Photo: Joost J. Bakker IJmuiden

As we discussed last post, Oregon’s employment at will rule allows most private employers wide discretion to treat employees as they wish. One exception to this rule is the Oregon Family Leave Act, commonly known as OFLA. I will be covering OFLA basics in some upcoming posts. It is a statute that offers lots of rights to workers. This post just answers the question: “which employers are subject to OFLA?

OFLA is a set of statutes numbered from ORS 659A.150 through ORS 659A.186. The statutes are further clarified by Oregon Administrative Rules and case law. Luckily, the statutes are pretty clear about which employers are subject to OFLA’s requirements. According to ORS 659A.153(1),

The requirements of ORS 659A.150 to 659A.186 apply only to employers who employ 25 or more persons in the State of 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

Therefore, OFLA only applies to employers who have 25 or more employees as described in the statute. Under ORS 659A.153(2), some employers may obtain an exemption by offering a qualified cafeteria plan. But even if OFLA does not apply to a certain case, there still may be other possible OFLA-related claims, such as a wrongful discharge claim. The distinction between various claims is really a case-by-case type thing that doesn’t belong in a blog post. If you have questions about how OFLA may apply to you or your business, it is best to contact a qualified attorney.

Defining “covered employer” may seem like an exercise in semantics. Even so, it is an important definition to understand. This definition draws a line. In imposes a broad set of legal obligations on the covered employers defined in the statute. It creates rights for a large number of workers. In other words, it creates an exception to the rule of employment at will.

Photo by kevindooley

Before you can understand employment laws, you need to understand a concept called “employment at will.” It is a very basic legal principle and it applies to almost every private employment case filed in the State of Oregon. You can think of employment at will as the canvas on which most Oregon employment laws are painted.

Oregon, like pretty much every other state in the U.S., adheres to a doctrine known as employment at will. The basic definition of employment at will would be something like: “An employer is free to make employment-related decisions for any reason or no reason at all.” In plain English, this means employers and employees are generally free to negotiate any rules, standards, policies, expectations and other guidelines they see fit. Employers can fire and discipline employees for any reason. Employees can quit whenever they please. Likewise, employers are free to maintain no rules, policies, etc.

Of course, there are rules regarding what employers can and cannot do. But it is probably more accurate to say that most employment laws are exceptions to the employment at will doctrine. Even though an employer is free to discriminate against employees in many ways (productivity, reliability, competence, etc.), there are are laws prohibiting employers from discriminating based on gender, race, religion, and status in other protected classes. And employers may be required by law to take certain actionsUnless there is a law prohibiting certain action or requiring certain action, employment at will applies and employers are free to do as they please.

Employment at will applies to more than just hiring and firing decisions. Under the employment at will doctrine, Employers are free to treat employees as well or poorly as they want. Employers can hire only their friends and may treat some employees more favorably than others. There is no rule against an employer being a jerk. There is nothing requiring a boss to be fair. Like life, employment is sometimes unfair. That is just the way it is.

So why would Oregon or any other state use such a harsh rule as a starting point? Simple – employment at will promotes a free market economy. We want employers to be able to hire those who are best suited for the work. We want employees to find the best possible work for their particular skills. Businesses are free to decide what they believe to be good for them. If an employee is not profitable, we want businesses to be able to replace that employee with someone they believe to be better. If an employee is working for a bad boss, we want them to be free to quit their job. We encourage competition and employment at will promotes competition (at least in theory). We want employers and employees to be free to negotiate terms of employment that work for both. And we want everyone to be free from too many governmental rules and restrictions. If there are too many rules, those rules create liability for those bound by the rules. Potential liability increases costs to businesses and discourages hiring, which are bad things. It’s a jungle out there.

As we’ll discuss in other posts, employment at will is just a starting point. Employers cannot really do anything they want. To the contrary, there are many other laws that are exceptions to the employment at will doctrine. For example, employers cannot make employment-related decisions based on an employee’s status in a protected class. Employers are also required to follow lots of laws regarding pay, working conditions, leave, benefits, etc. Over time, we have passed laws and implemented other measures that create basic rules that govern the employment relationship. But these laws and measures are not so much “rules” as they are exceptions to the rule of employment at will. And that’s why it is so important to understand employment at will.