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!
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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.
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Tip
of the Day – Washington
Washington
employers have the same obligation as Oregon employers, to report new hires. Employers
may file reports online:
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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:
(Sorry – there doesn’t appear to be
an easy electronic shortcut!)
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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:
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)”
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Disability
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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.
