DOL Proposes New Rule on Measuring Workplace Risks
The U.S. Department of Labor today issued this proposed rule that would change the methods the government uses to measure workplace exposures to toxic substances and hazardous chemicals.
Under the proposed rule, the DOL will require that before agencies can issue rulemaking dealing with health issues, they first must solicit input on studies, scientific information, and data on frequency, intensity, and duration of worker exposure. Rulemaking agencies, such as the Occupational Safety and Health Administration and the Mine Safety and Health Administration, will be required to publish an advanced notice of proposed rulemaking soliciting public information when developing risk assessments for health standards regulating occupational exposure to toxins and chemicals.
The proposed rule is already under attack by congressional Democrats, who describe the rule as a "secret regulation" that could have "a profound negative impact on the health and safety of American workers." The DOL will accept public comments on the notice of proposed rulemaking until Sept. 28.
Ninth Circuit Overturns NLRB in Dues Checkoff Case
Earlier this week, the Ninth Circuit Court of Appeals overturned for the second time a decision by the National Labor Relations Board, and held that two Las Vegas casinos violated the National Labor Relations Act by unilaterally terminating dues checkoff without first bargaining with the union over that decision. Local Joint Executive Bd v. NLRB (9th Cir 08/27/2008).
The employer argued that the parties' collective bargaining agreement allowed it to end dues checkoff at the expiration of the agreement and the NLRB agreed; the Ninth Circuit, however, held that the contract language does not show a "clear and unmistakable waiver" of the unions' right to bargain over ending dues checkoff. This was the second time this case was before the Ninth Circuit - the first time, the court remanded the case to the NLRB to "articulate a reasoned explanation" for its conclusion that dues-checkoff disputes should be excluded from the "unilateral change doctrine" recognized in NLRB v. Katz, 369 US 736 (1962).
The lesson for union employers: remember your obligation to bargain with the union in good faith before making any unilateral change to the terms and conditions of employment, unless there the union has clearly and unmistakenly waived its right to bargain over that change. Unilateral changes might get a pass from the current NLRB, but they are unlikely to be tolerated by the appellate courts.
Stoel Rives Offers Seminar on Oregon's New Noncompete Law
Legislation that significantly altered an employer’s ability to utilize noncompete agreements in the state of Oregon took effect on January 1, 2008. How has the new law impacted corporate policies around restrictive covenants? What are the new best practices you need to implement to stay in compliance?
For answers to these questions and more, join Stoel Rives for a breakfast seminar on September 25 titled "Noncompetes, Nonsolicitation and Confidentiality: Lessons Learned After a Year Under Oregon's New Noncompete Law," presented by Amy Joseph Pedersen, Ed Reeves and Carolyn Walker of the firm's Labor and Employment Group.
California Court Upholds One Year Statute of Limitation to Arbitrate FEHA Claim
If you've followed the development of California law on the enforceability of arbitration agreements in the last few years, you know it's complex. And last week, it just got a little more so, although in a way that might be good for employers. In Pearson Dental v. Superior Court, the California Court of Appeal (Second District) enforced an arbitration agreement requiring the employee to bring any claims within one year, despite the "hybrid" two year statute of limitations in California's Fair Employment and Housing Act (FEHA).
The employee sued the employer for violation of FEHA alleging age discrimination and other claims. The employer successfully moved to compel arbitration, and the arbitrator granted the employer's motion for summary judgment on the grounds that arbitration was not requested within one year as required by the arbitration agreement. The trial court vacated the arbitration award, but the Court of Appeal reversed, holding that the one-year statute of limitations did not "unreasonably restrict plaintiff's ability to vindicate his rights under the FEHA." The court noted that the FEHA does not have a "true" two-year statute of limitations, but rather a "hybrid" period, in which the employee must file an administrative complaint within the first year. Thus, the arbitration agreement's one-year limitations period was comparable to the FEHA's one-year administrative complaint deadline.
Does this mean that California courts will be more likely to enforce arbitration agreements? Don't count on it. The court did not spend significant time analyzing the agreement for evidence of either substantive and procedural unconscionability - which are the bases on which many California courts have invalidated arbitration agreements. Nevertheless, the case does give employers some comfort in knowing that a shorter limitations period sometimes may be enforceable. If you want to read up on the complex history of employment arbitration agreements in California, here's what the Attorney General has to say on the topic.
Russian Judge: Sex Harassment Necessary for Procreation
It's a slow news week in American labor and employment law, so we have to go all the way to Russia for a newsworthy story: a Russian judge recently ruled that sex harassment is lawful because it's necessary for human procreation. According to the judge, sex harassment is "gallant," not criminal: "If we had no sexual harassment we would have no children," wrote the judge in his opinion dismissing a female executive's lawsuit.
Really. We're not making this up. If you don't believe us, check out what the U.K. Telegraph has to say. Or one of our favorite blogs, the Huffington Post.
Don't expect this to become a successful defense in this country any time soon. If you have an employee that thinks sex harassment is "gallant," have them read this fact sheet on sex harassment from our friends at the EEOC.
Major Changes to ADA Coming
Here's something to be watching: a bill currently winding its way through Congress is likely to bring significant changes to the Americans with Disabilities Act. The bill, knows as the ADA Amendments Act ("ADAAA"), will greatly broaden the scope of the ADA.
Some highlights of the ADAAA:
- Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
- Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
- Creates a list of per se "major life activities"
- Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
- Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
- Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability
The ADAAA passed the House of Representatives on June 25, 2008 by a vote of 402-17. The bill was introduced to the Senate on August 1, and reports are that at least 70 Senators have vowed to support the bill. A vote is expected when the Senate reconvenes in September. No word yet from the White House on whether President Bush will sign the bill into law, but it seems to have a veto-proof majority.
To read an official summary of the ADAAA, click here. To read the full text of the current bill, click here. Stay tuned to the Stoel Rives World of Employment for updates on this landmark legislation.
Washington Mail Carrier Demands Right to Wear Kilt at Work
A 6-foot-tall, 250-pound mail carrier in Lacey, Washington, wants the U.S. Postal Service to add kilts as a uniform option for men, according to this article from the Seattle PI. David Peterson, the mail carrier/kilt enthusiast in question, has successfully lobbied the Oregon and Washington mail carrier union locals to endorse kilts; however, his efforts were defeated at the July convention of the 220,000-member National Association of Letter Carriers. Peterson, undaunted, vows to continue the fight for his right to wear a kilt on the job.
Why does Peterson want to wear a kilt? According to Peterson, "In one word, it's comfort." With his build, Peterson said, his thighs "fill slacks to capacity, causing chaffing and scarring."
Scarring? Really? If so, could Peterson have a disability claim? In any event, this author is now shopping for a nice, business-casual UtiliKilt.
California Employers Required To Offer, But Not Police, Meal and Rest Breaks
California employers scored a major victory regarding meal and rest periods as the result of a new California Court of Appeals decision, Brinker Restaurant Corp. v. Superior Court. Under the ruling, employers must provide meal periods by making them available, but need not ensure that they are taken. To read Stoel Rives' detailed synopsis of the case, click here.
California Paid Sick Leave Bill Dies in Committee
A California bill to provide universal paid sick leave died in committee last week, following intensive lobbying efforts from small businesses and their lobbyists. The bill would have granted employees of small companies in California up to five days of paid sick leave each year, while workers at larger companies could take up to nine days a year. To read more, check out this article from the L.A. Times.
The bill was scuttled primarily due to the cost of implementation and enforcement in a year in which the state faces a $15 billion deficit. Even if it had passed, the bill faced a likely veto from Governor Arnold Schwarzenegger. The bill's sponsor, Fiona Ma (D-San Francisco), vowed to reintroduce a similar measure next year.
If passed, the law would have made California the first state to have a mandatory paid sick leave program. However, the program is not entirely unprecedented: employees is San Francisco already have a paid sick leave program. Further, since January 1, 2004, California has offered wage replacement benefits for employees who take time off from their jobs in order to care for a family member or child with a serious health condition. Want to learn more about the legislative process? Watch this.
California Supreme Court Confirms Noncompetes Are Invalid
In a 7-0 decision yesterday, the California Supreme Court held that a noncompetition agreement signed by a former Arthur Andersen CPA was invalid under California law. In Edwards v. Arthur Andersen LLP, the court reminded us that noncompetition agreements are invalid under California's Business and Professions Code section 16600, even if they are written narrowly enough not to deprive persons of their right to pursue their profession. The court specifically rejected the "narrow restraint" exception to section 16600 that had previously been adopted by the Ninth Circuit, under which employers could enforce noncompetes that did not "entirely preclude" an employee from practicing his or her trade. New Study Suggests Defendants Should Try More Cases
According to a recent study, plaintiffs in civil lawsuits should be more willing to settle their cases, and perhaps defendants should stick to their guns and take more cases to trial.
The study (as reported in this New York Times article), concludes that when plaintiffs reject the defendant's settlement offer and go to trial, they end up with a worse result 61% of the time. Defendants fare far better: only 24% of the time do defendants receive a worse result at trial than they would have had the plaintiff taken their last settlement offer. In 15 percent of the cases, both sides were right to go to trial — the defendant paid less than the plaintiff demanded but the plaintiff won more than the defendant offered.
The full results of the study will be published in the September Journal of Empirical Legal Studies. We'll be waiting to see if the full published study makes any recommendations specific employment litigation.
Oregon Supreme Court: Corporate Directors Not Employees
The Oregon Supreme Court recently ruled that a corporation's board of directors are not employees, and therefore not subject to Oregon's unemployment tax. In Necanicum Investment Co. v. Oregon Employment Department, the Supreme Court reversed a 2007 Oregon Court of Appeals decision that had held unemployment tax should be assessed on the fees paid to the directors. The Supreme Court instead reasoned that because the directors were not acting in the capacity of employees, no employer-employee relationship was formed and therefore there was no basis for the Employment Department to apply the tax.
This decision is good news for corporations who pay fees to their directors; however, many corporate directors act both as directors and also as employees. In those cases, the corporation will still be liable for unemployment taxes on any wages paid to the directors in their roles as employees.
Oregon Court of Appeals Rules Obesity Surgery Covered by Workers' Compensation
In SAIF Corp. v. Sprague, the Oregon Court of Appeals ruled earlier this week that an obese employee's gastric bypass surgery was coverd by workers' compensation. For the full opinion, click here.
The employee in Sprague suffered an on-the-job knee injury in in 1976. He weighed 225 pounds at the time of the injury. The employee began gaining weight after his 1976 injury, and by 2001, he weighed 350 pounds. He then had gastric bypass surgery to reduce his weight, and filed a workers' compensation claim for the surgery, claiming it was necessary to allow his knee to heal.
SAIF, the workers' compensation carrier, took the position that the surgery was not compensable because the employee's obesity was not caused by the 1976 knee injury. The Court of Appeals disagreed, holding that because the record showed the gastric bypass surgery was performed to control the employee's obesity in order to allow the on-the-job knee injury to heal, it was compensable through workers' compensation.
This decision does not likely mean that all or even most gastric bypass surgeries or other elective procedures will be covered by workers' compensation. It does mean, however, that some medical treatment that is indirectly related to a compensable injury may be covered, if the treatment is necessary to treat the compensable injury. Claims like this one will likely be decided on a case-by-case basis.
