EMPLOYMENT LAWS – THEY’RE STILL CHANGING:
AN UPDATE FOR EMPLOYERS
By Jon Napier and Kurt Barker
As if the Oregon Legislature’s recent employment law changes were not enough to keep employers on their toes, courts and Congress have been busy on the employment law front. Below we highlight just a few of the most recent employment law developments and their significance to Central Oregon employers.
Stay Outta My Gene Pool: On May 21, President Bush signed the Genetic Information Nondiscrimination Act. The Act prohibits discrimination on the basis of genetic information in employment and also in health care. (Could someone in Congress fear the genetic discrimination portrayed in the science fiction movie Gattaca?) The health care provisions take effect in May, 2009, while the employment discrimination provisions do not take effect until November, 2009.
What Does this Mean for Employers? Do not use genetic tests for employees or applicants! Requesting or maintaining any genetic information for employees or applicants could cause the appearance that you unlawfully relied on that information in making employment decisions. If you think Congress is way out in the lead on this one, think again: Oregon law already generally prohibits employers from subjecting employees or job applicants to genetic or “brain-wave” tests.
The Stakes Keep Getting Higher -- Increased Protection
for Retaliation Victims:
Employees already were protected against unlawful
retaliation: for example, firing an employee because they
complained of race discrimination is prohibited. But this
May, the U.S. Supreme Court expanded that protection and made
the stakes even higher. In two separate decisions, the
Court held that retaliation is itself a form of unlawful
discrimination. In one case, the Court determined that an
employee could sue his employer for retaliation under the Civil
Rights Act of 1866, which prohibits race discrimination in
employment but says nothing about retaliation. In the
other case, the Court decided that the public-sector provisions
of the Age Discrimination in Employment Act prohibit
retaliation, even though those portions of the law say nothing
about retaliation.
The impact of these decisions on private-sector employers is substantial. First, unlike Title VII (another federal law that prohibits race discrimination and retaliation), the Civil Rights Act of 1866 contains no limit on damages. Second, while Title VII does not apply to employers with under 15 employees, the Civil Rights Act of 1866 applies to employers of any size. These decisions not only expand the range of potential retaliation claims against employers, but, in the cases of alleged retaliation due to a claim of race discrimination, significantly increase potential damages and expand the scope of the law to include many more “small” employers.
What should I Do? Run, do not walk, to your employment lawyer and make sure your anti-discrimination and anti-retaliation policies are up to date. Make sure employees have multiple channels for reporting concerns about retaliation or discrimination. Train all managers/supervisors about how to respond appropriately to employee complaints. Emphasize to managers/supervisors the importance of preventing illegal retaliation in the workplace.
The Oregon Supreme Court Gives Employers a “Break:” In some welcome news for employers, this May, the Oregon Supreme Court ruled that employees cannot sue for back pay (or wages) resulting from missed rest or meal breaks. This decision is great news for employers, who often struggle to enforce the complicated wage and hour laws. This decision should also decrease the number of costly class-action lawsuits against Oregon employers.
What Now? First, go ahead and breathe a sigh of relief! Second, remember that you still must require nonexempt employees to take the rest and meal breaks required by law. Potential civil penalties remain. The Oregon Bureau of Labor and Industries can assess penalties of up to $1,000 per violation, and can even seek criminal prosecution in certain cases. Clearly communicate to nonexempt employees that they must take the minimum meal and rest periods, and that failure to do so may result in disciplinary action. If an employee fails or refuses to take a meal or rest period, consider appropriate disciplinary measures.
Finally, please remember that many of the Oregon Legislature’s recent changes took effect January 1, 2008. Afraid you missed out? Start with the Legal Articles and Updates section at www.karnopp.com, where you will also find a link to add yourself to our e-mail list for upcoming employment law seminars and legal updates.
This article was prepared by the employment attorneys at Karnopp Petersen LLP: Jon Napier (jjn@karnopp.com); Ron Roome (rlr@karnopp.com); and Kurt Barker (keb@karnopp.com). Jon, Ron and Kurt can be reached at 541-382-3011.