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

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

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

The Not-So-Friendly Skies

A female Executive Jet employee complained about inappropriate behavior ("lewd," "raunchy," "sexualized banter," "pornographic emails," and at least one pinching incident) by male employees, which turned out to be (a) fabricated to a large degree (b) motivated by her desire for a transfer, and (c) a complaint about behavior she herself often initiated.

The airline investigated, discovered the misconduct was widespread among employees of both genders and - perhaps feeling it needed to do something - fired the male employees.

The men promptly filed a claim of gender discrimination with the EEOC, and later in court, alleging they were fired for behavior female employees engaged in with impunity.

The lower court dismissed the case, finding the female employees were not "similarly situated" (that is, comparing the male employees to the female employees was like comparing apples to oranges), because they had different supervisors.

The Ninth Circuit rejected that reasoning (pointing out the termination decision was made by the president of the company, not by one of the two supervisors), but accepted the district court's other basis for dismissing the case: No one complained about the female employees' behavior.

Anyone care to comment?

Reminder: September Deadlines

If you are a private employer with at least 100 employees (or are affiliated with a company that has at least 100 employees, other than a private club), and/or you hold government contracts or subcontracts over the threshold amount, your EEO-1 forms, VETS-100 and/or VETS -100A forms, are due by September 30.

Caveat (you knew there'd have to be a lawyerly caveat, right?): The statement above is a signficant oversimplification of the criteria. If you're not sure whether these requirements apply, please contact your lawyer!

Also, some of the healthcare reform changes went into effect on September 23, 2010. If you are unsure whether or which changes apply to you, contact your insurer.

October 7 Seminar: The Most Bizarre Employment Law Cases

This presentation by Shari Lane is part of the Commerce Company's 8th Annual Commerce Concepts Series, a series of informative and interactive presentations designed for employers, HR managers, and benefits coordinators.

Check out the series, which runs from October 7 through November 16, and includes discussions of social media at work, variable pay, workforce management, retirement plans.

Register: http://www.thecommco.com/ 1 (800) 203-8510 Series2010@thecommco.com
Cost: $15
Location: World Forestry Center

It's the Manager, Stupid - Guest Article by Bill Leslie

You Don't Bring Me Flowers Anymore

Amid bushels of bad news, the story about industry giant Hewlett-Packard Company contained a rare gem. No, I’m not talking about the most recent skirmish over the hiring of a former HP CEO by a long-time affiliate, I’m talking about a comment praising the (former) HP business model. The article said HP employees hope the search for the new CEO will focus on “a return to . . . principles enshrined in the HP Way. . . . an egalitarian management style that encouraged employee profit-sharing, flexible schedules, work/life balance and instructed managers to get out among the employees.” Analysts say HP seeks best qualities of ex-CEOs, available at http://articles.sfgate.com/2010-08-10/news/22212384_1_hp-dave-packard-bill-hewlett.

As layoffs and other cost-cutting measures have proceeded throughout the recession (and, let’s face it, before the recession), the connection between management and other employees becomes more and more tenuous. And that, I believe, is ultimately bad for the company as a whole.

The relationship between supervisors and those they supervise is much like a marriage. It starts off rosy, with high expectations about the value the employee can add, and the touted company culture. Flowers may or not be involved (I was so touched when, years ago, my employer of less than one month sent flowers to the hospital when I had an emergency procedure!). After a while, there are attendance problems, and attitude problems, and the alleged expertise turns out to have been slightly fudged, the “flexible schedule” turns out to mean you can get out of Saturday work-days if you have a doctor’s note, and the company scales back its perks to donuts on Friday. Just as in a marriage, what started out with love songs and poetry turns into: “You don’t bring me flowers anymore.”

In my opinion, many of the disputes between employers and employees stem from a soured relationship based on a belief by the employee that she is not valued, and by the employer that the employee cares only about herself, not about the business. This is why I said that the removal of management from the workforce is damaging to the company: the long-term consequences can be significant.

So, the situation is as common as divorce. But is it unavoidable? I don’t think so.

I said earlier in this post that employment is like a marriage. In a good marriage, both partners can speak freely—including offering suggestions and constructive criticism. Each partner feels his/her needs and preferences are important to the other partner. And each partner suffers when the budget is tight, and shares the bounty when things are going well—and therefore feels invested in success.

I realize few people have such a perfect union! But if we are comfortable starting with this as an ideal for spousal relationships, and at least aiming in that direction, why not apply the ideal to work relationships? You know what they say: aim for the stars, and at least you’ll go far.

I am not suggesting we should all strive to be best buddies in the workplace (I don't recommend that, actually). And I have personally represented many employers who tell me, “I treated him like family, and in return he treated me—and the company—like dirt.” The principle I am espousing only works with buy-in from both sides. However, a Golden Rule principle would go a long way in this as in other relationships. And if flowers are warranted, send flowers.

For some concrete ideas about what this means in practice, see the article on this blog: It’s the Manager, Stupid! by Bill Leslie (reprinted with permission).

The Fundamentals of Smooth Sailing

We all hope for smooth sailing: brilliant marketing, substantial profits, equipment that works, secure facilities, and happy employees and customers.

It looks like I'm enjoying smooth sailing in this photo, but I'll tell you a secret: I wasn't sailing alone. Captain Dave was keeping track of the depth in the channel, Admiral Janet was preparing hors d'oeuvres (no sexism going on here - she can trim the sails as well as anyone, but she also happened to work miracles in the galley). My husband was helping with each tack.

It's no surprise that a business, like a well-run ship, requires many hands on deck (okay, I'm done with the nautical lingo, I promise). The problem I often see is a lack of coordination, because the business of running the business gets in the way.

Your floor manager knows it is important to document every time Albert comes in late, but he doesn't because the receptionist is sick and he spent half an hour on the phone with various temp agencies to find a substitute. Your office manager mentioned the company is past due for a refresher on harassment training, but you finally got that big contract you were hoping for, and the deadline is looming.

And then, when Albert is terminated for yet another late arrival, he files a claim with BOLI alleging racial discrimination and harassment. Now, you have no documentation that he's not being singled out because of his race, and no proof that you've taken steps to prevent and address harassment (a key element of your defense).

Here's my advice: schedule some time - put it on your calendar as if it was a Very Important Client Meeting that you absolutely positively can't miss - to establish (or refine) the fundamental processes for coordinating your employee relations efforts. (And though it sounds self-serving, get your lawyer involved in that meeting!)

1. Create a log, with pre-printed columns, for incidents (complaints, absences, etc.). That way, all a supervisor has to do is dash off a quick note on a pre-printed form. More extensive documentation can come later, if necessary.

2. Check your posters: do you have all the required employee postings?

3. Get your employee handbook updated at least every two years (a few months after each legislative session). It's a tedious process, but absolutely crucial.

4. Create a leave request form to be used ahead of time and after the fact (for unexpected illness), that allows the employee to note if the absence is or may be covered by medical leave laws.

5. Make sure timesheets or other payroll documents require employees to sign off that the time is accurate, that they've received all required rest and meal periods (if applicable), and that they've reported any problems with their schedule, timecard, etc.

6. Set up an exit interview process that documents employee complaints and ensures you have fulfilled all obligations related to termination (continuation insurance notification, final paycheck on time, etc.)

7. Create an easy-to-use procedure for reporting complaints (such as harassment), and a step-by-step process for responding to complaints - and then make sure all employees are aware of the procedure (get a signed acknowledgment).

Even the best planning won't avoid all storms and squalls, but you can take steps to maximize your chances of coasting serenely into the future (sorry, I couldn't resist).

Violence in the Workplace

The article in today’s Oregonian said Omar Thornton was caught on video, stealing beer. When he was confronted, he shot and killed eight people, including his union representative, and then turned the gun on himself.

While the family and friends of the victims grieve, the rest of us are left to wonder whether there was anything the company could have done to prevent this tragedy.

As with every other aspect of employee relations, the answer is yes – and no.

Employers have an obligation to provide a safe workplace, which includes implementing policies to prevent foreseeable dangers, such as faulty equipment, hazardous substances, and violence. That task is made harder by the recent Supreme Court ruling that the Second Amendment protects the right of individuals (like Omar Thornton) to carry a handgun, and therefore states are limited in their ability to restrict those rights. (That comment is not a reflection of my personal feelings about gun ownership, the Constitution, or the Supreme Court--it simply highlights the increasing squeeze on employers subject to conflicting legal obligations).

But consider this: even if the state of Connecticut banned weapons in the workplace, and even if the Hartfort Distributors had imposed a more stringent policy than permitted by state law, it is highly unlikely an employee who was capable of murder would have complied with the policy.

Which is why I don’t advocate a rush to impose draconian policies in the wake of the Connecticut shooting.

Do you remember the Shoe Bomber? After a would-be terrorist hopped on a plane with explosives in his shoes, the FAA began requiring all travelers to remove their shoes for scanning. Are we safer now? I’m not sure. There will (presumably) be no future shoe bombers, but what’s to stop someone from hiding explosives in the hem of his pants, or some other article of clothing?

Similarly, businesses could begin install a metal detector at one entrance – or even a full body scanner – and require all employees to use that entrance at the start of their shift. But even if Hartford Distributors had such a policy, Mr. Thornton could have kept his gun in his car, and retrieved it to wreak havoc on co-workers and members of the public outside the building.

Don’t get me wrong: I am unabashedly in favor of prohibiting weapons in the workplace. (Interesting aside: a client once told me their employees at remote Alaska worksites need to carry a gun to prepare for the very real danger of encountering a bear—that seems like a pretty reasonable exception to the general proposition that employees don’t need to pack an arsenal at work).

My point is that while employers must take every reasonable precaution to prevent workplace violence, there is no fail-safe method of eliminating every conceivable risk. So, we are left with the unsatisfactory option of taking admittedly imperfect steps.

1. Evaluate your EAP program : Do employees suffering from addiction or emotional problems have resources? Do they know about those resources?

2. Provide training to your supervisory employees in recognizing the danger signs of an unstable or at-risk employee.

3. Review and update (and enforce) your weapons at work policy.

My heart goes out to the family and friends of the victims of Omar Thornton, and to the family and friends of Mr. Thornton himself. We can send them our compassion and our prayers, but in evaluating our own policies, we should focus on policies that really have the potential to keep us safe.

Americans With Disabilities Act: Something to Celebrate

July 26 marks the 20th anniversary of the ADA (Americans With Disabilities Act--now fondly nicknamed the ADAAA, after the 2009 amendments).

Presumably, we all agree that people in general (and employees in particular, since this is a blog about employment law) should be judged (i.e. employed) based on their abilities, not their disabilities. The ADA takes it further, however.

The Ninth Circuit has said: “Unlike other types of discrimination where identical treatment is the gold standard, identical treatment is often not equal treatment, with respect to disability discrimination.” Gambini v. Total Rental Care, Inc., 486 F.3d 1087 (9th Cir., 2007)

This is the heart and soul of the ADA: a differently-abled person is entitled to some flexibility or even adjustment of the expectations of the job ("accommodation"), if that accommodation will allow the differently-abled person to get the job done.

Which makes sense. Given the choice between an unemployed or underemployed population of differently-abled persons, on the one hand, and full employment that requires some accommodation, on the other hand, full employment is preferable. Full employment should provide greater personal satisfaction for the individual, and is certainly preferable from the perspective of our state and federal governments—employed people pay taxes, and don't require as many government services and benefits.

So, in theory, we are all on board with the ADA. It is in practice that employers may encounter difficulties.

For example, what do you do with an employee suffering from bi-polar disorder whose job entails working closely with co-workers and customers, who occasionally exhibits extreme behavior offensive to those co-workers and customers?

How do you accommodate a person with diabetes who refuses to monitor and adjust her blood sugar, putting herself and others at risk for the consequences of insulin shock?

Or what about the bugaboo nobody wants to acknowledge: the employee who is perfectly capable of doing the job but uses a medical condition as an excuse to avoid meeting employment standards or receiving discipline?

There are no easy answers. The premise of the ADA (and the ADAAA), however, is that we have to try. Employers are required to sit down with employees who have indicated they have a medical condition that is or may be disabling, and attempt to figure out what effect the employee's condition has on the employee's ability to perform the job, and whether some accommodation is possible.

In legal jargon, it's called the "interactive process." In real life, it's a candid discussion about options.

This is really what the ADA comes down to: Options. Where before there were only closed doors and prejudice and stereotypes, now there are options.

And that's something we can all celebrate.

Recommended Viewing: Music Within