EMPLOYMENT LAW
Staying afloat in a sea of claims
In October, it was reported that the Equal Employment
Opportunity Commission filed four cases against Oregon
businesses in 2006, an unprecedented number since 1998. The
EEOC district director noted that the EEOC is becoming
“very aggressive,” and hinted that more lawsuits
are yet to come.
The United States Supreme Court ruled in June that retaliation
is actionable if it “might dissuade a reasonable
person” from complaining, which is a significant change
from the “ultimte employment action” standard
previously used by some circuits (Burlington Northern & Santa Fe
Railroad v. White).
In May, the Oregon Supreme Court evaluated whether Oregon
businesses must accommodate the use of medical marijuana,
although the case was ultimately decided on other grounds, and
that issue remains unsettled (Washburn v. Columbia Forest
Products). That same month, the Ninth Circuit considered
the scope of the First Amendment and religious accommodation
laws (Berry v. Department of
Social Services).
Finally, the Ninth Circuit issued an opinion in July analyzing
whether an employer had violated disability laws by suspending
an employee who, knowing there was a good chance he might
suffer an epileptic seizure, nevertheless operated heavy
machinery without notifying anyone at work of the risk (Dark v. Curry County).
The devil is in the details, of course, and this is not meant
to suggest the EEOC’s actions or the court decisions were
incorrect or even unfriendly to businesses. But they do
highlight the myriad missteps that can occur, and illustrate
why Oregon businesses are increasingly concerned about
navigating complex employment laws and the often bewildering
hodgepodge of judicial decisions interpreting those laws.
RESOURCES
Claims and lawsuits
are an inevitable part of doing business. However,
there are steps businesses can take to reduce the
risk of a successful claim. It’s all been said
before, but in light of the current situation, this
is the perfect time for some basic
reminders.
1. Familiarize
yourself with the lawAttend seminars. Read the
statutes, available online at www.leg.state.or.us and
the administrative rules, available at http://arcweb.sos.state.or.us/banners/rules.htm.
Talk to the folks at the Bureau of Labor &
Industries Technical Assistance Program at
971.673.0824 — they can’t give you legal
advice, but they can clarify the legal standards.
2. Have an employee handbook, and follow it
Take the time to think through what the law requires,
and to write down policies and procedures that comply
with those requirements.
3. Document everythingIf there is a
legitimate, nondiscriminatory reason for an
employment decision, write it down. Trying to prove
after the fact that you did the right thing for the
right reasons is excruciatingly difficult.
4. Talk to your employees It may be tough to
imagine having a heart-to-heart with one employee
when you’ve got 300 other employees to manage
and a business to run. But you’ll be in a
better position to make a valid, legal decision if
you take the time to discuss problems to find out
firsthand if there is a reason for an
employee’s behavior, for instance, or if there
is a medical condition that requires accommodation
and/or medical leave.
5. Talk to your lawyer Time for a lawyer
joke. Two squirrels are arguing over a nut. A third
squirrel — a lawyer — offers to settle
the matter for them. He breaks the nut in half and
gives each squirrel one half. “See?” he
says. “Problem solved. And for my fee,
I’ll take the nut.” People often say they
don’t have time — or money — to
consult an attorney, but (though the squirrels may
feel differently) this is penny wise and pound
foolish. Although it sounds self-serving coming from
a lawyer, the truth is that a few minutes of
consultation may ensure you are in compliance with
the law before you take that fatal step. And that
hodgepodge of judicial decisions? There is a method
to the madness and a lawyer can help you understand
the reasons for the decisions and incorporate that
information into your policies and personnel
decisions.
|
|
Many state and federal laws provide a measure of lenience to
employers who have taken steps to prevent discrimination and
who take immediate corrective action upon learning of potential
discrimination in the workplace (see the accompanying resources
box). The following examination of the cases listed above
exemplifies the importance of these measures.
In Berry v. Department of
Social Services, the plaintiff complained that DSS
allowed employees to use the conference room for other
purposes, while prohibiting him from using it for prayer
meetings. In finding that no unlawful discrimination had
occurred, the court noted that the department records showed
the room assignments had been made fairly and equitably, and
that the plaintiff was not singled out for exclusion. (See tip
3.)
In Washburn v. Columbia
Forest Products, the company had a drug-free workplace
policy, discussed the issues with the employee in question, and
consulted with their attorney about the legal issues prior to
making a decision about the request to accommodate the use of
medical marijuana. In the final analysis, the court decided the
company had made the right decision. (See tips 2, 4 and 5.)
In Dark v. Curry
County, the plaintiff experienced an “aura”
that signaled a possible epileptic episode, and in fact he
suffered an episode later that same day. When the county
learned that he had experienced the aura but failed to tell
anyone, he was suspended and later fired. Although formal
disciplinary proceedings ensued, it does not appear from the
court’s decision that the supervisor ever sat down with
him to simply talk about the issues. The employer apparently
didn’t find out until much later — until the heat
of trial, that is — that the worker was adjusting to new
medication, and that any problems he was experiencing would
likely be over in a very short period of time. (See tip 4.)
The long and the short of it is this: With the recent court
rulings, businesses should waste no time to establish a plan to
ensure they are in compliance with the law. The building blocks
are surprisingly simple and straightforward.
— Shari L. Lane,
employment counsel
Cosgrave Vergeer Kester,
slane@cvk-law.com
