Civil Rights Laws Overview An Overview of Relevant Civil Rights Laws for the Live Entertainer Hotline

Threshold Issues: Independent Contractor or Employee? OREGON REVISED STATUTES ORS 659A.001(3) “Employee” does not include any individual employed by the individual’s parents, spouse or child or in the domestic service of any person. ORS 659A.001(4)(a)“Employer” means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.

Threshold Issues: Independent Contractor or Employee? EEOC Guidance: The employer has the right to control when, where, and how the worker performs the job. The work does not require a high level of skill or expertise. The employer furnishes the tools, materials, and equipment. The work is performed on the employer's premises. There is a continuing relationship between the worker and the employer. The employer has the right to assign additional projects to the worker. The employer sets the hours of work and the duration of the job. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job. The worker does not hire and pay assistants. The work performed by the worker is part of the regular business of the employer. The employer is in business. The worker is not engaged in his/her own distinct occupation or business. The employer provides the worker with benefits such as insurance, leave, or workers' compensation. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes). The employer can discharge the worker. The worker and the employer believe that they are creating an employer-employee relationship.

Questions to determine employment status Are there shifts? How are shifts scheduled? Is there any type of “training” involved to perform the duties? Did the business have you fill out an I-9 form? Did the employer treat you like an employee for tax purposes? (Did you receive a W-2?) Are you able to establish your own prices for any services rendered or is there a set price schedule? Does the business have established criteria for how you perform the work? Where is the work performed? Describe the relationship between you and the managers. Can Managers discipline you while at work? How are you referred to at the business? Do the managers refer to you as an employee? Can the business “fire” or “terminate” you? Is the work performed by you part of the business of the employer?

Implications of Independent Contractor v. Employee Employees are entitled to protections not afforded to independent contractors: ◦Anti-discrimination laws including sex (and sex harassment), workers’ compensation, disability, age (over 18), religion, national origin, race, sexual orientation, marital status. ◦Wage and Hour laws.

…employee protections (continued). Workers’ compensation: may be entitled to workers’ compensation benefits for an on-the-job injury including rights to reemployment and reinstatement, and protections against retaliation for filing a claim. (See ORS 659A.040-ORS 659A.049) Sex Discrimination (and Sex Harassment): Employees are protected against sex discrimination and sexual harassment in the workplace. (See ORS ; See also OAR ) Protections because of domestic violence, harassment, sexual assault or stalking (See ORS 659A.270) Disability discrimination: any discrimination on the basis of a disability. If an employer employs 6+ employees, the employer is required to provide reasonable accommodations unless the employer can demonstrate an undue hardship. (See ORS 659A.030 and ORS 659A.112.) Any discrimination (including harassment) on the basis of an individual’s age (over 18). race, color, religion, sex, sexual orientation, national origin, marital status. (See ORS 659A.030.) Religious accommodations (See 659A.033.) Protected time under the Oregon Family Leave Act (See ORS 659A.150-ORS 659A.186) Statewide sick leave (Statutes TBD.) Whistleblowing protections and OSHA (See ORS 659A.199) Oregon Military Family Leave Act (See ORS 659A.090) Social Media Protections (See ORS 659A.330) Breathalyzer, polygraph and psychological stress or brain wave tests (See ORS 659A.300)

Administrative filing for Civil Rights complaints Statute of limitations: the division must receive a verified complaint within 1 year of the last date of harm. (See OAR ) A verified complaint must provide the following: ◦(a) Gives the name and address of the aggrieved person and the respondent; ◦(b) Identifies the protected class basis of the complaint; ◦(c) Is signed by the aggrieved person; ◦(d) Describes the actions complained of, including: ◦(A) The date(s) of occurrence; ◦(B) What the action was and how it harmed the aggrieved person; and ◦(C) The causal connection between the aggrieved person’s protected class and the alleged harm. Once the Division receives a questionnaire, an Intake Officer will contact the individual for an intake interview within 2 weeks. The Division cannot guarantee that a Complainant will remain anonymous, though retaliation for filing a BOLI complaint is unlawful. Witnesses and documents may be considered as evidence to make an investigatory finding. If the Division issues a substantial evidence determination, the case may be referred to the Administrative Prosecution Unit.