Employment Law Updates

HOW A BILL BECOMES A LAW IN OREGON

The Oregon Legislature is in session and our elected officials have been busy introducing new bills in both the House of Representatives and the Senate.  Throughout the legislative session, we will be tracking those bills that could have an impact on the workplace if they become law.  A schedule of the bills identified to date can be viewed at www.hershnerhunter.com.  Because this is an active process, keep in mind that bills will be continually introduced and our worksheet will be updated accordingly.  As the bills get assigned to committees and scheduled for work sessions and public hearings, we will note that on the worksheet as well.  And, for those who would like a refresher of how a bill actually becomes a law, here is a link to an overview of the process:  www.leg.state.or.us/faq/lawprocs.pdf.

U.S. SUPREME COURT CLARIFIES WHEN EMPLOYER IS LIABLE FOR SUPERVISOR’S DISCRIMINATION

The U.S. Supreme Court recently decided that an employer can be liable for discrimination if a supervisor discriminates against an employee and that act later plays a motivating factor in an adverse employment action. Staub v Proctor Hospital, (March 1, 2011).   Staub was an employee of Proctor Hospital as well as a member of the U.S. Army Reserves.  His immediate supervisors were vocal about their dislike for the military and treated Staub negatively as a result; they would make comments and at one point asked a co-worker to help them get rid of him.  Ultimately, Staub received a written warning from his supervisors for violating a rule that he claimed did not exist.  Approximately three months later, one of Staub’s co-workers complained to the Chief Operating Officer and to Buck, the Vice President of Human Resources, that Staub was abrupt and frequently unavailable.  Buck directed Staub’s supervisors to address these issues with Staub. They failed to do so.  Three weeks later, his immediate supervisor informed Buck that Staub had violated the terms of his written warning.  Based on that accusation and Staub’s personnel file, Buck decided to terminate Staub.  At the time Buck decided to terminate Staub, she was unaware of the supervisors’ discriminatory conduct and their bias against Staub.

Staub sued Proctor Hospital for violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  He claimed that, even though Buck made the decision to terminate Staub and that she lacked any discriminatory animus towards him, she relied on information from his supervisors that was motivated by their discrimination and, therefore, her decision to terminate was discriminatory.  The U.S. Supreme Court agreed with Staub.  They stated that an employer is at fault if its agent commits an act based on discriminatory animus. Further, supervisors are agents of the employer.  Therefore, if a supervisor commits an act based on discriminatory animus that starts a chain reaction which ultimately results in an adverse employment action, the employer is liable – regardless of whether the employer knew about the bad act at the time it decided to terminate or demote the employee.

Employers should take the necessary steps to ensure their supervisors and managers are aware of this new standard.  Further, all employees should be properly trained on the employers’ equal opportunity programs and how to report acts of discrimination.  As you can see from this decision, even a good-faith decision by a high ranking HR professional will not insulate an employer from the bad acts of immediate supervisors.

INDEPENDENT CONTRACTOR OR EMPLOYEE?

The misclassification of employees as independent contractors exposes employers to significant liability, including back taxes, penalties and possible claims by employees for unpaid overtime wages and attorney fees.  In a recent extraordinary example, shipping giant UPS agreed to pay $12.8 million to settle a class action lawsuit over allegedly misclassifying delivery drivers as independent contractors.  While your company’s exposure might not be that great, there are several important steps you should take to minimize the risk. 

 First, evaluate the classification status of your workers.  The presumption is that they will be considered employees, so carefully evaluate whether they meet the test for an independent contractor.  While there is no single test to determine whether a worker is an independent contractor or an employee – the IRS, Department of Labor and Oregon agencies each use a different test – there are two common threads among all of the tests: control and financial dependence.  For example, the more control an employer has over the means and manner in which individuals perform their work, the more likely it is that an employment relationship exists.  Likewise, the more financially dependent individuals are on work provided by the employer, the more likely it is that those workers will be considered employees. 

 Second, use written contracts with your independent contractors, and incorporate as many independent contractor factors as possible into those contracts.  For instance, you might specify that the worker is responsible for worker’s compensation coverage and business and travel expenses, and is free to determine whether  and when to provide services to the employer.  The agreement might also permit the worker to provide services to other businesses.

 Finally, avoid actions that are inconsistent with the independent contractor relationship, such as referring to the worker as an employee and subjecting the worker to your leave and performance review policies.  Remember:  if you treat the worker as an employee, the government probably will too. 

 If you have questions about independent contractors, feel free to contact Hershner Hunter's Employment Law attorneys.

DON’T FORGET TO UPDATE THE POSTERS

It’s that time of year again – time to update your mandatory employment posters.  New posters are required for Oregon employers because of the increase in minimum wage ($8.50 per hour beginning January 1, 2011).  Further, now is a good time to ensure that you have all other required posters, including the: (1) Oregon Family Leave Act poster; (2) Oregon's OSHA poster; (3) the Oregon and Federal Minimum Wage poster; (4) the Federal Medical Leave Act poster; (5) the EEOC's "It's the Law" poster; (6) the Federal Polygraph Protection Act Notice; (7) the Federal USERRA (military rights) poster; and (8) the Oregon Smokefree Workplace poster.  Remember, all required posters must be displayed in a conspicuous place, where employees can regularly view them.  For more information about the various posters that are currently required, contact Hershner Hunter's Employment Law attorneys or log on to the Bureau of Labor and Industries website at http://www.oregon.gov/BOLI/CRD/C_Postings.shtml.

 

ARE YOUR POLICIES CURRENT?

Employers should review their policies and forms on a regular basis to ensure compliance with the law.  For example, recent changes to the Family Medical Leave Act (“FMLA”) and Oregon Family Leave Act (“OFLA”) require fairly significant changes to these policies and forms.  If your company’s OFLA/FMLA policy and forms have not been updated since 2009, chances are great that they do not comply with the new regulations.  Another example is connected with recent regulations regarding the Genetic Information Nondiscrimination Act of 2008 (“GINA”).   Employers requesting medical information related to FMLA, OFLA, or the Americans with Disabilities Act (“ADA”) should modify their requests for information to fit within a newly-created safe harbor to avoid any inadvertent violations of GINA.  The third example is related to the types of leaves that are available to victims of crime or domestic violence; do your policies allow for eligible employees to take protected leave without concern that they will be adversely impacted?  These are just a few examples where recent changes in the law make it prudent for employers to regularly review their HR policies and practices to ensure they are in compliance.  If you have questions about current policies or would like to have your company’s policies and forms reviewed, contact Hershner Hunter's Employment Law attorneys.

NEW REGULATIONS ISSUED RELATED TO THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 LIKELY AFFECT MOST EMPLOYERS

The Equal Employment Opportunity Commission recently issued regulations interpreting the Genetic Information Nondiscrimination Act Of 2008 (“GINA”).  Consistent with GINA, the regulations prohibit employers from using genetic information in employment decision-making; restrict employers from requesting, requiring, or purchasing genetic information; require that genetic information be maintained as a confidential medical record and place strict limits on disclosure of genetic information; and provide remedies for individuals whose genetic information is acquired, used, or disclosed in violation of its protections.

Many employers may inadvertently learn about an employee’s genetic information in response to a request for medical information related to the Family Medical Leave Act (“FMLA”), Oregon Family Leave Act (“OFLA”), or the Americans with Disabilities Act (“ADA”).  For example, an employer may simply request that a medical provider complete a medical certification, but the provider also includes information about the employee’s family history of cancer or autoimmune problems.  With that in mind, the regulations contain a safe harbor for employers who obtain this information inadvertently.  Specifically, so long as an employer includes the following language in all requests for medical information, then any receipt of genetic information in response to the employer’s request will be deemed inadvertent: 

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”  

In addition, the regulations contain a warning to employers to avoid getting into detailed conversations with employees related to employees’ family medical history – it is possible the employee may reveal genetic information.  Although the regulations anticipate that employers may inadvertently learn genetic information during casual conversations, if genetic information is revealed by an employee in response to a probing question by an employer, then the employer may be considered to have specifically requested the information and is in violation of GINA.

GINA is a good example of how an ounce of prevention (learning how these regulations may impact the company’s human resource practices) is much better than a pound of cure (legal fees related to defending the company against an alleged GINA violation).  Be sure to consult with an attorney experienced in employment law about ways your company should audit current human resource functions to avoid future litigation.