue – who indefinitely takes a leave of absence of up to five years
(or more in limited circumstances) for active or reserve military service.

Upon return from military leave, an employee is entitled to reinstatement in a position


that the employee would have obtained if he or she had been continuously employed or,
in some circumstances, in a position of like seniority, status, and pay. If unqualified for
such a position, the employee must be reinstated to the position he or she held when the
military leave began, or, in some circumstances, to an alternative position of like seniority,
status, and pay for which the employee is qualified. Reinstated employees also are
entitled to full seniority benefits.

In addition, if an employee is absent for more than 180 days for military duty, the
employee may not be discharged for one year subsequent to the employee’s return except
for just cause. If the military leave is more than 30 but less than 181 days, then the
employee may not be discharged without just cause for a period of six months after
reinstatement. Under very limited circumstances in which the employer can show that
reinstatement would be impossible or unreasonable, or in which reinstatement would pose
an undue hardship on the employer, the employer may be able to avoid the legal
requirement to reinstate an employee upon return from military leave.

Employees who desire reinstatement under USERRA must apply for reinstatement
within a limited period following termination of their military service. If the military
leave is 30 days or less, the employee generally must report for reinstatement on the first
regularly scheduled working day following his or her completion of the service. If the
period of service is between 31 and 180 days, then the individual must apply for
reinstatement within 14 days of completion of service. If the length of service is 181
days or more, then the employee has up to 90 days to apply for reinstatement under
USERRA.

Finally, employees taking military leave under the USERRA may use any accrued
vacation, annual, or similar leave in lieu of unpaid leave. Employees taking military leave
also are entitled to elect to continue health care coverage, to the extent such coverage is
otherwise provided, for a period of up to 31 days. After 31 days, coverage must be
offered to the employee – at a cost to the employee of not more than 102 percent of
actual premium costs – for a period of up to 18 months.

Employers are advised to consult with legal counsel regarding USERRA rights and
responsibilities.

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Time off and leaves of absence

SAMPLE POLICY
ABC Company provides compensation for two weeks during annual reserve and national
guard military training for regular full-time employees who have completed the orientation
period. Regular part-time and temporary employees do not qualify for military leave
compensation.

The amount of the military leave compensation paid is the difference between military pay
and regular pay based on a 40-hour workweek. Time spent on military leave will not be
counted as vacation time used.

Military reservist employees and those volunteering for or called to active military duty are
entitled to re-employment with the Company upon their return from duty in full compliance
with all applicable federal and state laws. In addition, besides the military leave benefits
discussed above, employees who request a military leave of absence may elect to use any
accrued vacation pay in lieu of unpaid leave, and may elect to continue health-care benefits
to the extent permitted by law, during their leave of absence.

Jury duty
Although neither federal nor state law requires employers to pay employees for jury duty,
federal law prohibits employers from taking any adverse action, including discipline or discharge,
against an employee who is absent from work because of jury service. As a measure of goodwill
towards employees, however, many employers elect to supplement jury duty pay so that
employees continue to receive their regular compensation during this time. As in the sample
policy, any requirements for receiving jury duty pay from the employer should be outlined in the
policy.

SAMPLE POLICY
ABC Company will grant employees time off for mandatory jury duty and/or jury duty
orientation. A copy of the court notice must be submitted to the employee’s manager to
verify the need for such leave. The employee will receive the difference between jury duty
pay and his or her normal salary or wage for each day of jury duty up to a maximum of five
days per year in addition to any other paid leave.

The employee is expected to report for work when doing so does not conflict with court
obligations. It is the employee’s responsibility to keep his or her supervisor or manager
informed about the amount of time required for jury duty and to provide documentation
regarding the amount of jury duty pay received in order to receive the Company-provided
compensation supplement.

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Chapter 8

Employee benefits

Health insurance
Employers are not required by law to provide their employees with health insurance. Employers
who choose to offer such benefits should distribute complete insurance information to employees
regarding these benefits rather than including such detailed information in an employee handbook.
The employee handbook should simply provide general descriptions of the available health
benefits in the policy, and then refer employees to the relevant insurance documents for further
information.

SAMPLE POLICY
ABC Company offers medical insurance for all of its regular, full-time employees. The
Company pays the cost of individual coverage for its regular, full-time employees.
Part-time employees are not eligible for health-insurance coverage. Those employees who
wish to have their dependents included in the insurance plan are required to pay a portion of
the monthly premium for that coverage on a payroll deduction basis. The group insurance
policy and the summary plan description issued to employees set out the terms and
conditions of the health insurance plan. These documents govern all issues relating to
employee health insurance. As other employee benefits are offered by the Company,
employees will be advised and provided with copies of relevant plan documents. Copies
are available from the Human Resources office.

COBRA
While the Consolidated Omnibus Budget Reconciliation Act (COBRA) does not require that
employers offer health insurance coverage, employers who do provide such coverage and who
employ more than 20 employees are governed by COBRA. Briefly, COBRA requires covered
employers to provide continuing coverage to qualified departing employees and/or their
beneficiaries in certain circumstances. Employers must also notify covered employees and their
spouses of their rights under COBRA within the first 90 days of coverage under any health plan
or within 30 days after a qualifying event occurs. Failure to comply with COBRA’s terms can
result in significant penalties and expense to covered employers.

The “stimulus bill” signed by President Obama in February 2009, also known as the American
Recovery and Reinvestment Act of 2009 (ARRA), contains $21 billion for expanded COBRA
continuation rights, with new provisions effective as of March 1, 2009. Under ARRA, covered
employers must offer eligible former employees who have previously declined COBRA coverage

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Employee benefits

a new 60-day period to elect COBRA and receive a reduced health premium; specifically, all
eligible former employees who were/are voluntarily terminated between September 1, 2008, and
December 31, 2009, pay only 35 percent of their COBRA premiums (the remaining 65 percent is
reimbursed to the coverage provider or employer through a tax credit). Eligible former employees
who have previously elected COBRA should start receiving the subsidy and do not need to make
a new election, but should receive notice of the premium reduction.

Employees are not eligible if their involuntary termination was for “gross misconduct” as defined
under the COBRA regulations. Employers are advised to consult with legal counsel regarding
the new law, and requirements for seeking reimbursement of the COBRA coverage subsidized by
the employer.

The following sample COBRA forms are included in this chapter:

• COBRA Information: An internal recordkeeping form. Employers are encouraged to


discuss with health insurance administrators or third-party COBRA providers regarding
what information should be kept regarding departing employees and their entitlement, if
any, to COBRA continuation coverage.

• Model General Notice of COBRA Continuation Coverage Rights (presented at time


of hire): also available at www.dol.gov/ebsa/modelgeneralnotice.doc and available in
Spanish via the Department of Labor’s web site.

• Model COBRA Continuation Coverage (presented at time of qualifying event): also


available at www.dol.gov/ebsa/modelelectionnotice.doc, and available in Spanish via the
Department of Labor’s web site.

• General Notice (Full version): Plans subject to COBRA must send the General Notice
to all qualified beneficiaries, not just covered employees, who experienced a qualifying
event at any time from September 1, 2008 through December 31, 2009, regardless of the
type of qualifying event, and who either have not yet been provided an election notice or
who were provided an election notice on or after February 17, 2009 that did not include
the additional information required by ARRA. This full version includes information on
the premium reduction as well as information required in a COBRA election notice.

• General Notice (Abbreviated version): The abbreviated version of the General Notice
includes the same information as the full version regarding the availability of the premium
reduction and other rights under ARRA, but does not include the COBRA coverage
election information. It may be sent in lieu of the full version to individuals who
experienced a qualifying event during on or after September 1, 2008, have already elected
COBRA coverage, and still have it.

• Model Notice in Connection with Extended Election Periods: This should be


provided to qualified beneficiaries who:

have received a COBRA election notice

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Employee benefits


are not currently enrolled in COBRA

and

who had a qualifying event during the period beginning 9/1/08 through 2/16/09.

This includes persons who never elected COBRA, or who elected COBRA but
subsequently discontinued it. The notice informs them about their extended COBRA
election period and the availability of the subsidy.

The “General Notices” and “Model Notice In Connection with Extended Election Periods” may
be used to replace or supplement the “Model General Notice of COBRA Continuation Coverage
Rights” and/or the “Model COBRA Continuation Coverage” notice. These forms can be
downloaded from www.dol.gov/ebsa/COBRAmodelnotice.html (see pages 157-201). For those
employers utilizing an external health care administrator, these notices may be provided by that
administrator. (Note: Given the complexity of COBRA laws and regulations, employers are
strongly encouraged to seek legal guidance on this law’s notice requirements.)

Employers should consult with their third-party administrator of COBRA benefits and/or legal
counsel to determine what specifics should be included in the various notices employees are
required to receive, and when those notices should be provided.

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Employee benefits

COBRA INFORMATION

EMPLOYER:________________________________

QUALIFYING PERSON: (Please check one)


 Employee  Dependent (Complete Employee/Dependent Information)

NAME:___________________________________ ADDRESS:___________________________
PHONE: __________________________________ EMPLOYEE NUMBER:________________
BIRTH DT: _______________________________ EE HIRE DATE: ______________________
DATE OF QUALIFYING EVENT: (Termination/Divorce/Other) __________________________
COVERAGE: SINGLE  FAMILY CLASS CODE: _________________
Is employee and/or dependent covered under another group insurance plan?
Employee:  Yes  No Dependent:  Yes  No
*******************************************************************************
SPOUSE/DEPENDENT NAME: ____________________ RELATIONSHIP: _______________
DEPENDENT S. S. NUMBER: _____________________ DATE OF BIRTH: ______________
If dependent, please give address if different from employee’s:
___________________________________________ ___________________________________
*******************************************************************************
COBRA QUALIFYING EVENT:/:VALID CODES FOR QUALIFYING ARE:
EX-EMPLOYEE DEPENDENTS
B Company Bankruptcy A Over dependent or student age
F Fired (Eligible) D Divorced
G Fired (Gross misconduct) I Dependent, no coverage
H Hours Reduced P Death of employee
L Lay Off
M Eligible for Medicare
R Retired
T Takeover by New Admin.
V Voluntary Quit
X Disabled
O Other
ADDITIONAL INFORMATION: ____________________________________________________
EMPLOYEE SIGNATURE:_________________________________________________________

Date Received:______________________________________ Date Entered: __________________

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Employee benefits

MODEL COBRA CONTINUATION COVERAGE


(FOR USE BY SINGLE-EMPLOYER GROUP HEALTH PLANS)

[Enter date of notice]

Dear: [Identify the qualified beneficiary(ies), by name or status]

This notice contains important information about your right to continue your health care
coverage in the [enter name of group health plan] (the Plan). Please read the information
contained in this notice very carefully.
To elect COBRA continuation coverage, follow the instructions on the next page to complete the
enclosed Election Form and submit it to us.

If you do not elect COBRA continuation coverage, your coverage under the Plan will end on
[enter date] due to [check appropriate box]:
 End of employment  Reduction in hours of employment
 Death of employee  Divorce or legal separation
 Entitlement to Medicare  Loss of dependent child status

Each person (“qualified beneficiary”) in the category(ies) checked below is entitled to elect
COBRA continuation coverage, which will continue group health care coverage under the Plan
for up to ___ months [enter 18 or 36, as appropriate and check appropriate box or boxes;
names may be added]:

 Employee or former employee


 Spouse or former spouse
 Dependent child(ren) covered under the Plan on the day before the event that
caused the loss of coverage
 Child who is losing coverage under the Plan because he or she is no
longer a dependent under the Plan

If elected, COBRA continuation coverage will begin on [enter date] and can last until [enter
date].

[Add, if appropriate: You may elect any of the following options for COBRA continuation
coverage: [list available coverage options].

COBRA continuation coverage will cost: [enter amount each qualified beneficiary will be
required to pay for each option per month of coverage and any other permitted coverage
periods.] You do not have to send any payment with the Election Form. Important additional
information about payment for COBRA continuation coverage is included in the pages following
the Election Form.

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Employee benefits

If you have any questions about this notice or your rights to COBRA continuation coverage, you
should contact [enter name of party responsible for COBRA administration for the Plan, with
telephone number and address].

COBRA Continuation Coverage Election Form

Instructions: To elect COBRA continuation coverage, complete this Election Form and return it to
us. Under federal law, you must have 60 days after the date of this notice to decide whether you want
to elect COBRA continuation coverage under the Plan.

Send completed Election Form to: [Enter Name and Address]

This Election Form must be completed and returned by mail [or describe other means of submission and
due date]. If mailed, it must be post-marked no later than [enter date].

If you do not submit a completed Election Form by the due date shown above, you will lose your right
to elect COBRA continuation coverage. If you reject COBRA continuation coverage before the due
date, you may change your mind as long as you furnish a completed Election Form before the due date.
However, if you change your mind after first rejecting COBRA continuation coverage, your COBRA
continuation coverage will begin on the date you furnish the completed Election Form.

Read the important information about your rights included in the pages after the Election Form.

I (We) elect COBRA continuation coverage in the [enter name of plan] (the Plan) as indicated
below:

Name Date of Birth Relationship to Employee SSN (or other identifier)


a. _________________________________________________________________________
[Add if appropriate: Coverage option elected: _______________________________]
b. _________________________________________________________________________
[Add if appropriate: Coverage option elected: _______________________________]
c. _________________________________________________________________________
[Add if appropriate: Coverage option elected: _______________________________]

_____________________________________ _____________________________
Signature Date

______________________________________ _____________________________
Print Name Relationship to individual(s) listed above

______________________________________
______________________________________
______________________________________ ______________________________
Print Address Telephone number

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Employee benefits

Important Information About Your COBRA Continuation Coverage Rights

What is continuation coverage?

Federal law requires that most group health plans (including this Plan) give employees and their
families the opportunity to continue their health care coverage when there is a “qualifying event”
that would result in a loss of coverage under an employer’s plan. Depending on the type of
qualifying event, “qualified beneficiaries” can include the employee (or retired employee)
covered under the group health plan, the covered employee’s spouse, and the dependent children
of the covered employee.

Continuation coverage is the same coverage that the Plan gives to other participants or
beneficiaries under the Plan who are not receiving continuation coverage. Each qualified
beneficiary who elects continuation coverage will have the same rights under the Plan as other
participants or beneficiaries covered under the Plan, including [add if applicable: open
enrollment and] special enrollment rights.

How long will continuation coverage last?

In the case of a loss of coverage due to end of employment or reduction in hours of employment,
coverage generally may be continued only for up to a total of 18 months. In the case of losses of
coverage due to an employee’s death, divorce or legal separation, the employee’s becoming
entitled to Medicare benefits or a dependent child ceasing to be a dependent under the terms of
the plan, coverage may be continued for up to a total of 36 months. When the qualifying event is
the end of employment or reduction of the employee’s hours of employment, and the employee
became entitled to Medicare benefits less than 18 months before the qualifying event, COBRA
continuation coverage for qualified beneficiaries other than the employee lasts until 36 months
after the date of Medicare entitlement. This notice shows the maximum period of continuation
coverage available to the qualified beneficiaries.

Continuation coverage will be terminated before the end of the maximum period if:

• any required premium is not paid in full on time,


• a qualified beneficiary becomes covered, after electing continuation coverage, under
another group health plan that does not impose any pre-existing condition exclusion for a
pre-existing condition of the qualified beneficiary,
• a qualified beneficiary becomes entitled to Medicare benefits (under Part A, Part B, or
both) after electing continuation coverage, or
• the employer ceases to provide any group health plan for its employees.

Continuation coverage may also be terminated for any reason the Plan would terminate coverage
of a participant or beneficiary not receiving continuation coverage (such as fraud).

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Employee benefits

[If the maximum period shown on page 1 of this notice is less than 36 months, add the following
three paragraphs:]

How can you extend the length of COBRA continuation coverage?

If you elect continuation coverage, an extension of the maximum period of coverage may be
available if a qualified beneficiary is disabled or a second qualifying event occurs. You must
notify [enter name of party responsible for COBRA administration] of a disability or a second
qualifying event in order to extend the period of continuation coverage. Failure to provide notice
of a disability or second qualifying event may affect the right to extend the period of
continuation coverage.

Disability

An 11-month extension of coverage may be available if any of the qualified beneficiaries is


determined by the Social Security Administration (SSA) to be disabled. The disability has to
have started at some time before the 60th day of COBRA continuation coverage and must last at
least until the end of the 18-month period of continuation coverage. [Describe Plan provisions
for requiring notice of disability determination, including time frames and procedures.] Each
qualified beneficiary who has elected continuation coverage will be entitled to the 11-month
disability extension if one of them qualifies. If the qualified beneficiary is determined by SSA to
no longer be disabled, you must notify the Plan of that fact within 30 days after SSA’s
determination.
Second Qualifying Event

An 18-month extension of coverage will be available to spouses and dependent children who
elect continuation coverage if a second qualifying event occurs during the first 18 months of
continuation coverage. The maximum amount of continuation coverage available when a second
qualifying event occurs is 36 months. Such second qualifying events may include the death of a
covered employee, divorce or separation from the covered employee, the covered employee’s
becoming entitled to Medicare benefits (under Part A, Part B, or both), or a dependent child’s
ceasing to be eligible for coverage as a dependent under the Plan. These events can be a second
qualifying event only if they would have caused the qualified beneficiary to lose coverage under
the Plan if the first qualifying event had not occurred. You must notify the Plan within 60 days
after a second qualifying event occurs if you want to extend your continuation coverage.

How can you elect COBRA continuation coverage?

To elect continuation coverage, you must complete the Election Form and furnish it according to
the directions on the form. Each qualified beneficiary has a separate right to elect continuation
coverage. For example, the employee’s spouse may elect continuation coverage even if the
employee does not. Continuation coverage may be elected for only one, several, or for all
dependent children who are qualified beneficiaries. A parent may elect to continue coverage on
behalf of any dependent children. The employee or the employee’s spouse can elect
continuation coverage on behalf of all of the qualified beneficiaries.

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Employee benefits

In considering whether to elect continuation coverage, you should take into account that a failure
to continue your group health coverage will affect your future rights under federal law. First,
you can lose the right to avoid having pre-existing condition exclusions applied to you by other
group health plans if you have more than a 63-day gap in health coverage, and election of
continuation coverage may help you not have such a gap. Second, you will lose the guaranteed
right to purchase individual health insurance policies that do not impose such pre-existing
condition exclusions if you do not get continuation coverage for the maximum time available to
you. Finally, you should take into account that you have special enrollment rights under federal
law. You have the right to request special enrollment in another group health plan for which you
are otherwise eligible (such as a plan sponsored by your spouse’s employer) within 30 days after
your group health coverage ends because of the qualifying event listed above. You will also
have the same special enrollment right at the end of continuation coverage if you get
continuation coverage for the maximum time available to you.

How much does COBRA continuation coverage cost?

Generally, each qualified beneficiary may be required to pay the entire cost of continuation
coverage. The amount a qualified beneficiary may be required to pay may not exceed 102
percent (or, in the case of an extension of continuation coverage due to a disability, 150 percent)
of the cost to the group health plan (including both employer and employee contributions) for
coverage of a similarly situated plan participant or beneficiary who is not receiving continuation
coverage. The required payment for each continuation coverage period for each option is
described in this notice.
[If employees might be eligible for trade adjustment assistance, the following information may be
added: The Trade Act of 2002 created a new tax credit for certain individuals who become
eligible for trade adjustment assistance and for certain retired employees who are receiving
pension payments from the Pension Benefit Guaranty Corporation (PBGC) (eligible individuals).
Under the new tax provisions, eligible individuals can either take a tax credit or get advance
payment of 65% of premiums paid for qualified health insurance, including continuation
coverage. If you have questions about these new tax provisions, you may call the Health
Coverage Tax Credit Customer Contact Center toll-free at 1-866-628-4282. TTD/TTY callers
may call toll-free at 1-866-626-4282. More information about the Trade Act is also available at
www.doleta.gov/tradeact/2002act_index.cfm.

When and how must payment for COBRA continuation coverage be made?

First payment for continuation coverage

If you elect continuation coverage, you do not have to send any payment with the Election Form.
However, you must make your first payment for continuation coverage not later than 45 days
after the date of your election. (This is the date the Election Notice is post-marked, if mailed.) If
you do not make your first payment for continuation coverage in full not later than 45 days after
the date of your election, you will lose all continuation coverage rights under the Plan. You are
responsible for making sure that the amount of your first payment is correct. You may contact
[enter appropriate contact information, e.g., the Plan Administrator or other party responsible
for COBRA administration under the Plan] to confirm the correct amount of your first payment.

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Employee benefits

Periodic payments for continuation coverage

After you make your first payment for continuation coverage, you will be required to make
periodic payments for each subsequent coverage period. The amount due for each coverage
period for each qualified beneficiary is shown in this notice. The periodic payments can be made
on a monthly basis. Under the Plan, each of these periodic payments for continuation coverage is
due on the [enter due day for each monthly payment] for that coverage period. [If Plan offers
other payment schedules, enter with appropriate dates: You may instead make payments for
continuation coverage for the following coverage periods, due on the following dates:]. If you
make a periodic payment on or before the first day of the coverage period to which it applies,
your coverage under the Plan will continue for that coverage period without any break. The Plan
[select one: will or will not] send periodic notices of payments due for these coverage periods.

Grace periods for periodic payments

Although periodic payments are due on the dates shown above, you will be given a grace period
of 30 days after the first day of the coverage period [or enter longer period permitted by Plan] to
make each periodic payment. Your continuation coverage will be provided for each coverage
period as long as payment for that coverage period is made before the end of the grace period for
that payment. [If Plan suspends coverage during grace period for nonpayment, enter and modify
as necessary: However, if you pay a periodic payment later than the first day of the coverage
period to which it applies, but before the end of the grace period for the coverage period, your
coverage under the Plan will be suspended as of the first day of the coverage period and then
retroactively reinstated (going back to the first day of the coverage period) when the periodic
payment is received. This means that any claim you submit for benefits while your coverage is
suspended may be denied and may have to be resubmitted once your coverage is reinstated.]
If you fail to make a periodic payment before the end of the grace period for that coverage
period, you will lose all rights to continuation coverage under the Plan.

Your first payment and all periodic payments for continuation coverage should be sent to:

[enter appropriate payment address]

For more information

This notice does not fully describe continuation coverage or other rights under the Plan. More
information about continuation coverage and your rights under the Plan is available in your
summary plan description or from the Plan Administrator.
If you have any questions concerning the information in this notice, your rights to coverage, or if
you want a copy of your summary plan description, you should contact [enter name of party
responsible for COBRA administration for the Plan, with telephone number and address].

For more information about your rights under ERISA, including COBRA, the Health Insurance
Portability and Accountability Act (HIPAA), and other laws affecting group health plans, contact
the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) in your area
or visit the EBSA website at www.dol.gov/ebsa. (Addresses and phone numbers of Regional
and District EBSA Offices are available through EBSA’s website.)

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Employee benefits

Keep Your Plan Informed of Address Changes

In order to protect your and your family’s rights, you should keep the Plan Administrator
informed of any changes in your address and the addresses of family members. You should also
keep a copy, for your records, of any notices you send to the Plan Administrator.

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Employee benefits

MODEL GENERAL NOTICE OF COBRA CONTINUATION COVERAGE RIGHTS


(FOR USE BY SINGLE-EMPLOYER GROUP HEALTH PLANS)

** Continuation Coverage Rights Under COBRA**

Introduction

You are receiving this notice because you have recently become covered under a group health
plan (the Plan). This notice contains important information about your right to COBRA
continuation coverage, which is a temporary extension of coverage under the Plan. This notice
generally explains COBRA continuation coverage, when it may become available to you
and your family, and what you need to do to protect the right to receive it.

The right to COBRA continuation coverage was created by a federal law, the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA). COBRA continuation coverage can
become available to you when you would otherwise lose your group health coverage. It can also
become available to other members of your family who are covered under the Plan when they
would otherwise lose their group health coverage. For additional information about your rights
and obligations under the Plan and under federal law, you should review the Plan’s Summary
Plan Description or contact the Plan Administrator.

What is COBRA Continuation Coverage?

COBRA continuation coverage is a continuation of Plan coverage when coverage would otherwise
end because of a life event known as a “qualifying event.” Specific qualifying events are listed
later in this notice. After a qualifying event, COBRA continuation coverage must be offered to
each person who is a “qualified beneficiary.” You, your spouse, and your dependent children
could become qualified beneficiaries if coverage under the Plan is lost because of the qualifying
event. Under the Plan, qualified beneficiaries who elect COBRA continuation coverage [choose
and enter appropriate information: must pay or are not required to pay] for COBRA
continuation coverage.

If you are an employee, you will become a qualified beneficiary if you lose your coverage under
the Plan because either one of the following qualifying events happens:

• Your hours of employment are reduced, or


• Your employment ends for any reason other than your gross misconduct.

If you are the spouse of an employee, you will become a qualified beneficiary if you lose
your coverage under the Plan because any of the following qualifying events happens:

• Your spouse dies;


• Your spouse’s hours of employment are reduced;
• Your spouse’s employment ends for any reason other than his or her gross misconduct;
• Your spouse becomes entitled to Medicare benefits (under Part A, Part B, or both); or
• You become divorced or legally separated from your spouse.

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Employee benefits

Your dependent children will become qualified beneficiaries if they lose coverage under the Plan
because any of the following qualifying events happens:

• The parent-employee dies;


• The parent-employee’s hours of employment are reduced;
• The parent-employee’s employment ends for any reason other than his or her gross
misconduct;
• The parent-employee becomes entitled to Medicare benefits (Part A, Part B, or both);
• The parents become divorced or legally separated; or
• The child stops being eligible for coverage under the plan as a “dependent child.”

[If the Plan provides retiree health coverage, add the following paragraph:]
Sometimes, filing a proceeding in bankruptcy under title 11 of the United States Code can
be a qualifying event. If a proceeding in bankruptcy is filed with respect to [enter name of
employer sponsoring the plan], and that bankruptcy results in the loss of coverage of any
retired employee covered under the Plan, the retired employee will become a qualified
beneficiary with respect to the bankruptcy. The retired employee’s spouse, surviving
spouse, and dependent children will also become qualified beneficiaries if bankruptcy
results in the loss of their coverage under the Plan.

When is COBRA Coverage Available?

The Plan will offer COBRA continuation coverage to qualified beneficiaries only after
the Plan Administrator has been notified that a qualifying event has occurred. When the
qualifying event is the end of employment or reduction of hours of employment, death of
the employee, [add if Plan provides retiree health coverage: commencement of a
proceeding in bankruptcy with respect to the employer,] or the employee’s becoming
entitled to Medicare benefits (under Part A, Part B, or both), the employer must notify the
Plan Administrator of the qualifying event.

You Must Give Notice of Some Qualifying Events

For the other qualifying events (divorce or legal separation of the employee and
spouse or a dependent child’s losing eligibility for coverage as a dependent child),
you must notify the Plan Administrator within 60 days [or enter longer period
permitted under the terms of the Plan] after the qualifying event occurs. You must
provide this notice to: [Enter name of appropriate party]. [Add description of any
additional Plan procedures for this notice, including a description of any required
information or documentation.]

How is COBRA Coverage Provided?

Once the Plan Administrator receives notice that a qualifying event has occurred,
COBRA continuation coverage will be offered to each of the qualified beneficiaries.
Each qualified beneficiary will have an independent right to elect COBRA continuation
coverage. Covered employees may elect COBRA continuation coverage on behalf of
their spouses, and parents may elect COBRA continuation coverage on behalf of their
children.

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Employee benefits

COBRA continuation coverage is a temporary continuation of coverage. When the


qualifying event is the death of the employee, the employee’s becoming entitled to
Medicare benefits (under Part A, Part B, or both), your divorce or legal separation, or a
dependent child’s losing eligibility as a dependent child, COBRA continuation coverage
lasts for up to a total of 36 months. When the qualifying event is the end of employment
or reduction of the employee’s hours of employment, and the employee became entitled
to Medicare benefits less than 18 months before the qualifying event, COBRA
continuation coverage for qualified beneficiaries other than the employee lasts until 36
months after the date of Medicare entitlement. For example, if a covered employee
becomes entitled to Medicare 8 months before the date on which his employment
terminates, COBRA continuation coverage for his spouse and children can last up to 36
months after the date of Medicare entitlement, which is equal to 28 months after the date
of the qualifying event (36 months minus 8 months). Otherwise, when the qualifying
event is the end of employment or reduction of the employee’s hours of employment,
COBRA continuation coverage generally lasts for only up to a total of 18 months. There
are two ways in which this 18-month period of COBRA continuation coverage can be
extended.

Disability extension of 18-month period of continuation coverage

If you or anyone in your family covered under the Plan is determined by the Social
Security Administration to be disabled and you notify the Plan Administrator in a timely
fashion, you and your entire family may be entitled to receive up to an additional 11
months of COBRA continuation coverage, for a total maximum of 29 months. The
disability would have to have started at some time before the 60th day of COBRA
continuation coverage and must last at least until the end of the 18-month period of
continuation coverage. [Add description of any additional Plan procedures for this
notice, including a description of any required information or documentation, the name
of the appropriate party to whom notice must be sent, and the time period for giving
notice.]

Second qualifying event extension of 18-month period of continuation coverage

If your family experiences another qualifying event while receiving 18 months of


COBRA continuation coverage, the spouse and dependent children in your family can get
up to 18 additional months of COBRA continuation coverage, for a maximum of 36
months, if notice of the second qualifying event is properly given to the Plan. This
extension may be available to the spouse and any dependent children receiving
continuation coverage if the employee or former employee dies, becomes entitled to
Medicare benefits (under Part A, Part B, or both), or gets divorced or legally separated, or
if the dependent child stops being eligible under the Plan as a dependent child, but only if
the event would have caused the spouse or dependent child to lose coverage under the
Plan had the first qualifying event not occurred.

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If You Have Questions

Questions concerning your Plan or your COBRA continuation coverage rights should be
addressed to the contact or contacts identified below. For more information about your rights
under ERISA, including COBRA, the Health Insurance Portability and Accountability Act
(HIPAA), and other laws affecting group health plans, contact the nearest Regional or District
Office of the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) in
your area or visit the EBSA website at www.dol.gov/ebsa. (Addresses and phone numbers of
Regional and District EBSA Offices are available through EBSA’s website.)

Keep Your Plan Informed of Address Changes

In order to protect your family’s rights, you should keep the Plan Administrator informed of any
changes in the addresses of family members. You should also keep a copy, for your records, of
any notices you send to the Plan Administrator.

Plan Contact Information

[Enter name of group health plan and name (or position), address and phone number of party or
parties from whom information about the plan and COBRA continuation coverage can be
obtained on request

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Employee benefits

MODEL COBRA CONTINUATION COVERAGE ELECTION NOTICE

(For use by group health plans for qualified beneficiaries who have not yet received an
election notice and with qualifying events occurring during the period that begins with
September 1, 2008 and ends with December 31, 2009.)

[Enter date of notice]

Dear: [Identify the qualified beneficiary(ies), by name or status]

This notice contains important information about your right to continue your health care
coverage in the [enter name of group health plan] (the Plan). Please read the information
contained in this notice very carefully.

The American Recovery and Reinvestment Act of 2009 (ARRA) reduces the COBRA premium
in some cases. You are receiving this election notice because you experienced a loss of coverage
that occurred during the period that begins with September 1, 2008 and ends with December 31,
2009 and you may be eligible for the temporary premium reduction for up to nine months. To
help determine whether you can get the ARRA premium reduction, you should read this notice
and the attached documents carefully. In particular, reference the “Summary of the COBRA
Premium Reduction Provisions under ARRA” with details regarding eligibility, restrictions, and
obligations and the “Application for Treatment as an Assistance Eligible Individual.” If you
believe you meet the criteria for the premium reduction, complete the “Application for
Treatment as an Assistance Eligible Individual” and return it with your completed Election
Form.
To elect COBRA continuation coverage, follow the instructions on the following pages to
complete the enclosed Election Form and submit it to us.

If you do not elect COBRA continuation coverage, your coverage under the Plan will end on
[enter date] due to [check appropriate box(es)]:
 End of employment
 Involuntary  Voluntary
 Divorce or legal separation
 Death of employee
 Entitlement to Medicare
 Reduction in hours of employment
 Loss of dependent child status

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Each person (“qualified beneficiary”) in the category(ies) checked below is entitled to elect
COBRA continuation coverage, which will continue group health care coverage under the Plan
for up to ___ months [enter 18 or 36, as appropriate and check appropriate box or boxes;
names may be added]:

 Employee or former employee


 Spouse or former spouse
 Dependent child(ren) covered under the Plan on the day before the event that caused
the loss of coverage
 Child who is losing coverage under the Plan because he or she is no
longer a dependent under the Plan

If elected, COBRA continuation coverage will begin on [enter date] and can last until [enter
date]. [Add, if appropriate: You may elect any of the following coverage options in which you
are already enrolled for COBRA continuation coverage: [list available coverage options].]

[If the plan permits Assistance Eligible Individuals to elect to enroll in coverage that is
different than coverage in which the individual was enrolled at the time the qualifying event
occurred, insert: “To change the coverage option(s) for your COBRA continuation coverage
to something different than what you had on the last day of employment, complete the
“Form for Switching COBRA Continuation Coverage Benefit Options” and return it to us.
Available coverage options are: [insert list of available coverage options].” The different
coverage must cost the same or less than the coverage the individual had at the time of the
qualifying event; be offered to active employees; and cannot be limited to only dental
coverage, vision coverage, counseling coverage, a flexible spending arrangement (FSA),
including a health reimbursement arrangement that qualifies as an FSA, or an on-site
medical clinic. ]

COBRA continuation coverage will cost: [enter amount each qualified beneficiary will be
required to pay for each option per month of coverage and any other permitted coverage
periods]. If you qualify as an “Assistance Eligible Individual” this cost will be [include the
amount that the Assistance Eligible Individual is required to pay for each option] for up to nine
months. You do not have to send any payment with the Election Form. Important additional
information about payment for COBRA continuation coverage is included in the pages following
the Election Form.

If you have any questions about this notice or your rights to COBRA continuation coverage, you
should contact [enter name of party responsible for COBRA administration for the Plan, with
telephone number and address].

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COBRA Continuation Coverage Election Form

Instructions: To elect COBRA continuation coverage, complete this Election Form and return it to
us. Under federal law, you have 60 days after the date of this notice to decide whether you want to
elect COBRA continuation coverage under the Plan.

Send completed Election Form to: [Enter Name and Address]

This Election Form must be completed and returned by mail [or describe other means of submission
and due date]. If mailed, it must be post-marked no later than [enter date].

If you do not submit a completed Election Form by the due date shown above, you will lose your
right to elect COBRA continuation coverage. If you reject COBRA continuation coverage before
the due date, you may change your mind as long as you furnish a completed Election Form before
the due date. However, if you change your mind after first rejecting COBRA continuation
coverage, your COBRA continuation coverage will begin on the date you furnish the completed
Election Form.

Read the important information about your rights included in the pages after the Election Form

I (We) elect COBRA continuation coverage in the [enter name of plan] (the Plan) as indicated
below:

Name Date of Birth Relationship to Employee SSN (or other identifier)

a. _________________________________________________________________________
[Add if appropriate: Coverage option(s): _______________________________
b. _________________________________________________________________________
[Add if appropriate: Coverage option(s): _______________________________
c. _________________________________________________________________________
[Add if appropriate: Coverage option(s): _______________________________

_____________________________________ _____________________________
Signature Date

______________________________________ _____________________________
Print Name Relationship to individual(s) listed above

______________________________________
______________________________________
______________________________________ ______________________________
Print Address Telephone number

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Form for Switching COBRA Continuation Coverage Benefit Options

[Only use this model form if the plan permits Assistance Eligible Individuals to elect to enroll in
coverage that is different than coverage in which the individual was enrolled at the time the
qualifying event occurred.]

Instructions: To change the benefit option(s) for your COBRA continuation coverage to
something different than what you had on the last day of employment, complete this form and
return it to us. Under federal law, you have 90 days after the date of this notice to decide whether
you want to switch benefit options.

Send completed form to: [Enter Name and Address]

This form must be completed and returned by mail [or describe other means of submission and due
date]. If mailed, it must be post-marked no later than [enter date].

*THIS IS NOT YOUR ELECTION NOTICE*


YOU MUST SEPARATELY COMPLETE AND RETURN THE ELECTION NOTICE TO
SECURE YOUR COBRA CONTINUATION COVERAGE.

I (We) would like to change the COBRA continuation coverage option(s) in the [enter name of
plan] (the Plan) as indicated below:
Name Date of Birth Relationship to Employee SSN (or other identifier)

a. _________________________________________________________________________
Old Coverage Option: ____________________________
New Coverage Option: __________________________
b. _________________________________________________________________________
Old Coverage Option: ____________________________
New Coverage Option: __________________________
c. _________________________________________________________________________
Old Coverage Option: ____________________________
New Coverage Option: __________________________

_____________________________________ _____________________________
Signature Date

______________________________________ _____________________________
Print Name Relationship to individual(s) listed above
______________________________________
______________________________________
______________________________________ ______________________________
Print Address Telephone number

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Important Information About Your COBRA Continuation Coverage Rights

What is continuation coverage?


Federal law requires that most group health plans (including this Plan) give employees and their
families the opportunity to continue their health care coverage when there is a “qualifying event”
that would result in a loss of coverage under an employer’s plan. Depending on the type of
qualifying event, “qualified beneficiaries” can include the employee (or retired employee)
covered under the group health plan, the covered employee’s spouse, and the dependent children
of the covered employee.

Continuation coverage is the same coverage that the Plan gives to other participants or
beneficiaries under the Plan who are not receiving continuation coverage. Each qualified
beneficiary who elects continuation coverage will have the same rights under the Plan as other
participants or beneficiaries covered under the Plan, including [add if applicable: open
enrollment and] special enrollment rights.

How long will continuation coverage last?


In the case of a loss of coverage due to end of employment or reduction in hours of employment,
coverage generally may be continued only for up to a total of 18 months. In the case of losses of
coverage due to an employee’s death, divorce or legal separation, the employee’s becoming
entitled to Medicare benefits or a dependent child ceasing to be a dependent under the terms of
the plan, coverage may be continued for up to a total of 36 months. When the qualifying event is
the end of employment or reduction of the employee’s hours of employment, and the employee
became entitled to Medicare benefits less than 18 months before the qualifying event, COBRA
continuation coverage for qualified beneficiaries other than the employee lasts until 36 months
after the date of Medicare entitlement. This notice shows the maximum period of continuation
coverage available to the qualified beneficiaries.

Continuation coverage will be terminated before the end of the maximum period if:

• any required premium is not paid in full on time,


• a qualified beneficiary first becomes covered, after electing continuation coverage, under
another group health plan that does not impose any preexisting condition exclusion for a
preexisting condition of the qualified beneficiary,
• a qualified beneficiary first becomes entitled to Medicare benefits (under Part A, Part B,
or both) after electing continuation coverage, or
• the employer ceases to provide any group health plan for its employees.

Continuation coverage may also be terminated for any reason the Plan would terminate coverage
of a participant or beneficiary not receiving continuation coverage (such as fraud).

[If the maximum period shown on page 1 of this notice is less than 36 months, add the following
three paragraphs:]

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Employee benefits

How can you extend the length of COBRA continuation coverage?


If you elect continuation coverage, an extension of the maximum period of coverage may be
available if a qualified beneficiary is disabled or a second qualifying event occurs. You must
notify [enter name of party responsible for COBRA administration] of a disability or a second
qualifying event in order to extend the period of continuation coverage. Failure to provide notice
of a disability or second qualifying event may affect the right to extend the period of
continuation coverage.

Disability
An 11-month extension of coverage may be available if any of the qualified beneficiaries is
determined under the Social Security Act (SSA) to be disabled. The disability has to have
started at some time on or before the 60th day of COBRA continuation coverage and must last at
least until the end of the 18-month period of continuation coverage. [Describe Plan provisions
for requiring notice of disability determination, including time frames and procedures.] Each
qualified beneficiary who has elected continuation coverage will be entitled to the 11-month
disability extension if one of them qualifies. If the qualified beneficiary is determined to no
longer be disabled under the SSA, you must notify the Plan of that fact within 30 days after that
determination.
Second Qualifying Event
An 18-month extension of coverage will be available to spouses and dependent children who
elect continuation coverage if a second qualifying event occurs during the first 18 months of
continuation coverage. The maximum amount of continuation coverage available when a second
qualifying event occurs is 36 months. Such second qualifying events may include the death of a
covered employee, divorce or legal separation from the covered employee, the covered
employee’s becoming entitled to Medicare benefits (under Part A, Part B, or both), or a
dependent child’s ceasing to be eligible for coverage as a dependent under the Plan. These
events can be a second qualifying event only if they would have caused the qualified beneficiary
to lose coverage under the Plan if the first qualifying event had not occurred. You must notify
the Plan within 60 days after a second qualifying event occurs if you want to extend your
continuation coverage.

How can you elect COBRA continuation coverage?


To elect continuation coverage, you must complete the Election Form and furnish it according to
the directions on the form. Each qualified beneficiary has a separate right to elect continuation
coverage. For example, the employee’s spouse may elect continuation coverage even if the
employee does not. Continuation coverage may be elected for only one, several, or for all
dependent children who are qualified beneficiaries. A parent may elect to continue coverage on
behalf of any dependent children. The employee or the employee’s spouse can elect
continuation coverage on behalf of all of the qualified beneficiaries.

In considering whether to elect continuation coverage, you should take into account that a failure
to continue your group health coverage will affect your future rights under federal law. First,
you can lose the right to avoid having preexisting condition exclusions applied to you by other
group health plans if you have a 63-day gap in health coverage, and election of continuation

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Employee benefits

coverage may help prevent such a gap. Second, you will lose the guaranteed right to purchase
individual health coverage that does not impose a preexisting condition exclusion if you do not
elect continuation coverage for the maximum time available to you. Finally, you should take
into account that you have special enrollment rights under federal law. You have the right to
request special enrollment in another group health plan for which you are otherwise eligible
(such as a plan sponsored by your spouse’s employer) within 30 days after your group health
coverage ends because of the qualifying event listed above. You will also have the same special
enrollment right at the end of continuation coverage if you get continuation coverage for the
maximum time available to you.

How much does COBRA continuation coverage cost?


Generally, each qualified beneficiary may be required to pay the entire cost of continuation
coverage. The amount a qualified beneficiary may be required to pay may not exceed 102
percent (or, in the case of an extension of continuation coverage due to a disability, 150 percent)
of the cost to the group health plan (including both employer and employee contributions) for
coverage of a similarly situated plan participant or beneficiary who is not receiving continuation
coverage. The required payment for each continuation coverage period for each option is
described in this notice.
The American Recovery and Reinvestment Act of 2009 (ARRA) reduces the COBRA premium
in some cases. The premium reduction is available to certain individuals who experience a
qualifying event that is an involuntary termination of employment during the period beginning
with September 1, 2008 and ending with December 31, 2009. If you qualify for the premium
reduction, you need only pay 35 percent of the COBRA premium otherwise due to the plan.
This premium reduction is available for up to nine months. If your COBRA continuation
coverage lasts for more than nine months, you will have to pay the full amount to continue your
COBRA continuation coverage. See the attached “Summary of the COBRA Premium Reduction
Provisions under ARRA” for more details, restrictions, and obligations as well as the form
necessary to establish eligibility.

[If employees might be eligible for trade adjustment assistance, the following information must
be added: The Trade Act of 2002 created a tax credit for certain individuals who become eligible
for trade adjustment assistance and for certain retired employees who are receiving pension
payments from the Pension Benefit Guaranty Corporation (PBGC). Under the tax provisions,
eligible individuals can either take a tax credit or get advance payment of 65% of premiums paid
for qualified health insurance, including continuation coverage. ARRA made several
amendments to these provisions, including an increase in the amount of the credit to 80% of
premiums for coverage before January 1, 2011 and temporary extensions of the maximum period
of COBRA continuation coverage for PBGC recipients (covered employees who have a
nonforfeitable right to a benefit any portion of which is to be paid by the PBGC) and TAA-
eligible individuals.

If you have questions about these provisions, you may call the Health Coverage Tax Credit
Customer Contact Center toll-free at 1-866-628-4282. TTD/TTY callers may call toll-free at 1-
866-626-4282. More information about the Trade Act is also available at
www.doleta.gov/tradeact.]

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Employee benefits

When and how must payment for COBRA continuation coverage be made?

First payment for continuation coverage


If you elect continuation coverage, you do not have to send any payment with the Election Form.
However, you must make your first payment for continuation coverage not later than 45 days
after the date of your election. (This is the date the Election Notice is post-marked, if mailed.) If
you do not make your first payment for continuation coverage in full not later than 45 days after
the date of your election, you will lose all continuation coverage rights under the Plan. You are
responsible for making sure that the amount of your first payment is correct. You may contact
[enter appropriate contact information, e.g., the Plan Administrator or other party responsible
for COBRA administration under the Plan] to confirm the correct amount of your first payment
or to discuss payment issues related to the ARRA premium reduction.

Periodic payments for continuation coverage


After you make your first payment for continuation coverage, you will be required to make
periodic payments for each subsequent coverage period. The amount due for each coverage
period for each qualified beneficiary is shown in this notice. The periodic payments can be made
on a monthly basis. Under the Plan, each of these periodic payments for continuation coverage is
due on the [enter due day for each monthly payment] for that coverage period. [If Plan offers
other payment schedules, enter with appropriate dates: You may instead make payments for
continuation coverage for the following coverage periods, due on the following dates:]. If you
make a periodic payment on or before the first day of the coverage period to which it applies,
your coverage under the Plan will continue for that coverage period without any break. The Plan
[select one: will or will not] send periodic notices of payments due for these coverage periods.

Grace periods for periodic payments


Although periodic payments are due on the dates shown above, you will be given a grace period
of 30 days after the first day of the coverage period [or enter longer period permitted by Plan] to
make each periodic payment. Your continuation coverage will be provided for each coverage
period as long as payment for that coverage period is made before the end of the grace period for
that payment. [If Plan suspends coverage during grace period for nonpayment, enter and modify
as necessary: However, if you pay a periodic payment later than the first day of the coverage
period to which it applies, but before the end of the grace period for the coverage period, your
coverage under the Plan will be suspended as of the first day of the coverage period and then
retroactively reinstated (going back to the first day of the coverage period) when the periodic
payment is received. This means that any claim you submit for benefits while your coverage is
suspended may be denied and may have to be resubmitted once your coverage is reinstated.]
If you fail to make a periodic payment before the end of the grace period for that coverage
period, you will lose all rights to continuation coverage under the Plan.

Your first payment and all periodic payments for continuation coverage should be sent to:

[enter appropriate payment address]

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Employee benefits

For more information


This notice does not fully describe continuation coverage or other rights under the Plan. More
information about continuation coverage and your rights under the Plan is available in your
summary plan description or from the Plan Administrator.
If you have any questions concerning the information in this notice, your rights to coverage, or if
you want a copy of your summary plan description, you should contact [enter name of party
responsible for COBRA administration for the Plan, with telephone number and address].

Private sector employees seeking more information about rights under ERISA, including
COBRA, the Health Insurance Portability and Accountability Act (HIPAA), and other laws
affecting group health plans, can contact the U.S. Department of Labor’s Employee Benefits
Security Administration (EBSA) at 1-866-444-3272 or visit the EBSA website at
www.dol.gov/ebsa. State and local government employees should contact HHS-CMS at
www.cms.hhs.gov/COBRAContinuationofCov/ or NewCobraRights@cms.hhs.gov.

Keep Your Plan Informed of Address Changes


In order to protect your and your family’s rights, you should keep the Plan Administrator
informed of any changes in your address and the addresses of family members. You should also
keep a copy, for your records, of any notices you send to the Plan Administrator.

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Employee benefits

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Employee benefits

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Employee benefits

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Employee benefits

MODEL COBRA CONTINUATION COVERAGE SUPPLEMENTAL NOTICE

(For use by group health plans for qualified beneficiaries currently enrolled in COBRA
coverage with qualifying events that occurred on or after September 1, 2008 to advise them
of the availability of the premium reduction.)

[Enter date of notice]

Dear: [Identify the qualified beneficiary(ies), by name or status]

This notice contains important information about additional rights you may have related to
your COBRA continuation coverage in the [enter name of group health plan] (the Plan).
Please read the information contained in this notice very carefully.

The American Recovery and Reinvestment Act of 2009 (ARRA) reduces the COBRA premium
in some cases. You are receiving this notice because you experienced a loss of coverage at some
time on or after September 1, 2008 and chose to elect COBRA continuation coverage. If your
loss of health coverage was due to an involuntary termination of employment you may be
eligible for the temporary premium reduction for up to nine months. To help determine whether
you can get the ARRA premium reduction, you should read this notice and the attached
documents carefully. In particular, reference the “Summary of the COBRA Premium Reduction
Provisions under ARRA” with details regarding eligibility, restrictions, and obligations and the
“Application for Treatment as an Assistance Eligible Individual.” If you believe you meet the
criteria for the premium reduction, complete the “Application for Treatment as an
Assistance Eligible Individual” and return it to us at [insert mailing address].

[If the plan permits Assistance Eligible Individuals to elect to enroll in coverage that is
different than coverage in which the individual was enrolled at the time the qualifying event
occurred, insert: “To change the coverage option(s) for your COBRA continuation coverage
to something different than what you had on the last day of employment, complete the
“Form for Switching COBRA Continuation Coverage Benefit Options” and return it to us.
Available coverage options are: [insert list of available coverage options].” The different
coverage must cost the same or less than the coverage the individual had at the time of the
qualifying event; be offered to active employees; and cannot be limited to only dental
coverage, vision coverage, counseling coverage, a flexible spending arrangement (FSA),
including a health reimbursement arrangement that qualifies as an FSA, or an on-site
medical clinic. ]

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Important Information about Your COBRA Continuation Coverage Rights

How much does COBRA continuation coverage cost?


Generally, each qualified beneficiary may be required to pay the entire cost of continuation
coverage. The amount a qualified beneficiary may be required to pay may not exceed 102
percent (or, in the case of an extension of continuation coverage due to a disability, 150 percent)
of the cost to the group health plan (including both employer and employee contributions) for
coverage of a similarly situated plan participant or beneficiary who is not receiving continuation
coverage. The required payment for each continuation coverage period for each option is
described in this notice.
The American Recovery and Reinvestment Act of 2009 (ARRA) reduces the COBRA premium
in some cases. The premium reduction is available to certain individuals who experience a
qualifying event that is an involuntary termination of employment during the period beginning
with September 1, 2008 and ending with December 31, 2009. If you qualify for the premium
reduction, you need only pay 35 percent of the COBRA premium otherwise due to the plan.
This premium reduction is available for up to nine months. If your COBRA continuation
coverage lasts for more than nine months, you will have to pay the full amount to continue your
COBRA continuation coverage. See the attached “Summary of the COBRA Premium Reduction
Provisions under ARRA” for more details, restrictions, and obligations as well as the form
necessary to establish eligibility.

[If employees might be eligible for trade adjustment assistance, the following information must
be added: The Trade Act of 2002 created a tax credit for certain individuals who become eligible
for trade adjustment assistance and for certain retired employees who are receiving pension
payments from the Pension Benefit Guaranty Corporation (PBGC). Under the tax provisions,
eligible individuals can either take a tax credit or get advance payment of 65% of premiums paid
for qualified health insurance, including continuation coverage. ARRA made several
amendments to these provisions, including an increase in the amount of the credit to 80% of
premiums for coverage before January 1, 2011 and temporary extensions of the maximum period
of COBRA continuation coverage for PBGC recipients (covered employees who have a
nonforfeitable right to a benefit any portion of which is to be paid by the PBGC) and TAA-
eligible individuals.

If you have questions about these provisions, you may call the Health Coverage Tax Credit
Customer Contact Center toll-free at 1-866-628-4282. TTD/TTY callers may call toll-free at 1-
866-626-4282. More information about the Trade Act is also available at
www.doleta.gov/tradeact.]

When and how must payment for COBRA continuation coverage be made?
Other than the amount, nothing else about the payment has changed. All periodic payments for
continuation coverage should be sent to: [enter appropriate payment address]

You may contact [enter appropriate contact information, e.g., the Plan Administrator or other
party responsible for COBRA administration under the Plan] to confirm the correct amount of
your first payment or to discuss payment issues related to the ARRA premium reduction.

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Employee benefits

For more information


This notice does not fully describe continuation coverage or other rights under the Plan. More
information about continuation coverage and your rights under the Plan is available in your
original COBRA election notice, the summary plan description, or from the Plan Administrator.
If you have any questions concerning the information in this notice, your rights to coverage, or if
you want a copy of your summary plan description, you should contact [enter name of party
responsible for COBRA administration for the Plan, with telephone number and address].

Private sector employees seeking more information about rights under ERISA, including
COBRA, the Health Insurance Portability and Accountability Act (HIPAA), and other laws
affecting group health plans, can contact the U.S. Department of Labor’s Employee Benefits
Security Administration (EBSA) at 1-866-444-3272 or visit the EBSA website at
www.dol.gov/ebsa. State and local government employees should contact HHS-CMS at
www.cms.hhs.gov/COBRAContinuationofCov/ or NewCobraRights@cms.hhs.gov.

Keep Your Plan Informed of Address Changes


In order to protect your and your family’s rights, you should keep the Plan Administrator
informed of any changes in your address and the addresses of family members. You should also
keep a copy, for your records, of any notices you send to the Plan Administrator.

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Employee benefits

Form for Switching COBRA Continuation Coverage Benefit Options

[Only use this model form if the plan permits Assistance Eligible Individuals to elect to enroll in
coverage that is different than coverage in which the individual was enrolled at the time the
qualifying event occurred.]

Instructions: To change the benefit option(s) for your COBRA continuation coverage to
something different than what you have, complete this Form and return it to us. Under
federal law, you have 90 days after the date of this notice to decide whether you want to
switch benefit options.

Send completed Form to: [Enter Name and Address]

This Form must be completed and returned by mail [or describe other means of submission
and due date]. If mailed, it must be post-marked no later than [enter date].

I (We) would like to change the COBRA continuation coverage option(s) in the [enter name of
plan] (the Plan) as indicated below:

Name Date of Birth Relationship to Employee SSN (or other identifier)

a. _________________________________________________________________________
Old Coverage Option:____________________________
New Coverage Option: __________________________
b. _________________________________________________________________________
Old Coverage Option:____________________________
New Coverage Option: __________________________
c. _________________________________________________________________________
Old Coverage Option:____________________________
New Coverage Option: __________________________

_____________________________________ _____________________________
Signature Date

______________________________________ _____________________________
Print Name Relationship to individual(s) listed above
______________________________________
______________________________________
______________________________________ ______________________________
Print Address Telephone number

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Employee benefits

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Employee benefits

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Employee benefits

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Employee benefits

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Employee benefits

MODEL COBRA CONTINUATION COVERAGE ADDITIONAL ELECTION NOTICE

(For use by group health plans for qualified beneficiaries who are or would be an
Assistance Eligible Individual but are not enrolled in COBRA coverage (including those
who never elected AND those who elected but subsequently discontinued coverage) with
qualifying events that occurred during the period from September 1, 2008 through
February 16, 2009.)

[Enter date of notice]

Dear: [Identify the qualified beneficiary(ies), by name or status]

This notice contains important information about additional rights to continue your health
care coverage in the [enter name of group health plan] (the Plan). Please read the information
contained in this notice very carefully.

The American Recovery and Reinvestment Act of 2009 (ARRA) reduces the COBRA premium
in some cases. You are receiving this notice because you experienced a loss of coverage at some
time from September 1, 2008 through February 16, 2009 and either chose not to elect COBRA
continuation coverage at that time OR elected COBRA but subsequently discontinued that
coverage. If your loss of health coverage was due to an involuntary termination of employment
you may be eligible for a second COBRA election opportunity and the temporary premium
reduction for up to nine months. To help determine whether you can get the ARRA premium
reduction, you should read this notice and the attached documents carefully. In particular,
reference the “Summary of the COBRA Premium Reduction Provisions under ARRA” with
details regarding eligibility, restrictions, and obligations and the “Application for Treatment as
an Assistance Eligible Individual.” If you believe you meet the criteria for the premium
reduction, complete the “Application for Treatment as an Assistance Eligible Individual”
and return it with your completed Election Form.

To elect COBRA continuation coverage, follow the instructions on the following pages to
complete the enclosed Election Form and submit it to us.

Each person (“qualified beneficiary”) in the category(ies) checked below is entitled to elect
COBRA continuation coverage, which generally will continue group health care coverage under
the Plan for up to 18 months after an involuntary termination of employment. [Check
appropriate box or boxes; names may be added]:

 Employee or former employee


 Spouse or former spouse
 Dependent child(ren) covered under the Plan on the day before the involuntary
termination of employment (and any new dependents born, adopted, or placed for
adoption between the date coverage was lost and February 17, 2009).
If elected, COBRA continuation coverage will begin retroactively on [enter the date of the first
day of the first coverage period beginning on or after February 17, 2009] and can last until [enter
the date that is 18 months after the qualifying event]. [Add, if appropriate: You may elect any
of the following options for COBRA continuation coverage: [list available coverage options].

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Employee benefits

[If the plan permits Assistance Eligible Individuals to elect to enroll in coverage that is
different than coverage in which the individual was enrolled at the time the qualifying event
occurred, insert: “To change the coverage option(s) for your COBRA continuation coverage
to something different than what you had on the last day of employment, complete the
“Form for Switching COBRA Continuation Coverage Benefit Options” and return it to us.
Available coverage options are: [insert list of available coverage options].” The different
coverage must cost the same or less than the coverage the individual had at the time of the
qualifying event; be offered to active employees; and cannot be limited to only dental
coverage, vision coverage, counseling coverage, a flexible spending arrangement (FSA),
including a health reimbursement arrangement that qualifies as an FSA, or an on-site
medical clinic. ]

COBRA continuation coverage will cost: [enter amount each qualified beneficiary will be
required to pay for each option per month of coverage and any other permitted coverage
periods.] If you qualify as an “Assistance Eligible Individual” this cost can be reduced to
[include the amount that is 35 percent of the amount above for each option] for up to nine
months. You do not have to send any payment with the Election Form. Important additional
information about payment for COBRA continuation coverage is included in the pages following
the Election Form.

If you have any questions about this notice or your rights to COBRA continuation coverage, you
should contact [enter name of party responsible for COBRA administration for the Plan, with
telephone number and address].

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Employee benefits

COBRA Continuation Coverage Election Form


Instructions: Under the American Recovery and Reinvestment Act you are only entitled to elect
COBRA continuation coverage at this time if you lost group health plan coverage due to an
involuntary termination of employment during the period that begins with September 1, 2008 and
ends with December 31, 2009. To elect COBRA continuation coverage, complete this Election
Form and return it to us. Under federal law, you have 60 days after the date of this notice to decide
whether you want to elect COBRA continuation coverage under the Plan.

Send completed Election Form to: [Enter Name and Address]

This Election Form must be completed and returned by mail [or describe other means of submission
and due date]. If mailed, it must be post-marked no later than [enter date].

If you do not submit a completed Election Form by the due date shown above, you will lose your
right to elect COBRA continuation coverage. If you reject COBRA continuation coverage before
the due date, you may change your mind as long as you furnish a completed Election Form before
the due date. However, if you change your mind after first rejecting COBRA continuation
coverage, your COBRA continuation coverage will begin on the date you furnish the completed
Election Form.

I (We) elect COBRA continuation coverage in the [enter name of plan] (the Plan) as indicated
below:

Name Date of Birth Relationship to Employee SSN (or other identifier)

a. _________________________________________________________________________
[Add if appropriate: Coverage option(s): _______________________________]
b. _________________________________________________________________________
[Add if appropriate: Coverage option(s): _______________________________]
c. _________________________________________________________________________
[Add if appropriate: Coverage option(s): _______________________________]

_____________________________________ _____________________________
Signature Date

______________________________________ _____________________________
Print Name Relationship to individual(s) listed above

______________________________________
______________________________________
______________________________________ ______________________________
Print Address Telephone number

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Form for Switching COBRA Continuation Coverage Benefit Options

[Only use this model form if the plan permits Assistance Eligible Individuals to elect to enroll in coverage
that is different than coverage in which the individual was enrolled at the time the qualifying event
occurred.]

Instructions: To change the benefit option(s) for your COBRA continuation coverage to something
different than what you had on the last day of employment, complete this Form and return it to us.
Under federal law, you have 90 days after the date of this notice to decide whether you want to
switch benefit options.

Send completed Form to: [Enter Name and Address]

This Form must be completed and returned by mail [or describe other means of submission and due
date]. If mailed, it must be post-marked no later than [enter date].

*THIS IS NOT YOUR ELECTION NOTICE*


YOU MUST SEPARATELY COMPLETE AND RETURN THE ELECTION NOTICE TO
SECURE YOUR COBRA CONTINUATION COVERAGE.

I (We) would like to change the COBRA continuation coverage option(s) in the [enter name of plan] (the
Plan) as indicated below:

Name Date of Birth Relationship to Employee SSN (or other identifier)

a. _________________________________________________________________________
Old Coverage Option: ____________________________
New Coverage Option: __________________________
b. _________________________________________________________________________
Old Coverage Option: ____________________________
New Coverage Option: __________________________
c. _________________________________________________________________________
Old Coverage Option: ____________________________
New Coverage Option: __________________________

_____________________________________ _____________________________
Signature Date

______________________________________ _____________________________
Print Name Relationship to individual(s) listed above

______________________________________
______________________________________
______________________________________ ______________________________
Print Address Telephone number

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Important Information About Your COBRA Continuation Coverage Rights

Am I eligible to elect COBRA continuation Coverage at this time?


Only individuals who lost group health coverage from September 1, 2008 through February 16,
2009 due to an involuntary termination of employment that occurred during that period, and who
did not elect COBRA continuation coverage during their first election period OR who elected but
subsequently discontinued COBRA coverage (for reasons other than becoming eligible for
another group health plan or Medicare), are entitled to elect coverage at this time. If you lost
group health coverage for any other reason between these dates and did not elect COBRA
continuation coverage when it was first offered, you are not entitled to this second election
period.

Am I eligible for the premium reduction?


If you lost group health coverage from September 1, 2008 through February 16, 2009 due to an
involuntary termination of employment that occurred during that period and are not eligible for
Medicare or other group health plan coverage, you are entitled to receive the premium reduction.
Information about the amount of the premium reduction and how it affects your premium
payments can be found below under the question, “How much does COBRA continuation
coverage cost?”

How long will continuation coverage last?


Your coverage will begin retroactively on [insert date that is the beginning of the first period of
coverage on or after February 17, 2009] and can generally continue for up to 18 months from the
date of your involuntary termination of employment. The duration of the premium reduction is
determined separately and may not last for the entire length of your COBRA coverage. See the
question below entitled “How much does COBRA continuation coverage cost?”

Continuation coverage will be terminated before the end of the 18 month period if:

• any required premium is not paid in full on time,


• a qualified beneficiary becomes covered, after electing continuation coverage, under
another group health plan that does not impose any pre-existing condition exclusion for a
pre-existing condition of the qualified beneficiary,
• a qualified beneficiary becomes entitled to Medicare benefits (under Part A, Part B, or
both) after electing continuation coverage, or
• the employer ceases to provide any group health plan for its employees.

Continuation coverage may also be terminated for any reason the Plan would terminate coverage
of a participant or beneficiary not receiving continuation coverage (such as fraud).

How can you extend the length of COBRA continuation coverage?


If you elect continuation coverage, an extension of the maximum period of coverage may be
available if a qualified beneficiary is disabled or a second qualifying event occurs. You must
notify [enter name of party responsible for COBRA administration] of a disability or a second
qualifying event in order to extend the period of continuation coverage. Failure to provide notice
of a disability or second qualifying event may affect the right to extend the period of
continuation coverage.

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Disability
An 11-month extension of coverage may be available if any of the qualified beneficiaries is
determined under the Social Security Act (SSA) to be disabled. The disability has to have
started at some time on or before the 60th day of COBRA continuation coverage and must last at
least until the end of the 18-month period of continuation coverage. [Describe Plan provisions
for requiring notice of disability determination, including time frames and procedures.] Each
qualified beneficiary who has elected continuation coverage will be entitled to the 11-month
disability extension if one of them qualifies. If the qualified beneficiary is determined to no
longer be disabled under the SSA, you must notify the Plan of that fact within 30 days after that
determination.
Second Qualifying Event
An 18-month extension of coverage will be available to spouses and dependent children who
elect continuation coverage if a second qualifying event occurs during the first 18 months of
continuation coverage. The maximum amount of continuation coverage available when a second
qualifying event occurs is 36 months. Such second qualifying events may include the death of a
covered employee, divorce or separation from the covered employee, the covered employee’s
becoming entitled to Medicare benefits (under Part A, Part B, or both), or a dependent child’s
ceasing to be eligible for coverage as a dependent under the Plan. These events can be a second
qualifying event only if they would have caused the qualified beneficiary to lose coverage under
the Plan if the first qualifying event had not occurred. You must notify the Plan within 60 days
after a second qualifying event occurs if you want to extend your continuation coverage.

How can you elect COBRA continuation coverage?


To elect continuation coverage, you must complete the Election Form and furnish it according to
the directions on the form. Each qualified beneficiary has a separate right to elect continuation
coverage. For example, the employee’s spouse may elect continuation coverage even if the
employee does not. Continuation coverage may be elected for only one, several, or for all
dependent children who are qualified beneficiaries. A parent may elect to continue coverage on
behalf of any dependent children. The employee or the employee’s spouse can elect
continuation coverage on behalf of all of the qualified beneficiaries.

In considering whether to elect continuation coverage, you should take into account that a failure
to continue your group health coverage will affect your future rights under Federal law. First,
you can lose the right to avoid having preexisting condition exclusions applied to you by other
group health plans if you have a 63-day gap in health coverage, and election of continuation
coverage may help prevent such a gap. Second, you will lose the guaranteed right to purchase
individual health coverage that does not impose a preexisting condition exclusion if you do not
elect continuation coverage for the maximum time available to you. If you do elect continuation
coverage under this additional election period, the period from qualifying event to the date
coverage begins under your election will not count as a break in coverage in determining
whether you had a 63-day break in coverage.

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Employee benefits

How much does COBRA continuation coverage cost?


Generally, each qualified beneficiary may be required to pay the entire cost of continuation
coverage. The amount a qualified beneficiary may be required to pay may not exceed 102
percent (or, in the case of an extension of continuation coverage due to a disability, 150 percent)
of the cost to the group health plan (including both employer and employee contributions) for
coverage of a similarly situated plan participant or beneficiary who is not receiving continuation
coverage. The required payment for each continuation coverage period for each option is
described in this notice.
The American Recovery and Reinvestment Act of 2009 (ARRA) reduces the COBRA premium
in some cases. The premium reduction is available to certain individuals who experience a
qualifying event that is an involuntary termination of employment during the period beginning
with September 1, 2008 and ending with December 31, 2009. If you qualify for the premium
reduction, you need only pay 35 percent of the COBRA premium otherwise due to the plan.
This premium reduction is available for up to nine months. If your COBRA continuation
coverage lasts for more than nine months, you will have to pay the full amount to continue your
COBRA continuation coverage. See the attached “Summary of the COBRA Premium Reduction
Provisions under ARRA” for more details, restrictions, and obligations as well as the form
necessary to establish eligibility.

[If employees might be eligible for trade adjustment assistance, the following information must
be added: The Trade Act of 2002 created a tax credit for certain individuals who become eligible
for trade adjustment assistance and for certain retired employees who are receiving pension
payments from the Pension Benefit Guaranty Corporation (PBGC). Under the tax provisions,
eligible individuals can either take a tax credit or get advance payment of 65% of premiums paid
for qualified health insurance, including continuation coverage. ARRA made several
amendments to these provisions, including an increase in the amount of the credit to 80% of
premiums for coverage before January 1, 2011 and temporary extensions of the maximum period
of COBRA continuation coverage for PBGC recipients (covered employees who have a
nonforfeitable right to a benefit any portion of which is to be paid by the PBGC) and TAA-
eligible individuals.

If you have questions about these provisions, you may call the Health Coverage Tax Credit
Customer Contact Center toll-free at 1-866-628-4282. TTD/TTY callers may call toll-free at 1-
866-626-4282. More information about the Trade Act is also available at
www.doleta.gov/tradeact.]

When and how must payment for COBRA continuation coverage be made?

First payment for continuation coverage

If you elect continuation coverage, you do not have to send any payment with the Election Form.
However, you must make your first payment for continuation coverage not later than 45 days
after the date of your election. (This is the date the Election Notice is post-marked, if mailed.) If
you do not make your first payment for continuation coverage in full not later than 45 days after
the date of your election, you will lose all continuation coverage rights under the Plan. You are
responsible for making sure that the amount of your first payment is correct. You may contact

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Employee benefits

[enter appropriate contact information, e.g., the Plan Administrator or other party responsible
for COBRA administration under the Plan] to confirm the correct amount of your first payment.

Periodic payments for continuation coverage

After you make your first payment for continuation coverage, you will be required to make
periodic payments for each subsequent coverage period. The amount due for each coverage
period for each qualified beneficiary is shown in this notice. The periodic payments can be made
on a monthly basis. Under the Plan, each of these periodic payments for continuation coverage is
due on the [enter due day for each monthly payment] for that coverage period. [If Plan offers
other payment schedules, enter with appropriate dates: You may instead make payments for
continuation coverage for the following coverage periods, due on the following dates:]. If you
make a periodic payment on or before the first day of the coverage period to which it applies,
your coverage under the Plan will continue for that coverage period without any break. The Plan
[select one: will or will not] send periodic notices of payments due for these coverage periods.

Grace periods for periodic payments

Although periodic payments are due on the dates shown above, you will be given a grace period
of 30 days after the first day of the coverage period [or enter longer period permitted by Plan] to
make each periodic payment. Your continuation coverage will be provided for each coverage
period as long as payment for that coverage period is made before the end of the grace period for
that payment. [If Plan suspends coverage during grace period for nonpayment, enter and modify
as necessary: However, if you pay a periodic payment later than the first day of the coverage
period to which it applies, but before the end of the grace period for the coverage period, your
coverage under the Plan will be suspended as of the first day of the coverage period and then
retroactively reinstated (going back to the first day of the coverage period) when the periodic
payment is received. This means that any claim you submit for benefits while your coverage is
suspended may be denied and may have to be resubmitted once your coverage is reinstated.]
If you fail to make a periodic payment before the end of the grace period for that coverage
period, you will lose all rights to continuation coverage under the Plan.

Your first payment and all periodic payments for continuation coverage should be sent to:

[enter appropriate payment address]

For more information


This notice does not fully describe continuation coverage or other rights under the Plan. More
information about continuation coverage and your rights under the Plan is available in your
summary plan description or from the Plan Administrator.
If you have any questions concerning the information in this notice, your rights to coverage, or if
you want a copy of your summary plan description, you should contact [enter name of party
responsible for COBRA administration for the Plan, with telephone number and address].

Private sector employees seeking more information about rights under ERISA, including
COBRA, the Health Insurance Portability and Accountability Act (HIPAA), and other laws
affecting group health plans, can contact the U.S. Department of Labor’s Employee Benefits
Security Administration (EBSA) at 1-866-444-3272 or visit the EBSA website at

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Employee benefits

www.dol.gov/ebsa. State and local government employees should contact HHS-CMS at


www.cms.hhs.gov/COBRAContinuationofCov/ or NewCobraRights@cms.hhs.gov.

Keep Your Plan Informed of Address Changes


In order to protect your and your family’s rights, you should keep the Plan Administrator
informed of any changes in your address and the addresses of family members. You should also
keep a copy, for your records, of any notices you send to the Plan Administrator.

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Employee benefits

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Employee benefits

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Employee benefits

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Employee benefits

Short- and long-term disability plans


Employers are not legally obligated to provide any short-term or long-term disability benefits
(with the exception of state-mandated workers’ compensation insurance coverage). Employers
who choose to provide such benefits to their employees should include requirements for
eligibility to receive benefits and the amount of such benefits in its policies. As in the case of
health insurance, reference should be made to the plan documents for the details of coverage.

SAMPLE POLICY
Short-term Disability Plan

In the event an employee is away from work because of illness or disability (including
pregnancy) and exhausts available sick days, ABC Company provides short-term disability
benefits to regular, full-time employees who have worked for the Company for at least one
year. Under this plan, after a waiting period of five working days, the Company pays 60
percent of the employee’s regular compensation for each week the employee is disabled, to
a maximum of 90 days. To maintain eligibility for benefits, the employee must be in
compliance with the Company’s Medical Leaves of Absence Policy. The Company pays
the full cost of this benefit. Part-time employees are not eligible for short-term disability
coverage. A complete description of the Company’s short-term disability plan is provided in
the group insurance policy and summary plan description issued to employees.

SAMPLE POLICY
Long-term Disability Plan

ABC Company provides long-term disability insurance for all of its regular, full-time
employees. This coverage applies to any disability that prevents the employee from
working for more than 90 days. The Company pays the cost of coverage for this benefit.
Part-time employees are not eligible for long-term disability coverage. The group insurance
policy and the summary plan description issued to employees set out the terms and
conditions of the long-term disability plan. Those documents govern all issues relating to
the long-term disability insurance.

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Employee benefits

401(K) plan
Employers have no legal obligation to provide their employees with either retirement benefits or
a profit-sharing plan. Employers who do provide the benefit should make reference to the plan’s
availability and that it is governed by the plan documents. Employees should be given – and
referred to – the plan documents for complete information regarding the benefit. Employers
should not attempt to include all the provisions of the 401k plan in a handbook. A sample
policy is provided below.

Most employers offering a 401k plan utilize an external plan administrator for the plan. The
plan administrator should be able to provide the employer with any forms electing participation
in the 401k plan or otherwise connected to the plan. Employers should, however, also obtain the
employee’s express written consent to deduct 401k contributions from the paycheck for deposit
into the 401k account.

SAMPLE POLICY
ABC Company sponsors a 401(k) profit-sharing plan for all eligible employees. Under the
plan, employees may elect to make contributions to the plan through salary deferral. The
Company may make matching contributions in an amount equal to one-third of each
employee’s salary deferral, up to two percent of that employee’s compensation. The
Company also may make additional profit-sharing contributions to the plan in its discretion.
The terms of the plan and eligibility requirements are set out in the written plan document
and summary plan description issued to employees.

Continuing education
Employers are not obligated to reimburse employees for continuing education. Some employers
choose to do so, however, because education programs encourage employees to obtain additional
skills and knowledge in their respective fields of specialization, which results in increased
productivity for the employer.

Any tuition reimbursement program should be in writing and contain the requirements for
receiving reimbursement. Most plans reimburse the employee at the conclusion of the course if it
is successfully completed and related to the employee’s job. If tuition costs are advanced,
employers should enter into a written agreement with the employee to recoup those costs in the
event the employee discontinues his or her studies for any reason. Under Oregon law,
deductions from an employee’s pay may occur if the employee authorizes the deduction in
writing, the deduction is for the employee benefit, and the payments are recorded in employer’s
books or records. Employees must be compensated for time spent attending mandatory
on-the-job training programs or seminars.

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Employee benefits

SAMPLE POLICY
As a full-time employee of ABC Company, you may qualify for tuition reimbursement.
The Company will reimburse you fully for tuition, fees, and books for courses taken that are
directly related to improvement of relevant job skills with the Company. This policy also
covers all courses taken to fulfill the requirements of a degree program approved by your
manager. All reimbursements are subject to the approval of your supervisor or manager and
the Human Resources Manager.

All tuition reimbursements must be requested in writing and approved prior to beginning
the course. Reimbursement may be subject to taxes. To qualify for reimbursement, you
must receive a passing grade and you must be an employee in good standing at the time of
reimbursement. Courses must be taken at times other than during scheduled working hours.
Proof of passing grade or certificate of satisfactory course completion and receipts for
tuition, fees, and books must be turned in to the Human Resources Department in order to
receive your reimbursement.

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Chapter 9

Hours of work
and overtime

The wage and hour laws applicable to Oregon employers are vast, complicated, and ever-
changing. It is strongly advised that all employers consult with legal counsel about the wage and
hour policies and laws that apply specifically to them. All Oregon employers, for example, are
required to have two postings at their places of employment regarding the minimum wage and
other applicable laws under the federal Fair Labor Standards Act (FLSA) or its Oregon equivalent
(found in Oregon Revised Statutes Chapters 652, 653 and elsewhere). Copies of the FLSA- and
Oregon-required postings can be printed and downloaded for free at: www.boli.state.or.us/
BOLI/CRD/C_Postings.shtml.

Further, depending on the type of workers employed (exempt versus non-exempt, minors,
agriculture workers, manufacturing workers, employees subject to a collective bargaining
agreement, etc.), some or all of the policies provided in this section, or the wage and hour laws
described in this chapter, may not apply. Again, Oregon employers are strongly advised to
consult with legal counsel regarding which laws and which policies apply and/or are not required.

Hours of work
It is essential that every employer adopt a policy defining its workweek and normal office and
production hours. If applicable, different shifts also may be described. Employers are free to
define the workweek as starting on any day and time; once established, however, the employer
should not change the defined workweek except for a legitimate business reason. The defined
workweek will help determine when an employee has worked more than 40 hours a week for
overtime purposes.

Meal periods and rest breaks


In addition to a policy that identifies an employer’s workweek, employers should also
have a policy advising employees of any meal periods, rest breaks or other breaks to
which they are entitled by law.

Oregon law requires employers to provide nonexempt employees with rest breaks and
meal periods at specific times, depending on how long an employee works in a given shift.
For example, the typical adult, non-exempt employee whose work period is eight hours
long must receive at least one unpaid, 30-minute meal period during the middle of the shift
and two paid, 10-minute rest breaks at other times during the course of his shift. In the
sample policy that follows, the number of each meal period and/or rest breaks an

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Hours of work and overtime

employee may take per shift worked is included. Note that this policy does not address
the break laws applicable to minors, and would need to be modified to specify the meal
and break periods unique to minors. Minors must receive at least a 30-minute meal
period no later than five hours and one minute after beginning work. In addition, minors
must receive paid, uninterrupted rest breaks of at least 15 minutes for each four-hour
segment worked.

Effective January 12, 2009, Oregon employers became obligated to follow new state
administrative rules regarding meal periods and rest breaks. Specifically, the regulations
identifies circumstances in which employers are not required to provide the full 30-minute
meal period and/or relieve an employee completely from duty. Under the new rule, an
employer who does not provide an employee with a 30-minute meal period in which the
employee is relieved of all duties must be able to demonstrate that:

• failure to provide a meal period was caused by unforeseeable equipment failures,


acts of nature or other exceptional and unanticipated circumstances that only
rarely and temporarily preclude the provision of a meal period

or

• industry practice or custom has established a paid meal period of less than 30
minutes (but no less than 20 minutes) during which the employee is relieved of all
duties

or

• providing a 30-minute, unpaid meal period where the employee is relieved of all
duties

would impose an undue hardship on the operation of the employer’s business.

When an employer can demonstrate that providing an employee a meal period would
impose an undue hardship on the operation of the business and does not provide the full
30-minute meal period, employees must still be provided with adequate time to consume
a meal, to rest, and to use the restroom and must be paid for this time; this is in addition
to all rest periods required by rule for the number of hours worked on any given shift. In
addition, the employer must give notice to each employee affected by the undue hardship
provision on a form prescribed by BOLI and maintain a record of that notice. A copy of
the notice is included at the end of this chapter and can be downloaded from:
www.oregon.gov/BOLI/WHD/docs/WH-161.pdf (a Spanish version can be found at:
www.oregon.gov/BOLI/WHD/docs/WH-161S.pdf ).

As used in the revised meal period rule, undue hardship means: “significant difficulty or
expense when considered in relation to the size, financial resources, nature or structure of
the employer’s business.”

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Hours of work and overtime

SAMPLE POLICY

Workweek

The workweek is Monday at 12:00 a.m. through Sunday at 11:59 p.m. Day (first) shift is
from 7:00 a.m. to 3:00 p.m. Evening (second) shift is from 3:00 p.m. to 11:00 p.m. Night
(third) shift is from 11:00 p.m. to 7:00 a.m.

Break and Meal Periods

Nonexempt employees are required to take a paid, uninterrupted 10-minute rest break for
every four-hour segment or major portion thereof in the work period. The rest break should
be given in the middle of each segment, whenever possible. Whenever a segment exceeds
two hours, the employer must take a rest break for that segment.
Nonexempt employees are required to take at least a 30-minute unpaid meal period when
the work period is six hours or greater. The law requires an uninterrupted period in which
the employee is relieved of all duties. No meal period is required if the work period is less
than six hours. If, because of the nature or circumstances of the work, an employee is
required to remain on duty or to perform any tasks during the meal period, the employee
must inform his or her supervisor before the end of the shift so that the Company may pay
the employee for that work.

These breaks are mandatory and are not optional. An employee’s lunch hour and rest
break(s) may not be taken together as one break. Meals and rest breaks may not be
“skipped” in lieu of leaving early. An employee who fails to abide by these policies and
laws may be subjected to discipline, up to and including termination.

Sample rest and meal break schedules are listed below. If an employee has questions about
the rest or meal breaks available to him or her, she should contact the Human Resources
Department immediately.

Number of rest Number of meal


Length of work period breaks required periods required
2 hours or less 0 0
2 hrs., 1 min. – 5 hrs., 59 min. 1 0
6 hrs. 1 1
6 hrs., 1 min. – 10 hrs. 2 1
10 hrs., 1 min. – 13 hrs., 59 min. 3 1

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Hours of work and overtime

“UNDUE HARDSHIP” NOTICE TO EMPLOYEES


REGARDING MEAL AND REST PERIODS

Pursuant to OAR 839-020-0050 (www.oregon.gov/BOLI/LEGAL/docs/Meal_and_Rest_


Periods_Final_Rule_January2009.pdf), employers are required to provide their employees with
meal periods of at least 30 minutes of uninterrupted time in which the employee is relieved of all
duties for work periods of at least six hours.

There are some exceptions to this requirement. One exception provides that employers that can
show that providing a meal period would impose an “undue hardship” on the operation of the
employer’s business are not required to provide 30-minute uninterrupted meal periods.

Employers claiming an undue hardship exception must still provide employees with adequate
time to consume a meal, rest, and use the restroom, and employees must be paid for this time. In
addition, effective March 16, 2009, employers must provide a copy of a notice to each
employee affected by the undue hardship provision in the language used by the employer to
communicate with the employee on a form prescribed by BOLI. Employers are required to
retain and keep available to the commissioner a copy of the notice for the duration of the
employee’s employment and for no less than six months after the termination date of the
employee.

The required notices are available at www.oregon.gov/BOLI/WHD/docs/WH-161.pdf


(English) and www.oregon.gov/BOLI/WHD/docs/WH-161S.pdf (Spanish) or upon
request from any BOLI office.

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Hours of work and overtime

NOTICE TO EMPLOYEES REGARDING MEAL AND REST PERIODS

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Hours of work and overtime

Restaurant and beverage service industries


Beginning January 1st 2008, employees who earn and report tips to employers
can now waive their right to a 30-minute meal break. The waiver, however, is
effective only when the employer and employee sign a BOLI-approved waiver
each time the a waiver is sought. See the form at the end of this chapter, or
download the form from: www.oregon.gov/BOLI/LEGAL/docs/ mealwaiver.pdf

New hires may not seek a waiver until they have worked seven calendar days.
Further, employees who work over six hours in a shift and waive their right to a
30-minute break must still be provided the opportunity to consume food while
continuing to work, as well as be paid for this time. Employees are unable to
waive their mandatory, paid, 10-minute break periods for work shifts of 4 hours
or more. If the employee works 8 hours or more, a 30-minute break is mandatory
and can not be waived.

Employers who employ individuals who earn and report tips should consider
modifying the sample policy above to state that waivers of the meal period will be
granted if the employee signs the waiver form, and that employees who waive
their meal periods and do not sign waiver forms will be subjected to discipline, up
to and including termination.

Employees expressing breast milk


Oregon employers who employ 25 or more employees in the State of Oregon
must provide reasonable rest periods to accommodate an employee who needs to
express milk for her child 18 months of age or younger. This translates into no
less than 30 minutes during each four-hour work period. Employers are not
required to pay the employee for the full 30-minute rest period, and they are not
required to provide employees with an additional ten-minute paid rest break in
addition to the 30-minute period – employers, however, must pay the employee
for the usual 10-minute break period (leaving the other 20 minutes unpaid).

An employer subject to the breast milk break law, ORS 653.077, must make a
reasonable effort to provide the employee with a private location within close
proximity to the employee’s work area to express milk. BOLI states that a
“private location” is “a place, other than a public restroom or toilet stall, in close
proximity to the employee’s work station, where the employee may express milk
concealed from view and without intrusion by other employees or the public. This
could include:

• the employee’s work area

• a room connected to a public restroom (such as a lounge)

• a child care facility

• an empty or unused office

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Hours of work and overtime

• conference room

• storage space.

Finally, employers must allow the employee to bring a cooler or other insulated
container to store the expressed milk (or use a publicly available refrigerator to do
so, if one is offered to other employees for the storage of food, beverages, etc.).

SAMPLE POLICY
Nursing mothers may take a thirty-minute rest period to express milk during each four-hour
work period. These rest periods shall, if feasible, be taken at the same time as rest periods
that are otherwise provided to the employee. Company will try to provide employees who
take breaks to express milk with additional hours to make up for the breaks to the extent
they are unpaid. Company will make reasonable efforts to provide the employee with a
private location within close proximity to the employee’s work area to express milk. Please
provide two weeks’ notice to your supervisor if you intend to express milk during work
hours so arrangements can be made to accommodate your needs.

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Hours of work and overtime

REQUEST AND AGREEMENT TO WAIVE MEAL PERIODS

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Hours of work and overtime

Timekeeping requirements
Under Oregon wage and hour law and its federal counterpart, the Fair Labor Standards Act
(FLSA), employers must keep accurate records of all hours worked by their non-exempt
employees. A timekeeping provision such as the sample policy can help facilitate compliance
with these requirements.

While the sample policy also can be used with time clocks, there is no legal requirement that such
clocks be used – as opposed to other means – to record non-exempt work time. The FLSA
merely requires that such time be recorded and kept accurately by the employer. An employer
may not delay payment of an employee’s wages, even if the employee fails to submit timesheets
as required.

SAMPLE POLICY
All non-exempt employees must accurately record time worked on a time card for payroll
purposes. Employees are required to record their own time at the beginning and end of each
work period, including before and after the lunch break. Employees also must record their
time whenever they leave the building for any reason other than Company business. Filling
out another employee’s time card, allowing another employee to fill out your time card, or
altering any time card will be grounds for discipline up to and including termination. An
employee who fails to record his or her time may be subjected to discipline as well.

Salaried exempt employees also may be required to record their time on either a time card
or time sheet.

Any errors on your time card should be reported immediately to your supervisor, who will
attempt to promptly correct legitimate errors.

Overtime
Employers must comply with the requirements of Oregon law and the FLSA concerning overtime
premium pay for non-exempt employees. A well-written and legally sound overtime policy may
assist the employer in complying with this statute. Non-exempt employees are entitled to
receive a premium rate of one and one-half times the employee’s regular rate of pay for hours
actually worked in excess of 40 per predefined workweek. The provision for double time pay
for holiday work in the sample policy is optional. Salaried exempt employees are not entitled to
overtime pay under the FLSA.

Under current law, employers are obligated to pay overtime premiums if they knew or had
reason to believe that employees were working overtime hours, even if the hours worked were
not specifically authorized by the employer. It is therefore recommended that employers include
a requirement that overtime hours be authorized in advance. This rule should be enforced
consistently and impartially. Then, if an employee works unauthorized overtime, although it will

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Hours of work and overtime

not excuse the employer from paying the employee for that time, the employee will be subject to
discipline under the employer’s policy.

There is no requirement under the law to pay employees “double time” under any situation. The
following sample policy includes a double time provision for illustrative purposes only.

SAMPLE POLICY
Time-and-a-half

The Company pays one and one-half times a non-exempt employee’s hourly rate for all
hours worked over 40 in any workweek. Non-exempt employees are those who work in
positions for which an overtime premium must be paid under the Fair Labor Standards Act.

Double Time

The Company pays two times a non-exempt employee’s hourly rate for all hours worked on
any Company-designated holiday.

Limitation on Overtime Pay

Overtime pay (premium rates) shall not be paid twice for the same hours (pyramiding).
Paid hours not actually worked (for example, vacation, holidays, etc.) will not be counted
toward the 40 per workweek required to receive overtime pay.

Assignment of Overtime Work

When overtime work is required by the Company on a particular job on a shift commencing
on a day other than Saturday, Sunday, or a holiday, the non-exempt employee performing
that job at the conclusion of his or her straight-time hours will normally be expected to
continue to perform the job on an overtime basis. When overtime work is assigned by the
Company on a Saturday, Sunday, or holiday, it generally will be assigned in order of
seniority to the employees who regularly perform the particular work involved.

When overtime is required by the Company on a Sunday or on a holiday, the Company will
endeavor to give the employees required to work notice of their assignment during their last
shift worked prior to such Sunday or Holiday.

Supervisor Authorization

No overtime may be worked by (non-exempt) employees unless specifically authorized by


supervision or management. Any violations of this policy shall subject the offending
employee to discipline under the Company’s progressive discipline policy.

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Hours of work and overtime

Direct deposit
Oregon law does not clearly specify whether an employer may require all employees to use
direct deposit. Under Oregon law, “an employer and an employee may agree to authorize an
employer” to pay wages due to the employee by direct deposit. BOLI, however, interprets this
language to mean that an employer is prohibited from changing the method of transmitting wages
to an employee without the employee’s consent. In other words, an employer, according to
BOLI, may not require the direct deposit of paychecks for employees who previously received
those wages in some other form unless the employee gives voluntary consent in order to use
direct deposits (or electronic transfers) for pay purposes. Neither the law nor BOLI explicitly
prohibit employers from requiring all new hires to use direct deposit, or to make direct deposit a
condition of employment for job applicants (assuming the employer had given prior notice to the
prospective employees that direct deposit would be required as a condition of employment).

Employers who use direct deposit should be mindful of the following:

• the law requires that any direct deposit of wages be “without discount,” meaning that the
employer may not charge or deduct any fee for the electronic transaction

• even if employers and employees use direct deposit, the employer remains obligated to
provide employees with an itemized wage statement at each payday

• the strict deadlines for paying an employee’s final wages upon termination are not altered
because of the use of direct deposit. The law states that a final paycheck may be paid by
direct deposit “provided the employee and the employer have agreed to such deposit.”

Employers should consult with their payroll providers to determine what type of information is
needed from an employee to ensure that direct deposit is successful. The attached sample
payroll direct deposit form is for illustrative purposes only.

This chapter also includes a sample employee payroll change notice, and a salary change
recommendation form, both of which may fall under Oregon’s “personnel records” statute.

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Hours of work and overtime

PAYROLL DIRECT DEPOSIT FORM

DATE:

(Employee’s Name)

I hereby authorize the payroll direct deposit actions described below.

(Employee’s Signature)

ACCOUNT TYPE & NUMBER ACTION TO BE TAKEN NEW TOTAL


DEDUCTION
EACH
PAY PERIOD
CHECKING  Begin Direct Deposit $
 Change Direct Deposit
____ ____ ____ ____ ____ ____ ____
(Account Number)
 Cancel Direct Deposit
____ ____ ____ ____ ____ ____ ____
(Bank Routing Number)

(Bank Name) (Bank Location/City)


SAVINGS  Begin Direct Deposit $
 Change Direct Deposit
____ ____ ____ ____ ____ ____ ____
(Account Number)
 Cancel Direct Deposit
____ ____ ____ ____ ____ ____ ____
(Bank Routing Number)

(Bank Name) (Bank Location/City)

PLEASE ATTACH A COPY OF DEPOSIT SLIP(S) AND RETURN TO PAYROLL


DEPARTMENT.

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Hours of work and overtime

EMPLOYEE PAYROLL CHANGE NOTICE

Name: Payroll No.:

Department: Employee No.:

Effective Date:

Change of:

 Name  Leave of Absence  Completion of Training


 Address  Workers’ Compensation  Benefit Coverage
 Telephone Number  Military  Authorized Deduction
 Marital Status  Educational  Separation from Employment
 Wage Rate  Jury Duty
 Department  Medical and/or Family Leave
 Position Purpose:
 Emergency Contact
 Full-Time/Part-Time Status

FROM TO

Date: Submitted by:


(Supervisor)

Date: Received by:


(Personnel/Payroll)

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Hours of work and overtime

SALARY CHANGE RECOMMENDATION FORM

EMPLOYEE NAME _______________________________________________________________

EMPLOYEE # HIRE DATE ______________________________

DEPARTMENT PERFORMANCE RATING___________________________

PRESENT SALARY_________________JOB GRADE__________TITLE __________________

RECOMMENDED SALARY________________JOB GRADE_______TITLE _______________

AMOUNT/PERCENT/DATE OF INCREASE / / _______________

AMOUNT/PERCENT/DATE OF PREVIOUS INCREASE / / _________

REASON FOR INCREASE:  MERIT  PROMOTION  EQUITY  OTHER

STATUS:  EXEMPT  NONEXEMPT

EFFECTIVE DATE OF INCREASE __________________________________________________

COMMENTS: ____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

SUPERVISOR SIGNATURE_______________________________ DATE _______________

MANAGER SIGNATURE _________________________________ DATE _______________

EXECUTIVE SIGNATURE________________________________ DATE _______________

PERSONNEL SIGNATURE _______________________________ DATE _______________

DATE NEXT ELIGIBLE FOR INCREASE:___________________

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Hours of work and overtime

Payroll advances
As a general matter, Oregon employers are best served by not allowing employees to take payroll
advances. If an employer chooses to have a policy allowing such advances, it may wish to
include the policy, with an explanation of the conditions and requirements for receiving such
advances, in the employer’s written policies.

SAMPLE POLICY
No payroll advances are permitted by the Company against paychecks or unaccrued
vacation.

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Hours of work and overtime

220
Chapter 10

Performance reviews,
promotion and layoff

There is no law requiring employers to provide performance reviews. It is simply a good


management practice, and most employers conduct periodic performance reviews of their
employees. Employers should adopt a policy advising employees how often they will be
reviewed, and on what bases. An effective review tells an employee whether they are meeting or
exceeding performance goals, identifies any performance problems, and encourages employees to
improve their performance. A performance review should not be the only feedback that an
employee receives, however – it is simply one tool that an employer has to manage its
employees. Finally, accurate and thoughtful documentation regarding an individual employee’s
performance is invaluable in litigation, whether defending against claims based upon
discrimination, wrongful termination, or any other disparate treatment theory.

The employer should attempt to consistently follow the procedures outlined in its performance
review policy. Employees should be required to date and sign the evaluation form not to indicate
agreement with its contents, but rather to acknowledge that they have received and reviewed the
contents of the evaluation form. Each evaluation form should also contain space for the
employee to respond to it; if the employee does not respond to the evaluation form in writing, a
court or jury may consider this decision an acquiescence or agreement to the contents of the
review.

Performance reviews should be tied directly to the goals of the department or division for which
the employee works and reflect goals previously communicated to the individual employee. For
example, if an employee is expected to meet a certain production level, that level should be
communicated to the employee at the beginning of the evaluation period, and progress towards
that goal should be evaluated in the review.

Performance reviews must accurately document not only an employee’s strengths and skills, but
also any unsatisfactory work performance or disciplinary problems. An inaccurate review is
worse than no review in many circumstances. A court may not believe that an employee’s poor
performance led to a termination decision when the performance reviews do not reflect that poor
performance, and rate the employee as an “average” performer. Finally, all performance reviews
should be reviewed by Human Resources for consistency and any legal issues prior to being
communicated to the employee. Each employer should decide on whether additional approvals
of the performance evaluations are appropriate (for example, what managers or executive officers
should sign off on the reviews).

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Performance reviews, promotion and layoff

A number of different types of performance reviews are included, below. Some of the reviews
utilize a point system, while others are simply ask if the employee meets or exceeds
expectations. Review the different options, and choose which performance review format is
most appropriate for your work environment.

SAMPLE POLICY
All ABC Company employees will receive periodic performance reviews. Your review will
be conducted by your supervisor who will discuss it with you. Your first performance
evaluation will be after completion of your orientation period. After that review,
performance evaluations will be conducted annually, on or about the anniversary date of
your employment with the Company

Your performance evaluation will include factors such as the quality and quantity of your
work, your attendance record, your knowledge of the job, your initiative, your work
attitude, and your attitude toward others. The performance evaluation should help you to
become aware of your progress, areas of needed improvement, and objectives or goals for
future work performance. Positive performance evaluations do not guarantee increases in
compensation or promotions. After the review, you will be provided an opportunity to
respond to the review, and will be asked to sign the written evaluation simply to
acknowledge that it has been presented to you and discussed with you by your supervisor
and that you are aware of its contents.

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Performance reviews, promotion and layoff

PERFORMANCE APPRAISAL

Review Date: _______________________________ Date In Job: ______________________________

Name:_____________________________________ Division: ________________________________

Department: ________________________________ Job Title: ________________________________

Officer Title: _______________________________

EXPLANATION OF RATINGS
Below Expectancy (Substandard)
0 = Unsatisfactory – Performance is consistently below acceptable standards.
Immediate and substantial improvement required.
1 = Marginal – Performance is slightly below acceptable standards. Improvement is
needed to meet acceptable standards.
Meets Expectancy (Acceptable Standards)
2 = Minimally Satisfactory – Performance meets minimum acceptable standards.
Improvement necessary for consistent acceptable performance.
3 = Fully Satisfactory – Performance consistently meets acceptable standards.
Above Expectancy (Above Standard)
4 = Above Average – Performance is frequently above acceptable standards.
5 = Exceptional – Performance is outstanding and consistently exceeds acceptable
standards.
NR = Not Rated – Performance not observed or not applicable. Explanation required.
(For each performance factor, circle the appropriate rating.)
I. GENERAL PERFORMANCE FACTORS
RATING FACTOR

0 1 2 3 4 5 A. Technical Competency - Demonstrated knowledge and understanding of


all phases of the job.
NR
Explanation of Rating ______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________

0 1 2 3 4 5 B. Quantity of Work - Volume of work performed in relation to job


requirements.
NR
Explanation of Rating: ______________________________________
______________________________________
______________________________________
______________________________________
______________________________________
______________________________________

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Performance reviews, promotion and layoff

0 1 2 3 4 5 C. Quality of Work - Accuracy and thoroughness of work performed.

NR
Explanation of Rating: ____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________

0 1 2 3 4 5 D. Work Planning - Ability to analyze assignments and establish priorities


for achievement of objectives.
NR
Explanation of Rating: ____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________

0 1 2 3 4 5 E. Cooperation - Relationship with co-workers in performing assignments


and ability to accept assignments willingly.
NR
Explanation of Rating: ____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________

0 1 2 3 4 5 F. Communication - Effectiveness of written and oral communication skills


with coworkers and/or customers in the performance of duties.
NR
Explanation of Rating: ____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
II. SUPERVISORY PERFORMANCE

0 1 2 3 4 5 A. Productivity Effectiveness - Performance in directing assigned work


group in achieving work objectives.
0 1 2 3 4 5 B. Problem-Solving Ability - Performance of supervisor in resolving work
related and employee-related problems.
0 1 2 3 4 5 C. Development of Subordinates - Effective training and motivation of
subordinates.
0 1 2 3 4 5 D. Policy Compliance and Communication - Adherence to and
communication of policies, procedures, benefits, etc., to subordinates.

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Performance reviews, promotion and layoff

III. ATTENDANCE/TARDINESS

Days Absent Days Tardy  Acceptable


 Needs Improvement
 Unacceptable

***NOTE – DO NOT CONSIDER THE EMPLOYEE’S ABSENCES THAT WERE EXCUSED OR COVERED
BY THE FAMILY AND MEDICAL LEAVE ACT OR ANY OTHER FEDERAL OR STATE LAW.***

Comments: (any “Needs Improvement” or “Unacceptable” rating requires comments)


____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________

IV. SUMMARY COMMENTS

A. Employee’s significant strong points:

B. Employee’s significant weak points:

C. Necessary improvements:

D. Development of future potential:

E. If applicable, describe the employee’s contributions to achieving the department/division


profit plan objectives in the following areas:

(1) Business development/income generation -

(2) Reduction of expenses -

(3) Other -

F. Overall Assessment of employee’s performance 0 1 2 3 4 5

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Performance reviews, promotion and layoff

V. EMPLOYEE COMMENTS

Employee Comments:
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________

VI. SIGNATURES

Signature of Employee: _____________________________________ Date: ______________

Signature of Supervisor: _____________________________________ Date: ______________

Signature of Manager: _____________________________________ Date: ______________

Signature of Human Resources: _____________________________________ Date: ______________

NOTE: ALL APPLICABLE PERFORMANCE IMPROVEMENT PLANS SHOULD BE


ATTACHED IF OVERALL RATING IS LESS THAN EXPECTED LEVEL.

***THE COMPANY IS AN AT-WILL EMPLOYER, MEANING THAT EITHER THE


COMPANY OR EMPLOYEE CAN END THE EMPLOYMENT RELATIONSHIP AT
ANY TIME AND FOR ANY OR NO REASON. THE RATINGS REFLECTED BY
THIS FORM DO NOT ALTER THE PARTIES’ AT-WILL RELATIONSHIP.***

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Performance reviews, promotion and layoff

PERFORMANCE APPRAISAL SUMMARY

Name ___________________________ Title __________________ Grade _____ Date ________

Location _________________________ Division ____________________ Department ___________

Date Employed in Present Position _________________ Date of Last Review ____________________

Appraising Supervisor/Manager____________________ Reviewed By __________________________

SECTION 1
KEY JOB Using the job position description as a guide list below the major elements
RESPONSIBILITIES: or key responsibilities of the position. Consider the major responsibilities or
objectives for the period being reviewed.
____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

SECTION 2
Needs
Outstanding Excellent Effective Improvement Unsatisfactory
5 4 3 2 1

FACTORS Evaluate the effectiveness of the


AFFECTING employee’s behaviors in the
areas listed below for the period
PERFORMANCE covered by this report.
AND POTENTIAL: Complete the comment sections
to support your evaluation

JOB UNDERSTANDING: How well does the


employee demonstrate an understanding of the
total duties and tasks required for satisfactory
performance and demonstrate technical
competence in the job? Consider evidence of
short/long term planning, coaching, delegating,
cost/profit consciousness, and behaviors
demonstrating commitment to and an awareness of
the regulated aspects of the job (safety, affirmative
action, environmental concerns, etc.)
COMMENT:

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Performance reviews, promotion and layoff

Needs
Outstanding Excellent Effective Improvement Unsatisfactory
5 4 3 2 1

ANALYTICAL SKILLS: How well does the


employee perform the analytical aspects of the job?
Consider effectiveness in problem identification
analysis of possible solutions, working with
appropriate resources, and taking initiative and
demonstrating innovation, creativity and balanced
judgment. Consider ability to observe and remain
alert to changing conditions that affect the work.

COMMENT:

INTERPERSONAL
SKILLS/COMMUNICATION: How well does
the employee communicate both orally and in
written form? How well does he/she listen and
express thoughts and ideas clearly? Consider the
abilities to work well with groups with superiors,
peers or subordinates to be persuasive.
COMMENT:

DEVELOPMENT PLAN
Please indicate career/development plans discussed with employee. Be sure to include any program/seminar titles, dates, etc.

PARTICULAR STRENGTHS:

AREAS NEEDING ATTENTION:

CAREER/DEVELOPMENT PLAN
Indicate career/development plans discussed with employee. Be sure to include any special project responsibility, program/seminar
titles, dates, etc.

PARTICULAR STRENGTHS:

AREAS NEEDING ATTENTION:

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Performance reviews, promotion and layoff

OVERALL EVALUATION OF PERFORMANCE: Considering both the performance against objectives and the
evaluations given on the section of Factors Affecting Performance, please indicate by checking the appropriate box your overall appraisal of this
individual’s contribution, and note supporting comments.

5 4 3 2 1
Outstanding Exceeds Meets Needs Unsatisfactory
Standards Standards Improvement

COMMENTS SUMMARIZING PERFORMANCE BASED ON DISCUSSIONS AND SUPPORTING


PERFORMANCE EVALUATION

EMPLOYEE COMMENTS:____________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________

Date Signature of Appraising Supervisor/Manager

Date Signature of Employee

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Performance reviews, promotion and layoff

PERFORMANCE APPRAISAL

PLEASE PRINT

Employee Name Title

Department Employee #

Reason for Review Annual Promotion Peer Appraisal Unsatisfactory


Performance
Merit End of Introductory Period Other

Date employee began present position / / Date of last appraisal / /______


Scheduled appraisal date / /______

Instructions: Carefully evaluate employee’s work performance in relation to the essential functions of the job.
Check rating box to indicate the employee’s performance. Indicate N/A if not applicable. Assign points for each
rating within the scale and write that number in the corresponding points box. Points will be totaled and averaged
for an overall performance score.

Definitions of Performance Ratings


O – Outstanding – Performance is exceptional in all areas and I – Improvement Needed – Performance
is recognizable as being far superior to others. deficient in certain areas. Improvement is
necessary.

V – Very Good – Results clearly exceed most position U – Unsatisfactory – Results are generally
requirements. Performance is of high quality unacceptable and require immediate
and is achieved on a consistent basis. improvement. No merit increase should
be granted to individuals with this rating.
G – Good – Competent and dependable level of performance.
Meets performance standards of the job. N/A – Not Applicable or too soon to rate.

General Factors Rating Supportive Details or


Comments
1. Quality – The extent to which O 100-90 Points
an employee’s work is accurate, V 89-80
thorough and neat. G 79-70
I 69-60
U Below 60
1
2. Productivity – The extent to O 100-90 Points
which an employee produces a V 89-80
significant volume of work G 79-70
efficiently in a specified period of I 69-60
time. U Below 60

3. Job Knowledge – The extent O 100-90 Points


to which an employee possesses V 89-80
the practical/technical knowledge G 79-70
required on the job. I 69-60
U Below 60

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Performance reviews, promotion and layoff

4. Reliability – The extent to O 100-90 Points


which an employee can be relied V 89-80
upon regarding task completion G 79-70
and follow-up. I 69-60
U Below 60
5. Attendance – The extent to O 100-90 Points
which an employee is punctual, V 89-80
observes prescribed work G 79-70
break/meal periods and has an I 69-60
acceptable overall attendance U Below 60
record.
6. Independence – The extent to O 100-90 Points
which an employee performs V 89-80
work with little or no supervision. G 79-70
I 69-60
U Below 60
7. Creativity – The extent to O 100-90 Points
which an employee proposes V 89-80
ideas, finds new and better ways G 79-70
of doing things. I 69-60
U Below 60
8. Initiative – The extent to O 100-90 Points
which an employee seeks out new V 89-80
assignments and assumes G 79-70
additional duties when necessary. I 69-60
U Below 60
9. Adherence to Policy – The O 100-90 Points
extent to which an employee V 89-80
follows safety and conduct rules, G 79-70
other regulations and adheres to I 69-60
company policies. U Below 60
10. Interpersonal O 100-90 Points
Relationships – The extent to V 89-80
which an employee is willing and G 79-70
demonstrates the ability to I 69-60
cooperate, work, and U Below 60
communicate with coworkers,
supervisors, subordinates, and/or
outside contacts.
11. Judgment – The extent to O 100-90 Points
which an employee demonstrates V 89-80
proper judgment and decision- G 79-70
making skills when necessary. I 69-60
U Below 60

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Performance reviews, promotion and layoff

Rate employee’s overall performance in comparison to position duties and responsibilities.


Outstanding 100 - 90
Very Good 89 - 80
Good 79 - 70
Improvement Needed 69 - 60
Unsatisfactory Below 60

Total Points ÷ Number of Factors Rated = Overall Rating

Complete all of the following sections.


1. Accomplishments or new abilities demonstrated since last review: _____________________________

________________________________________________________________________________

________________________________________________________________________________

2. Specific areas of needed improvement: __________________________________________________

________________________________________________________________________________

________________________________________________________________________________

3. Recommendations for professional development (seminars, training, schooling, etc.): ______________

________________________________________________________________________________

________________________________________________________________________________

4. Absences: Number of incidents _______________ Number of days ____________________________

Additional Employee Comments ___________________________________________________________

_______________________________________________________________________________________

Discussed with individual on ___/___/___ Employee’s Signature*


*I acknowledge that this Performance Appraisal was discussed with me.

Follow-up requested/desired Yes No Follow-up Date ___/___/___

Evaluator’s Signature Date ___/___/___

***THE COMPANY IS AN AT-WILL EMPLOYER, MEANING THAT EITHER THE COMPANY OR


EMPLOYEE CAN END THE EMPLOYMENT RELATIONSHIP AT ANY TIME AND FOR ANY OR
NO REASON. THE RATINGS REFLECTED BY THIS FORM DO NOT ALTER THE PARTIES’ AT-
WILL RELATIONSHIP.***

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Performance reviews, promotion and layoff

PERFORMANCE EVALUATION

EVALUATOR:
NAME: OFFICE:

POSITION: REVIEW Annual

DATE OF EMPLOYMENT: DATE PREPARED:

Before beginning this evaluation, you should carefully review the criteria to be considered for each rating
category given below and the instructions on the reverse side of the form. You should support ratings
with appropriate performance-based comments.

EXPECTATION CATEGORY
ABOVE AT BELOW
QUALITY OF WORK. Work meets quality requirements of
accuracy, thoroughness, and neatness. Staff member plans ahead.

QUALITY OF WORK. Volume, speed of output

KNOWLEDGE OF POSITION. Extent of information and


understanding possessed by staff member in own particular field.

INITIATIVE. Extent to which staff member is a “self starter” in


attaining work objectives. Does the staff member work effectively
in the absence of detailed instruction? Does the staff member
contribute new ideas?

ADAPTABILITY. Ability to learn new duties and adjust to new


situations.

DEPENDABILITY. Extent to which you can depend on staff


member to report on time, stay on job, carry out instructions, follow
assignments through to completion.

WRITTEN AND ORAL COMMUNICATION. Ability to convey


information in an efficient, coherent, and courteous manner via
telephone, written work, etc.

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Performance reviews, promotion and layoff

EXPECTATION
CATEGORY

ABOVE AT BELOW
INTERPERSONAL RELATIONSHIPS. Cooperation with others;
tactfulness; ability to get along with co-workers and superiors.

ATTITUDE. Staff member is a team player. Cooperation is given


fully; does not waste time when he/she could assist others. Exhibits
a positive attitude towards firm, administration, and coworkers.
Shows initiative. Interacts well with coworkers.

ATTENDANCE. Conscientious about attendance and punctuality


(sick leave, tardiness, breaks, etc.) DO NOT CONSIDER
ABSENCES COVERED BY THE FAMILY & MEDICAL LEAVE
ACT OR OTHER APPLICABLE FEDERAL OR STATE LAW.

OTHER COMMENTS:

SIGNATURES

EMPLOYEE __________________________________ DATE ____________________

EVALUATOR __________________________________ DATE ____________________

HUMAN RESOURCES _________________________________ DATE ____________________

INSTRUCTIONS FOR COMPLETING THE PERFORMANCE EVALUATION

This performance evaluation is to serve as a record of performance and accomplishments during the past
12 months. Its purpose is to summarize the information necessary to report the individual’s current
performance and to assist you and others in effectively developing and counseling the staff member.
This evaluation will also be used in selecting qualified individuals for further assignments and in
administering an equitable compensation program. This performance evaluation should be discussed
with each employee. Your ratings and comments should be kept as objective as possible. Please note
that “at expectation” completely describes satisfactory performance.

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Performance reviews, promotion and layoff

RATINGS
The following descriptions will help you in using the rating scale. The basis for performance ratings
should be indicated in the comments section.

Above Indicates exceptional performance that consistently exceeds the quality and quantity
Expectation requirements of the position. Very little, if any, supervision or guidance is required in
daily work.

At Indicates performance that consistently meets the requirements of the position. Works
Expectation very well with a minimum of supervision. This evaluation will be that normally used to
describe performance of high quality that meets the standards of the firm.

Below Indicates performance that requires improvement. If this category is used, there should
Expectation be specific comments regarding how performance is to be improved.

No Write “No Basis” in the section if the evaluator is unable to appraise the performance of
Basis the individual due to the nature of the individual’s assignment.

OTHER COMMENTS BY EVALUATOR


Additional comments or observations not previously made with respect to the rating, either exceptional
performance or recommendations for improvements, may be made in the space provided.
Recommendations for improvements should be directed to specific areas in which the staff member may
improve performance.

***THE COMPANY IS AN AT-WILL EMPLOYER, MEANING THAT EITHER THE


COMPANY OR EMPLOYEE CAN END THE EMPLOYMENT RELATIONSHIP AT ANY
TIME AND FOR ANY OR NO REASONS. THE RATINGS REFLECTED BY THIS FORM DO
NOT ALTER THE PARTIES’ AT-WILL RELATIONSHIP.***

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Performance reviews, promotion and layoff

Compensation reviews
Some employers choose to adopt a compensation review policy to advise employees of the
probable timing of compensation increases and the factors that the employer will consider in
making wage increase determinations. There is no requirement that such a policy be adopted, but
if it is, the employer must be diligent about following the policy or risk affecting employee
morale and the employer’s ability to defend against a later discrimination claim, such as an Equal
Pay Act action. A compensation review policy should be flexible, and make clear to employees
that any changes in compensation are within the sole discretion of the employer.

SAMPLE POLICY
Your compensation will be reviewed on a regular basis by your manager and the Company.
Such reviews generally are conducted on at least an annual basis and typically follow your
annual performance appraisal.

The amount and frequency of any compensation increase you may receive will be based
upon your job performance, the profitability of the Company, the amount of your present
salary or wage in relation to the minimum and maximum of the compensation range
assigned to your job, the length of time since your last increase, and any other factor which
the Company considers appropriate. Any decision to increase or change an individual
employee’s compensation rests within the sole discretion of the Company.

Promotions and transfers


Employers often prefer to promote or transfer employees “from within.” This practice can
increase employee morale, provide opportunities for advancement, and provide an incentive to
employees to improve work performance. There is no requirement that a formal policy
explaining this practice be adopted. If adopted, however, the policy should be consistently
followed while preserving the employer’s option to publicly advertise positions and/or pursue an
outside candidate for open positions.

SAMPLE POLICY
It is the policy of the ABC Company to fill all positions with the best qualified people. The
Company also prefers to promote from within. As positions become available, management
may, at its discretion, either directly promote or transfer a qualified employee of the
Company or open the position for application by internal and external candidates.

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Performance reviews, promotion and layoff

At the Company’s discretion, open positions will be posted on the official Company bulletin
boards for at least five work days. The required qualifications for each open job will be
indicated on the listing. Frequently, job vacancies will be advertised with outside sources
during the same week they are posted on the bulletin boards. This is done to speed up the
screening process and to aid in ensuring that vacancies are filled by the most qualified
persons.

To apply for a position, you should submit a formal application for the position to Human
Resources referencing the position and requesting an interview.

Layoff and recall


Layoff policies should not be adopted lightly. Prior to adopting a layoff policy, an employer
should consult legal counsel and seriously consider whether such a policy is necessary. A layoff
policy may be appropriate for an employer that experiences significant seasonal or cyclical
changes in the size of its workforce. For employers with a constant workforce size, a layoff
policy may not be appropriate and could be problematic. Accordingly, a layoff policy is not for
every employer.

The specific details of the selection process should not be included in a layoff policy. At most, a
layoff policy should advise employees of the general criteria that will be considered, including
whether seniority will be a factor, and maintain the Company’s discretion in the decision making
process.

Inherent in any layoff, reduction in force, or recall is the risk of a claim of unlawful
discrimination. In determining which employees will be affected by the layoff (or conversely,
recalled), an employer should consider only legitimate, business-related criteria, such as the
business needs of the Company, the skills and abilities of the individual employees, objective,
non-biased performance evaluations, and all other factors being equal, seniority. Documentation
of the decision-making process by the employer is also critical in rebutting a claim of
discrimination related to a layoff or recall. To the extent possible, then, the employer should
document the business needs it is considering, the evaluation of how the skills, abilities and
performance of individual employees fit into those needs, and the ultimate decision. Prior to the
final decision being made, the Company should review the selection criteria, selected employees,
and impact of the decisions to determine whether a discriminatory disparate impact will result to
any protected category or whether any other issues arise that could increase litigation risks.
Employers should follow a similar process in connection with any recall.

An employer with 100 or more employees facing the possibility of a significant layoff or plant
closing should contact an attorney to ensure compliance with the federal Worker Adjustment and
Retraining Notification Act (WARN). WARN requires certain prior notice obligations to covered
employers if an employment site (one or more facilities or operating units within an employment
site) will be shut down, and the shutdown will result in an employment loss for 50 or more
employees during any 30-day period. Employers may be subjected to substantial penalties if
WARN’s notice requirements are not followed.

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Performance reviews, promotion and layoff

Because of the legal requirements of WARN and the potential for litigation associated with any
layoff, employers should consider consulting with legal counsel prior to any layoff.

SAMPLE POLICY
Under some circumstances, ABC Company may need to restructure its operations or reduce
its workforce. If possible, employees subject to layoff will be informed of the nature of the
layoff and the foreseeable duration of the layoff, whether short-term or indefinite.

In determining which employees will be subject to layoff, the Company will consider,
among other things, operational requirements; the skill, productivity, past performance, and
attendance of those involved.

When workload increases to the extent that additional employees are needed, the Company
may recall individuals according to these same selection criteria. The Company reserves
the right to hire new employees during a layoff period when required skills for the work at
hand are not available without training among the laid-off employees.

All Company benefits will terminate at the time of layoff. Insurance coverage, though not
provided, will remain available under the provisions of COBRA. Information concerning
employee rights under COBRA is available from the Human Resources Department.

If an employee on layoff has fulfilled the orientation period requirements at the time of
layoff, and the employee is recalled by the Company and returns to work within 90 calendar
days of the date of layoff, benefits and time of service will be fully reinstated on the date of
return to work. This rule does not apply to the group insurance plan, the terms of which
will be governed by the actual group insurance contract in effect at the time the employee
returns to work.

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Chapter 11

Confidentiality and
conflicts of interest

Confidentiality of company information


Depending on the work environment and the employee’s access to confidential information, a
statement in one form or another may be essential to safeguarding the employer’s proprietary
information. While a written confidentiality policy does not have the same legal force as a
confidentiality agreement, it will nonetheless serve to remind employees of the company’s
expectation that certain information will not be disclosed to others outside the business or used
by employees to their own advantage. Employees with access to trade secret, proprietary
information, and/or other intellectual property of the Company should be required to sign a Non-
Disclosure Agreement. Your legal counsel can advise you of whether such an agreement is
warranted in your workplace. Even if employees are required to sign an NDA or other
agreement, a confidentiality policy is still beneficial.

SAMPLE POLICY
(Option 1)

Except as is necessary for the proper performance of their duties for ABC Company, employees
shall not, for any reason, either directly or indirectly, disclose to any person or entity outside of
ABC Company, or use nay Confidential Information of ABC Company, either during their
employment with ABC Company or at any time following termination of that employment.

“Confidential Information” means nonpublic information relating to ABC Company or its


business. Examples include, but are not limited to, the following: data, materials, research results,
product formulas, customer or supplier lists, business plans, marketing plans, and financial
information. “Confidential Information” may or may not be patentable.

“Confidential Information” includes the existence and terms of any negotiations, agreements,
and/or business relationships involving ABC Company and others.

“Confidential Information” does not include information that: (a) is publicly available other than
as a result of improper disclosure by ABC Company employees; (b) an employee can
convincingly show was known to him or her before its receipt from the Company; (c) is received

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Confidentiality and conflicts of interest

on a nonconfidential basis from a third party; or (d) is approved in writing by ABC Company’s
President for release or is otherwise excluded from the definition of Confidential Information with
the employee.

ABC Company employees shall, at all times, take all precautions necessary to protect from loss
or disclosure any and all documents or other information containing, referring to, or relating to
Confidential Information.

Care is especially important in the are of electronic communications. All ABC Company
employees are required to use all reasonable and necessary means to ensure that electronic
transmissions containing or relating to Confidential Information are not compromised. These
methods include, but are not limited to, the use of firewalls, data encryption, anti-virus software,
and any other electronic programs that would facilitate protection of Confidential Information.

Upon separation with ABC Company, employees must promptly return any and all documents,
files, records, notes, lists, or other tangible items, whether in hard copy or on computer disk,
containing, referring, or relating to Confidential Information.

In addition, all ABC Company employees will be required to sign an agreement concerning the
protection of Confidential Information upon their date of hire. This agreement will be provided
to each employee to sign upon the employee’s initial employment.

Ownership of Intellectual Property

ABC Company employees may create or develop intellectual property in the course of their
employment with the Company. Some examples of intellectual property are:

• Inventions, whether patentable or unpatentable;

• Materials that are subject to copyright;

• Brands, logos, and other trademarks or service marks;

• Software

Intellectual Property that employees create in the course of their employment belongs to ABC
Company. The agreement that each employee signs protecting Confidential Information also
assigns ownership of this intellectual property to ABC Company.

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Confidentiality and conflicts of interest

SAMPLE POLICY
(Option 2)

Confidentiality
During the course of your employment with the Company, you may be exposed to
confidential information regarding the company or its business (e.g., customer lists and
requirements, sales figures, pricing, products, business systems, future plans, R&D data,
personnel issues, etc.). You may even from time to time, receive phone calls and inquiries
from the press, manufacturers’ sales representatives and other outside parties about our
expanding role in new markets. Maintaining the confidentiality of the Company’s
nonpublic information is extremely important to our competitive position in the industry
and ultimately, to our ability to achieve financial success and provide employment stability.
You must protect all confidential information of the Company by safeguarding it when in
use, filing it properly when not in use, and discussing or otherwise disclosing it only with or
to those who have a legitimate need to know related to the Company’s business.

If you should be questioned about any aspect of the company that is not generally
known to the public concerning the company’s products, sales, future plans, present
technology, programs, or any other matter, and if you have not been specifically
identified as a “corporate spokesperson,” please refer the caller to your supervisor or
to a member of the Management Team.

Note: If there are specific types of “confidential information” that apply to your industry or
business, list them in the policy.

Confidentiality of employee information


Effective October 1, 2007, all Oregon employers became required by law to safeguard an
employee’s confidential information pursuant to the Oregon Consumer Identity Theft Protection
Act (“the Act”).

Protecting Social Security Numbers


The Act prohibits the public display or disclosure of more than the last four digits of a
social security number. For example, if a card or other materials are required to access the
business’s products or services, a person’s social security number may not be printed on
those materials. The Act does not apply to the use of social security numbers for internal
verification or administrative purposes. In addition, the Act does not apply to records
that are required by law to be made publicly available.

Notification of a security breach


This provision of the Act applies to any business, organization, or individual that
maintains or possesses an Oregon resident’s personal information that is used in the

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Confidentiality and conflicts of interest

course of business. Personal information includes social security numbers, driver’s license
numbers, passport numbers, financial account numbers, and credit card numbers.

Under the Act, if a business’s computer files containing personal information have been
subject to a security breach, the business must notify the affected individuals. The
notification must be done in the most expeditious time possible, consistent with the needs
and investigation of law enforcement. Employers should consult with their legal counsel
to determine what form of notice, and the contents of that notice, best complies with the
Act’s requirements.

If a security breach affects more than 1,000 individuals, the business must notify, without
unreasonable delay, all consumer reporting agencies regarding the timing, distribution, and
content of the notification given by the business to the individuals. The business must
include the police report number, if available. If a business determines, after appropriate
investigation or consultation with law enforcement, that the affected individuals are not
likely to be harmed by the security breach, the business need not notify the individuals.
Such a determination must be documented in writing, and the documentation must be
maintained for five years.

Safeguarding personal information


Effective January 1, 2008, businesses or organizations that maintain or possess an
individual’s personal information must develop, implement, and maintain reasonable
safeguards to protect the security, confidentiality, and integrity of employees’ personal
information. The Act includes guidelines for compliance, and suggests options for an
information security program that includes administrative, technical, and physical
safeguards; consult with legal counsel about a best practices approach for safeguarding
personal information and complying with the Act.

There is no established set of practices that each business must follow to comply with
the Act. Instead, the legislature has recognized that adequate safeguards will vary from
business to business depending on the size and technical nature of the business. Some
examples of ways to safeguard confidential information include the following:

• Paper documents containing confidential information should be stored in locked


cabinets, and access to the locked cabinets should be limited to a few employees.
Any employee with a key who leaves the company should return the key. In
addition, businesses should adopt and maintain document-retention schedules so
that confidential information is regularly destroyed when no longer needed.

• Businesses should restrict access to electronic confidential information to a small


number of designated people, and the information should be password-protected.

• Businesses that contract with an IT company should ensure that the IT company
spells out its sufficient safeguards in the contract with the business. Similarly, it
would be a good idea to obtain information in writing from hardware and software
suppliers regarding the safeguards used to protect confidential information.

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Confidentiality and conflicts of interest

• Many security breaches occur when laptops are stolen. A business might consider
prohibiting employees from storing confidential information on business laptops
and instead require that such information be stored on the server.

• Businesses should establish a written procedure for identifying and responding to


security breaches.

• Businesses might consider providing a locked box for the disposal of paper
documents containing confidential information. Documents in the locked box could
then be shredded on a regular basis by a designated employee or shredding service.

Any business that is subject to and complies with Title V of the Gramm-Leach-Bliley Act of
1999, or the Health Insurance Portability and Accountability Act of 1996 is also in compliance
with the Act.

An owner of a small business (defined as a manufacturing business having 200 or fewer


employees and all other forms of business having 50 or fewer employees) may adopt measures
appropriate to its size and activities and the sensitivity of the information collected.

Conflicts of interest
Conflicts of interest are a growing concern to all employers. A conflict could arise from an
employee performing services for a competitor, maintaining an ownership interest in a customer,
competitor or other company, or an employee whose second job interferes with his or her job
performance. No matter the origin of the conflict, if detrimental conflicts of interest are likely to
arise, an employer should consider adopting a conflict of interest policy.

Such a policy cannot impose an otherwise unenforceable covenant not to compete, and can only
address conflicts that arise during the employment relationship. Competitive activity by a former
employee is not precluded by such a policy. Only conduct by current employees can be
addressed.

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Confidentiality and conflicts of interest

SAMPLE POLICY
It is the objective of ABC Company to maintain an organization guided and governed by the
highest standards of conduct and ethics. The reputation of the Company is a direct
reflection of the business conduct of all who work for it.

To protect and enhance our reputation, the Company requires that all employees be guided
by the highest standard of conduct in their business contacts and relationships.

The following examples have been deemed to involve a conflict of interest that violates
Company policy:

1. Serving as an employee, officer, director, or consultant for a customer, client, or


supplier of materials or services, or competitor of the Company.

2. Holding by an employee or an immediate family member of an employee (including


father, mother, brother, sister, son, daughter, husband, or wife) any financial interest
in the business of any customer, client, supplier of materials or services, or
competitor of the Company. This does not include a financial interest in widely held
corporations that are quoted and sold on the open market, unless the amount held is
in excess of 10 percent of the outstanding stock of that corporation or the stock held
has a value representing more than 10 percent of the individual’s personal net worth.
3. Borrowing money from or lending money to any current or prospective customer,
client, supplier of materials or services, or competitor of the Company other than
recognized financial institutions, for example, banks, credit unions, etc.

4. Accepting gifts, entertainment, or anything of value from any current or prospective


customer, client, supplier of materials or services, or competitor of the Company,
other than minor Christmas or holiday gifts, occasional meals, and entertainment of a
nominal nature.
5. Doing any work or providing any other assistance to a current or prospective client,
supplier of materials or services, or competitor.

It is important to avoid not only any situation that is an obvious conflict of interest such as
those listed above, but also any situation that might give the appearance of being a conflict
of interest. Failure to report any questionable item and/or obtain prior written approval
may have serious consequences up to and including termination and legal action.

If you have any questions concerning this subject, please contact Company management.

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Confidentiality and conflicts of interest

Social security numbers


Employees are often asked for their social security numbers in the employment context. Indeed,
many employers rely upon social security numbers as a de facto “employee identification
number” used throughout the employment relationship, including pay stubs, health insurance
forms, and personnel action forms. More and more, employees and employers are becoming
concerned about this practice as disclosure and dissemination of an employee’s social security
number could contribute to identity theft. Accordingly, a few states have already adopted
legislation prohibiting such use of social security numbers, and requiring that if social security
numbers are used, at most, only the last four digits can be printed on any document mailed or
transmitted to the employee (with the exception of tax reporting documents, of course).

Employers should consider either adopting a policy that provides employees with an alternative
employee identification number or not requesting or using an employee’s social security number
except as required by law.

When discarding old personnel files or other information that may contain private employee
information, including social security numbers and health information, employers should take
measures to ensure that the documents are actually destroyed (burned or shredded) and not
simply discarded.

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Confidentiality and conflicts of interest

246
Chapter 12

Complaint-reporting
procedures

In addition to the complaint reporting procedure available to employees with complaints about
harassment (discussed in Chapter 6, EEO policies), an employee handbook should also contain
a complaint reporting procedure to address other work-related complaints. Such a procedure can
be as simple as an “open door policy” or as detailed as a formalized complaint process; sample
complaint reporting procedures are included in this chapter.

Employers subject to the Sarbanes-Oxley Act of 2002 may also have a legal reason to include a
complaint reporting procedure in their employee handbooks. The Sarbanes-Oxley Act created
whistleblower protections for employees of publicly traded companies, and provides that a
publicly traded company or any “officer, employee, contractor, subcontractor, or agent” of such
company may not “demote, suspend, threaten, harass, or in any other manner discriminate
against an employee in the terms or conditions of employment” because of any lawful act done
by the employee:

• to provide information, cause information to be provided, or otherwise assist in an


investigation regarding any conduct which the employee reasonably believes constitutes a
violation [of federal securities law or SEC rules and regulations], or any provision of
Federal law relating to fraud against shareholders, when the information or assistance is
provided to or the investigation is conducted by:

a Federal regulatory or law enforcement agency

or

any Member of Congress or any committee of Congress

or

a person with supervisory authority over the employee (or such other person
working for the employer who has the authority to investigate, discover, or
terminate misconduct)

or

• to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or
about to be filed (with any knowledge of the employer) relating to an alleged violation of

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Complaint-reporting procedures

[federal securities law or the SEC rules and regulations], or any provision of Federal law
relating to fraud against shareholders.

Thus, under the Act, employers may not take any kind of retaliatory conduct, or harass, or
discriminate against any employee who reports a suspected violation to his/her supervisor or
another person with the ability to investigate the suspected wrongdoing. An employer’s
inclusion of a complaint-reporting procedure in its employee handbook may assist Oregon
employers in defending against Sarbanes-Oxley complaints, because the employer can show it
was open and receptive to employee complaints. An employer who does not include a
complaint-reporting procedure in its handbook could be viewed as intolerant of whistleblowers.

Further, an employee who has access to an internal complaint procedure may be less likely to
turn to an outside agency or legal assistance prior to following that procedure, regardless of
whether the issue is discrimination, working conditions, or overtime compliance. If an employee
fails to take advantage of internal grievance procedures, quits, and then attempts to initiate
litigation, the employee’s failure to utilize an internal complaint reporting procedure that is fair
and consistently applied can be a strong piece of evidence for an employer. Further, the
information an employee provides during a complaint reporting procedure may be of value to an
employer if the employee later sues the employer (because the information provided, such as a
written complaint, may very likely be used against the employee during the lawsuit).

Note that employers with employees subject to a collective bargaining agreement may already
have a grievance procedure in place, due to its including in the agreement. Because grievance
procedures in a collective bargaining agreement typically place limits on what may be grieved, an
Oregon employer may still wish to include a separate complaint reporting procedure in its
handbook that covers all work-related issues.

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Complaint-reporting procedures

SAMPLE POLICY
(Option 1)

Problem-Solving Procedure

ABC Company is concerned with any situation affecting the employment relationship. The
Company is committed to correcting any condition or situation that may cause unfairness or
misunderstanding. It is inevitable that problems and misunderstandings may occur.
Therefore, the Company has provided an orderly manner for an employee to voice an
opinion or discuss a problem with management without prejudice or fear of retaliation.

If an employee has a problem or complaint, the employee should discuss it with his or her
immediate supervisor as soon as possible.

If the problem is not satisfactorily resolved or the problem is with the supervisor, the
employee has the right to discuss it with his or her department manager.

If the problem still is not satisfactorily resolved, the employee then has the right to discuss it
with the Human Resources manager.

In the event the problem still has not been satisfactorily resolved, the employee has the right
to discuss it with the president of the Company for a final resolution. The Human
Resources manager will assist the employee (if requested) in the presentation of the
problem to the president.

Not all complaints can be resolved to everyone’s satisfaction. However, in each case, the
reason for the decision will be clearly explained to the employee. Also, Human Resources
personnel are available, at any time, to discuss and/or provide assistance on any complaint,
problem, or concern that an employee may have.

No one may criticize you, penalize you, or treat you differently in any way for using this
procedure.

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Complaint-reporting procedures

SAMPLE POLICY
(Option 2)

Problem-Solving Procedure

ABC Company intends to treat each employee fairly. We will do all we reasonably can to
make this a good place to work. If you have a problem or complaint concerning your
employment, or if you believe you are not being treated fairly, you are expected to take the
appropriate steps, as set forth below, to see that the matter is resolved. Remember, even if
you think your supervisor should be aware of your problem, your problem may not be
resolved unless and until you take the appropriate steps.

Procedure

1. First Step. Any problem or complaint concerning wages, hours, working


conditions, fair treatment, or other work-related matters ordinarily should be raised
first with your immediate supervisor. It is important that any problem be discussed
with your supervisor immediately – if possible within three working days of the date
you first learn of the basis for your complaint.

You may, if you wish, file a formal grievance concerning any complaint about
wages, hours, working conditions, fair treatment, or other work-related matters.
You have the option of writing up the grievance yourself or, if you wish, having
another employee or your supervisor write up the grievance. Once written, the
grievance should be given to your supervisor.

Your supervisor will then discuss the grievance with you in an effort to resolve your
grievance, unless you wish to proceed directly to the Second Step for any reason.

2. Second Step. There may be times when the nature of a particular problem is such
that you do not feel you can discuss it with your supervisor, your supervisor does not
give you a prompt answer, or your supervisor does not give you a satisfactory
answer. If so, then you should take your problem directly to the facility manager by
arranging an appointment with him or her.

The manager will attempt to resolve your concerns as well. The facility manager
also will make a record of the discussion, which will be submitted to the president
within 24 hours.

3. Third Step. If your problem or complaint has still not been resolved to your
satisfaction in the Second Step within three working days, then you should take your
problem directly to the president of the Company by arranging an appointment with
him or her.

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Complaint-reporting procedures

The president will give you an answer within 24 hours of the discussion, or if he or
she is away from Company premises on business, within 24 hours of his of her
return. The president’s decision on any grievance or complaint will be final.

No Recrimination Statement

No one may criticize you, penalize you, or treat you differently in any way for using this
fair treatment procedure.

This procedure is not intended to prevent you from discussing any matter with any level of
management, including the president, at any time, but you are encouraged to follow the
procedure as set forth in the First, Second, and Third Steps of this policy.

SAMPLE OPEN DOOR POLICY

ABC Company’s Open Door Policy is based on our belief that issues are best addressed
through informal and open communication. All employees are encouraged to raise their
work-related concerns informally with their supervisor or with any supervisor of their
choice as soon as possible after an event that causes concern. ABC Company is also
interested in employees’ constructive ideas and suggestions for improving our business.
Employees are encouraged to express their ideas and suggestions.

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Complaint-reporting procedures

252
Chapter 13

Personnel records and


recordkeeping requirements

Definition of “personnel records”


Oregon law defines “personnel records” to include records related to:

• hiring, promotion, demotion or termination decisions

• pay raises or pay cuts

• performance evaluations, disciplinary notices or warnings.

There are many good reasons to include all “personnel records” in one place, or to be fully aware
of where “personnel records” may be within your organization. The Oregon Bureau of Labor and
Industries (BOLI) takes the position that even a “sticky note” attached to a day planner may be
a “personnel record” if it directs the employee’s supervisor to discipline or fire the employee,
and such a note may need to be produced. This is also true whenever a supervisor or manager
keeps his or her own files on particular employees, even if the records are identical to those
found in the personnel file maintained in the human resources department.

Several types of records should not be maintained in a personnel file containing “personnel
records.” This includes:

• Medical records, including records relating to leaves of absences, workers’ compensation


claims and injuries, and other related documents.

• Communications from the company’s attorney or in-house counsel regarding a particular


employee.

• Payroll records, including timesheets and pay-stubs, if not used to make employment
decisions about the employee.

• Records of an individual relating to the conviction, arrest or investigation of conduct


constituting a violation of the criminal laws of Oregon or another state, confidential
references or reports from previous employers, certain records related to the State Board
of Higher Education maintained in compliance with ORS 351.065. ORS 652.750(1)(b).

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Personnel records and recordkeeping requirements

• I-9 Forms. If your company is audited, and the Immigration and Naturalization Service
(INS) asks to see your I-9 forms, you will be preserving the confidentiality of your
employees’ “personnel records” by keeping those records separate from the I-9 forms
(because you may be asked to deliver or allow for inspection the entire file).

Finally, once a document becomes part of an employee’s “personnel records”, leave it there. It is
not advisable to remove documents once they are made part of an employee’s official record.
Further, it is not advisable to allow employees the opportunity to “correct” any documents
contained in his or her “personnel records.” The better practice is to allow the employee the
opportunity to provide a “rebuttal” or other statement regarding his or her performance or other
employment action with which the employee disagrees.

Employee access to personnel records


Oregon law requires employers to provide an employee with the opportunity, upon request, to
view or receive a copy of his or her “personnel records” within 45 days of receiving an
employee’s request. Failure to do so could result in penalties or other fines.

Because the definition of “personnel records” is somewhat narrow, an employer is not required
to produce every record relating to an employee, simply because the employee or his or her
attorney request it (unless a valid subpoena accompanies it). For example, an employee is not
entitled to receive copies of his or her payroll records. Records relating to a leave of absence are
not required to be produced, either. In the absence of a subpoena, employers should not produce
records regarding any other employee to a former employee or his or her attorney. Regardless,
employers should assess every request for records on an individualized basis, and possibly
consult with legal counsel, as there may be some strategic reasons for producing documents that
fall outside of the definition of “personnel records.”

If an employee requests a “certified” copy of his or her “personnel records,” no formal or legal
certification of the records is required. It is best to simply have someone in the human resources
department or an office manager sign a statement indicating that he or she believes she is
providing a true and correct copy of the employee’s personnel file. Employers may charge
employees a reasonable photocopying fee.

Employers are strongly advised to protect the confidential nature of an employee’s “personnel
records” by limiting access to those individuals with a need to know (such as a supervisor or
manager), and by keeping the “personnel records” in a safe place with limited access (such as a
locked filing cabinet).

Record review policies


In Oregon, an employer has a legal obligation to permit an employee to examine his or
her employment records. In addition, the federal Occupational Safety and Health Act (OSHA)
entitles employees who are exposed to toxic substances or harmful physical agents to access
certain medical and related records. The sample policy provides a good example of a means to
allow employees such access to their employment files.

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Personnel records and recordkeeping requirements

From a legal standpoint, the employee recourse provision in the sample policy below may be
helpful in defending a claim of an employee who reviewed his or her personnel file without
formally challenging any of its contents. This provision may be used to argue that the employee
had no disagreement with any of the negative information contained in his or her file when that
information forms the basis for the adverse employment decision over which the employee’s
legal claim is asserted.

SAMPLE POLICY
Examination of Pay Records

An employee may examine time sheets and any other records relevant to proper
computation of his or her pay or benefits with reasonable notice. Employee will not be paid
for the time spent reviewing pay records, so employees should make arrangements to view
such records during non-working hours and during regular business hours.

Examination of Personnel Records

An employee may examine the records in his or her personnel file relating to the employee’s
hiring, promotion, discipline, performance evaluations, disciplinary notices or warnings or
other terms and conditions of employment at any reasonable non-working time during
regular business hours. Employees seeking additional information about their employment
history or records should consult with the Human Resources Department.

Arrangements for Examination of Records

For the protection of all, and to maintain employee privacy, records may be examined only
in accordance with the following safeguards:
1. An employee’s records may be examined only by the employee, the employee’s
supervisor or manager, or those supervisory personnel with a legitimate need to
know.

2. Records may be examined by appointment and prior arrangement with your


supervisor and the Human Resources department.

3. Records may be examined only in the Human Resources office and in the presence of
a designated Company representative.

4. No record may be removed from the Human Resources office, or an employee’s


personnel file, even temporarily.

5. Employees may receive copies of any documents in their file at a cost of $.20 per
page copied.

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Personnel records and recordkeeping requirements

Employee Recourse

If an employee disagrees with any of the information in his or her file or records, then the
employee may explain his or her position by submitting a written, signed statement to the
Human Resources department. That statement will become a permanent part of the
employee’s personnel file.

Examination of Medical Records

The Occupational Safety and Health Act provides that employees exposed to toxic
substances or harmful physical agents have a right of access to medical records, exposure
records, and analysis prepared from such records. Copies of all medical records, exposure
records, and each analysis produced from the records may be obtained upon request to the
Human Resources department.

If you wish to have any other person see your medical records, you must execute a written
authorization on a specific form available upon request from the Human Resources
department.

Furnishing Information to Third Parties

The Company assumes no obligation to furnish information about any employee to any
third party (other than to verify his or her current employment). An employee who desires
that the Company furnish certain information to a third party may file a written request to
that effect with the Human Resources department. The employee may be required to
execute a release before the Company will disclose certain information to third parties.

Recommended recordkeeping
periods for employment records
Various state and federal laws, and court interpretations of those laws, require Oregon employers
to maintain various personnel and employment-related records for particular periods of time.
Some of the primary record retention periods, and the minimum recordkeeping periods for each,
are described below.

With respect to the documents described in the box entitled, Records relating to
discrimination claims, it is recommended that Oregon employers retain these records for three
years. Although some of the statutes listed provide for a one-year statutes of limitations, some
of the other statutes provide for a three-year statutes of limitations. Thus, to simplify matters
and to avoid mistakes, Oregon employers should generally keep personnel records for a period of
three years.

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Personnel records and recordkeeping requirements

Records related to discrimination claims


Type of records Retention period Notes

Employment and personnel records, 3 years required Leave of


including: (over 6 years absence records
recommended. do not include
• applications for employment FMLA/ OFLA-
when applicant is not hired and related medical
other materials related to the records in an
hiring process; employee’s
personnel file.
• demotions; They should be
• discipline, including kept
suspensions, warnings, etc. separately, and
• evaluations; for the three-
• job advertisements year time
period
• layoffs; applicable to
• leave of absence records, non-medical
including leave requests, leave of absence
documentation of leave taken, records
etc.
• promotions;
• rate of pay (i.e., documents
explaining payment differential
for employees of the opposite
sex);
• reassignments;
• requests for reasonable
accommodations;
• terminations;
• tests;
• training records;
• transfers;
• unemployment claims.

Personnel files and records 60 days after


termination, per Oregon
law. But, given the
possibility of a one- to
three-year statute of
limitations for
discrimination claims
under federal and state
law, Oregon employers
are advised to retain
personnel records for
three years.

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Personnel records and recordkeeping requirements

Type of records Retention period Notes

Workers’ compensation records, Three years after an Do not include


including records of light duty injured worker’s right to an employee’s
assignments, communications with reinstatement expires. medical records
employees about light duty in a personnel
assignments and other work file or with
restrictions. other workers’
compensation
records. These
should be kept
in a separate,
private location
and for three
years after an
injured
worker’s right
to
reinstatement
expires.

Payroll, wage and hour, overtime records


Type of records Retention period Notes

Payroll records of all types, 3 years


including time cards, time sheets, (federal law).
records of commissions, etc.
6 years (Oregon law).

Thus, Oregon
employers are advised
to retain all payroll
records for 6 (six) years.

Occupational safety records


Type of records Retention period Notes

Log, summary of occupational 5 years.


injuries and illnesses (OSHA Forms
101, 200, 300, 301)

Employee medical records relating 30 years after


to on-the-job injuries termination.

Employee exposure records and 30 years.


analyses using exposure or medical
records

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Personnel records and recordkeeping requirements

Affirmative action information


Type of records Retention period Notes

Information necessary to complete While current. Different


EEO-1 Form, including a copy of retention laws apply to
the EEO-1 Form submitted (whether covered federal
electronically or in paper format) contractors, depending
on the number of
employees employed.
Federal regulations
provide that the EEO-1
forms should be retained
in records separate from
employees’ basic
personnel or human
resource files.

Immigration records
Type of records Retention period Notes

I-9 Forms Full term of employment;


3 years after date of hire
or 1 year after employee
termination, whichever is
later.

Employee benefits records


Type of records Retention period Notes

Employee benefit plans, summary 6 years.


plan descriptions, records relating to
decisions affecting an employee’s
entitlement to benefits (“the
administrative record”).
Includes records relating to an
employee’s COBRA rights.

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Personnel records and recordkeeping requirements

Miscellaneous records
Type of records Retention period Notes

Background checks, printouts from Term of employee’s


consumer reporting agencies – all employment.
used for employment decisions.

Drug test results for transportation 1-5 years.


employees.

Collective bargaining agreements Indefinitely


and other documents impacted by
the National Labor Relations Act
(NLRA)

Records relating to an employee’s Indefinitely


leave of absence due to military
service

Contracts of employment, including 6 years.


contracts for the payment of wages.

260
Chapter 14

Miscellaneous issues

Employee suggestions
An employee suggestion policy is not legally mandated. Such policies are useful, however, as a
means of boosting employee morale and soliciting valuable employee input. Some employers
reward employee suggestions that lead to increased productivity or savings to the Company.

SAMPLE POLICY
We welcome your ideas and suggestions, no matter how unimportant they may seem to you.
Sometimes the most unusual or even the simplest suggestions are excellent cost-saving or
profit-producing ideas. Anything that will help to do the job better or more productively,
improve working conditions, provide better public relations, eliminate unnecessary
expenses, or increase our earnings will receive thorough consideration. Please give any
suggestions you might have to your supervisor or, if you prefer, to the Human Resources
department. Although not all ideas can be adopted, every effort will be made to adopt and
utilize any practical suggestion.

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Miscellaneous issues

EMPLOYEE SUGGESTION PROGRAM ENTRY FORM

DATE:__________________________

EMPLOYEE NAME:____________________ TIME:__________________________

TYPE OF SUGGESTION (check off all that apply):

❏ EXPENSE REDUCTION
❏ QUALITY IMPROVEMENT
❏ PRODUCTIVITY IMPROVEMENT
❏ REVENUE ENHANCEMENT

DESCRIBE IDEA:

ESTIMATE OF DOLLARS SAVED OR REVENUE INCREASE:

I RESPECTFULLY SUBMIT THIS IDEA UNDER THE TERMS OF THE PROGRAM


WITH THE FULL UNDERSTANDING THAT THE APPLICABILITY OF THE IDEA
AND THE AMOUNT OF THE AWARD IS SOLELY AT THE DISCRETION OF THE
AWARDS COMMITTEE.

SIGNATURE OF EMPLOYEE: DATE:

AWARDS COMMITTEE ACTION: APPROVED DECLINED

COMMENTS OF THE AWARDS COMMITTEE:

EXPECTED COMPLETION DATE:

AMOUNT OF AWARD: DATE OF PAYMENT:

TERMS OF PAYMENT: IN FULL INSTALLMENTS OF

SIGNATURES OF COMMITTEE:

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Miscellaneous issues

Reference requests
Employers must be extremely cautious when making references to prospective employers of
their current or former employees. Many employers adopt a policy of only confirming certain
limited information, set forth below, regarding its current or former employees. The employer
should designate one person (usually in Human Resources) to provide references, and all
employees should be informed of this policy.

Significant legal risks exist in providing inaccurate or misleading information about an employee
or former employee. Under Oregon law, employers disclosing such information are protected
from civil liability for information disclosed as part of a reference check, unless it is proved that
the information disclosed was known to be false at the time it was communicated.
Unfortunately, particularly where subjective information is communicated (such as the quality of
an employee’s job performance), this qualified immunity may offer employers little actual
protection from defamation lawsuits, even if it ultimately shields many employers from liability.
Employers have also found themselves defending claims of invasion of privacy and negligence
when deviating from this policy. Further, an employer who provides any information regarding
an employee’s performance cannot selectively provide only the good information regarding the
employee; once performance is discussed, the employer may have a duty to disclose any
problems with the employee’s performance, especially if the employee engaged in illegal conduct.

Thus, it is clearly safest from a legal standpoint to limit all references to an employee’s vital
statistics (such as: name, position, and dates of employment), unless the employer obtains a
release from the former employee permitting it to provide additional truthful and objective
information regarding the latter’s employment with the company. Even with a release, however,
the information disclosed must be truthful.

SAMPLE POLICY
(Option 1)

All requests for references must be directed to the Human Resources manager. No other
manager, supervisor, or employee is authorized to release references for current or former
employees. The Company’s policy as to references for employees who have left the
Company is to disclose only the dates of employment and the title of the last position held.

If the employee authorizes disclosure in writing, the Company also will provide a
prospective employer with the information on the amount of salary or wage you last earned.
No further information will be disclosed to third parties without an executed release holding
the Company and the third party harmless for such disclosure and its use.

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Miscellaneous issues

SAMPLE POLICY
(Option 2)

All requests for references must be directed to Human Resources. No other manager,
supervisor, employee is authorized to release references for current or former
employees. The Company’s policy as to references for employees who have left the
Company is to disclose only the dates of employment and the title of the position held. If
you authorize disclosure in writing, the Company also will provide a prospective employer
or creditor with the information on your last salary or wage at the Company, if allowed by
the Company.

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Miscellaneous issues

REFERENCE RELEASE FORM

Employee Reference Release

I, ___________________________________, agree to the release of the following information


concerning my employment with {Company Name}, as may be requested by prospective
employers:

Job Reference Information May Be Released May Not Be Released

1. Dates of Employment __________________ _____________________

2. Job Title(s) __________________ _____________________

3. Salary At Time of Termination __________________ _____________________

4. Attendance Record __________________ _____________________

5. Performance Review Ratings __________________ _____________________

6. Reason for Termination


❏ Resignation
❏ Resignation By Mutual Agreement
❏ Retirement
❏ Downsizing
❏ Discharged For _______________________________________________________
❏ Other (Be Specific) ____________________________________________________

7. Eligible for Rehire? ❏ Yes ❏ No

8. Other information that may be requested (be specific)_____________________________


________________________________________________________________________
________________________________________________________________________

Signed:

Employee_____________________________ Manager _________________________________

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Miscellaneous issues

Employment of relatives
Because employing relatives of current employees often leads to morale and work-relationship
problems in the workplace, many employers have anti-nepotism policies like the sample below.
Employers choosing to adopt such a policy should state that cases concerning the employment
of relatives will be dealt with on a case-by-case basis to ensure maximum flexibility in handling
such situations. The policy also should contain an explanation of why the employer discourages
the employment of relatives and should describe the circumstances and types of relationships
covered by the policy.

Employers who choose to adopt the sample policy below or one that is similar should be mindful
of ORS 659A.309, which prohibits employers from refusing to hire or employ an individual, or
discharging or discriminating against an individual, when the employer already employs another
member of that individual’s family (such as a spouse, son, daughter, mother, father, in-laws,
aunts, uncles, nieces, nephews, or stepparent or stepchildren). ORS 659A.309(2)(c) specifically
states, however, that it is not an unlawful employment practice to refuse to hire or employ, or to
discharge, an individual if it would place him or her “in a position of exercising supervisory,
appointment or grievance adjustment authority over a member of the individual’s family or in a
position of being subject to such authority which a member of the individual’s family exercises.”

SAMPLE POLICY
We are committed to hiring and retaining highly qualified persons. At the same time, we
recognize that, despite their qualifications, hiring and retaining close relatives of present
personnel might raise serious questions regarding the objectivity – or appearance of
objectivity – of work assignments, performance appraisals, and employee treatment. Our
employment policies, administered on a case-by-case basis, are based on balancing these
concerns.

We do not normally employ spouses (or domestic partners), parents, children, brothers,
sisters, or corresponding in-laws if:

1. They are seeking full-time, part-time, or temporary employment; and

2. Employment results or may result in having supervisory influence (actual or


perceived) over the relative’s evaluations and progress.

If an employee and a close relative work in the same office and one of them becomes a
manager with supervisory influence over the other, as described above, a transfer will most
likely be arranged. Also, if an employment arrangement may be perceived to violate our
guidelines prohibiting close relatives from having supervisory influence over one another, a
transfer also may be arranged. If a transfer is not feasible, the employees will have 30 days
to decide which relative will stay with the Company. If the employees do not make the

266
Miscellaneous issues

decision within the allotted period, the Company will make the decision based upon the
employment history and job performance of both employees, as well as the Company’s
needs.

Smoking
Effective January 1, 2009, all Oregon employers (regardless of size) must comply with revisions
to Oregon’s Smokefree Workplace Law (OSWL). The OSWL has some little-known provisions
that employers will quickly need to familiarize themselves with, such as the prohibition on
smoking in work vehicles that are not operated exclusively by one employee, and the requirement
that employers post signs prohibiting smoking in the workplace at all building entrances and exits
as required by law. Employers are encouraged to utilize free resources provided by the DHS
regarding the OSWL’s revisions, found at www.oregon.gov/DHS/ph/smokefree/index.shtml.

Nothing in the OSWL requires an employer to adopt a smokefree workplace policy. Regardless,
employers are well-advised to educate their employees about the OSWL, and to issue a list of
changes that will occur within the workplace because of the OSWL (if any). Some of those
changes could include identifying rooms, hallways, lounges or other areas where smoking is no
longer allowed, including the scope and a description of the new “smoke-free zone” that all
buildings must have effective January 1, 2009 (the OSWL prohibits smoking within 10 feet of
building entrances and other openings, including second-story windows). If applicable,
employers should identify which “employee lounges” (defined in ORS 433.850) may be used for
smoking. Further, because an employer may be subjected to criminal penalties for
noncompliance with the OSWL, an employer may wish to revise its progressive discipline policy
(if one is used) to clearly state that employees who violate any OSWL-compliant practices
within the workplace (such as smoking in the “smokefree zone”), or engage in activity that
violates the OSWL, may face discipline, up to and including discharge. Because the OSWL will
also impact customers who smoke in the workplace, employers should consider issuing
guidelines or providing training to employees about how to address customers who try to smoke
in the workplace.

The OSWL does not make it easier for an employer to discharge an employee simply because
that employee smokes. Oregon employers, for example, remain prohibited by statute from
requiring employees or applicants to refrain from using lawful tobacco products during
nonworking hours (except when the restriction relates to a bona fide occupational requirement or
pursuant to a collective bargaining agreement; see ORS 659A.315). Further, an employer who
discharges an employee for using the OSWL’s complaint reporting procedure will likely face a
retaliation claim or lawsuit under Oregon law.

But the law doesn’t completely strip an employer of its rights to lawfully discipline or discharge
a smoking employee who violates other rules of prohibited conduct. Certainly, disciplining or
discharging a smoking employee who does not follow the company’s implementation of an
OSWL-compliant “smokefree zone” or workplace would likely be permissible under the law.
And neither the OSWL nor Oregon law requires an employer to provide employees with a
designated “smoking break” (employers must still provide nonexempt employees, regardless of

267
Miscellaneous issues

their smoking status, with paid rest breaks in accordance with Oregon wage and hour law).
Similarly, employers may wish to consider publicizing and implementing a policy that prohibits
offensive odors or fragrances of any kind in the workplace, such as cigarette smoke or perfume,
particularly if that employer can demonstrate a legitimate reason for doing so (health care
environments, heavy interactions with customers, etc.) – just be sure to enforce such a policy
uniformly, and not just against the smokers.

SAMPLE POLICY
(Option 1)

All Company buildings are tobacco-free areas. Smoking is prohibited on work time. If you
wish to smoke during your lunch break or other breaks, you must do so outside the
Company buildings, only in designated smoking areas, and out of customer view. Smoking is
not allowed near the building entrances; Oregon law prohibits smoking within 10 feet of
building entrances and other openings, including second-story windows. The Company has
established staff smoking areas that your supervisor can show you.

SAMPLE POLICY
(Option 2)

Personal hygiene

All employees shall maintain a personal cleanliness of clothing and body, which presents a
professional and non-offensive appearance to patients and co-workers. It is Company’s
advice that each employee maintain cleanliness by bathing and washing with frequency as to
assure removal of accumulated soil and perspiration. Special attention should be given to the
appearance of hands so that they look neat and clean giving the impression that you are not
passing on unwanted bacteria. You should always make sure that offensive body odors are
controlled with the use of deodorants or anti-perspirants. Lastly, remember that our
Company works with customers-and employs employees-who have different types of
complications such as allergies so employees are expected to report to work free of
fragrance, colognes, after-shave lotions, and the smell of tobacco smoke.

Employees with questions about this policy should contact the Human Resources
Department. Violations of the personal hygiene policy may result in discipline, up to and
including termination of employment.

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Miscellaneous issues

Dress codes
Many employers have a specific dress code that employees are required to follow. Failure to
abide by the policy may subject the employee to the employer’s discipline policy. Employers
also may, if they choose, charge employees a reasonable cost to purchase company-provided
uniforms. It is obviously helpful to include such dress code requirements in the employer’s
written policies.

Although Oregon’s relatively new law prohibiting discrimination on the basis of sexual
orientation can, in some circumstances, affect an employer’s ability to impose a dress code based
on traditional gender considerations, the expressly permits employers to enforce an otherwise
valid dress code or policy, as long as the employer provides, on a case-by-case basis, for
reasonable accommodation of an individual based on the health and safety needs of the individual.

PROFESSIONAL APPEARANCE
We pride ourselves on hiring and retaining exceptional staff in all areas of our business. As
such, endless details regarding wardrobe are considered unnecessary. But, because we
regularly do business with a wide variety of people of all ages, backgrounds, and
professions, it is essential that all employees dress in a manner that communicates
professionalism and respect.

We expect that all staff will handle decisions in this area with sensitivity toward our scope
of business and our clientele: Good judgment should be the guideline. Dress should be in
accordance with a professional image and never disruptive or offensive to other employees
or visitors. Employees who report to work inappropriately dressed may be sent home to
change. Keep in mind that clothing with inappropriate content may violate the Company’s
anti-harassment policy. Further, any visual displays of undergarments (or the absence
thereof) would be inappropriate.

Questions about this topic can be addressed to the Human Resources Director. Violators of
this policy may be subject to discipline, up to and including termination.

Telephone usage
A telephone usage policy addresses how employees should interact with customers on the
telephone and stresses customer satisfaction. The sample policy might be better suited to office
personnel in a retail sales business than production workers in a manufacturing concern. Any
such policy should be drafted with attention to the particular employer’s needs and facilities.
See also page 87, Cell phone usage.

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Miscellaneous issues

SAMPLE POLICY
Courtesy and thoughtfulness in using the telephone are not only key elements in good
public relations, but serve as indicators of an employee’s attitude and competence. The
following guidelines are offered for good telephone manners:

1. Answer the telephone promptly within the first or second ring. The caller will
appreciate the promptness.

2. A good way to answer the telephone is to give the name of the department, then the
identification of the speaker.

3. It is better to offer to return a call than to keep the caller waiting for an indefinite
period of time.

4. Avoid needless transfer of calls; return a call rather than transfer the call when
uncertain of the person to whom the caller should speak.

5. When a caller leaves a name, number, and/or message, be sure it is recorded correctly
and given to the appropriate individual.

6. All employees should receive and place their own calls.

Because ABC Company’s goal is to serve its customers, it is important that the telephone
lines be kept as free as possible so as not to interrupt the daily flow of business. Thus,
personal telephone calls should be limited to those that are necessary and should be brief.
Personal long distance calls, when necessity requires, may be made only with specific
supervisor approval.

Inspection of property
Sometimes, employee safety, as well as the overall safety of the facility, can only be secured
through the search of company-owned property provided to employees for work-related
purposes. In some limited circumstances, an employer may need to search employee-owned
property brought onto the company’s premises. Employers also have an interest in maintaining
the integrity of their electronic equipment, including computers, voicemail, email and related
equipment. In order to protect the employer’s right to conduct workplace inspections and
searches, an employer should adopt a written policy describing such searches and reserving the
right to conduct workplace searches. This policy should be distributed to all employees.

The company’s policy should identify company-owned property available for employee use
subject to inspection. Employees should be placed on notice that the employer’s property
remains the property of the employer at all times even if the employee maintains possession of
it. As such, the property is subject to inspection by the employer at any time. Such a policy

270
Miscellaneous issues

will result in a lower expectation of privacy on the part of employees and will prevent them from
establishing that the company has committed an invasion of privacy in searching the property.

Employers also may reserve the right to inspect employees’ personal property upon reasonable
suspicion. It is critical that employees have advance notice of this employer right and that the
employer exercise it with due care and discretion. The written policy should define the
employees’ property that is subject to inspection. Reasonable suspicion must be based upon
specific objective facts and rational inferences drawn from those facts.

SAMPLE POLICY
(Option 1)

Employer Property

Cabinets, desks, vehicles, computer equipment, telephone equipment and the like, are
Company property and must be maintained according to Company rules and regulations.
They must be kept clean and are to be used for work-related purposes. The Company
reserves the right to inspect all Company property to ensure compliance with its rules and
regulations without notice to the employee and/or in the employee’s absence.

Voicemail and/or electronic mail are to be used for business purposes only. The Company
reserves the right to listen to voicemail messages and to access email messages as necessary
for business purposes, without notice to the employee and/or in the employee’s absence. It
may be necessary to assign and/or change “passwords” and personal codes for voicemail,
email, computer and other equipment. These items are to be used for Company business,
and they remain the property of the Company. Employees are required to provide all
passwords/codes used to the Company, and the Company may override any such password.

Prior authorization must be obtained before any Company property may be removed from
the premises other than in the normal course of business.

SAMPLE POLICY
(Option 2)

Lockers, vehicles, desks, and file cabinets are Company property and must be maintained
according to Company rules and regulations. They must be kept clean and are to be used
only for work-related purposes. To ensure compliance with its rules and regulations, the
Company reserves the right to inspect all Company property without prior notice to the
employee and/or in the employee’s absence.

Prior authorization must be obtained before any Company property may be removed from
the premises.

An employee’s personal property, including but not limited to tool boxes, packages, purses,
and vehicles, may be inspected upon reasonable suspicion of unauthorized possession of
Company property, weapons, or illegal drugs.

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Miscellaneous issues

Use of electronic media


Computer records and files, including e-mail, are considered “business records” subject to
disclosure in criminal investigations or litigation. E-mails can be vitally important in litigation,
regardless of whether the claim is discrimination, breach of contract, or a business dispute with a
customer. An e-mail that is considered simply a “funny joke” one day, can be used as evidence
of a discriminatory atmosphere against the employer at trial. Also, a comment sent as a sarcastic
remark may not appear to be so a year, or two, in the future when read and considered by a jury.
Accordingly, it is vitally important for any employer that provides email access to any of its
employees to adopt and enforce a computer usage and e-mail policy.

Computer equipment, including email systems, are provided by the employer for business-
related purposes. Courts have recognized an employer’s right to access e-mail messages – even
those sent in confidence – within the employer’s own computer system. Employers should put
employees on notice that their e-mail messages, computer files and usage may be monitored and
make reasonable efforts to ensure that use of electronic mail is not abused, including prompt and
thorough investigation of employee complaints of policy violations.

Two sample policies follow. The first sample policy addresses email only, and reserves to the
Company the right to search and access all email messages. The second sample policy addresses
not only electronic mail, but all forms of electronic media, including computer systems, hard
drives, internet usage and email. If employees are not provided with computers and internet
access, the first policy may be sufficient. For those workplaces, however, where employees
have computers and can access the internet, the second policy would be more appropriate. Both
policies, or parts thereof, may be combined.

SAMPLE POLICY

(Option 1)

This policy governs the use of the company’s e-mail system.

The Company provides e-mail to its employees to assist and facilitate business
communications. It is provided for legitimate business use in the course of your assigned
duties only. Inappropriate use may result in loss of e-mail privileges; disciplinary action, up
to and including employment termination; and/or legal action.

The e-mail system belongs to the company and may be used for business purposes only.
Without prior authorization, employees are prohibited from using the company’s e-mail
system to transmit or store commercial or personal advertisements, solicitations,
promotions, or political material. Employees are also prohibited from the following:

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Miscellaneous issues

unauthorized attempts to access another’s e-mail account, transmission of proprietary


information to unauthorized persons or organizations, transmission of obscene or harassing
messages to any other individual, any illegal or unethical activity, and any other activity that
could adversely affect the company.

E-mail on the company’s e-mail system is not private. Employees should have no
expectation of privacy in any e-mail that they create, send, or receive. The company
reserves the right to monitor, review, and disclose any and all employee e-mail. In addition,
in the course of their duties IS staff may monitor the use of the e-mail system or review the
contents of stored e-mail records.

In addition to the above, the following guidelines must be observed by Company employees
when using company e-mail:

1. The content and maintenance of an employee’s e-mail mailbox is the employee’s


responsibility in the first instance.

2. Unwanted messages should be deleted as soon as possible since they take up disk
storage space. Messages can be printed and/or copied to disk files for record copy or
archival.

3. Never assume that your e-mail cannot be read by others.

4. Make sure all messages are addressed only to the intended recipients.

5. Never give your user ID or password to another person. System administrators that
need to access your account for maintenance or to correct problems will have full
privileges to your account.

6. Never use obscenities, other inappropriate language, or derogatory remarks in any e-


mail message, even in jest.

7. Never send copyrighted material with an e-mail message.

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Miscellaneous issues

SAMPLE POLICY

(Option 2)

Use of Electronic Media

Scope. The Company uses multiple types of electronic equipment, facilities and services
for producing documents, research and communication including, but not limited to
computers, email, telephones, voicemail, fax machines, online services, cell phones (including
text messaging) and the Internet. This policy governs the use of such Company property.

Ownership. All information and communications in any format, stored by any means on
the Company’s electronic equipment, facilities or services is the sole property of the
Company.

Use. All of the Company’s electronic equipment, facilities and services are intended to be
used for Company business purposes only and not for personal matters. Access to the
Internet, Web sites and other services paid for by the Company are to be used for Company
business only.

Scanning for viruses. Viruses can be attached to any file including email attachments. All
incoming documents and attachments (whether sent electronically or provided on disk or
other electronic media) must be scanned with the Company’s antivirus software. Any virus
detected must be reported to the MIS department even if the virus detection software
appears to have corrected the problem.

Retention. In most cases, electronic communications should be deleted after they are read.
When appropriate, electronic communications should be printed and placed in the files of
the Company to which the communication relates.

Inspection and monitoring. All information and communications in any format, stored by
any means on the Company’s electronic equipment, facilities or services are subject to
inspection at any time without notice. Personal passwords may be used for purposes of
security, but the use of a personal password does not affect the Company’s ownership of
the electronic information or the Company’s right to inspect such information. The
Company reserves the right to access and review electronic files, messages, email, voicemail
and other such material to monitor the use of all of the Company’s electronic equipment,
facilities and services, including all communications and internet usage and resources visited.
The Company will override all personal passwords if it becomes necessary to do so for any
reason.

274
Miscellaneous issues

Personal hardware and software. Employees may not install personal hardware and
software on the Company’s computer systems without approval from the MIS department.
All software installed on the Company’s computer systems must be licensed.

Unauthorized access. Employees are not permitted unauthorized access to the electronic
communications of other employees or third parties unless directed to do so by Company
management. No employee can examine, change or use another person’s files, output or
user name unless they have explicit authorization.

Security. Many forms of electronic communication are not secure. Employees who use
cell phones, cordless phones, fax communications or email sent over the Internet should be
aware that such forms of communication are subject to interception and these methods of
communicating should not be used for privileged, confidential, trade secret or sensitive
information unless appropriate encryption measures are implemented.

Approvals needed. Any information about the Company, its products or services, or other
types of information that will appear in the electronic media about the Company must be
approved by the Company Management Committee or the Technology Committee before
the information is placed on an electronic information source.

Inappropriate web sites. The Company’s electronic equipment, facilities or services must
not be used to visit Internet sites that contain obscene, hateful or other objectionable
materials.

Standards for communications. Communications via any electronic media may not be
used in any manner that would be discriminatory, harassing or obscene, or for any other
purpose which is illegal, against Company policy or not in the best interest of the
Company. Communications made using the Company ‘s electronic equipment, facilities or
services should not contain:

• Informal remarks that might be potentially embarrassing to another employee,


the Company, its lawyers, staff or clients;
• Vulgar, offensive or harassing language;
• Sexually explicit images, cartoons, jokes or messages;
• Indecent remarks, proposals or materials;
• Copyrighted materials which the Company is not authorized to use.

Violation of this policy. Employees who violate this policy, or otherwise misuse the
Company ‘s electronic equipment, facilities or services, or who engage in defamation,
copyright or trademark infringement, misappropriation of trade secrets, discrimination,
harassment or related actions will be subject to disciplinary action up to and including
immediate termination.

275
Miscellaneous issues

Arbitration agreements
Some older employee handbooks included arbitration agreements, whereby employees and
employers agreed to arbitrate any disputes arising out of the employment relationship (in lieu of
engaging in costly litigation). Because of a new Oregon law, however, arbitration agreements
entered into between employers and employees after January 1, 2008, will not be valid unless the
following guidelines are met:

• All agreements to arbitrate claims or disputes must be presented to a job applicant in a


“written employment offer.” Further, the “written employment offer” containing the
agreement to arbitrate must be “received” by the employee at least two weeks before the
first day of the employee’s employment.

• Agreements to arbitrate claims or disputes may be presented to current employees, but


will not be enforced unless entered into at the time of a “bona fide advancement”
(promotion, etc.). In sum, simply adding an arbitration provision to an employee
handbook will not likely be enforceable under the new laws.

Thus, it is important for employers to carefully consider well in advance of employment whether
they wish to have arbitration agreements with their employees and to ensure that any such
agreements comply with applicable legal requirements.

Translation of employee
handbooks into non-English languages
If your company employs a significant number of employees for whom English is not their first
or native language, you should consider translating your employee handbook into the other
predominant language(s) used in your workplace. This precautionary measure may assist
employers who defend against employment lawsuits filed by current or former, non-English
speaking employees who claim that certain personnel policies are not applicable to them because
the policies were never communicated to them in a way that the employee understood (due to the
language barrier).

If you decide to translate your handbook, do not skimp on the cost. A poorly translated
handbook can be just as ineffective and useless against employment law claims as an out-of-date
or haphazardly applied English employee handbook. Consult with legal counsel or other human
resources professionals to find an appropriate translator.

Providing access to employee


handbooks in electronic format
Neither federal nor state law dictates how an employee handbook should be distributed, or in
what format. Some employers choose to distribute paper copies of employee handbooks, some
provide one central copy that is accessible to all employees, and some make the handbook

276
Miscellaneous issues

available electronically, such as through an intranet. The handbook need not be printed on a
certain type of paper, or using a particular size of paper.

Employers should decide how it wants to distribute new versions of the employee handbook and
in what format based on factors such as the work atmosphere, company resources, and other
factors. Again, what may work best for one company may not be ideal for another. Regardless
of what approach your company takes, please make sure the acknowledgement-of-receipt form
presented to each employee for his or her signature (discussed in Chapter 16,
Acknowledgment-of-receipt of handbook) is accurately recorded and maintained in the
employee’s personnel file.

Company and personal vehicles


If your company provides vehicles for employee use during business hours or for business-
related reasons, it is strongly recommended that your handbook includes a policy regarding the
use of such vehicles. Oregon employers who ask their employees to use personal vehicles for
business use should also consider having a policy.

SAMPLE POLICY

Company and Personal Vehicles


Employees who are assigned the use of Company vehicles or who are asked to use their
own vehicles for Company business will be required to:

• Submit evidence of a valid driver’s license, and provide the Company with updates
as issued;

• Have proof of valid automobile liability insurance, and provide the Company with
updates as issued;

• Be insurable by the Company’s auto insurer.

This requirement extends to employees who travel on behalf of the company, lease vehicles,
or otherwise conduct company business via automobile. Inability at any time to meet the
three requirements for an employee whose driving is a necessary part of their job could lead
to discipline up to and including termination.

Company vehicles are to be used only for company business. No Employee can use a
company vehicle for personal use unless given prior approval from the Chief Operating
Officer.

Employees who use their own vehicles are reimbursed by the Company on a mileage basis.
Please consult the Human Resources for more information.

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Miscellaneous issues

Vehicle Operation and Safety

Everything about your driving reflects back on the Company. Your personal appearance and
the courtesy and attitude of helpfulness you demonstrate speaks loudly. We expect the
Company’s drivers to be better drivers than the ordinary motorist. The ability and attitude
behind the wheel of the vehicle tells the motoring public a great deal about the Company the
driver represents.

It is expected that all employees will operate Company vehicles or personal vehicles for
Company business in a safe and lawful manner and to observe all federal, state and local
regulations governing the operation of the equipment driven. Seat belts are to be worn at all
times while driving. Always lock doors and side bins (on trucks). Employees should pull
over to the side of the road and stop in order to use cell phones and two-way radios, and/or
check their pager. Employees should also avoid other distracting activities while driving,
such as eating or drinking.

Employees who are assigned the use of Company vehicles should drive so as to afford the
utmost economy in fuel, tires and brakes. Employees are responsible for reporting to their
supervisor any vehicle service required. Employees are responsible for keeping the tires
properly inflated and oil and water at proper levels.

Employees are responsible at all times for any citations or fines associated with use of
Company’s vehicles or personal vehicles for Company business. The Company will not
pay fines for traffic violations or parking tickets. If an employee receives a citation or is
arrested for any traffic violation while on duty, the employee must immediately report the
incident to the Human Resources Department. The expectation of the Company is that our
employees who drive on our behalf are prudent drivers and to do otherwise is a liability to
our Company. The Company may discipline for tickets and/or accidents caused by
aggression while on the job or while driving a company vehicle.

Employees who are assigned the use of Company vehicles or who are asked to use their
own vehicles for Company business are required to keep a valid driver’s license. Employees
must immediately notify the Human Resources Department should they receive a notice
that their driver’s license has been revoked, suspended, or withdrawn, no later than one
business day after having received such notice. An employee’s driving record will be
checked by our insurance broker at least twice a year to determine their continued
insurability. Further, employees are not permitted, under any circumstances, to operate a
vehicle for Company business, when a physical or mental impairment causes the employee
to be unable to drive safely. This prohibition includes but is not limited to, circumstances in
which the employee is temporary unable to operate a vehicle safely or legally because of
injury, illness, or medication.

278
Miscellaneous issues

What to do in Case of an Accident

As a Company driver, the goal should be to drive without ever having an accident. Take
positive action to prevent being involved in the “other drivers” errors. However, should you
be involved in an accident, take these steps to protect yourself and the interest of the
Company:

• Stop immediately.

• Take the necessary precautions to prevent any further accident by placing the
proper warning devices.

• Render all possible assistance to injured persons. Movement of an injured person


should be avoided since this often compounds the injury.

• Call the police if necessary.

• Avoid moving the vehicles until the police arrive, if at all possible.

• Complete the proper accident report immediately.

• DO NOT MAKE ANY STATEMENTS TO ANYONE OTHER THAN AN


AUTHORIZED REPRESENTATIVE OF THE COMPANY. Do not discuss
details of the accident and do not express any opinions to anyone about who was at
fault or how the accident happened.

• Exchange information with the involved drivers giving them your name, license
number, company name and address, and vehicle license number.

• NEVER plead guilty to any violation of the law in connection with an accident,
unless advised to do so by the company representative.

• NEVER offer to settle any claim or damages regardless of the circumstances or


apparent smallness of the claim.

• Report ALL ACCIDENTS TO THE DIRECTOR OF ADMINISTRATION


IMMEDIATELY.

Employees must maintain their own automobile liability insurance coverage in at least
the minimum amounts required by the state of their residence as long as they are
driving a Company vehicle or using their own vehicle for Company business.
Automobile accidents resulting in injury or vehicle damage to any party may be the
primary responsibility of the employee driving the vehicle .

279
Miscellaneous issues

280
Chapter 15

Termination
of employment

All employers deal with employee terminations – whether voluntary or involuntary. Including a
termination of employment policy in the employer’s written policies and procedures is advisable
for several practical reasons.

• First, a policy encourages employees to provide reasonable notice of their intent to


voluntarily leave their employment. Advance notice of an employee’s intent to
voluntarily resign helps the employer in replacing the employee. Including a provision
that eligibility for rehire will be lost for failure to provide the required notice may
constitute an added incentive for many employees to furnish such notice. Importantly,
the policy should not withhold a vested benefit, such as vacation pay, from an
employee who chooses not to give the required notice.

• Second, a termination policy reminds the dissatisfied employee that there are
administrative channels that may be of help in correcting an employment problem. A
good employee leaving due to job dissatisfaction might be reminded, either by the policy
or by human resources personnel, that a resolution to the problem could be found by
exhausting available but untapped avenues of recourse.

Even if not included in the termination policy, an exit interview is an essential practice for
all employers. An exit interview serves as a good opportunity for the company to
determine the basis for the employee’s decision to leave. If animosity on the part of the
employee exists, an attempt to reconcile or at least reduce this sentiment might help avoid
subsequent litigation. Further, if the employee later files a claim, for example, a sexual
harassment charge or other lawsuit, the exit interview provides the employer with the
ability to argue that the employee had an opportunity to express his or her concerns to
management, but elected not to do so. Sample exit interview forms follow the sample
termination policy.

• Finally, with any termination, the employer needs to be sure to notify the employee
and/or his or her qualified beneficiaries of their rights to continued health insurance
coverage under COBRA. For more information about COBRA, including sample
COBRA forms, see Chapter 8, Employee benefits. Note, that employees who are
terminated for “gross misconduct” may not be eligible for COBRA benefits. (See also 29
USC § 1132(c).) Consult with an attorney for further information.

281
Termination of employment

• Finally, a policy such as the one below notifies the employee that he or she must
promptly return all of the employer’s property on or before the employee’s last day of
work.

It is required by Oregon law to pay a departing employee’s final paycheck on time. Failure to do
so can result in an employer paying the employee “penalty wages” in addition to the employee’s
final wages and attorney fees if the employee hires an attorney. Under Oregon law, the following
“final paycheck” deadlines apply:

• if an employee quits with less than 48 hours notice, excluding weekends and holidays, the
paycheck is due within five days, excluding weekends and holidays, or on the next regular
payday, whichever comes first

• if an employee quits with notice of at least 48 hours, the final check is due on the final
day worked, unless the last day falls on a weekend or holiday (in that case, the check is
due on the next business day)

• if an employee is discharged, the final paycheck is due not later than the end of the next
business day

• when an employer and employee mutually agree to terminate the relationship, the check
is due by the end of the following business day, as in the case of discharge.

Further, it is important to not use an employee’s final paycheck to make any unauthorized or
unlawful deductions. Oregon law recognizes five categories of lawful payroll deductions:

• deductions required by law (for example, taxes or garnishments)

• deductions that are for the employee’s benefit (such as health insurance premiums) as
long as the employee has signed a written authorization for the deduction

• other deductions authorized by the employee in writing as long as the employer is not the
ultimate recipient of the money (charitable contributions, for example)

• deductions authorized by a collective bargaining agreement

• a deduction from a final paycheck for a cash loan to an employee, if the employee has
voluntarily signed a loan agreement and as long as the loan was for the employee’s sole
benefit. Such a deduction may not exceed 25% of the employee’s disposable earnings or
the amount of disposable earnings in excess of $170 per week, whichever is less.

If your company, for example, extended a loan to an employee, and the employee has not yet
paid the company back by his last day of employment, the company can ask the employee to
repay the loan at the time the company pays the employee’s final paycheck (or at any time
before, assuming a written agreement is not in place). If the employee refuses to pay, the
Company may pursue repayment in a court of law.

282
Termination of employment

SAMPLE POLICY
If you choose to terminate your employment, it is anticipated that you will give your
manager as much notice as possible – preferably a minimum of two weeks. When giving
your two-weeks’ notice, vacation, personal, or sick days should not be used in lieu of
notice. If you do not give two-weeks’ notice of your intent to leave the Company, you will
not be eligible for re-employment at a later date.

If the employee’s decision to terminate is based on a situation that could be corrected, the
employee is encouraged to discuss it with his or her manager or the Human Resources
manager before making a final decision.

At the time of your employment termination, a representative of the Human Resources


Department will meet with you to conduct an exit interview. At that time, the details of
your leaving will be discussed, and information regarding your insurance coverage and
other information relative to your employment will be explained to you.

Employees must return all Company property, including identification cards, keys, and
manuals, to their supervisor or a Human Resources representative on or before their last day
of work.

283
Termination of employment

EXIT CHECKLIST

Name Date of Termination

Employee No. Department

 Quit  Discharge  Transfer  Layoff  LOA

Other (Explain)

Not
Item Returned Not Returned Appl. Yes No
Tools & Equipment ( ) ( ) ( )
Personal Protective Equipment ( ) ( ) ( )
Manuals, Catalogs, Guides ( ) ( ) ( )
Employee Badge ( ) ( ) ( )
Keys ( ) ( ) ( )
Computer Diskettes ( ) ( ) ( )
Password removed from computer ( ) ( )
Expense Account checked ( ) ( ) ( )
Company Credit card returned ( ) ( ) ( )
COBRA Rights explained ( ) ( )
Final work time verified and approved ( ) ( )
Payroll deductions checked ( ) ( )
Final paycheck issued ( ) ( )
Other ( ) ( ) ( ) ( ) ( )

Human Resources Manager/Date:____________________________________

284
Termination of employment

EMPLOYEE EXIT INTERVIEW

1. Employee Name:
2. Employee Number:
3. Hire Date:
4. Employee Forwarding Address:

5. Has all company property been returned?  Yes  No


6. Does the employee’s personnel file contain a confidential information agreement?
 Yes  No Has the employee been reminded of his/her obligation under the
agreement?  Yes  No
7. Reason for employee’s termination:
8. What could have been done to retain employee?

9. What is employee’s attitude towards company pay policies, benefits, and working
conditions?

10. COBRA Rights/Documents:  Yes  No


11. Who is employee’s new employer?

12. Interviewer’s comments:

Interviewer/Date:

285
Termination of employment

EXIT INTERVIEW

Dept._________________ Shift________________

Name:_____________________ Employee No.________ Employee No. _____________________


Address:______________________________________________ Zip: ______________________
Service Date:_____________________ Last Day Worked: ________________________________
Are you moving or planning to move?  Yes  No
New Address:_____________________________________________________________________
________________________________________________________________________________

Do you want to continue your life insurance?  Yes  No


Medical Insurance?  Yes  No

Is written resignation attached for voluntary separation?  Yes  No If not, please attach
same.

Why are you leaving? ______________________________________________________________


________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

Were you satisfied with:


Your Job? (fit with interest and abilities, opportunities, work load, etc.) _____________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

Supervision & Management? (fairness, competence, supportiveness, etc.)___________________


________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

Company Policies & Practices? (fairness, working environment, etc.) ______________________


________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

286
Termination of employment

Salary & Employee Benefits? (fairness, working environment, etc.) ________________________


________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

What did you MOST like about working at the company? _________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

What do you feel needs to be improved at the company?___________________________________


________________________________________________________________________________
________________________________________________________________________________

Were you treated fairly while with the company?  Yes  No If no, what was your complaint?
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

My reason for leaving the company has nothing to do with a work-related problem or grievance:
 Yes  No

Is there a problem that you know about or you have heard others talking about concerning the
company? Remarks: _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

Must something change for you to come back? If yes, what? _______________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

Do you plan to return to work at the company?  Yes  No If Yes, when? _______________

 Explain final pay policy and give (or arrange for) final checks to employee.

 Remind employee to keep company informed about change of address for tax purposes.

287
Termination of employment

Other comments/interviewer’s assessment: _____________________________________________


________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________

________________________________________ ____________________________________
Interviewer Date Supervisor Date

*Not to be made part of employee’s personnel records.

288
Termination of employment

SEPARATION SUMMARY

We appreciate your time in providing the following information. Your comments are valuable to us
and will be shared with appropriate members of management as we strive to improve {Company
Name}. Once completed, please return in the envelope provided.

Name:______________________________________ Supervisor: __________________________

Date of Separation: ________________________________________________________________

1. What is your overall opinion of {Company Name} as a place to work? _______________


__________________________________________________________________________
__________________________________________________________________________

2. What did you enjoy most about working at {Company Name}? ____________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

3. What did you enjoy least about working at {Company Name}? _____________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

4. What is your opinion of your supervisor?_______________________________________


__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________

5. Rate the following:


Good Fair Poor
Work Environment ____ ____ ____
Benefits ____ ____ ____
Compensation ____ ____ ____
Performance Review ____ ____ ____

6. What suggestions do you have for improving {Company Name} as a place to work?
________________________________________________________________________
________________________________________________________________________

7. _______________________________________________________ Other Comments:


________________________________________________________________________
________________________________________________________________________

Employee Signature Date

289
Termination of employment

EMPLOYEE SEPARATION CLEARANCE CHECKLIST

Employee Name: __________________________ Last Day Worked:________________________

Department: _______________________ Social Security Number: _________________________

Department Checklist
If Voluntary, Written Notice From Employee ......................................................❏ Employee Identification........................................................................❏
If Involuntary, Management Approvals & Documentation ...............................❏ Manuals ....................................................................................................❏
Remind About Confidentiality Agreement............................................................❏ Documents...............................................................................................❏
Final Change of Status Notice ..................................................................................❏ Safety Equipment...................................................................................❏
Library Material......................................................................................❏
Return of Company Property Tools .........................................................................................................❏
Keys/Card Keys...........................................................................................................❏ Computer Diskettes................................................................................❏
Credit Cards..................................................................................................................❏ Company Vehicle...................................................................................❏
Phone Cards..................................................................................................................❏ Parking Card Key...................................................................................❏
Other .........................................................................................................❏
Department Clearance_______________________________________________ ___________________________________________________
(Manager/Date)

Personnel Department Checklist


Expense Account..........................................................................................................................................................................................................................................❏
Advances; Loans .............................................................................................................................................................................................................................................❏
Continuation of Insurance ..........................................................................................................................................................................................................................❏
Insurance Conversion Privilege.................................................................................................................................................................................................................❏
*Accumulated Vacation Pay......................................................................................................................................................................................................................❏
*Notice Requirement Fulfilled ..................................................................................................................................................................................................................❏
Release of Reference Information Form .................................................................................................................................................................................................❏

Personnel Department Clearance (Personnel Manager/Date)_________________________________________________________________________

Retirement Benefits (profit sharing, 401(k), stock plans, etc.)....................................................................................................................................................................❏


Final Paycheck ......................................................................................................................................................................................................................................................❏
Authorization for Deduction(s)..........................................................................................................................................................................................................................❏
Address Verification ............................................................................................................................................................................................................................................❏
Exit Interview ........................................................................................................................................................................................................................................................❏
Other ____________________________________________________________________________________________________________________

Employee:
1) I have turned in all Company property assigned to or held by me.....................................................................................................................................................❏
2) I have received my final paycheck, which contains all final wages due to me ...............................................................................................................................❏
3) The Company explained and I understand my COBRA rights..........................................................................................................................................................❏

Signature of Employee/Date __________________________________________________________________________________________________

Distribution: One copy to employee personnel file and one copy to employee

290
Chapter 16

Acknowledgment-
of-receipt of handbook

All employees should be asked to sign an “acknowledgement of receipt” form when they receive
a copy of the employee handbook. Some policies should even be separately acknowledged, such
as the policies prohibiting discrimination and harassment. An employee’s express
acknowledgement can be an important piece of evidence in litigation to show that the employee
was aware, or should have been aware, of the employer’s policies. A signed acknowledgment can
also prove that an employee understood that his or her employment was at-will in the face of
employee claims to the contrary.

The acknowledgment-of-receipt form should be read and signed by each employee upon receipt
of the handbook, typically on the employee’s first day of employment. If the employee would
like additional time to review the written policies and procedures, that time should be granted.
The signed acknowledgement form should be retained in the employee’s personnel file.
Employers may benefit from periodically conducting an audit of the personnel files to make sure
that all current employees have received and acknowledged receipt of the employee handbook.
New acknowledgment-of-receipt forms should be signed by employees when a new employee
handbook is released, when new policies are released or to acknowledge significant changes to
certain, legally required policies (such as anti-harassment policies).

WARNING: If the handbook contains a union-free policy, it may be a violation of the National
Labor Relations Act (NLRA) to compel an employee to sign the acknowledgment form in such
circumstances. An employer should either delete the promise-to-abide provision from the
acknowledgment form – as the sample policy has done – or specifically exempt the union-free
policy from the promise. Prior to adopting a union-free policy, please consult legal counsel to
make sure that the policy and overall handbook complies with the law.

291
Acknowledgment-of-receipt of handbook

SAMPLE ACKNOWLEDGMENT FORM


Acknowledgment of Receipt of Personnel Policies
[Use title and current version date of your company’s handbook]

I acknowledge that I have received and will read a copy of the Company’s 2008 Personnel
Policies [use title of handbook]. I also understand that a copy of the Personnel Policies
[use title of handbook] is available to me at any time to review in the [Human Resources
Office] [on the company’s intranet] [etc.].

I understand that the Company has adopted the Personnel Policies [use title of handbook]
only as a general guide about policies, work rules and the work environment, and that they
are subject to change at any time in the Company’s sole discretion. I also understand that
the Personnel Policies [use title of handbook] control over any other contradictory
statements. I acknowledge that the Personnel Policies [use title of handbook] are not an
employment contract and are not intended to give me any express or implied right to
continued employment or to any other term or condition of employment.

I understand that either the Company or I may terminate my employment relationship at


any time, for any or no reason, with or without cause, and with or without advance notice. I
acknowledge that no promises have been made to me that are inconsistent with this “at-will”
statement.

I understand that the Company complies with all applicable laws regarding equal
employment opportunity and provides a workplace free from unlawful harassment and
discrimination. I will bring any questions or concerns I have regarding equal employment
opportunities, discrimination, retaliation or harassment to my supervisor, the Human
Resources Department, or any trusted manager or supervisor.

During my employment with the Company, I understand that it is my responsibility to


remain informed about the policies as revisions, updates and new polices as issued.

I have read this acknowledgement carefully before signing.

______________________________________________ _________________
Employee Signature Date

The original of this document will be kept in the Employee’s personnel file in the Human
Resources Department. A copy will be provided to the Employee upon request.

292
Appendix A

Posting
requirements

Numerous state and federal laws require employers to post notices in the workplace in a location
where they are accessible to employees. Failure to post such notices is itself a violation of the
particular law. (Note: Poster images included in this appendix are for sample purposes only.
Actual postings can be obtained from the websites and telephone numbers listed on the following
pages.)

Federal posters
The following postings are required by federal law. Posters 1 through 6 can be obtained by calling
American Chamber of Commerce Resources at (866) 439-2227. Many posters are available via
the Internet at www.dol.gov/compliance/topics/posters.htm.

1. Your Rights Under the Fair Labor Standards Act (Federal Minimum Wage)
Poster provided by the U.S. Department of Labor Wage and Hour Division. For more
information call:

866-487-2365

2. Family and Medical leave Act


Poster provided by the U.S. Department of Labor Wage and Hour Division. For more
information call:

866-487-2365

3. Employee Polygraph Protection Act


Poster provided by the U.S. Department of Labor Wage and Hour Division. For more
information call:

866-487-2365

4. Job Safety and Health Protection


Poster provided by the Occupational Safety and Health Administration (OSHA). For
more information call:

800-321-6742

293
Posting requirements

5. Equal Employment Opportunity Is The Law


Poster provided by the Equal Employment Opportunity Commission (EEOC). For more
information call:

800-669-4000

6. Uniformed Services Employment and Reemployment Rights Act (USERRA)


Poster provided by the U.S. Department of Labor. For more information, visit
www.dol.gov/vets/.

Oregon posters
The following postings are required to be posted by Oregon employers. Many of these posters
have been translated into Spanish, and employers with a significant Spanish-speaking population
should post Spanish versions of each poster as well. All state posters are available online at
www.boli.state.or.us/BOLI/CRD/C_Postings.shtml.

1. Oregon State Minimum Wage poster

2. Oregon Family Leave Act poster

3. Job Safety and Health poster

4. No Smoking poster.

Further, Oregon employers are required to post various compliance notices:

1. Workers’ Compensation Notice of Compliance


Contact the Workers’ Compensation Division, Employer Compliance, at (503) 947-7815.

2. Employment Insurance Notice (Form 11)


Contact the Oregon Employment Department, Unemployment Insurance Tax Unit, at
(503) 947-1488, Option 3.

294
Posting requirements

295
Posting requirements

296
Posting requirements

297
Posting requirements

298
Posting requirements

299
Posting requirements

300
Posting requirements

301
Posting requirements

302
Posting requirements

303
Posting requirements

304
Appendix B

Compliance thresholds

The following list does not include all federal and Oregon employment laws, but it does provide a
snapshot view of how many employees an employer must have to be covered by these most
significant laws. Remember, however, that coverage for some of the laws also depends on
requirements other than the number of employees. If the number places your business on the
borderline, consult further in the book for an explanation of those other requirements.

Minimum
employees Law Notes

1 Fair Labor Standards Applies to all employees engaged in interstate


Act (Federal) commerce who are not expressly excluded by the
FLSA. Alternatively, it applies to an enterprise with
an annual dollar volume higher than $500,000.

1 Oregon civil rights Covers race, religion, color, sex, sexual orientation,
laws national origin, marital status, age (18 years of age or
older), an expunged juvenile record, association with
someone in a protected class. Also prohibits Oregon
employers from discriminating against other protected
classes, such as whistleblowers, lawful users of
tobacco products during off hours, recipients of
unemployment benefits, and the like. Employers are
urged to contact their legal counsel if they have any
questions about what type of employee may be
protected under Oregon’s civil rights laws

1 Oregon wage and


hour laws

1 Uniformed Services Employer “means any person, institution, organization,


Employment and or other entity that pays salary or wages for work
performed, or that has control over employment
Reemployment Rights opportunities.
Act (USERRA)

6 Oregon disability
discrimination law

305
Compliance thresholds

Minimum
employees Law Notes

6 Oregon domestic Covers employers who employ six or more


violence leave law individuals in Oregon for each working day during
each of 20 or more calendar workweeks in the year in
which an eligible employee takes the leave, or in the
year immediately preceding the year in which leave is
taken.

6 Oregon Injured
Worker
Reemployment Law

6 Oregon workers’
compensation/
retaliation/
discrimination

15 Americans with Employer must be “engaged in an industry affecting


Disabilities Act commerce” and have 15 or more employees for each
working day in each of 20 or more calendar weeks in
(Federal) the current or preceding calendar year.

15 Title VII of the Civil Employer must be “engaged in an industry affecting


Rights Act commerce” and have 15 or more employees for each
working day in each of 20 or more calendar weeks in
the current or preceding calendar year.” Employers
with 100 or more employees must annually file EEO-
1 survey.

20 Age Discrimination Employer must be “engaged in an industry affecting


in Employment Act commerce” and have 20 or more employees for each
working day in each of 20 or more calendar weeks in
the current or preceding calendar year.

20 Oregon Injured
Worker
Reinstatement Law

25 Breaks to express Applies to employers who employ 25 or more


breast milk employees in the State of Oregon for each working
day during each of 20 or more calendar workweeks in
the year in which the rest periods are to be taken, or in
the year immediately preceding the year in which the
rest periods are to be taken.

25 Oregon Family Leave Covers employers who employ 25 or more persons in


Act Oregon “for each working day during each of 20 or
more calendar workweeks in the year in which the
leave is to be taken or in the year immediately
preceding the year in which the leave is to be taken.”

306
Compliance thresholds

Minimum
employees Law Notes

50 Executive Order Employers with federal government contracts worth


11246 (Federal) $10,000 or more. Contractors who employ 50 or
more persons, and have contracts worth at least
$50,000 must implement a written affirmative action
plan.

50 Family Medical Covers employers who employ 50 or more persons for


Leave Act each working day during each of 20 or more calendar
workweeks (not necessarily consecutive) in the
current or preceding calendar year. Eligible
employees must also be employed at a worksite where
50 or more employees are employed by the employer
within 75 miles of that worksite.

50 Rehabilitation Act of Employers with federal government contracts worth


1973 $10,000 or more. Contractors who employ 50 or
more persons, and have contracts worth at least
$50,000 must implement a written affirmative action
plan.

50 Vietnam Era Employers with federal government contracts worth


Veterans $25,000 or more ($100,000 or more for all contracts
signed on or after December 1, 2003). Contractors
Readjustment who employ 50 or more persons, and have contracts
Assistance Act of worth at least $50,000 must implement a written
1974 (Federal) affirmative action plan. Also requires annual filing of
VETS-100 report.

307
Compliance thresholds

308
Appendix C

Index of forms
and sample policies

Name of form/ CD-ROM Page


sample policy file name number
Job description............................................................. jobdesc.doc.........................................10
At-will employment application................................... awapp1.doc.........................................11
At-will employment application................................... awapp2.doc.........................................14
At-will employment application................................... awapp3.doc.........................................20
At-will employment application................................... awapp4.doc.........................................23
Fair Credit Reporting Act
disclosure and authorization......................................... FCRA.doc...........................................27
Employment interview analysis.................................... empintanal.doc....................................31
Interview evaluation..................................................... inteval.doc ..........................................32
Reference release form................................................. refrelease.doc......................................34
Reference inquiry......................................................... refinq.doc ...........................................35
Employment reference ................................................. empref.doc..........................................36
Authorization for release of information....................... authorizationrelease.doc......................37
Form W-4 .................................................................... W4.doc ...............................................41
Form I-9 ...................................................................... I9.doc .................................................43
New employee checklist .............................................. newempcheck.doc...............................48
Sample introduction..................................................... intro.doc .............................................52
Sample employment status policy ................................ empstatus.doc .....................................54
Sample introduction period .......................................... introduction.doc..................................55
Sample general rules and regulations policy................. generalrules.doc..................................57
Sample general rules and regulations policy................. generalrules2.doc................................58
Sample attendance policy............................................. attendance.doc ....................................61
Sample attendance policy............................................. attendance2.doc ..................................62
Sample disability accommodation policy ..................... disaccomm.doc ...................................66
Interactive process questionnaire.................................. intproquest.doc ...................................67
Sample safety and health policy ................................... safetyandhealth.doc.............................70
Sample safety and health policy ................................... safetyandhealth2.doc...........................72
Sample substance abuse policy .................................... subabuse.doc.......................................74
Sample substance abuse policy .................................... subabuse2.doc.....................................75
Sample drug free workplace
policy – government contractors .................................. drugfreegov.doc..................................81
Sample no solicitation/distribution policy .................... solicitationdistribution.doc..................83
Sample non-fraternization policy ................................. fraternization.doc................................84
Sample personal conduct policy................................... personalconduct.doc ...........................85
Sample personal conduct policy................................... personalconduct2.doc..........................85

309
Index of forms and sample policies

Sample workplace violence policy ............................... violence.doc........................................87


Cell phone usage.......................................................... cellphone.doc......................................88
Sample equal employment opportunity policy.............. EEO.doc .............................................90
Sample sexual harassment policy ................................. sexualharassment.doc..........................93
Sample general harassment policy................................ genharassment.doc..............................95
Sample vacation policy ................................................ vacpay.doc..........................................98
Sample sick day policy ................................................ sickday.doc.........................................99
Sample paid time off policy ......................................... paidtimeoff.doc...................................99
Sample holiday policy.................................................. holiday.doc ....................................... 101
Sample OFLA/FMLA policy ....................................... ofla.doc............................................. 114
Sample FMLA policy .................................................. fmla.doc............................................ 115
Certification of health care provider ............................. certhealthcareprov.doc ...................... 104
Employee Rights and Responsibilities under the FMLA ........................................................ 123
Certification of Health-Care Provider (Employee) ........ certhealthcareprov.doc ...................... 124
Certification of Health-Care
Provider (Family Member)........................................... certhealthcareprov2.doc .................... 128
Notice of Eligibility and Rights and Responsibilities .... noteligrights.doc................................ 132
Designation Notice....................................................... designationnotice.doc ........................ 134
Certification of Qualifying Exigency............................. qualexigency.doc ............................... 135
Certification for Serious Injury
or Illness of Covered Servicemember ............................ servicemember.doc............................ 138
Physician’s release to return to work............................ physrelease.doc................................. 142
Sample policy for employers
not covered by FMLA/OFLA....................................... nonfmlaoflaleave.doc........................ 143
Request form for non-FMLA/OFLA leave ................... nonfmlaoflaleave2.doc...................... 144
Request for leave of absence (non-FMLA/OFLA)........ nonfmlaloflaeave3.doc...................... 145
Domestic violence leave .............................................. domesticviolence.doc........................ 148
Sample personal leave of absence policy...................... personalleave.doc.............................. 150
Sample bereavement leave policy ................................ bereavementleave.doc....................... 150
Sample military leave policy........................................ militaryleave.doc .............................. 152
Sample jury duty leave................................................. juryduty.doc...................................... 152
Sample health insurance policy .................................... healthinsurance.doc........................... 153
COBRA information.................................................... cobrainfo.doc .................................... 156
Model COBRA Continuation Coverage
(for use by single-employer group health plans) ........... cobraform1.doc ................................. 157
Model General Notice of COBRA
Continuation Coverage Rights
(for use by single-employer group health plans) ........... cobraform2.doc ................................. 164
Model COBRA Continuation
Coverage Election Notice ............................................. cobraform3.doc ................................. 168
Model COBRA Continuation
Coverage Supplemental Notice..................................... cobraform4.doc ................................. 181
Model COBRA Continuation
Coverage Additional Election Notice ............................ cobraform.doc................................... 189
Sample short-term disability plan policy ...................... shorttermdisability.doc...................... 202
Sample long-term disability plan policy ....................... longtermdisability.doc ...................... 202
Sample 401(k) plan policy ........................................... 401k.doc........................................... 203

310
Index of forms and sample policies

Sample continuing education policy............................. contedu.doc ...................................... 204


Sample hours of work policy........................................ hoursofwork.doc............................... 207
“Undue hardship” notice to
employees regarding meal and rest periods .................. mealrest.doc...................................... 208
Notice to employees regarding meal and rest periods ... mealrest2.doc.................................... 209
Sample nursing mothers policy .................................... nursingmom.doc ............................... 211
Request and agreement to waive meal periods.............. mealrest3.doc.................................... 212
Sample timekeeping requirements policy ..................... timekeeping.doc................................ 213
Sample overtime policy ............................................... overtime.doc..................................... 214
Payroll direct deposit form........................................... directdepositform.doc ....................... 216
Employee payroll change notice................................... payrollchange.doc............................. 217
Salary change recommendation form ........................... salarychange.doc............................... 218
Sample payroll advances policy ................................... payadvance.doc ................................ 219
Sample performance review policy .............................. perfreview.doc.................................. 222
Performance appraisal.................................................. perfappraisal.doc............................... 223
Performance appraisal summary .................................. perfappraisal2.doc............................. 227
Performance appraisal.................................................. perfappraisal3.doc............................. 230
Performance evaluation................................................ perfevaluation.doc ............................ 233
Sample compensation review policy ............................ compreview.doc................................ 236
Sample promotion and transfer policy.......................... promotiontransfer.doc....................... 236
Sample layoff and recall policy .................................... layoffrecall.doc................................. 238
Sample confidential information policy........................ confidentiality.doc ............................ 239
Sample confidential information policy........................ confidentiality2.doc .......................... 241
Sample conflict of interest policy................................. conflict.doc....................................... 244
Sample complaint/grievance policy.............................. complaint.doc ................................... 249
Sample complaint/grievance policy.............................. complaint2.doc ................................. 250
Sample open door policy.............................................. opendoor.doc .................................... 251
Sample examination of records policy.......................... examofrecords.doc............................ 255
Sample employee suggestions policy ........................... suggestions.doc................................. 261
Employee suggestions program entry form .................. suggestions2.doc............................... 262
Sample reference requests policy ................................. referencerequests.doc........................ 263
Sample reference requests policy ................................. referencerequests2.doc...................... 264
Reference release form................................................. refreleaseform.doc ............................ 265
Sample employment of relatives policy........................ employrelatives.doc .......................... 266
Sample smoking policy................................................ smoking.doc ..................................... 268
Sample personal hygiene policy................................... hygiene.doc ...................................... 268
Sample dress code policy ............................................. dresscode.doc ................................... 269
Sample telephone usage policy .................................... telephoneuse.doc............................... 270
Sample inspection of property policy ........................... inspectionproperty.doc...................... 271
Sample inspection of property policy ........................... inspectionproperty2.doc.................... 271
Sample use of electronic media policy ......................... elecmedia.doc ................................... 272
Sample use of electronic media policy ......................... elecmedia2.doc ................................. 274
Sample use of company vehicles policy ....................... vehicles.doc ...................................... 277
Sample termination policy ........................................... termination.doc................................. 283
Exit checklist ............................................................... exitchecklist.doc ............................... 284
Employee exit interview .............................................. exitinterview.doc .............................. 285
Exit interview .............................................................. exitinterview2.doc ............................ 286
Separation summary..................................................... separationsummary.doc..................... 289
Employee separation clearance checklist...................... empsepchecklist.doc ......................... 290

311
Index of forms and sample policies

Sample handbook acknowledgment ............................. handbookacknowledgment.doc ......... 292


Federal minimum wage poster ..................................... mwposter.doc ................................... 295
FMLA poster ............................................................... fmla.doc............................................ 296
Employee Polygraph Protection Act poster .................. eppaposter.doc .................................. 297
OSHA poster ............................................................... oshaposter.doc .................................. 298
EEO poster .................................................................. eeoposter.doc.................................... 299
USERRA poster........................................................... userraposter.doc................................ 300
Oregon minimum wage poster .................................... ormwposter.doc ................................ 301
Oregon Family Leave Act poster.................................. orflaposter.doc.................................. 302
Oregon OSHA poster................................................... oroshaposter.doc ............................... 303
No smoking posters ..................................................... nosmokingposters.doc....................... 304

312
Index

Index

Symbols
401(k) plans............................................................................................................................ 203
sample policy...................................................................................................................... 203

A
acknowledgment of receipt of handbook ................................................................................. 291
sample policy...................................................................................................................... 292
ADA......................................................................... See Americans with Disabilities Act (ADA)
affirmative action.................................................................................................................... 259
Amendments Act of 2008, ADA (ADAAA)..............................................................................64
Americans with Disabilities Act (ADA)............................................................................ 60, 149
ADA Amendments Act of 2008 ............................................................................................64
disability accommodation policy...........................................................................................64
workers’ compensation ....................................................................................................... 149
applications, job..........................................................................................................................7
arbitration agreements......................................................................................................... 276
background checks..................................................................................................................9
FCRA .....................................................................................................................................9
arbitration agreements............................................................................................................. 276
current employees ............................................................................................................... 276
job applicants...................................................................................................................... 276
attendance policies....................................................................................................................60
disability laws .......................................................................................................................60
FMLA/OFLA........................................................................................................................61
sample policy.................................................................................................................. 61, 62
unemployment compensation ................................................................................................60
at-will employment ................................................................................................. 11, 14, 20, 23
employee handbooks.............................................................................................................51
authorization for release of information.....................................................................................37

B
background and reference checks...................................................................................... 33, 263
authorization for release of information.................................................................................37
employment reference...........................................................................................................36
FCRA disclosure and authorization .......................................................................................27
job applications.......................................................................................................................9
job descriptions.......................................................................................................................9
personnel records ................................................................................................................ 253
recordkeeping requirements ................................................................................................ 260
reference inquiry...................................................................................................................35

313
Index

reference release form ......................................................................................................... 265


reference requests................................................................................................................ 263
sample policy...............................................................................................................263-264
basic company policies .............................................................................................................51
attendance policies ................................................................................................................60
cell phone usage....................................................................................................................87
drug-free workplace ..............................................................................................................80
employment status ................................................................................................................53
general rules and regulations .................................................................................................56
no solicitation/distribution policies........................................................................................82
non-fraternization policy .......................................................................................................83
personal conduct policy.........................................................................................................84
safety and health policies ......................................................................................................69
benefits ................................................................................................................................... 153
401(k) plans ........................................................................................................................ 203
COBRA ...................................................................................................................... 153, 156
continuing education ........................................................................................................... 203
employee handbooks.............................................................................................................51
health insurance .................................................................................................................. 153
long-term disability plans.................................................................................................... 202
recordkeeping requirements ................................................................................................ 259
short-term disability plans ................................................................................................... 202
bereavement leave................................................................................................................... 150
sample policy...................................................................................................................... 150
bullying in the workplace..........................................................................................................86

C
call to active duty leave........................................................................................................... 102
candidate screening...................................................................................................................29
ADA .....................................................................................................................................29
ADEA...................................................................................................................................29
authorization for release of information.................................................................................37
background and reference checks ..........................................................................................33
disability ...............................................................................................................................29
discrimination .......................................................................................................................29
employment interview analysis .............................................................................................31
employment reference...........................................................................................................36
FCRA disclosure and authorization .......................................................................................27
interviewer evaluation...........................................................................................................32
interviews .............................................................................................................................29
reference inquiry...................................................................................................................35
reference release form ...........................................................................................................34
Title VII................................................................................................................................29
care for a sick child, leave....................................................................................................... 108
cell phone usage........................................................................................................................87
sample policy........................................................................................................................88
certification for serious injury or illness of covered servicemember ........................................ 138
certification of health care provider.......................................................................... 123-124, 128
certification of qualifying exigency......................................................................................... 135

314
Index

COBRA ................................... See Consolidated Omnibus Budget Reconciliation Act (COBRA)


compensation reviews ............................................................................................................. 236
sample policy...................................................................................................................... 236
complaint/grievance procedures .............................................................................................. 247
sample policy.............................................................................................................. 249, 250
confidentiality of company information .................................................................................. 239
employee information ......................................................................................................... 241
notification of a security breach .......................................................................................... 241
personnel records ................................................................................................................ 254
protecting Social Security Numbers .................................................................................... 241
safeguarding personal information ...................................................................................... 242
sample policy.............................................................................................................. 239, 241
conflicts of interest.................................................................................................................. 243
sample policy...................................................................................................................... 244
Consolidated Omnibus Budget Reconciliation Act (COBRA) ................................................. 153
COBRA information ........................................................................................................... 156
information ......................................................................................................................... 156
model COBRA continuation coverage additional election notice......................................... 189
model COBRA continuation coverage election notice ......................................................... 168
model COBRA continuation coverage supplemental notice................................................. 181
termination.................................................................................................................. 157, 164
continuing education............................................................................................................... 203
sample policy...................................................................................................................... 204
contracts, employee handbooks............................................................................................... 260

D
designation notice, FMLA....................................................................................................... 134
direct deposit .......................................................................................................................... 215
form.................................................................................................................................... 216
disability ................................................................................................................................. 149
accommodation policy ..........................................................................................................64
candidate screening ...............................................................................................................29
long term plans ................................................................................................................... 202
Oregon laws........................................................................................................................ 149
request for non-FMLA/OFLA leave............................................................................ 144, 145
sample policy.............................................................................................................. 143, 202
short-term plans .................................................................................................................. 202
workers’ compensation ....................................................................................................... 149
discipline ................................................................................................................................ 253
discrimination
age ........................................................................................................................................95
bullying.................................................................................................................................86
employee handbooks.............................................................................................................89
FMLA...................................................................................................................................95
gender ...................................................................................................................................95
racial.....................................................................................................................................95
recordkeeping requirements ................................................................................................ 257
religious................................................................................................................................95
sexual harassment .................................................................................................................90

315
Index

documentation, new employees.................................................................................................48


domestic violence ................................................................................................................... 147
sample policy...................................................................................................................... 148
dress codes.............................................................................................................................. 269
drug-free workplace..................................................................................................................80
sample policy........................................................................................................................81
testing ................................................................................................................................. 260

E
electronic format, employee handbook.................................................................................... 276
electronic media...................................................................................................................... 272
sample policy.............................................................................................................. 272, 274
employee handbooks
at-will employment ...............................................................................................................51
benefits .................................................................................................................................51
electronic format ................................................................................................................. 276
equal employment opportunity policy ...................................................................................89
introduction...........................................................................................................................52
sexual harassment .................................................................................................................90
translation into non-English languages ................................................................................ 276
employee leave .........................................................................................................................97
ADA ................................................................................................................................... 149
bereavement leave............................................................................................................... 150
care for a sick child ............................................................................................................. 108
Certification of Health Care Provider .................................................................................. 123
disabilities........................................................................................................................... 149
domestic violence leave ...................................................................................................... 147
employee leave request ....................................................................................................... 141
Employer Response to Employee Request for FMLA.......................................................... 141
employers not covered by FMLA/OFLA............................................................................. 143
family leave tracking form .................................................................................................. 141
FMLA and military leave.................................................................................................... 109
holidays .............................................................................................................................. 101
jury duty ............................................................................................................................. 152
leave request ....................................................................................................................... 141
medical leave ...................................................................................................................... 102
military leave ...................................................................................................................... 150
OFLA and workers’ compensation...................................................................................... 109
paid time off / paid leave bank ..............................................................................................99
personal leave ..................................................................................................................... 149
physician’s release to return to work ................................................................................... 142
Pregnancy Discrimination Act............................................................................................. 148
pregnancy leave .................................................................................................................. 108
request for leave of absence ................................................................................................ 145
request for non-FMLA/OFLA leave.................................................................................... 144
sick days ...............................................................................................................................98
vacation ................................................................................................................................97
employee payroll change notice .............................................................................................. 217
Employee Polygraph Protection Act........................................................................................ 293

316
Index

employee separation clearance checklist ................................................................................. 290


employee suggestions ............................................................................................................. 261
sample form ........................................................................................................................ 262
sample policy...................................................................................................................... 261
Employer Response to Employee Request for FMLA ............................................................. 141
employment contracts ............................................................................................................. 260
employment interview analysis .................................................................................................31
employment of relatives.......................................................................................................... 266
sample policy...................................................................................................................... 266
employment reference...............................................................................................................36
employment status ....................................................................................................................53
exempt vs. non-exempt employees ........................................................................................53
full vs. part time employees...................................................................................................53
sample policy........................................................................................................................54
equal employment opportunity
employee handbooks.............................................................................................................89
posting requirements ........................................................................................................... 294
sample policy........................................................................................................................95
examination of records............................................................................................................ 254
sample policy...................................................................................................................... 255
exit checklist........................................................................................................................... 284
exit interview.................................................................................................................. 285, 286

F
Fair Credit Reporting Act (FCRA)
authorization and disclosure ..................................................................................................27
job applications.......................................................................................................................9
job descriptions.......................................................................................................................9
Fair Labor Standards Act (FLSA) ........................................................................................... 205
Family and Medical Leave Act (FMLA) ...................................................................................61
certification for serious injury or illness of covered servicemember..................................... 138
certification of health-care provider............................................................................. 124, 128
certification of qualifying exigency ..................................................................................... 135
designation notice ............................................................................................................... 134
discrimination .......................................................................................................................95
military leave ...................................................................................................................... 109
notice of eligibility and rights and responsibilities............................................................... 132
posting requirements ........................................................................................................... 293
recordkeeping requirements ................................................................................................ 257
serious health condition....................................................................................................... 109
time off and leaves of absence............................................................................................. 109
family leave tracking form ...................................................................................................... 141
FCRA ............................................................................... See Fair Credit Reporting Act (FCRA)
FLSA................................................................................. See Fair Labor Standards Act (FLSA)
FMLA...................................................................... See Family and Medical Leave Act (FMLA)
forms
authorization for release of information.................................................................................37
Certification of Health Care Provider .................................................................................. 123
certification of health-care provider............................................................................. 124, 128

317
Index

COBRA continuation coverage ................................................................................... 157, 164


COBRA information ........................................................................................................... 156
direct deposit form .............................................................................................................. 216
employee leave request ....................................................................................................... 141
employee payroll change notice .......................................................................................... 217
employee separation clearance checklist.............................................................................. 290
employee suggestions.......................................................................................................... 262
Employer Response to Employee Request for FMLA.......................................................... 141
employment application ...................................................................................... 11, 14, 20, 23
employment interview analysis .............................................................................................31
employment reference...........................................................................................................36
exit checklist ....................................................................................................................... 284
exit interview ...............................................................................................................285-286
family leave tracking form .................................................................................................. 141
FCRA disclosure and authorization .......................................................................................27
I-9.........................................................................................................................................43
interviewer evaluation...........................................................................................................32
job description ......................................................................................................................10
model COBRA continuation coverage additional election notice......................................... 189
model COBRA continuation coverage election notice ......................................................... 168
model COBRA continuation coverage supplemental notice................................................. 181
performance appraisal ................................................................................................. 223, 230
performance appraisal summary.......................................................................................... 227
performance evaluation ....................................................................................................... 233
physician's release to return to work.................................................................................... 142
reference inquiry...................................................................................................................35
reference release form ................................................................................................... 34, 265
request for leave of absence ................................................................................................ 145
request for non-FMLA/OFLA leave.................................................................................... 144
salary change recommendation form ................................................................................... 218
separation summary ............................................................................................................ 289
W-4.......................................................................................................................................41

G
general rules and regulations.....................................................................................................56
sample policy........................................................................................................................57

H
harassment
age ........................................................................................................................................95
bullying.................................................................................................................................86
employee handbooks.............................................................................................................89
FMLA...................................................................................................................................95
gender ...................................................................................................................................95
racial.....................................................................................................................................95
recordkeeping requirements ................................................................................................ 257
religious................................................................................................................................95
sexual harassment .................................................................................................................90

318
Index

health insurance ...................................................................................................................... 153


sample policy...................................................................................................................... 153
hiring ........................................................................................................................................39
documentation.......................................................................................................................39
I-9.........................................................................................................................................43
new employee checklist ........................................................................................................48
personnel records ................................................................................................................ 253
W-4 form ..............................................................................................................................41
holidays .................................................................................................................................. 101
sample policy...................................................................................................................... 101
hours of work.......................................................................................................................... 205
direct deposit................................................................................................................215-216
employee payroll change notice .......................................................................................... 217
FLSA.................................................................................................................................. 205
meal and rest periods........................................................................................................... 205
overtime.............................................................................................................................. 213
salary change recommendation form ................................................................................... 218
sample policy...................................................................................................................... 207
timekeeping requirements ................................................................................................... 213

I
I-9 form ....................................................................................................................................43
personnel records ................................................................................................................ 254
recordkeeping requirements ................................................................................................ 259
immigration ............................................................................................................................ 254
recordkeeping requirements ................................................................................................ 259
Immigration and Naturalization Service (INS) ........................................................................ 254
inspection of property ............................................................................................................. 270
sample policy...................................................................................................................... 271
interviews .................................................................................................................................29
employment analysis.............................................................................................................31
interviewer evaluation...........................................................................................................32
introduction ................................................................................................................................3
enforcement of handbooks ......................................................................................................4
what information must be included in a handbook...................................................................4
why have a handbook..............................................................................................................3

J
job applications...........................................................................................................................7
arbitration agreements......................................................................................................... 276
background checks..................................................................................................................9
FCRA .....................................................................................................................................9
job descriptions...........................................................................................................................7
background checks..................................................................................................................9
FCRA .....................................................................................................................................9
sample ...........................................................................................................10, 11, 14, 20, 23
jury duty ................................................................................................................................. 152
sample policy...................................................................................................................... 152

319
Index

K
known disabilities .....................................................................................................................66

L
layoff and recall ...................................................................................................................... 237
sample policy...................................................................................................................... 238
leaves of absence ......................................................................................................................97
ADA ................................................................................................................................... 149
bereavement leave............................................................................................................... 150
care for a sick child ............................................................................................................. 108
Certification of Health Care Provider .................................................................................. 123
disabilities........................................................................................................................... 149
domestic violence leave ...................................................................................................... 147
employee leave request ....................................................................................................... 141
Employer Response to Employee Request for FMLA.......................................................... 141
employers not covered by FMLA/OFLA............................................................................. 143
family leave tracking form .................................................................................................. 141
FMLA and military leave.................................................................................................... 109
holidays .............................................................................................................................. 101
jury duty ............................................................................................................................. 152
medical leave ...................................................................................................................... 102
military leave ...................................................................................................................... 150
OFLA and workers’ compensation...................................................................................... 109
paid time off / paid leave bank ..............................................................................................99
personal leave ..................................................................................................................... 149
physician's release to return to work.................................................................................... 142
Pregnancy Discrimination Act............................................................................................. 148
pregnancy leave .................................................................................................................. 108
request for leave of absence ................................................................................................ 145
request for non-FMLA/OFLA leave.................................................................................... 144
sick days ...............................................................................................................................98
vacation ................................................................................................................................97

M
meal periods ........................................................................................................................... 205
medical leave .......................................................................................................................... 102
care for a sick child ............................................................................................................. 108
employers not covered by FMLA/OFLA............................................................................. 143
notice/certification requirements ......................................................................................... 104
physician's release to return to work.................................................................................... 142
pregnancy leave .................................................................................................................. 108
military leave.......................................................................................................... 102, 109, 150
recordkeeping requirements ................................................................................................ 260
sample policy...................................................................................................................... 152
USERRA ............................................................................................................................ 151

320
Index

N
National Labor Relations Act (NLRA).................................................................................... 260
new employee checklist ............................................................................................................48
no solicitation/distribution policies............................................................................................82
sample policy........................................................................................................................83
non-fraternization policy...........................................................................................................83
sample policy........................................................................................................................85
notice of FMLA eligibility and rights and responsibilities ....................................................... 132

O
Occupational Safety and Health Act (OSHA).................................................................... 69, 293
OFLA .............................................................................. See Oregon Family Leave Act (OFLA)
Oregon Bureau of Labor and Industries................................................................................... 253
Oregon Family Leave Act (OFLA) ...........................................................................................61
time off and leaves of absence............................................................................................. 109
orientation period......................................................................................................................55
sample policy........................................................................................................................55
OSHA...............................................................See Occupational Safety and Health Act (OSHA)
overtime.................................................................................................................................. 213
recordkeeping requirements ................................................................................................ 258
sample policy...................................................................................................................... 214

P
paid time off / paid leave bank ..................................................................................................99
sample policy........................................................................................................................99
payroll advances ..................................................................................................................... 219
sample policy...................................................................................................................... 219
performance reviews............................................................................................................... 221
appraisal...................................................................................................................... 223, 230
performance appraisal summary.......................................................................................... 227
personnel records ................................................................................................................ 253
sample ................................................................................................................ 222, 230, 233
personal leaves of absence ...................................................................................................... 149
sample policy...................................................................................................................... 150
personnel records .................................................................................................................... 253
arrest and conviction records............................................................................................... 253
definition ............................................................................................................................ 253
demotion............................................................................................................................. 253
discipline ............................................................................................................................ 253
employee access.................................................................................................................. 254
hiring .................................................................................................................................. 253
I-9 Form.............................................................................................................................. 254
immigration records ............................................................................................................ 254
medical records................................................................................................................... 253
Oregon Bureau of Labor and Industries............................................................................... 253
payroll records .................................................................................................................... 253
performance evaluations ..................................................................................................... 253
promotion ........................................................................................................................... 253
recordkeeping requirements ................................................................................................ 253

321
Index

references............................................................................................................................ 253
termination.......................................................................................................................... 253
wages and hours.................................................................................................................. 253
workers’ compensation ....................................................................................................... 253
physician’s release to return to work ....................................................................................... 142
posting requirements............................................................................................................... 293
federal................................................................................................................................. 293
Oregon................................................................................................................................ 294
Pregnancy Discrimination Act ................................................................................................ 148
pregnancy leave ...................................................................................................................... 108
promotions...................................................................................................................... 221, 236
sample policy...................................................................................................................... 236

Q
qualifying exigency......................................................................................................... 102, 135

R
reasonable accommodation .......................................................................................................64
sample policy........................................................................................................................64
record review policy ............................................................................................................... 254
sample policy...................................................................................................................... 255
recordkeeping requirements .................................................................................................... 256
affirmative action................................................................................................................ 259
background checks.............................................................................................................. 260
discrimination ..................................................................................................................... 257
drug testing ......................................................................................................................... 260
employee benefits ............................................................................................................... 259
employment contracts ......................................................................................................... 260
FMLA................................................................................................................................. 257
immigration ........................................................................................................................ 259
military leave ...................................................................................................................... 260
OSHA................................................................................................................................. 258
overtime.............................................................................................................................. 258
payroll ................................................................................................................................ 258
personnel records ................................................................................................................ 253
safety in the workplace........................................................................................................ 258
unions ................................................................................................................................. 260
wages and hours.................................................................................................................. 258
workers’ compensation ....................................................................................................... 258
records.................................................................................................................................... 254
reference checks................................................................................................................ 33, 263
authorization for release of information.................................................................................37
employment reference...........................................................................................................36
FCRA disclosure and authorization .......................................................................................27
job applications.......................................................................................................................9
job descriptions.......................................................................................................................9
personnel records ................................................................................................................ 253
recordkeeping requirements ................................................................................................ 260
reference inquiry...................................................................................................................35

322
Index

reference release form ......................................................................................................... 265


reference requests................................................................................................................ 263
sample policy...............................................................................................................263-264
reference inquiry.......................................................................................................................35
reference release form....................................................................................................... 34, 265
request for leave of absence .................................................................................................... 145
request for non-FMLA/OFLA leave........................................................................................ 144
rest periods ............................................................................................................................. 205

S
safety and health policies ..........................................................................................................69
sample policy.................................................................................................................. 70, 72
salary change recommendation form....................................................................................... 218
sample policies
401(k) plans ........................................................................................................................ 203
acknowledgment of receipt of handbook ............................................................................. 292
attendance policies .......................................................................................................... 61, 62
background and reference checks ................................................................................ 263, 264
bereavement leave............................................................................................................... 150
cell phone usage....................................................................................................................88
compensation reviews ......................................................................................................... 236
complaint/grievance procedures .................................................................................. 249, 250
confidentiality of company information....................................................................... 239, 241
conflicts of interest.............................................................................................................. 244
continuing education ........................................................................................................... 204
disability ..................................................................................................................... 143, 202
drug-free workplace ..............................................................................................................81
electronic media.......................................................................................................... 272, 274
employee suggestions.......................................................................................................... 261
employment of relatives ...................................................................................................... 266
employment status ................................................................................................................54
equal employment opportunity..............................................................................................95
examination of records........................................................................................................ 255
general rules and regulations .................................................................................................57
health insurance .................................................................................................................. 153
holidays .............................................................................................................................. 101
hours of work...................................................................................................................... 207
inspection of property ......................................................................................................... 271
introduction...........................................................................................................................52
jury duty ............................................................................................................................. 152
layoff and recall .................................................................................................................. 238
military leave ...................................................................................................................... 152
no solicitation/distribution policies........................................................................................83
non-fraternization policy .......................................................................................................85
orientation period..................................................................................................................55
overtime.............................................................................................................................. 214
paid time off / paid leave bank ..............................................................................................99
payroll advances ................................................................................................................. 219
performance reviews ........................................................................................................... 222

323
Index

personal leaves of absence .................................................................................................. 150


promotions.......................................................................................................................... 236
reasonable accommodation ...................................................................................................64
record review policy............................................................................................................ 255
safety and health policies ................................................................................................ 70, 72
sexual harassment .................................................................................................................93
sick leave ..............................................................................................................................99
smoking .............................................................................................................................. 268
substance abuse policy .................................................................................................... 74, 75
telephone usage................................................................................................................... 270
termination.......................................................................................................................... 283
timekeeping requirements ................................................................................................... 213
transfers .............................................................................................................................. 236
vacation ................................................................................................................................98
screening, job candidate............................................................................................................29
ADA .....................................................................................................................................29
ADEA...................................................................................................................................29
authorization for release of information.................................................................................37
background and reference checks ..........................................................................................33
disability ...............................................................................................................................29
discrimination .......................................................................................................................29
employment interview analysis .............................................................................................31
employment reference...........................................................................................................36
FCRA disclosure and authorization .......................................................................................27
interviewer evaluation...........................................................................................................32
interviews .............................................................................................................................29
reference inquiry...................................................................................................................35
reference release form ...........................................................................................................34
Title VII................................................................................................................................29
separation summary ................................................................................................................ 289
serious health condition .......................................................................................................... 109
servicemember leave....................................................................................................... 102, 138
sexual harassment ............................................................................................................... 90, 95
false claims ...........................................................................................................................96
FMLA...................................................................................................................................95
sample policy........................................................................................................................93
sick leave ..................................................................................................................................98
sample policy........................................................................................................................99
smoking in the workplace ....................................................................................................... 267
sample policy...................................................................................................................... 268
social security numbers........................................................................................................... 245
substance abuse policy ..............................................................................................................72
sample policy.................................................................................................................. 74, 75

324
Index

T
telephone usage....................................................................................................................... 269
sample policy...................................................................................................................... 270
termination.............................................................................................................. 221, 237, 281
COBRA continuation coverage ................................................................................... 157, 164
employee separation clearance checklist.............................................................................. 290
exit checklist ....................................................................................................................... 284
exit interview .............................................................................................................. 285, 286
personnel records ................................................................................................................ 253
sample policy...................................................................................................................... 283
separation summary ............................................................................................................ 289
time off and leaves of absence...................................................................................................97
ADA ................................................................................................................................... 149
bereavement leave............................................................................................................... 150
care for a sick child ............................................................................................................. 108
Certification of Health Care Provider .................................................................................. 123
disabilities........................................................................................................................... 149
domestic violence leave ...................................................................................................... 147
employee leave request ....................................................................................................... 141
Employer Response to Employee Request for FMLA.......................................................... 141
employers not covered by FMLA/OFLA............................................................................. 143
family leave tracking form .................................................................................................. 141
FMLA and military leave.................................................................................................... 109
holidays .............................................................................................................................. 101
jury duty ............................................................................................................................. 152
leave request ....................................................................................................................... 141
medical leave ...................................................................................................................... 102
military leave ...................................................................................................................... 150
OFLA and workers’ compensation...................................................................................... 109
paid time off / paid leave bank ..............................................................................................99
personal leave ..................................................................................................................... 149
physician’s release to return to work ................................................................................... 142
Pregnancy Discrimination Act............................................................................................. 148
pregnancy leave .................................................................................................................. 108
request for leave of absence ................................................................................................ 145
request for non-FMLA/OFLA leave.................................................................................... 144
sick days ...............................................................................................................................98
vacation ................................................................................................................................97
timekeeping requirements ....................................................................................................... 213
sample policy...................................................................................................................... 213
transfers .................................................................................................................................. 236
sample policy...................................................................................................................... 236
translation of employee handbook into non-English languages................................................ 276

U
unemployment compensation....................................................................................................60
Uniformed Services Employment and Re-employment Rights Act (USERRA) ....................... 151
unions ..................................................................................................................................... 260

325
Index

V
vacation ....................................................................................................................................97
accumulating vacation time...................................................................................................97
sample policy........................................................................................................................98
vacation pay..........................................................................................................................97
when vacation can be taken...................................................................................................97
violence, domestic .................................................................................................................. 147

W
W-4 form..................................................................................................................................41
wages and hours
compensation reviews ......................................................................................................... 236
minimum wage ................................................................................................................... 293
payroll advances ................................................................................................................. 219
personnel records ................................................................................................................ 253
recordkeeping requirements ................................................................................................ 258
vacation pay..........................................................................................................................97
workers’ compensation ........................................................................................... 149, 253, 258
ADA ................................................................................................................................... 149
FMLA................................................................................................................................. 109

326