Historically, many employers required executives, managers, sales personnel, technical staffers, and other important employees to execute a non-compete agreement restricting them from working for a competitor. However, other alternatives available to employers may accomplish similar objectives with less risk.

Non-competes often are unenforceable

A covenant to not compete is the most restrictive covenant, and increasingly subject to challenge or disfavor. Consequently, employers should consider whether they can achieve their goals by requiring employees to sign other forms of restrictive covenants that are less likely to be challenged.

The enforceability of non-competes varies by state. Some states, such as California, make non-competes void in almost all circumstances. Other states, such as Oregon, impose a number of conditions upon employers seeking to hold employees to non-compete agreements.

Oregon requires that the employer inform the employee in a written employment offer of the non-competition restriction at least two weeks before the employee’s first day of employment. The employer must also show that the employee is exempt from Oregon’s overtime laws, and earns an annual salary exceeding the median family income for a four-person family. Non-competes are unenforceable against employees who do not meet these criteria, even if they sign a non-compete agreement.

Increasingly, courts carefully scrutinize non-competes to determine whether they are necessary to protect the employer’s business, goodwill or information. Courts look at the nature of the work performed and whether the non-compete restricts the employee from performing identical work for others or whether it is a broad prohibition of performing any work for a competitor. Courts also examine the geographic scope and duration of the agreement. If it is determined that the non-compete is too broad, the court may refuse to enforce the agreement as written.

Improve chances of enforceability

Promotions: In some circumstances an employer may have a greater chance of successfully enforcing a non-compete in instances where an employee is promoted. In such cases, even though the employee was not notified in advance of hire of a non-compete restriction, the employer can show: 1, the individual is being promoted to a new managerial or executive position; 2, there is a significant increase in compensation; and 3, the promoted employee is assigned new duties and greater responsibilities.

Invite the court to narrow restrictions: An employer may be able to avoid the consequences of a court refusing to enforce a non‑compete as written by including language that invites the court to carve back the agreement so as to allow it to be enforced narrowly as to the nature of the work restricted, the geographic area subject to the restriction, or the length of the restriction. However, there is also a risk that the court will decline to modify the non-compete restriction and will declare it void without narrowing the language, in order to make it narrower in scope, geographic restriction, or length of restriction.

Consider alternative restrictive covenants

Employers may be able to accomplish many of the same goals as a non-compete by requiring an employee to agree to other restrictions, such as those against disclosure, use of confidential or trade secret information, or solicitation of customers or employees.

Confidentiality and nondisclosure agreements: Courts are more likely to enforce confidentiality restrictions (regardless of whether they are signed in advance of employment) because employers have protectable interests in avoiding misappropriation or disclosure of confidential or trade secret information.

In order to be a protectable trade secret, the company’s information must derive independent economic value from not being generally known to the public, and must be subject to efforts to maintain its secrecy. Confidentiality covenants help employers establish that the information provided to an employee is confidential. Employers may also take steps to limit disclosure by marking data as confidential or by adopting a policy that limits the access, use or disclosure of information stored on electronic storage devices. Employers able to prove that such information, whether technical data, business information, financial information, pricing information, customer information or other information are trade secrets, may be able to obtain attorney’s fees, double damages, and an injunction against disclosure.

Non-solicitation restrictions: In states such as Oregon, non-solicitation restrictions prohibiting an employee from soliciting customers or other employees are treated differently than non-competes. Thus, even in those circumstances in which a company seeks to bind its workers to a non-competition restriction, it should set out a separate provision restricting employees from soliciting the company’s customers on behalf of a competitor and restricting an individual from soliciting current employees to go work for a competitor. Thus, even if the non-compete is declared unenforceable, the non-solicitation restrictions may still be enforced.

However, not all states treat non-compete agreements and non-solicitation restrictions differently. For example, except in very narrow circumstances involving the misuse of confidential information, California does not make legal distinctions between non-compete and non-solicitation agreements.

Non-compete isn’t always the best option

In summary, obtaining non-competes may not always be the best option because those restrictions may be costly to draft, certain statutes impose many preconditions and hurdles to enforceability, and in the end, a court may rule that the non-compete is unenforceable.

In contrast, confidentiality and nondisclosure agreements are restrictions that typically may be imposed at the time of employment or during the course of employment, and are effective tools to protect companies’ business interests. Similarly, in many circumstances separate restrictions against soliciting customers and employees, both during the term of the agreement and following an employee’s separation from the company, may protect companies’ business interests.

Richard Hunt is a partner at Barran Liebman LLP. He advises and represents employers on a variety of matters, including non-competition and trade secret litigation. Contact him at 503-276-2149 or rhunt@barran.com.

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Last month, the New York Times’ editorial board declared that it was “high time” to end federal prohibition of marijuana. The announcement was newsworthy as the latest social indicator of changing public attitudes about marijuana usage and criminalization. However, for the Times’ human resources department, the editorial stance in favor of marijuana legalization arguably has created more headaches than anything else.

Within 24 hours of the editorial board’s announcement, the Huffington Post and other Internet sites ran stories about the Times’ company policy of subjecting all new hires to a pre-employment drug screening that includes testing for marijuana metabolites. Additionally, a petition on change.org, urging the Times to make its internal policy consistent with its editorial board’s views on the need to “end legal discrimination against people who use marijuana” has received over 5,000 signatures.

I mention this anecdote not to criticize the company’s drug policy or to suggest that a newspaper’s editorial board has any business dictating a large media company’s personnel policy, but rather as an example of the way in which an employer can find itself pulled in mutually exclusive directions on the issue of marijuana.

Another example of the same phenomenon can be seen in the New Mexico Court of Appeals’ 2014 decision in Vialpando v. Ben’s Automotive Services. In the case, the court affirmed the decision of an administrative law judge ordering an employer to reimburse an injured worker for the cost of medical marijuana.

The court rejected the employer’s argument that the administrative decision was illegal because the employer “would be required to violate federal law in reimbursing (the) worker for his medical marijuana expenses.” Instead, the court reasoned, in light of the federal decision not to challenge Washington’s and Colorado’s voter-initiated decisions to legalize and regulate marijuana possession, production and distribution, it was appropriate to enforce the state’s Compassionate Use Act by requiring the employer to reimburse the employee’s medical marijuana expenses.

As states continue to relax marijuana laws, and public acceptance of marijuana continues to grow, these incongruous and internally inconsistent results will only become more common on the employment landscape.

Currently, 22 states and the District of Columbia allow for some form of medical marijuana. In November, Oregon is likely to become a state that allows for and regulates the production and sale of recreational marijuana. Other states are likely to follow suit. Indeed, according to the Pew Research Center, 54 percent of Americans favor legalization of marijuana.

So, how is an employer to respond? Unfortunately, there is no one-size-fits-all answer.

For many employers, if not most, compelling operational needs to strictly maintain a drug-free workplace will remain unchanged.

For example, employers that service federal contracts within the United States are subject to the federal Drug-Free Workplace Act; any relaxation in employer policy could jeopardize the contract. Similarly, employers that have employees performing safety-sensitive functions risk, among other things, potential liability on claims of negligent hiring or retention, were those employers to relax their marijuana policies and a workplace injury involving a marijuana-impaired employee were to occur.

Nonetheless, anecdotal reports suggest that in certain less-skilled industries and geographic areas, employers have challenges finding sufficient eligible applicants who can pass a pre-hire marijuana screening. In such circumstances, where there is not a specific safety or other operational need to safeguard against off-duty marijuana usage, it may make sense for an employer to tailor its policies on marijuana usage to capture on-duty impairment, but leave that employee to his or her own devices when off the clock.

As the law in this area is in a state of flux, employers are well-served to seek guidance from an employment attorney who can help develop a policy that meets the unique operational needs of the employer but also complies with operable laws.

José Klein is an attorney with Barran Liebman LLP. He advises and represents employers on a wide range of labor and employment law matters. Contact him at 503-276-2199 or jklein@barran.com.

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Imagine receiving a job application from an individual who appears highly qualified for the position you seek to fill. You eagerly invite the person to interview, but you are slightly surprised when he arrives because he uses a wheelchair and cannot travel up the stairs at the front door to the office.

Or picture a valued worker who suddenly begins to appear continually exhausted and starts losing her hair. She starts calling in sick frequently, and becomes far less productive. One of her co-workers then tells you that this valued worker is undergoing cancer treatment, but doesn’t want anyone to know.

Employers might think that because employees’ medical information is private, they should simply avoid the subject — and if they don’t ask questions, they won’t get into trouble. But employers can easily imagine situations in which they might want to know more.

Employers can lawfully ask employees about medical information for a variety of reasons, including to accommodate a disability or to provide required leave. Both of these reasons relate to employment, which means that the Health Insurance Portability and Accountability Act has little to do with these inquiries because it generally does not apply to employment records. Because the circumstances under which employers might need employee medical information are so varied, following is only a general overview of the key principles governing requests for medical information in the disability and medical leave contexts.

Several laws govern the rights of employees with disabilities, but the main one is the Americans with Disabilities Act. The ADA seeks to both eliminate discrimination and ensure that individuals with disabilities receive reasonable accommodations to perform their jobs. These dual purposes can create difficulty.

On one hand, the law discourages seeking disability-related information from an employee or job applicant, to prevent discrimination. On the other hand, the law requires an employer to obtain enough information to be able to provide reasonable accommodations when needed.

To make things even more challenging, the ADA obligates employers to provide reasonable accommodations not only for those who have jobs, but also for job applicants. An employer is usually forbidden from asking job applicants whether they have a disability, but is simultaneously required to provide the applicant with reasonable accommodations required to complete the application process. The best approach, therefore, is to invite all applicants to request reasonable accommodations if required.

Employers can also ask all applicants whether they can perform particular job functions either with or without reasonable accommodation. And, if an applicant’s disability is obvious, or the applicant says that he or she has a disability that could interfere with performing job duties, the employer can ask the applicant to describe or demonstrate how he or she would perform certain job duties. Finally, applicants might bring up the subject and ask for reasonable accommodation, and then, employers may ask them what type of accommodation they require.

Employers can carry the principle a step further and consider the case of conditional job offers: giving a person a job offer conditioned on passage of a test. This practice is permissible so long as all similarly situated applicants are required to pass the test in order to gain employment.

The test might require applicants to exhibit certain skills or abilities required to perform the job safely, either with or without reasonable accommodation. If an applicant fails the test and is denied a job, the reason must be job-related and consistent with business necessity – the fact that an applicant requires reasonable accommodation to perform a job does not constitute sufficient reason to deny him or her the position.

An employer might also need to ask people for medical information once they are employed; for example, if they ask for a reasonable accommodation, or exhibit performance problems that can be reasonably attributed to a medical condition of which the employer is aware.

Employers can become aware of an employee’s medical condition in various ways: notification from the employee, observation, or reliable information from someone else. In any case, the goal is for an employer to obtain only that information it needs and nothing more — information sufficient to describe the employee’s disability and to substantiate why an accommodation is needed.

An employee may also need leave from work to care for his or her own health or the health of a family member. Numerous laws define employee entitlements to leave, including the federal Family and Medical Leave Act, the Oregon Family Leave Act and the Portland Protected Sick Time Ordinance. Detailed regulations implementing these laws set forth procedures for, and constraints on, obtaining medical information from employees.

An employer might need information from an employee to certify that leave is required, during leave if circumstances change, or upon an employee’s return from leave, to show that the employee can safely resume his or her duties. In some cases, the law does not provide for employees to certify initially that leave is required. An employee is entitled to take up to three consecutive days of Portland sick leave, for instance, without providing any sort of medical verification.

Ultimately, both disability and leave law requirements are detailed and complex, and employers are likely to encounter many occasions on which they might legitimately seek employee medical information. When in doubt about when and how to inquire, consult with an employment attorney.

Banu Ramachandran, an attorney with Barran Liebman LLP, practices employment law. She offers advice to employers and litigates on their behalf. Contact her at 503-228-0500 or banu@barran.com.

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One of the first questions I ask a company when one of its former employees files a lawsuit against it is: “What’s in the personnel file?” Although Oregon is an “at-will employment” state, employers are expected to have documented, legitimate, nondiscriminatory justifications for their actions. Consider the following practical tips for handling discipline and termination; they should help minimize the amount of legal exposure associated with such action.

Investigate and get the facts straight

Employers should always investigate allegations of misconduct before terminating an employee. This usually involves interviews with the accuser, accused, and any witnesses, along with a review of any relevant documents, emails, photos or other physical evidence. Avoid any imputation of bias by excluding from the fact-finding and decision-making process anyone who has bias toward the employee.

Enforce written and unwritten policies and practices consistently

One of the best defenses an employer can have in response to an allegation of wrongful termination is that other employees who committed the same infraction received the same punishment. It therefore is paramount that companies follow their own written and unwritten policies and impose discipline consistently regardless of who committed the infraction.

Minimize the element of surprise and consider progressive discipline

Although most employees will say they were surprised by their termination, employers can and should take steps to minimize such surprise. One way to do so is by applying progressive discipline, which typically involves imposing verbal counseling or written discipline for a first infraction with punishment that increases to suspension, last chances agreements, and then finally termination.

Also, consider the timing of the termination decision. If the termination decision is made shortly after the employee complains or participates in an investigation into allegations of discrimination, harassment, safety or company ethics, the potential for liability increases. Likewise, avoid terminating employees who have recently invoked the workers’ compensation system or recently indicated a need to take maternity or medical leave.

Say enough, but not too much

It is rarely easy to communicate the decision to discipline or terminate an employee. However, what you say in that moment is incredibly important. Be sure to communicate clearly to the employee the performance deficiencies that have triggered the action as well as what policies (if any) the conduct in question violated.

If meeting to discuss discipline, also be sure to cover the performance expectations going forward and areas requiring improvement. Never mention the employee’s protected class, or complaints the employee has made about the company or the employee’s supervisors, in a discipline or termination meeting. Finally, resist any urge to engage in an argument with the employee about the reasons for the employment action and avoid the temptation to apologize or make comments about “how good of a person” the employee is.

Document, document, document

Supervisors and human resources professionals should document performance deficiencies on a rolling basis as they occur, and also document each time that a discussion about those deficiencies takes place with the employee.

Documentation of discipline is most effective when it clearly identifies objective deficiencies in performance, attendance and effort. It should then build on itself, with a later written notice of discipline or notice of suspension referring back to the dates of prior discipline and counseling. Make sure that the supervisor or a member of the executive or human resources team proofreads all written discipline and confirms the dates and dates contained therein before it is finalized and provided to the employee.

Don’t break the law

At the risk of stating the obvious, a company puts itself at a serious disadvantage if it breaks any employment law in reaching the decision to terminate an employee or in the process of executing termination. Remember that, in general, it is against the law to discipline or terminate an employee if a substantial or motivating factor or doing so is the employee’s race, color, national origin, sex (including pregnancy), disability, religion, age, sexual orientation, military service, use of protected leave, injured worker status, or good faith complaint about a safety, health, legal compliance, discrimination, harassment, or retaliation issue.

Also, strict laws govern how quickly an employee must receive his or her final paycheck and tight restrictions determine what deductions an employer can take from the final paycheck. Although there is no state or federal law that requires payout of accrued but unused vacation, sick or PTO time, companies can create a legal obligation to pay out those banks of time through company policies and past practices.

Finally, most employers who offer medical, dental or vision benefits to their employees are required to offer terminated employees the opportunity to continue those benefits at their own expense for a set period of time.

Consider offering a severance agreement and release

Whether a company is worried there may be some risk associated with termination of a long-term employee, or simply wants to provide the employee with some severance pay, consider making an offer of additional pay and/or extended insurance coverage in exchange for a release of all claims. It is far cheaper to pay a couple of months of pay and benefits at the time of separation than to defend against a lawsuit through trial. Employers can negotiate such agreements to include confidentiality, non-disparagement, and noncompetition provisions. Importantly, technical requirements must be satisfied in order for the release to be effective.

Hopefully, these tips will help companies manage their employees’ performance and execute effective terminations. If there is ever a time for a company to consider spending money to talk to an employment law attorney, it is when it’s deciding whether enough information and support exists for a decision to discipline or terminate an employee.

Andrew Schpak, an attorney with Barran Liebman LLP, represents management in employment litigation and provides advice in employment matters. Contact him at 503-276-2156 or aschpak@barran.com.

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Earlier this year, a former “Raiderette” – the official name of an Oakland Raiders cheerleader – filed a lawsuit against the NFL team, alleging wage and hour violations. Several other cheerleading squads followed their lead. Several “Ben-Gals,” the cheerleaders for the Cincinnati Bengals, filed a similar suit; so did the “Buffalo Jills” – the cheerleaders for, you guessed it, the Buffalo Bills. The New York Jets’ “Flight Crew” is the most recent squad to join the pyramid.

Sordid details in the complaints reveal a somewhat shocking but perhaps not completely surprising culture among cheerleading in the NFL. One team of cheerleaders was forbidden from wearing panties under their practice or game attire or from having “slouching breasts;” another team was given etiquette lessons from how to wash “intimate areas” to how much to tip restaurant waiters. At least one team was also subject to the “jiggle test,” wherein the cheerleaders would do jumping jacks and their coaches and supervisors would scrutinize certain areas of their bodies.

While the rules regarding many of these issues apparently varied from team to team, one thing appears to be consistent: The cheerleaders were paid little, if anything, for the majority of work they performed. Much of the time spent practicing routines (estimated in one instance to be at least eight hours per week) and appearing at the multitude of mandatory functions (one squad was allegedly required to appear at somewhere between 25 and 35 unpaid community and charity events throughout the season) was unpaid, and fines for various violations of team rules (such as bringing the wrong colored pom-poms to practice or failing physique requirements) resulted in potentially unlawful deductions. In fact, at least one plaintiff alleges she made slightly more than $100 for an entire season of cheering (which, by the cheerleaders’ estimations would equate to a wage of mere pennies per hour).

Now, not every employer has guidelines dictating what its employees’ hair and fingernails must look like or how many bikini appearances the employees must make (and I am not encouraging you to do so here); however, these cheerleading lawsuits can serve as a reminder to all employers – not just professional sports franchises – of the importance of tracking all hours that nonexempt employees work, and compensating them. “Hours worked” entails the time during which an employee is on duty or at a prescribed workplace under the employer’s control. Employees must be paid for all hours they are “suffered” or permitted to work.

Oftentimes, it is pretty clear when an employee is performing work; however, sometimes it’s not. Employers often slip up on preliminary or subsequent activities – tasks that employees are sometimes forced to complete before clocking in or after clocking out. For example, courts have held that the donning or doffing of certain protective gear is compensable time and must be paid by the employer. Similarly, the preparation of a workstation, such as equipment maintenance (sharpening knives, restocking kitchen supplies, caring for police dogs, etc.) or startup of a computer are also hours worked and should be paid accordingly, even if such activities are performed before the employee officially clocks in or after the employee clocks out.

In the case of at least one of the cheerleading suits, changing into a uniform may be compensable because cheerleaders were forbidden from riding in a car in their uniform – thereby necessitating early arrival to games.

Additionally, time that cheerleaders spent practicing could be compensable. Time that employees spend attending employer-sponsored or employer-required training is generally compensable.

There is one exception to training being classified as hours worked: When 1, attendance at the training is outside of the employee’s regular work hours; 2, the attendance is voluntary (i.e., not subject to penalties for failure to attend); 3, the training is not directly related to the employee’s job; and 4, the employee does not perform productive work during the training session, the employee does not have to be paid for the time spent in the training.

Moreover, travel time may be compensable; not ordinary commute time, but travel to special events, such as the NFL Draft, may be “hours worked.” In general, travel time is compensable when it is part of the work day, such as driving from the office to an off-site meeting.

Employers would do well to remember what constitutes “hours worked” and pay employees accordingly, including overtime wages if the “hours worked” exceed 40 in a workweek, because a wage and hour lawsuit is nothing to cheer about.

Sean Ray is an attorney with Barran Liebman LLP, and advises and represents employers in labor and employment matters and disputes. Contact him at 503-276-2135 or sray@barran.com.

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Miller Nash LLP attorney William Rasmussen recently was elected to the board of directors of Morrison Child and Family Services. The nonprofit organization delivers specialized services to children and families coping with adversity and trauma. Rasmussen focuses his practice on land use, real estate and Oregon administrative law. He regularly represents public entities, businesses and individual clients.

SENDING?91��Ƶ?PEOPLE?ITEMS:
Please send your announcements to djcpeople@djcOregon.com.

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Recent changes to the regulations that govern affirmative action plans (AAPs) for veterans and individuals with disabilities (IWDs) have many federal contractors scrambling to update their AAPs. While most of the changes pertaining to AAPs can be phased in at the start of the next plan year, some of the others took effect on March 24, 2014. Following is a look at these changes and recommendations for how contractors can comply.

Changes effective immediately

Changes that took effect on March 24 include new mandatory language that must be included in a contractor’s equal opportunity clause as well as the inclusion of certain mandatory language in all contracts. This language can be found at 41 C.F.R. § 60-300.5(a) and (d) for veterans plans, and 41 C.F.R. § 60-741.5(a) and (d) for IWD plans.

The new regulations also include changes to the self-identification process under both plans. The Office of Federal Contract Compliance (OFCCP), which is responsible for the enforcement of affirmative action plans and equal opportunity employment, hosts on its website a form that is strongly recommended for IWD self-identification, and Appendix B to the regulations for veterans plans contains sample language for self-identification of veterans.

Additionally, the new regulations require contractors to invite voluntary self-identification for IWDs at the pre-offer stage, invite current employees to voluntarily self-identify every five years, and remind employees that they may change their disability status at any time. Veterans should now be invited to self-identify as a “protected veteran” at the pre-offer stage and the preamble permits the invitation to be made at the same time race/gender information is requested to harmonize with the EO 11246’s Internet Applicant Rule.

Contractors must keep all information obtained through the self-identification process confidential and in a separate file from the employee’s general personnel file.

Changes subject to phase-in

One recent change to the AAP regulations subject to phase-in is a new 7 percent utilization goal for employment of IWDs. Contractors are required to annually compare the representation of IWDs in each job group to that 7 percent goal (unless the contractor has fewer than 100 employees, in which case it may apply the goal to the workforce as a whole). If the contractor identifies any problem areas, it must develop and execute a responsive, action-oriented program.

The OFCCP made clear that, at least for the time being, it will not fine or penalize a contractor that fails to meet the 7 percent utilization goal, unless that contractor also fails to take annual remedial steps to increase that figure. Similarly, the changes to veterans AAPs now require contractors to set hiring benchmarks, using either the national percentage of the civilian labor force (published on the OFCCP website) or by using the five factors outlined in the regulations.

Certain changes that impact both types of AAPs include: 1, enhanced data collection requirements; 2, increased external dissemination, outreach and positive requirement obligations; 3, increased document retention periods; and 4, the requirement that the policy statement must indicate the top U.S. executive’s support for the AAP.

Changes to the data collection regulations now require contractors to document: 1, the number of applicants who self-identified pre-offer as protected veterans or IWDs; 2, the total number of job openings and jobs filled; 3, the total number of applicants for all jobs; 4, the number of protected veteran or IWD applicants hired; and 5, the total number of applicants hired. Contractors must keep these records for three years.

New external dissemination, outreach, and positive recruitment requirements mandate that the new regulations require contractors to send written notice of their AAP to subcontractors, including subcontracting vendors and suppliers, and request appropriate action on the part of the subcontractor. Contractors must also conduct annual self-assessments of their efforts and document the criteria used to evaluate each effort, reach a conclusion about the effectiveness of the efforts, and if unsuccessful, identify and implement alternative efforts.

One mandatory criterion used to evaluate each effort must be the data collected pursuant to the new data collection requirement discussed above. Contractors must document their outreach and recruitment efforts and keep those records for at least three years.

With respect to internal dissemination, the new regulations require contractors to incorporate their AAPs into their policy manuals or otherwise make them available to employees, and a contractor that is a party to a CBA must notify the union official of the policy and request their cooperation.

Action plan

Before their next AAP plan year starts, contractors are strongly encouraged to:

• invite applicants to self-identify pre- and post-offer using the approved OFCCP form;

• conduct initial self-identification surveys of current employees;

• implement documentation procedures for outreach and recruitment efforts and self-audit reporting systems;

• conduct documented assessment of outreach and recruitment efforts and implement procedures to conduct such assessment annually;

• train employees engaged in key personnel activities;

• conduct data analysis related to applicants and hires;

• draft a policy statement showing the top executive support for AAP;

• ensure applicants and employees have equal access to the contractor’s personnel processes; and

• conduct annual workforce assessments, applying the utilization goal or hiring benchmark, identifying problem areas, and developing responsive, action-oriented plans.

Contractors seeking clarification about compliance with the new regulations should consult attorneys.

Tyler Volm advises employers and represents management in employment-related litigation at Barran Liebman LLP. He works with business owners and managers to ensure compliance with changes in the law, and defends employers against complaints when they arise. Contact him at 503-276-2111 or tvolm@barran.com.

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If there is reasonable suspicion that an employee may take confidential or trade secret information belonging to an employer at the time of separation – whether voluntary or involuntary – then the employer should take immediate action in order to protect its interests. Here is a checklist for an employer to follow:

1. Secure all executed agreements and important personnel records. The company should consider making a copy of all employees’ executed contracts and keeping those extra copies under lock and key.

2. If the employee was assigned a computer and had access to the company’s electronic storage devices and the information stored on those devices, then the employer or its information technology professional should take immediate action to preserve and investigate the employee’s use of the computer. This includes making a “ghost” of the hard drive or removing the computer from active use so it does not become compromised via a co-worker’s use after the employee’s departure. The IT person or forensic examiner should look for evidence of whether the employee has deleted important information belonging to the company, or has downloaded, emailed or otherwise transferred that information to an electronic device of the employee.

3. Upon the employee’s departure, the employer should gather from the employee all electronic devices, documents, business information and property belonging to the company.

4. If the employee signed a nondisclosure agreement or confidentiality agreement, then at the time of departure, the company management or human resources representative should remind the employee of applicable obligations and provide the employee with copies of the agreements as well as applicable policies (including those related to use of electronic devices).

5. If the employee leaves abruptly and the employer does not have an opportunity to conduct an exit interview for the purpose of gathering information and issuing a reminder of obligations, then the company should send a letter to the employee demanding the return of all documents (not the destruction of documents) and the return of all company property. In addition, the letter should put the employee on notice to preserve all data that has been taken so that it may be returned without modification or destruction.

6. If the employee is given the option to return to the workplace to pick up personal articles following termination, then a representative of the employer should accompany the employee to the individual’s desk and supervise the clean-out of information so that no electronic devices are accessed and no materials belonging to the company are taken. The company may want to take photographs so that it has a record of what existed in the office, in case documents and materials disappear later.

7. If the employee is suspected of contacting clients, co-workers or vendors following departure in violation of non-solicitation obligations, then the company should assemble a response team to communicate with those parties. The response team members should be given a script of what they can and cannot say and should be instructed to avoid making any disparaging remarks regarding the former employee. Oftentimes, statements can be announcements saying that the individual is no longer employed with the company and that the person’s duties have now been assigned to others, together with contact information. The employer should choose carefully whom it makes statements to because the former employee may have “friends” whose interests are more aligned with the former employee than the company.

8. Coworkers with information regarding inappropriate solicitations of the former employee or the missing information should be asked to provide signed written statements.

9. Immediate action should be taken to secure the confidentiality of company business information and trade secrets. This includes canceling computer access, disabling passwords, and, under some circumstances, changing locks.

10. If it becomes apparent that the employee is using company trade secrets (including customer information) to solicit sales on behalf of a competitor, then letters may be written to the former employee demanding that the person stop using or disclosing the information and cease and desist from soliciting customers. In some circumstances, the company may also want to notify the new employer of the agreements and policies that were binding upon the ex-employee. The new employer needs to be told that it too may be in violation of statutory obligations prohibiting the knowing receipt of misappropriated trade secrets and confidential information.

11. Similar letters should also be sent to the former employee and the new employer if the ex-employee is soliciting co-workers in violation of a non-solicitation covenant.

12. While demand letters to the former employee and the new employer serve to provide notice, they often are ineffective or ignored. Depending upon the scope of the activities and the harm being caused, the company should seriously consider filing an immediate lawsuit. Lawsuits brought against former employees and new companies knowingly accepting and using information that has been taken often include claims for breach of contract, misappropriation of trade secrets under the Uniform Trade Secrets Act, interference claims, conversion claims, and claims for injunctive relief.

13. Once a lawsuit commences, an employer may also want to seek a temporary restraining order. However, if the company has a good-faith belief that misconduct is occurring, but has a need to learn more facts prior to seeking injunctive relief, then it may want to file a motion for expedited discovery rather than an immediate temporary restraining order. Temporary restraining orders may be sought sparingly where there is strong evidence of irreparable harm. Such procedures are appropriate when the scope of misconduct is known and widespread.

14. If an employee’s misconduct is discovered before resignation is tendered, then the employee should be immediately suspended and/or terminated, and the employer may consider suing the employee for breach of contract and fiduciary duty, fraud and misappropriation of trade secrets.

Richard Hunt is a partner at Barran Liebman LLP. He regularly provides employer advice and solutions, and handles complex employment litigation in state and federal courts. Contact him at 503-228-0500 or rhunt@barran.com.

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With spring break right around the corner and flu season in full swing, a look into protected leave under the Family Medical Leave Act (FMLA) is in order. Why? A recent decision by the Seventh Circuit Court of Appeals has caused a stir by expanding, at least in that circuit, what sort of activity qualifies under the FMLA as “caring for” a family member’s serious health condition.

The FMLA generally provides that an eligible employee is entitled to leave “in order to care for” a family member with a “serious health condition.” In Ballard v. Chicago Park District, an employee and her mother traveled to Las Vegas as part of the mother’s end-of-life goals, but not to seek medical treatment. The company argued that in order to be protected, the trip had to have been made in connection with ongoing medical treatment.

The court noted that where an employee provides for the family member’s basic medical, hygienic or nutritional needs, the location of where care is delivered is not important. Accordingly, the Seventh Circuit concluded that an employee’s travel to Las Vegas with her terminally ill mother could be protected leave because the FMLA’s provisions for “caring for” a family member are not limited to a particular geographic location.

The Seventh Circuit expressly parted ways with the First and Ninth Circuit courts on this issue. In Marchisheck v. San Mateo County, Tellis v. Alaska Airlines, and Tayag v. Lahey Clinic Hospital, the Ninth and First Circuit courts underscored that “caring for” a family member with a serious health condition requires some level of participation in ongoing treatment of the condition.

Moreover, the courts reasoned that travel unrelated to medical treatment does not fall within the boundaries of “caring for” a family member. For example, in Tayag, the First Circuit determined that an employee’s leave to accompany her husband on a spiritual healing trip to the Philippines was not protected because it was unrelated to medical treatment, even though she assisted her husband with medication and was present in case of his incapacitation. In its disagreement, the Seventh Circuit stated that “none of the cases explain why certain services provided to a family member at home should be considered ‘care,’ but those same services provided away from home should not be.”

The Seventh Circuit’s expansion of what qualifies as “caring for” a family member’s serious health condition creates confusion for employers who must determine how to treat an employee’s request for leave. Employers can still take comfort in the fact that the decision does not bind the Ninth Circuit, which includes Oregon, Washington and California. Employers, however, must be aware of the circuit split because it creates wiggle room for employee plaintiffs to raise arguments and claims that echo the Seventh Circuit’s reasoning.

Although requesting leave to accompany a terminally ill family member to Las Vegas is generally uncommon, requesting it to treat aches, pains and the flu is more likely. According to the Centers for Disease Control, each year 5 percent to 20 percent of the population contracts the flu, resulting in more than 200,000 hospitalizations. But are employees entitled to take protected leave for such relatively minor illnesses?

The Department of Labor tells us that, unless complications arise, leave for the common cold, the flu, earaches, upset stomach, minor ulcers or routine dental work is not protected. The exception is when the illness meets the definition of a serious health condition – an incapacity of more than three consecutive days that also involves qualifying treatment.

In a 1996 opinion letter, the DOL provided an example: “If an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying ‘serious health condition’ for purposes of FMLA.”

Courts have generally followed the DOL’s guidance. In King v. The Permanente Medical Group, a former employee claimed that she had been wrongfully terminated because she had taken sick leave to recuperate from the flu and severe dehydration. The court denied the former employee’s claim because she had failed to establish that her illness was a serious health condition. Specifically, she did not receive care from a doctor. Nor did she receive ongoing medical treatment, such as prescription medication.

With this somewhat gray line as to what may be protected leave under the FMLA, what should an employer do?

Unless clearly not protected by FMLA, employers should treat an initial request for leave as protected leave. Employers should then analyze the request and seek medical certification where necessary in order to determine if the leave meets the definition of a serious health condition. Before making a final determination, employers should be aware that state and local (including Portland and Seattle) sick leave laws may be more generous to the employee.

Samuel Hernandez is an attorney with Barran Liebman LLP. He provides compliance advice to employers and represents management in employment law litigation. Contact him at 503-276-2175 or at shernandez@barran.com.

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This year marks 50 years since President Lyndon B. Johnson declared war on poverty. Ostensibly, one of the most important weapons in his arsenal was the federal minimum wage. Since 1964, the federal minimum wage has been raised periodically, always with the hope that a minimum wage is synonymous with a living wage.

However, half a century later, many people equate the minimum wage with a poverty wage, while others question whether there should be a minimum wage at all. This is a national debate that often pits workers against business owners.

On the one hand, some workers’ rights groups argue that the federal minimum wage, which has remained at $7.25 per hour for the past four years, is far too low. We now have become familiar with terms like the “working poor” and “poverty wages.” Advocates of a higher minimum wage argue that raising it stimulates economic growth because there is extra spending from workers’ extra earnings.

On the other hand, a number of small businesses say that an increase in the minimum wage hurts job growth. Business owners warn that an increase in the minimum wage results in fewer entry-level jobs and even causes some businesses to go under because they cannot afford to pay their workers’ wages. Additionally, others point out that having a minimum wage prevents people who would be willing to work for less from getting jobs at all. They argue that the minimum wage especially hurts teenagers and young adults with few skills or none.

Legislatures across the nation are proving to be the battleground in this debate. On the federal front, there is a push in Congress to raise the minimum wage in several increments to $10.10 by 2015. However, that effort has faltered and is not expected to gain traction in the foreseeable future.

The focus then turns to the states, and many raised their minimum wage last year. On Jan. 1, 13 states increased their minimum wage by increments ranging from 10 cents to $1 per hour, leading to greater hourly pay for 2.5 million workers, and a $619.2 million boost to economic growth, according to the Economic Policy Institute.

Meanwhile, state legislators are expected to consider minimum wage increases this year in Delaware, Hawaii, Maryland, Massachusetts, Minnesota and New Hampshire, according to the National Employment Law Project. Achieving a pay hike through a ballot initiative is also a possibility in Alaska, Arkansas, Idaho, Massachusetts, New Mexico and South Dakota. The District of Columbia is poised to raise its minimum hourly pay to $9.50 on July 1 – and eventually to $11.50 – as the city council awaits approval from the mayor.

Locally, Washington state, by increasing its minimum wage 13 cents to $9.32 per hour, maintained the highest state minimum wage in the nation. Moreover, Washington Gov. Jay Inslee announced that he is promoting an additional increase to the minimum wage of $1.50 to $2.50 an hour. Oregon ranks second among states, with a minimum wage of $9.10 per hour after a 15 cent increase as of Jan. 1.

Recently, the Northwest has been on the front lines of the minimum wage battle. The city of SeaTac made national headlines last month when it raised its minimum wage to $15 per hour. Although a judge struck down the ordinance’s provision that would have covered more than 4,500 employees at Sea-Tac International Airport, the judge left the remaining parts of the ordinance intact. That leaves 1,600 workers at larger hotels and parking lots in the city of SeaTac as beneficiaries of the ordinance, which also provides for automatic, annual cost-of-living increases to the minimum rate as well as paid sick leave and prohibits tip sharing with supervisory employees or workers who did not provide the service.

As businesses in Oregon wonder about the future of the minimum wage, many signs point to a higher one ahead. The passage of Measure 25, approved by Oregon voters on Nov. 5, 2002, requires the Commissioner of the Bureau of Labor and Industries to calculate an annual adjustment to the minimum wage each September for the following calendar year. The annual adjustment is based on any increase during the previous 12 months in the U.S. city average Consumer Price Index for all urban consumers for all items.

Under this law, the minimum wage is to be rounded to the nearest five cents and take effect on Jan. 1 of the year following each adjustment. Accordingly, under Measure 25, basic increases will continue. Additionally, state leaders may support a more drastic increase in the minimum wage.

“If the minimum wage had simply kept pace with the rising cost of living since the late 1960s, it would be more than $10.55 today,” Oregon Gov. John Kitzhaber and former Washington Gov. Christine Gregoire wrote Jan. 3, 2013 in an op-ed for POLITICO.

No matter what your view is on the proper amount or function of the minimum wage, it is an issue that should be on the radar for anyone doing business in the state of Oregon.

Laura Salerno Owens is an attorney with Barran Liebman LLP. She focuses her practice on employment litigation and advice. Contact her at 503-276-2111 or lsalerno@barran.com.

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