Category Archives: Employment

9th Circuit Gives One Employer a “Win”—but Says Employees Can Have Their FMLA Cake and Eat It, Too

Managing employee use of Family Medical Leave Act (FMLA) can sometimes be an employer’s biggest headache. Escriba v. Foster Poultry Farms, Inc.—a new decision from the Ninth Circuit Court of Appeals—does little to alleviate those complications. It contains a critical development for companies subject to FMLA (generally, those with 50 or more employees) about whether an employee can actually waive their FMLA rights.

Escriba worked in a processing plant for Foster Farms. She asked her supervisor for two weeks of paid vacation time to care for her ailing father in Guatemala. That type of leave (caring for the serious health condition of a family member) would typically be FMLA-covered, but Escriba explicitly declined to have her time off count as FMLA leave. Apparently she wanted to preserve her protected medical leave for future use, and instead use paid vacation time first. When she proceeded to take even more “vacation” time to care for her father, she failed to timely notify Foster Farms… and was eventually terminated under a three day “no-show, no-call” policy.

In court, Escriba argued that it’s impossible to “waive” her right to FMLA, and since Foster Farms was on notice of a FMLA-qualifying reason for her leave, the termination was an act of unlawful retaliation. As a general rule, she’s right about waiver—an employer can’t say “sign this waiver of all your FMLA rights in exchange for your job” anymore than an employer can, say, ask an employee to waive their right to minimum wage. But the Ninth Circuit said Escriba could waive her right to use FMLA in this particular circumstance. It upheld the termination as lawful, where it appeared Escriba knowingly chose one benefit over another.

Sounds like a win for employers, right? Not so fast: Foster Farms may have won a battle, but this new ruling will likely cost employers as a whole. For example, it creates an opportunity for employees to “hoard” leave. Imagine this scenario:

Employee: “I need a couple weeks off, to tend to my ___ [insert serious health condition].”

Employer: “Ok! That’ll count toward your yearly FMLA leave allotment of 12 weeks.”

Employee: “Whoa, no thanks. I just want to use my vacation time now. I’ll save all 12 weeks of FMLA time for later this year, thank you very much.”

Under the Escriba decision, an employee could make this type of self-serving “waiver” of FMLA. Of course, if an employee waives their right to FMLA for a particular situation, the leave is no longer protected—and the employer could consider discipline or termination. But for our part, we’d exercise extreme caution before relying on this decision to terminate any leave-abusing employees. Consult with your legal counsel and ask yourself some key questions first, including these:

  • Is the employee knowingly waiving their FMLA rights? (I.e., do they understand the consequences of giving up that protection?)
  • Can I prove that in court? (The Karnopp Petersen employment defense team would sure hope to see clear documentation of the employee’s “knowing” or well-informed waiver of their rights… just sayin’.)

As always, think about whether any decision is consistent with how you’ve treated others in similar situations (i.e., others with a similar pattern of unprotected absences). Inconsistent treatment can easily open the door for an employee to claim the “real” reason was unlawful, and we think you’d agree: dealing with a FMLA retaliation claim is a much bigger headache than administering even the trickiest of medical leaves.


Friend Request to Your Oregon Employee? Not So Fast…

Everybody likes a friendly boss.  But as a supervisor/manager or business owner, is it okay to send your employee a “friend request” through Facebook?  Or to ask them to connect with you on LinkedIn, or other social networks?

Thanks to a new Oregon law, effective last month (January 2014), you’ll want to think twice before sending that request.

As summarized in our previous post concerning 2013 legislative changes (we warned that this was coming…), the new law says Oregon employers can’t force an employee to associate with them through the employee’s personal social media accounts.  (Work accounts are a different story.)  The new law prohibits plenty of other actions, too—such as forcing the employee to show you their personal social media page—but makes exceptions for certain situations involving investigations and more.  Check out our previous post for more details, or see the new law here.

“But I’m not forcing them!  All I did was send the friend request. . .”   We hear you.  If it’s truly not “forced,” it technically should be fine (or as we lawyers would say, “defensible”).  But keep in mind the legal trap here and the fundamentals of power dynamics in the workplace.  An employee might feel forced to say “yes” or accept an otherwise unwanted connection, if only to keep their boss happy.  If that’s the case and they are (or later turn) disgruntled, your seemingly-innocent friend request could hand them another card to play, so to speak, in terms of a potential legal violation to use against you.

Does that mean you have to “unfriend” the employees who report to you, who already “friended’ or connected with you last year?  No, not necessarily—especially if the connection pre-dates the new law’s effective date (January 1, 2014).  There are situations where “unfriending” past connections might be smart, though.  For example:  if you did require an employee to connect with you through their personal account before the new law, it wouldn’t hurt to think about offering a graceful way out of that connection, if only to keep things as harmonious as can be at work.

Two Federal Appellate Courts Will Soon Consider NLRB Jurisdiction over Tribal Casinos

The Tenth Circuit Court of Appeals and the Sixth Circuit Court of Appeals will soon consider whether the National Labor Relations Board (NLRB) has jurisdiction over tribal casino operations.  In 2013, the NLRB issued two decisions—one with respect to the Chickasaw Nation’s WinStar World Casino and one with respect to the Saginaw Chippewa Indian Tribe’s Soaring Eagle Casino and Resort—in which it considered whether the NLRB had jurisdiction over casinos wholly owned by tribes.  In both cases the NLRB asserted jurisdiction over the tribes after determining that the National Labor Relations Act (NLRA) applies to the commercial activities of tribes.  In reaching its conclusion, the NLRB relied heavily on its earlier decision in San Manual Indian Bingo & Casino, 341 N.L.R.B. 1055 (2004), aff’d, 475 F.3d 1306 (D.C. Cir. 2007).

The tribes appealed the NLRB decisions to their respective federal appellate courts, arguing that the NLRA does not apply to their gaming operations because it is a federal law that does not expressly address its application to tribes, and because exclusion of tribes would be consistent with the NLRA’s general exclusion of government employers.  The tribes both argue that the operation of their casinos is a governmental function, and that application of the NLRA to their casino operations would infringe upon the tribes’ ability to govern themselves and would negate their sovereign power of exclusion.  Read the Chickasaw Nation’s opening brief and the Saginaw Chippewa Indian Tribe’s opening brief.  Opening briefs, including several amici briefs from other tribes, Indian law scholars, and the National Congress of American Indians, were filed in the federal appellate courts in December.  The NLRB’s response briefs are due in February in the Sixth Circuit and in March in the Tenth Circuit.

If the tribes’ appeals are unsuccessful, tribes (at least those within the jurisdictions of the Tenth Circuit and the Sixth Circuit) will need to ensure that they comply with the NLRA when conducting commercial activities such as operating a casino.  The NLRA was enacted by Congress in 1935 to allow most private sector employees to organize into trade unions, engage in collective bargaining for better terms and conditions at work, and to take collective action, including strike, if necessary.  The NLRA also defines a set of unfair labor practices, which are prohibited actions by employers, employees, and unions.  In recent years the NLRB has actively enforced the provisions of the NLRA protecting concerted activities by employees, so tribes would need to ensure that their commercial activities comply with those provisions as well.

Join Us! Karnopp Petersen Employment Law Update

Employment Law Update

Tuesday, December 17, 2013

7:30 am – 9:00 am

1201 NW Wall Street, Suite 200 Bend OR

Bereavement and Veterans Day leave! Social media account access restrictions!  Protections for interns, and more!

2013 brought a host of employment law changes from courts, lawmakers and other sources… and for business owners, managers and human resource (HR) professionals, it’s critical to stay up-to-date.

Join Karnopp Petersen attorneys Kurt Barker, Jon Napier and Annie Nelson for this free breakfast seminar and learn the following: 

  • What new developments (law/regulatory changes, court cases and more) demand attention by employers and HR, and how can those legal changes impact you/your company?
  • What key items (policy revisions, trainings, ect.) should you consider or pursue?

For those who attended Kurt’s September 2013 Legal Roundup for the Human Resource Association of Central Oregon/HRACO, this hour-long seminar will cover mostly repeat material.  But we’ll also highlight a few more recent changes that have taken place since September, too.
Come for some lively analysis of this year’s legal changes and how they affect employers.  We look forward to seeing you at our seminar!

Please join us on December 17th for this FREE seminar!

Space is limited! Click here to reserve your spot.

2013 Oregon Legislative Session: Employment Law Highlights

Oregon’s 2013 legislative session now belongs to history. Members of the state legislature get a break… but for employers/managers/human resources professionals, it’s time to study up! (And time to tune up your policies/handbooks, too.) Many of the new laws already are in effect—others will be as of the new year. Here are just some of the highlights effecting employers:

Veterans to Receive Leave on Veterans Day (SB 1, already effective as of April 4, 2013): SB 1 requires employers to allow veteran-employees to take leave on Veterans Day (November 14th). The employer has the option to grant paid or unpaid leave. Of course, there are some exceptions, eligibility criterion, and notification requirements that allow some flexibility to employers. For example, the veteran must request the day off at least 21 days in advance, and an employer is not required to grant leave if doing so would cause a “significant economic or operational disruption or an undue hardship to the employer.” Where a request is denied for a valid exception, however, the employer must allow the veteran-employee to choose to take an alternate day off in the following year.

Payment by Direct Deposit at Employer Discretion (HB 2683, effective January 1, 2014): HB 2683 amends ORS 652.110(3) to allow employers to pay employees via direct deposit without the prior consent of the employee. As always, a few limitations apply: 1) if the employee requests an old-fashioned check, the employer must comply, 2) employers may not charge the employee to process the payment through direct deposit, and 3) employers must still provide a physical itemized wage statement unless the employee consents to an electronic statement. Ready to adopt a “direct deposit for all” policy? Hold on: the new law does not take effect until January 1, 2014. This should give enough time to update your employee handbook to ensure that it is consistent with any new policy you choose to adopt. The cost savings, efficiency, and increased certainty of delivery make this new law a great opportunity for most.

New Limitations on Access to Social Media Accounts (HB 2654, effective January 1, 2014): HB 2654 limits an employer’s ability to access an employee or applicant’s social media accounts. Specifically, employers are prohibited from: 1) requiring or requesting an employee or applicant to provide access to a personal social media account, 2) compelling an employee or applicant to add the employer as a contact, 3) requiring the employee to access its personal social media account in the employer’s presence, and 4) engaging in any type of retaliation as a result of an employee’s refusal to comply with a prohibited employer request. Don’t make the mistake of just thinking “Facebook” and “Twitter” – “Social Media” is defined quite broadly. (Think: any electronic/online medium for creating, sharing and viewing user-generated content.) As always, there are exceptions and exclusions to the new law, but be warned: social media is still a minefield for employers and managers!

Workplace Protection for Unpaid Interns (HB 2669, already effective as of June 13, 2013): HB 2669 gives interns many of the protections from discrimination that already apply to Oregon employees. You name the protected class or activity, it is likely included: race, color, religion, sex, sexual orientation, national origin, marital status, age, military service, disability, whistleblowing, participation in civil and criminal proceedings… and there’s also protection concerning genetic information, polygraph tests and more. Don’t worry, the new law does not (by itself) create an employment relationship with interns. But a word to the wise: make sure your interns become familiar with your anti-discrimination/anti-harassment policies and how to report any concerns. Not sure if your summer college-credit-seeker is an intern? Look here to find out, and check with your lawyer.

OFLA to Include Bereavement Leave (HB 2950, effective January 1, 2014): What’s certain in life? They say death, taxes… and perhaps the expansion of the Oregon Family Leave Act (OFLA). The death of a family member has been added as a new type of OFLA leave. Specifically, within 60 days of receiving notice of the death, an eligible employee can take up to two weeks off to: 1) attend the funeral or alternative to a funeral, 2) make arrangements necessitated by the death of the family member, or 3) grieve the death of the family member. The new legislation does not require employees to give advance notice to take bereavement leave so long as oral notice is provided within 24 hours prior to leave and written notice is provided within three days of returning to work. Finally, note that the federal Family and Medical Leave Act does not provide for bereavement leave, so while employers need to count bereavement leave toward the 12 weeks of leave permitted under OFLA, employers should avoid the mistake of counting bereavement leave against the employee’s entitlement to leave under FMLA.