The New, the Not-so-New and theDownright Ugly Laws You Need to Know Presented by Tamara E. Russell At the OSWAHCR May 2012 Meeting
Legislative, Administrative and Otherwise“No man’s life, liberty or property are safe while the legislature are in session.” -- Judge Gideon J. Tucker
Adds “job applicant who is currently unemployed” to the list of protected classes under ORS Chapter 659A Companies may not include in job advertisements: • the requirement that candidates must be currently employed (no mention of an applicant‟s employment status) • the company‟s intent to consider or review applicants only from those candidates who are employed ButOK to state that licensing must be current, only current employees of the company will be considered, etc.
The EEOC held that transgender workers are protected by Title VII. The opinion is the first from the EEOC to address legal protections for transgender employees. Employers now face federal claims of discrimination by employees who are not traditionally gendered, in addition to Oregon claims.
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 person‟s employment “if operation of the motor vehicle is necessary for the person‟s 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
Update your company vehicle use policy or announce the change in the law - OR – Implement a vehicle use policy/announce the new law
OLD: To be effective, the written agreement must be presented to the employee no less than two weeks‟ before employee‟s 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 employee‟s anticipated start date, with an offer of employment (or upon “bona fide advancement”)
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 have had the opportunity to read this arbitration agreement. I understand that this arbitration agreement requires that disputes that involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge and jury in court.
NLRB meddling: 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.
D.R. Horton, Inc. key employer takeaways: Arbitration agreements 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 intended to preclude an employee‟s participation in class or collective actions, or to otherwise chill an employee‟s NLRA rights.”
Employers must continue health, disability, life or other insurance coverage for an employee during times when the employee serves or is scheduled to serve as a juror Applies to employers with 10 or more employees The employee must provide notice to the employer of his or her election to have coverage continue during jury duty A limited process exists to recover costs of the employee‟s share of premiums.
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
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.”
“Job-related/business necessity defense” 1. Validate the criminal record exclusion for the position in question per the Uniform Guidelines on Employee Selection Procedures standards (if such validation is possible); or 2. 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.
EEOC “best practices”: Eliminate overbroad policies that exclude individuals from employment based on any criminal record; Tailor policies for screening applicants to identify the requirements of the job and determine specific offenses that may demonstrate unfitness for such jobs; Limit inquiries to criminal records for which exclusions are job related and consistent with business necessity; Train managers and hiring professionals on the new tailored policies and Title VII discrimination.
Set to become effective June 7, 2012 unless enough signatures gathered to force a referendum (due June 6). Little effect on Washington employers because of 2009 adoption of “everything but marriage” domestic partner rights. • Thus, registered domestic partners get the same benefits and obligations that apply to spouses under Washington law, including the right to use sick leave to care for each other, the right to workers‟ compensation, unemployment and disability benefits.
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
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 Outright“illegal” policy: “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
Per the NLRB, such a policy may not impinge on employees‟ ability to discuss their wages and working conditions with others inside or outside the organization. Per se illegal, per the NLRB: A provision that prohibited employees from “disclosing or communicating . . . confidential, sensitive, or non- public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.”
NLRB: It is unlawful to have a policy which prohibits “use of the company‟s 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 company‟s 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.”
Per the NLRB, employers cannotrequire employees to “expressly statethat their comments are their personalopinions and do not necessarily reflectthe employer‟s opinions.”
Discussions of work-related concernsCommunications with the media“Unprofessional conduct” and other poorly defined terms
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
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!!
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 Employer‟sworkplace policies against discrimination,harassment, or hostility on account of age, race,religion, sex, ethnicity, nationality, disability or otherprotected class, status or characteristic.
Employees who comment aboutEmployer‟s 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.”
Employees are prohibited from using ordisclosing confidential and/or proprietaryinformation, including personal healthinformation about customers [patients,clients, etc.]
“Any conflict between the law and policylanguage will be decided in favor of the law.Nothing in this policy is intended to chill anemployee‟s right to engage in concertedactivities under the NLRA.”
The next potentially problematic area for employers
Maryland became the first state in the country on April 9, 2012, to pass legislation prohibiting employers from requiring or seeking user names, passwords or any other means of accessing personal internet sites as a condition of employment Four other states considering similar legislation (California, Illinois, Minnesota and New York)
Members of U.S Congress asked the U.S. DOJ and the EEOC to launch a federal investigation into whether employers who ask for their applicants‟ and employees‟ passwords and usernames violate federal law Two weeks ago: “Social Networking Online Protection Act” (SNOPA) introduced
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 employer‟s compliance with GINA‟s prohibition of employment discrimination based on a worker‟s genetic information Good news: This requires no additional document retention efforts if personnel and employment records are currently kept for a year following an employee‟s departure
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
“Employee Rights Under the NLRA” English, Spanish and 23 other non-English versions available at: https://www.nlrb.gov/poster April 17, 2012 - The U.S. Court of Appeals for the District of Columbia enjoined the NLRBs Notice posting. • Employers do not have to post the Notice until the Court of Appeals decides the issue
New form for 2012 Under the Patient Protection and Affordable Care Act (health care reform), employers must report the aggregate cost of applicable employer-sponsored health coverage on employees‟ Forms W-2 starting in the 2012 tax year. • Employers who filed fewer than 250 Forms W-2 in 2011 are not required to report. For more information, go to http://www.irs.gov/newsroom/article/0,,id=237894,00.html
WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385 – reissued late February 2012 OOPS! Two big omissions . . . .
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.
So what to do? Attach “the” language: "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 employees or their family members. In order 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 individuals family medical history, the results of an individuals or family members genetic tests, the fact that an individual or an individuals family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individuals family member or an embryo lawfully 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 when responding to this request for medical information. We do not want you to produce family medical history, the fact that you or a family member sought or received genetic services, or personal or a family member‟s genetic test results.
Missing military leave provisions:1) An employees right to protected FMLA leave as a result of a family members call to duty in a foreign country (a qualifying exigency; the form WH-384 only discusses "contingency operations");2) The fact that under "military caregiver leave," an eligible employee can take leave up to five years after the servicemember left the military (military caregiver leave may be taken to care for veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment) (WH-385)
The Stored Communications Act (18 USC § 2702) • Prohibits access to electronic communications (including email and web sites) unless the accessor is the provider of the email account or the 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 employee‟s password-protected web site
Be careful of post-termination email searches Do you have a policy now that puts employees on notice of possible email searches? Are you limiting searches/monitoring to information necessary to determine whether employees are complying with employer policy? If you receive a report of misconduct on a password- protected web site, ask someone with the password to print 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)
Expressing any 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)
“[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, John W. Hancock, Jr., Inc. v. N.L.R.B., 73 Fed. Appx. 617 (4th Cir. 2003)
Employee/plaintiff claimed he was fired because his fiancée filed a sex discrimination charge with the EEOC Two lower 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
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)
Training Update (or create) job descriptions Audit independent contractor arrangements Review employees classified as “exempt”: Are they really? Are they still?
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 employee‟s responsibility to eithercall the employee‟s 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.
Company provides “severance” on an occasional 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 been sexually harassed “for months.” Eight months later, she files a BOLI claim, and company tenders the complaint to its insurance carrier. Coverage denied! “Severance” = “money”
“... you can either ask the question orexperience the answer ...” - Author unknown(source: http://www.gaia.com/quotes/topics/questions)
Thank you, OSWAHCR! Tamara E. Russell 503.228.0500 | email@example.com