The Ninth Circuit Joins Its Sister Circuits in Ruling That an Employee Who Threatens Co-Workers with Violence Is Not “Qualified” Under the ADA

The Ninth Circuit released a precedent-setting Americans with Disabilities Act (“ADA”) decision yesterday, and it’s a big win for employers.  The Court held that an employee who makes “serious and credible threats of violence toward his co-workers” is not a “qualified individual with a disability” and therefore cannot state a claim under the ADA or Oregon disability law. Karen O’Connor, Brenda Baumgart and Andrea Thompson from Stoel Rives represented the employer in this case, Mayo v. PCC Structurals, Inc., and a link to the Court’s decision is here.

Plaintiff’s Stress Leads to Death Threats in the Workplace

Plaintiff was a long-term welder at an industrial facility. Despite a 1999 diagnosis of major depressive disorder, he worked without significant issue for decades. In 2010, plaintiff and a few co-workers claimed a supervisor bullied them at work. Shortly after a meeting among plaintiff, a co-worker and the company’s HR director to discuss the supervisor, plaintiff began making threatening comments. He told a co-worker that he “felt like coming down to [the facility] with a shotgun and blowing off” the heads of his supervisor and a different manager. Among other comments, he also told other co-workers that he planned to come to the facility during the day shift “to take out management” and that he “wanted to bring a gun down to [the facility] and start shooting people.”

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EEOC Rules That Title VII Prohibits Discrimination Based on Sexual Orientation

In a 3-2 decision published on Thursday, July 16, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) concluded that intentional discrimination against an employee based on their sexual orientation is sex discrimination- an act strictly prohibited under Title VII of the Civil Rights Act of 1964. “Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” the EEOC said. As a result, agencies are now expected to treat claims involving discrimination on the basis of sexual orientation as a claim of sex discrimination under Title VII.

Thursday’s opinion marks yet another significant decision by the EEOC, which in recent years has expanded (or clarified) the extent to which Title VII protects against various forms of workplace discrimination involving sexual orientation or gender identity. As you may recall in 2012, the EEOC in Macy v. Holder found that intentional discrimination against transgender individuals was a form of sex discrimination, and thus actionable under Title VII. Since Macy, the EEOC has been quietly processing a steady number of claims alleging discrimination based on sexual orientation from private and public sector employees. The latest ruling provides clear, authoritative guidance on how to process such claims going forth.

So what does this mean for private employers? For employers who are subject to state or local law prohibiting sexual orientation discrimination or who already have established internal policies prohibiting sexual orientation discrimination, the EEOC’s ruling will have little impact on personnel practices. More than twenty jurisdictions, including Oregon, Washington, California, Minnesota, Utah, and the District of Columbia, already prohibit sexual orientation discrimination. However, Thursday’s ruling may open up employers in such states to both state and federal sexual orientation discrimination claims. For employers across the country, the EEOC’s latest ruling is indicative of how the prohibition of sex-discrimination continues to expand under Title VII, and provide new potential protections in those jurisdictions that currently do not have such state or local prohibitions.

Marriage Equality Is Nationwide

In Obergefell v. Hodges, the United States Supreme Court held that “[t]he right to marry is a fundamental inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.” This historic opinion means that same sex couples in the U.S. can marry no matter where they live and that states may no longer restrict marriage only to heterosexual couples. While opinion polls now show a solid majority nationwide supporting marriage equality, that level of support is not uniform and this 5-4 decision will not eliminate continued debate and controversy.

However, marriage equality is now the law of the land. States must allow same sex couples to wed and governments, and employers must extend the rights and benefits of marriage to wedded same sex couples.

Oregon’s New “Ban the Box” Law Prohibits Criminal History Questions on Employment Applications

It’s been an active legislative session in Oregon this year regarding laws affecting the state’s employers.  Hot on the heels of enacting laws relating to paid sick leave, noncompete agreements, and employee privacy on social media, Governor Kate Brown also recently signed into law House Bill 3025.  That law will make it illegal for most employers to ask employment applicants criminal history questions on employment applications.  The new Oregon law takes effect January 1, 2016.

Oregon becomes the most recent of a number of states that have passed similar “ban the box” laws.  Under HB 3025, it will be illegal for most employers to ask job applicants criminal history questions on employment applications. Note that this does not mean that employers cannot use information regarding criminal history at all; just not on an initial application.  Criminal history questions still will be permissible at the initial interview or, absent an interview, may be asked after a conditional offer of employment has been made. Further, nothing in the Oregon legislation prohibits criminal background checks generally as part of the employment application process.

The legislation does not provide for a private right of action; administrative charges may be filed with the Oregon Bureau of Labor and Industries.

In addition to state and local “ban the box” laws like Oregon’s HB 3025, employers should also be mindful that over the past few years the U.S. Equal Employment Opportunity Commission (“EEOC”) has taken the position that employers’ overly broad use of criminal background checks can violate Title VII of the Civil Rights Act of 1964, because, the EEOC believes, such checks can have a “disparate impact” on job applicants of some racial groups, particularly Hispanic or African American applicants.  But as we have blogged about before, the EEOC’s interpretation that Title VII limits use of criminal background checks has been met with skepticism in the courts.

Oregon employers should review now their employment applications and their employment application processes to begin to get ready for the law’s implementation in 2016. Generally, criminal history questions should be removed from written or on-line employment applications. Managers who hire should be trained as to the appropriate scope and timing of criminal history inquiries.

Oregon Enacts State-Wide Paid Employee Sick Leave Which (Mostly) Replaces Local Ordinances in Portland and Eugene

Governor Kate Brown signed into law the new Oregon Paid Sick Leave (“OPSL”) law enacted by the Legislature on June 12. The new law becomes effective January 1, 2016. Oregon is the fourth state to enact a state-wide paid sick leave law after Massachusetts, Connecticut, and California. The text of the OPSL is available here.

The OPSL will look familiar to Oregon employers that have already been dealing with local PSL ordinances enacted in Portland and Eugene in recent years, which OPSL now preempts and replaces. OPSL largely tracks those local leave laws in substance, and generally requires employers to provide up to 40 hours of sick leave per year. Here is a detailed summary of its requirements, including where it differs from the Portland and Eugene ordinances. Continue Reading

It’s Coming: Overtime Pay for More Workers

Coming to a store or restaurant near you soon!  Supervisors will get overtime!

To be exempt from minimum wage and overtime requirements, currently a worker must perform certain duties (for example, supervise at least two other workers) and be paid a minimum salary of $455 per week ($23,660 per year). These are known as the white collar exemptions and they are categorized as Executive, Administrative, Professional, Outside Sales and Computer Professional. (Computer Professionals have to be paid a minimum of $27.63 per hour, in addition to meeting their duties test.)

The modest salary requirement was raised slightly in 2004 but hasn’t budged since. President Obama has now instructed the Department of Labor to increase that salary level to $50,440 in 2016 (the salary level for another exemption category referred to as “Highly Compensated Employees” is also being proposed to increase from $100,000 per year to about $122,000 per year). The DOL also proposes to add an escalator clause so that the salary level rises automatically over time, and it is also going to consider revising some of the duties tests.

What does this mean for employers?

This massive change in the law is not going to require congressional approval. All that is necessary is that the Department of Labor changes its rules and it is undoubtedly going to do that soon after the end of the 60-day rulemaking comment period.

The DOL estimates that 5 million workers will benefit from the change. And, if the agency tightens the duties tests, even more workers will lose the exemption. Every employer will need to review each of its positions that is currently classified as exempt to determine whether the position retains the exemption. Stay tuned.

Oregon Tightens the Screws on Noncompetes: 18 Months Will Soon Be the Maximum Period of Restriction

As we blogged about earlier, courts in most states just plain don’t like employee noncompete agreements. Particularly when it comes to mid- and low-level employees, courts worry that enforcing a noncompete agreement will hamper innovation, restrict competition, and unfairly burden a former employee’s ability to earn a living. For that reason, a court typically will review an noncompete’s justification, scope, and length with the judicial equivalent of a fine-tooth comb.

Courts have been picking away at the enforceability of employee noncompetes for years, but more recently, legislatures have jumped into the mix with varying levels of aggressiveness. California has long banned noncompetes outright, and several other states either have followed suit (e.g., North Dakota) or are considering whether to pass similar laws (e.g., Massachusetts, Washington). Still others have adopted laws that make it easier for employers to enforce noncompetes (e.g., Georgia), or are considering whether to do so to remedy past judicial reticence in the area (e.g., Wisconsin).

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Oregon Legislature to Employers: Stay Out of Employees’ Personal Social Media Accounts!

As we noted a while ago, Oregon recently joined the growing number of states that prohibit an employer from demanding access to an employee’s personal social media account. An Oregon employer may not require an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to friend, follow, or otherwise connect with it via a social media account, or to permit the employer to “shoulder surf” while the employee is logged in. There are exceptions—business-related social media accounts and workplace investigations are notable ones—but the rule is fairly clear: When it comes to employees’ personal social media accounts, it’s probably best for an employer to keep its distance.

Seems simple enough, right? Maybe, but here in Oregon, we like not to be outdone by our neighbors. So, last week, Governor Kate Brown signed Senate Bill 185, which adds a few interesting tweaks to the “model” approach that most other states (including Oregon) have followed when adopting social media protections for employees.

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U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive

Stoel Rives Summer Associate Dexter Pearce co-authored this post.

In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.

Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.
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Colorado Supreme Court Upholds Firing of Medical Marijuana User

The Colorado Supreme Court ruled today in a 6-0 decision that Colorado’s “lawful activities statute,” which provides protections to employees who engage in lawful off-duty conduct, only applies to conduct that is lawful under both state and federal law. The Court’s decision in Coats v. Dish Network, which can be accessed here, involved a quadriplegic man who is an authorized medical marijuana patient under Colorado’s medical marijuana law. There was no evidence of impairment at work, and the employee had a very good work record. The employer, Dish Network LLC, terminated the employee after he tested positive for marijuana in violation of Dish Network’s drug testing policy.

Colorado is one of only 4 states (along with Washington, Oregon and Alaska) to have legalized so-called “recreational marijuana,” and one of 23 states to authorize medical marijuana use. However, marijuana remains illegal under federal law for virtually all purposes, a fact that is unlikely to ever change unless Congress amends the federal Controlled Substances Act and/or carves out exceptions for state-authorized marijuana use. Because marijuana is illegal under federal law, the Colorado Supreme Court found that Dish Network didn’t violate Colorado’s lawful activities statute when it fired the employee. “The term ‘lawful’ refers only to those activities that are lawful under both state and federal law,” the Court held. “Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.” It is worth noting that Colorado’s constitutional amendment legalizing recreational marijuana also expressly states that employers are not restricted from having zero tolerance policies for marijuana use.

The Colorado Supreme Court’s decision is consistent with decisions from the Supreme Courts of Washington State, Oregon and California, all of which have, to one degree or another, noted the public policy incongruity that would occur if a state workplace protection was predicated on an act that is illegal under federal law. The employer in the Washington Case, Roe v. Teletech, was represented by Stoel Rives and the decision was blogged here.

The bottom line is that, unless Congress either changes how marijuana is classified under the federal Controlled Substances Act or carves out protections for state-authorized medical marijuana users, employment law is not going to experience a sea-change on this issue. A handful of states (Arizona, Delaware, Maine, Rhode Island and Nevada among them) do have some workplace accommodation protections in their medical marijuana statutes, but most states do not. And in case you were wondering, an employer does not need to accommodate medical marijuana under the federal Americans with Disabilities Act because, you guessed it, marijuana is illegal under federal law.