Holiday Fundraiser - Update

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

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

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!)

Newsletter

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

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

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!