The poster can be found here: http://www.portlandonline.com/fritz/index.cfm?c=55242&a=472271
A draft letter to be used by employers to notify employees about the new law is also available. It can be found here: http://www.portlandonline.com/fritz/index.cfm?c=55242&a=472269
Unless you are interested in a lawsuit. A recent EEOC news release describes a case in which the employer was alleged to have asked disability-related questions of job applicants including whether the employees had “health problems” or were on any medications and if, so, which ones. In addition, the employer was alleged to have fired an employee a few days after he suffered a seizure at work, despite the employee’s prior satisfactory performance and a release from his doctor. Ultimately, the employer paid $25,000 to settle the case. http://www.eeoc.gov/eeoc/newsroom/release/12-4-13.cfm
While this settlement may not be large when compared to some cases, it does serve as a reminder that employers cannot ask applicants medical questions, or require a medical examination, until after a conditional job offer has been extended and, then only if all employees in the same type of job also have to answer the questions and/or take the exam.
Last week, in Hernandez-Nolt v. Wash. County, 2013 Ore. App. LEXIS 1393 (2013), the Oregon Court of Appeals reversed the trial court’s dismissal of a constructive discharge claim. The employer had successfully argued to the trial court that the employee’s claim was barred by the statute of limitations. The Court of Appeals reversed that decision and sent the case back to trial.
Specifically, the Court of Appeals explained that a plaintiff’s constructive-wrongful discharge claim does not accrue, and the statute of limitations does not begin to run, until the discharge happens. In this case, the plaintiff was an employee of the county. The County argued that the employee’s employment terminated when she resigned her position and transferred from one County department to another County department (which, if correct, would make the employee’s claims untimely). The employee argued that her employment did not terminate until her employment with the County entirely terminated (not just within a particular County department). The Court of Appeals agreed with the employee:
“For purposes of a wrongful discharge claim, a discharge does not occur—that is, the employee does not ‘leave the employment’—until ‘the employment relationship between the employee and the employer ends.’ . . . Accordingly, a discharge does not necessarily occur when an employee transfers from one of the employing entity’s departments to a position in another department within the same employer.”
For employers with multiple locations and/or departments, this decision should be useful in assessing when a wrongful discharge claim accrues.
In a recent case from the 10th Circuit Court of Appeals, an employee’s comments on Facebook played a key role in the employee’s termination and the employer’s defense of the employee’s retaliation claim. In Debord v. Mercy Health System of Kansas, the employee made three public comments on Facebook during a single workday. The employee posted about: being paid $600 for hours she did not work; her boss being a “snake;” and her boss needing to “keep his creepy hands to himself.” When HR became aware of the comments, it undertook an investigation. During the investigation, the employee declined to file a formal sexual harassment complaint. Nevertheless, HR interviewed the employee’s boss and other employees and determined that the boss had not violated the employer’s harassment policy.
The investigation also initially revealed that the employee’s complaints about pay were false. During the investigation, the employer also discovered that the employee was sending text messages to other employees in which she was discussing the investigation and in which she accused her boss of destroying evidence (although HR previously told the employee that it had collected all evidence related to the overpayment issue). Ultimately, the employee was fired for dishonesty, disrupting the workplace, and inappropriate behavior. The employee sued claiming she was sexually harassed and fired in retaliation for complaining about the harassment. The employer obtained summary judgment from the District Court and the employee appealed.
One of the arguments that the employee made on appeal was that her Facebook post constituted a complaint about sexual harassment, and that she was fired in retaliation for such post. The Court of Appeals disagreed, finding that the Facebook post “was not in accordance with [the employer’s] otherwise flexible reporting system for sexual harassment complaints” and that the post did not provide notice to the employer because the employer only became aware of the Facebook post when the employee’s boss brought it to HR’s attention. Further, the employee declined to file a formal complaint based on the Facebook post (suggesting that the employee did not have a legitimate complaint about harassment). On this ground, the Court affirmed summary judgment for the employer. http://www.ca10.uscourts.gov/opinions/12/12-3072.pdf
Based on the 10th Circuit’s decision, an employer who becomes aware of social media content that suggests an employee is being harassed should take action to investigate, just as it would if it learned about harassment “in person” from an employee or other source.
The EEOC has settled its lawsuit against a popular Honolulu restaurant, Señor Frog’s. According to the lawsuit, several male Señor Frog’s employees, including managers, subjected multiple female employees to sexual harassment and retaliation over a five year period. Specifically, the EEOC alleged that male employees made sexual comments and advances, and subjected the female employees to unwelcome physical contact. Then, when the female employees complained, they were subjected to retaliation by being passed over for promotions, assigned less favorable shifts and being paid less than their male counterparts. The cost to settle this lawsuit? $350,000. The restaurant is now closed.
This type of lawsuit, which should now be all too familiar to readers of this employment law blog, is a reminder that employers must train their employees to prevent instances of sexual harassment, discrimination and retaliation.
Just in time for flu season, OSHA has information for employers and employees about how to reduce the spread of the flu in workspaces. Tips for employers include: promoting vaccination, encouraging sick workers to stay home, promoting hand hygiene and cough etiquette, and keeping the work place clean. More information may be found here: https://www.osha.gov/dts/guidance/flu/index.html
The EEOC reported today that a Lexus dealership will pay $50,000 to settle an employment discrimination lawsuit. According to the lawsuit, the car dealership strictly enforced its dress code policy without granting reasonable religious accommodations, and refused to hire Gurpreet Kherha, a member of the Sikh faith, because of its policy. Kherha’s religious beliefs require him to wear a beard, uncut hair and a turban. When he applied for a sales associate job, the dealership requested that he shave his beard, and he refused to comply because of his religious beliefs. The dealership refused to hire him. The EEOC claimed that the dealership violated Title VII which prohibits discrimination on the basis of an employee’s or applicant’s religion, and requires, where appropriate, that employers provide reasonable accommodations to sincerely-held religious beliefs or practices. Under the settlement, the dealer will not only pay Kherha $50,000, but will also be enjoined from future discrimination on the basis of religion, and must provide anti-discrimination training to both employees and management. The EEOC’s report does not state whether the dealership is also required to employ Kherha.
Do you use independent contractors in your business? Have you done any analysis to confirm that the individuals you call independent contractors are not employees? Regardless of your answer, a recent Department of Labor announcement is a reminder that correcting employee misclassification continues to be priority for the DOL.
The DOL announcement concerns a partnership with the NY Labor Department and NY Attorney General’s Office to reduce misclassification of employees. According to the DOL, in the last two years, the DOL has secured over $18 million in back wages for workers wrongly classified as independent contractors. The collaboration between the DOL and NY is part of the DOL’s Misclassification Initiative, which aims to prevent, detect and remedy employee misclassification though partnerships with state agencies.
The DOL explains: “Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem, as these employees often are denied access to critical benefits and protections–such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance–to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.”
Oregon has not entered into a memorandum of understanding with the DOL (although Washington has). Nevertheless, the DOL announcement is a reminder to employers to carefully evaluate their independent contractor relationships to confirm that the contractors are properly classified. http://www.dol.gov/opa/media/press/whd/WHD20132180.htm
Recent allegations of bullying and hazing of a Miami Dolphin rookie player by a veteran player, serve as a reminder to employers to consider whether their workplace could benefit from an anti-bullying policy. Bullying is not only bad for morale, but can often form the basis of legal claims for harassment and discrimination, and if not handled properly, retaliation.
What should your policy include? At a minimum: a definition of bullying; examples of prohibited behavior; a complaint process; and assurances against retaliation. One place to start is the American Bar Association’s Model Anti-Bullying Policy which defines bullying as: “persistent, malicious, unwelcome, severe and pervasive mistreatment that harms, intimidates, offends, degrades or humiliates an employee, whether verbal, physical or otherwise, at the place of work and/or in the course of employment.” The ABA policy also lists the following as examples of prohibited workplace bullying:
- Exclusion or social isolation;
- Excessive monitoring or micro-managing;
- Work-related harassment (work-overload, unrealistic deadlines, meaningless tasks);
- Being held to a different standard than the rest of an employee’s work group;
- Consistent ignoring or interrupting of an employee in front of co-workers;
- Personal attacks (angry outbursts, excessive profanity, or name-calling);
- Encouragement of others to turn against the targeted employee;
- Sabotage of a co-worker’s work product or undermining of an employee’s work performance;
- Unwelcome touching or unconsented-to touching;
- Invasion of another’s person’s personal space,
- Unreasonable interference with an employee’s ability to do his or her work (i.e.,overloading of emails);
- Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets;
- Conduct that a reasonable person would find hostile, offensive, and unrelated to the employer’s legitimate business interests.
Your policy should also give employees information about how to report bullying and how your company will handle complaints. You will also need to educate and train management to enforce the policy, unlike the Miami Dolphin’s coaching staff, who apparently encouraged veterans to bully and demean rookies. The ABA Policy can be found here: http://www.americanbar.org/content/dam/aba/events/labor_law/2012/03/national_conference_on_equal_employment_opportunity_law/mw2012eeo_eisenberg2.authcheckdam.pdf
Coverage of the Dolphins’ bullying scandal can be found throughout the media. For example: http://www.cbsnews.com/8301-505263_162-57611735/dolphins-management-falls-under-scrutiny-in-football-bullying-scandal/
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that establishes rights and responsibilities for uniformed service members and their civilian employers and applies to all employers. USERRA is intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.
Generally, USERRA permits covered employees to take leave for military service and ensures reinstatement following leave. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.
USERRA also requires employers to provide notice of the rights, benefits and obligations of employers and covered employees, which may be done by posting the Department of Labor’s poster: “Your Rights Under USERRA”, where employee notices are customarily placed. However, employers are also free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail). You can access the notice here: