Northwest Employment Law, LLC

New Contact Information

noreply@blogger.com (Unknown) — Fri, 29 Mar 2013 21:01:00 +0000

Springing into Change

Okay, admittedly that's a cheezy title, but the sun is shining (quick, don't look away), and I needed something catchy to say.

Here's the news: Northwest Employment Law, LLC, is merging with the wonderful folks at Harrang Long Gary Rudnick, P.C. New contact information for attorney Shari Lane is:

Shari Lane, Of Counsel

Harrang Long Gary Rudnick, P.C

1001 S.W. Fifth Avenue, 16th Floor
Portland, OR 97204-1116

Tel: 503.242.0000/Toll Free: 800.315.4172

Direct Dial: 503.417.6034

Email: shari.lane@harrang.com

Web: www.harrang.com

Martin Luther King, Jr.

noreply@blogger.com (Unknown) — Mon, 21 Jan 2013 19:15:00 +0000

The Pittsburg Post-Gazette published two of the winning entries from the 14th annual Martin Luther King Jr. Day Writing Awards contest, sponsored by the Carnegie Mellon University English Department. One of the winning essays was a caustic indictment of modern complacency, and how Dr. King might have felt about our "lukewarm" attitudes today. The writer, junior Nathaniel Brodsky of Winchester Thurston High School, pointed out Dr. King's goal was not just ending racial segregation, but addressing injustice wherever it is found, across the sectors of our society, our economy, and our legal system. Brodsky chastised our tendency to engage in hero-worship and focus on past achievements rather than carrying on the work of our hero in the present.

I'm taking this young man's essay as a challenge, and invite you to do so as well: what am I doing today to correct the injustice that confronts me here and now?

Holiday Fundraiser - Update

noreply@blogger.com (Unknown) — Sat, 08 Dec 2012 00:05:00 +0000

Update: Thanks to all of you, we raised $1,550!

Our third annual fundraiser for JOIN ("Connecting the Street to a Home") is under way, and this year we're matching donations up to the first $500. Won't you JOIN us?

https://joinpdx.ejoinme.org/MyEvents/MoveInDay/MoveinDayFundraisersSignupFundraising/tabid/422174/Default.aspx?joinme=21469

$5 to $50 Challenge - Support Head Start

noreply@blogger.com (Unknown) — Tue, 30 Oct 2012 21:05:00 +0000

I am on the Board of the Oregon Child Development Coalition, which just launched its "$5 to $50 Challenge." OCDC provides head start, early head start, and pre-kindergarten programs, using proven curricula and exceptional teachers. In addition to childcare and early childhood education, OCDC's holistic approach includes parental engagement and apprenticeship programs, prenatal and early childhood nutrition, health, and dental services, home visits, transportation to and from the centers, literacy and school readiness programs, and services to special needs children. Last year, OCDC served over 3,800 Oregon children, and provided employment to more than 1,400 Oregonians. OCDC is currently engaged in a capital campaign to raise funds to expand its facilities, including a new facility in Hillsboro that will provide 105 full time jobs, plus 80 construction jobs, and will create space to serve 480 additional children.

Here's the pitch:

"We need your help. The Meyer Memorial Trust has challenged OCDC to a matching funds contribution campaign. These funds will greatly help OCDC maintain adn improve our facilities and services. Please show your support for OCDC by becoming a donor. The more donors OCDC has, the better - the act of contributing matters as much as the amount of the contribution."

"Visit us online at www.ocdc.net to donate over the internet. While you are there, please check out our redesigned web page. You may also send a check to:

Oregon Child Development Coalition
ATTN: Donations
PO Box 2780
Wilsonville, Oregon 97070

"OCDC strives to serve some of the neediest children in the State of Oregon with nutritious meals, quality early childhood education, and family services."

I am proud and grateful to be involved with such a wonderful group, and wanted to share this opportunity with all of you.

Your Two Cents

noreply@blogger.com (Unknown) — Thu, 25 Oct 2012 22:35:00 +0000

On October 15, OPB's Think Out Loud featured incumbent Labor Commissioner Brad Avakian and challenger Bruce Starr. Both sides represented themselves well. Mr. Avakian clearly has the momentum of a public servant dedicated to the cause; Mr. Starr apparently has ideas for change - though he was holding those ideas pretty close to his chest. One comment stood out: when pressed to specify which legislation he'd change to make the law more balanced, Mr. Starr suggested simplifying the rules on paying final wages. Mr. Avakian said he'd never heard any complaints about those rules, during his time with the legislature or as Labor Commissioner. That seems odd, as that is a frequent source of litigation, and truly (in my experience) a diffiult issue for employers. What that means, I assume, is that employers are not speaking out to their elected representatives to let them know the obstacles they face and engaging them in dialogue for meaningful change. So here's your chance: check out the debate and add your own two cents at http://www.opb.org/thinkoutloud/shows/labor-commissioner-race/. (And of course: vote!)

noreply@blogger.com (Unknown) — Wed, 10 Oct 2012 15:01:00 +0000

Business and Employment Law Update

Third Quarter, 2012

Tips and suggestions, case reports, and

other helpful information for northwest businesses.

Mark Your Calendar: November 29 – 30, the Oregon Bureau of Labor & Industries presents its annual Employment Law Conference. Northwest Employment Law attorney Shari Lane will be speaking on Lawful Terminations on Thursday, November 29, at 2:30. Other topics include: Culture Clash or Consensus, Workers Compensation, Hurricane I-9, Recordkeeping and Background Checks, Dealing with Garnishments, Leave Laws – Tracking, and more!

Check it out at: http://www.oregon.gov/boli/

Lawyerly Caveat: This newsletter is for informational purposes, and is not and should not be construed as legal advice. For assistance with specific legal issues, consult an attorney.

Tip of the Day – Oregon

Under state and federal law, all employers must report new hires to the Department of Justice, Child Support Division within 20 days of hire or re-hire, for purposes of child support tracking. Employers may use the form provided by DCS, or may simply provide a copy of the W-4.

http://www.oregonchildsupport.gov/employers/reporting.shtml

Tip of the Day – Washington

Washington employers have the same obligation as Oregon employers, to report new hires. Employers may file reports online:

https://fortress.wa.gov/dshs/csips/newhire/

Tip of the Day – Federal

Employers who conduct criminal background checks, credit checks, or other background investigations will need to update their Fair Credit Reporting Act notices as of January 1, 2013. New notice language can be found in Appendices F, G and H:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title16/16cfr698_main_02.tpl

(Sorry – there doesn’t appear to be an easy electronic shortcut!)

BOLI Files Proposed New Rules

BOLI is proposing to amend OAR 839-009-0390 and -0410 as follows (proposal new language in italics):

* Provide 14 days of Oregon Military Family Leave Act (“OMFLA”) leave for each deployment until OFLA leave entitlement is exhausted.

* “An eligible employee need not be eligible for protected leave under . . . OFLA in order to take protected leave under the Oregon Military Family Leave Act (“OMFLA”).

November 9, 2012 is the last day to file public comment.

Keep up to date on proposed rules and opportunities for public comment:

Oregon Bureau of Labor & Industries: http://www.oregon.gov/BOLI/LEGAL/H_Notices.shtml

Washington Department of Labor & Industries: http://www.lni.wa.gov/LawRule/WhatsNew/Proposed/default.asp

Fitness for Duty Exams

It’s a common scenario: Roberta, who is recovering from a stroke, tells you she’s having difficulty remembering all the steps in some of her day-to-day tasks. Her doctor recommends time off to evaluate various therapies and medications. You readily grant the time off, as she is eligible for medical leave. She’s a valued employee, and you hope the treatment will be successful. Two months later, she says she’s ready to come back to work, but confides she doesn’t feel anything her doctor tried is working.

You are (understandably) nervous about bringing her back without a full “all clear” from her doctor.

What if she makes mistakes, and causes liability to the company? What if you try to impose discipline for those mistakes, and she claims discrimination?

On the other hand, you know (if you’ve been reading these newsletters, and otherwise doing your homework!), that you can’t make employment decisions based on hypothetical problems. So you order a fitness for duty exam. And step right into a minefield.

There are two sets of laws governing when an employer may require a current employee to obtain certification from a medical provider that she is “fit” to perform her job: (1) medical leave laws, and (2) disability laws – and it’s only a slight exaggeration to say never the twain shall meet.

Medical Leave

Notice must be given at the time leave is granted, and must include position description or list of duties
Certification may be required only pursuant to a “uniformly-applied policy or practice that requires [certification from] all similarly-situated employees (i.e. same occupation, same serious health condition)”

Disability

Inquiry must be “job-related and consistent with business necessity” (“The business necessity standard is . . . not to be confused with mere expediency. . . . [It requires] significant evidence that would cause a reasonable person to question whether [the employee] is still capable of performing her job”)
Inquiry must be narrowly limited to the issue (that is, you don’t need a full medical history if the question is whether an employee’s sleep apnea is interfering with his attendance)

Other provisions:

Under both federal and state disability laws, the employer must pay the cost of the medical exam and/or obtaining the certificate, to the extent there are any costs not covered by insurance. Under Oregon medical leave laws, the rule is the same. Under federal medical leave laws, the employee may be required to pay the cost. Washington law is silent on this issue.
Under both state and federal laws, all medical information must be maintained separately from other personnel records, and treated as confidential. (There are reasonable exceptions. For instance, a supervisor may be informed of necessary restrictions.
As an aside, keep in mind that pre-employment physicals and medical exams related to returning from workers compensation leave are another ball of wax altogether.

So what should you do with Roberta? If you did not initially notify her that certification would be required before returning from medical leave, you will need to assess whether you have “significant evidence” that would cause you to question whether she can perform her duties. If she was making serious errors before taking leave, and she has assured you that her condition has not changed, you are probably on solid ground (usual lawyerly caveats apply) to initiate the interactive process, beginning with requesting that Roberta share her position description with her doctor and obtain certification that she is capable of performing her job or, if not, whether she and her doctor can suggest any accommodations

Updates

It’s good to keep tabs on cases in our circuit—it helps to know what not to do, and how judges and juries are interpreting the laws. Here, in no particular order, are a few updates from the courts and legislative bodies.

Occasional Handyman is an Employee

As mentioned in the last newsletter, the definition of “independent contractor” is very narrow under both Oregon and Washington law. That legal principle was reiterated in a recent Oregon Court of Appeals decision affirming the Oregon Employment Department’s finding that an individual who was hired by a laundromat owner for occasional repair and maintenance of the machines and building was in fact an employee, not an independent contractor. In Whitsett v. Employment Department, the court acknowledged that the “handyman” had no set schedule, had the authority to hire and fire others to assist him, was required to correct defective work, occasionally worked from home and used his own telephone for work-related business, provided his own tools, and had performed similar services for another laundromat. Nevertheless, the Court said there was insufficient evidence the handyman had an independently established business because, during the two years in question, he did not provide similar services to others, and did not engage in any marketing or advertising efforts to offer similar services to others.

The consequences are significant, as an employer must: pay unemployment insurance premiums and other employer-source taxes; provide workers compensation coverage; pay minimum and overtime wages; create and maintain a host of records related to the employment relationship, including time records; and supervise the work to ensure the employee refrains from discrimination, harassment, OSHA violations, etc., for which liability may be imputed to an employer.

Interestingly, the Court of Appeals focused on the fact that the individual in question had not provided handyman services to another laundromat during the relevant time. It is unclear whether providing handyman services to other individuals or businesses (not related to laundry services), would have demonstrated an “independently established business” sufficient to support his independent contractor status, or whether the court’s decision implies the “similar services” must be essentially identical.

Safety Incentives May Violate the Law

Last spring, the Federal Occupational Safety and Health Administration issued a memorandum calling safety incentive programs “problematic,” because such programs “unintentionally or intentionally provide employees an incentive to not report injuries.” http://www.osha.gov/as/opa/whistleblowermemo.html

By way of example, OSHA cited “enter[ing] all employees who have not been injured in the previous year in a drawing to win a prize,” or “award[ing] a bonus if no one from the team is injured over some period of time.” Instead, OSHA suggested “providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.” The memo states “careful investigation is needed” by OSHA whenever an employer disciplines an employee who has reported an injury – even if the discipline arises out of the employee’s failure to follow company safety rules (ahem!). Oregon and Washington laws prohibiting discrimination for filing workers compensation claims (or, in Oregon, for “invoking” the workers compensation system, even if no claim is filed), likely give rise to similar scrutiny of any safety incentive program.

Last Word: What Do You Think?

Every few months, I use this space to advise you and tell you what I think about drug tests, executive employment agreements, internal investigations, and more. Now it’s your turn.

Increasingly, I’m hearing this from business owners, human resources directors, and managers: I give up! It’s too hard to be an employer these days. The regulations are too complex, and too burdensome. It’s too easy to inadvertently violate the law, and some employees seem to be just waiting for an opportunity to file a lawsuit. I barely have time to run my business any more, I’m so busy filling out forms and documenting performance.

Case in point: the rules about seeking certification that an employee is fit to return to work (see above).

And yet, I haven’t met an employer yet who advocates for elimination of regulation altogether. It is right and good that, in a society that (purportedly) values hard work, community, family, equal opportunity, and the entrepreneurial spirit, we should have laws that ensure a fair day’s pay for a fair day’s work, that prohibit a company from refusing to hire a man because of the color of his skin, that require an employer to at least try to accommodate a woman struggling with a disabling medical condition, and that confirm the freedom of all (employers and employees alike) to hold and express religious faith (or no faith).

What do you think? Have we gone too far in enacting protections for employees? Have we hamstrung employers so they can’t make logical and sensible decisions to support their business operations? Or are we still missing the boat, enacting more and more complex legislation but failing to protect the most vulnerable workers from abuse?

If you were “in charge,” how would you change our employment laws? Tell me your thoughts on this Blog. If we get enough responses with detailed suggestions, we’ll share them with the Oregon Bureau of Labor and Industries, and see if we can’t get a conversation going.

TMI

noreply@blogger.com (Unknown) — Thu, 19 Apr 2012 00:23:00 +0000

Social Media - TMI

It's in the news - employers may incur serious liability if they try to restrict employees' comments on social media. What the reporters (and the National Labor Relations Board) seem to be largely ignoring is that employers may have serious problems if they don't set and enforce legitimate policies.

Consider what might happen if an employee discloses on Facebook the details of a confidential business transaction, tweets about a hospital's treatment of a patient, or posts defamatory (as opposed to merely insulting) comments about a supervisor on LinkedIn. It won't be just the employee who is on the hook for HIPAA violations, or defamation. And aside from legal liability, a business can't sit idly by and let employees publicly trash its reputation.

So what is the solution? The bad news is that there isn't a perfect solution. Reading through the summaries of NLRB decisions, only one thing is clear: even policies that seem to comport with common sense and the letter of the law may later be found too broad or otherwise out of compliance. This article provides some suggestions for creating or revamping a social media policy, but there are no guarantees.

The Basics

Federal law gives employees the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The protection for "concerted activity" means employees may discuss (and complain about) working conditions for the purpose of working together to improve those working conditions – including via social media.

Keep in mind these laws are not limited to union shops. The vast majority of private employers are subject to these laws.

In short, your policies must not restrict "concerted activity," and must be written so that employees would not "reasonably construe" the policies as restricting concerted activity.

Concerted Activity

One (of many) difficulties is that the presence of concerted activity is judged after the fact. An employee who posts a "personal gripe" on Facebook is not engaged in protected concerted activity. But if a couple of co-workers comment on her post, the NLRA may be implicated. If the complaint is about working conditions, and a co-worker suggests something that sounds like legal action, suddenly you've got protected activity.

Working Conditions

Complaints about working conditions may include complaints about failure to pay overtime and other legal violations, but may also include the kind of vague grumbling that is common everywhere.

"I don't get paid enough to put up with this *(%^&; - I haven't had a raise in three years"

"We're out of supplies - again"

"Can you believe she got the promotion? I've been here twice as long and I was born more qualified!"

"John was disciplined for being a smartass - I'm sure he's not a happy camper"

"They always want to know who's taking breaks and how long, but they don't know how to tell people when they're doing a good job"

"Only bad behavior gets rewarded - honesty and integrity are a foreign language"

"They'd rather pay people minimum wage and get rid of the smarter people who earn more"

The NLRB summary notes that complaints about "mismanagement" and "the quality of supervision," "unfair" selection processes for promotions, scheduling, discipline, and low wages (even if there is nothing illegal about the wage rate) are all potentially protected complaints about working conditions.

Working Together to Improve Working Conditions

There is no question that "Let's form a union and negotiate a raise" is protected concerted activity. But of course it's not that simple. The following are examples of comments that the NLRB found implied the employees were considering or preparing to discuss taking action...

"It would be pretty funny if all the good employees actually quit"

"This isn't over by a long shot" (Really!)

A tiny concession: clicking "Like" is not concerted activity; a co-worker must also respond (presumably agreeing that the working conditions should be improved), and someone must suggest taking action.

What's An Employer To Do?

Subject to the lawyerly caveats above ("there are no guarantees"), the following prohibitions appear to be safe to include in your policies, if they are limited to prohibitions on what an employee can say with reference to the company:

Disclosing confidential information (such as non-public financial statements, trade secrets, customer lists, employee personal contact information, medical information, securities information, attorney-client privileged information, etc.).

But keep in mind you may not prohibit employees from sharing salary/wage information, disciplinary policies or decisions, promotional decisions, etc.

Obscene, threatening, intimidating, harassing, or profane postings

Postings which violate company anti-harassment policies (such as racist or sexist comments)

Disparaging company products or services

A general prohibition on disparaging the company, supervisors, or co-workers is too broad, however.

Disclosing new product lines or other marketing information, without authorization

A Few Other Pointers:

Your computer use and confidentiality policies should match your social media policy

Your solicitation policy must allow employees to "solicit" (i.e. pass out leaflets, invite people to meetings, post notices on your employee bulletin board, and discuss working conditions) when off duty and in non-working areas - that means during paid rest breaks and unpaid meal periods, in the employee lounge, and in the company parking lot. You may restrict this activity to areas where customers are not likely to be, and you may prohibit employees from soliciting co-workers while the co-workers are still on duty.

You may restrict employee's use of company computers, but the restriction should be across the board (not limited to complaints about work, social media, etc.): "No personal use of company computers" or "No accessing social media or personal email accounts on company computers" or "No personal use of company computers other than on break/lunch"

(This part is really hard to swallow!) You must include examples of permissible and prohibited comments, to ensure employees can't (mis)construe the policy to restrict concerted activity.

Generalized prohibitions (such as "Postings must be appropriate and professional") are too broad.

Finally, even if your policies are in order, the prevailing wisdom is this: if you become aware of problematic social media communications, and you are convinced you must take action, you must be very, very sure you can demonstrate the discipline is in no way connected to anything that could possibly be construed as concerted activity.

First Quarter 2012 Newsletter

noreply@blogger.com (Unknown) — Mon, 06 Feb 2012 20:35:00 +0000

Business and Employment Law Update

First Quarter, 2012

Tips and suggestions, case reports, and

other helpful information for northwest businesses.

Lawyerly Caveat: This newsletter is for informational purposes, and is not and should not be construed as legal advice. For assistance with specific legal issues, consult an attorney.

Tip of the Day - Oregon
$8.80/hour is the minimum wage, effective 1/1/12

Tip of the Day – Washington
$9.04/hour is the minimum wage, effective 1/1/12

Tip of the Day – Federal
The new deadline for posting the
NLRA Employee Rights poster is ~~January 31, 2012~~ April 30, 2012

New Year’s Resolutions

Seen on Facebook

Cat says, “What’s a New Year’s Resolution?”

Dog replies, “A To Do list for the month of January.”

Here are some suggested resolutions you might actually be able to keep within the month of January—so you can get on with the business of running your business! Other suggestions are included throughout this Newsletter.

• Update your employee handbook or personnel policies. Several significant legislative changes took place in 2011, and the courts have further interpreted existing laws (some of those changes are included in this Newsletter – more to follow). Also, if you’ve expanded, a larger workforce probably means additional laws govern your employment practices.

• Review your insurance coverage: Do you have employment practices liability coverage? If not, should you? If so, are you happy with it? Consider cost, coverage, flexibility in choosing your own defense counsel, deductible, and notice requirements, among other issues.

• Review your forms: Do your leave requests ensure you will know when to characterize employee absences as medical or family leave (that is, do they make it easy for employees to notify you of the potential OFLA/FMLA issue)? Do managers understand the confidentiality requirements for all medical documents? Do you have forms that facilitate documenting incidents and performance issues? Are your application forms and processes in compliance with current law?

Bench Notes and Legislative Updates

It’s good to keep tabs on cases in our circuit—it helps to know what not to do, and how judges and juries are interpreting the laws. Here, in no particular order, are a few updates from the courts and legislative bodies.

A sampling of the legislative updates:

• Employers may not require employees to use paid leave for jury duty, and may not cancel benefits during jury duty

• Victims of harassment (criminal or civil) are now entitled to the employment protections provided for victims of domestic violence, sexual assault, and stalking

• Arbitration agreements must be provided at least 72 hours prior to the first day at work (a change from prior law requiring two weeks’ notice), and must include specific statutory language

Even the government has its woes...

Right now, most of us aren’t feeling too kindly toward tax collecting agencies. Regardless of your feelings about who should be taxed and how much, it’s always painful when the deadline rolls around to get the checkbook out. But if you’ve ever been the subject of an audit or lawsuit regarding overtime wages, you may be glad to hear the Oregon Department of Revenue successfully defended a claim for unpaid overtime filed by one of its auditors. The Oregon Court of Appeals in Dinicola v. State of Oregon found that while the auditor was on leave from his auditing position to work as union president, he was an administrative employee, not entitled to overtime.

The case provides a refresher on the legal standards, as the court noted that: the auditor earned more than $455/week, which was “not subject to reduction because of variations in the quality or quantity of work”; in his role as union president, the auditor “directly assisted” in running the union's business “rather than carrying out its routine tasks”; and he exercised “discretion and independent judgment with respect to matters of significance,” which included “comparing and evaluating possible courses of conduct and acting or making a decision after considering the various possibilities.”

Another New Year’s Resolution: Conduct an internal payroll audit regarding the exempt/non-exempt status of your workforce.

Action Alert

The Oregon Bureau of Labor & Industries filed proposed Administrative Rule 839-005-0125, that, if enacted will greatly expand the definition of “opposing” and “retaliation.” The new rule will define “protected activity” to include “explicitly or implicitly opposing an unlawful practice or what the employee reasonably believed to be an unlawful practice,” and will find retaliation has occurred when “the employer has subjected the employee to any adverse treatment, in or out of the workplace, that is reasonably likely to deter protected activity, regardless of whether it materially affects the terms, conditions, or privileges of employment.”

The comment period officially ended December 30, 2011, but the proposed change is significant enough that interested parties may still want to submit comments to: Stef Plebanek c/o BOLI, 800 NE Oregon Street #1045, Portland, OR 97232, or via email to stefanie.plebanek@state.or.us.

LAST WORD: DRUG TESTING

It seems like a simple question: May I impose drug testing on applicants and employees? The answer is also (seemingly) simple: Yes – except when... Here are just a few of the pitfalls and considerations.

1. When will you impose testing? Pre-employment, random, for cause, after an incident resulting in injury and/or property damage, upon reasonable suspicion? What do you consider reasonable suspicion? (When a co-worker, who may or may not have a grudge, reports his own “suspicion”?)

2. Who will perform the test? Is the lab certified?

3. What will you do with a positive test? Will you re-test? Suspend and then re-test? Will the suspension be paid or unpaid? Will you offer last chance agreements? If so, under what circumstances? (Will you consider a last chance agreement if the employee discloses addiction after a failed drug test or discipline related to impairment?)

4. Who pays for the test?

This is far more complex than you might think! Pursuant to OAR 839-006-242(3), a pre-employment drug test is not a medical exam (which means you should be able to charge for it, and you don’t have to offer employment first), but section (4) of the rule says the employer must pay for all required medical exams and certifications, including drug tests. Under ORS 657.176 and interpreting regulations, a former employee fired for violating your drug policies will not be disqualified from receiving unemployment benefits if the employee was required to pay for the drug test (or if you don’t have a written policy, or if your written policy doesn’t define impairment). And ORS 659.840 and 659A.300 prohibit the imposition of a breathalyzer test, unless the test if voluntary or you have “reasonable grounds to believe that the individual is under the influence,” and the same statutes prohibit charging the employee for the test.

5. Do all your managers understand the disability law implications? (A positive drug test involving a prescription drug may require discussion of potential accommodations related to a disabling medical condition).

Although you are not required to have a written drug policy, you would be well advised to do so. It is a defense to many discrimination allegations that you were consistently following your known policies, but policies which are not in writing are not “known.” Also, a claim for unemployment benefits – which would normally be defeated for “misconduct connected with work” when an employee is terminated for violating drug policies – will succeed if the employer’s drug policy does not meet the Employment Department’s strict requirements, including that the policies are in writing, with proof of disbursement to the employees. In short, the final New Year’s Resolution proposal is this: review your drug use and drug testing policy, and update it if necessary!

Holiday Fundraiser

noreply@blogger.com (Unknown) — Wed, 07 Dec 2011 21:47:00 +0000

JOIN: Connecting the Street to a Home

Check out our fundraiser page at https://joinpdx.ejoinme.org/11475. Our goal is to raise $2,500 - enough to house a family and help them stay housed! Watch the donations counter rise and cheer with us as we reach our goal. All donations are tax deductible to you. Don't want to donate through Northwest Employment Law? Donate directly http://www.joinpdx.org/. The more the better, and every little bit helps.

2012 Update: Our wonderful friends, family, clients, and other supporters raised $1,050! The money went to help a family move into and stay in housing - thank you!

BOLI's 27th Annual Labor & Employment Conference

noreply@blogger.com (Unknown) — Fri, 21 Oct 2011 21:48:00 +0000

As in years past, this year's conference, scheduled for December 1 -2, promises a wealth of useful, practical information, provided by experienced area attorneys and helpful Oregon Bureua of Labor & Industries staff. Don't miss it--sign up now!

Attorney Shari Lane will be presenting Recruiting, Interviewing, and Hiring, on December 1, 2:30 - 4:00. Other presentations include Keeping Up With Healthcare Reform, by Tom Kramer; Managing Intermittent Leave in an ADAAA World, by Kathy Hindman; Hurricane I-9, by Ron Guerra; BOLI and EEOC Claims Process, by a BOLI panel; and too much more to list here!

To register, go to http://www.oregon.gov/BOLI/TA/docs/BOLI-Conference-Flyer-2011.pdf, print up a flyer and registration form, and relay the form via FAX or mail to the fax number/mailing address on the form.

Another Link

noreply@blogger.com (Unknown) — Mon, 26 Sep 2011 19:03:00 +0000

Northwest Employment Law just joined a new website that allows users to search a subtantial network of service providers. Check us out at Employment Law Advice, Defense, and Mediation
and take a look at the other useful links Thumbtack provides!

Newsletter - GINA, the ADA, and More

noreply@blogger.com (Unknown) — Mon, 12 Sep 2011 16:04:00 +0000

Business and Employment Law Update
Third Quarter, 2011

Tips and suggestions, case reports, and
other helpful information for northwest businesses.

Lawyerly Caveat:

This newsletter is for informational purposes,

and is not and should not be construed as legal advice.

For assistance with specific legal issues, consult an attorney.

Tip of the Day - Oregon
Oregon employers not covered by COBRA (20 or more employees) are required to offer extended health insurance coverage to eligible employees, at the employee’s expense, under ORS 743.610.

Tip of the Day: Washington
Violations of Washington’s Safety and Health Act carry potential penalties of more than $26,000. Washington’s Department of Labor & Industries offers no-risk consultations (no penalties will be assessed, although the business will be required to correct any problems identified). www.lni.wa.gov/Safety/Basics/Assistance/Consultation/about.asp

Bench Notes
It’s good to keep tabs on cases in our circuit—it helps to know what not to do, and how judges and juries are interpreting the laws. Here, in no particular order, is the latest news from the courts.

Workers Compensation: Cave Canem
In Sandberg v. J.C. Penney, the court rejected the WCB’s denial of benefits for an injury incurred when the claimant, walking from her home to her garage (where her sales samples were kept), tripped on her dog. The court said: “If an employer, for its own advantage, demands that a worker furnish the work premises, the risks of those premises encountered in connection with the performance of work are risks of the work environment, even if they are outside of the employer's control, and injuries resulting from those risks arise out of the employment.”

Overworked = Good Cause to Quit
In Warkentin v. Employment Department, the Oregon Court of Appeals found an employee was entitled to unemployment benefits, even though she stated she quit because she was overworked. Normally, “too much work” would disqualify a claimant from benefits. This case was unique, however. The claimant was experiencing severe depression, and her requests for assistance, time off, and/or a reduced workload were repeatedly rejected. The last straw occurred when she walked in to find two “two foot high” stacks of papers and 105 messages. In spite of her employer’s admonition that she just needed to work more efficiently, the court found it telling that four people were hired to do her work, after she quit.

GINA

At one point in the most recent remake of the movie Titanic, a business tycoon says with a sniff of disdain, “Freud? Who is he? A passenger? Never heard of him.” In the same vein, we might be tempted to say: “GINA? Who is she? Never heard of her.” The fate of the Titanic should deter such dismissive thoughts! The Genetic Information Nondiscrimination Act went into effect in 2008, and the EEOC interpretive rules went into effect last year.

The law boils down to this: A covered entity shall not request, require, or purchase genetic information about an applicant or employee; shall not discriminate against an applicant or employee based on genetic information; and shall keep all properly acquired genetic information confidential.

Sounds simple, but where the rubber meets the road is in the definition of “genetic information.” It’s easy to inadvertently run afoul of GINA, because nearly every major medical condition has a genetic component. Consider the following seemingly innocuous situations:

• Anne tells you she’s been diagnosed with breast cancer. You say, “Oh, Anne, I’m so sorry! Is there a history of that in your family? Because my grandmother had it, and I’m wondering if I should start getting more frequent mammograms…”

You’ve just asked about her genetic history.

• Mark’s son is autistic, and he’s shared with co-workers the educational and therapeutic systems he and his wife have used. You say, “How is your daughter doing? Has she shown any signs of autism?”

You’ve just asked about the family’s genetic history.

There are exceptions for inadvertently obtaining information—but no-one wants to be on the other side of a government inquiry about whether the “acquisition” of information was intentional or inadvertent!

Best practices guidelines:

• When you properly receive genetic information (see exceptions, below), make sure to keep it in the separate file where all medical information is kept (an ADA requirement)

• Never allow your (properly acquired) knowledge of any genetic history to affect your employment decisions. This is more easily said than done. Consider another hypothetical:

Your company employs both Rob and his father. Rob’s father suffered a massive heart attack recently. You happen to know—because Rob volunteered the information—that Rob’s doctor told Rob he’s also at risk for heart disease. Rob applies for a promotion that involves significant physical exertion and stress. An entirely human response would be to reject Rob’s application—you don’t want to put him at risk for a heart attack. Rejecting Rob’s application would violate GINA (and the ADA, unless Rob has asked for accommodation and your rejection of his application occurs after the interactive process).

Best practice: offer Rob the position (if he qualifies), require a pre-employment physical (if you require such a physical of all employees in that position)—making sure to notify the examining doctor that you do not want genetic information—and then promote Rob if the exam shows he’s physically capable.

• Any time you are requesting medical information (pre-employment physical, medical leave request, disability accommodation, short term disability insurance, fitness for duty exam, etc.), NOTIFY the medical provider that you are specifically NOT seeking genetic information except as specifically allowed by law. The EEOC provided the following model language:

“The Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family members genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

GINA includes limited exceptions for which an employer or other covered entity may request and obtain genetic information:

1. Pursuant to a request for family or medical leave (under the FMLA or state law), or a request for disability accommodation, so long as the employer’s request for information is strictly limited to information needed to evaluate the employee’s request;

For example, in our hypothetical situation regarding “Rob,” you could legitimately request and obtain information about Rob’s heart disease if he asked for accommodation or medical leave—but you could not ask for other genetic information (predisposition to diabetes, for instance)

2. Related to a workers compensation claim, if the insurer needs information to show a claimed illness or injury is not compensably work-related but rather occurred due to genetic pre-disposition/history; or

3. Related to an employer-sponsored wellness program (very strict limitations apply—consult a lawyer if you plan to utilize this exception).

A couple of miscellaneous notes about GINA:

• GINA also includes restrictions on insurers—if you are self-insured, consult an attorney
• GINA governs employers with 15 or more employees. Oregon and Washington law contain similar restrictions on smaller employers.

According to Jeanne Goldberg, Senior Attorney Advisor for the EEOC, GINA was not enacted in response to rampant abuse by employers, but rather in anticipation of problems. The goal, according to Ms. Goldberg, is to remind employers that one’s genetic history and predispositions –the likelihood of getting a disease—is not relevant to hiring, promotion, or any other employment decision.

HOT OFF THE PRESSES: Two years after the enactment of the Americans With Disabilities Act Amendments Act (“ADAAA”), the EEOC has issued regulations interpreting the ADAAA. (Continued from Second Quarter Newsletter)

The Basics: The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities,” and provides protection to a person who has such an impairment, has a record of such an impairment, or is regarded as having such an impairment. The ADAAA instructed the EEOC to redefine “substantially limits” to include greater coverage under the Act.

What’s New: PART TWO

Historically, the first step in evaluating a request for accommodation (or responding to a claim of disability discrimination) was to ascertain whether the individual met the criteria defining “disability.” Under the ADAAA, that evaluation will be brief and is practically meaningless. The nine criteria established for the evaluation are as follows:

1. Construe the ADA broadly, in favor of coverage

2. Impairment need not “prevent or severely restrict” a major life activity

3. “ An extensive analysis” is not required; the primary focus should be on the person’s qualifications, and whether accommodation is needed

4. Individualized assessment, using lower threshold for “substantially limited” than pre-ADAAA

5. Compare individual’s ability to perform a major life activity to others’ ability—medical or scientific information will “usually” not be required

6. Mitigating measures (such as medication that alleviate the effects of the condition) may not be considered—except eyeglasses

That means if an employee shows no signs of “substantial limitation” because of her medication, but would be substantially limited without medication, the condition qualifies as a disability

7. A condition that is episodic or in remission may be a disability if substantially limiting when active

8. Only one major life activity must be substantially limited

9. There is no minimum duration—an impairment lasting less than six months may qualify as a “disability.”

In summary, the criteria do little to help employers evaluate a specific condition, but rather serve as a nine-point reminder that most medical conditions will likely qualify for ADA protection, and the employer’s focus must be on whether accommodation is needed and feasible.

TO BE CONTINUED …

LAST WORD: CONFIDENTIALITY

The Oregonian recently ran an editorial scolding the city of Portland for failing to protect its public employee whistleblowers, complaining that the city failed even to maintain the confidentiality of the complaining employees’ identities, as promised.

Had the editorialist asked me (they never do), I would have said such promises are necessarily empty. It is usually impossible to investigate a complaint without identifying the complainant (or giving the interviewee enough information to identify the complainant). However, the issue of confidentiality—and the related issue of employee privacy—is worth further discussion.

Even companies that are fully engaged in protecting their own confidentiality (trade secrets, proprietary information, etc.) sometimes neglect to consider potential exposure from failing to notify employees of the limits on their right to privacy and confidentiality in the workplace, and failing to safeguard that confidentiality, where appropriate. The following questions may help you assess how well your organization addresses these issues:

1. Does your employee handbook remind employees they should have no expectation of privacy in emails, texts, voicemails, Facebook posts, and other communications relayed during working hours or on company equipment, and that you reserve the right to access such communications?

2. If you monitor emails, internet use, and/or the physical facility (through the use of security cameras), have you notified employees, and taken steps to minimize the invasiveness of such monitoring?

3. When an internal complaint is lodged, do you remind supervisors not to engage in or allow gossip about the complaint (which can be or can be construed as retaliatory)?

4. Do you maintain separate files for medical information (disability accommodation requests, workers compensation, medical leave requests, etc.), apart from personnel files?

5. Do you have a procedure for preserving the confidentiality of investigations, to the extent possible? For example, do you keep a separate file for the complaint and investigative notes, accessible only to supervisors with a need to know?

An Inexact Science

noreply@blogger.com (Unknown) — Fri, 19 Aug 2011 16:08:00 +0000

You know the line from the song: Mamas, don’t let your babies grow up to be cowboys. . . . Make ‘em be doctors and lawyers instead.

I’m here to tell you doctors and lawyers have their own problems, and riding a horse all day looks pretty appealing, sometimes.

I recently had the less-than-pleasant experience of emergency surgery (and to quote Forrest Gump, “That’s all I have to say, about that”). The emergency was caused by the fact that no less than three doctors—specialists all—were surprised by the outcome of what was supposed to be a minor procedure, and could not explain what to expect with any precision and certainty.

Afterward, it occurred to me that lawyers suffer from the same problem. Employment law, in particular, is an inexact science; it deals with messy and unpredictable elements such as emotions and motives. A client may ask me how to deal with a particular situation, and I cannot give him an answer that is guaranteed to avoid a lawsuit.

So why consult a lawyer?

I can tell you what is absolutely prohibited (or required) by law. I can tell you what has “worked” in the past. I can tell you how courts have viewed various situations. And I can be your objective observer, helping you see hidden bias, or what might be perceived by a fact-finder as bias. I can help you choose the words least likely to inflame the situation, and most likely to properly document your decision-making process. Last but not least, I can tell you the range of potential costs, in the event a claim is filed in spite of your best efforts.

The really heavy lifting falls to you. You know the employee best—is she likely to fly off the handle? Assume the worst? File a claim first and ask questions later? And you know how much risk your company is willing to absorb.

More often than not, your choices are limited: terminate a disruptive, insubordinate, or poorly performing employee who happens to be in a protected class, and accept the risk; or continue to work with him because the problems have not been sufficiently documented and the potential cost of litigation is too high. (Talk about being stuck between a rock and a hard place!)

Being in this position has given me some empathy for the doctors who treated me (though that didn’t stop me from indulging in a little pity-party about the results).

And it has led me to this conclusion:

Mamas, if your babies want to grow up to be cowboys, let ‘em.

Harassment Seminar - June 16, Bend, Oregon

noreply@blogger.com (Unknown) — Mon, 06 Jun 2011 18:51:00 +0000

Join us for an update on cases and statutes relating to harassment claims. Explore hypothetical situations based on real life examples, discuss best practices, and improve your ability to avoid claims and incorporate potential defenses in your policies and procedures.

We’ll address the questions below, and more:

 Is your workforce aware that harassment is prohibited based on any protected class—not just sex?

 When is a joke a violation of the law? What if the person telling the joke belongs to the protected class?

 Is it art? Or pornography?

 What is a “hostile work environment”?

 What should you do when an employee complains but says, “Don’t tell anyone—I don’t want you to do anything, I just wanted to let you know…”?

When: 12:00 to 1:30, Thursday, June 16

Lunch Provided. Please notify us at registration if you need a vegetarian option or
have other dietary restrictions.

Where: Law Offices of Hurley Re, P.C., 747 SW Mill View Way (Bend)

Cost: $15/person, maximum $25/firm or company

Register: 503.688.5162 or tcomfort@nwemploymentlaw.com

HRCI Credit Application Pending

Newsletter - Second Quarter 2011

noreply@blogger.com (Unknown) — Fri, 27 May 2011 19:36:00 +0000

Business and Employment Law Update
Second Quarter, 2011

Tips and suggestions, case reports, and
other helpful information for northwest businesses.

Tip of the Day - Oregon
Oregon employers are not permitted make employment decisions based “solely” on family relationships. ORS 659A.309. Exception: The statute permits hiring decisions to avoid placing one family member “in a position of exercising supervisory, appointment or grievance adjustment authority” over the other family member.

Tip of the Day: Washington
It is a misdemeanor under Washington law to obtain employment by the use of a “false or forged letter or certificate of recommendation.” RCW 49.44.040.

Bench Notes

It’s good to keep tabs on cases in our circuit—it helps to know what not to do, and how judges and juries are interpreting the laws. Here, in no particular order, is the latest news from the courts.

Frequent Breaks. A diabetic employee who was fired for making serious medication mistakes for the youth he supervised was not “willfully or wantonly negligent in violating the employer’s expectations” so as to be ineligible for unemployment benefits, the Oregon Court of Appeals found in Griggs v. Employment Department, because his mistakes were due to low blood sugar, and the Employment Department failed to show he was able to test his blood sugar “as necessary” to avoid problems.

History of Addiction Treatment Versus History of Drug Use. The Ninth Circuit upheld an employer’s policy that refused to consider applicants who had failed a pre-employment drug screen at any prior time—a “one strike and you’re out” policy. The Court rejected the applicant’s argument that this amounted to discrimination based on a history of addiction treatment, which is prohibited by the ADA. Lopez v. Pacific Maritime Association.

SERVICE ANIMALS

Businesses open to the public may have a “No Pets” policy, but because they must make an exception for service animals, there have been some abuses—such as customers who insist on bringing noisy, disruptive, or even dangerous animals into restaurants, stores, golf courses, etc.

A new Federal rule, effective March 15, 2011, addresses this issue. “The rule defines ‘service animal’ as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of ‘service animal.’”

An employee may ask the customer to remove a service animal from the premises if: (1) The animal is out of control and the animal's handler does not take effective action to control it; or (2) The animal is not housebroken.

If the animal’s services are not “readily apparent,” employees may ask “if the animal is required because of a disability and what work or task the animal has been trained to perform.”

Employees may not ask “about the nature or extent of a person's disability,” and may not “require . . . proof that the animal has been certified, trained, or licensed as a service animal.”

For more information, see http://www.ada.gov/regs2010.

Note: This photo did not carry a copyright notice.
Please contact Northwest Employment Law, LLC, if authorization is needed.

Keep in mind the rules for housing are different. For example, the Oregon Bureau of Labor & Industries recently proposed a rule that would prohibit refusing to allow a service animal that was recommended by the tenant’s health care provided, unless the animal “poses a direct threat to the health or safety of other individuals and the threat cannot be eliminated or significantly reduced by reasonable accommodation,” and would prohibit landlords from charging extra fees for having a service animal.

HOT OFF THE PRESSES: Two years after the enactment of the Americans With Disabilities Act Amendments Act (“ADAAA”), the EEOC has issued regulations interpreting the ADAAA.

The Basics: The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.” The ADAAA instructed the EEOC to redefine “substantially limits” to include greater coverage under the Act. What’s New—Part 1: The EEOC “declined” to redefine “substantially limits,” other than to say it is “a lower threshold” than “prevents” or “severely or significantly restricts.” The new regulations instead set forth 9 criteria for evaluating whether a medical condition “substantially limits” one or more major life activities, with this key instruction: the primary issue “should be whether [the employer] . . . has complied with their obligations [to engage in the interactive process and provide reasonable accommodation] and whether discrimination has occurred, not whether [the employee is disabled].”

Be sure to check future newsletters for additional information on the ADAAA.

Over 600 suggestions were filed during the public comment period
for the new regulations interpreting the ADAAA

Among those rejected by the EEOC:

- A request that the rules specifically list as examples of “major life activities” keyboarding, sex, composting, “maintaining an independent septic tank,” and operating a water craft

- A request that the EEOC set a durational limit (i.e. a medical condition lasting less than 6 months is not a disability)

- A request to assert that an employee’s failure to use available mitigation could result in discipline and/or a finding that the employee is not entitled to reasonable accommodation

LAST WORD: EXECUTIVE CONTRACTS

An ESI executive who was fired for lying to auditors was still entitled to approximately $1 million in severance, pursuant to his employment contract, because his misconduct wasn’t “willful,” according to a 5/19/11 Oregonian article. The report highlights an important concept: make sure your executive contracts articulate the organization’s expectations. A few key terms are listed below.

 Best Efforts/Competition. If you expect your CEO to devote her full working time to your organization, and to refrain from moonlighting or forming a separate partnership to run a dude ranch on the side, say so. (An analysis of non-competition agreements is beyond the scope of this short article—suffice it to say you should consult your attorney!).

 Work for Hire. According to copyright laws, if your VP of Sales develops a spiffy new app to track sales, that app—and the profits to be derived from it—probably belong to the employer. This is a very complex area of law, however, and you can minimize battles with careful drafting.

 Confidentiality. Trade secrets are also defined by law, but to some extent information is a trade secret or otherwise entitled to legal protection only when and to the extent it is identified as such. So identify it. Although general terms can be a useful starting point, don’t rely on boilerplate language reciting a list of everything including your preferred coffee vendor; analyze what is truly confidential in your context, and specify that, as well as the expectations regarding non-disclosure, the duration of the obligations, and your remedies in the event of a breach.

 Benefits. Legal prohibitions on discrimination in insurance and retirement accounts prohibit some differentiation between types of employees. Other benefits, however (paid vacation, company car, etc.), are fair game. Identify the benefits, or specify the benefits identified in the Employee Manual.

 Termination. Take the time to decide what your organization considers gross misconduct, and to spell out the logistics of termination. Specify whether notice is required, whether and under what circumstances a severance will be paid, and whether you will require a release of claims to receive the severance. Also, the general rule is that bonuses, commissions, stock options, etc. are due upon termination of employment unless a contrary policy is in place—so it is crucial to note if the performance bonus will be forfeited by gross misconduct, for example.

Lastly, remember that everything is negotiable. Even if your executive agreement “normally” includes a work-for-hire clause, you can mutually agree to reduce the salary in exchange for reduced copyright protections, for instance. A contract that is negotiated between the parties will be more readily enforced than a general template presented by the company on a take-it-or-leave-it basis.

Northwest Employment Law, LLC
Shari Lane, Attorney at Law
Licensed in Oregon and Washington
Member SHRM and PHRMA
River Park Center
205 SE Spokane Street, Suite 305
Portland, Oregon 97202
T: 503.688.5162
F: 503.688.5163
E: slane@nwemploymentlaw.com

Lawyerly Caveat: This newsletter is for informational purposes, and is not and should not be construed as legal advice. For assistance with specific legal issues, consult an attorney.

To Settle or Not To Settle, That is the Question

noreply@blogger.com (Unknown) — Thu, 19 May 2011 19:40:00 +0000

“I’m not paying him one penny –we didn’t do anything wrong!”

That is the battle cry of every employer who has ever been served with a complaint. So why does every attorney invariably bring up the idea of settlement? It isn’t necessarily because you made a mistake (though it can be dismayingly easy to inadvertently step on the wrong side of the law), and it isn’t because the law is unfairly skewed in favor of the employee (though sometimes it is).

Here’s what happens. Before your attorney can launch a defense or even advise you properly, he’ll need to look at every document that might remotely be relevant, interview every witness, review your employee handbook, find out about past practices, and get a detailed timeline of the employment history of the complaining party. That takes time—which costs you money. Then there are depositions, discovery battles, demands for a forensic review of your electronic records, drafting an Answer to the Complaint, drafting and responding to preliminary motions, and arguing those motions before the judge. (Even with an administrative agency complaint, there are scaled-down versions of these activities). That takes time—which costs you money. At trial, witnesses change their stories, and opposing counsel comes up with evidence you didn’t even know existed—which can change a “rock solid” defense into a losing battle. Even if trial goes well, jurors are people, and that means they’re unpredictable. Ultimately, even if you win, you’ll have paid for a lot of attorney time (and hard costs, like court reporter fees, filing fees, and expert witness fees) to get there. On top of that, almost all claims an employee can bring carry attorney fees for the employee—so if she’s awarded the proverbial “one penny” you swore you’d never pay in settlement, you’ll also end up paying her attorney’s fees. Some (but not all) statutes carry attorney fees for a successful defendant, but those are rarely awarded.

There are times when fighting is necessary. Most employers are justifiably reluctant to set a precedent (“Sue us and we’ll immediately pull out the check book”). Sometimes the claimant/plaintiff isn’t interested in settlement. And sometimes you’ll decide to stand on principle to avoid giving in to what feels like extortion, on a claim you truly believe is frivolous. But because it is so expensive to fight, your attorney wouldn’t be doing her job if she didn’t let you know that settlement is probably the least expensive and least time-consuming option. At that point, you can make an informed decision: settle, or fight.

BOLI Seminar - Shari Lane Guest Speaker

noreply@blogger.com (Unknown) — Thu, 24 Mar 2011 22:50:00 +0000

From the BOLI Website:

EMPLOYER’S GUIDE TO CIVIL RIGHTS LAWS AND WORKPLACE HARASSMENT - April 6, 2010
This seminar provides an overview of federal and state civil rights laws. Recent Supreme Court decisions have changed the standards for evaluating harassment cases and employer liability. Now more than ever, employers must ensure that effective anti-harassment policies are in place. Supervisors must be trained to act as role models, to recognize harassment in the workplace, and to respond promptly and appropriately. Employers must also institute effective complaint procedures that are readily accessible to employees and that ensure prompt investigation of harassment complaints without retaliation. In this session, BOLI’s trainers review current trends in this volatile area and give you tips on minimizing your liability.

Topics include:

Pre-Training Quiz
Overview of federal and Oregon civil rights protected classes
Definition of unlawful harassment
How courts and BOLI define unlawful harassment
Recent cases
Defining “unwelcome” conduct
Employer liability
Communicating the company harassment policy
Preventing harassment
Prohibiting retaliation
Investigating complaints
Conducting interviews
Taking appropriate corrective action

The seminar is targeted toward human resources personnel, business owners, managers, and front line supervisors with responsibility to understand and recognize workplace harassment.

This program has been approved for 6 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

To register, go to http://www.oregon.gov/BOLI/TA/docs/Seminar_Registration_8_2010.pdf

Thank You from JOIN

noreply@blogger.com (Unknown) — Mon, 07 Feb 2011 23:29:00 +0000

$1,350 raised, thanks to our generous donors!

The Best Advice Your Mother Ever Gave You: Watch Your Mouth!

noreply@blogger.com (Unknown) — Thu, 03 Feb 2011 22:18:00 +0000

A recent Oregon Court of Appeals case tells this story:

An employee reports to work three minutes late. His supervisor says, "I guess you just can't f**ing make it to work on time." When the employee fails to respond, his supervisor says, "F**ing what? What? You don't--what? You can't--you ain't got an answer for me?" The employee points out he was only a few minutes late, but the supervisor doesn't want to hear it. "Just f**ing leave," he says. The employee left, and filed for unemployment benefits, thinking he had been fired.

Van Rijn v. Employment Department (2010).

The case is about unemployment benefits, which are not available when an employee is fired for misconduct, or voluntarily quits without good cause. The employer in this case alleged the claimaint voluntarily quit.

Fired or not, the case highlights the need to proceed carefully in tense situations, and to let cooler heads prevail in discipline and termination actions.

If nothing else, you don't want to read these quotes in the court reporter--with your company's name in lights above them!

Bench Notes

noreply@blogger.com (Unknown) — Thu, 03 Feb 2011 20:36:00 +0000

It's good to keep tabs on Oregon and Ninth Circuit cases--it helps to know what not to do, and how judges and juries are interpreting the laws.

So here, in no particular order, is the latest news from the courts.

Guilty by Association. You know you shouldn't fire an employee for making a protected complaint. The Supreme Court recently ruled that you must also be careful to avoid firing the complaining employee's friends, family, and associates. In Thompson v. North American Stainless, a male employee claimed he was fired because his fiancee filed a complaint of gender discrimination. The lower courts threw the case out, saying Title VII (the federal anti-discrimination law) does not protect "third parties" from retaliation. The Supreme Court disagreed, noting the law protects people from actions that might dissuade a reasonable worker from filing a complaint, and pointing out a fear of getting your fiance fired might "dissuade" a reasonable worker from filing a complaint. The bottom line: Retaliation is illegal, even if it is directed at someone other than the person filing a complaint. (As an aside, keep in mind Oregon has a specific law prohibiting discrimination solely on the basis of family relationship--so had the two employees been married, there would have been an additional claim under that law).

Disabled Access: Actual versus Potential Obstacles. In Chapman v. Pier 1 Imports, the plaintiff sued over various ADA (Americans with Disabilities) violations, not only as to actual barriers he encountered, but also as to barriers he observed, but which did not actually get in the plaintiff's way when he was at the store. The store argued Chapman couldn't sue over barriers that didn't actually cause a problem for Chapman, but the Ninth Circuit (the federal appeals court for Oregon, Washington, California, Arizona, Montana, Nevada, Hawaii, and Alaska) disagreed. The only requirement (which ultimately Chapman failed to meet) is that a plaintiff specifically state how each barrier/ADA violation impedes or could impede him because of his specific disability. The court's example was this: a blind person could sue over the failure to have braille elevator buttons, even if she never used the elevator; a hearing-impaired person could not.

"Donning and Doffing": That's the peculiar old-fashioned phrase the courts use to talk about putting on work-clothes and taking them off. For many decades, there's been an ongoing debate about when employers have to pay for that time. The basic rule is that if the uniform is required by the employer, necessary for the job, or mutually beneficial for the employer and employee, the donning and doffing time must be paid. The rule was reaffirmed in Bamonte v. City of Mesa, where the Ninth Circuit found police officers do not need to and are not required to put on their uniforms at work--so even if they choose to put on the uniform (and take it off) at work, that is unpaid time.

Good Cause to Quit. You probably already know (especially if you read this blog!) that an employee will not be eligible for unemployment benefits if he quits without good cause. In Stacy v. Employment Department, an employee quit the day after complaining about racial slurs, and was denied benefits because he didn't give his employer time to investigate and address the problem--therefore he had "a reasonable alternative to quitting"--that is, he could have waited to see if his employer fixed the problem. The hidden lesson in this case is that employers should act reasonably promptly to address complaints, but instant action, based only on an employee's complaint, is not required.

A good contrast is Werth v. Employment Department, where the court agreed an employee had no choice but to quit when a co-worker ignored two successive Protective Orders and continued to stalk her at work.

Actual Danger Not at Issue. A company was cited by the Oregon Occupational Safety and Health Agency ("OR-OSHA") for failure to properly grade a worksite. As part of its defense, the company pointed out OR-OSHA failed to demonstrate there was any actual or even potential danger to its employees. The administrative law judge agreed with the company, but the Court of Appeals said that's not necessary, so long as the regulation "presumes" a violation will result in a hazardous condition. OR-OSHA v. ML Mowat Co.

A Year Without Bias

noreply@blogger.com (Unknown) — Wed, 05 Jan 2011 18:53:00 +0000

A friend recently referred to a mutual acquaintance as “that crazy cat lady.” Being a crazy dog lady myself (we only have one at the moment, but I aspire to a small pack, to take care of the as-yet-fictional farm I also aspire to), I was not as offended as I should have been.

And that got me thinking.

There are those who harbor a bias against people who have a houseful of cats. And people who have cat-sized dogs that wear sweaters. And people who wear tweed jackets with elbow-patches, or who ride unicycles downtown, or who sport a PhD but drive a Tri-Met bus.

These are the same folks—including friends, family, and clients—who are completely on board with the idea that people should not be judged by the color of their skin, their age, their accent, their disabilities, etc.

But do we harbor less obvious biases that are or can be just as insidious?

Consider:

1. Do you assume (without realizing it) that older employees won’t be able to pick up on new technology?

2. Do you expect younger employees to be impatient, job-hopping, and lacking in company loyalty?

3. Do you hold off on promoting married women in their twenties and thirties, subconsciously expecting them to become less reliable when they start a family?

4. (Here’s a terrible bias I’ve observed, that many don’t even realize they’re acting on): Do you have lower standards for your employees for whom English is a second language, assuming that because they don’t speak English well they don’t understand complex concepts?

Even stereotypes that seem harmless can be problematic, so here’s my advice for the new year: Review your hiring and promotional decisions in the last few years with an objective eye. Do you see a pattern of rejecting a certain class of people? Even if that class of people is not protected by law, you may be cheating yourself of valuable talent by acting on assumptions and biases.

And just in case you’re wondering: No, redheads do not have fiery temperaments! (You can check out the grievously insulting prejudices against us through the ages at http://en.wikipedia.org/wiki/Red_hair)

noreply@blogger.com (Unknown) — Thu, 16 Dec 2010 17:17:00 +0000

The Oregon Bureau of Labor & Industries is proposing new rules, summarized below. The proposed language can be found on BOLI's website: http://www.oregon.gov/BOLI/LEGAL/H_Notices.shtml

The comment period ends January 3, 2011, so if you have an opinion, let them know!

Some of the rules simply confirm legislatively the judicial interpretation of various laws. Others bring state law into conformity with federal law. Some actually impose new obligations or restrictions (by fleshing out new statutes). In other words, it's worth your time to review these proposed rules.

The proposed rules and amendments would:

(1) Clarify the individuals protected by prohibitions against use of credit history in employment

(2) Clarify that service animals may be a reasonable accommodation in housing for an individual with a disability

(3) Implement statutes prohibiting discrimination based on disability in public accommodation consistent with federal law

(4) Conform implementation of statutes prohibiting discrimination based on military service with federal law and make such statutes internally consistent

(5) Conform definition of “in loco parentis” as used in the Oregon Family Leave Act (OFLA) with federal definition

(6)Clarify that statutes require costs of completing OFLA verification forms to be paid by the employer

(7) Clarify that the period of time for an employer to ask for more information about a request for OFLA leave and the period of time the employee has to respond is more than a total of 5 days

(8) Clarify application of leave year for employees using pregnancy disability leave and parental leave

(9) Clarify the amount of time employers have to provide notice that an employee using unforeseeable OFLA leave must use accrued paid leave

(10) Clarify acceptable means of notice that employees taking OFLA must use paid leave

(11) Clarify amount of time employer has to notify employees they are eligible for OFLA leave

(12) Clarify how a discrimination complaint is verified

(13) Clarify that reports of violations of law to administrative agencies are protected under ORS 659A.199

(14) Implement statutes applying to use of physical force regarding health care employees.

JOIN

noreply@blogger.com (Unknown) — Fri, 03 Dec 2010 23:56:00 +0000

Whatever holiday you celebrate—or even if you don’t celebrate holidays—December is a good time to remember those less fortunate. Northwest Employment Law is launching a fund-raising campaign in partnership with JOIN: “Connecting the Street to a Home.” The goal is to raise enough money to put a family into a home, and help them stay there.

If you are interested, please click on this link: https://joinpdx.ejoinme.org/MyPages/ShariFundraisingPage/tabid/256901/Default.aspx

Read the Paper

noreply@blogger.com (Unknown) — Mon, 08 Nov 2010 03:59:00 +0000

The Sunday Oregonian included advice about financial planning, an evaluation of the reasons for a local web-design company's success, an analysis of various mutual funds, a "fact check" on a politician's recent claims about the economy, and a story about a wrongful termination lawsuit brought by an employee fired for burning the Quran.

When I logged onto Comcast to check my personal email, the headlines read: "Matador's Pants Split," "Best New Games," and "Heidi Klumm's too-tight dress."

This is a shameless plug for newsprint media. We have access to a wealth of information--and misinformation--on the web, but that is not why most of us use it. Internet news focuses on the sensational, the bizarre, and the merely interesting. Even serious news gets nothing more than a misleading headline limited to the space available after accounting for the advertisements. When real issues press upon our personal and business lives - such as our voting options, economic trends, and legislative changes - we need in-depth, investigative journalism, and intellectually challenging editorials (yes, even those with which we disagree).

And so I make this public plea: Read the Paper. Only by reading the paper can we get the information most useful to this ongoing experiment called Democracy, keep up with the trends that affect our businesses, and ensure continued employment (you knew there'd be a tie-in to employment, didn't you?) for the journalists who provide such a valuable service.

Crash Course in Employment Law - Free Seminar

noreply@blogger.com (Unknown) — Wed, 27 Oct 2010 20:24:00 +0000