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.

Bank Customers and Gender Stereotypes

The EEOC recently sued a bank for requiring a transgender employee who lives and identifies as male, to dress as a woman because the bank claimed it would be confusing to customers, although there was no evidence any customers complained. A bank vice president told the employee that the bank might consider employing the employee as a man, if he underwent surgery. The bank also requested that the employee sign a statement agreeing to comply with the bank’s “female dress code” and to room with a female employee on overnight business trips. The employee refused to sign the statement and was fired.

The case was filed under Title VII, which prohibits sex discrimination, including discrimination based on transgender status and gender stereotyping. The bank’s actions would also be illegal under Oregon law, which not only prohibits discrimination on the basis of sexual orientation, but also includes an exemption to dress codes that would likely be implicated based on these claims.

It is not clear how, or if, the bank will defend the claims. It is clear, however, that the bank and its management need some significant diversity and sensitivity training.


Parental Leave Policies for Fathers

A recent settlement between CNN and the EEOC highlights the need for employers to provide gender neutral parental leave policies. The challenged policy provided 10 weeks of paid parental leave to biological mothers and parents who adopted, but only two weeks of paid parental leave to biological fathers. As part of the settlement, CNN changed its policy to provide 6 weeks of paid leave to biological mothers and fathers and to parents who adopt. The lawsuit was based on Title VII. Presumably, the employee was also entitled to unpaid leave under the FMLA. Although, as the NY Times recent article about the CNN settlement and paid leave indicates, many men hesitate to take full advantage of leave available under the FMLA.

http://www.nytimes.com/2015/09/16/business/attitudes-shift-on-paid-leave-dads-sue-too.html?_r=0 (subscription may be required).

Reclassifying Exempt Employees for 2016

It is expected that the new DOL regulations increasing the minimum weekly salary for exempt administrative and executive employees will go into effect in January 2016. The proposed regulations will require employers to pay at least $970.00 per week to meet the salary basis test for the exemption (the duties test will also have to be satisfied).

In anticipation of the change, employers should evaluate all exempt positions with salaries below $970.00 per week and begin to consider which positions justify a raise in pay to maintain the exemption. For those positions that will become non-exempt, employers should consider: (i) whether to switch the employees to an hourly wage as opposed to continuing to pay the non-exempt employees a salary (which will correlate to a regular rate of pay based on hours worked); (ii) if non-exempt employees are going to be paid a salary, adopting a time keeping system to track hours worked; (iii) what kind of incentives or programs, if any, are needed to retain management employees who become non-exempt; and (iv) adopting a policy (if one is not in place) that prohibits non-exempt employees from working overtime without advance permission and includes disciplinary consequences for working unauthorized overtime.

The current deadline to comment on the new regulations is September 4, 2015. We will continue to update the blog on developments.

Hand Scanning and Religious Accommodation

Let’s say you decide to invest in new technology to track employee time and attendance. How would you respond if an employee refused to use the new technology based on their religious beliefs? Would you fire the employee, or permit the employee to keep track of their time some other way? The EEOC recently obtained a jury verdict of more than $580,000 against an employer who refused to accommodate an employee who asserted that biometric hand scanning violated his sincerely held religious beliefs as an Evangelical Christian. Specifically, the employee notified the employer that he believed there was a relationship between “hand-scanning technology and the ‘Mark of the Beast’ and the Antichrist discussed in the New Testament’s Book of Revelation” and requested an exemption from hand scanning. The employer refused to permit the employee to keep track of his attendance some other way, and threatened the employee with discipline, with the result that the employee was forced to retire. The EEOC press release does not discuss the employer’s arguments in response to the claim of failure to accommodate.


Interactive Process Required After 2 year Leave of Absence

A recent case from Hawaii is a reminder that employers must engage in the interactive process to determine whether a reasonable accommodation might allow an employee to return to work, even after the employee has been out for more than 2 years and, even where the “interactive process would have proved fruitless.” In the case, the employer had a policy that permitted employees to take up to 24 months of personal leave. The employee took leave because he was suffering from depression and anxiety as a result of various events at work (which were the subject of other claims). Before the end of the 24 months, the employee requested additional leave as a reasonable accommodation. The employer permitted the employee to extend his leave for a few more months, and then terminated the employee.

The court found that because the employer did not engage in the interactive process to try to determine if there was some reasonable accommodation which would allow the employee to return to work, and because there was no evidence to establish that no such reasonable accommodation was available, the employer was not entitled to summary judgment.

The case is Chan v. Wells Fargo Advisors, LLC, U.S.D.C. Hawaii, Case No.: 14-00344 SOM/KSC.

Bottom line: Even if an employee on leave related to a disability does not appear to be able to return to work when the leave ends, and even where an employer suspects that the employee will never be able to return to their job, employers must entertain requests for accommodations (including for additional leave) and make an affirmative effort to engage in the interactive process, unless there is clear evidence that no reasonable accommodation would allow the employee to perform their job.

EEOC guidelines on reasonable accommodation are here: http://www.eeoc.gov/policy/docs/accommodation.html#other