Your Government at Work

Yesterday, the EEOC announced that it had secured more than $525 million for victims of discrimination during 2015.  Of that amount, about $356 million was obtained through mediation, conciliation and settlement (as opposed to through litigation).

The news release is here:

The EEOC 2015 Performance and Accountability Report is here:


Dying on the job ≠ Quitting

Pursuant to ORS 652.140 wages are due to an employee who quits without 48 hours advance notice within 5 days, excluding Saturdays, Sundays and holidays. Today, the Oregon Court of Appeals ruled that an employee who dies on the job does not “quit” for purposes of the final paycheck rule.  As a result, the employee’s estate does not have a claim for unpaid wages and penalties under ORS 652.140 because the employer did not pay the estate the deceased employee’s wages within 5 days after he died.  As the Court explained:

Although both dying and quitting necessarily involve the cessation of work, “quitting” would not generally be understood to include stopping work involuntarily, either because the employer fires the employee or because the employee involuntarily dies while still employed. Rather, quitting is generally understood to be an intentional and voluntary act—an employee quits when he or she chooses to “give up employment.”

Accordingly, the Court held “ the term “quit,” as used in ORS 652.140(2), means an intentional and voluntary act and does not refer to a person who involuntarily dies while employed.”

Note, ORS 652.190 sets out the procedure for payment of wages when an employee dies and provides for different penalties than ORS 652.140.

Women & Men & Rude Behavior

In case you were wondering, it continues to be unlawful for employers to treat male employees more favorably than female employees when it comes to discipline for similar behavior.  In a recent case out of Florida, informal complaints were made about a female doctor’s “bedside manner.”  The doctor was described as being curt and rude on two occasions, but her behavior did not impact patient care.  Complaints were also made about a male doctor for angry outbursts, use of offensive or foul language directed at staff, and for threatening nurses.  The male doctor’s behavior did impact patient care, because nurses were afraid to call him.  The female doctor was able to avoid summary judgment on her discrimination claim because the evidence showed that she was treated less favorably than the male doctor: she was terminated for her allegedly rude behavior while the male doctor received counseling, was sent to anger management class, and then received a 90 day termination notice after these attempts to fix his bad behavior failed.

The case is available by subscription: Scott v. Sarasota Doctors Hosp., Inc., 2015 U.S. Dist. LEXIS 150408 (M.D. Fla. 2015).

Employer Sued for Rejecting Applicant on Methadone

The ADA does not protect employees who are currently using illegal drugs. However, the ADA does protect employees who are no longer using drugs illegally and are receiving treatment for drug addiction. Accordingly, an employer may face liability if it rejects a qualified applicant because the applicant is on methadone as part of a medically supervised treatment program, especially where a hiring manager tells the applicant: “I’m sure we don’t hire people on methadone, but I will contact my supervisor.”

Fraudulently Induced Release of Claims Not Knowing or Voluntary

In case you were wondering, employers should not misrepresent the circumstances of an employee’s termination when obtaining a release of claims. In a recent case in Colorado, an employer told an employee who was out on medical leave and completely incapacitated, that it was having financial difficulties, needed to cut jobs, that her job was being eliminated, and that her layoff was not performance based. The employer mailed the employee information about severance and then sent the employee’s supervisor to her house to pick up a signed release. The employee later discovered that the employer was advertising her position and that, contrary to the employer’s claim of financial distress to support a reduction-in-force, her position had not been eliminated – a younger employee had been hired to do her job.

The employee sued for age discrimination and the employer sought to use the release to dismiss the case. The court found, however, that the employee alleged enough facts to show that the release was based on fraud, i.e., the employer’s lies about its financial situation and claimed need to reduce staffing, and thus invalid because it was not knowing or voluntary.

Psych Test for Obsessed Employee

Under the ADA, an employer may require an employee to undergo a fitness-for-duty evaluation when it is job related and consistent with business necessity. A recent case out of New York found that sending an employee to an independent psychiatrist for an evaluation did not violate the Rehabilitation Act (same standard for testing as the ADA). The court held that the employer had a sufficient basis to obtain a medical exam to determine if the employee posed a threat to the safety of her co-workers after the employee was involved in an ongoing dispute with a co-worker and engaged in a long campaign against the co-worker that included sending multiple letters to management about various ways in which the employee believed the co-worker was breaking the rules including comments about the co-worker’s schedule, overtime, work assignments, clothing and personal life, a claim that the conflict with the co-worker was causing mental and physical pain to the employee, and the employer’s discovery that the employee was tracking the co-workers movements.

It is not entirely clear whether this holding would be reached in the 9th Circuit, where the business necessity standard may be met (even before an employee’s work performance declines) “if the employer is faced with ‘significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.’” Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010)(internal quotations omitted).

Bottom line: the business necessity standard is quite high and employers should be able to identify legitimate, non-discriminatory reasons to doubt an employee’s performance before requiring medical exams.

BOLI – Uber Drivers = Employees

BOLI issued an Advisory Opinion today that concludes that Uber drivers are employees, not independent contractors. BOLI used facts from California administrative and court cases to analyze whether the drivers were contractors or employees under Oregon’s six factor test. BOLI concluded that Uber drivers are employees because:

  • Uber exercises a significant degree of control over driver’s actual work;
  • the driver’s investment is negligible compared to Uber’s multi-million dollar infrastructure;
  • each driver’s profit and loss is dependent upon Uber making hours available, not on the managerial skills of the worker;
  • drivers do not exercise managerial and business like skills that would indicate they are operating an independent business;
  • drivers may work for Uber indefinitely, rather than on a project by project basis;
  • drivers perform work that is integral to the business;

The Opinion is not binding. However, it strongly indicates BOLI’s position on this issue.

Oregon Shortens Term for Noncompetition Agreements

House Bill 3236 amends Oregon’s statute governing non-competition agreements for employees (ORS 653.295) to shorten the term of an enforceable noncompetition agreement from 2 years to 18 months from the date of an employee’s termination.  HB 3236 does not make any other changes to ORS 653.295.  The amendment applies to noncompetition agreements entered into on or before January 1, 2016.

Office of Open Records, Not Open to hiring “Old” Candidate

The EEOC just sued the Commonwealth of Pennsylvania’s Office of Open Records for age discrimination. The agency allegedly refused to hire a well-qualified candidate who was over 40, graduated from law school with honors, and had 30 years of legal experience (which included 17 years with the Pennsylvania Human Relations Commissions) for a vacant appeals officer position. Instead, the agency hired a significantly less experienced candidate who was 15 years younger than the rejected candidate.   According to the EEOC’s press release, during the candidate’s second interview, the executive director of the agency expressed concern that the candidate would not have a long tenure since he had already worked for the commonwealth for 17 years and might be nearing retirement. As the EEOC explained: “Refusing to hire a qualified candidate based on speculation about his possible future retirement plans is illegal age discrimination, plain and simple.”

Let the Office of Open Record’s close mindedness be a lesson – age is a protected class, and comments about retirement and shortened tenure based on years on the job do not have any place in the interview process or the office (unless the office is hosting a retirement party).

AARP Wins Summary Judgment on Age Discrimination Claim

When you think about employers who might discriminate on the basis of age, the AARP is not a likely candidate. In fact, part of the AARP’s mission is to combat age discrimination in the workplace. The AARP’s mission did not stop a former employee from alleging that she was terminated because of her age. The 60-year-old employee had worked for the AARP for some time when her job duties were expanded to include responsibilities for financial oversight and preparation of financial reports. The employee struggled with the new tasks and the AARP provided training to assist the employee with the performance of her new duties. Despite the training, and a detailed performance improvement plan, the employee could not adequately handle the new duties and was terminated. The employee was not replaced by a younger employee, although the employee claimed her supervisor made one remark about hiring a younger worker. The court granted the AARP’s motion for summary judgment because the employee could not show that her age was the “but for” cause of the AARP’s decision to terminate her employment.  Instead, it found that the AARP had established that the employee was terminated for poor performance.

The case illustrates a tricky issue: How does an organization devoted to helping a particular protected class, handle the termination of an employee who is a member of that same protected class? Like any other employer – by clearly communicating performance expectations, providing training and assistance to an employee who is struggling to perform so that the employee has an opportunity to succeed, and by documenting the deficiencies and efforts to improve performance.