World of Work

When Is It Okay to Cuss Out Your Boss?

Dennis Westlind — Thu, 04 Feb 2010 08:04:41 -0800

Most of us assume that if an employee swears at a manager or, he or she can be disciplined or even fired. That assumption may be wrong, depending on the context in which the swearing occurs. A federal judge recently held that the Federal Aviation Administration violated federal labor law when it removed a local union president from its premises after he used profanity toward his supervisor in the course of union activity. Click here to read the opinion in FAA and National Air Traffic Controllers Association.

In FAA, an employee (who was also the union president) got into a verbal altercation with his supervisor over what the employee felt were insufficient staffing levels under their union contract. In the course of that altercation, the employee told his boss: “F*** you, I don't give a f***!” (Imagine a certain four-letter word that rhymes with "duck.") In response, the supervisor had the employee escorted off of the employer's premises. A federal judge held that the employer's response violated the employee's rights under federal labor law. The judge ruled that because the swearing occurred in the course of union activity, it was protected speech: “the use of profanity, standing alone, does not remove conduct or speech from the protection of [federal labor law]." The Judge also noted that the outburst was brief, made in a normal tone of voice, and not overheard by other employees.

FAA teaches us an important lesson: even relatively robust swearing by an employee during the course of otherwise protected activity may be protected. The same logic behind the FAA decision could possibly apply to other types of protected employee speech: union activity, harassment complaints, discrimination complaints, safety reports, etc.

So when does profanity, even in the scope of protected activity, lose its protection? There are no "bright line" rules, but courts look to several factors:

the volume, severity and duration of the outburst
whether it is accompanies by threats or threatening gestures
whether there is a workplace culture that condones or encourages profanity
whether it is overheard by other employees
whether the profanity is likely to disrupt workplace operations
whether it rises to the level of verbal harassment that may violate the employer's policies
whether it was a spontaneous outburst made out of frustration, instead of a premeditated attempt to humiliate the supervisor.

In any event, employers should proceed with a great deal of caution before disciplining an employee who uses profanity in the course of a protected activity. If the swearing was not in the course of a protected activity, disciplining the employee for insubordination or unprofessional behavior is relatively risk-free.

Federal Government to Crack Down on Misclassified "Independent Contractors?"

Dennis Westlind — Wed, 03 Feb 2010 07:52:10 -0800

It's always risky to misclassify someone who should be an employee as an "independent contractor," but President Obama's 2011 budget proposal will increase the risks for employers. According to this budget summary from the U.S. Department of Labor, the misclassification of employees as contractors is estimated to cost the Treasury Department over $7 billion in lost payroll tax revenue over the next ten years. To help make up for this shortfall, the proposed budget includes funds earmarked for a "joint proposal" between the DOL and the Treasury Department to eliminate legal incentives for such misclassification, and an additional $25 million to target misclassification with 100 additional enforcement personnel and competitive grants to boost states’ incentives and capacity to address this issue.

If this budget provision goes into effect, employers will need to be particularly careful not to misclassify employees as contractors. Of course, it's already a risky proposition to misclassify employees as contractors. For example, as we reported back in 2008, FedEx was on the wrong end of a $14 million award after a California court concluded that the shipping giant misclassified hundreds of drivers as contractors. Lawsuits in this area are common, ranging from individuals seeking unpaid wages and overtime to multi-million dollar class actions. Federal and state governments are also known to go after employers for unpaid payroll taxes and associated penalties.

Are you concerned that your independent contractor might actually be a misclassified employee? The IRS has published this handy information on how to determine whether the employee is correctly classified. There is even an IRS form (Form SS-8) that you can file to seek the Service's help in determining if your employee is correctly classified. Of course, if you believe that you have misclassified employees working as contractors, it might be a good time to contact your labor and employment attorney.

Despite Assertions to Contrary, Employment Laws Do Exist

Marc Alifanz — Fri, 29 Jan 2010 09:14:16 -0800

On my way in to work this morning, I was listening to NPR’s Morning Edition, and caught an interview with Lewis Maltby, president of the National Workrights Institute. The interview was ostensibly to promote Mr. Maltby’s new book, “ Can They Do That?” in which he discusses employment termination cases that were deemed legal, but seem, in his opinion, to be disproportionately severe or unjust.

What Mr. Maltby appeared to decry (without using the proper terminology) is the American presumption of “at will” employment—the notion that an employer may terminate an at will employee’s employment for any reason or no reason, so long as it’s not otherwise illegal. A couple of Mr. Maltby’s examples demonstrate that concept well. For example, he mentioned instances where it was permissible for an employer to terminate an employee based on the political bumper sticker on the employee’s car, and for a school to terminate an overweight teacher’s employment because the teacher did not project the correct image. As there are no laws that specifically protect individuals from discrimination based on political affiliation or weight, these terminations were in fact permissible. (I would caution, of course, that terminating an overweight employee does carry risk to the extent the employee might be considered to have a disability under state or federal law.)

Mr. Maltby’s credibility, however, ends there. Mr. Maltby incorrectly made the assertion that there are no laws at all to protect employees—and his other examples demonstrate a lack of understanding of the law. For instance, he implied that there is no recourse for an employee whose employment is conditioned on having sexual relations with a superior. That is, of course, false. Such behavior constitutes impermissible quid pro quo sexual harassment under federal law and the laws of nearly every state (if not all of them). He also cited an example of an employee who was seen by his boss drinking beers at a bar after work, and where the boss fired the employee because drinking is “a sin.” While the outcome of a lawsuit would depend on the specific facts, such a scenario could constitute discrimination based on religious belief—another category protected by federal law and the laws of most if not all states.

Every state and locality has a variety of employment laws already in place that protect employees from a wide range of impermissible employer conduct. Rather than engaging in hyperbole by stating that no laws exist to protect employees, a more useful discussion revolves around whether, as a policy matter, it makes sense to pass new laws protecting additional personal characteristics or affiliations. The challenge, of course, is striking the right balance between protecting those few things we all (or mostly) agree should be protected, with the interests of employers who should have the right to conduct their businesses as they see fit.

A copy of the NPR story is available here.

9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases

Ryan Gibson — Fri, 22 Jan 2010 14:23:00 -0800

The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases. Click here to read the decision in Alvarado v. Cajun Operating Co.

Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance. After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA. Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.

The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list. Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions). The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments.

For now, the law in the Ninth Circuit on this question is clear: while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.

Homeland Security Announces Temporary Protected Status for Haitian Nationals

Dennis Westlind — Wed, 20 Jan 2010 07:40:27 -0800

Homeland Security Secretary Janet Napolitano announced last week a temporary protected status ("TPS") for Haitian nationals who were in the United States as of January 12, 2010. The temporary status will allow eligible Haitian nationals to continue living and working in the United States for the next 18 months. "Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this administration's continuing efforts to support Haiti's recovery," said Napolitano in a statement. Click here to read Napolitano's complete statement.

The temporary status is intended to allow Haitian nationals to stay for 18 months, authorize them to work and send remittances back to Haiti to help the nation "get back on its feet." However, Haitians who now attempt to travel to the United States will not be eligible for the temporary status and will be repatriated to Haiti.

Employers should be aware that Haitian nationals may be legally authorized to work in the United States under the TPS program without being able to present documents that would normally satisfy the requirements of form I9. Employers should review the TPS eligibility for any Haitian nationals who do apply for work. Haitians in the U.S. who may be eligible to apply for TPS should call U.S. Citizenship and Immigration Service toll-free at (800) 375-5283.

COBRA Subsidy Extended Through February 28, 2010

Dennis Westlind — Tue, 29 Dec 2009 07:23:54 -0800

As originally enacted as part of the 2009 stimulus package, the COBRA subsidy provided up to nine months of health insurance premium assistance for covered workers who were involuntarily terminated on or before December 31, 2009. Last week, President Obama signed a bill that extends the COBRA subsidy for involuntarily terminated employees in two ways: First, it extends the eligibility period to provide assistance to workers who were involuntarily terminated on or before February 28, 2010; second, it provides up to 15 months of insurance premium assistance.

Employers should, as soon as possible but in any case no later than February 21, 2010, provide notices to all former employees who may be affected by the extension informing them of their rights. Employers should also update the COBRA subsidy information they are currently providing to employees upon termination to ensure that it accurately reflects the eligibility period.

Want to know more? For more information on the COBRA subsidy in general, read Stoel Rives' COBRA Subsidy Alert from earlier this year (but ignore the out-of-date eligibility dates). You can also click here to read the IRS' COBRA subsidy information page, with answers to frequently asked questions.

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Dennis Westlind — Wed, 23 Dec 2009 08:57:54 -0800

Wow, it's Festivus already, which means that in just a few short days it will be a brand new year! We have a Festivus present for Oregon employers to help you get ready: Ten things you need to know for 2010! (click on each blue hotlink for more information)

All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate.
Leave for Military Spouses: Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty.
In 2010, you might have a greater duty to accommodate employees' religious dress and practices.
Domestic Violence Leave and Accommodations: Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must make reasonable accommodations for such employees.
In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
Oregon's minimum wage will remain $8.40/hour.
Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act.
Oregon has new rest and meal break regulations.

And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength. Happy festivus, and see you in 2010!

Oregon Employers: Download SB 519 (Mandatory Meeting Ban) Notice Here!

Dennis Westlind — Fri, 18 Dec 2009 08:10:02 -0800

Back in June, we reported on Oregon SB 519 - the law taking effect January 1, 2010 that will prohibit Oregon employers from disciplining any employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters - including labor unions.

SB 519 also requires ALL Oregon employers to post a notice informing employees of their rights under the new law. We usually rely on the Oregon Bureau of Labor and Industries (BOLI) to supply us with all mandatory postings, but BOLI has chosen not to publish an SB 519 posting.

We at the World of Work and Stoel Rives couldn't just leave you in the lurch - we have created our own SB 519 Poster - just click the link to download, free of charge. It's a .pdf document, and we've included two per page, just in case you want multiple copies. We would recommend that you post the notice wherever you typically put up your employment law posters. If you have an extra copies, we think they make excellent stocking stuffers (at least for the HR professional in your family).

DISCLAIMER! (You knew this was coming, right?) No government official or agency has approved this poster as fulfilling the SB 519 requirements. This poster represents our best efforts to create a poster that complies with those requirements, but we make no representations, promises or warranties as to whether it fulfills the legal requirements of SB 519. As always, the materials available at this web site/blog are for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site/blog or any of the materials or e-mail links contained within the site do not create an attorney-client relationship between Stoel Rives and the user or browser.

Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers

Dennis Westlind — Tue, 15 Dec 2009 08:43:48 -0800

Yesterday the United States Supreme Court agreed to consider whether a police officer has a reasonable expectation of privacy in text messages sent using his department-issued pager. The Ninth Circuit Court of Appeals ruled earlier this year that the officer had such a privacy right. Click here to read the opinion below in City of Ontario, California v. Quon.

In Quon, the employer, the City of Ontario, distributed to its police officers pagers with texting capability. The City then audited the use of text messages by the officers to determine whether overage charges may have been caused by personal use of the service. During the audit, it discovered that Quon had sent several personal, sexually explicit text messages. Quon sued the City, asserting violations of his right to privacy under the Fourth Amendment of the United States Constitution as well as under Article I, Section I of the California Constitution. The District Court dismissed Quon's suit after a jury found that the City conducted the audit to investigate usage, not misconduct. The Ninth Circuit reversed, holding that the City violated Quon's constitutional privacy rights by reading his private texts, and the City's articulated policies did not give Quon sufficient notice that his texts could by read by others to overcome his privacy rights.

What does this mean for employers? For most private employers, this case will have little or no impact. Federal privacy rights, such as those that come from the Fourth Amendment, apply only to public employers and not to private ones. Private California employers should watch out: California courts have sometimes applied state constitutional rights to private employers, and could rule that their employees have privacy rights in work-provided email and text systems. Still, it is a good practice for all employers, public and private and in all states, to adopt and distribute policies clearly stating that employees have no expectation of privacy in communications they make using employer-provided equipment and systems, such as email, text messages, cell phones, etc.

9th Circuit: Independent Contractor Can Assert Disability Claim Under Rehabilitation Act

Dennis Westlind — Tue, 01 Dec 2009 07:54:16 -0800

The Ninth Circuit Court of Appeals ruled recently that an independent contractor may assert a disability claim against an employer under the Rehabilitation Act. Click the link to read the opinion on Fleming v. Yuma Regional Medical Center.

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act (ADA).

In Fleming, an anesthesiologist who worked as an independent contractor sued the medical center at which he worked, alleging a discriminatory constructive discharge. The trial court dismissed the case on the basis that Fleming was an independent contractor and that the Rehabilitation Act applied only to employee-employer relationships. The Ninth Circuit reversed, holding that the Rehabilitation Act provides a cause of action to any individual subjected to disability discrimination by any program or activity receiving federal financial assistance. While the Rehabilitation Act adopts the standards that are applied under the ADA, it does not adopt the ADA's limitation to the employee-employer relationship.

Independent contractors are not considered "employees" for purposes of most employment discrimination laws, and many employers hire independent contractors to avoid potential liability under such laws. Fleming shows that, at least for employers covered by the Rehabilitation Act, independent contractors may still find ways to seek the protections of those laws despite their "non-employee" status. In addition, many employers incur significant tax and other liabilities by misclassifying people as "independent contractors" when they really should be treated as employees. For more information, the Internal Revenue Service offers this guidance for determining whether someone is or is not correctly classified as an independent contractor.

Washington Domestic Partnership Law Impacts Employee Benefits and Family Leave

Dennis Westlind — Tue, 17 Nov 2009 10:40:21 -0800

Washington voters recently approved Referendum 71, giving registered domestic partners all of the rights and responsibilities of married couples under Washington state law. Prior domestic partnership laws gave registered domestic partners limited rights and responsibilities such as hospital visitation, health care decision making, inheritance and community property rights. The new law includes all of the rights and responsibilities granted to married couples under state law.

Notably, the Washington State Insurance Commissioner has given notice that all insurance policies that include spouses will also be required to cover registered domestic partners. Washington employers and insurance providers should review the new law and existing policies and procedures to ensure compliance when the law takes effect on December 3, 2009. More information, including verification of registered domestic partnerships, is available at the Secretary of State’s website. Additional information on how R 71 may affect employee benefits and family leave laws is available as part of a recent Stoel Rives LLP Client Alert.

Oregon Expands Flu Hotline

Dennis Westlind — Thu, 12 Nov 2009 08:15:36 -0800

Beginning today, November 12, the Oregon Department of Human Services (DHS) is offering expanded service on the Oregon Public Health Flu Hotline. Oregonians can call 1-800-978-3040 between 8:00 a.m. and 6:00 p.m. Monday-Friday, or 8:00 a.m. and 5:00 p.m. on weekends and holidays for information on the flu, including the H1N1 (or "swine flu") virus. Three services are available on the hotline:

Information and referral: listen to recorded messages about the flu, or be routed to an information and referral specialist who can answer questions about the flu and vaccines;
Telephone triage: speak to a licensed healthcare provider about flu symptoms or exposure, and receive care advice, referral to a healthcare provider, or referral to the emergency room; and
Clinician support: doctors, lab techs, pharmacists, nurses and other healthcare professionals can receive information about H1N1 treatment options and vaccines.

Oregon employers should consider providing flu hotline information to their employees. Click here to download DHS's announcement of the flu hotline, which employers can print and distribute or email to their employees. For more information on H1N1 and the workplace, check out the DHS's flu resource website, flu.oregon.gov. Outside of Oregon, check out the Center for Disease Control's H1N1 resource site.

New Salt Lake City Ordinances Prohibit Housing and Employment Discrimination Based on Sexual Orientation

Dennis Westlind — Wed, 11 Nov 2009 10:18:38 -0800

Yesterday the Salt Lake City Council unanimously passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity. Click here to download a copy of the City Council's Staff Report on the ordinances, along with full text of the new laws. Highlights of the employment discrimination ordinance include:

Forbids employment discrimination based on a person's sexual orientation or gender identity in Salt Lake City.
- "Sexual orientation" is defined as "a person’s actual or perceived
  orientation as heterosexual, homosexual, or bisexual."
- "Gender identity" is defined as "a person’s actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person’s sex at birth."
Creates a complaint and investigation process. The complaint could be resolved through mediation or a fine of up to $1,000.
Does not create a "private right of action" to sue over alleged discrimination.
Exempts religious organizations, the State of Utah, and businesses with fewer than 15 employees.
"Does not create any special rights or privileges," because "every person has a sexual orientation and a gender identity."
Requires annual reports by the city's Human Rights Commission on the effectiveness of the ordinances.
Takes effect on April 2, 2010.

In case you were wondering, the ordinances passed with the full support of the LDS Church. "The church supports these ordinances," LDS spokesman Michael Otterson told the City Council, "because they are fair and reasonable and do not do violence to the institution of marriage." For more coverage of the SLC ordinances, read this article from the Salt Lake Tribune, or this article from the Deseret News.

SLC employers should review the new laws and review existing policies and procedures to ensure compliance. Many states, counties and cities across the country have adopted similar ordinances. To check the state of the law in your location, check out this handy list of state and local sexual orientation and gender identity laws from the Human Rights Campaign.

Supreme Court Lets Stand Ruling Allowing EEOC to Issue Subpoenas After Right-To-Sue

Dennis Westlind — Tue, 10 Nov 2009 10:42:33 -0800

Yesterday the U.S. Supreme Court declined to review a Ninth Circuit Court of Appeals decision that allows the Equal Employment Opportunity Commission (EEOC) to continue investigating allegations of employment discrimination, and even to issue subpoenas to employers, after issuing a right-to-sue letter to the employee who filed the initial complaint. Click here to read the Ninth Circuit decision in Federal Express Corp. v. EEOC.

In order to file a lawsuit under Title VII of the Civil Rights Act of 1964, an employee must first file a complaint of discrimination with either the EEOC or an analogous state agency, a process known as "exhausting administrative remedies." Only after the EEOC issues a "right-to-sue letter" may the employee then file a lawsuit. It is not uncommon for an employee to file a complaint with the EEOC and withdraw it almost immediately, obtain the right-to-use letter and file a lawsuit, all before the EEOC has had a chance to investigate. In Federal Express, the employee did just that in order to join a pending class action lawsuit. The employer expected the EEOC to drop its investigation, but instead EEOC continued to investigate and issued a subpoena to the employer.

The Ninth Circuit enforced the subpoena, writing: "By continuing to investigate a charge of systemic discrimination even after the charging party has filed suit, the EEOC is pursuing its obligation to serve the public interest." The Ninth Circuit's decision is in line with a decision from the Third Circuit, but contrary to decisions from the Fifth, Seventh and Tenth Circuits. The Supreme Court will often take a case like Federal Express to resolve such splits between the circuit courts, but declined to do so in this case. As a result, the EEOC's investigatory powers will continue to vary depending on where a complaint is made.

Given the Supreme Court's ruling in Federal Express, employers can no longer safely assume that the EEOC will drop its investigation once it issues a right-to-sue letter. The EEOC may choose to continue investigating charges of discrimination, especially in cases involving allegations of systemic or widespread violations of anti-discrimination law. Employers (at least those in the Ninth and Third Circuits) should be prepared to comply with EEOC investigations even after the right-to-sue letter has issued.

Oregon BOLI Files Multiple Proposed Rule Changes

Dennis Westlind — Mon, 09 Nov 2009 08:12:00 -0800

The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment. Click on the title of each to read the proposed rule:

Religious worship, child support obligors, physical accommodations for eligible disabilities. The proposed rules would implement statutes:
- requiring employers to reasonably accommodate wearing of religious clothing and leave for religious practices (SB 786)
- making discrimination by employers against child support obligors an unlawful employment practice (ORS 25.424(3))
- requiring places of public accommodation to provide access to employee toilets for customers with eligible medical conditions (SB 277)
- requiring transient lodging of 175 or more units to provide lifts for individuals with disabilities (HB 3256).
Compliance with the ADAAA, preferences for veterans, and discrimination on the basis of uniformed service. The proposed rules and amendments would implement:
- amendments to statutes providing for employment preference for veterans.
  (HB 2510)
- amendments to disability discrimination statutes to conform them to the
  federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (SB 874)
- statutes prohibiting discrimination in employment on the basis of uniformed
  service (HB 3256).
Home Health Agencies, Wage Security Fund. The proposed rule amendment would:
- implement HB 2595, enacted in 2009, which prohibits home health agencies and hospice programs from paying nurses providing home health or hospice services on a per-visit basis
- clarify conditions to be met in qualifying for payments from the Wage Security Fund and delete obsolete references in the agency’s insurance cancellation notification rules.
Employment of Minors. The proposed rule amendment would:
- implement House Bill (HB) 2826 enacted in 2009, which removes the requirement that employers obtain a special permit before employing a minor under 16 years of age until 7 p.m. (9 p.m. between June 1 and Labor Day).
- conform current language in the rules to the provisions of HB 2826, which shifts authority for the issuance of agricultural overtime permits from the Wage and Hour Commission to the Commissioner of the Bureau of Labor and Industries
- clarify that minors may not be employed to operate or assist in the operation of power-driven farm machinery unless the employer has obtained an employment certificate as required and the minor has received required training in the operation of such machinery.
Rest and meal periods. The proposed rule amendment would address the provision of rest and meal periods to employees, including factors to be considered in determining when an employee is prevented from receiving regularly scheduled meal and rest periods.
Prevailing Wage. The proposed rule amendments would make permanent the temporary rules currently in place regarding prevaling wage rates.

Click here for more information on BOLI's proposed rule changes, including information on how to make public comment and the deadlines for doing so.

Oregon Court of Appeals Upholds Claim of Negligent Failure to Investigate

P.K. Runkles-Pearson — Thu, 05 Nov 2009 10:45:41 -0800

In Steele v. Mayoral et al., the Oregon Court of Appeals ruled that a plaintiff could take to the jury her claim that her employer had failed to prevent sexual harassment by her supervisor by not investigating earlier incidents about the supervisor’s relationships with other employees.

The plaintiff, a high school guidance counselor, was dating her supervisor, the principal. She complained that the supervisor had sexually assaulted her during a date. The school district investigated the complaint and recommended the supervisor be terminated. The plaintiff sued. In addition to alleging sexual harassment and retaliation, she also alleged that the school district had been negligent by not terminating her supervisor before the incident had even occurred. She based that allegation on three earlier incidents involving the principal’s relationships with other school district employees. The juicy allegations involve (1) the principal’s affair with the wife of another principal in the same school district, (2) the principal’s complaint that another district employee was “stalking” him after he “rebuffed her advances,” and (3) yet another employee’s allegation that she was dating the principal when he slept with yet another employee. The plaintiff alleged that the school district should have investigated those incidents – and that if it had, it would have terminated her supervisor years before.

The trial court dismissed the plaintiff’s negligence claim, but the Court of Appeals reversed, ruling that a jury should be able to decide whether or not the school district’s failure to investigate had caused the sexual harassment. We don’t know what a jury would say about liability in this case, but it is a sobering reminder to employers to investigate all incidents of potential misconduct involving the workplace.

Supreme Court to Rule on Authority of Two-Member NLRB

Dennis Westlind — Wed, 04 Nov 2009 07:47:07 -0800

This week the U.S. Supreme Court agreed to hear an appeal in New Process Steel v. NLRB and determine whether the National Labor Relations Board (NLRB or "the Board") has the authority to decide cases with only two sitting members.

The NLRB is the independent federal agency that administers the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. Typically, the NLRB is made up of five members, appointed by the President. There are currently three vacancies on the Board, leaving only two sitting members. The statute governing the NLRB's powers (29 U.S.C. § 153(b), if you really care) provides that "three members of the Board shall, at all times, constitute a quorum of the Board." Nevertheless, the two remaining Board members have decided a number of cases, under the theory that as long as those two members agree, they would have formed the majority of any three-member quorum anyway.

The Court will resolve a split between the federal appellate courts. In New Process Steel v. NLRB, (the case on appeal) the Seventh Circuit held that the current two-member NLRB does have the power to decide cases. The First Circuit agreed in in Northeastern Land Services v. NLRB. However, the D.C. Circuit disagreed in Laurel Baye Healthcare of Lake Lanier v. NLRB and rejected the power of a two-member Board to do anything. If you want to read more about this dispute, click here to read New Process Steel's Petition for Writ of Certiorari to the Court.

For most employers, New Process Steel will have little relevance--none of the cases decided by the two-member Board were particularly controversial, and none represented a significant departure from existing NLRB law. The only employers with a significant stake in the outcome of New Process Steel will be those employers whose cases were ruled on by the two-member Board. If the Court reverses New Process Steel, those cases will be reheard by a future three-member panel, and will likely be upheld.

New TSA Regulations Potential "Gotcha" For Employers Interviewing Out-of-Town Candidates

Ryan Gibson — Tue, 03 Nov 2009 08:22:01 -0800

As the economy rebounds (we hope) and hiring begins again, employers flying out-of-town job candidates in for interviews will need to be wary of new Transportation Security Administration ("TSA") regulations that require anyone booking air travel to provide the passenger’s date of birth and gender. Employers who are not careful about how they implement this rule may increase their exposure to possible discrimination claims from rejected and disgruntled candidates.

49 C.F.R. § 1540.107(b), part of TSA's Secure Flight program, requires an individual to provide name (as it appears on the ID to be used at the airport), date of birth (DOB), and gender when “the individual, or a person on the individual’s behalf, makes a reservation for a covered flight.” The purpose of the rule is to reduce the number of 4-year old girls and other "false matches" who accidentally end up on TSA “no fly” lists. While the regulation was enacted in December 2008, airlines have been slow to implement the necessary upgrades to their reservation systems. Some airlines may not be asking for the name, DOB and gender information now, but TSA expects all airlines to be in compliance by early 2010.

Risks of Discrimination and Invasion of Privacy Claims

While the Age Discrimination in Employment Act ("ADEA"), and similar state laws, do not expressly prohibit asking about a candidate's age during the application process, most employers already know this is a risky no-no. EEOC regulations state that employer requests for DOB or age will be “closely scrutinized." Just asking a candidate for a date of birth and subsequently denying him or her the job may create an inference of discrimination, which can make any lawsuit much more difficult (i.e., expensive) to win. For that reason, employment law attorneys almost always advise clients to refrain from requiring DOB on job applications or asking applicants about their age.

Providing gender information to airlines may not affect the risks of gender-based claims (the applicant's gender will almost always be obvious and you probably will not even need to ask the applicant). Oregon employers should be mindful, however, of state laws prohibiting discrimination based on sexual orientation, which Oregon regulations define to include "gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.” The TSA and some advocacy groups are already debating the impact that the Secure Flight gender requirement may have on transgendered or gender-transitioning passengers. It could pose problems if, for example, the individual's government-issued ID does not reflect gender or if the stated gender does not match appearance. This may present more difficulties for the passenger at the airport, rather than an employer booking travel, but employers should nevertheless be mindful of the law.

Finally, aside from risks of discrimination claims, applicants may have (legitimate) concerns about privacy or possible identity theft when providing DOB, gender, legal name, and other identifying information to airlines and prospective employers. While the TSA is implementing its own privacy-protection measures, it is not clear what airlines (or employers) must do to protect identifying information.

How Can Employers Comply With Conflicting Requirements?

There doesn't appear to be any guidance from the TSA, EEOC or any other agency regarding how employers should comply with these apparently conflicting legal requirements. Until there is some official guidance (don't hold your breath), employers should consider some of the following common-sense safeguards:

Hiring managers and Human Resources personnel involved in the interviewing and hiring process should avoid booking air travel for job applicants if possible.
Consider using outside travel agents to book travel for candidates. Develop a written policy (don't handle it case-by-case!) ensuring those outside travel agents do not forward candidate DOB or gender information to hiring managers. Instruct outside travel agents on the policy.
For larger employers with in-house travel agents, create written policies to ensure those agents do not provide gender and age information to any hiring managers or HR, especially those actually involved in interviewing and evaluating the candidate.
Create written policies requiring those who book travel (whether in-house or outside travel agents) to inform candidates about why TSA requires the information and about how it will be (and will not be) used. Specifically, candidates should be told clearly that they are only being asked for the information because TSA regulations require it, that the information is only for arranging travel and will not be used as part of the interview or evaluation process, that it will not even be made available to hiring managers involved in hiring, and that it will be kept secure and confidential.
If candidates refuse to provide the DOB or gender information, or if you are uncomfortable asking, you can ask the candidate to book his or her own travel and be reimbursed. (Remember, it's the person booking the travel who must provide the DOB and gender information; if the candidate does it him or herself, you won't need to know).
Create written policies to keep applicants' gender and DOB information secure and confidential to protect applicants’ privacy and exposure to possible identity theft. Do not keep this information in a personnel file. Ensure that any outside travel agents, airlines, or other vendors are taking appropriate steps to safeguard passenger identifying information.

President Obama Signs Expansion of FMLA Leave for Military Families

Dennis Westlind — Fri, 30 Oct 2009 07:50:56 -0800

Earlier this week, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA), a federal law that is enacted each fiscal year to specify the budget and expenditures of the United States Department of Defense. This year, the NDAA contains two expansions of the exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA):

Caregiver Leave: Employees could previously take up to 26 weeks of unpaid leave to care for a family member (spouse, child, parent or next of kin) who is an active service member currently undergoing treatment for a serious injury sustained on active duty; that leave has been expanded to allow leave to care for a veteran family member undergoing medical treatment, recuperation or therapy for a serious injury or illness that was sustained any time during the five years preceding the treatment.
Exigency Leave: Employees could previously take up to 12 weeks of unpaid leave for qualifying exigencies relating to a reservist family member's call to active service; that leave has now been expanded to provide exigency leave benefits to the family of a member of any armed service on active duty.

These expansions became immediately effective when the law was signed.

For more information on the military leave provisions of FMLA, check out this Fact Sheet on FMLA Military Family Leave Entitlements from the Department of Labor Wage and Hour Division. While the fact sheet doesn't reflect these recent expansions, it does provide valuable information, including who is a qualifying family member and what is a qualifying exigency.

GINA Requires Employers to Post Notice, Review Policies and Procedures

Dennis Westlind — Mon, 26 Oct 2009 07:41:34 -0800

The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009. Is your workplace ready? Employers will soon be required to post a notice stating that they do not discriminate on the basis of genetic information, under proposed regulations interpreting GINA.

If you don't already have one, click here to download the full "EEO is the Law" poster, which describes all of the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. If you already have a copy of "EEO is the Law," then you can download and print the "EEO is the Law Supplement," which contains GINA information. (If you don't want to print it yourself, or if you need the poster in Arabic, Chinese or Spanish, click here to order a copy from the EEOC.)

What else should employers do to prepare for GINA? Here's a short, non-exhaustive list of things you can do to get ready:

Add appropriate language to your EEO and anti-discrimination policies stating that you do not discriminate on the basis of genetic information;
Review your employment applications and employee questionnaires to make sure you are not intentionally or inadvertently requesting information about an applicant’s/employee’s family medical history;
If you need to get information about a family member’s illness for purposes of determining whether a request for leave qualifies for Family and Medical Leave Act or state law leave coverage, make sure it is limited to only what you need to know to make the determination;
Determine whether incoming medical information you receive on an employee contains genetic information (defined as: genetic tests of an individual or his/her family members; the manifestation of a disease or disorder in family members of an individual, genetic services and participation in genetic research by an individual or his/her family member) and if so, maintain and treat the information as you would a confidential medical record for ADA purposes – i.e., maintained in a separate confidential medical file with proper limitations on disclosure.
Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to a litigation discovery request, like a subpoena. If you require a court order compelling disclosure before releasing the information, this should protect you.
If you are a self-insured entity, make sure that you do not request or require or use purchased genetic testing or information for purposes of underwriting or to determine an individual’s contribution/premium amounts. Note that you can use genetic test results for purposes of making a determination regarding payment, though.
Also note that genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.