Employment Law: Staying afloat in a sea of claims

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 everything
If 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(at)cvk-law.com?subject=Oregon%20Business%20magazine%20article%2C%20November%202006"> slane(at)cvk-law.com