Traditionally, principles of due process in the law required that an individual who accuses an employer of an unlawful practice must bear the burden of proving that the employer actually violated the law. It was the plaintiff, not the defendant employer, who was tasked with proving its allegations and showing that the employer engaged in illegal conduct.

But new legislation passed by the Oregon Legislature and set to be signed into law by Gov. Kate Brown serves to eradicate procedural due process and flip that burden – implementing a “rebuttable presumption of guilt” in certain cases that will presume that the employer violated the law, and then task the employer with proving by a preponderance of the evidence that it didn’t.

Such a presumptive standard overturns what has long been an axiomatic principle of law in both civil and criminal cases not only in Oregon but across the entirety of United States jurisprudence – that the rebuttable presumption is of innocence – not guilt.

The Oregon Legislature has declared this presumption of guilt “an emergency,” and the law will go into effect immediately upon passage.

The summary

Senate Bill 483, which was introduced during the 2021 regular session, creates a rebuttable presumption of guilt that presumes that an employer discriminated against a prospective, current or former employee if the employer discharges or otherwise takes adverse action against that individual within 60 days of the individual’s engagement in any health or safety activity codified under ORS 654.062(5)(a)-(d).

ORS 654.062(5) precludes, among other things, discharging or otherwise discriminating against an employee because they opposed or challenged the health and safety practices of their employer. In practical terms, it means that if an employee opposes or challenges a health or safety practice (the protected activity), and is subsequently terminated (even for a reason entirely independent of the complaint), the law will assume that the employer illegally discriminated against the employee and discharged them because of, and in retaliation for, engaging in protected activity by raising the health or safety concern.

The presumptive standard makes no exceptions and does not otherwise attempt to account for the veracity of the underlying allegations that will serve as the basis for protected activity.

Other statutory employment laws in Oregon, such as ORS 659A.199 (which is intended to protect employees who make good faith reports of their employers’ engagement in illegal activity), at least require the predicate that the complaint at issue be made to the employer in good faith. Here, no such exception exists – and the employer will simply be presumed to have engaged in an unlawful practice in the event that the employer takes adverse action against the employee within the 60-day period subsequent to the protected activity.

The process

In the event that a prospective, current or former employee raises concerns, and then subsequently files an action with the Oregon Bureau of Labor & Industries, BOLI will treat the complaint the same as it would if the complaint involved allegations of an unlawful employment practice under ORS 659A.030(1)(f) – which prohibits employers from discharging or otherwise discriminating against an employee because the employee has opposed any unlawful practice, or because the employee has filed a complaint, testified or assisted in any legal or administrative proceeding under ORS Chapter 659A.

BOLI would then be required to make a determination within 90 days, starting with the presumption that the employer engaged in an unlawful employment practice, and requiring the employer to prove by a preponderance of the evidence that it did not. Irrespective of BOLI’s determination, the employee would then have a right to file a formal civil action for damages in any circuit court in the state of Oregon with 365 days of BOLI’s determination. The presumption of guilt for the employer would continue in any subsequent civil proceeding as well.

The implications

The implications for employers are significant, particularly where the prospect of potentially frivolous litigation could otherwise derail many organizations’ economic recovery in the wake of the ongoing COVID-19 pandemic. The legislation also raises more broad concerns for employers regarding the Oregon Legislature’s apparent willingness to overturn traditional due process principles in favor of a presumption of guilt for defendant employers.

As a best practice, employers of all sizes and industries must ensure that they are diligently following their own health and safety protocols (particularly as it relates to COVID-19); that they are carefully documenting and responding to any health and safety concerns raised by a prospective or current employee; that they are carefully documenting conversations with those prospective or current employees; and that they are carefully considering the risks associated with taking any adverse action against an employee who raises a health or safety complaint, even if the complaint has no merit.

Employers should be mindful that the risk of litigation, even from those whom they never hire, increases exponentially in the event that the individual raises a health or safety concern – irrespective of whether that concern is legitimate or backed up by any credible evidence.

Employers should consider consulting employment counsel prior to making any decisions or taking any adverse action against an individual in these circumstances.

Chris Morgan is an attorney with Barran Liebman LLP. He specializes in the defense of complex and high-profile employment matters. Contact him at 503-276-2144 or cmorgan@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: SB 483: A rebuttable presumption of discrimination in Oregon appeared first on Daily Journal of Commerce.

In the coming weeks and months, employers across the state will begin to reopen their doors consistent with guidance and restrictions provided by federal and state authorities. With that comes a series of questions with respect to how that will be done, and what it means for employers and the “re-onboarding” process.

Form I-9s

With respect to the Form I-9, the employment authorization required by the federal government, the first thing employers should do is to review their forms for employees to be rehired, and identify whether those forms were completed within the past three years.

Consistent with federal law, employees who are rehired within three years from the date of completion of their previous Form I-9 need not complete a new one unless the work authorization needs to be reverified for some independent purpose, such as expiration of a work authorization document. If the employee remains authorized as indicated on the previous Form I-9, he or she does not need to complete any additional documentation. In Section 3 of the previous Form I-9, simply provide the employee’s rehire date and sign and date the form.

In the event that the previous Form I-9 was completed longer than three years prior to the date of rehire, employers should go through their normal process to obtain a new Form I-9, along with the accompanying documentation with respect to work authorization. This may be a great time for employers to also perform a thorough review of their existing Form I-9s to check for any substantive or technical errors that might be subject to scrutiny in the event that an audit is performed by the U.S. Citizenship and Immigration Services.

Oregon sick time

Absent an internal policy to the contrary, employers do not have a statutory duty to pay out accrued but unused time off under Oregon Sick Leave laws upon layoff or any other employment separation. However, in the event that an employee was laid off and not paid out for that time upon the layoff, Oregon employers are required to reinstate the employee’s sick leave balance in the event that he or she is rehired within 180 days; while Washington employers are required to reinstate the sick leave balance in the event that the employee is rehired within 365 days.

Employer policies

Now is a perfect time for employers to revisit their existing employment policies. New legislation, including Oregon’s Workplace Fairness Act and the federal Families First Coronavirus Response Act (FFCRA), require employers to adopt and distribute new workplace policies.

For example, in Oregon, employers are required to adopt new written policies containing procedures and practices intended to reduce and prevent workplace discrimination and sexual assault.

With respect to the FFCRA, employers are required to post a specific notice providing employees with notice of their rights, including their potential eligibility for paid leave. Given the large number of employees who are working remotely, a copy of the notice, which is provided by the U.S. Department of Labor’s Wage and Hour Division, should be emailed to employees as well as posted in a conspicuous place at any physical work location. Employers should do this immediately if they haven’t already. The notice should be kept up until the anticipated end date of available benefits under FFCRA at the end of 2020.

With respect to more ordinary policies, such as those typically included in an employee handbook, employers should use this opportunity to present employees with a new copy of the handbook and any other applicable policies as part of the “re-onboarding process.” Keeping these policies in the forefront goes a long way toward employees’ understanding of the internal policies that govern their employment and in turn often mitigates the employer-side risk that arises as a result of internal policies that are unknown, unclear or confusing.

Virus-related accommodations

As many individuals return to work, employers should continue to ensure that they are closely tracking federal and state guidance, as well as the statutory laws surrounding medical leave and reasonable accommodations. In addition to leave that might be available to employees under FFCRA for circumstances that include an employee’s need to stay home and care for a child whose school is closed, many employees (including those who are particularly vulnerable) may continue to request to work remotely even if the business decides to open its physical offices.

Although the question of whether an employer must accommodate an employee’s request to continue to telework after the physical office reopens is a fact-intensive inquiry that should be considered on a case-by-case basis, employers should err more than ever on the side of accommodation. Federal and state guidance suggests that employees should be allowed the option of remote work, if possible, into the foreseeable future.

Chris Morgan is an employment attorney with Barran Liebman LLP. He can answer questions related to COVID-19 and associated workplace policies and guidance. Contact him at 503-276-2144 or cmorgan@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: Four considerations for employers when the lockdown ends appeared first on Daily Journal of Commerce.