i4cp November 2, 2018 Presented - PowerPoint Presentation

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i4cp

November 2, 2018

Presented

by Paula Barran

Uncorking HR: Legal UpdateOregon CUPA-HR Fall ConferenceSlide2

Pay to PlaySlide3

Of Course You’re Ready for Pay Equity!Most of Oregon’s Pay Equity law takes effect January 2019Other laws already in place:

Equal Pay Act, Title VII, ADEA, ADA, GINA, Title IX, 14th Amendment Equal Protection, Oregon Equal Rights Amendment, ORS Chapter 659A, ORS Chapter 652Comparing the jobs

Not “equal” – the new standard is “comparable character”Slide4

And of Course You Know That Starting Salary Can’t Be Set Based on Prior Salary

Rizo v. Yovino

: A 3-judge panel originally held that prior salary was a “factor other than sex” for purposes of the federal Equal Pay Act The Ninth Circuit en banc panel concluded that prior salary is not a job related factor AND perpetuates discrimination by a prior employerThis is now consistent with Oregon state lawSlide5

If You Don’t Have Time for Anything Else…Gather current, accurate, detailed job descriptionsGoing forward, update personnel records to include reasons for compensation decision-making

Make sure everyone stops asking “how much did you make in your last job…”Watch for the BOLI regulations (still in draft form, public comment period is closed)Get funding for a pay equity study

Or roll up your sleeves and do one yourselfSlide6

Remember the Overtime Rules?The Department of Labor is continuing its consideration of revisions to the white collar exemption regulations

Publication date is still unknownAs of October, 2018 the agency was still conducting “public listening sessions” There were five such sessions in September, 2018Slide7

Here’s What Interests the DOLAppropriate salary cut off level above which the exemptions apply.Best way to update salary cutoff level (wage growth, cost of living, actual wages paid).

Are there benefits and costs related to exempt status? (Additional certainty about who really is exempt. Cost to employer of overtime. How does exempt status affect real wages?)Should the level for highly compensated employees also be updated?Slide8

Unions in the Supreme CourtSlide9

Are You Public and Do You Have Unions?Janus: Union Support & FinancingJanus v. American Federation of State, County and Municipal Employees

(June, 2018): Public sector unions are no longer permitted to require agency fees from employees who do not consentOld rule: Public employee unions had been permitted to collect “agency fees” from non-members for chargeable expenses (expenditures attributable to activities germane to collective bargaining), but NOT permitted to collect agency fees from non-members to support the union’s political and ideological projectsSlide10

Back When Abood Was the Law… (Before Janus Overruled It)

The Abood court

thought: Agency fees promote labor peace But the fear of conflict is really unfounded Labor peace can be achieved through less restrictive means

Exclusive representation is inextricably linked to agency feesBut unions are effective in the 28 states that prohibit agency fees The Abood court was also concerned about free riders:In the jurisdictions that have no agency fees, unions do just fineSlide11

How Janus Made New LawThe First Amendment prohibits forcing free and independent individuals to endorse ideas they find objectionable or subsidize the speech of other private speakers

Abood was poorly reasoned and did not appreciate the way the First Amendment was implicated when a state REQUIRES payment of agency fees

Abood has proved unworkable because the line between chargeable and non-chargeable expenditures is impossible to draw with precision Slide12

Where We Are in OregonAttorney General advisoryPublic employers may not deduct agency fees from a nonmember’s wages nor may a union collect agency fees without the employee’s affirmative

consentSome nonmember employees have received refunds of agency fees

The Janus lawyers have sent cease and desist letters to some state and local officialsSlide13

Are Private Sector Unions Next?Slide14

Religion & Gender Rights in the Supreme Court (And No Real Answers)Slide15

Religious owner of bakery refused to create a wedding cake for a same sex unionColorado Civil Rights Commission concluded his refusal to do so was a violation of state law On VERY narrow grounds, the owner won, but the case didn’t really resolve the issues

Except for some pointed comments about mutual tolerance

Masterpiece Cakeshop v. Colorado Civil Rights Commission & Why We Need to Pick Our Cases More CarefullySlide16

Why Paula Thinks This Was a Bad Case to Pick to Clarify the Law

Is a wedding cake speech? An expression of religion? The record really didn’t explain whether the baker refused to sell a cake, or just refused to decorate one.

The refusal was BEFORE the Supreme Court ruled same sex marriage is a right, and while Colorado still prohibited same sex marriage.The same agency had allowed other bakers to refuse to provide cakes with messages opposing same sex marriage (so, viewpoint discrimination?).The Colorado Civil Rights Commission was pretty disrespectful to the owner. Justice Kennedy: “Tolerance is most meaningful when it’s mutual.” Slide17

How the Baker WonThe Colorado Commission’s actions violated the free exercise clause Religious and philosophical objections to gay marriage are protected views

The law must be applied in a manner that is neutral toward religion The baker’s claim that using his skill to make an expressive statement and wedding endorsement has a significant speech component and implicates deep and sincere religious beliefs

The baker was entitled to neutral and respectful consideration in all the circumstances of the case Slide18

Back to the Supreme Court?Slide19

Disability DevelopmentsSlide20

Disability: EEOC v. BNSF Bad Back + Request for MRI = ADA Violation

WD

Washington, on appeal to 9th Circuit

Employer may not condition job offer on post-offer MRI that applicant could not afford

Applicant for Senior Patrol Officer with past spinal disc extrusion No current back issues, functioning wellApplicant provided medical questionnaire and records

Including 4 year old MRI

Employer requested current MRI and radiologist’s report (>$2500)

Insurance would not pay because not medically necessary

No MRI, no jobSlide21

How the Court Got There “Regarded as” having a disabilityEmployer need not believe that the impairment is substantially limiting

But impairment must be current and something more than minor or transitoryBy requiring a current MRI, employer assumed that applicant had a back condition that could be disqualifying Employer could not condition progress through the hiring process on providing MRI at applicant’s own expense

Employers may require “employment entrance examinations” after conditional offer of employment But all others in the same category have to be subject to same requirementsThis was imposed discriminatorily on one candidate “Right to require” is distinct from “who pays?”Slide22

Pfendler: ADA & The Essential FunctionsPflender v. Liberty Dialysis

– Hawaii: Job descriptions should show essential functions that reflect the work as it is done on a regular basisEmployee’s permanent lifting restriction of 50 lbs

(dialysis recliners) did not meet job description requirements of 75-100 lbsBut employee presented evidence that the job did not actually require such heavy lifting Another employee stated his regular lifting requirement was only about 40 lbsPlaintiff testified that he never had to liftSlide23

Greenblatt: Injury From High Five Is Not Compensable

Greenblatt v. Symantec Corp: employee injured knee when “he leapt to try to slap the backboard of the basketball hoop”

Employer maintains a basketball court for employees to use during breaksEmployee did the move in part “because he was pleased with his good day at work” ALJ concluded that this was not barred by recreational exclusionThe recreational activity had ended

Claimant was returning to workThere was a work related purpose in jumping to express happiness and excitement about workWorkers’ Comp Board rightly disagreedThis was a recreational activity primarily for personal pleasure Slide24

Possible Upcoming Developments in Obesity Protection

Richardson v. Chicago Transit Authority, now pending in the Seventh CircuitBus operator suffering from morbid obesity (diagnosable at 315

lbs or more)At the time of an evaluation, plaintiff weighed 594 lbsBMI = 82.8 (normal range = 18.5-24.9)Trial court held:Severe obesity by itself (without being caused by some underlying physiological disorder or condition) is not a physical impairment under the ADA Slide25

#MeToo & #Time’sUpSlide26

Stetner v. City of Quincy: An Investigation May Be Sufficient Remedial Action

Plaintiff’s claims of sexual harassment rejected because:When plaintiff reported a co-worker’s harassment, supervisor relayed complaint to city administrator

City administrator promptly began investigationWithin three days alleged harasser placed on administrative leave and temporarily banned from workplace without permissionConduct reported to police and criminal charges filed Coworker never returned to workplace Slide27

Two Great SoundbitesAn investigation can itself be a powerful factor in deterring future harassment. When an employer opens a sexual harassment investigation, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.

The City’s response was adequate as a matter of law. The City took immediate action; the harassment ended; and the City’s response was likely to persuade potential harassers to refrain from unlawful conduct.Slide28

What the Nike Lawsuit May Mean for Other Employers

Class action lawsuit filed in Portland alleging sex discrimination because of:Old boy’s culture reinforced by small group of high-level male executives

Women are paid lessWomen are ranked more harshly and get smaller raises and bonusesWomen receive fewer promotion opportunities Women’s career trajectories are blunted because they are marginalizedThe Nike hierarchy is an “unclimbable pyramid” Nike HR is largely unresponsive Slide29

Speech (Whether Constitutional or Protected by Policy)Slide30

Reminder: What We Wouldn’t Have Without Freedom of SpeechSlide31
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Barone: Gag Orders & The First AmendmentBarone v. City of Springfield: Police department employee’s return from disciplinary leave could not be conditioned on “last chance” gag order

Barone was a Community Safety Officer who was disciplined for conduct violations related to certain investigationsShe alleged the discipline was imposed because of her statements at a community meeting

She was told she could return to work provided she sign a last chance agreement, refused, and was terminatedSlide40

SPD General Order “Members shall not publicly criticize or ridicule the Department, its policies, or other members”Slide41

Barone’s Last Chance Agreement“Consistent with SPD General Order 26.1.1.XIX, Employee will not speak or write anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees. Employee is not prohibited from bringing forward complaints she reasonably believes involves discrimination or profiling by the Department” Slide42

Why the Last Chance Agreement Is Unconstitutional

Its language extends to matter of public concern not just internal mattersIt flatly bars plaintiff from speaking negatively about the Department, City or employeesProhibitions on negative speech suggests that the target is not towards official duties but is instead private speech

The language is so broad and open-ended so as to include any disagreement about the City’s services or elected officials Slide43

PrivacySlide44

Wenzel: Stigmatizing Information in Personnel File

Wenzel v. Klamath County Fire District: Fire Chief’s claims of due process violations, breach of contract, wrongful discharge, and breach of covenant of good faith and fair dealing proceeding to trial

Allegations against Chief: violations of vacation policies, dishonesty in monthly reports, failure to perform duties Slide45

What About the Investigator?Complaints were investigated by retired Oregon State Police detective who also had been a detective for the county’s DA office

Investigator had no training or experience with workplace investigationsCounty did not do any research into what qualifications might be required for a workplace investigationHe was recommended because he had done criminal investigations which “are probably more difficult”

Investigator was “not concerned with rumors that could result from the questions he asked witnesses,” did not tell interviewees anything about confidentiality, took notes but destroyed them, no audio recordings Slide46

Wenzel’s ClaimsWenzel’s Due Process liberty claim:

“When the government dismisses an individual for reasons that might seriously damage his standing in the community, or if the government discharges an employee amidst allegations of misconduct, the employee may have a procedural due process right to notice and an opportunity to clear his name.”

"The presence of stigmatizing information placed into the public record by a state entity, pursuant to a state statute or otherwise, constitutes sufficient publication to implicate the liberty interest under the due process clause of the fourteenth amendment to the United States Constitution.”“Wenzel’s contract was not renewed ‘without cause,’ but ‘after conducting a months-long investigation into Plaintiff's financial conduct and abuse of time and County resources’ and ‘a few short weeks of an Executive Board Meeting where the Toddy Report, alleging 1000 pages of misconduct was discussed and determined to be a sufficient reason for termination by several members of the board.’” Slide47

Doing Stuff in Europe?Get Familiar with GDPRSlide48

Stronger rules on data protection mean people have more control over their personal data and businesses benefit from a level playing fieldEuropean

CommissionEceuropa.eu

2018 Reform of EU Data Protection RulesSlide49

Processed lawfully and in a transparent mannerCollected for specified, explicit, and legitimate purposes and not further process for incompatible purposesLimited to what is necessary

Kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processedSubject to appropriate security If processing is based on consent, the controller of the information must be able to demonstrate such consent

Personal Data Shall Be:Slide50

How We Get Other Kinds of Information That Might Cause Us to DiscriminateSlide51

Ossanna: Getting Information From a Biased Source

Ossanna v. NikeElectrician denied promotion after making various safety complaints about apprenticeship program and subsequently terminated after he allowed others (contractors and his son) to shoot baskets on the newly varnished floor in the Bo Jackson gym

Plaintiff argued that key information came from two intermediate level supervisors who were biased because of his safety complaints which was “cat’s paw” or “imputation of subordinate bias”Trial court concluded that “cat’s paw” had not been adopted by any state court, Court of Appeals reversedThe wrongful motives of a subordinate can be imputed to an ostensibly independent decision-maker Slide52

How Is Cat’s Paw Different from Agency?There is a neutral decision-maker

The decision-maker does not share the wrongful motivesBut the decision-maker is influenced by individuals who have a wrongful motiveCat’s paw allows the wrongful motive of the influencers to be imputed to the decision-makerSlide53

What’s Next?The Oregon Supreme Court has accepted this case for review “Is it error for a trial court to decline to give a separate imputation of subordinate bias (i.e. “cat’s paw”) jury instruction?”Slide54

Pass the Trash Laws:One More Thing That Might Be A Good IdeaSlide55

Thank You CUPA-HR!

Paula Barran

(503) 276-2143pbarran@barran.com