Dennis Westlind
Dennis Westlind is a member of Stoel Rives LLP, practicing in the Labor and Employment group. Based in the firm’s Portland office, Dennis represents employers in both state and federal courts as well as before administrative agencies and in both private and public arbitrations. His cases have included wrongful discharge, harassment, workplace torts, wage and hour disputes, workplace violence and discrimination. He also maintains an active practice in traditional labor law. Dennis is recognized by Chambers USA (2009) as one of Oregon’s up and coming labor and employment attorneys. He serves as editor for The World of Work blog.
Senate Jobs Bill: Tax Incentives to Hire Unemployed, but no COBRA Subsidy Extension
Yesterday the U.S. Senate voted 70-28 to approve the Hiring Incentives to Restore Employment (HIRE) Act, a $15 billion bill aimed at creating jobs, helping small businesses, and rebuilding public infrastructure. However, the bill does not include a further extension of the current COBRA subsides for unemployed workers, nor does it increase funding for state unemployment insurance programs. Click here to read the New York Times' coverage of the HIRE Act's passage. Click here to read the full text of the HIRE Act.
The key features of the HIRE Act include:
- An exemption from Social Security payroll taxes for private employers for each worker hired in 2010 who previously had been unemployed for at least 60 days;
- A $1,000 income tax credit for private employers for each new employee hired in 2010 and retained for at least 52 weeks and claimed on the employer's 2011 income tax return;
- An extension of the small business “expensing” tax break for one year, allowing small businesses to continue writing off up to $250,000 of certain capital expenditures instead of depreciating them over time;
- A $2 billion Build America Bonds program, which would provide an optional direct subsidy payment in lieu of a tax credit for tax credit bonds issued for certain school and energy projects; and
- Expanded federal aid for highway programs.
The HIRE Act now goes to the House of Representatives. Although some House Democrats have grumbled that the bill does not do enough, it is still expected to quickly pass and become law.
While the HIRE Act does not extend the COBRA subsidy or unemployment insurance, extensions of those programs are not off the table. Both of those programs are set to expire on February 28, but yesterday Senate Majority Leader Harry Reid proposed language that would extend the unemployment benefits program to April 5, 2010 and COBRA benefits to March 28, 2010. Click here to read the text of Senator Reid's proposed COBRA extension. We expect to see quick debate on Senator Reid's proposal, either as an amendment to an existing bill or a stand-alone bill, so stay tuned to the World of Work Blog to see if it passes.
Oregon Legislature Bans Workplace Credit Checks
This week the Oregon House voted to prohibit employers from using credit histories for any employment purposes including hiring, discharge, promotion and compensation. The Oregon Senate passed the bill last week, and Governor Ted Kulongoski is expected to sign the bill into law effective July 1, 2010. Click here to download a copy of the bill, SB 1045.
A violation of the new law will be an unlawful employment practice, and an aggrieved employee could either file a complaint with the Bureau of Labor and Industries (BOLI) or file a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney's fees.
The new law will have some narrow exceptions: banks and credit unions, public safety and law enforcement officers, employers who are required by state and federal law to use credit histories for employment purposes, and other employment if credit history is "substantially job-related" and the use of the credit check is disclosed in writing. The bill does not give any guidance on what it means for a credit check to be "substantially job-related," but we're assuming that courts will construe that requirement very narrowly.
Oregon employers who are currently using credit checks as part of their employment processes should make sure they fit into one of the exceptions and, if not, find alternatives by July 1. The law only prohibits the use of credit history, so other background checks - such as criminal background checks - are not affected.
EEOC Proposes New Age Discrimination Regulations
Today the Equal Employment Opportunity Commission (EEOC) releases new regulations that will define employers' "reasonable factors other than age" or "RFOA" defense under the Age Discrimination in Employment Act (ADEA). The new regulations would reflect two Supreme Court cases interpreting the RFOA defense: Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Laboratories (2008). Click here to read the EEOC's Proposed ADEA Regulations.
The Supreme Court held in Smith that employment practices having a disparate adverse impact on workers age 40 and older may violate the ADEA. The Court in Meacham then ruled that when a plaintiff proves such an adverse impact, employers have the burden of proving that the practice that caused the adverse impact was based on reasonable factors other than age.” Since Smith and Meacham, however, there have not been any interpretive regulations under the ADEA to guide employers on the RFOA defense.
The proposed rule defines a "reasonable factor other than age" as "one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances. To establish the RFOA defense under the new rules, an employer must show that the employment practice was both (1) reasonably designed to further or achieve a legitimate business purpose and (2) administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer. The rule also provides a non-exhaustive list of six factors relevant to determining whether an employment practice is "reasonable":
- Whether the employment practice and the manner of its implementation are common business practices;
- The extent to which the factor is related to the employer’s stated business goal;
- The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
- The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
- The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
- Whether other options were available and the reasons the employer selected the option it did.
The EEOC's proposal also explains that the RFOA defense turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.
An employer who is considering a change in employment practices -- such as a layoff, change in employment qualifications, etc. -- should examine the impact of the change to determine whether it may create an adverse impact based on age. If it appears that it may, the employer should then apply the EEOC's six factors to see if it can adequately defend the change as based on reasonable factors other than age. If the change does not appear to pass each of the EEOC's six factors, the employer may want to consider altering the change to reduce the impact or abandoning it altogether.
When Is It Okay to Cuss Out Your Boss?
Most of us assume that if an employee swears at a manager or, he or she can be disciplined or even fired. That assumption may be wrong, depending on the context in which the swearing occurs. A federal judge recently held that the Federal Aviation Administration violated federal labor law when it removed a local union president from its premises after he used profanity toward his supervisor in the course of union activity. Click here to read the opinion in FAA and National Air Traffic Controllers Association.
In FAA, an employee (who was also the union president) got into a verbal altercation with his supervisor over what the employee felt were insufficient staffing levels under their union contract. In the course of that altercation, the employee told his boss: “F*** you, I don't give a f***!” (Imagine a certain four-letter word that rhymes with "duck.") In response, the supervisor had the employee escorted off of the employer's premises. A federal judge held that the employer's response violated the employee's rights under federal labor law. The judge ruled that because the swearing occurred in the course of union activity, it was protected speech: “the use of profanity, standing alone, does not remove conduct or speech from the protection of [federal labor law]." The Judge also noted that the outburst was brief, made in a normal tone of voice, and not overheard by other employees.
FAA teaches us an important lesson: even relatively robust swearing by an employee during the course of otherwise protected activity may be protected. The same logic behind the FAA decision could possibly apply to other types of protected employee speech: union activity, harassment complaints, discrimination complaints, safety reports, etc.
So when does profanity, even in the scope of protected activity, lose its protection? There are no "bright line" rules, but courts look to several factors:
- the volume, severity and duration of the outburst
- whether it is accompanies by threats or threatening gestures
- whether there is a workplace culture that condones or encourages profanity
- whether it is overheard by other employees
- whether the profanity is likely to disrupt workplace operations
- whether it rises to the level of verbal harassment that may violate the employer's policies
- whether it was a spontaneous outburst made out of frustration, instead of a premeditated attempt to humiliate the supervisor.
In any event, employers should proceed with a great deal of caution before disciplining an employee who uses profanity in the course of a protected activity. If the swearing was not in the course of a protected activity, disciplining the employee for insubordination or unprofessional behavior is relatively risk-free.
Federal Government to Crack Down on Misclassified "Independent Contractors?"
It's always risky to misclassify someone who should be an employee as an "independent contractor," but President Obama's 2011 budget proposal will increase the risks for employers. According to this budget summary from the U.S. Department of Labor, the misclassification of employees as contractors is estimated to cost the Treasury Department over $7 billion in lost payroll tax revenue over the next ten years. To help make up for this shortfall, the proposed budget includes funds earmarked for a "joint proposal" between the DOL and the Treasury Department to eliminate legal incentives for such misclassification, and an additional $25 million to target misclassification with 100 additional enforcement personnel and competitive grants to boost states’ incentives and capacity to address this issue.
If this budget provision goes into effect, employers will need to be particularly careful not to misclassify employees as contractors. Of course, it's already a risky proposition to misclassify employees as contractors. For example, as we reported back in 2008, FedEx was on the wrong end of a $14 million award after a California court concluded that the shipping giant misclassified hundreds of drivers as contractors. Lawsuits in this area are common, ranging from individuals seeking unpaid wages and overtime to multi-million dollar class actions. Federal and state governments are also known to go after employers for unpaid payroll taxes and associated penalties.
Are you concerned that your independent contractor might actually be a misclassified employee? The IRS has published this handy information on how to determine whether the employee is correctly classified. There is even an IRS form (Form SS-8) that you can file to seek the Service's help in determining if your employee is correctly classified. Of course, if you believe that you have misclassified employees working as contractors, it might be a good time to contact your labor and employment attorney.
Homeland Security Announces Temporary Protected Status for Haitian Nationals
Homeland Security Secretary Janet Napolitano announced last week a temporary protected status ("TPS") for Haitian nationals who were in the United States as of January 12, 2010. The temporary status will allow eligible Haitian nationals to continue living and working in the United States for the next 18 months. "Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this administration's continuing efforts to support Haiti's recovery," said Napolitano in a statement. Click here to read Napolitano's complete statement.
The temporary status is intended to allow Haitian nationals to stay for 18 months, authorize them to work and send remittances back to Haiti to help the nation "get back on its feet." However, Haitians who now attempt to travel to the United States will not be eligible for the temporary status and will be repatriated to Haiti.
Employers should be aware that Haitian nationals may be legally authorized to work in the United States under the TPS program without being able to present documents that would normally satisfy the requirements of form I9. Employers should review the TPS eligibility for any Haitian nationals who do apply for work. Haitians in the U.S. who may be eligible to apply for TPS should call U.S. Citizenship and Immigration Service toll-free at (800) 375-5283.
COBRA Subsidy Extended Through February 28, 2010
As originally enacted as part of the 2009 stimulus package, the COBRA subsidy provided up to nine months of health insurance premium assistance for covered workers who were involuntarily terminated on or before December 31, 2009. Last week, President Obama signed a bill that extends the COBRA subsidy for involuntarily terminated employees in two ways: First, it extends the eligibility period to provide assistance to workers who were involuntarily terminated on or before February 28, 2010; second, it provides up to 15 months of insurance premium assistance.
Employers should, as soon as possible but in any case no later than February 21, 2010, provide notices to all former employees who may be affected by the extension informing them of their rights. Employers should also update the COBRA subsidy information they are currently providing to employees upon termination to ensure that it accurately reflects the eligibility period.
Want to know more? For more information on the COBRA subsidy in general, read Stoel Rives' COBRA Subsidy Alert from earlier this year (but ignore the out-of-date eligibility dates). You can also click here to read the IRS' COBRA subsidy information page, with answers to frequently asked questions.
Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010
Wow, it's Festivus already, which means that in just a few short days it will be a brand new year! We have a Festivus present for Oregon employers to help you get ready: Ten things you need to know for 2010! (click on each blue hotlink for more information)
- All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
- The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
- As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate.
- Leave for Military Spouses: Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty.
- In 2010, you might have a greater duty to accommodate employees' religious dress and practices.
- Domestic Violence Leave and Accommodations: Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must make reasonable accommodations for such employees.
- In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
- Oregon's minimum wage will remain $8.40/hour.
- Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act.
- Oregon has new rest and meal break regulations.
And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength. Happy festivus, and see you in 2010!
Oregon Employers: Download SB 519 (Mandatory Meeting Ban) Notice Here!
Back in June, we reported on Oregon SB 519 - the law taking effect January 1, 2010 that will prohibit Oregon employers from disciplining any employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters - including labor unions.
SB 519 also requires ALL Oregon employers to post a notice informing employees of their rights under the new law. We usually rely on the Oregon Bureau of Labor and Industries (BOLI) to supply us with all mandatory postings, but BOLI has chosen not to publish an SB 519 posting.
We at the World of Work and Stoel Rives couldn't just leave you in the lurch - we have created our own SB 519 Poster - just click the link to download, free of charge. It's a .pdf document, and we've included two per page, just in case you want multiple copies. We would recommend that you post the notice wherever you typically put up your employment law posters. If you have an extra copies, we think they make excellent stocking stuffers (at least for the HR professional in your family).
DISCLAIMER! (You knew this was coming, right?) No government official or agency has approved this poster as fulfilling the SB 519 requirements. This poster represents our best efforts to create a poster that complies with those requirements, but we make no representations, promises or warranties as to whether it fulfills the legal requirements of SB 519. As always, the materials available at this web site/blog are for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site/blog or any of the materials or e-mail links contained within the site do not create an attorney-client relationship between Stoel Rives and the user or browser.
Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers
Yesterday the United States Supreme Court agreed to consider whether a police officer has a reasonable expectation of privacy in text messages sent using his department-issued pager. The Ninth Circuit Court of Appeals ruled earlier this year that the officer had such a privacy right. Click here to read the opinion below in City of Ontario, California v. Quon.
In Quon, the employer, the City of Ontario, distributed to its police officers pagers with texting capability. The City then audited the use of text messages by the officers to determine whether overage charges may have been caused by personal use of the service. During the audit, it discovered that Quon had sent several personal, sexually explicit text messages. Quon sued the City, asserting violations of his right to privacy under the Fourth Amendment of the United States Constitution as well as under Article I, Section I of the California Constitution. The District Court dismissed Quon's suit after a jury found that the City conducted the audit to investigate usage, not misconduct. The Ninth Circuit reversed, holding that the City violated Quon's constitutional privacy rights by reading his private texts, and the City's articulated policies did not give Quon sufficient notice that his texts could by read by others to overcome his privacy rights.
What does this mean for employers? For most private employers, this case will have little or no impact. Federal privacy rights, such as those that come from the Fourth Amendment, apply only to public employers and not to private ones. Private California employers should watch out: California courts have sometimes applied state constitutional rights to private employers, and could rule that their employees have privacy rights in work-provided email and text systems. Still, it is a good practice for all employers, public and private and in all states, to adopt and distribute policies clearly stating that employees have no expectation of privacy in communications they make using employer-provided equipment and systems, such as email, text messages, cell phones, etc.
