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The Best Advice Your Mother Ever Gave You: Watch Your Mouth!

A recent Oregon Court of Appeals case tells this story:

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!

Bench Notes

It's good to keep tabs on Oregon and Ninth Circuit cases--it helps to know what not to do, and how judges and juries are interpreting the laws.

So here, in no particular order, is the latest news from the courts.

Guilty by Association. You know you shouldn't fire an employee for making a protected complaint. The Supreme Court recently ruled that you must also be careful to avoid firing the complaining employee's friends, family, and associates. In Thompson v. North American Stainless, a male employee claimed he was fired because his fiancee filed a complaint of gender discrimination. The lower courts threw the case out, saying Title VII (the federal anti-discrimination law) does not protect "third parties" from retaliation. The Supreme Court disagreed, noting the law protects people from actions that might dissuade a reasonable worker from filing a complaint, and pointing out a fear of getting your fiance fired might "dissuade" a reasonable worker from filing a complaint. The bottom line: Retaliation is illegal, even if it is directed at someone other than the person filing a complaint. (As an aside, keep in mind Oregon has a specific law prohibiting discrimination solely on the basis of family relationship--so had the two employees been married, there would have been an additional claim under that law).

Disabled Access: Actual versus Potential Obstacles. In Chapman v. Pier 1 Imports, the plaintiff sued over various ADA (Americans with Disabilities) violations, not only as to actual barriers he encountered, but also as to barriers he observed, but which did not actually get in the plaintiff's way when he was at the store. The store argued Chapman couldn't sue over barriers that didn't actually cause a problem for Chapman, but the Ninth Circuit (the federal appeals court for Oregon, Washington, California, Arizona, Montana, Nevada, Hawaii, and Alaska) disagreed. The only requirement (which ultimately Chapman failed to meet) is that a plaintiff specifically state how each barrier/ADA violation impedes or could impede him because of his specific disability. The court's example was this: a blind person could sue over the failure to have braille elevator buttons, even if she never used the elevator; a hearing-impaired person could not.

"Donning and Doffing": That's the peculiar old-fashioned phrase the courts use to talk about putting on work-clothes and taking them off. For many decades, there's been an ongoing debate about when employers have to pay for that time. The basic rule is that if the uniform is required by the employer, necessary for the job, or mutually beneficial for the employer and employee, the donning and doffing time must be paid. The rule was reaffirmed in Bamonte v. City of Mesa, where the Ninth Circuit found police officers do not need to and are not required to put on their uniforms at work--so even if they choose to put on the uniform (and take it off) at work, that is unpaid time.

Good Cause to Quit. You probably already know (especially if you read this blog!) that an employee will not be eligible for unemployment benefits if he quits without good cause. In Stacy v. Employment Department, an employee quit the day after complaining about racial slurs, and was denied benefits because he didn't give his employer time to investigate and address the problem--therefore he had "a reasonable alternative to quitting"--that is, he could have waited to see if his employer fixed the problem. The hidden lesson in this case is that employers should act reasonably promptly to address complaints, but instant action, based only on an employee's complaint, is not required.

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.

A Year Without Bias

A friend recently referred to a mutual acquaintance as “that crazy cat lady.” Being a crazy dog lady myself (we only have one at the moment, but I aspire to a small pack, to take care of the as-yet-fictional farm I also aspire to), I was not as offended as I should have been.

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?

Consider:

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)

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.