Monday, February 6, 2012

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


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!