Happy New Year from the Oregon Legislature: New Employment Laws To Watch Out For in 2014

Today we continue with our recent New Years theme.  Not to be outdone by their neighbors to the south, the Oregon Legislature was also busy in 2013.  And now that 2014 is upon us so too are a slew of new Oregon employment laws. In areas ranging from social media to sick leave, Oregon employers should carefully review their policies and practices to ensure current compliance with these new laws.  Here is a round up of the major changes to employment laws enacted by the Oregon Legislature (and the City of Portland) that employers should be aware of in 2014:

  • Employers may not demand access to employees’ social media accounts. Beginning on January 1, 2014, employers may not demand access to employees’ or applicants’ personal social media accounts. House Bill 2654, which Governor Kitzhaber signed into law on May 22, 2013, prohibits employers from requiring an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” It further prohibits employers from requiring that an employee “friend” or otherwise connect with an employer via a social media account, and from compelling the employee to access the account in the employer’s presence such that the employer can view it. A number of other states have passed or are considering similar legislation.
Continue Reading...

Top 25 FAQs Employers May Have About Implementing the New Portland Paid Sick Leave Ordinance in 2014

In March 2013, the Portland City Council passed the new Portland Paid Sick Leave Ordinance requiring all but the smallest employers to provide paid sick leave (“PSL”) for employees who work within city limits. On November 1, the city released final regulations interpreting the Ordinance and fleshing out some of the requirements in more detail. Also, the original Ordinance was amended in early October while the regulations were being finalized. The law becomes effective January 1, 2014, so employers with employees in Portland need to review relevant policies to confirm they comply with the new ordinance.

Many of the Ordinance’s requirements will look familiar to employers used to dealing with other leave laws, particularly the Oregon Family Leave Act (“OFLA”). But this Ordinance has its own twists, many of which result from the fact that it’s not a state-wide law like OFLA but instead only applies to employees within Portland. This list of 25 frequently asked questions (“FAQ”) covers many of the the questions employers might have as they work through understanding the Ordinance and update their policies to ensure compliance. Yes, there are really 25 of them.

The Basics

 

1. What does the Ordinance require in 20 words or less?

Employers with six or more employees must allow employees in Portland at least 40 hours of PSL per year.  That’s 19 words!  But of course, there’s a lot more to it than that, so read on.

 

Continue Reading...

Oregon Court of Appeals Continues Debate About Status of Wrongful Discharge Claims In Oregon in Kemp v. Masterbrand Cabinets, Inc.

Last week the Oregon Court of Appeals issued its opinion in Kemp v. Masterbrand Cabinets, Inc., holding that the plaintiff’s common law wrongful discharge claim was not precluded by the statutory remedies then available under Oregon or federal anti-discrimination laws, and that claim could properly be decided by a jury.  The case is another wrinkle in the ever-evolving and complex body of case law trying to define the contours of claims for common law wrongful discharge in Oregon.

Oregon Wrongful Discharge 101: A Quick Primer On When Common Law Wrongful Discharge Claims Can Be Precluded By Statutory Remedies

A claim for wrongful discharge is a common law tort claim developed by Oregon courts.  Many states’ courts have recognized the tort; Oregon’s Supreme Court first did so in the 1970s in Nees v. Hocks.  The specifics about what makes a discharge from employment “wrongful” and therefore tortious hinges on whether the employee’s termination violates an important public policy, usually where an employee is fulfilling an important job-related right or public duty.  As we have blogged about previously, courts have had difficulty wrestling with defining “wrongfulness” in specific cases, and divergent results can make it difficult to clearly understand which public duties and job-related rights are covered by the tort.  For example, being discharged for complaining about the employer’s fire code and safety violations (Love v. Polk County Fire Distr.) has been found wrongful, but a car salesman being fired for complaining about the employer’s allegedly deceptive sales tactics (Lamson v. Crater Lake Motors) or private security guards being fired for restraining or arresting concert-goers suspected of drug use and violent behavior (Babick v. Oregon Arena Corporation) was not.  Further, some courts have held wrongful discharge usually covers only conduct-based discrimination (taking action against an employee because of what they do, commonly known as “retaliation”), not status-based discrimination (based on a protected personal characteristic such as race, gender, or age), although this distinction is often inconsistently applied.

Continue Reading...

Legislature Adds Two-Week Bereavement Leave To Oregon Family Leave Act

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.

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).
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.

Continue Reading...

Portland City Council Approves Sick Leave Ordinance

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...

Portland, OR May Soon Follow Seattle In Requiring Employers To Provide Paid Sick Leave

Last fall we told you about the new Paid Sick and Safe Time (PSST) ordinance passed by the city of Seattle that requires certain employers within that city to provide paid time off to employees.  The Portland City Council is now considering a similar ordinance for employers with employees in Portland.  The Council will consider the proposal on Thursday this week, and will likely vote on it in February.

The ordinance would require employers that have employees within the city with more than six employees to provide 40 hours, or five work days, of paid sick time per year to employees who work more than 240 hours per year.  Employers with five or fewer employees must also provide sick leave, but it can be unpaid.  Employees will be able to bank one hour of sick time for every 30 hours worked.  Employers that already have a paid time off policy that provides the same or better benefits will already comply with the new ordinance, and would not be required to provide additional paid time off. 

The law would prohibit covered employers from denying employees leave, or retaliating against them for requesting and taking it.  Aggrieved employees can file a charge with the Oregon Bureau of Labor and Industry (BOLI) or file a lawsuit "for damages and such other remedies as may be appropriate."

We'll continue to monitor this proposal and keep you updated, especially of course if it passes.  If that happens, it would become effective in January 2014.

Tags:

Court of Appeals Interprets Definition of "Independent Contractor" Under ORS 670.600

A new case from the Oregon Court of Appeals, Compressed Pattern LLC v. Employment Department, provides some clarity about the “maintain a separate business location” prong of Oregon’s unique independent contractor statute, ORS 670.600.

First, the facts.  In the summer of 2009, a design company retained a recently-laid-off architectural intern to provide drafting services on some of its projects. The design company’s owners agreed to pay him $35.00 an hour for his services, and paid him periodically based on statements of his work he prepared and submitted. The design company provided the architect-intern with general specifications and timelines for the drafting projects, but didn’t otherwise instruct him on how to complete them. It also didn’t provide him with scheduled hours, a workspace, supplies and equipment, an email address or business cards. In fact, the architect-intern performed his drafting work free of charge at the offices of the architectural firm that had laid him off. The architectural firm was not affiliated in any way with the design company. The architect-intern performed drafting services for clients other than the design company, and even hired a friend to help him with an especially big drafting project. Meanwhile, the architect-intern spent his spare time preparing for the exams necessary to become a licensed architect. The licensing authority charged the architect-intern hundreds of dollars to take each exam.

Continue Reading...

Oregon Court of Appeals Upholds Wrongful Discharge Claim By Whistleblowing Prison Guard

Is the Oregon Court of Appeals back in the wrongful-discharge business? It’s a fair question to ask after the court’s decision last week in Lucas v. Lake County, --Or. App.-- (2012).  Reversing the trial court's motion to dismiss, the court held that a sheriff’s deputy who served as a correctional officer could sue for wrongful discharge in violation of public policy based on his allegation that he’d been fired for demanding that the sheriff implement a training program regarding sexual relations with inmates, and for concluding that another sheriff’s deputy had traded contraband for sex with an inmate.  

What Is An "Important" Public Duty?

Wrongful discharge has had an eventful history in the Oregon courts.  Broadly speaking, in a wrongful discharge claim an employee alleges that the employer terminated him for a reason that is inconsistent with an important public policy.  The key (and usually thorny) legal issue is identifying the public policy and weighing whether it is sufficiently important to protect an employee from being fired.  The Oregon courts have deemed an employee’s need to be absent from work to serve on a jury (Nees v. Hocks, 272 Or. 210 (1975)) and an employee’s internal protest that a fire department covered up evidence of a safety violation (Love v. Polk County Fire Dist., 209 Or. App. 474 (2006)) important enough to qualify.  On the other hand, a doctor’s disagreement with his medical group’s treatment recommendations (Eusterman v. Northwest Permanente P.C., 204 Or. App. 224 (2006)) and private security guards’ lawful arrest of drunken concertgoers (Babick v. Oregon Arena Corp., 333 Or. 401 (2002)) didn’t make the cut.

 

Continue Reading...

Oregon Court of Appeals Upholds Enforceability of Employer Arbitration Agreement

In the recent case Hatkoff v. Portland Adventist Medical Center, the Oregon Court of Appeals affirmed enforcement of a company arbitration provision in an employee handbook requiring that a former employee bring his employment discrimination claims in binding arbitration. The Court’s opinion offers a straight-forward application of the law regarding the enforceability of arbitration agreements, and the outcome is probably not surprising.  Nevertheless, it contains a helpful and well-reasoned survey of the current state of Oregon law in this area, and provides another helpful case for Oregon employers interested in resolving employment disputes using arbitration or similar alternative dispute resolution (“ADR”) procedures. 

Arbitration Agreements Are Upheld Where They Are Not “Unconscionable”

Arbitration is a form of private ADR in which the parties agree to waive the right to go to court and instead adjudicate disputes privately before an arbitrator. In the employment context, arbitration can be a cost-effective and quicker alternative to litigation.  While the details of arbitration agreements can vary greatly, they may frequently be confidential (lawsuits are public proceedings), provide more limited procedures (especially with respect to discovery), require trial before a neutral arbitrator (not a jury), and provide a limited right to appeal. In general, Oregon courts, like most courts, uphold such employment arbitration agreements as long as they are not “unconscionable,” either procedurally (with respect to how the agreement was formed) or substantively (with respect to its terms).

The Oregon Court of Appeals applied this analysis to find Portland Adventist’s “Grievance and Arbitration Procedure” in an employee handbook was not unconscionable. It found the agreement was not substantively unconscionable, because while it did waive the right to a jury trial (like all arbitration agreements), it did not unreasonably limit the employee's rights or remedies that would be available in court. Interestingly, the Court specifically held that the fact the agreement required that employees file a complaint within 90 days of the complained-of employment action was not substantively unconscionable, even though the applicable statute of limitations was one year. The Court also went on to find the agreement was not procedurally unconscionable: the employee, a sales and marketing professional, signed multiple acknowledgments that he received the employee handbook containing the arbitration agreement and was aware of what he had signed.

Law On Arbitration Continues To Develop

Despite the fact that many cases come out similarly to Hatkoff and the law on arbitration agreements is generally favorable for employers, the enforceability of such agreements is routinely litigated in employment cases. For that reason, and also because the unconscionability analysis is very fact-specific and the outcome can be very different in each case, arbitration continues to be a “hot” and fluid area of employment law both in Oregon and around the country. 

Sometimes that fluidity leads to conflicts in the law, such as between courts and legislatures.  For example, since 2008 Oregon has had a statute, ORS 36.620(5), that prohibits employee arbitration agreements under certain circumstances where the agreement does not contain “magic words” provided in the statute, and where the employee does not have at least 72 hours advance written notice before starting work (the legislature lowered the advance notice requirement to 72 hours in 2011; it originally required 14 days). However, that Oregon statute itself may be unenforceable, because it may be preempted by a federal statute, the Federal Arbitration Act (“FAA”), that strongly endorses the use of arbitration and contains no such limitation.  Several federal district courts in Oregon have found that ORS 36.620(5) is preempted by the FAA, and have enforced arbitration agreements that did not provide the advance notice required by that statute, although no Oregon state appellate court has yet considered the issue (the agreement in Hatkoff preceded the Oregon statute, so it was not a factor in the analysis in that case).

Other potential conflicts exist not between state and federal law, but between different parts of federal law.  As we have blogged about previously , just such a conflict has been brewing between the U.S. Supreme Court and the National Labor Relations Board (“NLRB”) over whether arbitration agreements can include waivers of class action claims—the Supreme Court says they can; the NLRB says they violate federal labor laws allowing employees to engage in “concerted activity” relating to working conditions. We are waiting to see how the federal appellate courts resolve that conflict.

Ultimately, Hatkoff will likely stand, not as a departure from existing law, but instead as the latest in a series of federal and state cases over the past few years that are broadly supportive of employer efforts to utilize arbitration and ADR to resolve employment disputes.  But, as we've said, this continues to be an evolving area of employment law, so employers will need to stay tuned to new developments.

In the meantime, here are a few things employers should keep in mind when crafting arbitration agreements to maximize the chance they will be enforceable:

  • Make sure your arbitration agreement, whether a stand-alone agreement or part of a handbook, is clear, understandable, and well publicized.  Include the "magic words" in ORS 36.620 to make it expressly clear to employees that arbitration involves waiving some legal rights, especially the right to a jury trial.  Employees should sign acknowledgments that they have received and understand the agreement.  
  • If you have employees who don't speak English as a first language, have a translated version of the agreement to ensure it is understood.
  • Give new employees the 72 hour advance written notice required by ORS 36.620 wherever possible.  While some courts have found that statute is preempted and unenforceable, there's no guarantee every court will.
  • Under ORS 36.620, current employees can only sign arbitration agreements at the time of "bona fide" promotion or advancement.  Again, courts may find this requirement is also preempted and unenforceable, but if you can comply with it, all the better.  
  • Arbitrators are paid by the parties, unlike judges.  While in theory the parties can split the cost, the agreement should not impose costs on employees unreasonably in excess of what they would pay to file a lawsuit in court.  Many employers agree to pay a large portion, or even all, of the arbitration fees.
  • Specify the rules and procedures that will apply.  The American Arbitration Association's ("AAA") specific rules for employment arbitration are one option; other state or local arbitration forums are other (and sometimes cheaper) options.

Above all, work with your employment counsel in the crafting and implementation of the agreement.  Many enforceability pitfalls can be easily avoided with careful planning, but the devil can be in the details.  That is especially true for any state-specific rules or "gotchas," as arbitration agreements may be perfectly enforceable in some states but not in others.

2011 Update: Compliance and regulatory considerations in implementing your value based interventions

Please join Stoel Rives Partners Ed Reeves and Bob Thompson as they present "2011 Update: Compliance and regulatory considerations in implementing your value based interventions" an Oregon Coalition of Health Care Purchasers educational seminar and national webcast.

This seminar focuses on understanding the federal law traps and pitfalls associated with the use of incentives and penalties when implementing value-based employee benefit plan design as well as, the use of a 'HIPAA-based' safe harbor wellness program.

August 4, 2011
9:00 – 10:30 a.m. (Pacific)
Stoel Rives, Portland Office
Webcast available

For more details or to register please contact Linda Dixon (staff@ochcp.org) by Friday, July 29, 2011.

Victory For Employers in Washington Medical Marijuana Case

In a victory for employers, the Washington Supreme Court has ruled that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. Click here to download a copy of the decision in Roe v. Teletech Customer Care Management. The lawsuit and all appeals were handled for the employer by Stoel Rives attorneys Jim Shore and Molly Daily.

Jane Roe (who did not use her real name because medical marijuana use is illegal under federal law) sued Teletech for terminating her employment after she failed a drug test required by Teletech’s substance abuse policy. She alleged that she had been wrongfully terminated in violation of public policy and MUMA since her marijuana use was “protected” by MUMA. The trial court granted summary judgment in favor of Teletech, and Roe appealed. As discussed in a previous blog, the Washington Court of Appeals, Division II affirmed the trial court’s dismissal of Roe’s case. Roe then appealed to the Washington Supreme Court.

The Supreme Court ruled 8-1 in favor of in Teletech, holding that MUMA provides an affirmative defense to state criminal prosecutions of qualified medical marijuana users, but “does not provide a private cause of action for discharge of an employee who uses medical marijuana, either expressly or impliedly, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.” The Court’s holding applies regardless of whether the employee’s marijuana use was while working or while off-site during non-work time. Adding to a significant victory for employers, the Court’s decision extends to the current version of MUMA as amended by the Legislature in 2007, and not just the original version passed by the voters in 1998 in effect when the facts of the case arose.

The plaintiff in the Teletech case did not raise a disability discrimination or reasonable accommodation claim under Washington’s Law Against Discrimination, and the Supreme Court therefore did not expressly reach that particular issue. But the Court did point out that marijuana remains illegal under federal law regardless of what the State of Washington does, and that it would be incongruous “to allow an employee to engage in illegal activity” in the process of finding a public policy exception to the at-will-employment doctrine. Moreover, the Court noted that the Washington State Human Rights Commission itself acknowledges that “it would not be a reasonable accommodation of a disability for an employer to violate federal law, or allow an employee to violate federal law, by employing a person who uses medical marijuana.”

The workplace implications of medical marijuana continue to be a developing area in many states. California’s Supreme Court has ruled in a manner consistent with Washington. Also previously covered in World of Employment, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law preempts Oregon’s medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana. But some states are more protective of an employee’s medical marijuana use. Given the continued efforts by marijuana advocates and civil rights groups to “push the envelope” of medical marijuana laws into the workplace, it is important for employers to continue to closely monitor legislative and legal developments. A recent effort to include workplace protections for medical marijuana users via amendments to Washington’s medical marijuana laws was defeated, but we anticipate similar efforts may be made in other states in the coming years.

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including customer requirements, government contracting requirements (e.g.,the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. To best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law is prohibited, and that their policies prohibit any detectable amount of illegal drugs as opposed to an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise.

Medical Marijuana and Zero Tolerance Drug Testing Policies Remain An Issue For Employers

Employers and the courts continue to wrestle with issues involving “zero tolerance” drug testing policies and whether employers must accommodate medical marijuana use by their employees. Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal Americans with Disabilities Act (“ADA”). However, 15 states currently have legalized some form or another of medical marijuana use: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington as well as the District of Columbia. The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis.

 

Most recently, in Casias v. Wal-Mart Stores, Inc., a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana stated no legal claims for wrongful discharge. The court accepted Wal-Mart’s argument that Michigan’s medical marijuana law does not regulate private employment; rather, it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state. The court rejected the plaintiff’s argument that the law created a new protected employee class, which “would mark a radical departure from the general rule of at-will employment in Michigan.” The Casias decision is currently being appealed.

A similar ruling is under review by the Washington State Supreme Court. I argued the case for the employer on January 18, 2011. As I previously blogged, the Washington Court of Appeals in Roe v. Teletech Customer Care Management affirmed a trial court’s ruling and held that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. In so doing, the Court of Appeals stated, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act.” Rather, the Court held that MUMA merely protects qualified patients and their physicians from state criminal prosecution related to the authorized use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. A decision from the Washington Supreme Court is anticipated later this year.

Three other state Supreme Courts have already issued rulings on workplace medical marijuana issues, and all have found in the employer’s favor. In Ross v. RagingWire, the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana. The court held that employers in California do not need to accommodate the use of medical marijuana, even when users only ingest or smoke marijuana away from the workplace.

In Johnson v. Columbia Falls Aluminum Company, the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act.

Also previously covered on World of Employment, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law takes precedence over Oregon’s medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana. Stoel Rives filed a “friend of the court” brief on behalf of the employer in that case.

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including, without limitation, customer requirements, government contracting requirements (including the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. To best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law are prohibited, and that their policies prohibit any detectable amount of illegal drugs in an applicant’s or employee’s system as opposed to using an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise. Finally, given the continued efforts by marijuana advocates and civil rights groups to “push the envelope” of medical marijuana laws into the workplace, it is important for employers to continue to closely monitor legislative and legal developments. A recent effort to include workplace protections for medical marijuana users via amendments to Washington’s medical marijuana laws was defeated, but we anticipate similar efforts will be made in Washington and other states in the coming years.

Oregon: 2011 Legislative Session Preview

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.

Oregon Supreme Court Allows Greater Punitive Damage Award in Some Employment Cases

The Oregon Supreme Court has recognized an exception to limits on punitive damage awards in certain employment cases where the compensatory damages are low.  In Hamlin v. Hampton Lumber Mills, Inc., the Oregon Supreme Court considered the case of a plaintiff who was injured on the job and whose employer failed to reinstate him as required by ORS 659A.043.  That statute requires employers to reinstate injured workers on request within three years of the injury, unless other exceptions apply.  A jury found the employer had violated ORS 659A.043 and awarded the plaintiff $6,000 in lost wages and $175,000 in punitive damages.

As the Court noted, the Due Process Clause in the Fourteenth Amendment of the United States Constitution imposes limitations on punitive damages awards.  The exact limitations are based on factors including the ratio of compensatory to punitive damages and the reprehensibility of the act, among other things.  Courts have held that in the ordinary case, the ratio of punitive damages to compensatory damages should be limited  to single digits (for example, 4:1).  In this case, the ratio was 22:1.  The Oregon Court of Appeals held that the punitive damages award was unconstitutional and ordered it reduced to $24,000 – or a 4:1 ratio.

The Oregon Supreme Court reversed, upholding the 22:1 ratio because it determined that the compensatory damages were “relatively small” and that a violation of ORS 659A.043  was particularly reprehensible.  The Court noted that “the harm that offending employers inflict may be more than monetary and . . . a plaintiff who is not reinstated and who is, therefore, unemployed, is in a more vulnerable position than is a person who is employed when he or she suffers monetary loss.  A person who suffers a loss of employment is without the present ability to earn money to recover economic loss and to avoid further consequential loss.” 

The ruling leaves a number of perplexing loose ends.  First, as the dissenting justices noted, the opinion creates the possibility that a plaintiff who receives a larger compensatory damage award could actually be limited to a smaller punitive damages award.   For example, a plaintiff who received $25,000 in lost wages could be limited to a ratio of 4:1, allowing only $100,000 in punitive damages – less than those awarded in this case.  Second, the ruling leaves unclear whether ORS 659A.043 is the only statute that the Court will consider it particularly reprehensible to violate, or whether the Court’s holding applies to any unlawful employment practice that leaves the plaintiff employee without a job.  The matter may end with the United States Supreme Court.  In an unusual move, the dissenting justices specifically requested further clarification from that Court. 

 

Oregon Minimum Wage to Rise to $8.50/Hour in 2011

The Oregon Bureau of Labor and Industries recently announced that Oregon's minimum wage will increase by ten cents to $8.50 an hour effective January 1, 2011.  Oregon's minimum wage has been $8.40 an hour since January 1, 2009.  Click here to read Labor Commissioner Brad Avakian's press release on the minimum wage increase

As a result of Ballot Measure 25, passed by voters in 2002, the minimum wage is adjusted annually based on changes in inflation as measured by the Consumer Price Index (CPI). The Labor Commissioner is charged with adjusting the minimum wage for inflation every September, rounded to the nearest five cents.

And for your viewing pleasure, here's a fascinating video of an employee who we hope earns much more than minimum wage.  At least we know we wouldn't do this job for under $1,000 an hour:

Court Dismisses Lawsuit Against Oregon Mandatory Meeting Law

Last week a federal judge dismissed a lawsuit aimed at blocking SB 519, the Oregon law the prohibits employers from requiring employees to attend meeting about, among other things, labor unions.  Click here to read the District of Oregon's opinion in Associated Oregon Industries v. Avakian

SB 519, passed by the Oregon legislature in 2009, prohibits employers from disciplining or threatening to discipline employees who refuse to attend mandatory or "captive audience" meetings on religious or political matters, including the employer's views on labor unions.  SB 519 also requires employers to post a notice informing employees of their rights under the law, which you can download here

Associated Oregon Industries brought a federal lawsuit on behalf of Oregon employers, arguing that the law is preempted by the National Labor Relations Act and violates employers' First Amendment free speech rights.  The court did not reach the merits of that challenge; instead, the court held that the case was not ripe for review, and indicated it could not be challenged "until an employer holds a mandatory meeting, and then creates an employee's cause of action by disciplining an employee who refuses to attend." 

In our humble opinion (not to be taken as legal advice!), the portion of SB 519 that applies to union meeting will someday be successfully challenged on the basis that it is preempted by federal labor law.  This latest ruling, however, seems to indicate a court will be reluctant to rule on the bill until it is presented with a case involving employee discipline, and that may take an employer with enough interest in such meetings to be willing to run the risk and costs of litigation. 

Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana

Yesterday the Oregon Supreme Court conclusively ruled that employers are not required to accommodate the use of medical marijuana in the workplace, ending years of doubt and confusion on this critical issue. Click here to read the Court’s opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries.

In Emerald Steel, a drill press operator was terminated after his employer learned he was using medical marijuana to treat a medical condition that qualified as a disability under Oregon law. The employee filed a claim with the Oregon Bureau of Labor and Industries, alleging that the employer’s refusal to accommodate his use of medical marijuana violated Oregon law requiring employers to reasonably accommodate an employee’s disability. A judge ruled that the employer did not properly engage in the interactive process to determine whether other reasonable accommodations were possible.

The employer appealed that decision, arguing that neither federal nor state disability law requires employers to engage in the interactive process with users of medical marijuana, given that their use of marijuana is prohibited by federal law. The Oregon Court of Appeals ruled in favor of the employee on the basis that the employer failed to preserve that argument in the case below. Further, a prior Oregon Court of Appeals case—Washburn v. Columbia Forest Products—had held that employers do have a duty to accommodate the use of medical marijuana by a disabled employee.

On appeal, the Oregon Supreme Court reversed the decisions of the trial judge and the Court of Appeals, and reversed the Oregon Court of Appeals’ decision in Washburn. The Supreme Court held that employers do not have to accommodate employees’ use of illegal drugs. Because marijuana—medical or otherwise—is illegal under federal law, employers are not required to accommodate its use under any circumstance.

Since the original Washburn decision, many Oregon employers have assumed they were obligated to accommodate the use of medical marijuana by disabled employees. The Emerald Steel decision should give all Oregon employers comfort in knowing that, until or unless federal law changes, they are definitely not required to accommodate medical marijuana use. A similar ruling from the Washington Court of Appeals is being reviewed by that state’s supreme court.  Stoel Rives represents the employer in that case. Click here to read the World of Employment's coverage of that case.

Oregon Legislature Passes Five Employment-Related Bills in Special Session

The Oregon Legislature recently completed its 2010 Supplemental Session.  Among the bills passed by the legislature include five employment-related bills.  Click on the bill number to download a copy of the actual bill:

  • SB 996:  Expands protections for public employees who report law violations or safety dangers to include discussions on those topics with elected officials and auditors (effective March 4, 2010)
  • SB 1045:  Prohibits employers from using credit histories for pre-employment screenings or promotions (effective July 1, 2010) (click here to read the Stoel Rives World of Employment's coverage of the bill)
  • HB 3651: Applies prevailing wage law to construction and installation of solar energy systems on public property (effective January 1, 2011)
  • HB 3652: Allows electrical apprentices to work without direct supervision after completion of 5,000 hours of training for a license requiring 6,000 hours of training (effective January 1, 2011)
  • HB 3686:  Allows the  wearing of religious dress while engaged in the performance of duties as a public school teacher, and amends undue hardship test under  the 2009 Workplace Religious Freedom Act as it applies to a classroom environment (effective July 1, 2011)

Oregon Legislature Bans Workplace Credit Checks

This week the Oregon House voted to prohibit employers from using credit histories for any employment purposes including hiring, discharge, promotion and compensation.  The Oregon Senate passed the bill last week, and Governor Ted Kulongoski is expected to sign the bill into law effective July 1, 2010.  Click here to download a copy of the bill, SB 1045

A violation of the new law will be an unlawful employment practice, and an aggrieved employee could either file a complaint with the Bureau of Labor and Industries (BOLI) or file a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney's fees.  

The new law will have some narrow exceptions:  banks and credit unions, public safety and law enforcement officers, employers who are required by state and federal law to use credit histories for employment purposes, and other employment if credit history is "substantially job-related" and the use of the credit check is disclosed in writing.  The bill does not give any guidance on what it means for a credit check to be "substantially job-related," but we're assuming that courts will construe that requirement very narrowly.

Oregon employers who are currently using credit checks as part of their employment processes should make sure they fit into one of the exceptions and, if not, find alternatives by July 1.  The law only prohibits the use of credit history, so other background checks - such as criminal background checks - are not affected.

9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases

The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases.  Click here to read the decision in Alvarado v. Cajun Operating Co. 

Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance.  After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA.  Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.

The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list.  Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions).  The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments. 

For now, the law in the Ninth Circuit on this question is clear:  while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.

Continue Reading...

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Wow, it's Festivus already, which means that in just a few short days it will be a brand new year!  We have a Festivus present for Oregon employers to help you get ready:  Ten things you need to know for 2010!  (click on each blue hotlink for more information)

  1. All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
  2. The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
  3. As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate
  4. Leave for Military Spouses:  Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty. 
  5. In 2010, you might have a greater duty to accommodate employees' religious dress and practices
  6. Domestic Violence Leave and Accommodations:  Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must  make reasonable accommodations for such employees.
  7. In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
  8. Oregon's minimum wage will remain $8.40/hour.
  9. Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act
  10. Oregon has new rest and meal break regulations.

And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength.  Happy festivus, and see you in 2010!

Oregon Employers: Download SB 519 (Mandatory Meeting Ban) Notice Here!

Back in June, we reported on Oregon SB 519 - the law taking effect January 1, 2010 that will prohibit Oregon employers from disciplining any employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters - including labor unions. 

SB 519 also requires ALL Oregon employers to post a notice informing employees of their rights under the new law.  We usually rely on the Oregon Bureau of Labor and Industries (BOLI) to supply us with all mandatory postings, but BOLI has chosen not to publish an SB 519 posting. 

We at the Stoel Rives World of Employment and Stoel Rives couldn't just leave you in the lurch - we have created our own SB 519 Poster - just click the link to download, free of charge.  It's a .pdf document, and we've included two per page, just in case you want multiple copies.  We would recommend that you post the notice wherever you typically put up your employment law posters.  If you have an extra copies, we think they make excellent stocking stuffers (at least for the HR professional in your family).

DISCLAIMER!  (You knew this was coming, right?)  No government official or agency has approved this poster as fulfilling the SB 519 requirements.  This poster represents our best efforts to create a poster that complies with those requirements, but we make no representations, promises or warranties as to whether it fulfills the legal requirements of SB 519.  As always, the materials available at this web site/blog are for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site/blog or any of the materials or e-mail links contained within the site do not create an attorney-client relationship between Stoel Rives and the user or browser.

Oregon Expands Flu Hotline

Beginning today, November 12, the Oregon Department of Human Services (DHS) is offering expanded service on the Oregon Public Health Flu Hotline.  Oregonians can call 1-800-978-3040 between 8:00 a.m. and 6:00 p.m. Monday-Friday, or 8:00 a.m. and 5:00 p.m. on weekends and holidays for information on the flu, including the H1N1 (or "swine flu") virus.  Three services are available on the hotline:

  1. Information and referral:  listen to recorded messages about the flu, or be routed to an information and referral specialist who can answer questions about the flu and vaccines;
  2. Telephone triage:  speak to a licensed healthcare provider about flu symptoms or exposure, and receive care advice, referral to a healthcare provider, or referral to the emergency room; and
  3. Clinician support:  doctors, lab techs, pharmacists, nurses and other healthcare professionals can receive information about H1N1 treatment options and vaccines.

Oregon employers should consider providing flu hotline information to their employees.  Click here to download DHS's announcement of the flu hotline, which employers can print and distribute or email to their employees.  For more information on H1N1 and the workplace, check out the DHS's flu resource website, flu.oregon.gov.  Outside of Oregon, check out the Center for Disease Control's H1N1 resource site

Oregon BOLI Files Multiple Proposed Rule Changes

The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment.  Click on the title of each to read the proposed rule:

  • Religious worship, child support obligors, physical accommodations for eligible disabilities.  The proposed rules would implement statutes:
    • requiring employers to reasonably accommodate wearing of religious clothing and leave for religious practices (SB 786)
    • making discrimination by employers against child support obligors an unlawful employment practice (ORS 25.424(3))
    • requiring places of public accommodation to provide access to employee toilets for customers with eligible medical conditions (SB 277)
    • requiring transient lodging of 175 or more units to provide lifts for individuals with disabilities (HB 3256). 
  • Compliance with the ADAAA, preferences for veterans, and discrimination on the basis of uniformed service.  The proposed rules and amendments would implement:
    • amendments to statutes providing for employment preference for veterans.
      (HB 2510)
    • amendments to disability discrimination statutes to conform them to the
      federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (SB 874)
    • statutes prohibiting discrimination in employment on the basis of uniformed
      service (HB 3256).
  • Home Health Agencies, Wage Security Fund.  The proposed rule amendment would:
    • implement HB 2595, enacted in 2009, which prohibits home health agencies and hospice programs from paying nurses providing home health or hospice services on a per-visit basis
    • clarify conditions to be met in qualifying for payments from the Wage Security Fund and delete obsolete references in the agency’s insurance cancellation notification rules.
  • Employment of Minors.  The proposed rule amendment would:
    • implement House Bill (HB) 2826 enacted in 2009, which removes the requirement that employers obtain a special permit before employing a minor under 16 years of age until 7 p.m. (9 p.m. between June 1 and Labor Day).
    • conform current language in the rules to the provisions of HB 2826, which shifts authority for the issuance of agricultural overtime permits from the Wage and Hour Commission to the Commissioner of the Bureau of Labor and Industries
    • clarify that minors may not be employed to operate or assist in the operation of power-driven farm machinery unless the employer has obtained an employment certificate as required and the minor has received required training in the operation of such machinery.
  • Rest and meal periods.  The proposed rule amendment would address the provision of rest and meal periods to employees, including factors to be considered in determining when an employee is prevented from receiving regularly scheduled meal and rest periods.
  • Prevailing Wage.  The proposed rule amendments would make permanent the temporary rules currently in place regarding prevaling wage rates. 

Click here for more information on BOLI's proposed rule changes, including information on how to make public comment and the deadlines for doing so. 

New TSA Regulations Potential "Gotcha" For Employers Interviewing Out-of-Town Candidates

As the economy rebounds (we hope) and hiring begins again, employers flying out-of-town job candidates in for interviews will need to be wary of new Transportation Security Administration ("TSA") regulations that require anyone booking air travel to provide the passenger’s date of birth and gender.  Employers who are not careful about how they implement this rule may increase their exposure to possible discrimination claims from rejected and disgruntled candidates.

49 C.F.R. § 1540.107(b), part of TSA's Secure Flight program, requires an individual to provide name (as it appears on the ID to be used at the airport), date of birth (DOB), and gender when “the individual, or a person on the individual’s behalf, makes a reservation for a covered flight.”  The purpose of the rule is to reduce the number of 4-year old girls and other "false matches" who accidentally end up on TSA “no fly” lists.  While the regulation was enacted in December 2008, airlines have been slow to implement the necessary upgrades to their reservation systems.  Some airlines may not be asking for the name, DOB and gender information now, but TSA expects all airlines to be in compliance by early 2010.

Continue Reading...

President Obama Orders Federal Employees Not to Text While Driving

Last week, President Obama signed an executive order prohibiting all federal employees from text messaging while driving on official business or while using government equipment.  Click here to read President Obama's executive order on texting while driving.  While President Obama's order does not effect private employers, it does directs federal agencies to encourage contractors and their employees to also to ban texting while driving on government business. 

Private employers may also want to consider adopting policies prohibiting employees from texting or using cell phones while driving.  Several studies, including this one from Car and Driver Magazine, show that texting while driving is more dangerous than driving while intoxicated.  There have been numerous cases in recent years where employers have been sued by the victims of accidents alleged to have been caused while the employees were texting or using cell phones and driving. 

Several states have banned cell phone use while driving (including Washington and, effective Jan. 1, 2010, Oregon) and several more are banning texting while driving.  Need to know the law in your state?  Check out this great overview of cell phone/texting while driving laws by state from the Governors' Highway Safety Association

Oregon's BOLI Proposes New Employee Leave Regulations

Last week the Oregon Bureau of Labor and Industries (BOLI) filed with the Secretary of State a Notice of Proposed Rulemaking on new regulations pertaining to certain employee leave laws.  The proposed regulations are intended to reflect some recent amendments to federal Family and Medical Leave Act (FMLA) regulations and to clarify, edit and make housekeeping changes.  The proposed rules would impact three Oregon leave statutes: 

  1. The Oregon Family Leave Act (OFLA)
  2. The Oregon Military Family Leave Act  (OMFLA)
  3. The Oregon Victims of Certain Crimes Leave Act (OVCCLA)

Click here to download the full text of the rules, or click here to download the Statement of Need and Fiscal Impact (both in Word format). 

The public (that's you!) is invited to comment on the proposed rules no later than November 13, 2009.  Send comments via email to plebaneks@state.or.us.  Comments via regular mail should be directed to:  Stef Plebanek c/o BOLI CRD, 800 NE Oregon St. #1045, Portland OR 97232. 

Once the regulations are finalized, the Stoel Rives World of Employment will provide coverage of any significant rule changes. 

2009 Oregon Legislative Update

The Oregon Legislature was in session in 2009, and many labor and employment-related bills came up for consideration.  A complete list of the bills that passed and the bills that failed follows below (you may have to click "continue reading." 

Several passed and will become law effective January 1, 2010.  Several others didn't get the support they needed to become law, but employers may want to take note as they may gain more traction in the next legislative session. 

Notable winners:  leave for military spouses, a ban on "captive audience" union meetings, and protections for stalking victims.  Notable losers:  several attempts to clarify an employer's obligation to accommodate medical marijuana use. 

Up next:  a federal labor and employment legislation update.  Stay tuned!

Continue Reading...

Oregon's Minimum Wage Will Remain $8.40 in 2010

Oregon's minimum wage will remain $8.40 per hour in 2010, Labor Commissioner Brad Avakian announced last week.  Oregon's minimum wage is tied to the Consumer Price Index, and is recalculated by the Labor Commissioner every September.  This year, however, the CPI declined 1.5 percent, so Oregon's minimum wage workers will not receive a raise next year.  Click here to read Commissioner Avakian's press release on the 2010 minimum wage

So, if prices are falling, why is there no decrease in the minimum wage?  Oregon's minimum wage law, passed by the voters in 2002, does not provide for cutting the minimum wage when prices fall.

Don't care because you don't live in Oregon?  Click here for a state-by-state list of minimum wage rates

Oregon Court Of Appeals Holds Non-Disabled Employees Are Protected When Requesting Accommodations

On Thursday, in Herbert v. Altimeter, the Oregon Court of Appeals held that an employee does not need to actually be disabled in order to be protected from retaliation for requesting an accommodation under Oregon’s disability anti-discrimination law.  The case serves as a useful reminder that anti-retaliation protections, like those in the Oregon disability law, can be very broadly applied and protect many types of employee requests or complaints. Employers should be careful when disciplining or terminating any employee who has recently made some kind of arguably protected request or complaint.

Sherrie Herbert was terminated from her truck-driving job with Altimeter shortly after she became ill, allegedly from exhaust fumes in the cab of her truck, and she reported those problems to her boss. She sued under various retaliation theories, including that she was terminated in retaliation for her having requested an accommodation for a disability (i.e., requesting to be reassigned to a different truck). The trial court granted a directed verdict for Altimeter at the close of Herbert’s case at trial and dismissed all claims.

The Court of Appeals reversed.  Altimeter argued that it couldn’t have retaliated against plaintiff for requesting an accommodation as a matter of law, because she was not disabled and therefore not protected under the Oregon disability law's anti-retaliation provisions.  The court rejected that argument, noting that while the law requires Oregon employers to provide a reasonable accommodation to a “person with a disability,” the anti-retaliation provision, ORS 659A.109, protects any “worker” who requests an accommodation.  So, the court reasoned, by its plain terms the statute protects a broader class of employees (all of them) who make protected requests for accommodations, even though those employees may not be entitled to an actual accommodation. 

The opinion also contained an illustrative reminder about the importance of well-drafted written responses filed with the Equal Employment Opportunity Commission (“EEOC”), the Oregon Bureau of Labor and Industries (“BOLI”), and similar agencies. Those written position statements are admissible later; if they’re not carefully drafted they could come back to bite the complainant. In Herbert, Altimeter’s BOLI position statement included several damaging admissions, the worst of which essentially stated that she was terminated because she insisted she be reassigned to another truck, i.e., requested an accommodation.  Despite a general lack of other evidence of retaliation presented by Herbert at trial, the Court held that Altimeter's admission in the BOLI statement alone was enough to allow that claim to go to a jury. 

Oops!  While there are no easy, hard-and-fast rules about how to draft effective BOLI or EEOC position statements, generally you want to say as little as possible while still making your case, and above all, you don't want to provide the only evidence a plaintiff will need to take his or her case all the way to a jury!!  Those kinds of careless statements early on can make litigating employment discrimination lawsuits very expensive for employers, because they become much harder to get dismissed before trial.

Continue Reading...

Oregon Supreme Court Denies Employee's Wrongful Discharge Claim for Reporting Unlawful Trade Practices

The Oregon Supreme Court has denied a car salesman's wrongful discharge claim. In Lamson v. Crater Lake Motors, Inc., the salesman, Kevin Lamson, claimed he was terminated for complaining to his employer that an outside entity managing sales on his employer's car lot was engaging in unlawful trade practices.  Lamson refused to participate in special promotional events run by the outside company,  because he believed company was engaging in sales tactics that were unethical and unlawful.

As the Stoel Rives World of Employment has discussed earlier, wrongful discharge is a common law remedy.  One way a plaintiff may assert the claim is by arguing that the employer terminated him for fulfilling an "important societal obligation."  Oregon courts determine what obligations qualify by reviewing state statutes and the state constitution. 

In this case, the Oregon Supreme Court ruled that plaintiff would have had a wrongful discharge claim if he had been terminated for refusing to engage in illegal practices prohibited by Oregon's Uniform Trade Practices Act..  However, the court determined that plaintiff's evidence did not meet that burden.  Plaintiff had not complained that he was being forced to act illegally; he had complained only that the outside company was acting illegally and urged his employer not to do business with that company.  The court also held that plaintiff would have had a viable claim if he had been terminated for reporting the outside company's illegal practices to a government agency that could have taken legal action about the outside company.  Reporting the allegedly illegal practices to his employer, the court ruled, was insufficient to trigger the common-law remedy.

Lamson does not signal an entirely new direction in the law of wrongful discharge; employers have known for some time that they may be held liable for terminating employees for performing public duties such as jury service or even arresting lawbreakers.  However, Lamson is a valuable precedent for employers because it shows that Oregon courts are not willing to extend a wrongful discharge remedy for every act that a discharged employee can relate (however tangentially) to an Oregon statute.  Plaintiffs asserting wrongful discharge must show how their complaint directly relates to the furtherance of a public policy

 

Oregon Court of Appeals Rejects Wrongful Discharge Claims for Health and Safety Retaliation

This morning the Oregon Court of Appeals rejected a plaintiff's common-law wrongful discharge claim that she was terminated for reporting a health and safety violation.  The Court ruled that the state and federal statutory remedies were adequate, and that she should have filed a statutory claim instead. 

Plaintiff Andrea Deatherage was an employee of Super 8 Inn when she filed a health and safety complaint against her employer with Oregon OSHA.  Deatherage was terminated the next day.  She sued for the common-law tort of wrongful discharge, claiming she was terminated in retaliation for filing the complaint. 

In Oregon, wrongful discharge is a "gap filling" remedy that is available only when there is no adequate remedy by statute.  In Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977), the Oregon Supreme Court ruled that the state and federal statutory remedies for health and safety complaint retaliation were sufficient to preclude a common-law remedy.  Citing Walsh, the trial court dismissed plaintiff's claim.

So why the fuss at the Court of Appeals?  Plaintiff claimed that a federal case issued since Walsh had cast doubt on whether the statutory remedies were actually adequate.  The Court of Appeals rejected the invitation to ignore an Oregon Supreme Court case, and adhered to Walsh, agreeing with the trial court.  (Oddly, the court declined to fill a gap in Oregon law by explaining exactly what remedies are available for an Oregon statutory health and safety reporting claim under ORS 654.062.)

So why is this case important?  At this point, it creates a difference in how these kinds of wrongful discharge cases will be treated in state courts as opposed to federal courts. The Stoel Rives World of Employment will be watching future developments, as the Oregon Supreme Court may have an opportunity to weigh in on this issue.

Recovery of Attorney Fees for the Employer in Oregon Wage and Hour Cases

A recent Oregon Court of Appeals case, Rogers v. RGIS, LLP, presents an opportunity for employers.  In Rogers, the court awarded an employer a whopping $180,854.09 in attorney fees.  The plaintiff brought one lawsuit but several wage and hour claims (overtime, minimum wage, late payment of final wages, unpaid wages for rest and meal breaks).

The court found the plaintiff prevailed on a few claims, but the employer prevailed on most.  As a result the employer was awarded six figures and the plaintiff was awarded only $880 to cover fees.

This case is saying that a prevailing party may recover fees, which relate to each separate wage claim.  For example, if the plaintiff brings five separate wage claims and the employer prevails on four, the employer will (in the court’s discretion) get to recover its fees to defend against the four claims upon which it prevailed.

If you’re sued under Oregon wage and hour laws, you should seek fees under ORS 20.077 and 653.055(4).  You can also use the potential for recovering fees as leverage before a lawsuit is filed.  Will this logic be extended to other employment claims, such as discrimination and retaliation claims?

Oregon Religious Accommodation Bill Becomes Law

Last week Oregon Governor Ted Kulongoski signed Senate Bill 786, which will require employers to more extensively accommodate employees' religious practices and observation.  The bill passed both the Oregon House and Senate by wide margins earlier this Spring.  The new law will take effect January 1, 2010.

Oregon law already prohibits discrimination based on an employee's religion.  Senate Bill 786 also requires employers to reasonably accommodate employees' religious practices.  The law specifies types of accommodations that may be required, such as shift changes, approving vacation time for religious holidays, and allowing employees to wear jewelry or religious clothing.  The bill makes exceptions if the requested accommodations create an undue hardship on the employer.  The law contains only one occupation-specific exception:  public school teachers will be prohibited from wearing religious dress while at work.

The new Oregon law is modeled after federal regulations interpreting the Civil Rights Act of 1964, and guidance on those regulations will help Oregon employers comply with the new law.  For an excellent guide on accommodating religious practices, check out this article on religious accommodation from HR Hero.  And, expect more tattooed and pierced employees to request accommodations due to their membership in the Church of Body Modification

Use Workshare Program to Cut Costs and Keep Workers

Are you looking for ways to hang on to staff, yet reduce costs?  Those goals are not necessarily mutually exclusive if you choose to participate in your state's workshare program.  A workshare program allows your employees to collect some unemployment benefits but continue working part time.  Here's an article from the Center for Law and Social Policy that gives additional detail.

Seventeen states have such programs:  Arizona, Arkansas, California, Connecticut, Florida, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New York, Oregon, Rhode Island, Texas, Vermont and Washington.  For a sample of a workshare law, see Section 1279.5 of California's unemployment insurance code.

Each state’s program is a little different, but they have common attributes.  We’ll use Oregon’s program as an example. 

Continue Reading...

Oregon Court of Appeals Upholds Employer's Right to Ask Potentially Disabled Employees to Take Medical Exams

Today in Heipel v. Henderson et al.,  the Oregon Court of Appeals affirmed summary judgment on an Oregon disability discrimination claim in favor of an employer who asked an employee to take an independent medical exam (IME) as part of an investigation into the employee's disturbing work-related behavior.  The court confirmed that such exams must be "job related and consistent with business necessity," and that the exam in this case met those criteria.

Plaintiff Barbara Heipel worked for the Oregon Employment Department.  Her supervisors received an escalating string of complaints about her job performance and erratic behavior.  Her actions included:

  • standing in the bathroom in a "trance" pulling out paper towels into an overflowing trash can;
  • leaning against a bathroom stall in a "despondent state";
  • total loss of emotional control with supervisors and coworkers;
  • accusing her coworkers of stealing shredded documents from a trash can and pasting them together for personal use; and
  • false and contradictory complaints to customers about her employer and coworkers.

Heipel's employer asked her to take an IME to determine whether she posed a threat to herself and others and whether she could perform the essential functions of her position.  Plaintiff refused, and the Employment Department terminated her for refusing.  Plaintiff filed a lawsuit claiming, among other things, that her employer had unlawfully discriminated against her under Oregon employment statutes for having a disability.

ORS 659A.136(1) provides that such examinations are appropriate only where they are "job related and consistent with business necessity."  The Oregon Court of Appeals, relying on federal cases in the Sixth and Eighth Circuits, ruled that, under these circumstances, the requested exam met both requirements.

This decision should not be seen as a blanket endorsement of all IMEs in the workplace.  Although this exam was ruled appropriate, the Court of Appeals' inquiry was fact-specific -- and the facts here were unusual.  Employers should understand the risk of requesting such exams and should carefully evaluate the individual circumstances before forging ahead.

Proposed "LAW" Would Index Federal Minimum Wage to Poverty Level

The recently proposed Living American Wage Act (LAW) would tie the federal minimum wage to the federal poverty threshold for a family of two with one child. Introduced last week by Rep. Al Green (D-Texas), LAW would index the minimum wage to 15 percent above the poverty line for a full-time worker, or about $8.20 per hour in wages, and it would increase the minimum wage every four years to maintain a wage at least 15 percent above the poverty line. For more information, click to read Rep. Green’s press release on LAW

Such an indexed minimum wage would not be unique. Oregon adjusts its minimum wage each year based on the U.S. City Average Consumer Price Index for All Urban Consumers for All Items.  Currently, Oregon's minimum wage is $8.40 per hour.  For a list of the minimum wages in other states, click here for the Department of Labor's handy list of minimum wages by state, effective January 1, 2009

We’ll keep watching to see if LAW becomes law.  Until then, please note that the federal minimum wage will increase to $7.25 per hour effective July 24, 2009.

Oregon Musicians No Longer Presumed Employees for Unemployment Purposes

Sine die!  The Oregon Legislature's biennial session has come to a close, providing a perfect opportunity for the Stoel Rives World of Employment to take a look at what passed, what failed, and what flew under the radar.

One helpful new statute fixes a problem for employers who operate music venues.  In late 2007, Mississippi Studios, a hip North Portland nightspot and recording studio, got nailed in an Oregon Employment Department audit for not paying unemployment taxes on musicians who played at the venue.  Mississippi assumed that the musicians were not employees, but were  independent contractors according to the Department's test.  Not so fast.  Mississippi was unaware of ORS 657.506, an obscure provision in Oregon statute that presumed musicians are employees unless otherwise stated in an employment agreement.

The new statute, which went into effect immediately on passage, repeals the old rule and treats Oregon musicians just like everybody else.  The bill is simply drafted and repairs some bad lawmaking.  Way to go, legislature!  This time you were up there with the best.

Oregon Legislature Bans Mandatory Meetings

A new Oregon bill will prohibit employers from requiring employees to attend mandatory or "captive audience" meetings on, among other topics, labor unions.  Governor Ted Kulongoski is expected to sign the bill, which would them become law effective January 1, 2010.  Click here to read SB 519

SB 519 prohibits an employer from taking action against an employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters. Religious or political matters is defined broadly and includes communications to employees about unionization.  An employee who suffers economic loss (through termination or suspension) as a result of the bill can sue his or her employer and recover treble damages.  The bill also allows employees to obtain an injunction prohibiting additional "captive audience" meetings. 

This law might not be long-lived:  the U.S. Supreme Court found a similar California law to be preempted by federal labor law.  Click here to read that opinion in Chamber of Commerce v. Brown.  Even if a court finds Oregon's statute to be similarly preempted (and we believe a court will), the law could still apply to employers that are not covered by federal labor law - namely, Oregon public and agricultural employers.  Also, the word from Salem is that the legislature will still revise the law to provide additional protections for religious employers (such as churches and some hospitals) who hold religious meetings, so keep an eye out for those changes in the next week or so. 

Extension of Federal Benefits to Same-Sex Partners Falls Short of Goals

The memorandum issued by President Obama yesterday extends some benefits to the same-sex partners of federal employees, including access to a government insurance program that pays for long-term conditions such as Alzheimer's disease, and to sick leave to care for a sick same-sex partner or a non-biological child.  However, the extension did not provide eligibility for health care to same-sex partners, drawing protest from gay activists

Why did President Obama stop short?  The Defense of Marriage Act (DOMA), the 1996 federal law that, among other things, defines marriage as a legal union exclusively between one man and one woman.  According to President Obama's press statement, the White House determined that DOMA prevented an extension of all benefits to same-sex partners, including health care.  In the statement, President Obama called on Congress to repeal DOMA and signaled an intend to extend all benefits to same-sex partners if and when that happens. 

President Obama's actions will clearly impact Federal agencies and their employees, but what effect does it have on private employers?  For now, none  - the memorandum only applies to the federal government.  However, it does signal a growing trend in mandating the extension of employee benefits to same-sex partners. States that recognize same-sex marriage generally require private employers to extend benefits to same-sex spouses; other states that do not recognize same-sex marriages but do recognize same-sex partnerships (such as Oregon, Washington and California) may require private employers to extend benefits to same-sex partners under certain circumstances.  Private employers should consult legal counsel about their possible obligation to provide such benefits. 

Proposed Law Would Guarantee Working Mothers Right to Breast-Feed in Workplace

Oregon Democratic Senator Jeff Merkley has announced he will today introduce the Breastfeeding Promotion Act (BPA) in the U.S. Senate.  The BPA would  guarantee working mothers the right to breast-feed their children at their workplaces.  Click here to read about Merkley's proposal on Oregonlive.com. 

The bill is identical to one introduced yesterday in the House by Rep. Carolyn Maloney, D-N.Y. and Rep. Lois Capps, D-CA.  The law would amend Title VII of the Civil Rights Act of 1964, by  to protect breast-feeding in the workplace; provide tax incentives for employers that establish private lactation methods in the workplace; establish minimum safety standards for breast pumps; make breast feeding equipment tax deductible; and create time and privacy for working mothers to express milk.

Oregon implemented a breastfeeding law in 2007, which gives women the right to privately express breast milk in the workplace.  Employers with questions about that law may consult this helpful breastfeeding rest period fact sheet from the Oregon Bureau of Labor and Industries.  Meanwhile, the Stoel Rives World of Employment will continue to follow the progress of the BPA as it makes its way (or not) through the 111th Congress. 

Stoel Rives to Host Employee Free Choice Act Seminar in Portland June 11

If passed in its proposed form, the Employee Free Choice Act ("EFCA") will revolutionize federal labor laws by allowing unions to organize without a secret-ballot election. Other onerous provisions include shortening the time to negotiate a first contract and, if the parties do not agree, allowing an arbitrator (a judge) to decide the terms of the first contract. While Congress is debating several compromises over EFCA, just about any version of the law will tilt the playing field sharply in favor of labor unions. Union and non-union employers must be prepared to face new organizing tactics in light of EFCA and the unions’ sophisticated use of the Internet.

Please join Labor & Employment attorneys Victor Kisch and Dennis Westlind for a seminar about EFCA and the do’s and don’ts for remaining union-free in the new environment. We will also discuss other likely changes to labor laws. The seminar will cover:

  • How will EFCA make it easier for unions to organize? What can a non-union employer do under EFCA?
  • How do unions organize in the age of Facebook, MySpace, Twitter, chat rooms, websites, text messages, email and so on?
  • Effective no solicitation policies;
  • What key issues make a work force vulnerable to union organizing? How can an employer address employee concerns?
  • Salts -- If union organizers seek employment at your company, what can you do?

When:

Thursday, June 11, 2009
11:30 - 11:45 a.m. - Registration and Lunch
11:45 a.m. - 1:30 p.m. - Presentation

Cost:

Complimentary (lunch included)

Where:

Stoel Rives LLP
900 SW Fifth Avenue, Suite 2600
Portland, OR 97204

Parking:

We will validate parking for most nearby parking garages.

RSVP:

Space is limited! Click here to register online by June 9.

Oregon Moves to Keep Its Disability Law in Tune With the ADA

The Oregon Legislature is taking steps to keep Oregon's disability discrimination laws consistent with the federal Americans with Disabilities Amendments Act (ADA).  Last week, Senate Bill 874 passed out of the Senate Judiciary Committee on a 4-1 vote.  SB 874 will amend existing Oregon disability law to adopt the changes made to the ADA in 2008 through the ADA Amendments Act (ADAAA).

SB 874 contains four key changes to make Oregon law consistent with federal law:

  1. prohibiting discrimination against individuals “regarded as” disabled whether or not their perceived impairment is perceived to limit a major life activity;
  2. construing the term "disability" in favor of broad coverage;
  3. considering an impairment that is episodic or in remission to be a disability if it would substantially limit a major life activity when active; and  
  4. determining whether an impairment substantially limits a major life activity without regard to the effects of mitigating measures except ordinary eyeglasses.

Oregon has, with a few exceptions, consistently kept its disability discrimination laws consistent with the ADA.  Because of that, we expect SB 874 (or something very similar) to become law.  The Stoel Rives World of Employment will continue to keep you updated.

Carpenters Union to Pay Oregon Employer $450,000 to Settle Picketing Dispute

The Pacific Northwest Regional Council of the Carpenters and Joiners of America recently agreed to pay Hoffman Construction Co. $450,000 and to settle a lawsuit over alleged unlawful picketing during a 2007 strike in Oregon.  The Carpenters have also agreed to pay an additional $200,000 into an escrow account until the union has trained its members on diversity, race and sex discrimination, intimidation, and picket line behavior.  Click here to read the consent decree

A union paying an employer?  You read that correctly.  Hoffman alleged that Carpenters members engaged in unlawful picketing with mass picketing and improper signage, intimidated workers, disrupted traffic, struck vehicles, picketed reserved gates, made excessive noise, and caused physical damage.  Hoffman also alleged that picketers used derogatory racial and sexist epithets, obscenities and threatening language aimed at replacement workers and union members crossing picket lines. 

This is an important decision for employers.  While lawsuits against unions for picket line misconduct are fairly common, a decisive outcome like this is very rare.  This sets a precedent that such picket line behavior is not acceptable, and may encourage unions to better control picketers.

BOLI Seeking Comments on Changes to Family Leave Regulations

The Oregon Bureau of Labor and Industries (BOLI) will hold three public forums on possible regulatory changes to the Oregon Family Leave Act (OFLA) to better align it with the recently revised federal Family and Medical Leave Act (FMLA).  BOLI is also seeking public comments through its regular comment process.  After receiving and reviewing the comments, BOLI will determine if any changes should be made to make Oregon leave law rules more similar to federal regulations.  Click here to read BOLI's press release on the forums, and click here for BOLI's notice of public comment

Interested in attending one of the forums?  Here is a list of places and times:

Thursday, February 26, 4:00-6:00pm
City of Eugene,City Council Chambers
777 Pearl Street
Eugene, Or 97401

Tuesday, February 24, 4:00-6:00pm
Portland State Office Building
800 NE Oregon St., Room 1-B
Portland, OR 97232

Thursday, February 26, 4:00-6:00pm
Portland State Office Building
800 NE Oregon St., Room 1-B
Portland, OR 97232

Would you rather comment in writing?  Written comments may be sent to Amy.K.Klare@state.or.us or to Amy Klare, BOLI Civil Rights Administrator, 800 NE Oregon St. #1045, Portland, OR 97232. Written comment must be received by 5pm on March 6, 2009.

Want to know the differences between current OFLA and the new FMLA regulations?  BOLI has prepared this handy OFLA/FMLA comparison chart.  You can also download BOLI's brief on Implementing OFLA Under FMLA rules

Oregon BOLI: No Changes to OFLA Regulations (yet...)

As previously reported here at the Stoel Rives World of Employment, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009.  Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations.  FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.

Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees).  However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws.   The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.)  Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted.  In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws. 

Where does that leave Oregon employers that are covered by both OFLA and FMLA?  The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees.  The Stoel Rives World of Employment will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes. 

Oregon Issues New Rest Break Regulations

The Oregon Bureau of Labor and Industries (BOLI) issued a revised regulation earlier this week on employees’ meal breaks which will be of interest to many smaller employers. 

The revised regulation, which is effective as of January 12, 2009, retains the basic requirement that employees normally be provided with a 30-minute, unpaid meal period in which they are relieved of all duties (for shifts longer than 6 hours).  However, it adds additional options for employers who do not provide the full 30-minute meal period and/or relieve an employee completely from duty (such as when the employee remains on-call).

Under the new regulation, an employer is not required to provide an employee with a 30-minute meal period in which the employee is relieved of all duties if the employer can demonstrate that:

  1.  failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
  2. industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duties; or
  3. providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose an “undue hardship” on the operation of the employer’s business (the regulations also provide guidance on what is an “undue hardship”). 

An employer that does not provide meal periods under the “undue hardship” exception must comply with two additional requirements: (a) the employer must also provide the employee adequate periods in which to rest, consume a meal, and use the restroom without deduction from the employee’s pay; and (b) the employer must first provide to each employee a notice provided by BOLI regarding rest and meal periods in the language used by the employer to communicate with the employee.  BOLI will make such notices available by March 16, 2009.

 

Want more information?  Click here to download BOLI's  press release explaining the new regulations. Or click here to download the full text of the new regulation, including the definition of undue hardship.  Or, click here if you want BOLI's full run-down of the law on rest and meal breaks in general. 

Washington's Minimum Wage To Rise to $8.55 January 1, 2009

Washington employers get ready to give your minimum-wage employees a raise:  effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country.  For more information, click here to read the Department of Labor and Industries' Press Release.  Washington's current minimum wage is $8.07 per hour.

As previously reported in the Stoel Rives World of Employment, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009.  Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index

The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009.  For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor

Oregon's New Smokefree Workplace Law Takes Effect January 1, 2009

Since 2002, the Oregon Smokefree Workplace Law has made most workplaces smokefree. Effective January 1, 2009, a new law will expand the number of indoor workplaces that are required to be smokefree, and prohibit smoking within 10 feet of entrances, exits, windows that open, and ventilation intakes of workplaces and public places. 

Workplaces and public places that must now be smokefree include but are not limited to:

  • Bars and taverns, including bar areas of restaurants
  • Bowling centers
  • Bingo halls
  • Private and fraternal organizations
  • Employee break rooms
  • Restaurants
  • Private offices and commercial office buildings
  • Retail and wholesale establishments
  • Manufacturing plants and mills
  • Truck stops
  • Child and adult day-care
  • Assisted living facilities
  • Movies theaters and indoor entertainment venues
  • Hotels and motels (Exception: up to 25% of guest rooms may be designated as smoking rooms by the owner or entity in charge)
  • Work vehicles that are not operated exclusively by one employee

That's right - no more smoking in the day care center!  There are some exceptions to the new law, but they are few:

  • Certified smoke shops
  • Cigar bars
  • Hotel/motel rooms designated for smokers
  • American Indian ceremonies

Employees and the public will be able to report violations of the new law once it takes effect by calling a toll-free number or completing an online complaint form.  If your business is caught violating the laws, it can be fined $500/day or $2000 per 30-day period.  For more information, including compliance tips, check out the State of Oregon's Smokefree Workplace website

Free Lunch Seminar on California Law for Oregon Employers October 30

Do you have an office or a facility in California? Do you have any employees who work in California? If you've had to confront the challenges of complying with California's unique employment laws and regulations, you'll want to join us.

We will have a lively discussion led by Tony DeCristoforo, a labor and employment law specialist based in our Sacramento office, and Victor Kisch, a Portland based attorney who practiced in California for about a decade. They will summarize the important differences between Oregon and California employment laws.

  • Where?  Stoel Rives' Portland Office
  • When?  11:30 a.m., October 30, 2008
  • Cost?  Free!  As Tom Peterson would say, "Free is a very good price!"

For registration information, click here

Oregon: Arbitration Agreements Need Not Contain Express Waiver of Jury Trial

Late last month, the Oregon Court of Appeals held that an arbitration agreement between an employer and an employee need not contain an express waiver of the employee's right to a jury trial to be enforceable.  The opinion can be read here:  Hays Group, Inc. v. Biege

In Hays Group, a trial court denied an employer's motion to compel arbitration of an employee's wage and age discrimination claims on the basis that the arbitration agreement did not contain an express waiver of the right to a jury trial, just a statement that claims would be “settled by final and binding arbitration.”  The Court of Appeals reasoned that the employee did knowingly waive his right to a jury trial, given that “[c]laims cannot be settled by ‘final’ and ‘binding’ arbitration except by a waiver of the right to a jury trial.”

This decision gives Oregon employers some added leeway in drafting arbitration agreements.  The best practice remains to include an express waiver of the right to a jury trial  - there is no harm in including one, and it helps cut off any employee's arguments that he or she did not understand the scope of the agreement. 

Oregon employers should also be aware that, pursuant to a new statute effective January 1, 2008, all employee arbitration agreements  must be presented in a "written employment offer" that must be "received" by the employee at least two weeks before the first day of the employee's employment.  Arbitration agreements may be presented to current employees, but will not be enforced unless entered into at the time of a "bona fide advancement" (such as a promotion).

Oregon Announces New Minimum Wage of $8.40 Effective January 1, 2009

The Oregon Bureau of Labor and Industries recently announced that Oregon's minimum wage will increase from the current $7.95 an hour to $8.40 an hour effective January 1, 2009.  For Oregon Labor Commissioner Brad Avakian's press release, click here

As a result of Ballot Measure 25, passed by voters in 2002, the minimum wage is adjusted annually based on changes in inflation as measured by the Consumer Price Index (CPI). The Commissioner is charged with adjusting the minimum wage for inflation every September, rounded to the nearest five cents.

What Labor and Employment Law Question Would You Ask the Presidential Candidates?

The Presidential election is less than two months away, and the candidates' campaigns are in full swing.  Oddly enough, the candidates have been strangely silent on labor and employment law issues, focusing their attention on other pressing national security concerns, such as putting lipstick on pigs.  Glad to see they're taking the high road. 

In any event, Daniel Schwartz at the Connecticut Employment Law Blog has this great post about what labor and employment law issues the presidential and vice-presidential candidates should address in their upcoming debates, withs suggestions like the Employee Free Choice Act and a bill to provide employee with paid sick leave.  And if that's not your cup of tea, Dan's got this great post about the use of the phrase "lipstick on a pig" in labor and employment law. 

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.

Interested?  For more information and directions on how to sign up, click here

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.

 

Oregon: Leave for Olympic Athletes?

Local athletes did remarkably well at the 2008 Track and Field Olympic Trials in Eugene, Oregon, which raises an interesting leave issue.  It's an obscure law, but Oregon requires employers to give Olympic athletes leave to compete.  Under ORS 659.865, it is an unlawful employment practice for an employer to infringe on an employee's right to participate in any athletic event sanctioned by the national government body for that sport as recognized by the U.S. Olympic Committee.  It's similarly unlawful to discriminate against employees who compete in Olympic sports.  Unfortunately for this author, the law does not extend to beer pong

Ninth Circuit Affirms "Emotional Distress Damages" Caused by Denial of FMLA Leave

Plaintiffs suing their employers under the Family and Medical Leave Act ("FMLA") may recover lost wages, but they may not recover emotional distress damages.  What if an employee misses work because of emotional distress that is caused by a wrongful denial of FMLA leave?  The Ninth Circuit Court of Appeals recently ruled that such damages are a form of lost wages and therefore may be recovered under FMLA.  Continue Reading...

Oregon Court of Appeals: Keep Accommodating Medical Marijuana (For Now....)

In Emerald v. Bureau of Labor, The Oregon Court of Appeals affirmed a Bureau of Labor and Industries determination that an employer must reasonably accommodate an employee's off-duty medical marijuana use.  However, the case was affirmed on a technicality - again leaving Oregon employers wondering if they really have to accommodate an employee's medical marijuana use. 

Continue Reading...

Oregon Court of Appeals Upholds Employment Discrimination Statute

Oregon's anti-discrimination statute allows an employee alleging employment discrimination to file either a lawsuit (which results in a jury trial) or an administrative complaint with the Oregon Bureau of Labor and Industries (which results in an administrative hearing with no jury). In Emerald v. Bureau of Labor, the employer argued that allowing an employee to arbitrarily choose whether or not there will be a jury trial violates the employer's right to a jury trial under the Oregon Constitution.  Not so, ruled the Oregon Court of Appeals earlier this week. 

Continue Reading...

Oregon Employees Have No Wage Claim for Missed Rest and Meal Breaks

The Oregon Supreme Court ruled that employees could not sue their employer for back pay over missed rest and meal breaks. Want to know more?  You can either read the court’s opinion, or read a more concise yet equally informative summary of Garfur v. Legacy written by yours truly.  Note to employers:  don't start making your employees skip their breaks just yet.  BOLI can fine you up to $1,000 per violation or, if you're really eggregious, throw you in jail!
Tags: ,