This speech provides the viewer with updates in Oregon and federal law (primarily from 1/1/12-present).

1. The New, the Not-so-New and the
Downright Ugly Laws You Need to Know
Presented by Tamara E. Russell
At the OSWAHCR May 2012 Meeting

2. Legislative, Administrative and Otherwise
“No man’s life, liberty or property are safe
while the legislature are in session.”
-- Judge Gideon J. Tucker

3.  Adds “job applicant who is currently
unemployed” to the list of protected classes
under ORS Chapter 659A
 Companies may not include in job
advertisements:
• the requirement that candidates must be currently
employed (no mention of an applicant‟s employment
status)
• the company‟s intent to consider or review applicants
only from those candidates who are employed
 ButOK to state that licensing must be
current, only current employees of the
company will be considered, etc.

4.  The EEOC held that transgender workers
are protected by Title VII.
 The opinion is the first from the EEOC to
address legal protections for transgender
employees.
 Employers now face federal claims of
discrimination by employees who are not
traditionally gendered, in addition to
Oregon claims.

5.  Oldlaw: ORS 811.507 banned the use of hand-
held cell phones in most circumstances.
• One exception: OK to use hand-held cell phone in the
scope of the person‟s employment “if operation of the
motor vehicle is necessary for the person‟s job.”
 New law: Eliminates the on-the-job provision
• Also gives law enforcement officials the right to stop a
car solely because the person appears to be violating
ORS 811.507

6.  Update your company vehicle use policy or
announce the change in the law
- OR –
 Implement a vehicle use policy/announce
the new law

7.  OLD: To be effective, the written agreement
must be presented to the employee no less
than two weeks‟ before employee‟s anticipated
start date, with an offer of employment (or upon
“bona fide advancement”) (ORS 36.620)
 NEW: To be effective, the written agreement
must be presented to the employee no less
than 72 hours‟ before employee‟s anticipated
start date, with an offer of employment (or upon
“bona fide advancement”)

8.  NEW: The following language must be
included in the agreement, which must be
signed by the employee:
I acknowledge that I have received and read or have
had the opportunity to read this arbitration agreement. I
understand that this arbitration agreement requires that
disputes that involve the matters subject to the
agreement be submitted to mediation or arbitration
pursuant to the arbitration agreement rather than to a
judge and jury in court.

9.  NLRB meddling: D.R. Horton, Inc.
357 NLRB No. 184 (January 3, 2012)
 An employer violates the NLRA by
conditioning employment on agreements
providing that all employment disputes and
claims will be resolved in arbitration
• No foreclosing any litigation of “class” or “collective”
claims in court or arbitration, either.

10. D.R. Horton, Inc. key employer takeaways:
 Arbitration
agreements for supervisors,
managerial employees and independent
contractors unaffected by ruling
 Forregular employees, check your arbitration
agreements as to scope.
• Consider adding: “Nothing in this agreement is intended
to preclude an employee‟s participation in class or
collective actions, or to otherwise chill an employee‟s
NLRA rights.”

11.  Employers must continue health, disability, life or
other insurance coverage for an employee during
times when the employee serves or is scheduled to
serve as a juror
 Applies to employers with 10 or more employees
 The employee must provide notice to the employer
of his or her election to have coverage continue
during jury duty
 A limited process exists to recover costs of the
employee‟s share of premiums.

12. HB 3034 (codified at ORS 10.090)
 Employers are now prohibited from requiring
employees on jury duty to use vacation, sick
or other annual leave for time spent
responding to jury summonses, or for time
spent on jury duty
 Theemployee must be allowed to take
unpaid leave instead

13.  National incarceration statistics “support a
finding that criminal record exclusions
have a disparate impact based on race
and national origin.”
 Therefore,per the EEOC, it is unlawful to
exclude candidates for
employment/promotion because of a
criminal past UNLESS the employer can
show that the exclusion is “job-related and
a business necessity.”

14.  “Job-related/business necessity defense”
1. Validate the criminal record exclusion for the position
in question per the Uniform Guidelines on Employee
Selection Procedures standards (if such validation is
possible); or
2. Develop a targeted screen considering the nature or
gravity of the criminal offense, the time elapsed since
the offense or completion of the sentence, and the
nature of the job. Then provide an individualized
assessment for all individuals excluded by the
screen to determine whether the policy as applied is
job-related and consistent with business necessity.

15. EEOC “best practices”:
 Eliminate overbroad policies that exclude
individuals from employment based on any
criminal record;
 Tailor policies for screening applicants to identify
the requirements of the job and determine specific
offenses that may demonstrate unfitness for such
jobs;
 Limit inquiries to criminal records for which
exclusions are job related and consistent with
business necessity;
 Train managers and hiring professionals on the
new tailored policies and Title VII discrimination.

16.  Set to become effective June 7, 2012 unless
enough signatures gathered to force a
referendum (due June 6).
 Little
effect on Washington employers
because of 2009 adoption of “everything but
marriage” domestic partner rights.
• Thus, registered domestic partners get the same
benefits and obligations that apply to spouses under
Washington law, including the right to use sick leave to
care for each other, the right to workers‟
compensation, unemployment and disability benefits.

18. ASurvey of Social Media Issues Before the
NLRB – Issued by the U.S. Chamber of
Commerce on August 5, 2011
• http://www.uschamber.com/reports/survey-social-
media-issues-nlrb
 Report
of the Acting General Counsel
Concerning Social Media Cases – Issued by
the NLRB on January 24, 2012
• https://www.nlrb.gov/news/acting-general-counsel-
issues-second-social-media-report

19.  Perthe NLRB, these policies violate the NLRA
on a per se basis because they could discourage
employees from making negative comments
about the terms and conditions of their
employment
 Outright“illegal” policy: “[m]aking disparaging
comments about the company through any
media, including online blogs, other electronic
media or through the media.”

20.  Per the NLRB, such a policy may not impinge on
employees‟ ability to discuss their wages and
working conditions with others inside or outside the
organization.
 Per se illegal, per the NLRB: A provision that
prohibited employees from “disclosing or
communicating . . . confidential, sensitive, or non-
public information concerning the company on or
through company property to anyone outside the
company without prior approval of senior
management or the law department.”

21.  NLRB: It is unlawful to have a policy which
prohibits “use of the company‟s name or service
marks outside the course of business without prior
approval of the law department.”
 Why? Employees have the right under the NLRA
to use the company‟s name and logo “while
engaging in protected concerted activity, such as
in electronic or paper leaflets, cartoons, or picket
signs in connection with a protect involving the
terms and conditions of employment.”

22. Per the NLRB, employers cannot
require employees to “expressly state
that their comments are their personal
opinions and do not necessarily reflect
the employer‟s opinions.”

23. Discussions of work-related concerns
Communications with the media
“Unprofessional conduct” and other
poorly defined terms

24. No access to social/web networking sites
or blogs using employer-provided
equipment (computers, cell phones, etc.)
• Consider blocking access to the well-
known accounts
Employees may not access social/web
networking sites and may not blog during
work hours

25. Employees should expect that any
information created, transmitted,
downloaded, exchanged or discussed on
social networking sites and/or blogs may be
accessed by the employer at any time
without prior notice
 No expectation of privacy!!

26. Employees may not use social media to post or
display comments about coworkers or supervisors
that are vulgar, obscene, threatening, intimidating,
harassing or a violation of the Employer‟s
workplace policies against discrimination,
harassment, or hostility on account of age, race,
religion, sex, ethnicity, nationality, disability or other
protected class, status or characteristic.

27. Employees who comment about
Employer‟s products or services must
identify themselves in their post and
state something to the effect of, “The
views expressed here are my own. My
employer did not review these before I
posted them.”

28. Employees are prohibited from using or
disclosing confidential and/or proprietary
information, including personal health
information about customers [patients,
clients, etc.]

29. “Any conflict between the law and policy
language will be decided in favor of the law.
Nothing in this policy is intended to chill an
employee‟s right to engage in concerted
activities under the NLRA.”

30. The next potentially problematic area for employers

31.  Maryland became the first state in the
country on April 9, 2012, to pass legislation
prohibiting employers from requiring or
seeking user names, passwords or any
other means of accessing personal
internet sites as a condition of employment
 Four other states considering similar
legislation (California, Illinois, Minnesota
and New York)

32.  Members of U.S Congress asked the U.S.
DOJ and the EEOC to launch a federal
investigation into whether employers who
ask for their applicants‟ and employees‟
passwords and usernames violate federal
law
 Two weeks ago: “Social Networking Online
Protection Act” (SNOPA) introduced

33. Oregon and federal law

34.  February 3, 2012: EEOC issues final rule that
goes into effect April 3, 2012:
• Employers must retain workplace records so that the
EEOC is able to assess an employer‟s compliance with
GINA‟s prohibition of employment discrimination based
on a worker‟s genetic information
 Good news: This requires no additional
document retention efforts if personnel and
employment records are currently kept for a
year following an employee‟s departure

35.  OFLA – updated January 2012
• Applicable to Oregon employers with 25 or more
employees
 Minimum Wage (Oregon only) – updated
January 2012
• Applicable to all Oregon employers
 Unemployment Benefits (Washington) –
updated 4/12

36.  “Employee Rights Under the NLRA”
 English, Spanish and 23 other non-English
versions available at:
https://www.nlrb.gov/poster
 April 17, 2012 - The U.S. Court of Appeals
for the District of Columbia enjoined the
NLRB's Notice posting.
• Employers do not have to post the Notice until the
Court of Appeals decides the issue

37.  New form for 2012
 Under the Patient Protection and Affordable
Care Act (health care reform), employers must
report the aggregate cost of applicable
employer-sponsored health coverage on
employees‟ Forms W-2 starting in the 2012 tax
year.
• Employers who filed fewer than 250 Forms W-2 in 2011
are not required to report.
 For more information, go to
http://www.irs.gov/newsroom/article/0,,id=237894,00.html

38.  WH-380-E,
WH-380-F, WH-381, WH-382,
WH-384, WH-385 – reissued late February
2012
 OOPS! Two big omissions . . . .

39.  No GINA “safe harbor” for employers
• Employers may lawfully request medical
information if the employer informs the employee
at the time the information is sought that it is not
seeking genetic information about the employee
or his or her family member.

40.  So what to do? Attach “the” language:
 "The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities
covered by GINA Title II from requesting or requiring genetic information of employees or their family
members. In order to comply with this law, we are asking that you not provide any genetic information
when responding to this request for medical information. „Genetic information,' as defined by GINA,
includes an individual's family medical history, the results of an individual's or family member's genetic
tests, the fact that an individual or an individual's family member sought or received genetic services, and
genetic information of a fetus carried by an individual or an individual's family member or an embryo
lawfully held by an individual or family member receiving assistive reproductive services.”
 OR, attach simplified language that does the trick:
 Please do not provide any genetic information when
responding to this request for medical information. We
do not want you to produce family medical history, the
fact that you or a family member sought or received
genetic services, or personal or a family member‟s
genetic test results.

41.  Missing military leave provisions:
1) An employee's right to protected FMLA leave as a
result of a family member's call to duty in a foreign
country (a qualifying exigency; the form WH-384 only
discusses "contingency operations");
2) The fact that under "military caregiver leave," an
eligible employee can take leave up to five years
after the servicemember left the military (military
caregiver leave may be taken to care for veterans
who are undergoing medical treatment, recuperation
or therapy for serious injury or illness that occurred
any time during the five years preceding the date of
treatment) (WH-385)

42. But Stuff You Need to be Reminded About

43.  The Stored Communications Act (18 USC §
2702)
• Prohibits access to electronic communications
(including email and web sites) unless the
accessor is the provider of the email account or
the owner of a web site
 Konop v. Hawaiian Airlines, Inc. (9th Cir 2002)
 Pietrylo v. Hillstone Restaurant Group (D.N.J.
2009)
 Violation of SCA when an employer accessed an
employee‟s password-protected web site

44.  Be careful of post-termination email searches
 Do you have a policy now that puts employees on
notice of possible email searches?
 Are you limiting searches/monitoring to information
necessary to determine whether employees are
complying with employer policy?
 If you receive a report of misconduct on a password-
protected web site, ask someone with the password to
print out a copy for you
• Also get signed authorization from the password-holder to do so
(and give them the right to revoke the password)

45.  Expressing any views, arguments or
opinions or the dissemination thereof,
whether in written, printed, graphic or
visual form shall not constitute or be
evidence of an unfair labor practice… if
such express contains no threat of
reprisal or force or promise of benefit
• Section 8(c)

46.  “[Employer]is a union-free company. It
always has been, and we desire that it will
always remain so. We prefer to deal directly
with our employees instead of through a third
party, and we believe that sound leadership
and concern for our employees is the best
way of ensuring the propriety of our company
and the welfare of our employees.”
• In re Hancock, 337 NLRB 1223 (2002), enforced as modified, John
W. Hancock, Jr., Inc. v. N.L.R.B., 73 Fed. Appx. 617 (4th Cir. 2003)

47.  Employee/plaintiff claimed he was fired because
his fiancée filed a sex discrimination charge with
the EEOC
 Two lower courts found that Thompson could
not sue because he had not engaged in an
activity that Title VII protects – he had not been
fired after complaining about discrimination
himself or otherwise engaged in protected
activity

48.  U.S.Supreme Court: Thompson may
sue because he is in the “zone of
interests” protected by Title VII
• This is true even if the employee does not
directly engage in a “protected activity” (e.g.,
complaints of workplace discrimination or
harassment)

49.  Training
 Update (or create) job descriptions
 Audit independent contractor arrangements
 Review employees classified as “exempt”:
Are they really? Are they still?

50. World of Employment Law

51. If an employee becomes incarcerated in jail and is not
expected to be released from jail in time for the employee
to go to work, it is the employee‟s responsibility to either
call the employee‟s manager/supervisor as soon as he
becomes incarcerated, or at the very least two hours
before his/her shift begins in order to allow his/her shift to
be covered for the day.
The Company has discretion to either terminate the
employee or work with the employee; however, if the
employee fails to notify the Company on the first day of
his incarceration or on the first day he would have worked,
the employee will be immediately terminated as of the first
day he did not return with no reinstatement rights.

52.  Company provides “severance” on an
occasional basis to departing employees.
 Employee is terminated for performance issues
 Employee asks for severance and complains,
on the way out the door, that she had been
sexually harassed “for months.”
 Eight months later, she files a BOLI claim, and
company tenders the complaint to its insurance
carrier.
 Coverage denied! “Severance” = “money”

53. “... you can either
ask the question
or
experience the answer ...”
- Author unknown
(source: http://www.gaia.com/quotes/topics/questions)

54. Thank you, OSWAHCR!
Tamara E. Russell
503.228.0500 | trussell@barran.com