New Laws Affecting Oregon Employers in 2010

Oregon employers should be aware that several new labor and employment laws went into effect Jan. 1. View full article (PDF) for a summary of some of the more significant new employment laws effective with the New Year.

Ringing in 2010 With New Laws Affecting Oregon Employers

Oregon employers should be aware that several new labor and employment laws went into effect January 1. A summary of some of the more significant new employment laws effective with the new year follows:

Plaintiffs Cannot Recover Compensatory or Punitive Damages for Federal Disability Retaliation Claims … at Least for Now

The Ninth Circuit Court of Appeals recently issued an employer-friendly decision in Alvarado v. Cajun Operating Company. The appellate court ruled that, based upon the plain language of the Americans with Disabilities Act (“ADA”), compensatory (i.e., emotional distress) and punitive damages are not available to plaintiffs claiming retaliation under the ADA. Instead, only so-called “equitable remedies,” such as reinstatement, back pay or front pay, are available to persons claiming retaliation under the ADA. Because remedies for retaliation under the ADA are strictly equitable in nature, the Ninth Circuit also ruled that plaintiffs making such claims are not entitled to a trial by jury.

Automatic Defibrillators Required for Certain Oregon Businesses

Effective January 1, 2010, Oregon law requires that businesses with 50,000 square feet or more of floor space and that have at least 25 individuals who congregate at the facility on a normal business day, have at least one automated external defibrillator (“AED”) on their premises. The law contains a Good Samaritan clause that bars lawsuits arising from the use of the AED.

OSHA Issues H1N1 Compliance Directive for Healthcare Workers

On November 20, 2009, the Occupational Safety & Health Administration (“OSHA”) issued a Directive relating to healthcare workers’ occupational exposure risks to the H1N1 flu virus. The Directive is in the form of Instructions to OSHA Compliance Safety and Health Officers (“Compliance Officers”) and its applicability is limited to the inspection of workplaces where workers are likely to have “high” to “very high” occupational exposure risks. Workers at “high” and “very high” occupational exposure risk to the H1N1 flu virus include workers who, through close contact (within six feet), attend to patients with suspected or confirmed H1N1 flu virus, or who transport such patients in enclosed vehicles. The Directive provides that inspections of such workplaces will be conducted in response to worker complaints, referrals (including media referrals), or as part of a fatality and/or catastrophic event investigation.

New Required EEOC Compliance Posters Now Available

The Equal Employment Opportunity Commission (“EEOC”) recently released a new “Equal Employment Opportunity is the Law” poster. The new poster includes updates from the Department of Labor and reflects current federal employment discrimination laws (including the ADA Amendments Act of 2008). The new poster also includes changes to the law, such as the Genetic Information Nondiscrimination Act of 2008, which took effect November 21, 2009.

Social Media May Contradict Applicant’s Info

Social media – to the unindoctrinated – includes Web sites such as Twitter, Facebook, MySpace and Youtube, as well as personal blogs. On these Web sites, individuals offer candid communications about what they are doing, whome they are doing it with, and what they think about a variety of issues from politics to the best place to buy jeans.

How fast-growing companies avoid employment lawsuits

Being a fastest-growing company sounds good, right?

Be careful what you wish for. Rapid growth creates real risks if you are not smart about how you grow. Here is a checklist to help avoid employee lawsuits.

Preparing for and Responding to Issues Relating to Flu Season and Specific Considerations Regarding the H1N1 Influenza Virus

On October 9, 2009, the Equal Employment Opportunity Commission (“EEOC”) updated its pandemic preparedness technical assistance document. This update is just another reminder that flu season is here. The EEOC update follows on the heels of the Secretary of Homeland Security’s issuance of a preparedness guide for businesses, specifically regarding the H1N1 influenza, and similar information provided by the World Health Organization (“WHO”). The Centers for Disease Control and Prevention (“CDC”) has also issued interim guidance on infection control measures. As the sheer volume of information about the coming flu season can be daunting, the following highlights particular concerns of these agencies as applies to businesses and provides practical tips for employers in preparing for and responding to the influenza virus.

Employers Awarded Federal Contracts Must Now Verify Employees’ Work Authorization

Effective September 8, 2009, employers with federal contracts must begin checking work authorization for employees through the government E-Verify system. The rule applies to federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act Funds. E-Verify is an Internet-based program operated by the Department of Homeland Security agency, U.S. Citizenship and Immigration Services (“USCIS”), for employers to cross-check a worker’s birth date, name, Social Security information, and visa and immigration status against records contained in Homeland Security and Social Security Administration (“SSA”) databases. Employers who enroll in the program must use it uniformly for employees, regardless of citizenship.

View full article (PDF).

Oregon Expands Religious Accommodation Rights at Work

On July 16, 2009, Oregon Gov. Ted Kulongoski signed into law the Oregon Workplace Religious Freedom Act (“OWRFA”). The new statute takes effect on January 1, 2010.

OWRFA expands existing protections against discrimination based on religion in the workplace by requiring employers to reasonably accommodate an employee’s use of leave time for engaging in religious observance or practices. OWRFA also prohibits employers from instituting occupational requirements that restrict employees from wearing religious clothing, from taking time off for holy days, or from participating in a religious observance or practice. The OWRFA contains only one occupation-specific exception: Public school teachers will be prohibited from wearing religious dress while “engaged in the performance of duties as a teacher.”

View full article (PDF).

U.S. Supreme Court Rules on Disparate Treatment Discrimination Claims Under ADEA

On June 19, 2009, the United States Supreme Court rejected a “mixed-motive” analysis and held that plaintiffs bringing disparate treatment claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. Section 621 et seq., must prove by a preponderance of the evidence that, “but for” their age, the employer would not have taken the challenged adverse employment action.

View full article (PDF).

The Low-Down on Layoffs

Back in May of 2007, Dell announced plans to lay off 8,800 employees.  By October 2008, the company was embroiled in a class action discrimination lawsuit involving former employees seeking more than $500 million in damages.  While reductions in force may allow your organization to remain viable in difficult financial times, the failure to plan sufficiently and to organize a layoff can spell legal trouble.  Aside from claims alleging discrimination, you may also be facing claims for breach of contract, violation of wage statutes and even federal layoff rules (the Worker Adjustment and Retraining Notification Act, or WARN Act).   View full article (PDF).

This article appeared in Seattle Business magazine.

Revised Form I-9 Becomes Effective April 3, 2009

The Department of Homeland Security has revised the Employment Eligibility Verification Form (“Form I-9″), altering the list of documents employers may accept to verify work authorization and identity. Employers, agricultural recruiters and referrers, for a fee, must use the new version of the I-9 starting April 3, 2009. View full article (PDF).

Stimulus Plan Provisions for Favoring U.S. Workers Before Hiring H-1B Foreign Workers: Focus on Financial Institutions

The economic stimulus package that Congress passed and President Obama signed into law on February 17, 2009, imposes U.S. worker recruitment and retention, as well as record keeping obligations, on certain federal funds recipients before hiring H-1B foreign workers. View full article (PDF).

President Obama Signs Stimulus Bill Expanding Health Care Coverage Continuation Rights For Employees

President Obama today signed into law the economic stimulus bill, formally known as the American Recovery and Reinvestment Act of 2009 (the “2009 Recovery Act”). The 2009 Recovery Act contains an important expansion of health coverage continuation rights for employees who were or will be involuntarily terminated between September 1, 2008, and December 31, 2009. These involuntarily terminated employees qualify for a 65 percent reduction in their continuation health plan premiums. Their covered family members who elect continuation coverage also qualify for the same subsidy. View full article (PDF).

The New President: What the Obama Administration will Mean to Employers

Under Barack Obama’s presidency, employers should expect dramatic changes to their work environment. Here is a short summary of key labor initiatives that will likely be passed. View full article (PDF).

This article first appeared in BUILDERnews magazine.

Ledbetter Fair Pay Act Expands the Time Period for Employees to Raise Pay Claims

Considered a top priority for labor and women’s rights groups, President Barack Obama just signed the Lilly Ledbetter Fair Pay Act of 2009 (“Act”) into law today, January 29, 2009. The Act was passed by both houses of Congress as a direct response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which restricted the time period in which employees could file a discriminatory compensation lawsuit. View full article (PDF).

Reminder: Today, January 16, 2009, is the Day New FMLA Regulations Go Into Effect

The U.S. Department of Labor (“DOL”) has issued new regulations interpreting the Family and Medical Leave Act (“FMLA”). The new regulations are extensive; the regulations and the accompanying comments by the DOL occupy more than 200 pages of the Federal Register. In addition, the long awaited regulations on the new forms of leave for military families have been finalized and adopted. A copy of the new regulations, which go into effect Friday, January 16, 2009, and the DOL’s comments on the regulations, along with the revised poster, new forms and “FAQ” informational material related to both military and nonmilitary related leaves, may be found at the DOL website.

View full article (PDF).

Why Employee Performance Evaluations are Important for Every Size Business

Many small businesses mistakenly believe that because of their size, they do not face the same legal liability as larger companies when it comes to managing their employees. This can be a costly mistake. While small businesses may not be covered by federal legislation—such as Title VII or the Americans with Disabilities Act—state and local laws often apply similar standards to small businesses, including many anti-discrimination laws. View full article (PDF).

This article first appeared in BUILDERnews magazine.