Oregon Gets $500,000 for Worker Misclassification Detection

Today the Department of Labor announced $10.2 million dollars in funds to implement or improve worker misclassification detection and enforcement initiatives in unemployment insurance programs.  According to the DOL, the funds will be used to increase the ability of state unemployment insurance tax programs to identify instances where employers improperly classify employees as independent contractors or fail to report the wages paid to workers at all. Oregon is one of 19 states receiving funds.  More information, and a list of states can be found here:  http://www.dol.gov/opa/media/press/eta/ETA20141708.htm



Beginning January 1, 2015, employers who are covered by OSHA have increased reporting requirements for on-the-job injuries.  Employers will now have to report in-patient hospitalizations, amputations, and loss of an eye within 24 hours of the work-related accident.  Currently, employer reporting obligations are limited to work-related fatalities or where three or more workers were hospitalized in the same incident.   More information and a handy flowchart can be found here: http://social.dol.gov/blog/when-a-worker-loses-an-arm-who-knows-about-it/


Employer Medical Release Too Broad

Earlier this week, the EEOC sued an employer for firing an employee who refused to complete an over broad medical release and because the release requested information about the employee’s family medical history.

The employee was asked to complete the release in connection with a “fitness for duty” examination.  According to the EEOC’s lawsuit, the release required that the employee agree to the disclosure of “all information concerning medical care, advice, treatment, or supplies provided to me,” and “all information related to or forming the basis of any medical, mental health and/or substance abuse evaluation, recommendations and/or determinations.”  The employee was also asked to provide information regarding his family history involving psychiatric, chemical dependency, suicide, and major medical issues. When the employee refused to provide the requested information, he was fired.

The EEOC did not challenge the employer’s right to request and/or require a fitness for duty examination.  However, the lawsuit alleged that the over broad medical questions violated the ADA’s rules against making disability-related inquiries and the questions about family medical history violated the Genetic Information Nondiscrimination Act.  Employers can ask questions about an employee’s medical history if they are job-related and consistent with business necessity.  However, except in very limited circumstances, employers do not need to know about employee family history or other genetic background.  http://www.eeoc.gov/eeoc/newsroom/release/9-9-14.cfm

“Fitness for Duty” Certification after Medical Leave

Most employers require employees to provide a “fitness for duty” certification in order to return to work after medical leave.  However, unless an employer provides a list of essential functions of the employee’s job and requests that the certification address the employee’s ability to perform those essential functions, all the certification must state is that the employee can return to work.  And, pending any requested clarification from the employee’s doctor, the employer must allow the employee to return to work or face a claim for interference with the employee’s FMLA right to reinstatement.  In a recent case from the Third Circuit Court of Appeals, an employee provided her employer with a doctor’s note that said she could return to work. The employee sought to return, but indicated that because of how her hand was splinted, she would only be able to type with 2 fingers on the injured hand and would be slower than usual. The employer refused to permit the employee to return to work unless the employee could do her job 100% and sent the employee back to her doctor for more information.  The Court found that the employee could go to trial on the issue of whether her employer interfered with her FMLA right to reinstatement when it refused to permit her to return to work based on the original certification.  Budhun v. Reading Hospital and Medical Center, Case No. 11-4625 (3rd Cir. 2014).

The lesson of this case for employers is to give an employee a detailed job description to give to their doctor when obtaining a “fitness for duty” certification after medical leave to enable the doctor to evaluate whether the employee can perform the job’s essential functions upon their return.  The case can be found here: http://scholar.google.com/scholar_case?case=15345350352760643538&hl=en&as_sdt=6&as_vis=1&oi=scholarr


Risks of Misclassifying Employees as Independent Contractors, Again

In Slayman v. FedEx Ground Package Sys., 2014 U.S. App. LEXIS 16623 (2014), plaintiffs, former FedEx drivers in Oregon, brought class actions against FedEx, alleging FedEx made illegal deductions from their wages, in violation of an Oregon’s wage statute. FedEx filed a motion for summary judgment, arguing the wage claims failed because the drivers were independent contractors, not employees. The lower court granted FedEx’s motion. On appeal, the Ninth Circuit reversed, holding that, as a matter of law, the drivers were employees. The Ninth Circuit based its decision on a number of factors, including that: the drivers must wear FedEx uniforms; drive FedEx-approved vehicles; adhere to FedEx grooming standards; FedEx tells its drivers what packages to deliver, on what days, and at what times, and; although drivers may operate multiple delivery routes and hire third parties to help perform work on those routes, they may do so only with FedEx’s consent. Based on these facts, the Ninth Circuit found that FedEx had the right to control the drivers such that the drivers could not be independent contractors under Oregon’s “right to control test.” The Ninth Circuit also found that the drivers were employees under Oregon’s economic-realities test, which is broader than the right-to-control test, covering “situations where the worker is not directed or controlled by the employer but, nevertheless, as a matter of economic reality, depends on the employer.”

This new decision, and many others like it, show that employers need to be very careful when they hire independent contractors. In such cases, the burden is on the employer to show that the workers satisfy all the requirements to be properly classified as independent contractors.

Employee Discussions on Facebook about Employer Tax Mistakes are Protected

Employers occasionally make errors on paychecks. A recent NLRB decision reminds employers that the National Labor Relations Act can protect employee conversations about those mistakes – even if the conversations take place on social media.  In Three D, LLC, the employer fired two employees for their participation in a Facebook discussion about the employer’s withholding mistakes which mistakes resulted in additional state income tax payments from the employees.  One of the employees posted a number of comments about how the employer’s ineptitude resulted in her payment of additional tax, another employee “liked” the comment, and other employees and friends made additional comments.  The employer terminated the commenting employee and told her it was because her Facebook comment indicated she was not “loyal enough.” The employer then interrogated the other employee about why he “liked” the first employee’s comment, the identity of other posters involved in the conversation, and whether he posted anything negative. The employer then fired that employee because of his involvement in the Facebook conversation.

The NLRB found the Facebook discussion was concerted activity –  multiple employees were discussing terms and conditions of employment (the employer’s calculation of employees’ tax withholding) and the discussion was part of an “ongoing sequence” of discussions that began in the workplace and continued on social media.  And, because the employees discussed raising the tax issue at a staff meeting, the NLRB found that the communications were also protected because the employees were seeking to initiate, induce or prepare for group action.  The NLRB rejected the employer’s argument that the comments were defamatory or disloyal and thus not protected, in part because the employees were not accusing the employer of “pocketing employees’ money” or other wrongdoing, and because the comments were posted on a personal Facebook page and not intended for view by the public.

The NLRB also took issue with the employer’s Internet/Blogging Policy which prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers,” because it found that this language would reasonably tend to chill employees from engaging in concerted activities.

The NLRB decision reminds employers to tread carefully when firing employees based on on-line communications about work.  The decision is here: http://www.nlrb.gov/case/34-CA-012915


Employers’ Duty to Protect Employees from Sex Discrimination Extends to Customer Misconduct

A new lawsuit filed by the EEOC against warehouse retail giant Costco demonstrates that a hostile work environment can be created not only by supervisors and coworkers, but also by customers. The EEOC alleges that Costco violated Title VII of the Civil Rights Act of 1964 when the company failed to take steps to protect a female employee from unwelcome advances from one of its warehouse member-customers. When the employee complained that a customer was sexually harassing her in the Costco store, obtained a stalking order, and complained about the customer to the police, the EEOC alleges that Costco management “yelled at her and told her to be friendly to the customer.” That is the conduct from which lawsuits are born.

Employers should train their supervisors to take prompt and effective measures to investigate and effectively respond to complaints about customer misconduct. In such situations, the customer is not always right.

Would You Like Some Unlawful Hostility With Those Fries?

Employers know that the law does not require good manners in the workplace. However, at a certain point, it should be obvious that uncivil behavior is not merely “boorish,” but unlawful. Case in point, the EEOC’s recent lawsuit against MountainKing Potatoes. The EEOC claims that MountainKing created a hostile work environment by allowing managers to sexually harass female employees and unlawfully retaliated against those who complained about the sexual harassment. According to the lawsuit, managers repeatedly subjected women farmworkers to inappropriate sexual touching, comments, gestures and propositions. Then, when women complained about the mistreatment, the company punished them in various ways, including termination or assigning them to the least desirable assignments and workstations as retaliation.

A good rule of thumb for employers is to train your supervisors to treat workers with the same dignity, respect and civility that the supervisors would like their own friends and family members to be treated.

Nonprofits Must Obey the Same Anti-Discrimination Laws as For-Profit Businesses

The EEOC has announced a settlement of claims it asserted against Goodwill Industries. Yes, the same Goodwill Industries that provides job training, employment placement services, and other community-based programs for people who have disabilities.

In its lawsuit, the EEOC charged that Goodwill retaliated against a worker at one of its stores, by firing her after she testified on behalf of another Goodwill employee in a previous federal sex and age discrimination lawsuit. As you know, it is illegal under Title VII the Age Discrimination in Employment Act (ADEA) to discriminate against employees or applicants because of their participation as a witness in another person’s employment discrimination lawsuit. After the EEOC sued Goodwill in U.S. District Court for the Western District of Oklahoma, the parties eventually entered into a consent decree settling the suit. The decree requires Goodwill to take steps designed to prevent future discrimination, including notification to employees, revision and dissemination of anti-discrimination policies, and live training on anti-retaliation law, in addition to paying $100,000 monetary award.

Light Duty and Pregnancy

We posted in the past about an employer’s obligation to provide “light duty” to a pregnant employee.   The new EEOC Pregnancy Guidelines clarify the EEOC’s position on this issue.  The Guidelines state that an employer is required to provide light duty under the Pregnancy Discrimination Act (PDA)  “if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work.  An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.”

Although the EEOC’s position on this issue is not law, courts often give deference to agency interpretations of the laws they enforce.  As a result, any employer who is covered by the PDA (15 or more employees), should be consider revising a light duty policy that solely provides light duty to employees with work related injuries.  http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm