Stoel Rives Law Firm : Stoel Rives World of Employment : Disabilities, FMLA, Military Leave, NLRA : Western United States

Oregon’s 76th Legislative Assembly convened on February 1, 2011. The Legislature has wasted no time introducing a multitude of new labor and employment bills, some with potentially far reaching effects. Below is a (non-exhaustive) list of some of the more interesting bills up for debate:

Civil Rights:

• HB 2035 -- Standardizes statute of limitations period for filing discrimination lawsuits. A person who has filed a BOLI complaint must file a lawsuit within one year of the occurrence of the unlawful practice or within 90 days of the mailing of BOLI’s 90-day notice, whichever is later.

• HB 2036 -- This bill was introduced at the request of the Commissioner of BOLI, and attempts to accomplish several significant changes. First, it proposes to lower the standard as to what’s considered a “substantial limitation in a major life activity,” and clarifies certain aspects of state statutes related to discrimination against individuals with disabilities. Second, it grants BOLI the authority to enforce provisions for employees to take crime victim leave to attend criminal proceedings. Third, it will allow employers to make decisions based on credit history of applicants for public safety officer employment.

• HB 2243 -- Allows Attorney General or BOLI to file suit related to discrimination against person for uniformed military service; includes $50,000 penalty for first violation, and $100,000 penalty for each subsequent violation.

• HB 2446 and HB 2771 seek to respectively amend and repeal ORS 659.70 and 659.785 related to workplace communication on employer opinions on religion and politics. While HB 2771 would seek to repeal those provisions entirely, HB 2446 seeks to amend the definitions and exceptions to those provisions and amend the damages as well.

• HB 2828 -- Would make it unlawful (including a civil penalty of $750) to cease to provide health, disability, life or other insurance during period employee serves on a jury.

• HB 2862 -- This bill would extend various anti-discrimination laws to persons working for educational purposes or as volunteers.

Leave:

• HB 2095 -- Requires granting family leave under OFLA for academic activities of the employee’s child, including teacher conferences or meetings, and requires granting up to 18 hours of family leave for academic activities in a one-year period, but not more than six hour per calendar month.

• SB 506 -- Allows eligible employee to take family leave related to the death of a family member.

• HB 2850 -- Adds siblings as covered family members under OFLA.

Wage and Hour:

• HB 2038 -- Modifies expression of breast milk provisions. Requires employers to provide a reasonable rest period each time an employee has a need to express milk and eliminates the undue hardship exception for employees with 50 or more employees

• HB 2040 -- Requires unpaid wages requested by employee post-termination or discharge to be mailed by certified mail, return receipt request.  

• HB 2230 -- Requires employers to offer first payment to a new employee within 14 days of employment, unless declined by employee. Carries a maximum fine of $720 for violations.

• HB 2861 -- Expands Oregon’s wage discrimination law to bar wage discrimination based on a more expansive list of protected classifications, not just sex.

Other:

•  Immigration: HB 2802 and HB 2973 include a variety of immigration-related provisions, some of which would affect employers. One such provision includes a prohibition against knowingly employing unauthorized aliens, which includes a maximum six-month prison sentence and/or up to $2,500 fine. Another would require employers to verify immigration status of employees hired after January 1, 2012, and authorizes the Attorney General to investigate violations and suspend or revoke business licenses of violators. 

•  Health Care Employees: SB 199 -- Requires health care facilities/employers of 25 or more employees to provide mandatory annual vaccinations against influenza, varicella zoster, pertussis, Hepatitis B, measles, mumps and rubella at no cost to employees.

World of Employment will keep you updated regarding the status of these (and other) bills up for debate this legislative session, and will provide an end-of-session wrap-up of the winners and losers.

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Check out this Washington Healthcare News article authored by Stoel Rives Labor and Employment attorneys Keelin Curran and Karin Jones, in which they discuss the developing trend of strict no-smoking policies in the workplace, including no-nicotine hiring practices. Research indicates that smokers impose significant additional health and disability costs on employers, and experience twice as many illness-related absences from work.

In the article, they note that many states have enacted legislation specifically prohibiting employers from discriminating against employees on the basis of lawful off-duty activities such as tobacco use. However, for those states without such protections, employers have thus far successfully defended their right to exclude tobacco users from their hiring pools.

Read Curran's and Jones' analysis of the issue, including court cases and the potential pitfalls under the Health Insurance Portability and Accountability Act (HIPAA) and the Employment Retirement Income Security Act (ERISA) when such policies are applied to current employees.

"Snuffing Out Employee Tobacco Use: The Trend Towards No-Nicotine Hiring Policies" was published by Washington Healthcare News, February 2011.

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Employee handbooks can operate as a useful management tool to ensure fairness and consistency in employment practices which in turn may limit an employer’s exposure to unwanted and costly litigation. But if not carefully drafted an employee handbook may unwittingly supply a disgruntled employee with greater ammunition on the legal battlefield. A couple of Utah employers recently saw this play out with different results.

In Hoko v. Huish Detergents, Inc., a 2010 Utah District Court decision, an employee sued his employer alleging disparate treatment and wrongful termination after he was discharged for abuse of the internet policy set forth in his employee handbook. The handbook, however, disclaimed any intent to create an employment contract and the employee signed an acknowledgement of receipt of the handbook indicating he understood his at-will status. Further, there was no evidence his employer had enforced the internet policy differently with other employees holding similar positions. The Court ultimately dismissed both of the employee’s claims.

In Cabaness v. Thomas, a 2010 Supreme Court of Utah case, things went down much differently. In that case, the employee brought suit against his employer alleging breach of an implied contract created by promises made in the employment manual. As in Hoko, the employer argued that a disclaimer precluded a finding of intent to contract. But unlike in Hoko, the disclaimer only indicated that the handbook did not create a contract “with respect to” certain aspects of the employment relationship. The Court ruled that the limited disclaimer in conjunction with the promise like provisions set forth in the employment manual evinced the employer’s intent to undertake additional duties and accordingly held for the employee.

The Hoko and Cabaness cases provide examples of two opposite ends of the spectrum. Both provide useful insights into the do’s and don’ts of drafting employee handbooks. What follows is a short list of points an employer might glean from these cases as well as some additional thoughts to consider when drafting or reviewing employee handbooks.

1.         Make sure your employee handbook contains a broad “clear and conspicuous” disclaimer indicating that neither the handbook, any provisions therein, nor other similar materials are intended to create a contract or alter the at-will employment status of an employee.

2.         Use language that is easy to understand and not susceptible to various reasonable interpretations. This avoids confusion on the part of your employee and potential legal battles over whose interpretation is correct.

3.         Avoid using language that could be read as a definitive promise. This includes avoiding word such as “must,” “shall,” “will,” “required,” or other words and phrases that imply an employer has made a definitive promise.

4.         If your employee handbook includes specific grounds for disciplinary action or termination, make sure it also indicates the list is demonstrative and not exhaustive.

5.         Once your policies and procedures are established, stick to them and apply them uniformly to avoid claims of disparate treatment.

6.         Include and ask each employee to sign an acknowledgment provision that indicates the employee’s receipt of the employee handbook and documents their understanding that it does not create a contract.      

7.         Review and update employee handbooks regularly. Workplace conditions change rapidly. For example, the internet and social media continually demand greater attention within the work place. If you do not have any policies regarding internet usage in your handbook, it’s probably time to think about some revisions.

8.         Consider having your employee manual reviewed by your legal team. State and federal laws are continually evolving and you want to make sure that your employee handbook is up to date with the latest changes in employment law.

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On Monday, February 7, the NLRB issued a news release about a settlement in a case in which an employee criticized her supervisor on her Facebook page. In that post, she called her supervisor a “17,” (which is terminology for a psychiatric patient) and said her supervisor was being a “d***” and a “scum***." This new development has garnered a significant amount of media attention.

We say “development” because, despite the media furor over this case, there was no landmark opinion issued by the NLRB, which is the way the Board makes a policy change or an announces a new policy. Instead, an NLRB Regional Director in Hartford, Connecticut -- there are over 35 of them nationwide -- decided to issue a complaint alleging the firing of the employee was unlawful and the policy was overbroad. After the complaint was issued, there was no hearing before an administrative law judge and there was no ruling by Members of the NLRB in Washington. There was simply a settlement for an undisclosed amount, which was likely modest since remedies under the NLRA are limited to reinstatement (waived in this case), back pay and benefits. The company also agreed to revise its policy.

So, what’s to be learned from this settlement? Not much. The basic rule that came into play is an employee’s right to engage in protected and concerted activity – sometimes referred to as “free speech” in the workplace. Under NLRB case law, broad rights are provided to employees to criticize their supervisors, their employer, and, in general, to communicate in the work place about good and bad developments, such as pay raises and bonuses. However, employees cannot make threats of physical violence and they cannot engage in disloyal conduct.

Unresolved questions going forward include:

(1) Whether an employee is engaged in concerted activity when posting on a social media platform?

(2) What is protected and unprotected on social media, and do the same rules that apply to verbal communications in the workplace apply to social media?

(3) Does it make a difference if the post is done during non-work time?

There are several issues to work through and unfortunately this case clarified very little.
 

Editor's Note: For more in-depth analysis and discussion about this case, check out Victor's appearance on KGW's Live at 7.

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Never shy about taking on unions, especially in a state where organized labor enjoys little support outside the government sector, the Idaho Legislature recently introduced a pair of bills for addition to the state’s existing Right to Work statute. 

Senate Bill 1007, named the “Fairness in Contracting Act,” is intended to “promote fairness in bidding and contracting.”  This bill provides, among other things, that a “contractor or subcontractor may not  directly or indirectly receive a wage subsidy, bid supplement or rebate on behalf of its employees, or provide the same to its employees, the source of which is wages, dues or assessments collected by or on behalf of any labor organization(s), whether or not labeled as dues or assessments.”  The proposed measure would also prohibit labor organizations from “directly or indirectly” paying “a wage subsidy or wage rebate to its members in order to directly or indirectly subsidize a contractor or subcontractor, the source of which is wages, dues or assessments collected by or on behalf of its members, whether or not labeled as dues or assessments.”  Use of any fund financed by wages collected by or on behalf of any labor organization, whether or not labeled as dues or assessments, to subsidize a contractor or subcontractor doing business in the state of Idaho would be deemed unlawful. 

Contractors, including subcontractors, or labor organizations that violate the provisions of this proposed law will be guilty of a misdemeanor and could be fined an amount not to exceed ten thousand dollars ($10,000) for a first offense, twenty-five thousand dollars ($25,000) for a second offense, and one hundred thousand dollars ($100,000) for each and every additional offense. 

The legislation would also confer standing on any “interested party,” including a bidder, offeror, contractor, subcontractor or taxpayer, to challenge any bid award, specification, project agreement, controlling document, grant or cooperative agreement in violation of the provisions of the law.  If an interested party prevails in a lawsuit challenging the bill, it will be awarded costs and attorney's fees.

A companion bill, Senate Bill 1006 (“The Open Access to Work Act”), introduced at the same time, bars bidders on public works projects from paying a predetermined amount of wages or wage rate; or type, amount or rate of employee benefits.  The law does not apply when federal law requires the payment of prevailing or minimum wages to persons working on projects funded in whole or in part by federal funds.  A separate provision makes clear that the contractor party cannot be required to enter into an agreement with a labor organization as part of the contract.

Both of these bills were printed and sent to the State Affairs Committee for further action last week.  Yesterday, the full Senate considered and voted on SB 1006, approving it by a 27-7 vote. It has now been referred to the Idaho House. SB 1007 on Monday passed the Committee by a 7-2 party line vote, and will soon be taken up by the full Senate. 

Although these bills remain at a relatively early stage, questions have been raised about their legality and potential conflict with federal labor law.   Stay tuned for more.

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