Corporate President May Be Liable For Aiding And Abetting Discrimination

A federal court in Oregon recently held that a corporate president may be liable for aiding and abetting discrimination.  The case, Baker v. Maricle Indus., Inc., Case No. 6:16-cv-01793-AA (D. Or. Mar. 17, 2017), involves claims by an employee that the employer and its president discriminated against him on the basis of his perceived and actual disability, in violation of the ADA and Oregon law, and unlawfully retaliated against him by discharging him for his complaints of a hostile work environment, in violation of state law.  The president moved for partial summary judgment arguing, among other things, that because he was the principal actor in the alleged discrimination, he could not be liable for aiding and abetting himself.

The court denied defendant’s motion, finding that:

When a corporate president acts outside her scope of employment, she acts in her personal capacity, not as an agent of the corporation, and is, therefore, a third party to the plaintiff’s relationship to the corporation. Under those conditions, the Court could hold Mr. Maricle liable for aiding and abetting ServiceMaster Cleaning Specialists under Or. Rev. Stat. § 659A.030(1)(g).

Factors relevant to determining whether one is “acting in the course and scope” include (1) whether the act occurred substantially within the time and space limits authorized by the employment and (2) whether the act is of a kind which the employee was hired to perform. As the court stated, making that determination is a question of fact and in this case defendant did not argue that plaintiff could not show he acted outside the course and scope of his employment.  Therefore, he did not meet his burden to show the absence of a genuine issue of material fact as required by Rule 56 of the Federal Rules of Civil Procedure and relevant case law.

A copy of the opinion may be found here:  https://casetext.com/case/baker-v-maricle-indus-inc

 

COURT REJECTS BOLI’S NEW INTERPRETATION OF DAILY/WEEKLY OVERTIME RULE

On March 9, 2017, the Multnomah County Circuit Court rejected BOLI’s new interpretation of how manufacturing employers should pay overtime to employees. As our previous post explained, prior to January 2017, BOLI’s guidance instructed manufacturing employers to pay employees the greater of daily or weekly overtime.  In December 2016, BOLI issued an Administrator’s Interpretation stating that manufacturing employers were required to pay both daily and weekly overtime to employees.  The Court found that plaintiffs’ position (which was, not coincidentally, the position taken by BOLI) failed to give effect to all of the provisions in the applicable wage and hour statutes.  In contrast, the Court held that: “Defendant’s interpretation of the statutory scheme is that (consistent with BOLI’s pre-December 2016 interpretation) an employer subject to both ORS 652.020 and ORS 653.261 must calculate both daily and weekly overtime and pay the greater of the two.” And that:”Defendant’s interpretation of ORS 652.020 and ORS 652.261 is the proper interpretation of the statutory scheme.”

It is not yet known if plaintiffs will appeal. Further, legislation has been introduced (Senate Bill 984) to amend the statute to clarify that manufacturing employers are required to pay the greater of daily or weekly overtime (not both).  We will continue to follow developments.

A link to the opinion is here: http://www.sussmanshank.com/files/Opinion and Order re MSJ (02525418x7AC43).PDF

The text of SB 984 can be found here: http://gov.oregonlive.com/bill/2017/SB984/

 

 

Has your Company Updated its Whistleblower Policy? Does the Company have one?

If the answer to either question is “No,” here is a reminder that the Defend Trade Secrets Act of 2016 (“DTSA”) requires employers to provide employees with notice of immunity for disclosures of trade secrets made in certain circumstances. Employers must provide the notice of immunity in employment agreements that include confidentiality and non-disclosure of trade secret prohibitions, or may include the notice of immunity in a handbook or other policy, provided that relevant employment agreements include a specific reference to the handbook or policy.

The notice should inform employees that they will be immune from liability under any federal or state trade secret law for disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or if the disclosure is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The notice should also advise employees that, if an employee sues for retaliation based on reporting a suspected violation of law, the employee may disclose trade secrets: (i) to the attorney of the employee and use the trade secret information in the court proceeding, if the employee: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

Where an employer prefers to include the immunity notice in a handbook or other policy, relevant employment agreements must reference the handbook/policy. This can be as simple as including the following language in the agreement: “Notwithstanding any other terms of this Agreement, you may be entitled to immunity and protection from retaliation under the Defend Trade Secrets Act of 2016 for disclosing a trade secret under certain limited circumstances, as set forth in Company’s handbook.”

If you need more information, or want to update your employment agreements and/or handbook policies, contact any member of our employment group.

 

POWADA Reintroduced

This week, US Senators reintroduced legislation labeled as the Protecting Older Workers Against Discrimination Act (POWADA).  The legislation aims to reduce an employee’s burden of proving an age discrimination claim.  Currently, an employee must prove that age was essentially the sole reason for an adverse employment action.

Do Your Hiring Practices Comply with Portland’s Ban the Box Ordinance?

Portland’s ban the box law has been in effect since July 1, 2016. The ordinance is more restrictive than the statewide law and applies to employers with at least six employees.  Specifically, under Portland’s law, not only are covered businesses barred from including questions about criminal convictions on their job applications, but such questions cannot be asked during the job interview or at any point before a conditional job offer is made.  The employer may perform a criminal background check only after making a conditional job offer – an offer that is conditioned solely on the results of a background check or some other contingency that is expressly communicated at the time of the offer.

Once the employer acquires the applicant’s criminal history, the employer must make an individualized assessment of that information. Such an assessment must include consideration of:

  • the nature and gravity of the offense or conduct;
  • how recently the offense or conduct occurred; and
  • the nature of the position for which the applicant has applied.

The administrative rules state that “[a]n employer may rescind a conditional offer of employment based on an applicant’s criminal history only if the employer determines, in good faith, that: a specific offense or conduct in the applicant’s criminal history bears a direct relationship to the position for which the applicant is being considered; and rescinding the conditional offer of employment is consistent with business necessity.” If the employer follows this process and decides to rescind the conditional offer, it must notify the applicant in writing and identify the conviction on which the decision is based.

If you are an employer and need assistance updating your hiring policies or have questions about a particular applicant, please contact a member of our Employment Group:  503-227-1111; http://www.sussmanshank.com/employment

New BOLI FAQs

BOLI has added a number of FAQs clarifying the application of new laws (and in the case of manufacturing overtime, BOLI’s new interpretation of old law).  The new FAQs are here:

Inclement Weather:

http://www.oregon.gov/boli/TA/Pages/TA_FAQ_Inclement_Weather.aspx

Itemized Pay Statements:

http://www.oregon.gov/boli/TA/Pages/TA_FAQ_Itemized_Statements.aspx

Personnel Records:

http://www.oregon.gov/boli/TA/pages/t_faq_taperfil.aspx

Manufacturing Overtime:

http://www.oregon.gov/boli/TA/Pages/T_FAQ_TaManufacturing.aspx

 

OSHA Guidance on Post-Accident Drug Testing (a reminder)

Most employers are aware that, as of January 1, 2017, a new OSHA rule requires employers to electronically submit injury and illness data.  The new rule also incorporated existing prohibitions on retaliation and clarified the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.

In October 2016, OSHA issued a Memorandum interpreting the new OSHA rule and specifically addressed how the rule relates to post-accident drug testing. Most significantly, OSHA has taken the position that, while the new rule does not prohibit employers from drug testing employees who report work-related injuries or illnesses, employers must have an objectively reasonable basis for testing. The rule does not apply to drug testing for reasons other than injury-reporting.

When determining whether an employer has an “objectively reasonable basis for testing,” OSHA will consider a number of factors, including: (i) whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred); (ii) whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and; (iii) whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred.

According to OSHA, the point of the Memorandum is to make clear that drug testing may not be used by an employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.

Employers should review their drug testing policies and consider revising policies that include automatic mandatory post-accident drug testing without consideration of other factors.  Note, however, the OSHA rule does not preempt state or federal regulations that require post-accident testing, such as DOT rules.

The Memorandum is here:

https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html

 

Snow Days & Employee Pay (or Not)

Oregon’s recent snow “event” is a good reason for employers to familiarize themselves with wage and hour issues implicated by weather-related work closures.

Generally, hourly employees are not entitled to pay for hours they do not work.  If the office closes for weather-related reasons, hourly employees do not get paid.  Employers can choose to pay employees for days when the office is closed because of the weather, but are not legally obligated to do so.  Employers can also allow employees to make-up missed time by working extra hours or on weekends.  Where this option is provided, employers need to make sure employees keep track of “extra” time worked, take breaks as required, and do not end up working unauthorized overtime.

For exempt employees, pay will depend upon whether the employer closes the office. If the office is closed, the employer must pay exempt employees their full salary.  If, however, the office is open, but an exempt employee elects to stay home because of the weather, the employer does not have to pay the exempt employee for the full-day absence because the employee is absent from work for personal reasons other than sickness or disability.  The exempt employee could choose to use PTO or vacation to get paid for the full-day absence, but the employer is not required to pay the employee.

Employers also need to be mindful of whether employees are working from home on days when the office is closed because of bad weather. Hourly employees must keep track of time worked from home so they can be paid for that time, and exempt employees who choose to work from home rather than traveling to the office, should be paid their full salary.

The last storm is a great excuse for employers to review and update inclement weather policies to reflect how weather-related absences will be treated.

 

EEOC Seeks Public Input on Unlawful Harassment Enforcement Guidance

On January 10, 2017, the EEOC published proposed enforcement guidance on unlawful harassment.  The guidance, designed for employers and employees, sets forth the EEOC’s views on federal harassment law, and provides explanatory examples and recommended  practices for employers to follow.  The EEOC is accepting public comment on  the proposed guidelines until February 9, 2017.  We will update the blog once the final version is released. 

https://www.regulations.gov/docket?D=EEOC-2016-0009