Wednesday, December 7, 2011
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!
Friday, October 21, 2011
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.
Monday, September 26, 2011
Monday, September 12, 2011
Business and Employment Law Update
Third Quarter, 2011
Tips and suggestions, case reports, and
other helpful information for northwest businesses.
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.
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
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.
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?
Friday, August 19, 2011
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.
Monday, June 6, 2011
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 email@example.com
HRCI Credit Application Pending
Friday, May 27, 2011
Second Quarter, 2011
Tips and suggestions, case reports, and
other helpful information for northwest businesses.
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.
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.
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.
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.”
Please contact Northwest Employment Law, LLC, if authorization is needed.
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].”
Over 600 suggestions were filed during the public comment period
for the new regulations interpreting the ADAAA
- 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
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.
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
Thursday, May 19, 2011
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.
Thursday, March 24, 2011
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.
Overview of federal and Oregon civil rights protected classes
Definition of unlawful harassment
How courts and BOLI define unlawful harassment
Defining “unwelcome” conduct
Communicating the company harassment policy
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
Monday, February 7, 2011
Thursday, February 3, 2011
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!
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.
Wednesday, January 5, 2011
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?
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)