World of Work

Oregon Legislature Passes Five Employment-Related Bills in Special Session

Dennis Westlind — Mon, 15 Mar 2010 06:34:34 -0800

The Oregon Legislature recently completed its 2010 Supplemental Session. Among the bills passed by the legislature include five employment-related bills. Click on the bill number to download a copy of the actual bill:

SB 996: Expands protections for public employees who report law violations or safety dangers to include discussions on those topics with elected officials and auditors (effective March 4, 2010)
SB 1045: Prohibits employers from using credit histories for pre-employment screenings or promotions (effective July 1, 2011) (click here to read the World of Work's coverage of the bill)
HB 3651: Applies prevailing wage law to construction and installation of solar energy systems on public property (effective January 1, 2011)
HB 3652: Allows electrical apprentices to work without direct supervision after completion of 5,000 hours of training for a license requiring 6,000 hours of training (effective January 1, 2011)
HB 3686: Allows the wearing of religious dress while engaged in the performance of duties as a public school teacher, and amends undue hardship test under the 2009 Workplace Religious Freedom Act as it applies to a classroom environment (effective July 1, 2011)

$2 Million Dollar Consent Decree Against Tire Chain - What Lessons Learned for Employers?

Dennis Westlind — Fri, 12 Mar 2010 07:33:31 -0800

Earlier this week, a federal judge approved a $2 million consent decree, finally settling an Equal Employment Opportunity Commission (EEOC) suit alleging that the Les Schwab Tire Center violated Title VII by discriminating against women in its 420 stores in California, Idaho, Montana, Nevada, Oregon, Utah, and Washington. Click here to download a copy of the EEOC v. Les Schwab Consent Decree.

The consent decree comes out of a lawsuit filed by the EEOC alleging that Les Schwab had a pattern and practice of hiring men for sales and service positions (such as tire changers and brake and alignment techs), while hiring women for less-desirable administrative positions. The EEOC also alleged that promotions to store management positions were only made from the male-dominated ranks of the sales and service employees. The $2 million will be shared by an estimated 200 women who filed applications for sales and service positions and were turned down by the tire chain. Les Schwab also agreed to make its best efforts to hire women into service and sales positions in proportion to their availability in the qualified applicant pool, affirm its commitment to equal employment opportunity, achieve a diverse workforce, review its recruiting and hiring procedures, and train its employees on equal employment opportunity issues.

The Les Schwab case illustrates a difficult reality that many employers face: certain industries are, for various non-discriminatory reasons, dominated by employees of one sex. While that is not necessarily proof of sex discrimination, the EEOC (and plaintiff's lawyers) absolutely look at such industries very, very carefully for signs of discrimination. Employers in such industries can take steps to ensure that they don't become the next target of an EEOC lawsuit, including:

Review application statistics to ensure that women and men are hired in proportions roughly equal to the number of qualified female and male applicants
Review promotion statistics to ensure that women and men are promoted in proportions roughly equal to the number of qualified female and male employees
If employees appear to be segregated by sex into different jobs, investigate why this is and ensure that it is not for discriminatory reasons
Ensure that your EEO policies are up to date, appropriately posted, and understood by all employees
Provide EEO training to managers who make hiring decisions
Partner with trade schools and colleges to actively recruit members of the underrepresented sex
Review job descriptions to ensure that any physical requirements are job-related and necessary

Ninth Circuit Issues Split Decisions on Compensation for Travel Time and "Off-the-Clock" Work

Andy Behrend — Fri, 05 Mar 2010 11:30:18 -0800

Employees who drive company vehicles between home and work will find little to cheer about in a recent Ninth Circuit decision . . . unless they live in California. In Rutti v. Lojack Corporation, a three-judge panel refused to relax the rule that commuting time is non-compensable under the Fair Labor Standards Act (FLSA).

The employee, who installed vehicle recovery systems, contended that his travel time between home and worksites was compensable under the FLSA and California law because his employer required him to drive company vehicles and significantly restricted his activities while doing so. For example, the employer prohibited the employee from transporting passengers and engaging in personal pursuits, and required him to drive directly to and from the worksite with his cell phone turned on.

All three judges rejected that argument under the FLSA, holding that use of an employer's vehicle to commute is non-compensable even if it is a condition of employment and that the restrictions placed on the employee's activities were incidental to his principal job activities. The unanimous panel also rejected the employee's argument that his commuting time was compensable under the "continuous workday doctrine," under which an employee's workday generally lasts until he has completed all of his principal activities during the day.

But the Rutti panel parted ways when it came to deciding the issue under California law. A two-judge majority found the tightly-controlled use of the company vehicle was compensable under California law requiring compensation for all time during which employees are "subject to the control of an employer." So the employee's claim under California law goes back to the trial court for further litigation.

The Rutti panel also issued a split decision as to whether certain activities of the employee at home before and after work was compensable off-the-clock work. The full panel rejected the employee's argument that his preliminary (i.e., before work) activities were compensable. Those activities consisted of such things as receiving, mapping and prioritizing jobs and routes assigned to him that day and occasionally filling out simple forms. The court found those activities were either incidental to the employee's principal job activities or so "de minimis" as to be non-compensable.

The court next considered the employee's postliminary activities. (The panel noted that "postliminary" is in the FLSA regulations but not in the dictionary.) Those activities included sending after-work transmissions of data from portable data terminals to the employers' computer system, a process that could be either quick or time consuming. Two of the judges held that the evidence was insufficient to conclude that the postliminary activities were either incidental or "de minimis" and therefore reversed the trial court's grant of summary judgment on that issue.

Senate Jobs Bill: Tax Incentives to Hire Unemployed, but no COBRA Subsidy Extension

Dennis Westlind — Thu, 25 Feb 2010 07:38:48 -0800

Yesterday the U.S. Senate voted 70-28 to approve the Hiring Incentives to Restore Employment (HIRE) Act, a $15 billion bill aimed at creating jobs, helping small businesses, and rebuilding public infrastructure. However, the bill does not include a further extension of the current COBRA subsides for unemployed workers, nor does it increase funding for state unemployment insurance programs. Click here to read the New York Times' coverage of the HIRE Act's passage. Click here to read the full text of the HIRE Act.

The key features of the HIRE Act include:

An exemption from Social Security payroll taxes for private employers for each worker hired in 2010 who previously had been unemployed for at least 60 days;
A $1,000 income tax credit for private employers for each new employee hired in 2010 and retained for at least 52 weeks and claimed on the employer's 2011 income tax return;
An extension of the small business “expensing” tax break for one year, allowing small businesses to continue writing off up to $250,000 of certain capital expenditures instead of depreciating them over time;
A $2 billion Build America Bonds program, which would provide an optional direct subsidy payment in lieu of a tax credit for tax credit bonds issued for certain school and energy projects; and
Expanded federal aid for highway programs.

The HIRE Act now goes to the House of Representatives. Although some House Democrats have grumbled that the bill does not do enough, it is still expected to quickly pass and become law.

While the HIRE Act does not extend the COBRA subsidy or unemployment insurance, extensions of those programs are not off the table. Both of those programs are set to expire on February 28, but yesterday Senate Majority Leader Harry Reid proposed language that would extend the unemployment benefits program to April 5, 2010 and COBRA benefits to March 28, 2010. Click here to read the text of Senator Reid's proposed COBRA extension. We expect to see quick debate on Senator Reid's proposal, either as an amendment to an existing bill or a stand-alone bill, so stay tuned to the World of Work Blog to see if it passes.

Oregon Legislature Bans Workplace Credit Checks

Dennis Westlind — Wed, 24 Feb 2010 07:45:12 -0800

This week the Oregon House voted to prohibit employers from using credit histories for any employment purposes including hiring, discharge, promotion and compensation. The Oregon Senate passed the bill last week, and Governor Ted Kulongoski is expected to sign the bill into law effective July 1, 2010. Click here to download a copy of the bill, SB 1045.

A violation of the new law will be an unlawful employment practice, and an aggrieved employee could either file a complaint with the Bureau of Labor and Industries (BOLI) or file a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney's fees.

The new law will have some narrow exceptions: banks and credit unions, public safety and law enforcement officers, employers who are required by state and federal law to use credit histories for employment purposes, and other employment if credit history is "substantially job-related" and the use of the credit check is disclosed in writing. The bill does not give any guidance on what it means for a credit check to be "substantially job-related," but we're assuming that courts will construe that requirement very narrowly.

Oregon employers who are currently using credit checks as part of their employment processes should make sure they fit into one of the exceptions and, if not, find alternatives by July 1. The law only prohibits the use of credit history, so other background checks - such as criminal background checks - are not affected.

EEOC Proposes New Age Discrimination Regulations

Dennis Westlind — Thu, 18 Feb 2010 07:17:33 -0800

Today the Equal Employment Opportunity Commission (EEOC) releases new regulations that will define employers' "reasonable factors other than age" or "RFOA" defense under the Age Discrimination in Employment Act (ADEA). The new regulations would reflect two Supreme Court cases interpreting the RFOA defense: Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Laboratories (2008). Click here to read the EEOC's Proposed ADEA Regulations.

The Supreme Court held in Smith that employment practices having a disparate adverse impact on workers age 40 and older may violate the ADEA. The Court in Meacham then ruled that when a plaintiff proves such an adverse impact, employers have the burden of proving that the practice that caused the adverse impact was based on reasonable factors other than age.” Since Smith and Meacham, however, there have not been any interpretive regulations under the ADEA to guide employers on the RFOA defense.

The proposed rule defines a "reasonable factor other than age" as "one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances. To establish the RFOA defense under the new rules, an employer must show that the employment practice was both (1) reasonably designed to further or achieve a legitimate business purpose and (2) administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer. The rule also provides a non-exhaustive list of six factors relevant to determining whether an employment practice is "reasonable":

Whether the employment practice and the manner of its implementation are common business practices;
The extent to which the factor is related to the employer’s stated business goal;
The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
Whether other options were available and the reasons the employer selected the option it did.

The EEOC's proposal also explains that the RFOA defense turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.

An employer who is considering a change in employment practices -- such as a layoff, change in employment qualifications, etc. -- should examine the impact of the change to determine whether it may create an adverse impact based on age. If it appears that it may, the employer should then apply the EEOC's six factors to see if it can adequately defend the change as based on reasonable factors other than age. If the change does not appear to pass each of the EEOC's six factors, the employer may want to consider altering the change to reduce the impact or abandoning it altogether.

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.