Agenda. Oregon s New Employment Laws 8/27/2015. Oregon s New Employment Laws and Federal Law Developments

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Kory Taylor
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for addressing the laws when they go into effect January 1, 2016 Federal law developments and case law updates that apply to your

1 Oregon s New Employment Laws and Federal Law Developments Tamara E. Jones, CIS Pre-Loss Attorney August 27, 2015 Agenda New Oregon employment laws your organization needs to be aware of now Best practices for addressing the laws when they go into effect January 1, 2016 Federal law developments and case law updates that apply to your organization Just when you think you ve heard it all... Oregon s New Employment Laws What to know now: Social Media Paid Sick Leave Wage Talk Criminal Convictions Sick Leave re DV Situation Best Practices for Preparing 1

Update: Social Media New Employment Law: Social Media Applies to all CIS members (threshold is one employee) Employers may not require applicants or employees to establish or maintain personal social

2 Update: Social Media New Employment Law: Social Media Applies to all CIS members (threshold is one employee) Employers may not require applicants or employees to establish or maintain personal social media accounts. An employer can t require employees to allow the organization (or its managers) to advertise on personal social media accounts, either. New Social Media Personal social media account definition: A social media account that is used by an employee or applicant for employment, exclusively for personal purposes unrelated to any business purpose of the employer or prospective employer and that is not provided by or paid for the employer or prospective employer. 2

Social Media Remember: Oregon employers and

employees for passwords or usernames used to

supervisors, managers and elected officials

3 Social Media Remember: Oregon employers and their managers can t ask applicants or employees for passwords or usernames used to access personal accounts or social media accounts. Social Media Best practices: Educate your supervisors, managers and elected officials now. There is no need to wait until January 1, Review, and if necessary, update your social media policy. This law does not require a new policy! Update: Paid Sick Leave 3

4 Paid Sick Leave Employers with 10 or more employees: Employees (FT/PT) must be allowed to earn and use up to 40 hours of paid sick time per year; and Employers with less than 10 employees: Employees (FT/PT) must be allowed to earn and use up to 40 hours of unpaid sick time per year. Take note! The law s definition of employee does not carve out part-time, seasonal, or temporary employees! Paid Sick Leave #1: A sort of saving grace re: shortterm employees Employees hired after January 1, 2016, begin accruing sick leave on day one of employment, but can t use the sick leave until they have worked 90 days. Paid Sick Leave #2: A sort of saving grace for all employees Employers are not required to pay employees the value of the accrued sick leave at the time of termination. 4

5 Paid Sick Leave How is sick leave accrued? Paid and unpaid sick time accrues at the rate of at least: 1 hour of paid sick time for every 30 hours the employee works; or 1-1/3 hours for every 40 hours the employee works Sick leave, whether paid or unpaid, can be used for: The employee s own self-care or to care for the employee s qualifying family member. Family member includes spouses, same-sex and registered domestic partners, parents, parents-in-law, children, grandparents, and grandchildren Any purpose allowed under OFLA (including bereavement leave), regardless of whether the employee is OFLA-eligible or whether the employer has 25 or more employees. Paid Sick Leave The employer may seek a health verification at the employer s expense where the employee uses more than three consecutive scheduled work days for sick time. The employer may not require more than 10 days notice for the use of foreseeable sick time. New record-keeping requirements: Employers must provide employees with quarterly updates regarding how much sick leave is available; Provide written notice to employees about the law. 5

Paid Sick Leave Employers cannot: Retaliate or discriminate

sick leave, requested to use sick leave, taken sick time, or

of sick time; Prevent employees from using paid sick leave;

absence control policies, i.e., point systems and no-fault attendance policies.

organization s existing sick leave or PTO policy meets the

6 Paid Sick Leave Employers cannot: Retaliate or discriminate against an employee because the employee has asked about sick leave, requested to use sick leave, taken sick time, or participated in an investigation regarding an employee s use of sick time; Prevent employees from using paid sick leave; and Count protected absences against employees pursuant to absence control policies, i.e., point systems and no-fault attendance policies. Paid Sick Leave: Best Practices Bottom line: If your organization s existing sick leave or PTO policy meets the minimum requirements of this law, you don t need to change the policy! Compare your sick leave policy with the new sick leave law to see how it stacks up. Update: Wage Talk 6

Wage Talk Applies to all CIS members Employers may not take

discusses or discloses, in any manner his or her wages or

Includes discussing wage information to make a complaint or

Wage Talk Excludes employees who have access to wage info

discipline for unauthorized disclosure of wage info learned

Practices CIS members are required to make employee wage

7 Wage Talk Applies to all CIS members Employers may not take disciplinary action against an employee who inquires about, discusses or discloses, in any manner his or her wages or those of another employee. Includes discussing wage information to make a complaint or institute an investigation. Wage Talk Excludes employees who have access to wage info as part of their job duties Effective 1/1/16 Permits discipline for unauthorized disclosure of wage info learned through the employee s position Wage Talk: Issues & Best Practices CIS members are required to make employee wage and hour information available via Oregon s public records laws. What s different? Public employers can t discipline employees for discussing/ disclosing during non-working hours. Good news: There s little (nothing) to do in response to this new law. 7

8 Update: Ban the Box Ban the Box An applicant may not be excluded from an initial interview because of a past criminal conviction. Thus, an employer may not ask applicants to disclose a criminal conviction: On an employment application; Prior to an initial interview; or Prior to making a conditional employment offer (if no interview). Ban the Box An employer may ask about an applicant s criminal conviction history during an interview. An employer may consider an applicant s criminal history when making hiring decisions. It remains lawful albeit somewhat risky to make decisions about whether to hire someone based on their criminal history. 8

Ban the Box The law doesn t apply to: Law enforcement/criminal justice

of an applicant s criminal history; Nonemployee volunteers ; and Current

Best Practices Remove all questions regarding arrests and convictions from

Remind your hiring managers about the potential legal pitfalls of making

9 Ban the Box The law doesn t apply to: Law enforcement/criminal justice applicants, where federal, Oregon or local law require the consideration of an applicant s criminal history; Nonemployee volunteers ; and Current employees... maybe. Best Practices Remove all questions regarding arrests and convictions from your organization s application forms. Remind your hiring managers about the potential legal pitfalls of making hiring, discipline or firing decisions based solely on an applicant s/ employee s arrest or conviction history. Update: Use of Sick Leave in Domestic Violence Situations 9

Use of Sick Leave in DV Situations Current Law: Employers with 6 or more employees must provide reasonable leave; and All CIS members must provide reasonable safety accommodations for victims of:

10 Use of Sick Leave in DV Situations Current Law: Employers with 6 or more employees must provide reasonable leave; and All CIS members must provide reasonable safety accommodations for victims of: domestic violence, harassment, sexual assault, or stalking. Use of Sick Leave in DV Situations New Law: Everything on the previous slide, plus: Employees must be allowed to use accrued sick leave or personal business leave during a domestic violence leave situation. Currently, employees are authorized to use vacation leave or other paid leave. Federal Law Developments and Case Law Update - DOL Overtime Regulations - Case: Dealing with violent yet disabled employees - Case: Why I-9 Forms Matter - Case: Paid Administrative Leave 10

Proposed DOL Overtime Regulations The sky isn t falling... not yet, anyway!

Late summer 2016, at the earliest Final Rule issued. September 4, 2015 deadline for submitting comments re the NPRM. Mayo v.

Then he started making threats of violence: He said he felt like coming down to [the facility] with a shotgun and blowing off

11 Proposed DOL Overtime Regulations The sky isn t falling... not yet, anyway! Proposed DOL Overtime Regulations Key dates: June 30, 2015 DOL issues a Notice of Proposed Rule Making (NPRM). Late summer 2016, at the earliest Final Rule issued. September 4, 2015 deadline for submitting comments re the NPRM. Mayo v. PCC Structurals, Inc. (9 th Cir. 2015) Employee diagnosed with major depressive disorder worked without incident for decades. Then he started making threats of violence: He said he felt like coming down to [the facility] with a shotgun and blowing off the heads of his supervisor and others. He said he planned to come to the facility during the day shift to take out management and that he wanted to bring a gun down to work and start shooting people. 11

12 Mayo v. PCC Structurals, Inc. (9 th Cir. 2015) Key Conclusion: An employee who makes serious and credible threats of violence toward his co-workers is not a qualified individual with a disability and therefore cannot state a claim under the ADA or Oregon disability law. Mayo: Key Takeaways Employers should not assume that simple rudeness or even non-violent outbursts ( temper tantrums, to use the Court s description) that result from a disability render an employee unqualified under the ADA. Employers should be cautious about disciplining/ terminating an employee for misconduct that may result from a disability. Why Form I-9s Really Do Matter Employer/Defendant: Hartmann Studios, Inc. Plaintiff: U.S. Government (yuck) Issue: Whether the employer is liable for 808 of the 818 Form I-9 paperwork violations identified by the U.S. Government Proceeding: An administrative hearing before an ALJ, per OCAHO (U.S. v. Hartmann Studios, Inc., OCAHO Case No. 14A00008 July 8, 2015) 12

Why Form I-9s Really Do Matter Outcome: Possibly the largest fine

award should be mitigated due to its good faith efforts to comply

Problem: Only evidence of good faith occurred after the government

ALJ: What steps did the employer take before the government got

Issues to consider: Where are the Form I-9s kept?

13 Why Form I-9s Really Do Matter Outcome: Possibly the largest fine ever levied against an employer for not doing a good job with its I-9 paperwork. $605,250 in damages!! Why Form I-9s Really Do Matter Employer argued that the damages award should be mitigated due to its good faith efforts to comply with the law. Problem: Only evidence of good faith occurred after the government issued a Notice of Inspection! ALJ: What steps did the employer take before the government got involved to learn what the law requires and to conform its conduct to those requirements? Lessons Learned Conduct a self-audit of your I-9 forms. Issues to consider: Where are the Form I-9s kept? Are we using the current version of the form? (available at: Did the employee sign and complete Section 1 of the Form I-9 after a job offer was accepted, but no later than the first day of employment? 13

Lessons Learned Conduct a self-audit of your I-9 forms.

(Section 2) Is the Section 2 work eligibility document still

Paid Administrative Leave The Third Circuit Court of Appeals (federal

employment action if the suspension was atypical, without providing any

(Aug. 12, 2015) Why the 3 rd Circuit Case is Good News There are now

administrative leave is not an adverse employment action for purposes of

14 Lessons Learned Conduct a self-audit of your I-9 forms. Issues to consider: Did someone from the organization sign the Form I-9? (Section 2) Is the Section 2 work eligibility document still valid/expired? Paid Administrative Leave The Third Circuit Court of Appeals (federal court) held that a paid suspension typically is not an adverse employment action under Title VII. BUT: A paid suspension could still rise to the level of an adverse employment action if the suspension was atypical, without providing any test or methodology. Jones v. Southeastern Pennsylvania Transp. Auth. (Aug. 12, 2015) Why the 3 rd Circuit Case is Good News There are now four federal appellate (circuit) courts that have held that paid administrative leave is not an adverse employment action for purposes of Title VII discrimination actions. Two other federal appellate (circuit) courts have held that paid suspensions generally are not adverse actions for the purpose of other statutory and Constitutional retaliation claims. 14

Why the 3 rd Circuit Case is So-So News Title VII prohibits outright discrimination as well as retaliation against employees who complain about or oppose discrimination/ harassment (no retaliation).

Why the 3 rd Circuit Case is Irrelevant The Ninth Circuit has yet to consider whether a paid administrative leave violates Title VII s discrimination or retaliation provisions.

15 Why the 3 rd Circuit Case is So-So News Title VII prohibits outright discrimination as well as retaliation against employees who complain about or oppose discrimination/ harassment (no retaliation). The Third Circuit did not decide whether a paid suspension could violate Title VII s prohibitions against retaliation! Why the 3 rd Circuit Case is Irrelevant The Ninth Circuit has yet to consider whether a paid administrative leave violates Title VII s discrimination or retaliation provisions. In a First Amendment retaliation case, the Ninth Circuit held that under some circumstances, placement on administrative leave can constitute an adverse employment action. Why the 3 rd Circuit Case is Irrelevant Per the Ninth Circuit Court of Appeals: Retaliation need not be severe, and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of the removal of a benefit or the imposition of a burden. 15

16 The 9 th Circuit s Take The employee s paid leave prevented him from taking the sergeant s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience. These events, plus the general stigma resulting from placement on administrative leave appear reasonably likely to deter employees from engaging in protected activity. Bottom Line re: Paid Leave Employers may continue to place employees on paid administrative leave, pending an investigation into misconduct. This is especially true where the misconduct involves unsafe behavior (threats to the employee or others), theft, or where approved in advance via a CBA. Bottom Line re: Paid Leave BUT...employers must be vigilant in ensuring that the leave doesn t last too long unless there are valid, nondiscriminatory reasons to continue the leave. Make sure the notice of paid leave is written with language that can t be misinterpreted as to its purpose. Let the employee know this isn t a vacation! 16

File this in, you think you ve seen it all, but... Introducing... Geoffrey Toliver Employee was a Medicaid eligibility specialist for the City of New York.

The City claimed to have reached out to him multiple times but without success. A good reason to be absent?

17 File this in, you think you ve seen it all, but... Introducing... Geoffrey Toliver Employee was a Medicaid eligibility specialist for the City of New York. He began a medical leave of absence for cancer in November The employee didn t return to work at the end of his leave. The City claimed to have reached out to him multiple times but without success. A good reason to be absent? Then the City learned via an online obituary that their employee died in December The City then filed charges against the employee accusing him of abandoning his job. They wanted to formally terminate his employment. This is true even though the City knew about the obituary! 17

that....... Wait for it... The employee didn t show up at the hearing! Questions?

18 A good reason to be absent? An ALJ held a hearing on the City s charge and agreed with the termination conclusion on the grounds that Wait for it... The employee didn t show up at the hearing! Questions? No one is dumb who is curious. The people who don t ask questions remain clueless throughout their lives. - Neil degrasse Tyson Tamara E. Jones Pre-Loss Attorney tjones@cisoregon.org 18

POLICY STATEMENTS Policy No. HR 114 SICK LEAVE, SHORT TERM DISABILITY INCOME PROTECTION PROGRAM AND FAMILY MEDICAL LEAVE

POLICY STATEMENTS Policy No. HR 114 SICK LEAVE, SHORT TERM DISABILITY INCOME PROTECTION PROGRAM AND FAMILY MEDICAL LEAVE PURPOSE SCOPE This policy explains the leave provisions associated with: Sick Leave Short-Term Disability Income Protection Program (STDIPP) Family and Medical Leave Act (FMLA) Long Term Disability (LTD)