Residential Contractors Avoid an Owner’s Statutory Right to Cancel Certain Agreements at Their Own R

Residential contractors do not typically think of their clients as consumers afforded certain agreement cancellation rights under Oregon’s consumer protection laws. While that may be correct when contracting for some jobs, it is not the case in many residential home improvement projects. Contractors that fail to provide the required notice of right to cancel face significant financial risk and losses.

Does the Home Solicitation Sales Act (“HSSA”) Apply to You?

The HSSA, found in Oregon Revised Statute (“ORS”) 83.710 et seq, applies to “home solicitation sales” agreements for work, labor, or services performed for personal, family, or household use upon or in connection with repairs, alterations, or improvements on real property. That definition includes a significant number of projects contractors normally perform, including kitchen or room remodels, painting, roofing, decks, HVAC work, and fences. The HSSA does not apply to new home construction or work performed on business establishment.

For the HSSA to apply, the home solicitation sales agreement must also be signed in a place other than the contractor’s main place of business (i.e., office), such as the homeowner’s residence, a coffee shop, or a restaurant. This is notable because agreements are often signed in a place other than the contractor’s main place of business. It also does not matter whether the homeowner or contractor starts the conversation.

The HSSA also applies to certain telephone solicitations; however, this article focuses only on home solicitations.

What Does the HSSA Require?

Under the HSSA, sellers (contractors) are required to provide buyers (homeowners) with a complete copy of the written agreement entered into to perform the work on the property. The written agreement must (1) include the date the agreement was signed, (2) the residential contractor’s name and place of business address, (3) be in the same language as the language that is principally used in the sales presentation, and (4) include a statement written in a specific manner explaining the homeowner’s right to terminate the agreement within three business days. The statute also requires contractors to orally inform homeowners of their right to cancel and provide two copies of a separate right to cancel notice along with a full copy of the agreement. In particular, the HSSA provides that a “buyer [homeowner] has the right to cancel a home solicitation sale until 12 midnight of the third business day after the day on which the buyer [homeowner] signs an agreement or offer to purchase[.]” ORS 83.720(1).

What if I Do Not Provide the Required Notices?

A homeowner retains the right to cancel the home solicitation agreement until the contractor complies with the notice requirements under the HSSA. This means that a homeowner can potentially cancel the agreement at any time before or during the course of providing the services to the homeowner. In turn, the HSSA requires both the homeowner and contractor to undertake certain acts after the agreement is cancelled. For instance, the homeowner is required, upon written demand, to return to the contractor any goods delivered by the contractor. However, a homeowner is not required to return any property or pay for them if the contractor does not provide a written demand for their return within 20 days after cancellation or revocation of the agreement. The contractor is required to return to the homeowner any payments made by the homeowner within 10 days after the agreement is canceled. ORS 83.740.

The requirements above place non-compliant contractors in the position of being made to return any amounts paid by the homeowner. That is true even where the contractor has already spent significant time, money, and resources in the performance of the contracted work, adding significant risk and losses.

The HSSA does provide an exception to a homeowner’s right to cancel where (i) the homeowner initiates contact with the contractor; (ii) the homeowner requests emergency services without delay using the homeowner’s own document, not provided by the contractor; (iii) the homeowner describes the emergency and expressly acknowledges and waives the right to cancel; and (iv) the contractor in good faith has made a substantial beginning in performance of the contract.

What Should You Do Now?

Contractors should review their processes, procedures, and agreements to ensure they are following statutory requirements. Contractors should also work with their legal counsel to ensure compliance with the HSSA and minimize the risk of possible significant losses.

Oregon Amends the Oregon Family Leave Act (OFLA)

In response to the COVID-19 pandemic, the Oregon Legislature amended OFLA reducing eligibility requirements and expanding its protections.

House Bill 2474 expands eligibility to all employees of a covered employer during a period of public health emergency, if the employee worked for the employer for at least 30 days prior to the date on which the family leave is to be begin and also worked for the covered employer an average of 25 or more hours per week. The amendments add that an eligible employee can now take leave to care for a child who requires home care due to school closure or child care as a result of a public health emergency. The amendments also make employees separated from their employment for any reason illegible to take leave if they are reemployed by the covered employer within 180 days after the separation and were the employee was otherwise eligible to take leave prior to being separated. Finally, the amendments replaced gendered language allowing a "female eligible employee" to take leave for pregnancy disability reason to "an eligible employee". These changes take effect on January 1, 2022.

Employers should review their employee policies and work with their counsel to update them consistent with the above amendments.

Employees Now Have a Rebuttable Presumption of Retaliation

Employees terminated within 60 days after complaining about health and safety issues in the workplace now have a rebuttable presumption of retaliation against their employer.

Signed by Governor Brown on June 15, 2021, Senate Bill (SB) 483 amends the Oregon Safe Employment Act (Act) increasing protections for whistleblowers of unsafe health or safety conditions. The Act already makes an unlawful employment practice for any person to bar or discharge or otherwise discriminate against any employee or prospective employee because the employee complained about health or safety issues in the workplace. Oregon Revised Statute 654.062. SB 483 amends the Act by creating a rebuttable presumption of discrimination or retaliation where the employer bars, retaliates, or discriminates against the employee or prospective employee within 60 days after the employee has complained about any violation of law, regulation, or standard pertaining to safety and health in the workplace. The amendments further clarify that an employer can rebut the presumption by demonstrating by a preponderance of the evidence that it did not retaliate or otherwise discriminate against the employee or prospective employee. The amendments took effect immediately.