On March 14, 2023, President Biden formally submitted to the Senate his nomination of Julie Su to be the next Labor Department secretary. While this news may have flown under the radar for many employers in Oregon given the recent snow issues and banking news, it is a significant development that requires planning. Failure to plan could have drastic consequences.

As an analogy, I will rely on my own experience during the recent snowstorm. Since I had run to work, I had to get an Uber ride home. My wife insisted that I should get one immediately because it was snowing in Northeast Portland. Shockingly, I listened and got a ride partially home. Unfortunately, the Uber driver was unable to continue about a mile from my house. I got out and sent a photo of myself trekking home to a Fantasy Premier League group chat with members who live in Lake Oswego. They mocked me and asked for a selfie with me holding a newspaper (sadly I did not have my 91��Ƶ with me) because there was no snow where they were working. I insisted that the photo was taken moments ago. Their failure to listen and plan resulted in a multi-hour commute home.

The head of the Labor Department wields tremendous influence over the nation’s workplace policy. To stave off companies’ frustrations related to national employment law changes, here is a proper heads-up on four areas of law that may be impacted by Julie Su.

Wage and hour

Employers have been anticipating a new federal overtime rule from the Labor Department for some time – and we can expect Secretary Su to continue working to make this happen. Under Su’s leadership, the DOL will likely try to increase the salary threshold from the current rate of $684 a week to somewhere around $900-$1,000 a week.

Workplace safety

We can expect two major developments under Secretary Su in the coming months: OSHA will release a COVID-specific rule to address the virus in health care settings, and the agency will issue a broader infectious disease regulation that will apply to all workplaces. Health care employers will be required to tackle a great deal of compliance work in terms of preventive care and responses to outbreaks, while all employers will need to stay up to speed on workplace safety for the foreseeable future.

Moreover, expect OSHA to ramp up workplace inspections under Su’s leadership, particularly since the agency recently cast a wider net to include even more workplaces in its enhanced safety inspection program known as the “Severe Violator Enforcement Program” (SVEP). Compliance is more important than ever given OSHA’s increased penalties and its plan to allow union leaders to accompany safety inspectors when they walk through a workplace – even if it’s a nonunionized environment.

Joint employment

Former Secretary Marty Walsh saw to it that the Trump-era joint employer rule that made it harder for employees to prove joint employment for the purposes of wage litigation was scrapped very early in his tenure, and a federal court put the final nail in that coffin in 2021. We have expected the agency to follow up and develop a replacement rule that brings the standard squarely back into Obama-era territory. To date, that hasn’t happened, but we expect things to get a kick start under Su’s tenure.

We expect to see the new rule, which should be issued sometime in 2023, place organizations engaged in multi-participant arrangements – such as outside-party management, joint ventures, staffing services, employee leasing, temporary help, subcontracting, certain kinds of “job sharing,” and dedicated vendors or suppliers – directly in the agency’s crosshairs. The DOL will aim to put as many of them as possible on the hook for any alleged wage and hour violations filed under federal law.

Pay equity and affirmative action

President Biden called Secretary Su a “champion of workers,” and we expect her to focus on pay equity and transparency for women, low-wage earners, and underrepresented groups. Notably, Su co-founded California’s Pay Equity Task Force while Jerry Brown was governor. The task force was formed to focus on compliance after the state’s Fair Pay Act took effect.

Although we anticipate pay equity activity to take place primarily at the state level, we can expect Secretary Su to implement strategies to try to close the pay gap at the national level. Employers can expect more investigations into pay disparities, as well as enforcement actions against federal contractors. Additionally, we can expect federal contractors to continue seeing a focus on diversity, equity, and inclusion from the Office of Federal Contract Compliance Programs.

Secretary Su may also advocate for the Equal Employment Opportunity Commission to reinstitute the federal EEO-1 “Component 2” reports that briefly required employers to collect and turn over pay data and hours worked information to the government. While there are lots of rumors about a revived EEO-1 Component 2 requirement, nothing concrete has developed – yet.

Conclusion

Reach out to your attorney if you have any questions related to the impacts Julie Su may have on how your company does business. It is better to believe the warnings and follow the recommendations than be stuck in a multi-hour commute like my buddy who refused to believe a photo of snow was real without the photo including that day’s 91��Ƶ.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.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.

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The COVID-19 pandemic triggered a lasting impact on the employment landscape, most especially on where and how work is performed. Previously, many employers required their employees to be physically present at the work site. However, many employees are now accustomed to the flexibility that remote work provides, and employers often find themselves needing or wishing to take advantage of a remote workforce.

In the modern era, many jobs can be satisfactorily completed on an entirely remote basis. Unfortunately, many employment laws have yet to catch up with this new way of doing business, making navigation of remote work relationships a complicated task for employers. That said, in the immortal words of Bob Dylan, “the times, they are a-changin’;” we are starting to see legislation and guidance to clarify some of these outstanding gray areas for remote workers.

On Feb. 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) published a field assistance bulletin concerning the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) regarding remote working, or “teleworking” as DOL terms it. The bulletin advises employers on 1, ensuring workers who telework are paid properly under the FLSA; 2, applying protections for reasonable break time for nursing employees to express milk while teleworking; and 3, applying FMLA eligibility rules to employees who telework.

FLSA requirements

The FLSA requires employers to pay nonexempt employees for all hours worked regardless of where the work is performed. This requirement applies if the employer knows or has reason to know that work is being performed. In a remote work setting, this distinction can be less clear than it otherwise would be in a traditional workplace. Employers should have a policy in place outlining the requirement that all nonexempt employees track all hours worked, and explaining the procedure by which employees are expected to track their hours. As with a traditional workforce, employers must pay nonexempt employees for all reported hours of work, even hours not requested by the employer.

Additionally, the FLSA does not require employers to provide nonexempt employees with meal or rest breaks. However, they are required by many states, including Oregon and Washington, and the DOL provides guidance on how to treat these for pay purposes. The DOL bulletin explains that rest breaks (20 minutes or less) must be counted as hours worked (again, regardless of where the hours were worked). Conversely, meal breaks lasting 30 minutes or more are not compensable work time and can therefore be unpaid.

Employees must be relieved of all work duties during both meal and rest breaks. The bulletin explains that to be relieved of all work-related duties, employees must either be told ahead of time that they may leave the office or jobsite for the duration of their meal break, or the employer must allow employees to return to work when they choose, as long as the time is long enough for the employee to effectively use it for their own purposes.

The FLSA does require employers to provide nursing employees with reasonable unpaid break time to express breast milk for a nursing child for the first year of the child’s life. Again, this requirement applies regardless of where the work is performed. In addition to break time, the employer is also required to provide a nursing employee with “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public,” where the employee can express breast milk. The DOL bulletin reminds employers that this requirement includes ensuring that the employee is free from view by any employer-provided or required video system (i.e., computer or web camera, security camera, conferencing platform, etc.) when they are expressing breast milk.

FMLA requirements

FMLA entitles eligible employees working for a covered employer to take job-protected leave for specified reasons, requiring the maintenance of group health plan benefits during the leave, and entitling the employee to return to their position, or to a substantially similar position with equivalent pay, benefits, and other terms and conditions of employment.

The new guidance reiterates that FMLA eligibility requirements apply the same way to employees working on the employer’s premises as it does to those employees who telework. Importantly, the eligibility requirements include a geographic component. Specifically, assuming the employee meets the other requirements for eligibility (i.e., work for employer for at least 12 months, and worked at least 1,250 hours for the employer in the 12 months immediately preceding the leave), the employee must also be employed at a work site where the employer has 50 or more employees within 75 miles of that work site. For FMLA eligibility purposes, the regulations state that a remote employee’s work site is not their home, but rather the office to which they report or from which their assignments are made.

The DOL field assistance bulletin provides important reminders to employers about their obligations under the FLSA and the FMLA, regardless of whether their employees work from the employer’s offices or work site, or from another location that is not under the employer’s control. With the rollout of paid family leave in Oregon, in addition to these pointers from the DOL, now is a great time to review remote work policies for legal compliance. To learn more about ongoing telework considerations, register for Barran Liebman‘s “Telework Toolkit” webinar on April 4 at www.barran.com/seminars.

Wilson Jarrell is an attorney with Barran Liebman LLP. He advises and represents employers and management on a wide range of issues. Contact him at 503-276-2181 or wjarrell@barran.com.

Becky Zuschlag is a law clerk with Barran Liebman LLP. She partners with attorneys in employment, labor relations and benefits practices. Contact her at 503-276-2151 or bzuschlag@barran.com.

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

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The National Labor Relations Board (NLRB) just made union organizing that much easier for workers who want to organize their workforces, issuing both a long-awaited regulation and a controversial decision that will transform the landscape of labor law as we know it.

On Dec. 11, 2014, the NLRB ruled that employees have the right to use their employer’s email system on nonworking time to discuss wages, hours, conditions of employment and even union organizing. The very next day, the NLRB finally implemented its “quickie election” rules, which will speed up union elections while requiring employers to turn over personal email addresses and telephone numbers to union organizers. These changes will have a profound impact on union organizing tactics and representation elections, and you can expect an immediate increase in union organizing activity in 2015.

Email systems are fair game
The email ruling came from a case involving Purple Communications (PC), a provider of sign-language interpretation services, which has an electronic communications policy that limited the use of its computers, email systems and other company equipment to business purposes only. Many companies have similar policies that prohibit employees from using work systems and equipment for personal emails, and from engaging in activities on behalf of organizations with no business affiliation with the company.

Several years ago, a union petitioned to represent workers at seven of PC’s call centers, but lost the elections. The union challenged the result by asserting that the policy interfered with the workers’ freedom of choice in the elections. The NLRB decided that employees who have rightful access to their employer’s email system in the course of their work have a presumptive right to use the email system to engage in protected communications on nonworking time. This means that an employer may not totally ban personal use of its email system by employees without running afoul of this new ruling.

While employers can still monitor employee use of computers and email for legitimate management reasons (such as productivity, preventing harassment or other potential problematic behaviors, etc.), the NLRB warned that employers cannot increase its monitoring during a union organizing campaign or focus monitoring efforts on union activists or protected conduct.

“Quickie elections” arriving soon
The accelerated election rules – also known as “quickie election” rules in some circles – had long been anticipated. In fact, the NLRB had previously passed a similar rule that was struck down by the court system on a technicality before being implemented.

There appears to be no such saving grace for employers this time, however, and there seems to be nothing in the way of these rules being implemented in final form in the coming months. The clear objective for these new rules is to expedite the time between when a petition is filed and an election is held, thereby reducing the time for employers to combat an election drive, and dramatically increasing the chances of union-organizing success.

Starting April 14, besides facing a very short time frame before a union election, employers have a host of other new challenges to overcome. First, employers will have to provide union organizers with available personal email addresses and telephone numbers for all eligible voters in the workplace, which should allow unions to have more effective communications with their target voters earlier in the process.

Further, there will only be a limited number of procedural objections that employers can lodge before an election, and the time frame for the limited objections will shrink. Finally, employers that lose any of these challenges cannot delay the process by seeking an immediate appeal, as those will now be tabled pending the election itself.

With these roadblocks out of the way, unions will be able to take advantage of smooth sailing and increase their chances of success by a significant degree.

What does this all mean?

The bottom line is that things just got dramatically easier for workers to organize into unions, and those companies that want to stay union-free will have their work cut out for them. Employers that had thought they could wait to prepare for a possible election campaign will need to get their ducks in a row now, because delaying preparations until the unions make themselves known will generally be too late.

Employee use of company email systems for union organizing efforts can be a game changer, and quicker elections mean more employees will be voting on union representation on the heels of the negative emotions that drove the organizing activity. Therefore, it is also important to employers to improve communications with their workforce now in order to address pending workforce problems. Workers who feel as if they have no voice now will be more likely to be attracted to unions that promise to bring about the changes that they are seeking.

These are just the first two dominoes to fall, and most expect several others to fall in the coming months as the NLRB gains momentum. There is no question that the new changes will provide a boost to unions that are eager to stem the tide of membership decline, and you can expect an immediate uptick in organizing activity as a result.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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If you run a staffing firm or utilize a staffing firm in your business, chances are good that compliance with the Affordable Care Act (ACA) is somewhere on your list of concerns. For people running staffing firms, questions of when to offer coverage and who to cover tend to dominate the discussion. Meanwhile, staffing firm clients struggle to confirm whether ACA penalties will be triggered by staffing-firm employees.

Penalties: the big picture

We will get to what we know about each of these issues, but first, a reminder: The period during which penalties may be assessed under the ACA will begin on Jan. 1, 2015. During this first year, penalties will be assessed only against employers with 100 or more full-time equivalent employees.

In 2016, this number will drop to 50 or more full-time equivalent employees. Penalties will be assessed in 2016 based on information reported in employer tax filings and records of those employees who received help paying for coverage on the insurance exchanges.

Employers are vulnerable to penalties if they either fail to make an offer of coverage to at least 70 percent (95 percent after 2014) of their employees working 30 or more hours per week, or if they make an offer of coverage but the offered coverage is either insufficient or unaffordable. Various forms of transitional relief reduce penalties in 2015 and give some employers a free pass for a few months, but this covers the basics at a big-picture level.

The staffing-firm challenge

At its most fundamental level, the challenge faced by staffing firms and their clients is a question of employment. Specifically, which entity employs a W-2 employee supplied by a staffing firm to a client, or “who’s the boss?” Identifying the W-2 employer matters because penalty exposure and reporting requirements under the ACA are driven by employee count, and a single staffing-firm employee could trigger thousands of dollars in penalties if his or her W-2 employer fails to comply with the ACA.

In addition, many staffing-firm placements are designed to be only temporary in nature or to work erratic hours, triggering further questions about whether and when they should actually receive an offer of health insurance coverage.

ACA compliance

While, like so many areas of the ACA, more guidance on this issue is needed, both staffing firms and the employers who rely on them can help protect themselves from penalty exposure (and in the case of staffing firms, client discontent) with a few steps:

1. Clarify W-2 relationships. Review staffing firm agreements, offer letters to employees and handbook language to ensure that it is clear that the staffing firm operates as a staffed-employee’s W-2 employer. Language directing the employee to contact the staffing firm’s human resources, and not the client company’s human resources is helpful, but both the staffing firm and client entities may want to consult with employment counsel regarding the latest joint-employer issues.

2. Review (and possibly revise) agreements. Final ACA regulations include a special safe harbor for staffing firms and their clients, which relieves clients from penalty exposure for staffed workers where: 1, the staffing firm makes an offer of health coverage to the worker, and 2, the fee paid by the client is higher than the fee the client would have paid to the staffing firm if the staffing firm did not make an offer of health coverage to the employee.

Some staffing-firm clients have asked firms they work with to sign addendums to existing agreements that explicitly provide for these terms. In some cases, this may mean that a staffing firm with fewer than 100 employees will discover that it is in the firm’s business interests to offer coverage to employees it places with larger employers to assuage those clients’ concerns about ACA penalties.

3. Become familiar with the rules and safe harbors. This guidance is really just for the staffing firms, but for those staffing firms that have not already done so, it is not too late to become familiar with when penalties will be imposed for a new hire and when measurement and stability periods may allow the firm to delay making an offer of coverage.

In particular, while the ACA does not include an exception for temporary employees, no penalty will actually be assessed against a new hire until the new hire’s fourth month of employment. This means that very short-term placements do not pose a penalty risk. However, staffing firms must be mindful that an employee who bounces from temporary position to temporary position with the same staffing firm can pose a penalty risk because the law will aggregate the employee’s service in the multiple temporary positions.

Similarly, when used properly, measurement and stability periods can offer some relief. An employee-benefits attorney is helpful in crafting these periods and ensuring that they are properly documented, because measurement and stability periods allow employers to delay making an offer of health coverage to those employees who are brought on for a seasonal or variable-hour position. (A variable-hour position is one for which the employer legitimately does not know if the employee will work sufficient hours to qualify for health insurance.)

Bringing it all together

In light of these complexities and the significant monetary impact that may result for both staffing firms and businesses that use staffing firms, careful consideration of the regulations and the particulars of an organization can save it thousands of dollars in penalties. Taking a proactive approach is likely to be well worth the investment.

Iris Tilley is a partner at Barran Liebman LLP. She advises employers about all aspects of employee benefits, including health care under the ACA. Contact her at 503-276-2155 or itilley@barran.com.

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The Portland Bureau of Development Services is seeking candidates to fill 22 new positions.

The bureau this week started accepting applications for some of the positions, which include building and electrical inspectors, geotechnical and mechanical engineers, and planners, agency spokesman Ross Caron said. Online applications for more openings will be accepted later this month and next month.

The hiring process is expected to take about 14 weeks, and BDS officials hope to have the new employees on board in time to respond to next summer’s building season, Caron said. In addition to the 22 new positions, seven temporary positions were converted to permanent ones to help keep pace with the increasing number of permit requests associated with a building boom in Portland, he said.

For each of the positions that will open this month and next month, city officials will host lunchtime and evening information sessions to provide more details and help potential applicants navigate the online application process, Caron said. People can learn more about each position, how to apply and details about the information sessions at .

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Businesses across the state received a wake-up call last month after a Eugene convenience store was slapped with a $60,000 penalty by the state after the Oregon Bureau of Labor and Industries found that the store illegally banned service dogs from the premises. The story should serve as a warning to all business owners who open their doors to the public that they need to learn, understand and apply some very strict and unforgiving rules regarding service animals.

Michel Hilt-Hayden, a woman living in Eugene, each day has to battle through a number of physical and mental impairments. She has a visual impairment that limits her sight to only 6 to 10 feet and robs her of her depth perception; she also has a hearing impairment that requires her to wear a hearing aid. She was also diagnosed as mentally ill when she was a teenager, with PTSD, agoraphobia and schizophrenia. Her mental conditions sometimes result in debilitating panic attacks.

In order to assist with daily living functions and provide care in emergencies, Hilt-Hayden trained one of her dogs (“Panda”) to perform tasks for her, including chest compressions during panic attacks and visual guidance outdoors. Panda was trained in 2007, but due to advancing age and declining physical condition, became unable to provide full-time care starting in 2011.

At that point, Hilt-Hayden acquired another dog (“Contessa”) for the purpose of training it into a service animal. By 2012 Contessa was also living with Hilt-Hayden and Panda and providing services. Contessa continued to be trained into the service animal role, and therefore Hilt-Hayden often took both Panda and Contessa with her on excursions so that the younger dog could learn by example.

During one such excursion, on April 17, 2013, Hilt-Hayden walked into the Duck Stop Market with both Panda and Contessa in order to buy milk. According to the case’s Final Order, a store clerk confronted Hilt-Hayden and told her that dogs – including service dogs – were not allowed in the store, and suggested that she use the drive-up window. The clerk then wrote in the daily store log that she told the customer that no dogs were allowed and that Hilt-Hayden was “not happy – TOO BAD!”

The next day Hilt-Hayden attempted to return with only Contessa, but this time was physically blocked from entering by a clerk, who told her “You’re not welcome here; your dog needs to leave.” Police responded to a call, calmed the situation down and suggested that Hilt-Hayden talk to the store owner.

The following day Hilt-Hayden had an amicable conversation with the store owner, and eventually the owner told her she would be allowed in the store only if she was accompanied by one single service dog, and not both.

Hilt-Hayden was not satisfied with that decision and initiated a disability discrimination claim with BOLI. The market’s main defense to the charge was that Contessa was not truly a “service animal” under Oregon law because her training was not complete. After a four-day hearing, the agency issued a 62-page ruling on Nov. 6, finding that Duck Stop Market discriminated against Hilt-Hayden, rejecting the business’ defense, and awarding Hilt-Hayden $60,000 to compensate her for the emotional trauma she sustained during her encounters.

Most business owners recognize that they have an obligation to accommodate service animals; many have signs on their front doors welcoming service animals even if there is an express “no dogs allowed” policy. Where some businesses are confused, however, is where they can draw the line. What exactly is a service dog? How would we know if the animal is a pet or a service animal? What can we do if we are uncertain about the situation? This case and the Final Order issued provide some helpful tips for all businesses that may have to deal with such situations.

First and foremost, there are very strict rules about what one can ask animals’ owners when they enter a business. One can begin by asking if the animal is a “service animal.” If the person says no, then a business owner has every right to exclude it. If the answer is yes, one can follow up by asking what duties the service animal performs for them (unless it is patently obvious, such as a blind person with a seeing-eye dog). That’s it.

People aren’t allowed to have the individual perform a demonstration (especially if the service dog is trained to respond to some medical emergency). Also, a business owner can’t require the animal to wear a special vest – although many might have such gear, it is not required under the law. Also, one can’t ask to see special certifications or training licenses, because some animals may be “trained” at home and not have such documentation.

Therefore, in most situations, if the person provides adequate responses to the above questions, the best course of action is to allow them on the premises. One can monitor to make sure the animal stays in control and does not act in a disruptive manner (barking, snarling, engaging with other customers or staff, making an unnecessary mess). And if the animal becomes disruptive one can ask its owner to leave. Beyond that, businesses ought to welcome service animals and the customers who accompany them, recognizing that it is good business (and the law) to accommodate them.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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Noncompetition agreements may be declared unenforceable or void depending upon the state law, the scope of the agreement and other factors. Therefore, it is important that a company require its employees to sign agreements containing other types of restrictive covenants limiting them from soliciting the company’s customers and employees, prohibiting acceptance of business from former clients and preventing improper use, disclosure or misappropriation of confidential information.

Covenants restricting competition

Noncompetition restrictions are not enforced in every jurisdiction. For example, California prohibits noncompetition agreements in almost all circumstances. Some other states impose requirements such as advance notification of noncompetition restrictions or a requirement of execution of the noncompetition restriction prior to or upon initial employment.

Noncompetition restrictions are also subject to attack if they are overly broad in scope or duration. On the other hand, noncompetition restrictions that are narrow and intended to prohibit the individual from performing a specific type of work or working in a specific industry are more likely to be enforced. Similarly, noncompetition restrictions that are shorter in duration or confined to a specific geographic area are more likely to be upheld.

Non-solicitation restrictions

An agreement should also contain a separate non-solicitation restriction that restricts an individual from soliciting both customers of the company and employees of the company. Although some courts treat non-solicitation restrictions the same as noncompetition restrictions, in most jurisdictions non-solicitation restrictions are viewed as less restrictive than noncompetition restrictions that prevent an individual from going to work for a competitor.

A non-solicitation restriction allows an individual to work for a competitor but restricts that person from soliciting the customers or employees of the company. Non-solicitation restrictions are more likely to be enforced if they are for a limited duration. Some states, such as Oregon, cap the duration of non-solicitation restrictions.

Clauses prohibiting acceptance of work

Many jurisdictions allow employees who have terminated their employment to publish an announcement informing the public of their new position with a different company and their new contact information at that new company. Former employees often contend that they did not solicit customers following separation from their former employer, asserting that the former customer approached them and sought to renew the relationship. A clause restricting a former worker from accepting the business from former customers may be effective and enforceable, even if the individual made no direct solicitation to that former client or customer.

Confidentiality restrictions

Even if noncompetition restrictions and non-solicitation restrictions and restrictions against accepting business are not enforced, the company should always have language in its agreement that protects against taking, disclosing or otherwise misappropriating confidential information.

The agreement should define the term “confidential information” and often will include information concerning customers, vendors, suppliers, financial data and business operations. Any definition of confidential information should include information that is stored on electronic devices.

Also, the provision should require the return of all confidential information upon termination, for whatever reason. Confidentiality restrictions should apply to conduct during the course of employment and for an indefinite duration after employment.

In jurisdictions where noncompetition or non-solicitation restrictions are unenforceable, if the court determines that confidential information has been used by a departing individual to unfairly compete or conduct customer solicitations of former customers, then courts (even in California) often rule that such conduct is improper.

Provisions permitting rewrites or revisions of overly broad covenants

An agreement containing restrictive covenants should include a “blue pencil” provision empowering the court to revise or rewrite or narrow an overly broad covenant so that it can be enforced as revised. However, the danger of having a covenant that is excessively overbroad is that a court may decide that it will not make any revisions and instead declare entire covenants as void and unenforceable.

Clause extending the restriction in the event of breach

An agreement containing restrictive covenants should also contain a clause that provides that in the event that a violation is established, the restrictive period should be extended so as to run from the date when the breach is identified.

Choice of law and venue provisions

The agreement should provide that it is governed by the law of a particular state, such as the law where the company is headquartered or the county and state in which the individual works. A choice of venue provision is recommended particularly for companies that want to have disputes heard in the state and county where the company is headquartered. In some instances courts will decline to enforce a choice of law or choice of forum provision if there is an overriding interest in the state in which the individual works or is employed.

In summary, even if some restrictive covenants are not enforced as written, it is strategically advantageous to have a variety of restrictions in an agreement so that if a court declines to enforce some restrictive covenants, it will have the option to enforce other provisions or modify provisions.

Richard Hunt is a partner at Barran Liebman LLP. He represents and advises clients concerning employment law issues, including noncompetition and trade secrets litigation, and employment-related litigation on behalf of employers. Contact him at 503-276-2149 or rhunt@barran.com.

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The Ebola virus outbreak has captured the attention of the American public like few other stories have in recent memory. You can’t help but hear about the deadly illness and its apparent spread around the world on a daily basis. The stories are gripping and scary – a killer disease with no cure, no borders and nothing to stop it. Some employers are now wondering what they need to do in order to protect workers from the onslaught of this terrifying rampage.

The first thing all employers should do is take a deep breath and stop the panic. In the United States, Ebola is nowhere close to being a pandemic or even a national health crisis. Besides the fact that it is not easily spread, this virus is very controllable given the health care infrastructure and the resources our nation has at its disposal. Unless an employer sends workers on international travel, or is in the airline or health care industries, it likely will never have to deal with an Ebola situation.

That being said, employers across all fields should at least educate themselves about Ebola in the unlikely event they are caught up in the issue. The two most common questions I have been hearing from companies are: How do we keep our employees safe, and what do we do if we think one of our employees may have been exposed? Even if a company never sends its workers overseas, these same questions arise if a worker is about to take a personal trip to Africa, or if someone else who recently visited Africa will be on site in the near future.

The easiest way to explain to employers the best approach to these concerns is to recognize the balance between two federal workplace statutes: the Occupational Safety and Health Act and the Americans with Disabilities Act. On the one hand, OSHA is intended to protect workers, and all employers have a duty under the act to ensure that their employees are reasonably protected from all sorts of workplace hazards – including communicable diseases like Ebola. On the other hand, the ADA serves as a shield preventing employers from prying into the personal lives of workers, prohibiting unnecessary medical inquiries and barring workplace decisions motivated by irrational health concerns. Yes, you need to be cautious, but not at the expense of worker rights and privacy. So where do you draw the line?

An employer’s first priority is to ensure worker safety, and the easiest way to do this right now is to limit unnecessary international business travel. If a worker has done business or been on a personal trip in an area with high exposure rates, or if the company’s business is in one of the fields noted above, stay up to speed on the latest Centers for Disease Control and Prevention (CDC) communications.

The next priority is to ensure compliance with the ADA. The best way to stay on the right side of the law here is to make sure that any steps taken here with respect to employee medical information are based on concrete, objective data, and not spurned by fear, generalizations and stereotypes.

For example, if an employee has just returned from an African safari with his family, a company might walk itself into an ADA claim if it were to bar him from work for a 21-day quarantine period. Instead, if you know an employee has visited Africa, start by simply asking him where he has visited to determine the level of risk. You can follow up by asking the employee whether he has exhibited any virus symptoms and to keep you apprised if any symptoms appear.

Also, employers are permitted under the ADA to take an employee’s temperature at regular intervals, but only if this action is job-related and consistent with business necessity. In a case where a worker has been to Africa, or been exposed to someone with Ebola, or in a health care situation with possible disease-carriers, this standard is easily met.

Just don’t start giving blanket temperature exams to all employees without any real justification, because that’s when you’ll run afoul of the ADA. Only in very rare cases should a worker be barred from coming to work for the 21-day incubation period. And in such cases employers will most likely already be in touch with public health officials, given the heightened state of concern that will be present by that point.

As for handling the fear and concern that other employees might be feeling, the best thing to do is to reassure them that the company takes their health and safety very seriously and that active steps are being taken to ensure that they are not exposed to Ebola at work. Then share those steps with them; that should help comfort them and allay their fears.

If an employee refuses to come to work because of some legitimate or well-grounded fear of Ebola exposure, recognize that he or she might be protected under OSHA retaliation law or even the National Labor Relations Act and act accordingly; it is only when an employee is acting in bad faith (using Ebola as an excuse to take a few days off) that you should enforce attendance policies and others.

Like any other crisis, the Ebola scare will pass in time. But until then it’s up to you to ensure panic does not set in at your workplace and that you don’t walk yourself into a legal claim while trying to do the right thing.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.

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Employers are well served to develop a strategy for hiring. One strategy may be the “defensive hiring process.” Although the name sounds bad, the strategy itself is sound. Defensive hiring allows the company to identify the most qualified candidates for open positions and screen out those applicants who are unlikely to be assets to the organization.

There are multiple benefits of defensive hiring, such as fewer employee relations problems, higher customer satisfaction, and higher productivity. Most employment lawsuits are caused by poor hiring decisions. Similarly, other employee discontent and morale issues are often related to employees who should not have been hired by the organization in the first place. Eliminating these employees before they are hired is the key.

Similarly, qualified and satisfied employees create satisfied customers. The converse is true as well, which means that poor hiring decisions will ultimately lead to poor customer service. Poor customer service financially impacts the company, and either directly or indirectly, every other employee.

Finally, poor hiring decisions affect productivity in two ways: 1, an unqualified candidate will produce less than you expect; and 2, that same candidate will distract other employees and cause their productivity to decline as well.

The question now becomes: How does one go about defensive hiring? Fortunately, the characteristics of a potential problem employee are readily identifiable in the hiring process. The following procedures are designed to help you identify these characteristics so that you are hiring defensively.

First, the employer should establish a defensive hiring checklist. This will let every individual involved in the hiring process ensure that each step the employer has deemed worthwhile and necessary is completed prior to making an offer of employment. The most basic checklists will contain items such as a timely application, an assessment of the application, a screening interview, a secondary interview, background and reference checks, and a decision concerning a potential offer.

While the application review process is pending, don’t promise anyone a job conditioned upon completion of any particular item on the checklist. For example, do not tell an applicant, “You are hired so long as your job references check out.” If you do this, you may inappropriately raise the expectations of the applicant, who will expect a much more detailed explanation if you decide not to make an offer.

You may also find a better applicant prior to the offer being extended, which leaves you in a difficult position. It is better to simply wait until the entire process is complete before making anything that could be construed as a promise of employment.

Generally, the initial contact with the applicant will come in the form of the application. This is your first insight into potential employees. Make it count. Was it submitted timely? Be cautious in allowing late applications. If someone cannot meet the deadline for an application, what are the chances the person will meet other deadlines? Also, thoroughly review the application for “red flags.”

Red flags may include: unexplained gaps in job history; blanks and/or incomplete responses; prior employment terminations; reasons for leaving prior jobs indicating a negative attitude toward management (e.g., personality conflicts, “disagreements” with management, leaving by “mutual agreement,” poor working conditions, etc.); lack of candor regarding background; a history of declining wages; criminal convictions, within the last 10 years, that are pertinent to the job; and lack of personal references. While any one of these items may not in and of itself disqualify an applicant, the items should be evaluated because they may indicate that an applicant is not a wise choice for employment.

Ideally, every applicant should be interviewed by at least two supervisors. However, the initial interview is usually a “screening interview,” beyond which no interviews will be necessary if the initial decision is that the candidate is not ideal. Although in-person interviews are always preferable, the screening interview may be handled by telephone, particularly for employees who will use the telephone in the course of performing their job duties.

Three of the keys to successful interviewing are: 1, getting applicants to talk; 2, listening to what they say; and 3, taking notes. Resist the temptation to spend the majority of your interview time “selling” the candidate on the position. Good interviewers generally are talking during 20 percent of the interview and listening during 80 percent.

Supervisors should have several standard questions directed to each and every applicant, so that they and their answers can be compared more consistently. Interviews should also always include questions asking applicants to divulge what they have liked and disliked in their prior jobs.

Supervisors often wonder whether they should take notes when they interview applicants. Take any notes necessary to allow you to remember key aspects. Notes should never be written directly on the employment application itself because it will become a part of the company’s personnel records. One common technique for taking notes is to write them on post-it notes, which can be attached to the application while it is pending. When the application process is completed, irrespective of how it concludes, the notes should be discarded.

Once a potential candidate has been identified from the interview process, the next step is usually to check references. Both personal and professional references should be checked for every applicant.

Even though many former employers whom you call may refuse to provide substantive information, attempt to contact at least three for each applicant. Try to call former supervisors directly rather than personnel departments or business offices. If people seem hesitant to answer direct questions, ask them indirect questions such as, “Is Jane eligible for rehire?” Sometimes indirect questions and answers are all you will get, but that doesn’t mean they aren’t informative.

Once you have an applicant who successfully meets all items on your defensive hiring checklist, you are ready to make an offer. While no system is foolproof, establishing a solid procedure and following it each time is one way that employers can lessen the odds of hiring problem employees who eat up time, resources, morale and profits.

Mitch Baker is the managing partner in the Portland office of Fisher & Phillips LLP. He defends employers in labor and employment law matters. Contact him at 503-242-4262 or mbaker@laborlawyers.com.

The post OP-ED: When hiring, go on the defensive appeared first on Daily Journal of Commerce.

Workplace violence is a sad reality of our world today. Last year, there were 397 workplace homicides in the United States. Just last month, a former employee walked into a UPS facility in Alabama and shot and killed two people, and in Oklahoma someone recently terminated by Vaughan Foods returned to his former workplace and attacked and killed a former co-worker.

Unfortunately, the question is not if more incidents of workplace violence will occur, but rather where they will occur. If one were to occur at your workplace, would you be prepared? For too many of us, the answer is “no.” If you find yourself in a violent incident at work, your survival may depend on whether you and your employer have a plan.

While employers may not possess the power to fix the social forces that contribute to workplace violence, they can control the effect of workplace violence on their employees. In fact, employers have some legal responsibility to do so. The Occupational Safety and Health Administration (OSHA) recently cited several employers for failing to provide employees with adequate safeguards against violent acts that occur in the workplace. In August, OSHA announced that it fined a company $71,000 for failing to adequately protect employees against workplace violence.

To protect employees, employers should take the following steps: research previous incidents, conduct a site visit, develop a written plan, train employees on the plan, test the plan and revise as needed. Research should not be limited to an employer’s own facility, but include others with similar operations. For example, employers with a perimeter gate and access badges can learn valuable lessons about removing former employees’ access to the facility by studying the September 2013 incident at the Navy Yard in Washington, D.C.

By conducting a site visit, an employer can assess both the specific types of threats likely to occur and whether current facilities provide adequate protection and resources in the event of an incident. A site visit may reveal the need for some simple changes that could mean the difference between life and death, such as installation of a lock on an office door to provide an effective hiding place from an intruder. An office remodel presents a great opportunity to redesign the workspace to prevent entrapment of employees or to build in controlled access to employee work areas.

Employers need to develop a written plan. The plan should instruct employees how to prevent or defuse an incident of violence. Employers are wise to train employees on how to identify escalating behavior in co-workers, patients or customers. When employees spot the warning signs of escalating behavior, such as confusion, frustration, blame, anger, and finally hostility, they should contact their supervisor.

Supervisors should be trained on the appropriate strategic response to the escalating behavior. Employers should also develop procedures for employees to discreetly alert supervisors and co-workers of an escalating situation and the need for assistance. For example, it is common practice in hospitals to alert staff to emergencies by using a public address system; “code silver” typically indicates a combative person with a weapon. Such a warning provides employees the opportunity to take steps to protect themselves.

If it is not possible to prevent an incident of workplace violence, employees should be trained on how to respond appropriately. There are three things employees can do that make a difference: run, hide or fight.

First, if employees can get safely out of harm’s way, they should do so. Employees should help others leave too, but not at the risk of slowing down their own exit. If employees do not have a safe escape path, they should find a place to hide. Employees should turn out lights, lock doors and silence cellphones. Only as a last resort should employees try to engage an intruder.

It is important for employees to know that first responders’ top priority is not to evaluate individuals or attend to the injured, but rather to stop the intruder. Employees need to remain calm and hidden until authorities communicate that the scene is safe. These steps can make a difference in employees’ survival.

It is not enough to have a great plan; employers must also ensure that everyone experiences how it will work. It is a best practice for employers to conduct workplace violence drills. Such drills require careful planning to ensure employees and visitors understand the incident is simulated. Placing a camera, such as a GoPro, on a simulated intruder provides great data to analyze how employees responded and how to improve their response. This data will aid employers with the final step: revising the plan as needed.

It is often said that nobody plans to fail; they just fail to plan. The consequences of employers failing to plan for an incident of workplace violence could have dire consequences. Employers may want to avoid planning for a situation that seems altogether too terrible to consider; however, preparing employees for safety will demonstrate care for their well-being. Employers can prepare employees for an incident of workplace violence by training and equipping them on how to properly manage the crisis.

Kyle Abraham is an attorney at Barran Liebman LLP. He represents employers in traditional labor and employment law matters. Contact him at 503-276-2132 or kabraham@barran.com.

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