Oregon Employment Law Update May 2012 (00259821)

• 1. The New, the Not-so-New and theDownright Ugly Laws You Need to KnowPresented by Tamara E. RussellAt the OSWAHCR May 2012 Meeting

2. Legislative, Administrative and OtherwiseNo mans life, liberty or property are safe while the legislature are in session. -- Judge Gideon J. Tucker 3. Adds job applicant who is currentlyunemployed to the list of protected classesunder ORS Chapter 659A Companies may not include in jobadvertisements: the requirement that candidates must be currentlyemployed (no mention of an applicants employmentstatus) the companys intent to consider or review applicantsonly from those candidates who are employed ButOK to state that licensing must be current, only current employees of the company will be considered, etc. 4. TheEEOC held that transgender workersare protected by Title VII. The opinion is the first from the EEOC toaddress legal protections for transgenderemployees. Employers now face federal claims ofdiscrimination by employees who are nottraditionally gendered, in addition toOregon claims. 5. Oldlaw: ORS 811.507 banned the use of hand- held cell phones in most circumstances. One exception: OK to use hand-held cell phone in the scope of the persons employment if operation of the motor vehicle is necessary for the persons job. New law: Eliminates the on-the-job provision Also gives law enforcement officials the right to stop a car solely because the person appears to be violating ORS 811.507 6. Update your company vehicle use policy orannounce the change in the law - OR Implement a vehicle use policy/announcethe new law 7. OLD:To be effective, the written agreement must be presented to the employee no less than two weeks before employees anticipated start date, with an offer of employment (or upon bona fide advancement) (ORS 36.620) NEW:To be effective, the written agreement must be presented to the employee no less than 72 hours before employees anticipated start date, with an offer of employment (or upon bona fide advancement) 8. NEW:The following language must be included in the agreement, which must be signed by the employee:I acknowledge that I have received and read or havehad the opportunity to read this arbitration agreement. Iunderstand that this arbitration agreement requires thatdisputes that involve the matters subject to theagreement be submitted to mediation or arbitrationpursuant to the arbitration agreement rather than to ajudge and jury in court. 9. NLRBmeddling: D.R. Horton, Inc. 357 NLRB No. 184 (January 3, 2012) An employer violates the NLRA by conditioning employment on agreements providing that all employment disputes and claims will be resolved in arbitration No foreclosing any litigation of class or collective claims in court or arbitration, either. 10. D.R. Horton, Inc. key employer takeaways: Arbitrationagreements for supervisors, managerial employees and independent contractors unaffected by ruling Forregular employees, check your arbitration agreements as to scope. Consider adding: Nothing in this agreement is intendedto preclude an employees participation in class orcollective actions, or to otherwise chill an employeesNLRA rights. 11. Employers must continue health, disability, life orother insurance coverage for an employee duringtimes when the employee serves or is scheduled toserve as a juror Applies to employers with 10 or more employees The employee must provide notice to the employerof his or her election to have coverage continueduring jury duty A limited process exists to recover costs of theemployees share of premiums. 12. HB 3034 (codified at ORS 10.090) Employers are now prohibited from requiring employees on jury duty to use vacation, sick or other annual leave for time spent responding to jury summonses, or for time spent on jury duty Theemployee must be allowed to take unpaid leave instead 13. National incarceration statistics support a finding that criminal record exclusions have a disparate impact based on race and national origin. Therefore,per the EEOC, it is unlawful to exclude candidates for employment/promotion because of a criminal past UNLESS the employer can show that the exclusion is job-related and a business necessity. 14. Job-related/business necessity defense1. Validate the criminal record exclusion for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if such validation is possible); or2. Develop a targeted screen considering the nature or gravity of the criminal offense, the time elapsed since the offense or completion of the sentence, and the nature of the job. Then provide an individualized assessment for all individuals excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity. 15. EEOC best practices: Eliminate overbroad policies that excludeindividuals from employment based on anycriminal record; Tailor policies for screening applicants to identifythe requirements of the job and determine specificoffenses that may demonstrate unfitness for suchjobs; Limit inquiries to criminal records for whichexclusions are job related and consistent withbusiness necessity; Train managers and hiring professionals on thenew tailored policies and Title VII discrimination. 16. Set to become effective June 7, 2012 unlessenough signatures gathered to force areferendum (due June 6). Little effect on Washington employersbecause of 2009 adoption of everything butmarriage domestic partner rights. Thus, registered domestic partners get the samebenefits and obligations that apply to spouses underWashington law, including the right to use sick leave tocare for each other, the right to workerscompensation, unemployment and disability benefits. 17. ASurvey of Social Media Issues Before the NLRB Issued by the U.S. Chamber of Commerce on August 5, 2011 http://www.uschamber.com/reports/survey-social- media-issues-nlrb Report of the Acting General Counsel Concerning Social Media Cases Issued by the NLRB on January 24, 2012 https://www.nlrb.gov/news/acting-general-counsel- issues-second-social-media-report 18. Perthe NLRB, these policies violate the NLRA on a per se basis because they could discourage employees from making negative comments about the terms and conditions of their employment Outrightillegal policy: [m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media. 19. Per the NLRB, such a policy may not impinge onemployees ability to discuss their wages andworking conditions with others inside or outside theorganization. Per se illegal, per the NLRB: A provision thatprohibited employees from disclosing orcommunicating . . . confidential, sensitive, or non-public information concerning the company on orthrough company property to anyone outside thecompany without prior approval of seniormanagement or the law department. 20. NLRB:It is unlawful to have a policy which prohibits use of the companys name or service marks outside the course of business without prior approval of the law department. Why? Employees have the right under the NLRA to use the companys name and logo while engaging in protected concerted activity, such as in electronic or paper leaflets, cartoons, or picket signs in connection with a protect involving the terms and conditions of employment. 21. Per the NLRB, employers cannotrequire employees to expressly statethat their comments are their personalopinions and do not necessarily reflectthe employers opinions. 22. Discussions of work-related concernsCommunicationswith the mediaUnprofessionalconduct and other poorly defined terms 23. No access to social/web networking sitesor blogs using employer-providedequipment (computers, cell phones, etc.) Consider blocking access to the well-known accountsEmployees may not access social/webnetworking sites and may not blog duringwork hours 24. Employees should expect that anyinformation created, transmitted,downloaded, exchanged or discussed onsocial networking sites and/or blogs may beaccessed by the employer at any timewithout prior notice No expectation of privacy!! 25. Employees may not use social media to post ordisplay comments about coworkers or supervisorsthat are vulgar, obscene, threatening, intimidating,harassing or a violation of the Employersworkplace policies against discrimination,harassment, or hostility on account of age, race,religion, sex, ethnicity, nationality, disability or otherprotected class, status or characteristic. 26. Employees who comment aboutEmployers products or services mustidentify themselves in their post andstate something to the effect of, Theviews expressed here are my own. Myemployer did not review these before Iposted them. 27. Employees are prohibited from using ordisclosing confidential and/or proprietaryinformation, including personal healthinformation about customers [patients,clients, etc.] 28. Any conflict between the law and policylanguage will be decided in favor of the law.Nothing in this policy is intended to chill anemployees right to engage in concertedactivities under the NLRA. 29. The next potentially problematic area for employers 30. Maryland became the first state in thecountry on April 9, 2012, to pass legislationprohibiting employers from requiring orseeking user names, passwords or anyother means of accessing personalinternet sites as a condition of employment Four other states considering similarlegislation (California, Illinois, Minnesotaand New York) 31. Membersof U.S Congress asked the U.S.DOJ and the EEOC to launch a federalinvestigation into whether employers whoask for their applicants and employeespasswords and usernames violate federallaw Two weeks ago: Social Networking OnlineProtection Act (SNOPA) introduced 32. Oregon and federal law 33. February 3, 2012: EEOC issues final rule that goes into effect April 3, 2012: Employers must retain workplace records so that the EEOC is able to assess an employers compliance with GINAs prohibition of employment discrimination based on a workers genetic information Good news: This requires no additional document retention efforts if personnel and employment records are currently kept for a year following an employees departure 34. OFLA updated January 2012 Applicable to Oregon employers with 25 or more employees Minimum Wage (Oregon only) updated January 2012 Applicable to all Oregon employers Unemployment Benefits (Washington) updated 4/12 35. EmployeeRights Under the NLRA English, Spanish and 23 other non-Englishversions available at:https://www.nlrb.gov/poster April 17, 2012 - The U.S. Court of Appealsfor the District of Columbia enjoined theNLRBs Notice posting. Employers do not have to post the Notice until the Court of Appeals decides the issue 36. New form for 2012 Under the Patient Protection and AffordableCare Act (health care reform), employers mustreport the aggregate cost of applicableemployer-sponsored health coverage onemployees Forms W-2 starting in the 2012 taxyear. Employers who filed fewer than 250 Forms W-2 in 2011are not required to report. For more information, go to http://www.irs.gov/newsroom/article/0,,id=237894,00.html 37. WH-380-E,WH-380-F, WH-381, WH-382, WH-384, WH-385 reissued late February 2012 OOPS! Two big omissions . . . . 38. No GINA safe harbor for employers Employers may lawfully request medical information if the employer informs the employee at the time the information is sought that it is not seeking genetic information about the employee or his or her family member. 39. So what to do? Attach the language: "The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entitiescovered by GINA Title II from requesting or requiring genetic information of employees or their familymembers. In order to comply with this law, we are asking that you not provide any genetic informationwhen responding to this request for medical information. Genetic information, as defined by GINA,includes an individuals family medical history, the results of an individuals or family members genetictests, the fact that an individual or an individuals family member sought or received genetic services, andgenetic information of a fetus carried by an individual or an individuals family member or an embryolawfully held by an individual or family member receiving assistive reproductive services. OR, attach simplified language that does the trick: Please do not provide any genetic information whenresponding to this request for medical information. Wedo not want you to produce family medical history, thefact that you or a family member sought or receivedgenetic services, or personal or a family membersgenetic test results. 40. Missing military leave provisions:1)An employees right to protected FMLA leave as aresult of a family members call to duty in a foreigncountry (a qualifying exigency; the form WH-384 onlydiscusses "contingency operations");2)The fact that under "military caregiver leave," aneligible employee can take leave up to five yearsafter the servicemember left the military (militarycaregiver leave may be taken to care for veteranswho are undergoing medical treatment, recuperationor therapy for serious injury or illness that occurredany time during the five years preceding the date oftreatment) (WH-385) 41. But Stuff You Need to be Reminded About 42. TheStored Communications Act (18 USC 2702) Prohibits access to electronic communications(including email and web sites) unless theaccessor is the provider of the email account orthe owner of a web site Konop v. Hawaiian Airlines, Inc. (9th Cir 2002) Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009) Violation of SCA when an employer accessed an employees password-protected web site 43. Be careful of post-termination email searches Do you have a policy now that puts employees onnotice of possible email searches? Are you limiting searches/monitoring to informationnecessary to determine whether employees arecomplying with employer policy? If you receive a report of misconduct on a password-protected web site, ask someone with the password toprint out a copy for you Also get signed authorization from the password-holder to do so(and give them the right to revoke the password) 44. Expressingany views, arguments or opinions or the dissemination thereof, whether in written, printed, graphic or visual form shall not constitute or be evidence of an unfair labor practice if such express contains no threat of reprisal or force or promise of benefit Section 8(c) 45. [Employer]is a union-free company. It always has been, and we desire that it will always remain so. We prefer to deal directly with our employees instead of through a third party, and we believe that sound leadership and concern for our employees is the best way of ensuring the propriety of our company and the welfare of our employees. In re Hancock, 337 NLRB 1223 (2002), enforced as modified, JohnW. Hancock, Jr., Inc. v. N.L.R.B., 73 Fed. Appx. 617 (4th Cir. 2003) 46. Employee/plaintiff claimed he was fired because his fiance filed a sex discrimination charge with the EEOC Twolower courts found that Thompson could not sue because he had not engaged in an activity that Title VII protects he had not been fired after complaining about discrimination himself or otherwise engaged in protected activity 47. U.S.Supreme Court: Thompson may sue because he is in the zone of interests protected by Title VII This is true even if the employee does not directly engage in a protected activity (e.g., complaints of workplace discrimination or harassment) 48. Training Update (or create) job descriptions Audit independent contractor arrangements Review employees classified as exempt: Are they really? Are they still? 49. World of Employment Law 50. If an employee becomes incarcerated in jail and is notexpected to be released from jail in time for the employeeto go to work, it is the employees responsibility to eithercall the employees manager/supervisor as soon as hebecomes incarcerated, or at the very least two hoursbefore his/her shift begins in order to allow his/her shift tobe covered for the day.The Company has discretion to either terminate theemployee or work with the employee; however, if theemployee fails to notify the Company on the first day ofhis incarceration or on the first day he would have worked,the employee will be immediately terminated as of the firstday he did not return with no reinstatement rights. 51. Company provides severance on anoccasional basis to departing employees. Employee is terminated for performance issues Employee asks for severance and complains,on the way out the door, that she had beensexually harassed for months. Eight months later, she files a BOLI claim, andcompany tenders the complaint to its insurancecarrier. Coverage denied! Severance = money 52. ... you can eitherask the questionorexperience the answer ...- Author unknown(source: http://www.gaia.com/quotes/topics/questions) 53. Thank you, OSWAHCR!Tamara E. Russell503.228.0500 | [email protected]