8/25/25 NLRB Issues GC Memo on Investigating Salting Cases

August 25, 2025

The Acting General Counsel of the National Labor Relations Board (NLRB) issued GC Memorandum 25-08, providing updated guidance on “salting” cases. The memo states that salting is “the act of a trader union in sending a union member or members to an unorganized jobsite to obtain employment and then organize the employees.” These prospective employees are sometimes referred to as “salts.” The memo, issued July 24, 2025, is not legally binding but is guidance signaling that the NLRB is less likely to pursue salting cases if the applicant cannot show they had a “genuine interest” in the position. 

 NLRA Protections

All employees have protections under the NLRA due to their prospective-employee status. Employers cannot discriminate in hiring or employment on the basis of union membership, meaning they cannot refuse to hire a “salt” applicant. The exceptions to that general rule were unless the applicant engaged in conduct that is clearly intended to provoke a decision not to hire them or act antagonistically with the employer in a way that was wholly at odds with an intent to be hired.

 Generally, to prove that an employer violated the law in a refusal to hire, the NLRB’s General Counsel Office has to prove:

1. That the employer was hiring or had concrete plans to hire; and

2. The applicant had experience or training relevant to the announced or generally known requirements; and

3. Antiunion animus contributed to the decision not to hire the applicant.

 Changes to Initial Investigation Procedures

In this Memo, the GC instructed the regional investigators to first focus on obtaining evidence from the charging party, i.e. the union and/or the individual applicant, rather than initially asking the employer to provide documentation or testimony. The initial investigation should focus on collecting evidence as to whether an employee submitted an application, and whether the evidence showed a genuine interest in securing employment. If after the initial investigation no evidence exists to support the charging party’s allegation, the GC recommends dismissing the allegation.  

For questions on this alert or labor relations, contact Barran Liebman attorney Nicole Elgin at 503-276-2109 or nelgin@barran.com.

8/14/25 Washington’s Paid Family and Medical Leave Program is Changing…Again

August 14, 2025

By Becky Zuschlag

Washington’s Paid Family and Medical Leave program (“PFML”) will change once again next year, providing expanded employee protections and attempting to remedy the leave stacking issue many employers have experienced, among other changes. The amended provisions included in HB 1213 take effect on January 1, 2026, and will impact all Washington employers. 

Employers with Washington employees should start thinking about updating their PFML policies and considering how the upcoming changes to the law will impact their workplace, ahead of the January 1, 2026 effective date. The amendments provide numerous significant changes, including the following:

• Reduced minimum claim period. The minimum claim period to qualify for benefits will decrease from 8 consecutive hours of leave per filing week to 4 consecutive hours per filing week.

• Reduced eligibility requirements. An employee will be eligible for PFML after working 180 calendar days.  The hours of work requirement to qualify for employment protection will be eliminated. 

• Expanded employment protections and benefits continuation. Employment protection and benefits continuation standards will be modified to include smaller employers over a three-year period. An employee returning from PFML or leave taken under the federal Family and Medical Leave Act (“FMLA”) (during which the employee was eligible for PFML benefits but did not apply for or receive them) will be entitled to employment protection if the employer has:

  • 25 or more employees from January 1, 2026, to December 31, 2026;

  • 15 or more employees from January 1, 2027, to December 31, 2027; and

  • 8 or more employees on or after January 1, 2028.
    

• Clarifies employer notice requirements. Employer notice requirements are amended to clarify what must be included in an employer’s posted notice and task the Commissioner with developing a written statement of employee rights, which must be distributed to employees by an employer. Specifically, the notice must include information related to eligibility requirements, possible weekly benefits, application processes, employment protection rights, nondiscrimination rights, and other protections. The required notice must be posted in a conspicuous area of the workplace.

• Imposes new requirements for reinstatement eligibility and job protections. Employees’ right to employment restoration will be forfeited unless the employee exercises their right to employment restoration within the statutorily provided time periods. Additionally, under certain circumstances, the employer must provide at least five business days’ advance written notice to the employee regarding the estimated expiration of the right of employment restoration and the date of the employee’s first scheduled workday. 

• Attempts to resolve leave stacking issue. Employment protection will be extended to any period of unpaid leave protected by FMLA where the employee was eligible for PFML benefits but did not apply for and receive those benefits, so long as the employer provides written notice to the employee of the following:

  • The employer is designating and counting the employee’s leave against their entitlement under FMLA;

  • The start and end dates of the employer’s FMLA leave year;

  • That the employer is counting the FMLA leave towards the employee’s PFML entitlement, including specifying the start and end dates of the leave and the total amount of leave counting toward PFML; and

  • That using FMLA leave against the employee’s PFML entitlement does not affect the employee’s eligibility for PFML benefits.

Written notice must be provided within five business days of the employee’s initial request for or use of FMLA leave, whichever is earlier, and at least monthly for the remainder of the employer’s FMLA leave year.

These changes are extensive, and employers should begin updating their leave policies and procedures now to ensure compliance on January 1, 2026.  Additionally, employers should watch for the required notice that will be published by the Employment Security Department and replace their current posted notice once the updated notice is published.

For questions about these changes, or guidance with updating your policies and procedures, contact Barran Liebman attorney Becky Zuschlag at 503-276-2151 or bzuschlag@barran.com. 

8/13/25 2025 Oregon Legislative Session General Overview

August 13, 2025

By Becky Zuschlag  & Xavie Davenport

The Oregon Legislative Assembly’s recent session ended on June 27, 2025, with several bills creating notable changes for Oregon employers. The following is a list of the relevant bills that have been signed into law by the Governor.

 Paid Leave Oregon Amendments

Senate Bill 69 provides that employers may require employees returning from medical leave under Paid Leave Oregon to provide medical certification releasing the employee to return to work prior to restoring an employee to a position, if the employer maintains a uniformly applied practice or policy requiring such certification. This amendment becomes effective on September 26, 2025.

Senate Bill 858 amends Paid Leave Oregon to provide that individuals who are eligible to receive wage replacement benefits under a federal unemployment benefits program disqualifies the individual from receiving Paid Leave Oregon benefits. This will be in addition to the current exclusions for individuals receiving workers’ compensation time loss benefits or unemployment benefits under Oregon law. This amendment takes effect on January 1, 2026.

Senate Bill 1148 prohibits insurers that offer, issue, or renew disability income insurance policies from requiring a person who is eligible for disability benefits to use or apply for available Paid Leave Oregon benefits prior to being eligible for disability benefits offered by the disability insurance policy. This amendment becomes effective on January 1, 2026.

 Oregon Family Leave Act (OFLA) Amendments

Senate Bill 69 clarifies that OFLA family leave taken to care for a child may only be taken for the employee’s child who is either (1) under the age of 18 years, or (2) substantially limited by a physical or mental impairment as described in ORS 659A.104.

Additionally, the law is amended to provide that, under certain circumstances, the closure of the school or childcare provider of the employee’s child due to a public health emergency is a reason for which an employee may begin OFLA family leave without providing prior notice to their employer. These amendments become effective on September 26, 2025.

Oregon Sick Leave Amendment

Senate Bill 1108 expands the permissible use of protected sick leave to include time off to donate blood in connection with a voluntary program that is approved or accredited by the American Association of Blood Banks or the American Red Cross. This amendment to Oregon’s sick leave law becomes effective on January 1, 2026.

Wage Statement Explanation

Senate Bill 906 requires employers to provide new employees, at the time of hire, with a written explanation of earnings and deductions that are shown on itemized pay statements. The written explanation must also include other payroll related information, such as the employer’s established pay period, the types of pay rates employees may be eligible for, benefit deductions and contributions, other deductions that may apply, and payroll codes used for pay rates and deductions. Additionally, employers are required to review and update the written explanation by January 1 each year. These changes become effective on January 1, 2026.

Age-Based Discrimination

House Bill 3187 makes it an unlawful employment practice, with limited exceptions, for an employer to request or require disclosure of an applicant’s age, date of birth, or when the applicant attended or graduated from any educational institution. This amendment takes effect on September 26, 2025. 

Lactation Breaks Extended to Agricultural Workers

House Bill 2541 amends Oregon’s law requiring certain employers to provide reasonable rest breaks for employees who need to express breast milk during the workday, to include agricultural workers, as defined in ORS 653.020(1)(c), as employees who are protected by the law. This change took effect immediately upon passage.

Prevailing Wage Rate Amendments

House Bill 2688 extends the scope of Oregon’s prevailing wage law to include “certain off-site bespoke work fabricated, preconstructed, assembled, or constructed in accordance with specifications for a particular public works.” The amendments take effect on September 26, 2025.  

Eligibility for Unemployment Benefits During Labor Dispute

Senate Bill 916 extends unemployment benefits to striking public and private workers who are otherwise eligible for unemployment insurance benefits. Previously, striking workers, or workers otherwise involved in a labor dispute, were ineligible for unemployment insurance benefits. This change takes effect on January 1, 2026.

Permitted Deductions for Overpayment to Public Employees

Senate Bill 968 permits public employers to deduct the amount of an erroneous overpayment of wages paid to a public employee, as long as the public employer provides a written statement itemizing the overpayment amount, the purpose of each deduction, an explanation that the total amount of a deduction will not exceed five percent of the public employee’s gross wages each pay period (unless the public employee otherwise requests and specifies that a greater percentage or amount is deducted), and notice that if the public employee’s employment ends for any reason, the public employer can deduct the balance owed from the employee’s final paycheck. The new law only applies to “public employee[s]” as the terms is defined in ORS 243.650, including employees of cities, counties, community colleges, school districts, etc. and went into effect on January 1, 2026.

Veterans’ Preference Expanded

Senate Bill 808 expands Oregon’s veterans’ preference law to cover current and former Oregon National Guard members. For more information, see our previous e-alert here. 

For questions on compliance with these rules or other labor and employment matters, contact Barran Liebman attorney Becky Zuschlag at 503-276-2151 or bzuschlag@barran.com. 

8/12/25 The Wage and Hour Division Expands the Payroll Audit Independent Determination Program

August 12, 2025

By Hannah LaChance  & Xavie Davenport

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) has revived and expanded the 2018 Payroll Audit Independent Determination Program (“PAID”). The Program’s goal is to help employers ensure compliance with minimum wage and overtime laws. The Program has now expanded to potential violations under the Family Medical Leave Act (“FMLA”). 

The PAID Program can be utilized by most employers who are covered under the Fair Labor Standards Act (“FLSA”), and/or FMLA, subject to a few less common exceptions. The Wage and Hour Division website lists detailed steps for participation in PAID and services offered. As a part of the steps listed on the website, employers are expected to review WHD compliance materials and perform a self-audit where they identify potential violations and affected employees. Employers then submit their self-audit to WHD for review. After evaluation, the WHD will provide a summary of unpaid wages and violations, inclusive of guidance and next steps for employers to follow. Employers are expected to pay back wages and implement remedies within 15 days of receiving the summary report. Proof of payment and documentation of remedies is required.

Once an employer report is submitted and reviewed, the Wage and Hour Division provides a summary of unpaid wages due and the adequacy of proposed remedies. It is the employer’s responsibility to issue payment and implement remedies within 15 days of receiving finalized self-audit results from the WHD. 

For questions on whether to participate in the PAID program or for FLSA and FMLA compliance, contact Hannah LaChance at hlachance@barran.com or 503-276-2112.

8/11/25 New Investigation Disclosure Requirements for State and Local Agencies in Washington State

August 11, 2025

By Andrew Schpak & Xavie Davenport

A new Washington Bill alters the requirements for disclosure of public records connected with workplace investigations. House Bill 1934 modifies the existing Public Records Act, providing that an employing agency may permissively disclose results and documents collected during an investigation, so long as certain confidential information is redacted.

Under the existing Public Records Act, state and local agencies are required to make public records available to the public, unless the record falls under an exemption from the Act’s requirements. Investigative records relating to discrimination or harassment in employment fall under a relevant exemption. Where the exemption under the Public Records Act is permissive, an agency has discretion to disclose what would otherwise qualify as an exempt record.

The amendments to the Public Records Act now require redactions to investigative records where the state or local agency is exercising its discretion to disclose a record that qualifies as exempt. Records remain confidential in their entirety while an investigation is active and ongoing. Now, after the agency has notified the complaining employee of the outcome of the investigation, the records may be disclosed only if the names, images, employee agency job titles, email addresses, and phone numbers of complainants, other accusers, and witnesses are redacted. Audio recordings may be released so long as voices have been altered while retaining inflection and tone.

Prior to the release of such records, state and local agency employers must inform a complainant, accuser, or witness that their information will be redacted from the investigation records and their voice will be altered on any audio recording, unless the complainant is a government official. As an exception to the redaction requirement, a complainant, accuser, or witness may consent to the disclosure of their own personal information. If an elected government official is a complainant, the name and title of the individual is not to be redacted from the investigatory records.

We are here to help. For guidance on the new disclosure requirements, or for advice concerning workplace investigations and compliance, contact Andrew Schpak, at aschpak@barran.com, or 503-276-2156.

8/7/25 What Is a “Trump Account,” and How Does it Impact Employers?

August 7, 2025

By Jeff Robertson  &  Iris Tilley

The so called “One Beautiful Bill” authorized the creation and administration of “Trump Accounts.”  Trump Accounts have both an individual component and a potential employer sponsorship component.  While many questions remain as to administration and eligibility, it is important for employers to understand the Trump Account basics.

How do Trump Accounts Operate?

A Trump Account cannot receive a contribution prior to July 4, 2026—employers and any other interested parties have close to a year to consider whether to offer/participate in this new potential program.

Beginning in July 2026, and for every year before the beneficiary child turns 18, the child, parents, employer, and others can contribute to the Account.  With some exceptions for tax-exempt entities making contributions to individuals within a pre-defined qualified group, the contributions cannot exceed $5,000 annually (this amount remains steady through 2027).  Children born between December 31, 2024 and January 1, 2029 will receive a $1,000 contribution from the Federal Government.  While parents can opt out of this benefit, the IRS will otherwise open an account for any qualifying child who meets these criteria and does not have an established account.

Distributions are limited similarly to a Section 529 Plan and Individual Retirement Account where distributions may be made for certain qualified expenses such as education and limited in time and age with tax related penalties associated with them. 

How Does a Trump Account Impact Employers as an Employee Benefit?

Employers can contribute to a Trump Account for an employee or an employee’s dependent.  Contributions cannot exceed $2,500 annually (this amount stays steady through 2027), and these beneficial contributions are excluded from the gross income of employees (pre-tax).

Trump Accounts should be administered similarly to a Cafeteria Plan.  The program must be subject to a written plan document with notification responsibilities to employees.  Contributions to Trump Accounts on behalf of employees or their dependents must meet nondiscrimination requirements, similar to those nondiscrimination rules utilized for Dependent Care Section 125 Accounts.

Next Step for Employers

Trump Accounts represent an opportunity for a relatively low-cost employee benefit and tax savings opportunity for employees.  However, many questions will need to be answered before most employers can seriously consider implementing the benefit.  Some of these questions include whether an employer must wait for an employee to establish such an account before making a contribution; whether an employee could make a pre-tax deferral into a Trump Account; how an Employer corrects a discrimination failure; and how contributions are reported on a Form W-2?

Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

7/29/25 Oregon Legislature Expands Veterans’ Preference to National Guard Members

July 29, 2025

By Nicole Elgin & Avery Tunstill 

The Oregon Legislature recently enacted SB 808, which allows for former and current Oregon National Guard members to benefit from Oregon’s veterans’ preference law. The law is effective January 1, 2026.

What Is “Veterans’ Preference”?

Since the 1970s, Oregon law has required public employers to give preference in hiring and promotion to veterans and disabled veterans. Veterans, in most instances, have the right to an interview and a preference in the selection process for public employer jobs. These laws exist in many jurisdictions across the country, including federal veterans’ preference, to recognize the sacrifices veterans make by serving our country and acknowledge the large obligation the government owes to disabled veterans.

Who Does Veterans’ Preference Apply To?

Prior to the 2025 bill, Oregon’s veterans’ preference law provided a definition of veteran that did not include those who served in the Oregon National Guard. The new law expands veterans’ preference to “state servicemembers” and “former state servicemembers” that are defined to mean a person who is a member of the Oregon National Guard or someone who was discharged or released from the Oregon National Guard under honorable conditions. As a reminder, veterans’ preference only applies to job positions with public employers, such as local and state government.

For labor relations advice, contact Barran Liebman attorney Nicole Elgin at nelgin@barran.com or 503-276-2109.

7/28/25 How to Meet Your Fiduciary Duties

July 28, 2025

By Jeff Robertson  &  Iris Tilley

A recent fiduciary duty case outlines the best practices to avoid a fiduciary breach decision related to choosing funds. How many of these factors does your company/plan meet?

A court recently ruled that one company’s efforts protected it from a challenge to its fund selection process and flagged the following factors as relevant to its decision making:

• Appointing an independent fiduciary

• Seeking outside legal expertise

• Using outside financial expertise

• Conducting regular meetings to ensure fiduciary oversight

• Receiving regular updates on investment performance

In this specific case, the court noted that the company and its committee (the “Committee”) regularly reviewed multiple funds when a question of adding or subtracting a fund was considered and followed a regular process.

The Committee engaged an independent financial consultant, outside legal counsel, and an independent consultant who regularly attended committee meetings. In addition, the legal counsel performed fiduciary training for the Committee.

Perhaps most importantly, the court ruled that even when the Committee did not perform at its most regular or most comprehensive, a plaintiff must prove imprudent action, not just a period of time when the Committee was not meeting its duties.

The relatively low effort of holding regular meetings, reviewing investment options with outside subject matter experts, and engaging in independence through an independent financial advisor and legal counsel were critical in the Committee’s process. This ultimately resulted in the company avoiding liability associated with the inclusion of what ended up potentially being higher cost and/or lower performing funds.

Future 401(k) Plan Actions on the Horizon?

There are reports of possible regulatory action allowing privatized investments in 401(k) plan investment lineups and potential revisions to Roth options and savings limits. We will keep you informed as these potential changes develop.

Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

7/23/25 Overtime Reporting Responsibilities – No Tax or Tax Deduction?

July 23, 2025

By Jeff Robertson  &  Iris Tilley

One of the most impactful and confusing effects of the recent Tax Bill (so called “One Big Beautiful Bill Act”) is the concept of no tax on overtime. While we have limited guidance, it is important for employers to understand and properly respond to the new law.

Not a Tax Exemption – A Tax Deduction for the Individual

Under the new law, overtime compensation is not exempt from tax the way a deferred 401(k) contribution might be. Rather, the dollars are a possible deduction taken by the employee on their 1040 tax return. Employers should not change their own tax reporting on this compensation. Many employees are already asking employers to eliminate payroll and income tax deductions from their overtime pay.

Only FLSA Overtime is Covered

Not all overtime is covered by the Federal Labor Standards Act (“FLSA”), and only overtime covered by the FLSA is subject to the tax exemption and ultimately the reporting requirements of the employer. This is particularly notable for wages covered by a collective bargaining agreement, and employers should be reviewing their labor contracts to ensure any reporting of overtime subject to the deduction is valid FLSA overtime.

Method of Calculation

While an employee sees “overtime” wages as all wages earned after the normal workday/workweek, the Tax Bill only exempts dollars paid above the regular wage. The example in the guidance provides that a “time and a half” wage payment as overtime is only deductible by the employee for the “half” and not the regular wage portion.

Reporting May be Delayed Until 2026 but the Deduction Begins Now

Employers appear to be provided a grace period on reporting by the Internal Revenue Service until 2026, but employees will be able to claim the deduction beginning when they file their 2025 tax returns. This may result in questions to the employer about the total qualifying overtime wages and even if not reporting on the 2025 Form W-2, the employer should be prepared to assist employees with answering these questions.

Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

7/21/25 NLRB GC Memo 25-07 – Surreptitious Recording of Bargaining Sessions Per Se Violation of the Act & President Trump Board Nominations

July 21, 2025

By Nicole Elgin & Xavie Davenport 

National Labor Relations Board (“NLRB”) Acting General Counsel William Cowen published  GC Memorandum 25-07 on June 25, 2025, stating the office’s position that surreptitious recordings of a collective bargaining session are bad faith and per se violations of the National Labor Relations Act (“NLRA”).

This memorandum comes at a good time, considering technology such as AI which gives parties heightened ability to record bargaining sessions secretly. Recall that GC Memos are not binding NLRB Decisions, but rather are policy guidance documents from the prosecutorial wing of the NLRB.  

The Memo explains that the NLRA requires employers and employee representatives to “confer in good faith.” Specifically, the “use of surreptitious recordings during the collective-bargaining process is inconsistent with the openness and mutual trust necessary for the process to function as contemplated by the Act.” The memo references the Board’s analysis in a case from 1978, Bartlett-Collins Co. In Bartlett-Collins, one party’s strict insistence on recording bargaining meetings was found to be an unlawful refusal to bargain.

Acting GC Cowen states that “treating surreptitious recordings of collective-bargaining sessions as a per se violation is a logical extension of Barlett-Collins” and “the brazen disregard for the reasonable expectations of professional behavior shows a disdain for the collective bargaining process itself.” The Memo directs NLRB Regions to issue a complaint against a party when the investigation shows that a party surreptitiously recorded a bargaining session.

On July 17, 2025, President Trump sent several nominations to the Senate, including Scott Mayer (Chief Labor Counsel at The Boeing Corporation) and James Murphy (former NLRB attorney) to serve on the National Labor Relations Board. Recall that the Board currently does not have quorum. If confirmed by the Senate, these two seats will put the Board back in quorum.

For labor relations advice, contact Barran Liebman attorney Nicole Elgin at nelgin@barran.com or 503-276-2109.

7/15/25 Washington Employers Take Note! L&I Rulemaking to Align with Recent Legislative Changes

July 15, 2025

By Nicole Elgin & Xavie Davenport 

A proposal for expedited rulemaking was filed in Washington State on July 1, 2025. The proposal aims to allow the Washington State Department of Labor and Industries to update the language of two statutes, RCW 49.76 and RCW 49.46 relating to domestic violence leave, paid sick leave, and data certain employers must provide to their drivers. L&I has requested expedited rulemaking under the assertion that the proposed language adopts the new statutory language into the rule without making material changes.

The Washington State Legislature recently passed three Bills that prompt the need for language revision, Substitute Senate Bill 5101 (“SSB 5101”), Engrossed Substitute House Bill 1875 (“ESHB 1875”), and Engrossed Substitute House Bill 1332 (“ESHB 1332”).

• SSB 5101 adds “hate crimes” to the acceptable uses of leave under the Domestic Violence Leave Act. The law defines a “hate crime” as “the commission, attempted commission, or alleged commission of an offense described in RCW 9A.46.110… and includes, but is not limited to, offenses that are committed through online or internet-based communication.” This law is effective January 1, 2026.

• ESHB 1875 extends the allowable uses of paid sick leave to include preparation and participation in immigration proceedings for employees. Specifically, employees may use paid sick leave “to prepare for, or participate in, any judicial or administrative immigration proceeding involving the employee or the employee’s family member.” This law is effective July 27, 2025.

• ESHB 1332 requires that electronic receipts and weekly notices given to Transportation Network drivers contain information on financial incentives, promotions, or bonuses paid. Transportation Network Companies now must make records of per trip receipts from the previous 24 months available in a single aggregated, searchable, downloadable format (such as CSV or searchable PDF) within three business days of a driver’s request. This law is effective September 1, 2025.

Because the expedited rulemaking process requires fewer procedural steps, anyone who opposes this use of the expedited rulemaking process should express objections as soon as possible. The objection deadline ends at 5 p.m. on September 2, 2025.

For guidance on compliance with the new laws or further explanation about the expedited rulemaking process and its ramifications, contact Nicole Elgin at nelgin@barran.com, or 503-276-2109

7/14/25 Part 2: Employer-Facing Provisions in the New Tax Act

July 14, 2025

By Jeff Robertson  &  Iris Tilley

Last week, we shared a summary of employee-facing provisions in the new tax act (the “Act”).  However, the Act, also contains a number of employer-facing tax provisions.  We are highlighting a few of those provisions to assist employers in considering updates to their internal policies and making business decisions. 

Tax Provisions Impacting Employers and Their Employees

Family Medical Leave Tax Credit Extended and Expanded

The 2021-2025 Family Medical Leave Tax Credit under IRC § 45S has been revised and its scope has been expanded by the Act.  The Act makes the credit (which was set to expire at the end of 2025) permanent.  Scope expansions include a reduction in the minimum work time eligibility minimum from one year to six months.  In addition, state and local paid leave and insurance policy premiums may now be used to qualify for the credit. 

$20 Bicycle Credit and Moving Expenses Permanently Excluded

In 2018, bicycle commuting expense reimbursements were temporarily eliminated from the definition of a qualified fringe benefit, and tax-free moving expense reimbursements (along with the deduction) were temporarily eliminated in most situations.   The Act makes these temporary exclusions permanent. 

Child Care Credit

Employers operating or considering childcare facilities have an expanded tax benefit relating to such services.  The percentage of childcare services for the credit expands to 40%, allowing for an employer to spend up to $1.25 million on services to claim the full credit amount of $500,000.  Eligible small businesses may be eligible for a credit up to $600,000. 

Pass-Thru Deduction and Qualified Stock Exclusions

The Act makes permanent provisions relating to the 20% pass-through entity deduction (which was scheduled to expire at the end of 2025) and relaxes rules on the transfer of qualified stock.  This change opens up potential planning opportunities relating to Employee Stock Ownership Plans and other stock transfers, including stock-based employee compensation tools.

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

7/10/25 Part 1: Employee-Facing Provisions in the New Tax Act

July 10, 2025

By Jeff Robertson  &  Iris Tilley

The so called “Big Beautiful Bill Act” (the “Act”) was signed into law last week.  We’ve summarized those provisions that should be on employer’s minds as they consider how the Act may affect their employees. 

Tax Provisions Impacting Employers and Their Employees

SALT Deduction

For employees residing in Oregon and California especially, but also for employees with larger property tax bills in other Western non-income tax states, the Act contains an increased ability to deduct State and Local Taxes (SALT) on employees’ Forms 1040. This primarily will impact higher income wage earners, due to itemizing deductions and may affect their withholding decisions. The cap quadruples, subject to some income phase out, for the 2025 tax year.

“Tips” Income for Qualifying Individuals

The Act contains a deduction for up to $25,000 of income reported and received in “tips” from professions that typically receive tips, subject to an income cap.  The Internal Revenue Service is tasked with providing a list of occupations it believes are eligible for this deduction.  This only impacts Federal Income Taxes and not FICA.  State tax treatment will vary, depending on how a state’s tax code interacts with the Federal Tax Code.  The concept of tips as not taxable income may be confusing to employees.  Employers who charge mandatory gratuities in relation to a service may want to reconsider the verbiage to ensure employees can receive such tips tax-free as the law requires the tips to be voluntary from the customer. 

“Overtime” Compensation Deduction

The Act contains an above-the-line tax deduction for individuals receiving overtime compensation of up to $12,500 for individuals and $25,000 for married couples filing jointly.  Similar to tips, overtime compensation is only a Federal Income tax issue, unless a state’s tax code automatically confirms to the Federal Tax Code on an ongoing basis (Oregon’s does not).  Unlike tips, overtime is not typically recorded separately on a paycheck or on W-2, and payroll systems may need to be adjusted.  Overtime for this purpose is only such overtime as defined within the Fair Labor and Standards Act and only applies to the overtime portion, not the regular wage portion of the overtime. 

We anticipate some of the provisions will result in questions for employers, especially regarding whether an employee should be taxed on overtime wages and tips and how to report these income times on Form W-2.  We also anticipate questions regarding the application of FICA to these income types and the proper process for addressing withholding.  We are here to help with policy language and required reporting.

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

7/9/25 U.S. Supreme Court Weighs in on Burden of Proof for Non-Minority Plaintiffs

July 9, 2025

By Avery Tunstill & Paula Barran

In a recent opinion, the U.S. Supreme Court revived a lawsuit by Marlean Ames, a heterosexual white woman, against her employer for “reverse discrimination.” Her case gained national attention and sparked conversations about so-called “reverse discrimination claims” and whether a majority-group employee can properly allege discrimination. The Supreme Court made it clear that “reverse discrimination” is discrimination, and majority group members do not have to meet a higher bar to win their case.

Ames’ lawsuit alleged that her employer, the Ohio Department of Youth Services, denied her a promotion because she was heterosexual. However, the lower court dismissed Ames’ lawsuit, reasoning that because the discrimination was based on Ames’ majority status as a heterosexual person, she needed to prove that her employer was an “unusual” one who discriminated against majority-group employees.

The U.S. Supreme Court issued a unanimous decision clarifying that Title VII of the Civil Rights Act of 1964 has one standard for all plaintiffs bringing employment discrimination suits; it does not require more or different evidence from a plaintiff who is part of a majority group.

Prior to Ames, some courts required employees who were part of majority groups (such as white and heterosexual employees) to show “background circumstances” to prove their employer discriminated against them on account of their majority status. Plaintiffs could clear the “background circumstances” bar by using, for example, statistical evidence that their employer engaged in a pattern of discrimination against majority-group employees or a pattern of favoritism to minority employees.

In some parts of the country, including the West Coast, federal courts did not require majority-group plaintiffs to prove background circumstances. Thus, the Ames decision may not be a major legal change on the West Coast. But for majority-group plaintiffs in other parts of the country, the Supreme Court’s ruling means they no longer need to prove background circumstances, thus removing a legal hurdle. With the Ames decision, the Supreme Court sent a clear message - discrimination is discrimination regardless of whom it disfavors, as long as that person is in a protected class.

Employers should keep in mind that Ames and the associated media coverage may prompt conversation amongst employees about perceived discrimination based on majority status. Adopting a clear anti-harassment policy, promoting an inclusive work culture, and ensuring that decisions about promotions and pay are based on work performance, can prevent such complaints.

We are here to help. Please contact Paula Barran at 503-276-2143 or pbarran@barran.com, or Avery Tunstill at 503-276-2150 or atunstill@barran.com, or your regular attorney at Barran Liebman if you have any questions.

7/1/25 Important Tax and Employee Benefits Provisions to Watch in the Senate Tax Bill Negotiations

July 1, 2025

By Jeff Robertson  &  Iris Tilley

H.R.1, entitled One Big Beautiful Bill Act, (the “Bill”) passed the U.S House of Representatives on May 25, 2025 and is now under negotiation in the U.S. Senate. While the final terms of the Bill are yet to be seen, several notable trends regarding employee benefits have emerged.

 1. Health Savings Accounts and Health Reimbursement Arrangements will be a large part of the administration’s health plan focus going forward

The Bill continues the Administration’s focus and emphasis on health care accounts while limiting the Affordable Care Act. Specifically, the Bill includes expanded eligibility for HSA and HRA accounts, including Medicare eligible individuals. Additionally, the Bill contains expanded qualified expense categories. We can expect expanded regulatory encouragement for employers and individuals to establish health care accounts. This is a specific area to watch for planning purposes if health care premiums go up over the next year or two to unsustainable levels for some employers.

 2. Nonprofit Compensation Excise Tax

Effective as of the 2026 tax year, the Bill expands application of the existing excise tax on compensation paid over $1 million to former employees of nonprofit organizations. This change specifically targets severance compensation. Because many nonprofits utilize severance compensation to provide large historical benefits, this excise tax, if passed, must be considered in exit planning. In addition, the Bill adds back the 2019 repealed tax on parking and qualified transportation fringe benefits. For nonprofit employers considering future exit strategies, the excise tax may be an important consideration.

 3. Continuation of Employer Tax Credits

The Bill continues provisions related to tuition and student loan expenses and family leave credits which were otherwise set to expire. If your Company offers these benefits, the Bill provides some certainty going forward. 

 4. Provisions Impacting Health Plan Pharmacy Benefit Managers

The Trump administration continues its focus on transparency in pharmacy costs. The Bill enacts provisions regulating Pharmacy Benefit Managers and will have implications for employer sponsored health plans and their pharmacy programs, both in operation and with regard to document drafting.

 5.  Limited to No Impact on Employer Retirement Plans

Notably, the Bill does not address employer retirement plans. This indicates the potential of separate legislation akin to a Secure Act 3.0 and expanded regulatory provisions.  The Trump administration has highly encouraged Roth accounts and automatic enrollment.

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

6/25/25 Pregnancy Accommodation Obligations: Big Changes Ahead for Washington Employers

June 25, 2025

By Becky Zuschlag & Avery Tunstill

Washington Governor Bob Ferguson signed Senate Bill 5217 (E2SSB 5217) into law on May 20, 2025. The law will replace Washington’s law requiring pregnancy accommodations. Although the new law does not go into effect until January 1, 2027, employers should start considering necessary changes to their policies and practices  now to ensure compliance.

Who does this law apply to?

Currently, only employers with 15 or more employees must provide pregnancy-related accommodations to employees who require them, and some exemptions to the law exist for nonprofit and religious organizations.

The new law extends the obligation to provide pregnancy accommodations to all employers  and specifically includes religious and nonprofit organizations.  

What does the law require of employers?

Washington law has long-required employers to provide reasonable breaks and a private location for lactation, but currently does not require employers to pay for such breaks.

Under the new law, employees are entitled to pay at their regular rate for break time used to express milk during work hours and for the time needed to travel to the private space reserved for this purpose. Further, these breaks are in addition to meal and rest breaks, and employers are prohibited from requiring an employee to use paid time off for lactation breaks.

Additionally, while current law includes scheduling flexibility for prenatal visits in the definition of reasonable accommodation, the new law expands this definition to include scheduling flexibility for postpartum medical visits as well.  

What are the consequences for non-compliance?

The new law shifts investigatory and enforcement obligations from the Office of the Attorney General to the Washington Department of Labor and Industries (L&I), requiring L&I to investigate complaints that allege violations of the law. L&I will be able to enforce violations through injunctions and civil penalties. Additionally, the law provides employees with a private right of action to recover damages and attorneys’ fees for their employer’s violation(s).

Although the law is not effective until January 1, 2027, employers should plan and prepare for these big changes in advance to avoid risk of noncompliance and potential litigation.

For questions about these changes or other employment law-related issues, please contact Becky Zuschlag at bzuschlag@barran.com or 503-276-2151, or your regular Barran Liebman attorney for assistance in reviewing your employment compliance. 

6/24/25 Practical Guidance for Understanding Senate Bill 426

June 24, 2025

By Hannah LaChance & Xavie Davenport 

Governor Tina Kotek signed Senate Bill 426 into law on June 9, 2025. The new law effectively makes  property “Owners” and “Direct Contractors” liable for unpaid wages of the employees who work under them or on their projects. This liability extends to the employees of subcontractors, even if the Owner or Direct Contractor has no direct supervision or control over their work or wages. The law takes effect on January 1, 2026. 

The law defines an “Owner” as “any person, firm, partnership, corporation, association, company, organization or other entity, or any combination thereof, with an ownership interest […]” in property. A “Direct Contractor means any person, including a construction manager, joint venture or any combination thereof, the person’s successors, heirs or assigns, that enters into a construction contract with an Owner.” 

The obligations of the new law do not apply to property owners who are hiring contractors to work on their principal residence, to public agencies as defined under Oregon law, or to a financial institution who acquires ownership of a property by foreclosure and do not undertake more than the work necessary to preserve or secure the property. It also only applies to “unrepresented employees” who are not represented by a construction trade labor organization or those who are not covered by a collective bargaining agreement that contains specific provisions. The new law includes a “rebuttable presumption” of employment, meaning the worker is assumed to be an employee rather than an independent contractor, and it is the Owner or Direct Contractor’s burden to prove otherwise.

For employees, the bill provides extra protection in addition to existing wage and hour laws. For example, if an employee has not been paid by their primary employer, the employee can take action against not only their employer, but also the businesses or persons who contract with their employer. This provides the opportunity for employees of contractors and subcontractors to seek payment from those who have ultimately benefitted from their work when they have not been paid by their direct employer.  

For Owners and Direct Contractors, this creates another layer of liability. If subcontractors and specialist companies working on the project have not paid their workers, the workers can recover wages from the Owner or Direct Contractor, even if they have already paid the subcontractor for its work.

 
The new law specifically includes a provision that Owners and Direct Contractors cannot contract out of this liability, but it does provide some safeguards that can minimize exposure. There is a complaint and recovery process that must be followed before legal proceedings can begin and the employee seeking to recover wages from an Owner or Direct Contractor must send notice of the alleged violation via first-class certified mail. The notice must include a description of the violation, the nature of the claim and must state that the Owner and Direct Contractor have 21 days from the delivery date to correct the violation. The new law limits the timeframe within which an employee can bring a claim to two years from the date the wages became due. 

Another protection for Owners and Direct Contractors that is built into the new law is with respect to its records and disclosure requirements. Upon request, subcontractors are required to provide information including but not limited to certified payroll reports, contact information, any subcontractors the Direct Contractor has hired, and names of all workers who have performed work on the project. 

We are here to help. Please contact Hannah LaChance, at hlachance@barran.com or 503-276-2112, or your regular Barran Liebman attorney for more information and guidance on how to comply with the new order.

6/18/25 Immigration Enforcement: Practical Tips for Employers

June 18, 2025

By Abby Fitts

Immigration enforcement is on the rise, with an increasing number of visits to workplaces across the country. In addition to ICE, agents from the DEA, IRS, ATF and U.S. Marshals have now been deputized to assist. Employers need to prepare their workplaces and employees in advance of an agency visit. See our first E-Alert on this subject for additional guidance for employers navigating immigration enforcement.

Preparing for a Visit:

Here are some tangible ways to prepare and handle an immigration visit:

• Mark private spaces with signs like “No Trespassing” or “Private.” Private spaces are locations where there is a reasonable expectation of privacy like exam rooms, break rooms, rest rooms, and offices with doors that close.

• Designate a representative and an alternate. Train the representative in how to read a warrant and what to do/not do in interacting with ICE and other federal agents.

• Remind employees that they have the right to remain silent if/when agents try to engage with them. They do not have to tell agents where an employee is from or where they are at when asked.

During a Visit:

When agents arrive, remember the following:

• Typically, agents will have an operation plan and the first step in that plan is to read the warrant out loud. The designated representative should listen to the reading and may ask to see the document. Know the difference between an arrest warrant and a search warrant because that will determine where agents can go and what they can do. Remember, a judicial search warrant permits agents to search within the location and time frame listed in the search warrant. You are not required to give permission to search in areas not listed and should be clear that you are not consenting (or that your designated representative does not have authority to consent).

• Employees and the designated representative may take pictures or video during the raid.

• The designated representative may follow the agents in their search.

Finally, employers must remember to not interfere with federal agents during a raid. Employees should not impede, barricade, run away or do anything else that might be considered interference, as such actions come with significant consequences.

We are here to help. Please contact Abby Fitts at afitts@barran.com or 503-276-2190, or your regular Barran Liebman attorney for assistance in reviewing your employment compliance. 

6/17/25 EBSA Confirmation Hearings Provide Important Health/Retirement Plan Compliance Roadmap for Next Two Years

June 17, 2025

By Jeff Robertson  &  Iris Tilley

Recent confirmation hearings related to the potential head of the Employee Benefits Security Administration (“EBSA”) provide a roadmap to the likely issues facing retirement plans over the next few years. 

During the hearings, the presumptive nominee was asked for the regulatory priorities if confirmed and responded with an overall philosophy that plans and fiduciaries should be allowed to operate retirement plans within the fiduciary guidelines.  Specifically the presumptive nominee identified the following priorities: 

• De-Regulating the Enforcement of Employee Stock Ownership Plans (“ESOP”).  These comments were related primarily to government enforcement and retroactive consideration of issues particularly relating to valuation.  It appears that the next few years will be favorable to those companies considering an ESOP as a liquidity event.

• “Modernizing” 401(k) investments.  Providing for lifetime income options, crypto currencies, private equity and alternative investments from a strict mutual fund lineup operated in asset/risk classes. 

• Cybersecurity.  There continues to be an increased focus on  plan-level cybersecurity procedures.  We often come across plans whose fiduciaries have never affirmatively asked about the cybersecurity procedures.

• Plan forfeitures and missing participants.  While the current administration seems to favor a lighter audit and enforcement approach, the issues of plan forfeitures, suspense accounts and locating missing participants will continue to be a priority. 

• Expanded retirement and health plan access.  We believe the Trump administration will continue to work to expand access to employer-sponsored retirement and health plans, including to independent contractors. 

One thing remains very clear: operating retirement and health plans with regular documented oversight is the best protection against compliance concerns, litigation and governmental investigation which defaults to “did the fiduciaries operate a prudent procedure in decisions” standard. 

Your employee benefits lawyers at Barran Liebman are available to help you establish and operate a regular document procedure to limit the risk related to your retirement and health plans. 

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.

5/29/25 DOL Rescinds Crypto Guidance in 401(k) Plans

May 29, 2025

By Jeff Robertson  &  Iris Tilley

The Department of Labor (“DOL”) has rescinded its 2022 guidance directing 401(k) Plan fiduciaries to exercise “extreme care” before adding a cryptocurrency component or option to a 401(k) plan lineup.

This does not mean that the DOL endorses the use of cryptocurrency as a retirement plan investment option. It means that any cryptocurrency investment option would be evaluated under the same ERISA standards as any other investment option as to its prudency and exclusive benefit to plan participants.

While the DOL’s decision to rescind this guidance is notable, the U.S. Secretary of Labor also noted, in her opinion, that the DOL was “rolling back this overreach and making it clear that investment decisions should be made by fiduciaries, not D.C. bureaucrats.” This may mean we will see lighter enforcement from the DOL. In addition, it puts into question some of the DOL’s recent compliance efforts regarding forfeiture/ERISA expense accounts and missing participants. It also furthers the importance of a clear written Investment Policy Statement and clear written records documenting plan level investment decisions.

The Barran Liebman Employee Benefits Group assists employers with retirement and health plans.  Please contact Jeff Robertson at 503-276-2140 or jrobertson@barran.com, or Iris Tilley at 503-276-2155 or itilley@barran.com, or your regular attorney at Barran Liebman if you have any questions.