Dennis Westlind
Dennis Westlind is a partner of Stoel Rives LLP, practicing in the Labor and Employment group. Based in the firm’s Portland office, Dennis represents employers in both state and federal courts as well as before administrative agencies and in both private and public arbitrations. His cases have included wrongful discharge, harassment, workplace torts, wage and hour disputes, workplace violence and discrimination. He also maintains an active practice in traditional labor law. Dennis is recognized by Chambers USA (2009) as one of Oregon’s up and coming labor and employment attorneys. He serves as editor for The World of Work blog.
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:
Ninth Circuit Approves of "Preemptive" Fitness for Duty Examination
Yesterday the Ninth Circuit Court of Appeals issued a decision approving of an employer's use of a "preemptive" fitness for duty examination for an employee who exhibited bizarre and erratic behavior in the workplace, even though that behavior had not yet impacted his job performance. Click here to read the full opinion in Brownfield v. City of Yakima.
In Brownfield, a police officer was ordered to undergo a fitness for duty examination after he displayed several strange behaviors in and out of the workplace: swearing at and arguing with another officer, becoming upset after a child teased him during a traffic stop, domestic violence at home, and making vague suicidal comments . The City required Brownfield to undergo a fitness for duty examinations to determine whether he could perform police duties. When Brownfield refused, the City terminated him. Brownfield sued, alleging the City violated the Americans with Disabilities Act ("ADA") by unlawfully requiring a fitness for duty examination.
The Ninth Circuit held that the City did not violate the ADA by requiring the fitness for duty examination. Under the ADA, an employer may not require a fitness for duty examination "unless such examination ... is shown to be job-related and consistent with business necessity." The Ninth Circuit rejected Brownfield's argument that the examination could not be job-related unless the City showed Brownfield's job performance was affected by his behavior. Rather, the court held that a "propyhlacitc psychological examination" following an employee's erratic behavior may be job-related and satisfy the business necessity standard even though job performance is not impacted.
When can an employer order an employee who is behaving erratically to undergo a fitness for duty examination? In Brownfield, the Ninth Circuit adopted a "reasonable person" standard: the employer can order the examination when faced with "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job." The court also warned against overuse of such examinations, however: "an employee's behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions."
Brownfield will give employers in the Ninth Circuit greater leeway in addressing an employee's erratic behavior. Before ordering such an examination, however, employers should consider whether the behavior could raise a serious question of whether the employee can still perform the essential functions of his job. Overuse of such examinations could lead to meritorious discrimination claims.
Supreme Court Invalidates Nearly 600 Decisions Made by Two-Member NLRB
This morning the United States Supreme Court issued a highly-anticipated decision in New Process Steel v. National Labor Relations Board, ruling 5-4 to effectively invalidate almost 600 decisions made by the NLRB during the time it only had two members.
Normally, the NLRB is comprised of five members, but typically delegates its powers to decide most cases to panels of three members, in which a two-member majority can (and often does) carry the day. However, from late 2007 through March 2010, the Board only had two members. Those two members argued that they had the authority to decide cases as long as they agreed on the decision; after all, had they been the majority on a three-person panel, they would have made the same decisions.
The Supreme Court disagreed. It held that the National Labor Relations Act (NLRA), the law that gives the NLRB its powers, only allows the Board to delegate the authority to decide cases to a panel of at least three members. Accordingly, no two-member panel could have decision-making authority under the NLRA.
What does this mean for employers? If you had one of the 600 cases decided by the two-member Board, it may mean that your case will have to be reconsidered by a new three-member panel. We suspect, however, that the vast majority of those cases will be decided the same way. For the rest of us, this decision will have little impact. The two-member Board did not take up any controversial cases and did not issue any decisions that would overturn existing precedent or make "new law."
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.
IRS Issues HIRE Act Affidavit
The Internal Revenue Service released yesterday Form W-11, the Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit. Employers can use the form to claim the special payroll tax exemption that applies to many newly hired workers during 2010. Click here to download a copy of Form W-11.
The HIRE Act, which President Obama signed into law on March 18, 2010, allows employers to claim an additional income tax credit equal to 6.2 percent of paid wages for every new qualified employee retained for 52 weeks, up to $1,000 per employee. Under the Act, a "qualified employee" is one who:
- Begins employment after February 3, 2010 and before January 1, 2011;
- certifies by signed affidavit (such as Form W-11) that he or she has not been employed for more than 40 hours during the 60-day period ending on the date the employee begins employment;
- is not hired to replace another employee unless the other employee separated from employment voluntarily or for cause (including downsizing); and
- is not related to the employer.
For more , click here to read the Stoel Rives World of Employment's previous coverage of the Hire Act.
How Does the Heath Care Reform Package Impact Employers?
The health care reform legislation passed by Congress places significant new responsibilities on employers, group health plans, insurers, and individuals. The Stoel Rives Employee Benefits team has developed the following overview of the most significant issues affecting employers and group health plans, in order of effective date. (click on CONTINUE READING" for the full text of the overview).
Effective Immediately
President Obama Uses Recess Appointments to Fill NLRB, EEOC Seats
This week President Obama announced that he would make recess appointments to fill vacancies on the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). The move allows the White House to bypass the Senate confirmation process, which promised to be extremely contentious.
The appointments will add two Democratic members to the NLRB: Craig Becker and Mark Pearce. Both appointees were strongly opposed by Republicans because of their anticipated pro-labor viewpoints. Becker, a labor law professor, has been associate general counsel for the Service Employees International Union (SEIU) since 1990 and has also served as an AFL-CIO staff counsel since 2004. Pearce is a partner with the firm of Creighton, Pearce, Johnsen & Giroux in Buffalo, New York, where he represents unions and employees. President Obama's recess appointments do not include Republican nominee Brian E. Hayes, the Republicans' labor policy director for the Senate Committee on Health, Education, Labor and Pensions, but Hayes' Senate confirmation is not expected to encounter any significant roadblocks.
The EEOC appointments will bring the agency up to a full compliment of five directors. The new appointments include: Jacqueline Berrien as EEOC chair, Chai Feldblum and Victoria Lipnic. Berrien has served as associate director of the NAACP Legal Defense and Educational Fund Inc. (LDF) in New York since 2004 where she has worked on voting rights and political participation issues. Feldblum, a Georgetown University law professor, played a leading role in drafting the original Americans with Disabilities Act and more recently worked on the ADA Amendments Act. She has also worked on the proposed Employment Non-Discrimination Act, which would ban employment bias based on sexual orientation or gender identity. Lipnic is a lawyer with Seyfarth Shaw in Washington, D.C. and served in President George W. Bush's administration as assistant secretary of labor for employment standards from 2002 until 2009. In addition, EEOC supervisory attorney P. David Lopez will appointed to the post of EEOC general counsel.
What will these appointments mean for employers? First, expect to see more rule changes. Both the EEOC and the NLRB have for some time operated without quorums, meaning that the agencies have not been able to take on any controversial cases or make significant rule changes. Now that they have enough members, expect a flurry of activity from both bodies. For the NLRB in particular, this may mean reversals of many pro-employer decisions made during the Bush years. Second, expect both agencies to get a lot more employee-friendly. President Obama's appointments will appease labor unions and employee advocates who adamantly supported his campaign but until now have not received much in return. Those groups expect to get a return on their investment, and these appointments will go along way towards making that happen.
President Obama to Sign Jobs Bill Today
President Obama is today expected to sign the Hiring Incentives to Restore Employment (HIRE) Act, which in its final form passed The House of Representatives 217-201 on March 4 and the Senate 68-29 on March 17. Click here to download the final version of the HIRE Act.
Key provisions of the HIRE Act include:
- An exemption from Social Security payroll taxes for private employers for each worker hired in 2010 who previously had been unemployed for at least 60 days;
- A $1,000 income tax credit, or a credit of 6.2% of total wages paid, for private employers for each new employee hired in 2010 and retained for at least 52 weeks and claimed on the employer's 2011 income tax return;
- An extension of the small business “expensing” tax break for one year, allowing small businesses to continue writing off up to $250,000 of certain capital expenditures instead of depreciating them over time;
- A $4.6 billion Build America Bonds program, which would provide an optional direct subsidy payment in lieu of a tax credit for tax credit bonds issued for certain school and energy projects; and
- Expanded federal aid for highway programs estimated to save or create 1 million jobs.
As previously reported in the Stoel Rives World of Employment, a slightly different version of the HIRE Act passed through the Senate on February 24. While the bill was in the House, several changes were to the Act, including increased funding to the Build America Bonds program and greater flexibility to the hiring tax credit program.
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)
