Stoel Rives Law Firm : World of Work Law Blog : Disabilities, FMLA, Military Leave, NLRA : Western United States

The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment.  Click on the title of each to read the proposed rule:

• Religious worship, child support obligors, physical accommodations for eligible disabilities.  The proposed rules would implement statutes:
  • requiring employers to reasonably accommodate wearing of religious clothing and leave for religious practices (SB 786)
  • making discrimination by employers against child support obligors an unlawful employment practice (ORS 25.424(3))
  • requiring places of public accommodation to provide access to employee toilets for customers with eligible medical conditions (SB 277)
  • requiring transient lodging of 175 or more units to provide lifts for individuals with disabilities (HB 3256). 
• Compliance with the ADAAA, preferences for veterans, and discrimination on the basis of uniformed service.  The proposed rules and amendments would implement:
  • amendments to statutes providing for employment preference for veterans.
    (HB 2510)
  • amendments to disability discrimination statutes to conform them to the
    federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (SB 874)
  • statutes prohibiting discrimination in employment on the basis of uniformed
    service (HB 3256).
• Home Health Agencies, Wage Security Fund.  The proposed rule amendment would:
  • implement HB 2595, enacted in 2009, which prohibits home health agencies and hospice programs from paying nurses providing home health or hospice services on a per-visit basis
  • clarify conditions to be met in qualifying for payments from the Wage Security Fund and delete obsolete references in the agency’s insurance cancellation notification rules.
• Employment of Minors.  The proposed rule amendment would:
  • implement House Bill (HB) 2826 enacted in 2009, which removes the requirement that employers obtain a special permit before employing a minor under 16 years of age until 7 p.m. (9 p.m. between June 1 and Labor Day).
  • conform current language in the rules to the provisions of HB 2826, which shifts authority for the issuance of agricultural overtime permits from the Wage and Hour Commission to the Commissioner of the Bureau of Labor and Industries
  • clarify that minors may not be employed to operate or assist in the operation of power-driven farm machinery unless the employer has obtained an employment certificate as required and the minor has received required training in the operation of such machinery.
• Rest and meal periods.  The proposed rule amendment would address the provision of rest and meal periods to employees, including factors to be considered in determining when an employee is prevented from receiving regularly scheduled meal and rest periods.
• Prevailing Wage.  The proposed rule amendments would make permanent the temporary rules currently in place regarding prevaling wage rates. 

Click here for more information on BOLI's proposed rule changes, including information on how to make public comment and the deadlines for doing so. 

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The Oregon Legislature was in session in 2009, and many labor and employment-related bills came up for consideration.  A complete list of the bills that passed and the bills that failed follows below (you may have to click "continue reading." 

Several passed and will become law effective January 1, 2010.  Several others didn't get the support they needed to become law, but employers may want to take note as they may gain more traction in the next legislative session. 

Notable winners:  leave for military spouses, a ban on "captive audience" union meetings, and protections for stalking victims.  Notable losers:  several attempts to clarify an employer's obligation to accommodate medical marijuana use. 

Up next:  a federal labor and employment legislation update.  Stay tuned!

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On Thursday, in Herbert v. Altimeter, the Oregon Court of Appeals held that an employee does not need to actually be disabled in order to be protected from retaliation for requesting an accommodation under Oregon’s disability anti-discrimination law.  The case serves as a useful reminder that anti-retaliation protections, like those in the Oregon disability law, can be very broadly applied and protect many types of employee requests or complaints. Employers should be careful when disciplining or terminating any employee who has recently made some kind of arguably protected request or complaint.

Sherrie Herbert was terminated from her truck-driving job with Altimeter shortly after she became ill, allegedly from exhaust fumes in the cab of her truck, and she reported those problems to her boss. She sued under various retaliation theories, including that she was terminated in retaliation for her having requested an accommodation for a disability (i.e., requesting to be reassigned to a different truck). The trial court granted a directed verdict for Altimeter at the close of Herbert’s case at trial and dismissed all claims.

The Court of Appeals reversed.  Altimeter argued that it couldn’t have retaliated against plaintiff for requesting an accommodation as a matter of law, because she was not disabled and therefore not protected under the Oregon disability law's anti-retaliation provisions.  The court rejected that argument, noting that while the law requires Oregon employers to provide a reasonable accommodation to a “person with a disability,” the anti-retaliation provision, ORS 659A.109, protects any “worker” who requests an accommodation.  So, the court reasoned, by its plain terms the statute protects a broader class of employees (all of them) who make protected requests for accommodations, even though those employees may not be entitled to an actual accommodation. 

The opinion also contained an illustrative reminder about the importance of well-drafted written responses filed with the Equal Employment Opportunity Commission (“EEOC”), the Oregon Bureau of Labor and Industries (“BOLI”), and similar agencies. Those written position statements are admissible later; if they’re not carefully drafted they could come back to bite the complainant. In Herbert, Altimeter’s BOLI position statement included several damaging admissions, the worst of which essentially stated that she was terminated because she insisted she be reassigned to another truck, i.e., requested an accommodation.  Despite a general lack of other evidence of retaliation presented by Herbert at trial, the Court held that Altimeter's admission in the BOLI statement alone was enough to allow that claim to go to a jury. 

Oops!  While there are no easy, hard-and-fast rules about how to draft effective BOLI or EEOC position statements, generally you want to say as little as possible while still making your case, and above all, you don't want to provide the only evidence a plaintiff will need to take his or her case all the way to a jury!!  Those kinds of careless statements early on can make litigating employment discrimination lawsuits very expensive for employers, because they become much harder to get dismissed before trial.

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The Oregon Bureau of Labor and Industries (BOLI) will hold three public forums on possible regulatory changes to the Oregon Family Leave Act (OFLA) to better align it with the recently revised federal Family and Medical Leave Act (FMLA).  BOLI is also seeking public comments through its regular comment process.  After receiving and reviewing the comments, BOLI will determine if any changes should be made to make Oregon leave law rules more similar to federal regulations.  Click here to read BOLI's press release on the forums, and click here for BOLI's notice of public comment. 

Interested in attending one of the forums?  Here is a list of places and times:

Thursday, February 26, 4:00-6:00pm
City of Eugene,City Council Chambers
777 Pearl Street
Eugene, Or 97401

Tuesday, February 24, 4:00-6:00pm
Portland State Office Building
800 NE Oregon St., Room 1-B
Portland, OR 97232

Thursday, February 26, 4:00-6:00pm
Portland State Office Building
800 NE Oregon St., Room 1-B
Portland, OR 97232

Would you rather comment in writing?  Written comments may be sent to Amy.K.Klare@state.or.us or to Amy Klare, BOLI Civil Rights Administrator, 800 NE Oregon St. #1045, Portland, OR 97232. Written comment must be received by 5pm on March 6, 2009.

Want to know the differences between current OFLA and the new FMLA regulations?  BOLI has prepared this handy OFLA/FMLA comparison chart.  You can also download BOLI's brief on Implementing OFLA Under FMLA rules. 

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The Oregon Bureau of Labor and Industries (BOLI) issued a revised regulation earlier this week on employees’ meal breaks which will be of interest to many smaller employers. 

The revised regulation, which is effective as of January 12, 2009, retains the basic requirement that employees normally be provided with a 30-minute, unpaid meal period in which they are relieved of all duties (for shifts longer than 6 hours).  However, it adds additional options for employers who do not provide the full 30-minute meal period and/or relieve an employee completely from duty (such as when the employee remains on-call).

Under the new regulation, an employer is not required to provide an employee with a 30-minute meal period in which the employee is relieved of all duties if the employer can demonstrate that:

1.  failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period;
2. industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duties; or
3. providing a 30-minute, unpaid meal period where the employee is relieved of all duties would impose an “undue hardship” on the operation of the employer’s business (the regulations also provide guidance on what is an “undue hardship”). 

An employer that does not provide meal periods under the “undue hardship” exception must comply with two additional requirements: (a) the employer must also provide the employee adequate periods in which to rest, consume a meal, and use the restroom without deduction from the employee’s pay; and (b) the employer must first provide to each employee a notice provided by BOLI regarding rest and meal periods in the language used by the employer to communicate with the employee.  BOLI will make such notices available by March 16, 2009.

Want more information?  Click here to download BOLI's  press release explaining the new regulations. Or click here to download the full text of the new regulation, including the definition of undue hardship.  Or, click here if you want BOLI's full run-down of the law on rest and meal breaks in general. 

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