Governor Kitzhaber last week signed House Bill 2950 ("HB 2950"), which expands the Oregon Family Leave Act ("OFLA") to include bereavement leave. The change will become effective on January 1, 2014.
Under the new law, an OFLA-eligible employee (who works for OFLA-covered employer) may take up to two weeks of leave for three death-related purposes: attending the funeral or alternative to a funeral of a family member; making arrangements necessitated by the death of the family member; or grieving the death of the family member. The law incorporates the existing definition of “family member,” meaning that an employee make take the leave for the death of a spouse, same sex domestic partner, parent, parents-in-law (including the parents of same-sex domestic partners), grandparent, grandchild, child, stepchild, or child of the employee’s same sex domestic partner.
The eligible employee must provide notice of the leave, but unlike other kinds of OFLA leave, the employer may not reduce the 2-week leave entitlement for failure to timely provide notice. The leave must be completed within 60 days of the date on which the employee receives notice of the death.
There are a couple of additional quirks in the new law. An employer may not require the eligible employee to take multiple periods of leave concurrently if more than one family member dies during the one-year leave period. In other words, if an employee has the misfortune to lose two family members in rapid succession, the employer cannot require that the employee take bereavement leave for multiple deaths concurrently. In addition, the general prohibitions against family members who work for the same employer taking concurrent leave does not apply to bereavement leave; spouses or same sex domestic partners who work for the same employer may take concurrent bereavement leave.
Employers should start preparing now by reviewing and updating their handbooks and leave policies to be ready to comply with the new law when it becomes effective in January.
Last year, we posted about a decision from the Southern District of Texas in which the court ruled that firing a woman because she was lactating or breast-pumping did not amount to sex discrimination under Title VII or the Pregnancy Discrimination Act (PDA). The Fifth Circuit Court of Appeals recently reversed the district court’s decision. In a none-too-surprising opinion, the Fifth Circuit ruled that taking an adverse employment action against a woman because she is lactating or expressing breast milk is a cognizable sex discrimination claim because (1) it imposes upon women a burden that male employees do not suffer, and (2) lactation is a medical condition of pregnancy under the PDA.
Is this earth-shattering news? Probably not. To most of us, it probably seems like common sense. But the opinion likely does represent a significant victory for the EEOC, which now has another tool in its belt to pursue pregnancy discrimination claims. Employers should be wise to know that pregnancy discrimination claims may now be viable for a longer period of time after childbirth than was the case prior to this ruling. The district court essentially took the position that a woman does not fall within the protections of the PDA after she gives birth to her child. Now, under the Fifth Circuit’s ruling, mothers could fall under the protections of PDA for as long as they are breastfeeding.
The Fifth Circuit was careful to note, however, the Title VII and the PDA do not require employers to provide special accommodations for nursing mothers to pump breast milk. Title VII and the PDA only prohibit an employer from taking an adverse employment action against a mother for lactating. Although the Fifth Circuit was careful to note this distinction, employers should remember that under the recent amendments to the FLSA imposed by the Affordable Care Act, employers must provide breaks and a room for nursing mothers to pump. Nursing mothers who are exempt under the FLSA are not afforded rights to pump in the workplace under either federal statute, but may be covered under applicable state statutes, which are summarized here.
Oregon Legislature Passes HB 2654 Prohibiting Employers From Requiring Access To Employee Social Media Accounts
Coming as no big surprise since other states, like Utah and California, have been passing similar laws, the President of the Oregon Senate recently signed the final version of HB 2654, which will prohibit Oregon employers from compelling employees or applicants to provide access to personal social media accounts, like FaceBook or Twitter. The law will also keep off limit to employers other sites that allow users to create, share or view user-generated content (like videos, still photos, blogs, videos, podcasts or instant messaging, email or website profiles), and also prohibits requiring that employees allow the boss to join or "friend" them on social media sites. It also prohibits retaliation against any employee or applicant who refuses to provide access to accounts or to add the employer to his or her contacts list. The law becomes effective in January 2014.
Specifically, under the new law Oregon employers will not be allowed to:
- Require or ask an employee or applicant to share a username or password allowing access to a personal social media account;
- Require employees or applicants to add their employers to their contacts or friends lists;
- Compel employees or applicants to access the accounts themselves to allow the employer to view the contents of a personal social media account;
- Take or threaten to take any action to discharge, discipline or otherwise penalize an employee who refuses to share their account access information, allow their employer to view content, or add the employer to their contact or friends list (or fail or refuse to hire an applicant for the same things).
On the other hand, under the new law Oregon employers may still:
- Require employees to share usernames and passwords for social media accounts that are provided by the employer or are used on behalf of the employer;
- Conduct investigations to ensure compliance with applicable laws, regulatory requirements or work-related employee misconduct rules if they receive specific information about employee activity on a personal social networking site, so long as the employer does not compel the employee to provide access to personal social media accounts;
- Require an employee, as a part of an investigation, to share content that has been reported to the employer and is necessary to making a factual determination about the matter being investigated;
- Continue to view any information online about employees or applicants that employees or applicants leave public.
- Employers will not be liable for inadvertent access to personal social media accounts of employees.
HB 2654 is off to the Governor for signature, and there is little doubt Gov. Kitzhaber will sign it into law. We’ll keep you posted on further developments. In the meantime, now may be a good time to review your social networking policies and application materials to make sure they don’t run afoul of the new law.
Once again, federal courts have halted efforts by the current National Labor Relations Board ("the Board") to expand its regulatory reach. Earlier this week, in National Association of Manufacturers v. NLRB, the Court of Appeals for the District of Columbia Circuit struck down the Board’s controversial attempt to require virtually all employers to post a notice advising employees about the requirements of the National Labor Relations Act ("the Act") and the sixty years of interpretations of the federal labor laws.
The Board’s notice-posting rule has had a long and contentious history. The original petition was filed in 1993, but it was not until 2010 when the Board, by then with a majority of members appointed by President Obama, issued a proposed rule. The final rule was published in August, 2011, and litigation challenging the Board’s authority began almost immediately. As we have reported before, the Board had only mixed success. One district court upheld the rule only in part, and another struck down the rule completely. While those cases were on appeal, the posting requirement was stayed pending completion of judicial review.Continue Reading...
Ninth Circuit's Standing Committee on Federal Public Defenders Finds DOMA and Oregon's Measure 36 to be Unconstitutional
A single Ninth Circuit judge, in his capacity as chair of the Circuit’s Standing Committee on Federal Public Defenders (“the Standing Committee”), recently ruled in the unpublished decision of In the Matter of Alison Clark that the federal Defense of Marriage Act (“DOMA”) and Oregon’s Measure 36 violate the United States and Oregon Constitutions by unlawfully discriminating against same-sex couples.
Alison Clark, a federal public defender in Oregon, married Anna Campbell in Canada in 2012. Clark’s marriage was not recognized in Oregon, due to Measure 36, a ballot initiative passed in 2004 that defined marriage as between only a man and a woman. In addition, the federal government did not recognize Clark’s marriage, as DOMA similarly defines marriage as a legal union between one man and one woman.
Shortly after her marriage, Clark applied for benefits for Campbell under the Federal Employees Health Care Benefits (“FEHB”) program. After Clark’s application was denied, Clark filed suit, alleging discrimination on the basis of her sexual orientation.
The Standing Committee ruled that Clark was entitled to receive benefits for Campbell under FEHB. First, the Standing Committee found that Clark’s rights under the Employment Dispute Resolution Plan for federal public defenders were violated, because the Plan prohibits discrimination against employees based on sexual orientation. Second, the Standing Committee held that Measure 36 violates the Equal Protection and Due Process Clauses of the Oregon Constitution, concluding that Oregon’s prohibition of same-sex marriage bears no rational relation to any legitimate governmental purpose. Finally, the Standing Committee held that DOMA violates the U.S. Constitution for similar reasons. The Standing Committee rejected proffered justifications for Measure 36 and DOMA such as “encourag[ing] responsible procreation,” “ensur[ing] that children will be raised in stable and enduring families,” and “defending heterosexual marriage,” stating “I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships. This objective amounts to a desire to harm a minority group and is therefore impermissible . . ..”
While this unpublished decision of the Standing Committee does not have precedential value, its reasoning is particularly interesting in light of the U.S. Supreme Court’s current consideration of the constitutionality of DOMA. The decision may also signal movement in the federal courts towards greater recognition of issues associated with sexual orientation in the workplace.
Does Appointment of Plaintiffs' Class Action Attorney Jenny Yang to EEOC Signal Continued Focus On "Systemic" Cases?
Last Friday, the U.S. Senate confirmed President Obama's nomination of Plaintiffs' class action attorney Jenny Yang to serve as one of the Democratic Commissioners on the U.S. Equal Employment Opportunity Commission ("EEOC"). On the one hand, Ms Yang's confirmation likely does not herald a big change in the EEOC's philosophy or priorities; Ms Yang's appointment was of the relatively routine type that the President must make to fill many top positions at federal agencies. Further, Ms Yang replaces another Democratic Commissioner, Stuart Ishimaru, who resigned last year, so the five-person Commission will continue to consist of three Democrats (who tend to be more employee friendly) and two Republicans (who tend to be more employer friendly).
On another hand, though, Ms Yang's background may signal a renewed focus by the Obama Administration on aggressive EEOC enforcement, including through EEOC-initiated litigation. Ms. Yang is currently a partner at the plaintiff class action litigation law firm Cohen Milstein Sellers & Toll, which has represented plaintiffs in some of the biggest employment discrimination class action cases of recent years. For example, Ms. Yang represented plaintiffs in a large sex discrimination class action case against Boeing in Washington state, which reportedly settled for $72 million in 2005. Her firm also represented members of the putative class of 1.5 million female Wal-Mart employees in the blockbuster case Dukes v. Wal-Mart. While the U.S. Supreme Court ruled in 2011 that the Dukes plaintiffs were too numerous and different to be certified as a single, nation-wide class, the litigation has since continued as numerous "smaller" class action lawsuits in courts around the country.Continue Reading...
US Supreme Court Gives Green Light For Employers To Use Offers Of Judgment To Moot FLSA Collective Actions
Today the US Supreme Court issued its long-awaited opinion in Genesis Healthcare v. Symczk. In the case, the Court held that employers could effectively end collective action lawsuits under the Fair Labor Standards Act (FLSA) by agreeing to pay the named plaintiffs in those lawsuits whatever they claim they are owed. The Court held that because the named plaintiff was made completely whole by the employer’s offer her individual claim was moot, and because the named plaintiff’s claim was moot the entire collective action litigation was dismissed. This decision provides a helpful tactical weapon for employers that face the prospect of long and expensive collective action litigation.
How To “Pick Off” A Big FLSA Collective Action Lawsuit
Laura Symczk was employed as a nurse for Genesis, and was non-exempt under wage laws like the FLSA. She filed an FLSA “collective action” against Genesis claiming that it unlawfully failed to pay her and other nurses for meal breaks in which she had to work (the FLSA requires that employers pay employees for all their work time, including during meal breaks when the employee is not relieved of all work duties). Very early in the litigation, Genesis Healthcare issued what is called an “offer of judgment” under Federal Rule of Civil Procedure (FRCP) 68, offering to pay Symczk everything she claimed she was owed for her own unpaid work time (about $7,500, plus her attorney fees to date). The trial court then dismissed her entire collective action lawsuit, finding that because Symczk was made completely whole by Genesis’ offer and no others had yet joined the collective action, the case was “moot.”
You have probably seen news accounts of employers requesting or requiring employees or applicants to disclose their usernames or passwords for their online accounts at services like Facebook and Twitter. Employers ostensibly request this information to learn more about job applicants and to monitor employee compliance with workplace requirements. Many employees and observers, however, see such requests as overly intrusive. The resulting controversy has led some states to pass laws restricting employers’ rights to make such requests. On March 7, 2013, the Utah State Legislature joined these states and passed the Internet Employment Privacy Act (the “Act”).
Under the Act, Utah employers may not request that an employee or job applicant disclose a username and password allowing access to a personal internet account. It also prohibits employers from taking an adverse employment action (like refusing to hire, demoting or firing) against an employee who fails or refuses to disclose a username or password for a personal internet account. A “personal internet account” is defined under the Act as an online account used by the employee or applicant for purely personal reasons unrelated to work.Continue Reading...
As a friendly reminder, employers must update two key employment forms this month. As of March 8th, employers must begin using the most recent FMLA poster issued by the Department of Labor. The updated poster reflects the DOL’s final rule concerning military related leave available under FMLA. The DOL has also issued new FMLA forms to reflect these changes. Also as of March 8th, employers must begin using the new I-9 Form issued by the U.S. Department of Homeland Security, Department of U.S. Citizenship and Immigration Services. Unlike other recent versions of the form, this form has a three year shelf life as it will not expire until March 2016. New instructions for the I-9 form have also been published to help guide employers.
The new FMLA poster can be downloaded here:
Info & links to the updated FMLA forms are found here: http://www.dol.gov/whd/fmla/index.htm, http://www.dol.gov/whd/fmla/2013rule/, and http://www.dol.gov/whd/fmla/2013rule/militaryDate.htm
The new I-9 Form and instructions can be downloaded here:
If you have any questions regarding the new forms or the changes to the FMLA, feel free to contact any member of the Stoel Rives LLP Labor and Employment Group.
We previously advised you that the Portland City Council was considering an ordinance that would require Portland employers to provide sick leave to employees. The Council voted unanimously to approve the ordinance on Wednesday, meaning that Portland will now join a handful of jurisdictions (including Connecticut, San Francisco, Seattle, and Washington, D.C.) that require employers to give employees time off for illness. Similar bills have also been introduced in the state legislature, although it is too soon to predict whether they will pass.
The Portland ordinance, which takes effect on January 1, 2014, generally requires private employers to provide 40 hours of sick leave per year to eligible employees. For employers with six or more employees, the time must be paid; for smaller businesses, leave may be unpaid. Employers that already provide sick leave equivalent to or in excess of what the ordinance requires do not need to make any changes.Continue Reading...
Oregon Supreme Court Takes Another Big Bite Out of the At-Will Employment Doctrine in Cocchiara v. Lithia Motors
Most people understand that employment in Oregon, as in most states, is at will, meaning that either the employer or the employee can end the relationship at any time for any reason or no reason at all, absent a contractual, statutory, or constitutional requirement to the contrary. Of course, that last clause provides that there are limits on at-will employment. An employer can’t end the relationship because the employee becomes disabled, needs to fulfill duty obligations in the armed forces reserves, files a complaint against the employer, or a myriad of other unlawful reasons. Some plaintiff’s lawyers would argue that the at-will employment doctrine is so riddled with exceptions that it doesn’t really exist. And good employer defense attorneys will advise their clients that, while the doctrine still exists, every termination should be supported by clear, legitimate business reasons – and ideally with good documentation. But it is clear that no employee can have a reasonable expectation of continued employment, since he or she could be fired at any time. But what about an applicant?
Suppose an applicant meets with a hiring manager and, after the interview, the manager shakes the applicant’s hand and says “You’re hired! Come in tomorrow to sign the paperwork.” The applicant has another offer and the hiring manager encourages him to turn it down. The applicant does so and, the next day, shows up at his new employer’s offices. There he is told that they have changed their minds and don’t need him after all. The applicant is devastated because not only does he not have this job, but the other offer he turned down has already been filled. The employer, on the other hand, reasons that it could have fired the applicant anyway on his first day on the job under the at-will doctrine, so where is the harm? The employer argues that if the applicant has a claim, how long does an employer have to employ new hires?Continue Reading...
The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments regarding procedures for handling employee whistleblower complaints under the Affordable Care Act (ACA), Section 1558. This part of the ACA added a new Section 18c to the Fair Labor Standards Act (FLSA), which protects employees from retaliation for exercising certain rights under the ACA, including (1) receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange, (2) reporting a violation of consumer protection rules under the ACA (which, for instance, prohibit denial of health coverage based on preexisting conditions and lifetime limits on coverage), and (3) assisting or participating in a proceeding under Section 1558.
The interim final rule states the time frames and procedures for bringing a whistleblower complaint under Section 18c and covers the investigation, hearing, and appeals processes. An employee has 180 days from the date of the alleged retaliation to bring a whistleblower complaint to the Secretary of Labor. Where a violation is found, remedies can include reinstatement, compensatory damages, back pay, and reasonable costs and expenses (including attorneys’ fees). If the employee brought the complaint in bad faith, an employer may recover up to $1,000 in reasonable attorneys’ fees.Continue Reading...
Utah State Senator Steve Urquhart (R-St. George) is sponsoring a bill that would amend Utah’s employment and housing antidiscrimination statutes to address discrimination on the basis of sexual orientation and gender identity. Urquhart introduced Senate Bill 262 to the Utah Senate Rules Committee on March 1, 2013. Currently, several municipalities in Utah have ordinances prohibiting employment or housing discrimination against LGBT individuals, but there is no state-wide protection against such discrimination, nor is the state’s Labor Commission empowered to investigate or remedy any such discrimination.
S.B. 262 would amend the Utah Antidiscrimination Act to make it unlawful for an employer to discriminate against or harass an otherwise qualified person because of that person’s sexual orientation or gender identity. The bill defines “sexual orientation” as “an individual’s actual or perceived orientation as heterosexual, homosexual, or bisexual.” The bill defines “gender identity” as “an individual’s internal sense of gender, without regard to the individual’s designated sex at birth.” Utah’s Antidiscrimination Act applies to employers employing 15 or more employees but does not apply to religious organizations or associations. S.B. 262 would also exempt organizations “engaged in public or private expression if employing an individual would affect in a significant way the organization’s ability to advocate public or private viewpoints protected” by the First Amendment from the definition of “employer.” Thus, certain advocacy groups would not be required to employ LGBT individuals under S.B. 262 if doing so was inconsistent with their mission and would significantly affect their ability to advocate their viewpoints.Continue Reading...
The Washington Court of Appeals recently determined that state anti-discrimination laws prohibit retaliation against human resources and legal professionals who oppose discrimination as part of their normal job duties. The court also declined to extend the same actor inference, a defense against discrimination claims, to retaliation claims.
Lodis worked at Corbis Holdings as a vice president of human resources. As part of his normal job duties, he warned Corbis’s CEO, Shenk, that Shenk’s age-related comments could give rise to liability for age discrimination. Around the same time, Shenk promoted Lodis but almost immediately gave him a negative performance review, placed him on probation, and then ultimately fired him.
Lodis sued under the Washington Law Against Discrimination (WLAD), claiming that Corbis retaliated against him for opposing Shenk’s comments. The trial court concluded that Lodis was not engaged in protected activity “because he was simply performing his job duties by warning Shenk” about potential discrimination. The court of appeals disagreed.
Step Outside Rule
Corbis urged the court to adopt the “step outside” rule, which governs federal cases under the Fair Labor Standards Act (FLSA). The rule requires an employee to step outside her normal job duties before receiving the FLSA’s protection against retaliation.
The court declined to adopt the rule for two reasons. First, the court believed that the language of the WLAD could not support a step outside rule. Second, the court concluded that policy considerations favored rejecting the rule. “[A]dopting the step outside rule,” the court said, “would strip human resources, management, and legal employees of WLAD protection.” The court noted the importance of protecting these employees because they are often the most able to oppose workplace discrimination.
Same Actor Inference
Corbis also argued that the court should apply the same actor inference to dismiss Lodis's retaliation claim. The same actor inference arises when an employee is both hired and fired by the same decision-makers in a short period of time. Courts may then infer that the employee was not fired for any attribute that the decision-makers were aware of when they hired her. Corbis contended that Shenk promoting Lodis despite the warning about potential discrimination proved that he did not retaliate when he later fired Lodis.
The court, however, refused to extend the same actor inference to retaliation claims. The court was concerned that extending the defense would allow employers to simply promote employees before terminating them to avoid valid retaliation claims.
Thus, Lodis v. Corbis Holdings, Inc. limits the same actor defense to traditional discrimination cases. And perhaps more importantly, the case reaffirms that the WLAD protects all employees from retaliation.
California law requires employers with five or more employees to provide pregnancy disability leave (PDL) to employees who are disabled by pregnancy, childbirth or related medical conditions. New revisions to the PDL regulations have taken effect and include some notable substantive changes, including the following:
- Expansion of definition of “disabled by pregnancy.” The regulations now define the term “disabled by pregnancy” to include needing time off for prenatal or postnatal care, gestational diabetes, pregnancy-induced hypertension, preeclampsia, post-partum depression, and loss or end of pregnancy. The regulations indicate that the list of conditions is intended to be non-exclusive and illustrative only, so employers should take a broad view of the term “disabled by pregnancy.”
- Prohibition of discrimination based on “perceived pregnancy.” It is now unlawful to discriminate or harass an employee based on “perceived pregnancy,” which the regulations define as being regarded or treated by an employer as being pregnant or having a related medical condition.