Oregon Supreme Court Affirms That Employers Can Be Liable for Post-Employment Retaliation

Oregon employers should be aware of the Oregon Supreme Court’s recent decision in McLaughlin v. Wilson, 365 Or 535, __ P3d __ (2019).  In McLaughlin, the court was asked to decide the scope of ORS 659A.030(1)(f), which makes it unlawful “[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person” has opposed or reported harassment or discrimination.

The court broadly interpreted the statute in two key ways. First, the court held that any person can be liable for retaliation under the statute and that liability is not limited to employers. This means that supervisors, HR personnel, and other individuals may be held liable under the statute. This differs from federal Title VII, under which only employers can be liable for retaliation. Second, and perhaps of most interest to employers, the court held that the phrase “otherwise discriminate against” extends beyond discrimination that affects that terms and conditions of employment to certain post-employment acts such as, in this particular case, providing a negative reference. Although the court’s reading of the statute was broad, the court was careful to limit its holding to retaliation that has “a nexus to past or future employment.”

What does this mean for employers? Employers need to be cautious that potential liability does not stop after an individual’s employment ends. Providing a negative reference or impeding future employment prospects can give rise to a retaliation claim if it is done because the employee opposed discrimination or harassment.

California Employers Gain Time to Meet New Training Requirements for Employees

On August 30, 2019, California’s Governor Gavin Newsom signed SB 778, extending for one year the deadline for providing harassment prevention training to employees.  California employers now have until January 1, 2021 to provide the sexual harassment prevention training mandated by SB 1343, which took effect on January 1, 2019.

SB 1343 requires an employer with five or more employees to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment prevention to all supervisory employees, and at least one hour of such training to all nonsupervisory employees in California within six months of their assumption of a position.  That statute gave employers until January 1, 2020 to provide that training.

SB 778 was introduced as “clean-up” legislation, meant to address unintended consequences of SB 1343 that were making it difficult for employers to provide the newly mandated training by the January 1, 2020 deadline.  First, the language of SB 1343 made it unclear whether employers who had already trained employees in 2018 were required to re-train those employees by January 1, 2020.  Second, although SB 1343 gave employers the option of using online training created by the Department of Fair Employment and Housing (DFEH) to satisfy the new training requirements, DFEH made it clear that its online training would not be available until late 2019, making it difficult for employers to get their employees trained by January 1, 2020.

In addition to giving employers until January 1, 2021 to provide training, SB 778 also gives the DFEH more time to prepare and make its online harassment training available.  It also gives the DFEH more time to update its regulations on harassment prevention training to better define what is required for the new one-hour nonsupervisory harassment training.

For more information on the training requirements and Stoel Rives’ employee training services, please contact Vida Thomas at (916) 319-4669 or vida.thomas@stoel.com.

Ninth Circuit Requires Proof of “But For” Causation for Claims Under Americans with Disabilities Act

On Tuesday, August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims.  This standard is considered to make it more difficult for employees to prove discrimination claims than what had been applied previously and is referred to as “a motivating factor standard.”  The court reasoned that this change was required to comport with two earlier United States Supreme Court rulings that had adopted a similar standard based on similar statutory language found in the federal law prohibiting age discrimination in employment.

Using this new standard, ADA discrimination plaintiffs bringing a claim under 42 U.S.C. § 12112, which bars discrimination “on the basis of disability,” must now show that the adverse employment action would not have occurred but for the disability discrimination.  Under the former standard, a jury could have found an employer had violated the ADA even if the employer proved that it had a “mixed motive” for the adverse action, i.e., both legitimate and illegitimate reasons.

While employers can rejoice about this important change, any celebration should await review of their applicable state disability discrimination practice.  Many states have adopted standards that are different from what is afforded by this recent interpretation of federal law.  Indeed, employees in those states may eschew federal claims in favor of a more liberal state law cause of action.   Because employees can, and most often do bring claims under both federal and state law, juries will now face the unenviable task of applying two different legal standards that could yield different results:  no liability under federal law, but liability under state law.

We asked the lawyers in some of Stoel Rives’ offices to explain how this change might impact state law regarding disability discrimination is in their respective states:

Amy Joseph Pedersen in our Portland office notes that Oregon’s disability statute is construed consistently with the ADA and Oregon law uses language identical to Title I of the ADA—barring discrimination “on the basis of disability.”  Historically, Oregon courts have used a “substantial factor” test for these types of claims.  Amy does not believe that Oregon courts will adopt the “but for” standard for state disability claims, and because a “substantial factor” test is easier for plaintiffs to meet, plaintiffs will be more likely to prevail on state law disability claims than those made under federal law.

Chris Wall in our Seattle office says that the Murray decision is unlikely to have much day-to-day impact for Washington employers, because few claims in Washington are brought under the ADA—most plaintiffs rely on state law.  Washington courts have expressly rejected a “but for” standard for claims brought under the Washington Law Against Discrimination (“WLAD”).  Washington courts require plaintiffs to prove only that their protected characteristic was “a substantial factor” in the allegedly discriminatory employment action.  While Washington courts consider federal decisions as “persuasive,” Washington courts have noted that some WLAD provisions are “radically different” from federal law.  Washington courts interpret the WLAD with “liberal construction” and find that “the WLAD provides greater employee protections than its federal counterparts.”  Accordingly, Washington employers should take little solace in the Murray decision.

Continue Reading

Pay Equity Update: Oregon Legislature Amends Equal Pay Law

SB 123, just passed by the legislature and signed by Governor Brown, makes several amendments to Oregon’s pay equity law. Most notable are the revisions to the limited affirmative defense available to employers in litigation. The law previously provided employers a “safe harbor” from emotional distress and punitive damages if a lawsuit is filed, if the employer had conducted a pay equity audit within the last three years that related to the plaintiff’s protected class, and if the employer had eliminated any unlawful wage gaps for the plaintiff. As amended, the law protects employers from emotional distress and punitive damages if they have conducted a pay equity audit within the last three years that is calculated to – and makes – “reasonable and substantial” progress towards closing wage gaps generally, even if those efforts do not address a particular plaintiff’s wage gap. While the safe harbor is not a complete defense (prevailing plaintiffs can still recover back pay and attorney fees), the amendment offers broader protection and provides additional incentive to conduct at least a limited pay equity analysis for employers who have not done so already.

SB 123’s other (mostly minor) amendments include:

  • Explicitly providing that an employer can pay employees differently if they are on light duty related to a workers’ compensation claim or otherwise temporarily performing modified work as a result of a medical condition.
  • Clarifying that any wage increases an employer makes in response to a pay equity audit may not be viewed as an admission of liability in a pay equity lawsuit.
  • Defining “system” (which, in the context of a seniority or merit system, is a lawful reason to justify a pay disparity) as a “consistent and verifiable method” that is in place to evaluate employees at the time a pay equity violation is alleged.

For more information about SB 123 and other legislative changes, sign up for our next breakfast briefing here. More information about Oregon’s pay equity law is also available here.

California Supreme Court Confirms that the “anti-SLAPP” Statute Applies to Claims of Discrimination and Retaliation

Prior to the California Supreme Court’s decision in Wilson vs. Cable News Network, Inc., California Courts of Appeal were split on whether California’s anti-SLAPP statute applied to an employee’s claims of discrimination and retaliation.  The Supreme Court in Wilson resolved this split in favor of the statute’s application, bringing a welcome bit of good (albeit narrowly tailored) news to California employers.

California Code of Civil Procedure section 425.16 is referred to as the anti-SLAPP statute.  The term “SLAPP” refers to Strategic Lawsuits Against Public Participation, which are meritless lawsuits brought against critics in order to silence their criticism.  Section 425.16 was first passed by the California legislature in 1992 due to its concern that real estate developers were attempting to bully project opponents into submission by filing frivolous litigation.  This section provides a procedure for a defendant to challenge a pleading via a special motion to strike.  In order to succeed on the challenge, the defendant must demonstrate that the claim or claims at issue arise out of protected speech or petitioning activity.  If the defendant can make this showing, then the burden shifts to the plaintiff to demonstrate that the claim or claims have probable validity.  If the plaintiff makes this showing, then the defendant’s motion is denied. If not, then the claim or claims at issue are dismissed and the defendant is entitled to his, her, or its attorneys’ fees and costs.

With this in mind, it is clear that the anti-SLAPP laws can be a powerful weapon if wielded correctly.  And that is where the Supreme Court’s decision in Wilson comes into play,  both with good news and bad news. Continue Reading

Oregon Enacts Paid Family Leave

Starting in 2023, Oregon employers with at least 25 employees must provide eligible employees with up to 12 weeks of paid leave for a covered purpose (family, medical, or “safe” leave). The program will be funded with payroll contributions (40% employer/60% employee), the amount of which depends on an employee’s wages. Benefit amounts will be based on the state’s average wage and the eligible employee’s average wage.

Employers do not need to begin collecting and remitting contributions until 2022, and benefits will not be available until January 1, 2023.

Employers that already provide benefits equivalent to or greater than the state program may be exempt from Oregon’s new requirements. In addition, self-employed individuals may opt into the state program to receive benefits equivalent to those that are provided to employees. The new law provides a general framework for how the program will be administered but leaves many important aspects, including the precise percentage of wages that must be contributed to the state fund (though it is capped at 1% of employee wages), to the determination of the Director of the Employment Department.

Click here for a more complete summary of the new program. Contact your Stoel Rives attorney if you have any questions about these new requirements.

Resources for Protecting Your Company During an ICE Raid

With all of the buzz about potential impending raids by U.S. Immigration and Customs Enforcement (“ICE”), many employers are understandably concerned about the rights of their employees, as well as their own rights and obligations with respect to ICE activity.

Employers must be careful to not provide assistance to employees beyond providing factual information about the employee’s rights, such as the right to remain silent, the right to refuse to sign any documentation, and the right to speak with an attorney. You cannot instruct employees to answer questions in a particular way or forbid them from answering questions, and you cannot hide employees or assist them in leaving the premises.

If ICE agents arrive at your workplace, you should take the following steps:

  • Contact your attorney
  • Confirm that there is a warrant and review it to ensure it has been signed by a judge and to determine its scope
  • Accompany ICE officials at all times and document everything
  • Refuse to discuss policies, practices, or particular employees with ICE officials
  • Do not hide employees, assist with their escape, or mislead ICE officials

The American Immigration Lawyers Association and American Immigration Council’s ICE Worksite Raid: Employer Rights and Responsibilities is a great reference, and can be helpful in providing information to those in management or supervisory roles who may encounter ICE officials. The National Employment Law Project and National Immigration Law Center have a similar reference tool here.

If you would like to circulate materials to your employees informing them of their rights, the American Civil Liberties Union has materials available in English and Spanish.

For further discussion of this issue, see our previous blog post on this issue here. If you have further questions or anticipate that your business may be targeted in an ICE raid, please contact one of our labor and employment attorneys.

NLRB Gives Employers Greater Discretion to Limit Union Activity on Their Premises

The National Labor Relations Board (the “Board”) recently issued a decision in UPMC Presbyterian Shadyside that reverses longstanding Board precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer discriminates against the union by allowing access to similar groups.

The UPMC case arose after the employer, a hospital, ejected two union representatives from its cafeteria, where they had been discussing organizational campaign matters with and providing union literature and pins to employees.  Previously and for many years, the Board had held that an employer could not restrict nonemployee union representatives from engaging in promotional or organizational activity in its public spaces, including cafeterias, so long as the union representatives were not “disruptive.”  In UPMC, the Board returned to a more common-sense approach and held that the National Labor Relations Act “does not require that the employer permit the use of its facility for organization when other means are readily available.” Continue Reading

Oregon’s Workplace Fairness Act Means Major Changes for Oregon Employers

Oregon’s Legislature just enacted the most significant legislation for Oregon employers in years.  The new Workplace Fairness Act has been hailed as a #MeToo law and seems intended to curb incidents of sexual harassment in the workplace, but its reach is significantly broader than that.

Key Changes and Takeaways

  • Employers are now required to have a written anti-discrimination policy. Most employers already have one, and this was always best practice, but now it is a requirement.  Additionally, anti-discrimination policies must now include the following:
    • A description of the process to report suspected discrimination or harassment;
    • A specific individual, and an alternate, to whom reports can be made;
    • Notice that employees have five years from an alleged incident to bring legal action;
    • Notice that employees may not be required to enter into a nondisclosure or nondisparagement agreement, but an employee may request such provisions in an agreement. If an employee makes such a request, the employee has seven days to revoke the agreement; and
    • Advice to employees and employers to document any alleged incidents involving discrimination or harassment.

This policy must be provided to all new hires, made available at the workplace, and given to anyone who reports suspected discrimination or harassment.

  • Confidentiality, nondisparagement, and no-rehire provisions in a settlement agreement relating to discrimination or sexual assault are prohibited, unless an employee requests it. The new law provides no guidance on what an employee’s “request” must look like – for example, are arm’s-length negotiations on a severance or settlement agreement that includes such a provision sufficient?
  • The statute of limitations for many unlawful discrimination claims increases from one year to five years. This is a huge change and will greatly expand the number of discrimination claims against employers.  It may also impact employers’ retention policies; we recommend consulting with legal on what, if any, changes you should make going forward.   
  • “Golden parachutes” for bad actors can be voided. Employers will no longer be forced to pay an executive a generous severance as he or she walks out the door amid sexual assault allegations.  If, after a good-faith investigation into reports of discrimination or harassment made against a supervisor, an employer determines the supervisor engaged in unlawful conduct, the employer may void any severance or separation agreement with the supervisor.  This provision may make negotiations with incoming executives more difficult, but it may also protect the companies from public pushback.

These changes go into effect this fall (91 days after the Legislature adjourns).  Please contact your Stoel Rives attorney with any questions regarding this new law.

California Legislature Moves to Codify Dynamex

With its decision last year in Dynamex, the California Supreme Court fundamentally changed the test for determining whether workers are properly classified as either employees or independent contractors.  Specifically, and as for claims brought under the California wage orders, the Supreme Court adopted the “ABC test,” which involves an analysis of the following three factors:  (1) whether the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) whether the worker performs work that is outside the usual course of the hiring entity’s business, and (3) whether the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.  Since that time, California employers and various industry groups have been lobbying the California legislature left and right to take steps to either limit the ruling’s application or expand it. Continue Reading

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