A Marion County Circuit Court judge has struck down Gov. Tina Kotek’s executive order requiring union-friendly project labor agreements.

Judge Thomas Hart ruled from the bench on Thursday that Kotek had exceeded her constitutional authority by effectively requiring project labor agreements be used for large infrastructure projects.

A coalition of contractors and industry groups sued Kotek in February 2025, charging that her executive order, issued in December 2024, unconstitutionally made law without the Legislature. The contractors alleged the rules illegally hindered open-shop firms.

Hart agreed, granting a preliminary injunction in March 2025, preventing the rules from taking effect. Thursday’s ruling is a significant victory for contractors, but Kotek could appeal the decision.

Kotek, in a statement issued on Friday, did not indicate whether she would appeal Hart’s ruling.

“We’re currently evaluating the court’s oral ruling,” she stated via email. “I continue to believe that this was the right policy for the state at the right time. I am resolved to continue to find pathways to encourage fair, living-wage jobs that meet the needs of Oregon families while our state grows.”

Contractors hailed the ruling. Laurie Kendall, interim president and CEO of the Associated Builders and Contractors‘ Pacific Northwest chapter, called the ruling a “big win for merit-shop contractors” in an email to members. She could not immediately be reached for comment.

Kotek’s executive order required project labor agreements to be used for state-funded projects when on-site labor amounts to 15 percent or more of project costs. The agreements, known as PLAs, typically mandate prevailing wages to be paid, but also prevent labor disruptions.

Contractors charge that PLAs raise costs for large-scale projects.

ABC was joined in the lawsuit by the Associated General Contractors‘ Oregon-Columbia chapter, the Northwest Utility Contractors Association, the National Federation of Independent Business, and more than a dozen Oregon contractors.

The plaintiffs were represented by Joshua P. Dennis of Schwabe, Williamson & Wyatt, Angela Otto of Dunn Carney, D. Brent Carpenter of Jordan Ramis and Darien S. Loiselle of Sokol Larkin. The governor was represented by the Oregon Department of Justice.

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A coalition of construction contractors this past Friday filed a lawsuit challenging Gov. Tina Kotek’s executive order that requires project labor agreements for most state projects.

The lawsuit, filed in Marion County Circuit Court, comes after Kotek’s order drew strong backlash in the construction industry. The contractors allege Kotek “does not have the power” under the Oregon constitution to require project labor agreements for state projects, according to the complaint.

“We believe that the governor exceeded her executive powers and created an anti-competitive environment, disregarding the advice of one of her own agencies regarding the added cost to Oregon taxpayers,” Mike Salsgiver, CEO of the Associated General Contractors‘ Oregon-Columbia chapter, stated in a news release on Friday.

Kotek’s Dec. 18 order requires project labor agreements be used for state-funded projects when on-site labor costs amount to 15 percent of project costs, which would capture the vast majority of large-scale projects.

It comes as the state prepares to embark on major infrastructure undertakings, including the Interstate 5 Rose Quarter Improvement Project and the Interstate Bridge replacement project.

Matthew Mues, a construction attorney with Davis Wright Tremaine LLP who is not involved in the lawsuit, pointed to studies showing PLAs raise costs.

“If the executive order requiring PLAs on public projects in Oregon is upheld and maintained, it will have an effect on open shop contractors, and it will increase the cost of construction of those public projects,” Mues said.

Kotek’s office and allies in organized labor have argued that PLAs will provide labor peace and certainty for big infrastructure projects.

The governor’s office did not respond to messages seeking comment.

“The last thing Oregonians can afford right now are the higher costs and cost overruns that come with union-only PLAs,” stated Laurie Kendall, president of the Associated Builders and Contractors’ Pacific Northwest chapter.

“The issue is ripe for adjudication because the Governor has directed all state agencies to comply with the requirements of her executive order immediately,” the complaint states.

The contractors may have reason to hope for relief from the courts after a string of legal victories against similar orders.

In April 2024, AGC and three contractors won a preliminary injunction in Marion County Circuit Court against a community workforce agreement, or CWA, that was entered into between the Oregon Department of Transportation and 37 labor organizations. In that case, Judge Jennifer K. Gardiner said the CWA was “specifically designed to prioritize union labor.”

“To suggest that, because bidding is open to everybody, it necessarily creates an open and equal playing field, is simply false and disingenuous,” Gardiner wrote in her order.

Like the earlier lawsuit, this one opposing the PLA requirement was filed in Marion County, suggesting the contractors like their chances in that court.

“I anticipate based upon the ruling they received on CWAs, that was a motivating factor in filing it in Marion County,” Mues said.

At the federal level, PLAs ran aground in January, when Judge Ryan T. Holte of the U.S. Court of Federal Claims found in favor of contractors who challenged a 2022 executive order by then-President Joe Biden mandating PLAs be used for all federal government construction projects costing $35 million or more.

Holte relied in part on a General Services Administration market survey that found PLAs could be expected to increase costs and decrease bidders’ interest.

The plaintiffs in the new lawsuit include a wide swath of the Oregon construction industry: Associated General Contractors’ Oregon-Columbia chapter, Associated Builders and Contractors’ Pacific Northwest chapter, the Utility Contractors Association of Oregon and Southwest Washington, the National Federation of Independent Business, HP Civil Inc., Hamilton Construction, K&E Excavating Inc., Interlaken Inc., Moore Excavation Inc., Iron Horse LLC, Hatch Western Co. Inc., Hydro-Temp Mechanical Inc., North Santiam Paving Co., Berrien Concrete, American Concrete Co., Kerr Contractors Oregon and Emery & Sons Construction Group.

The contractors are represented by Schwabe, Williamson & Wyatt PC of Portland. Kotek is named as the defendant.

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By Ethan Duran
91��Ƶ Newswires

The Department of Defense has pulled for large-scale construction projects.

That’s according to a Feb. 7 within the office of the Secretary of Defense directed to branches including the Army, Navy and Air Force, ending the DOD’s rule for large defense projects requiring federal contractors to sign labor agreements with unions. The move follows a federal judge’s ruling that project labor agreements attached to large federal projects was illegal.

“Effective immediately, contracting officers shall not use project labor agreements for large-scale construction projects,” wrote John M. Tenaglia, principal director of contracting at DOD. “Contracting officers shall amend solicitations to remove project labor agreement requirements,” he added.

In January, a judge in the U.S. Court of Federal Claims ruled in favor of construction companies who staged bid protests over an requiring project labor agreements worth more than $35 million. Former President Joe Biden signed the order in February 2022 after signing the trillion-dollar infrastructure law.

Both the and the supported revoking the executive order. Firms that belonged to both organizations staged bid protests resulting in the ruling. The rule is still in place for federal civilian agencies, however.

“The DOD’s new policy effectively eliminates President Joe Biden’s controversial rule requiring anti-competitive, inflationary, union-favoring project labor agreements on federal construction projects of $35 million or more – but only for DOD construction solicitations,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs, in a statement. “The DoD’s policy remains in effect until it is rescinded,” he added.

“The announcement that the U.S. Department of Defense will drop project labor agreement mandates from its military construction solicitations is a clear sign that our approach is working,” said Jeffrey Shoaf, chief executive officer of AGC, in a statement. “We expect all federal agencies involved in procuring construction services to follow suit and drop what is clearly an unlawful mandate from their construction solicitations,” he added.

In 2024, at least 12 federal contractors protested the U.S. Army Corps of Engineers, Naval Facilities Engineering Systems Command and the General Services Administration. Judge Ryan T. Holte ruled on the contractors’ side that the Federal Acquisition Regulatory rule that led to project labor mandates was illegal.

Government agencies had a deadline on Feb. 3 to correct solicitations and follow the judge’s decision.

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A Hillsboro police officer who was fired for a series of interpersonal conflicts recently received some bad news from a federal appeals court. Although a jury had agreed with Matthew Weaving’s claim that he was fired for being disabled and should have been accommodated for his Attention Deficit Hyperactivity Disorder (ADHD), the appeals court reversed the decision and handed his employer a victory. Here’s what you need to know about this case:

Weaving was a police officer in Oregon for 14 years, and his tenure was littered with conflicts with co-workers. When he worked for the Beaverton Police Department from 1995 to 2004, he was criticized for being abrasive, forcefully outspoken, disgruntled and intimidating, and was even removed from a special assignment because of personality conflicts with co-workers. When he worked on an interagency task force with the FBI, a federal agent wrote a complaint letter to Weaving’s bosses addressing his communication problems and overly aggressive style.

Weaving left the BPD in 2004 and joined the Hillsboro Police Department, but the personality conflicts continued. Although he was promoted to sergeant in 2007 because of his technical skills as an officer, he received numerous complaints regarding his communication style.

In 2008, a fellow sergeant complained that Weaving was dumping too much work on him. Weaving responded by sending him an email where he described the workplace like a swimming pool with a deep end and a shallow end separated by a floating rope, and recommended to his co-worker that he “remain in the shallow end where you can splash around with the kids.” Weaving concluded the email by taunting the co-worker, saying he knew where he could find Weaving if he wanted to talk further: “I’m easy to locate. I’m in the deep end, so bring your water wings!”

In 2009, a formal investigation into Weaving’s behavior began after he verbally berated another officer over the open radio for all to hear; the resulting report concluded that Weaving was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (Besides that, he was a great guy.) The city of Hillsboro terminated Weaving’s employment after receiving the report, determining that he did not possess adequate emotional intelligence to successfully work in a team environment.

Weaving filed a disability discrimination lawsuit against the city, claiming that he had been diagnosed with ADHD and should have been accommodated. During the investigation into Weaving’s behavior, he provided a doctor’s note confirming the diagnosis and requesting that he be allowed to continue working while he underwent treatment for his communication problems. He said that he had suffered from ADHD since childhood and just recently realized it might have been causing his interpersonal issues.

Because that request was denied, Weaving sued under the Americans with Disabilities Act (ADA). A federal jury ruled in Weaving’s favor and awarded him more than $775,000 in damages. The city appealed, and a few weeks ago the Court of Appeals for the Ninth Circuit (it hears appeals for most districts in the West, including Oregon, Washington and California) overturned the jury’s decision and awarded a victory to the employer.

The appeals court said that Weaving wasn’t considered “disabled” under the ADA and didn’t need to be accommodated; therefore he had no claim. It pointed out that Weaving was, in many ways, a skilled police officer. Although he may have had many issues getting along with others, the appeals court said that Weaving was not substantially limited in his ability to interact with others (as opposed to, say, someone with severe panic attacks who is housebound most of the day and barely functional as a result).

The court concluded by saying that every “cantankerous person” will not be deemed to be disabled, especially if there is proof that the person can engage in normal social interactions. One judge in summary said, “Weaving isn’t disabled; he’s just a jerk.”

It is widely expected that this case will be appealed up the chain, maybe even to the U.S. Supreme Court. Until then, what can employers take from this decision?

First and foremost, there is good news whenever a court decides that a plaintiff isn’t disabled under the meaning of the ADA. Ever since the law was amended very liberally in 2008, it has been very difficult for employers to win these kinds of cases.

Most importantly, this case upholds the principle that employers can enforce their employee standards as they relate to personal interactions, and not worry that an employee is going to blame their rudeness on their disability. Employers should draw very bright lines in their written policies prohibiting uncivil behavior and ill-mannered communications, and then train their managers to apply these rules consistently.

Employees should be provided with annual evaluations that honestly address co-worker interactions and constructively criticize problem areas while providing a road map for improvement. If things don’t get better, this case should provide some comfort in knowing that discipline (including termination) can be warranted if it goes too far.

If an employee tells the employer that he or she has a medical condition that may be interfering with his or her ability to remain polite and professional, the employer shouldn’t simply ignore it. Engagement in an interactive process with the employee may be worthwhile to see the evidence and get specific feedback on what is being requested.

As this case demonstrates, an employer won’t necessarily have to actually accommodate the employee depending on the situation, but it is possible that he or she will present possible solutions that make sense and can be implemented for a trial period. If it turns out the employee actually is disabled, the employer might have a duty to work with him or her to fashion a reasonable solution. But if it turns out the employee is just a jerk, this case could be the defense needed to fire the person.

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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The day has finally come. As of July 8, people in Washington state can legally purchase small amounts of marijuana and smoke pot privately without fear of criminal repercussions from the state.

Peering over the Columbia River, many Oregon employers worry about what this could mean for them. What if a worker commutes from Vancouver and shows up with “legal pot” in his system? How could that be treated under an employment policy? And could any workers travel across the Interstate Bridge, purchase weed legally and then claim lawful behavior if they show up to work high? Where can an employer draw the line?

The case of Mike Boyer and his Washington employer, TrueBlue Labor Ready, might help explain the situation best.

Mike wanted to be the first person in the state of Washington to purchase marijuana legally, so he prepared well. He was first in line to camp out in front of Spokane Green Leaf and waited more than 20 hours until the doors opened. He was so proud of his position that he invited news crews to watch and record him making the historic purchase when the store opened at 2 p.m. He even allowed them to follow him back to his house, where he legally smoked pot for the cameras.

Mike didn’t realize (or didn’t care) that his managers at TrueBlue saw the news report, until they asked him to come in to take a drug test within the next 24 hours. Of course, he tested positive for marijuana, and it should come as little surprise that he was immediately terminated for violating the company’s zero-tolerance drug rules. Thus he was in the headlines for the second time in two days for falling victim to his employment policies.

But there’s a twist – his employer soon learned that he was actually on a pre-planned day off work on July 8, and thus realized they couldn’t prove that he was under the influence of the drug while on duty. So on July 9, they rehired him and apologized for the misunderstanding.

Mike had a pretty relaxed attitude about the whole thing. “It all worked out,” he was quoted as saying after he appeared in the news headlines for the third time in three days.

So, what can Mike’s situation teach us about how to handle the inevitable situation wherein an employee claims that he can’t be legally fired because marijuana is now legal in Washington?

First things first. The new law does not say that employees are allowed to use the drug at work in Washington, and it does not provide individuals comfort should they show up for work with the drug remaining in their system. But that might not stop employees from claiming that they can’t be touched, arguing that recreational pot is now legal.

Further, the Washington law sets a standard for marijuana “impairment” based on how much THC, the drug’s active ingredient, is in the bloodstream; some employees might even claim that they should not be in violation of workplace policies if they are below “impairment” levels set by law. This is especially true because THC drops below the legal impairment level within hours, but certain marijuana remnants can show up in a drug test days after use.

No fear, employers. Despite these anticipated arguments, employers are in no way required to amend their workplace drug and alcohol policies to accommodate the new law. Just because marijuana is legal under certain circumstances doesn’t mean an employer has to tolerate it in an employee’s system while at work.

After all, alcohol is legal across the country, but an employee who sneaks a bottle into work or shows up to work drunk can certainly be terminated. Marijuana is no different, and employers can remind employees of this before they think about breaking policies.

Further, the law does not change a 2011 Washington Supreme Court decision that found employers are permitted to discipline or terminate medical marijuana users who violate workplace drug policies, and are not required to accommodate an employee’s use of medical marijuana.

And finally, Oregon workers have absolutely no right to claim that any impairment that shows up in their system is somehow protected if they bought or ingested the drug in Washington, because the law offers them no safety net in that respect.

Employers continue to have legitimate reasons for implementing and applying policies prohibiting employee use of marijuana at work, and requiring that employees not have traces of marijuana in their system while at work, even if the substance is legal in their home state or a border state. (And don’t forget that marijuana is still considered illegal under federal law.)

Employers should continue to apply their zero-tolerance drug and alcohol policies, drug testing policies and prohibitions against the possession of the drug on company property. To avoid any confusion as to how workplace policies apply to recreational use, I recommend that company policy be issued in writing to applicants and employees, and that it clearly indicate that the use of marijuana – whether for recreational or medical purposes – is prohibited just as is any other controlled substance. Further, policies should prohibit any detectable level of drug in an employee’s system to avoid any confusion with the state’s “impairment” standard.

Mike’s employer decided to cut him a break because they might not have been able to prove that he was impaired while on duty, and maybe also because they didn’t want to bear the brunt of the negative publicity. However, this doesn’t mean that employers can’t enforce their policies consistently and stringently. If an employee decides to toke up in Vancouver over the weekend, and then shows up to work with traces of marijuana in his or her system on Monday morning, feel free to take disciplinary action as with any other violation of anti-drug rules.

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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There are a lot of good reasons why employers might want to track company vehicles through a GPS monitoring device – from managing logistics and efficiency, to enforcing compliance with company policies and procedures, to ensuring employees’ safety. However, where does one draw the line?

Can employers monitor employees’ movement 24/7? Could an employer take it one step further and track a worker’s laptop or cell phone? At what point does this behavior become an illegal invasion into privacy?

The world of electronic surveillance in the workplace is evolving rapidly, and employers will want to weigh multiple considerations before initiating or continuing a company program utilizing GPS to track workers’ movements.

An increasing number of employers are using some form of GPS to track company vehicles and/or employees; companies in the trucking, transportation, sales, construction and fleet industries have reported success in some form of monitoring. Not all have designs on spying on their employees; rather they recognize the benefits of increased efficiency for delivery times and reduced fuel costs, improved dispatch times, better customer service, recovery of stolen property, and general loss prevention.

But employers quickly realize that there are other benefits to having an eye in the sky on their workforce: making sure a delivery driver isn’t taking a detour to a watering hole on the way back to the office, confirming hours of work for compensation purposes, or ensuring safe driving practices, for example.

So let’s start with the basic question: Is this legal? In most states, yes. While California prohibits such tracking, and a few other states require employers to notify employees in advance if they are being tracked, the general rule across the country is that legitimate tracking of employees via GPS is a legally-acceptable practice.

In one of the first cases to deal with this issue, the right to monitor employees was upheld. A Coca-Cola bottler in Missouri was investigating a theft and installed GPS devices in company vehicles, but when one of the employees cleared of the crime learned of the activity, he sued for invasion of privacy. The court rejected his claim and said that the company had the right to track its own vehicles, and that the information it was gathering – the location of the car – was “highly public” anyway and therefore not private enough to warrant an invasion of privacy claim.

Taking it a step further, another prominent case involved a school worker in New York who was issued a company cellphone with GPS tracking installed. The employer used the data to determine that the employee was continually leaving work early and falsifying his time cards. After he was terminated, he filed a grievance seeking his job back; however, the judge ruled that the employer had a legitimate reason to track his movements and that he was aware of the monitoring. The termination was upheld.

On the other hand, we might see backlash to this general rule as Americans seek some freedom from the ever-increasing ways in which they can be monitored. In 2012, the Supreme Court held that GPS tracking of a suspected drug dealer’s car without a warrant was unconstitutional. And just last month, the Supreme Court struck down police seizures of cellphones without warrants, recognizing that people use cellphones for many other reasons than simply making calls, and that the treasure trove of information contained within – including location tracking data – should be protected in some manner.

Although these two cases involved criminal law and have no direct applicability to the workplace, many observers believe they may usher in a new era of personal privacy to which employers must adapt.

Here are some practical tips for employers to stay on the right side of the law. First, at a minimum, employers should be up front with their employees when it comes to GPS tracking. Whatever is being done in this regard should be contained in a written policy distributed to all employees, and should be covered in new worker orientation and training sessions.

Second, taking in a step further, employers should provide this written policy as a stand-alone document that should be signed by employees, so that if and when any GPS data needs to be used against them the employer can point to the clear recognition of the situation.

Third, and perhaps most importantly, employers should limit any tracking to work hours and legitimate work reasons. The easiest way to walk into an invasion of privacy claim is to virtually follow employees around after hours and for reasons having nothing to do with their work.

A good rule of thumb is to not gather too much information about employees. Imagine terminating an employee for poor performance, and then being sued by the ex-worker blaming the termination on sexual orientation, a medical condition, practice of a certain religion or being a union organizer. If that worker can show that he or she was tracked after hours to a synagogue or a gay pride rally or a psychiatrist’s office or a union hiring hall, the person now has a leg to stand on.

Fourth, train managers to narrowly tailor GPS searches for legitimate reasons and only during working hours. Sometimes mid-level managers can get drunk with power and enjoy spying on workers; keep such actions in check.

Fifth, before taking disciplinary action against a worker because of GPS data, investigate thoroughly by asking the person for his or her side of the story and seeking out other evidence. After all, the worker might have a legitimate excuse such as being stuck in traffic or forced to take a detour because of road construction.

Finally, employers would do well to stay on top of this ever-evolving area of the law. Congress and several state legislatures are debating these topics and considering bills to address these concerns in the near future. No doubt we will see new laws passed and court cases published that will further define the contours of GPS use at work.

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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There are probably a few things that employers can feel fairly confident about when it comes to managing the workplace. They can set working hours, hold employees to certain standards, establish pay scales and prevent employees from using the work email system for nonwork purposes.

However, if the National Labor Relations Board has its way, that last belief might go out the window, and sooner than you might expect. The next battlefield between union organizers and employers will take place on email servers, and employers might not be too happy when they learn that their prospects for defeat are pretty high.

Let’s take a step back. The National Labor Relations Act, which governs workplaces union and nonunion alike, guarantees workers the right to take certain actions to try to organize or join a union without fear of management retaliation. The law has been this way in our country for over 75 years.

In the past 20 years, battles have been waged between unions and employers to try to balance this right with the employer’s desire to set limits on when and where this organizing can take place. The NLRB has settled most of these disputes and provided some fairly clear standards. The general rule that came about was that employers could exclude union organizing if the methods used for organizing were ones where the employer maintained exclusively for work purposes.

Think, for example, of the company bulletin board in the break room. If the employer restricted access to posting only work-related and preapproved messages on the bulletin board, then it could justifiably prevent union organizers from posting leaflets promoting an organizing drive or a union rally. But if the company routinely allowed workers to post messages about a daughter’s Girl Scout cookie sale, or even about a March Madness pool, then the NLRB would probably allow union organizing efforts to take place there too. After all, the company demonstrated that the bulletin board wasn’t a sacred “work only” zone, so why should it really complain when an employee wants to post something about a union campaign?

New battle lines needed to be drawn in the past 10 years as the workplace rapidly transformed itself in the digital age, and a case in Oregon has set the standard in this area since 2007. In one of the last acts carried out by a Republican-controlled NLRB (read: business friendly), it issued a decision involving the workplace email system of the Eugene-based Register-Guard newspaper.

In that case, a union employee was punished by her employer after sending several union-related email blasts over the company email system; one attempted to set the record straight regarding a pro-union rally taking place that day in Eugene (ending “yours in solidarity!”), another encouraged employees to wear green to support the union position in contract negotiations, and another solicited attendance at a parade and rally.

The company cited that its clear policy stated that email systems were not to be used to “proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” The NLRB upheld the discipline and the right of employers to restrict email systems for work-related purposes, and an appeals court upheld this decision. Fast-forward to 2014, and the now Democrat-controlled NLRB (read: labor friendly) is itching to revisit this ruling.

On April 30, the NLRB sent shockwaves across the labor field by indicating it would take up a new case involving a similar issue and actively seek input on where and how to redraw the battle lines.

The new case arises from Purple Communications, a technology company based outside of Sacramento, Calif., where a union organizing drive was taking place in 2012-2013. The union organizers objected to the company’s broadly written email policy, which had a blanket prohibition on nonwork-related usage of the company email system, and specifically asked the administrative law judge to overturn the seven-year-old Register-Guard decision.

Although the ALJ dismissed this charge, the NLRB said it wants to revisit the issue on appeal and consider whether to overturn existing law. The union organizers want the NLRB to adopt a rule expressly allowing employees to use their company email system for union organizing activities, subject only to the need for workers to remain productive during work hours.

Before issuing a ruling, the NLRB is now seeking input from employers and labor alike, asking whether it should overturn the law, and if so what standards should be established.

It doesn’t take a crystal ball to predict that the NLRB is very likely to overturn the earlier decision and allow union organizers free reign to use company email systems for their own purposes. That means that this issue will likely head to the federal court system for a final determination.

If a new rule is established, employers will need to drastically rewrite their electronic use policies, even if they don’t have a union presence, and strip away any blanket prohibitions that exist. Labor organizers will likely argue that the existence of such policies would have an improper chilling effect on union campaign efforts.

Obviously, the other result of such a decision from the NLRB and an appeals court would be an uptick in organizing efforts – a development likely to have a widespread impact on the current labor landscape.

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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Pop quiz: Your company has a strict dress code, and you have always consistently held your employees to it. A new employee shows up for work one day blatantly violating the policy. You can discipline this employee without a second thought, right? Wrong. Before enforcing your dress or appearance policy, you better make sure that the employee is not claiming the reason for such an appearance is because of his or her religion.

The Equal Employment Opportunity Commission recently issued a new set of reminders to employers summing up the obligation to accommodate workers’ religious beliefs, focusing on religious clothing and other appearance-based practices.

The main thrust of the new EEOC publication is that employers may need to make exceptions to their usual rules or preferences to permit workers to observe religious dress and grooming practices. They point out the most common practices that employers encounter on a frequent basis: religious clothing like a headscarf, turban or cross; clothing prohibited by a religion; and religious requirements to grow hair, including beards, dreadlocks or sidelocks.

But this is just the tip of the iceberg. The guidance cites a variety of religious practices – some that are unique or unusual enough that an average employer may not be prepared to accommodate them.

Some examples provided in the guidance are fairly obvious and easy to understand. A Muslim employee at a bank wants to wear a headscarf during Ramadan, and the employer would need to make an adjustment to its dress code to permit it. A Jewish consultant on a long-term assignment with a client should not be forced to abandon his yarmulke despite any client reservations. A Catholic librarian at a public library needs to be allowed to maintain black ashes on her forehead on Ash Wednesday.

However, employers should recognize that the rules don’t apply only to common religions; instead, the EEOC employs an incredibly broad definition of what a “religion” is. Employers can’t consider only Christians, Jews and Muslims and think that all others are outside the mainstream boundaries. The EEOC believes that just about every religious observance, practice or belief should be protected, even if it belongs to new, uncommon, nontraditional religions, and those not part of a formal church or sect.

Any practice based on theistic beliefs or nontheistic moral/ethical beliefs can be considered protected, and rarely is a case dismissed because the worker’s belief is not recognized as “proper.”

One of the examples provided in the guidance involves a worker observing an ancient Egyptian faith called the “Kemetic” religion, where he is affiliated with a tribe of fewer than 10 other people. As part of his religion, he has small tattoos around his wrist written in the Coptic language, and he claims that covering them would be a violation of his beliefs. The EEOC says that an employer would have to accommodate him by allowing him to display them, even if its policy bans visible tattoos.

Some people might ask: “How am I supposed to know whether some tattoos are religious in nature, or whether someone’s hair length is guided by his or her beliefs?” The good news is that the EEOC states that unless the nature of the practice is obviously religious, the employee has the obligation to trigger the process by notifying the employer.

For example, if you tell an applicant that he would need to shave his beard if he worked for you, and he never tells you he is growing it because of his religion, he can’t prevail in a lawsuit against you. The same thing goes for employees – if you discipline someone for a dress code violation, but the person doesn’t tell you why he or she is doing it, you shouldn’t be in trouble.

However, the EEOC points out that the employee need not use any “magic words” to request an accommodation; simply notifying you that the practice is religious-based is enough. For example, when a Native American restaurant server was told that he needed to cut his hair “short and neat” per company policy, and he offered to wear it neatly in a ponytail or held by a clip to accommodate his religious beliefs, the employer should have understood what he meant and gone through an accommodation process. Its failure to do so led to discrimination liability.

Another question employers often ask is about the reaction of customers or co-workers. If customers would be offended or upset by seeing someone outside the norm of what they expect, or other workers held to the same standards are disgruntled or jealous seeing someone get away with a flagrant uniform violation, what role should that play in the process? The EEOC says it must play no role whatsoever.

Employers have an obligation to follow the law and can’t be swayed by customer complaints or co-worker grumblings. In fact, the only kinds of things that can allow an employer to block an accommodation request would be safety, security or health concerns. If an employee worked in a sterile environment, perhaps, and refused to wear a face mask over his beard, he would not need to be accommodated. Or if an employee said she needed to wear a long, free-flowing skirt instead of more form-fitting uniforms, and the employer had a sincere concern about the clothing being caught in machinery, that may also qualify as a legitimate justification.

The EEOC says that an employer can also get away with rejecting an accommodation if the request would cause an “undue hardship,” but it never quite gets around to explaining scenarios that would qualify. In other publications, the EEOC has noted that an undue hardship means the accommodation would impact the efficiency of other jobs, infringe on other employees’ job rights or benefits, or cause co-workers to carry a greater share of potentially hazardous or burdensome work. The fact that the federal agency didn’t discuss this issue in depth in the 15-page guidance shows you that this is a disfavored excuse, and one that probably will not be looked upon kindly if employed as a defense.

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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There are a lot of misconceptions regarding unemployment claims filed by ex-employees, and this month I’ll try to shed some light on them to help answer the oft-repeated question: “Should we fight an unemployment claim?” A recent decision by the Oregon Court of Appeals shows just how difficult it is for employers to prevail in such claims.

Lisa Fox worked as a pharmacy technician for Kaiser Foundation Health for over 13 years until her termination in January 2013. On Jan. 17, 2013, Fox knew she was in for a bad day because she was perilously close to being late for work. Her company required her to clock in for her shift within four minutes of the start time of her shift, meaning she needed to clock in by 6:34 a.m. or face possible disciplinary action. She was already on notice of prior attendance violations, so she was frantic that morning and in a rush to get to work on time.

Fox drove her car into the parking lot, parked it in a loading zone near her building’s entrance, and dashed into the workplace to try to beat the clock. She breathed a sigh of relief as she punched in at 6:33 a.m., then returned to the parking lot to move her car into a regular parking space. She arrived back at her work station at 6:36 a.m. to begin her work day.

When Fox’s employer learned about this situation, it promptly terminated her employment for “time-card fraud,” concluding that she inappropriately got paid for several minutes while not actually performing any work, and had effectively lied about her true start time.

Fox filed a claim for unemployment benefits, which was initially denied by the Employment Department. She then appealed to an administrative law judge, who reversed the decision and granted her benefits. Kaiser then appealed that decision to the Employment Appeals Board, which overruled the judge and denied benefits. Fox then appealed to the Oregon Court of Appeals, which issued a ruling in March 2014 saying that she should be given one more chance to try to prove her case.

In order to understand this decision, it is important to take a step back and understand the rules at play.

The Oregon Employment Department, along with most employment departments around the country, allow individuals to receive partial compensation while in between jobs in order to help tide them over. However, not everyone qualifies for these benefits. An employee who quits isn’t entitled to unemployment because plans for compensation should have been secured before abandonment of a paying gig. And if an employee commits an act so reprehensible that she should have realized that anyone in her shoes would be fired, she also cannot enjoy the benefits because it’s her own fault she is without compensation.

I usually counsel employers that if an employee punches someone, steals something, does drugs, or drinks alcohol at work, it’s pretty safe that the person’s benefits claim will be denied. However, anything beyond that is tricky. The rules are fairly liberal in nature and allow employees to collect unemployment benefits even when they deserve to get fired, so long as their conduct wasn’t egregious in nature.

So an employee who screws up work, continually shows up late, blows a critical presentation, loses a big account, consistently gets poor evaluations, forgets basic company rules, or just plain proves to be too unskilled for the position probably will still get benefits. And if the employee commits an egregious action, but claims that it was “an isolated instance of bad judgment,” the state will give the employee a one-time pass and allow them benefits anyway (so long as the conduct wasn’t unlawful in nature). That’s just what Lisa Fox argued: Her “time-card fraud” was actually just a one-time screwup that should be forgiven.

The Court of Appeals didn’t go so far as to agree with her, but it did say that the lower agency didn’t properly examine her mental state when making its ruling. The appeals court said that whether a rule violation amounts to an isolated instance of bad judgment depends on not only the seriousness of the conduct but also the claimant’s mental state when committing the act.

Here, Fox said that she made a “snap decision” while in a rush that morning, that she didn’t realize what she was doing would be considered “fraud,” and that she has time-management issues due to diagnosed attention deficit disorder. All of these things, she said, should play into the decision in determining whether she should get benefits. The court agreed, noting that the lower agency should take testimony and evidence about these issues before rendering a decision, sending the case back to it for further proceedings.

So, should employers fight unemployment claims? Firstly, as described above, employers should understand that there is a very high hurdle at play to get an employee disqualified. More importantly, employers should understand that UI claims aren’t referendums on whether the termination was justified or lawful.

There might be a very good, nondiscriminatory, well-documented, and supportable reason to terminate an employee, but that doesn’t mean that an unemployment claim will be denied. So don’t feel the need to fight the claim in order to prove you were in the right.

If you do decide to fight a claim, however, be sure that you take it seriously and not try to wing the hearing without preparation. Employers’ statements during the UI process are made under oath, so even though the ultimate decision might not impact a later discrimination or wrongful discharge claim filed by the worker, the statements made during the process are going to lock you into a story. Do your homework and prepare as if you were in court.

The answer to whether you should fight an unemployment claim is “it depends.” But at least understand the risks and consequences should you decide to venture down that path.

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.

The post OP-ED: Weighing whether to fight unemployment claims appeared first on Daily Journal of Commerce.

You’ve probably heard (or even used) phrases that exaggerate a difficult situation at work: “You’re killing me over here” or “This job will be the death of me” or “I’m heading for an early grave with the work you’re piling on me” or “You’re working me to death.” But what if these phrases aren’t intended as exaggerations, but actual accusations? Is it possible for an employer to work an employee to death? A pending case in Ohio is putting this theory to the test.

The tragic case of Beth Jasper is a nightmare for any family and employer. She was a nurse at the Jewish Hospital in Cincinnati, and by all reports was very skilled and hardworking. She was one of the few nurses at the hospital qualified to work the dialysis machines that were critical to patient care, which was both a blessing and a curse.

On one hand, Jasper enjoyed the opportunity to provide this care to her patients. On the other hand, her family claims that she often felt as if she was being pulled in many different directions, and that she was routinely called into work while off duty to handle this function. Her family also claims that the hospital was regularly understaffed, which caused the nurses to work through breaks and pick up additional shifts. It got to the point, Jasper’s family says, that hospital staffers, including her supervisor, complained to the administrators about the situation; however, sufficient relief was not provided.

In March 2013, Jasper worked a 12-hour shift before departing the hospital; her family alleges that Jasper told her co-workers as she was leaving that she was “really stressed” and hadn’t eaten because of her work. While heading home in her car, she died in a single-car accident after her vehicle veered off the road, jumped an embankment and struck a tree.

Several months ago, Jasper’s surviving family filed a wrongful death lawsuit against her employer, claiming that she was “worked to death” by the hospital. The lawsuit alleges that fatigue from excessive work was the primary cause of the fatal accident, alleging that it is likely that she fell asleep while behind the wheel. Specific to this industry, the family points out that chronic understaffing at hospitals is rampant throughout the country, and that this problem should have been avoided with the implementation of safe staffing ratios.

Wrongful death claims of this type are certainly rare, because employers are rarely accused of contributing to the death of their own employees. However, what legal obligations did the hospital have in this case? What are the chances of Jasper’s family prevailing? And what lessons can be learned from this tragedy?

The employer in this case, like every one across the country, had a duty to provide its employees a safe working environment. State negligence laws, and federal OSHA regulations, demand that employers act reasonably when it comes to their employees’ safety. Certainly this means offering safe working conditions, and besides some general obligations, each industry has its own specific requirements whether the location is a construction site, a warehouse, a delivery vehicle or a white-collar cubicle.

Most employers understand these risks, and those in physically demanding or dangerous fields usually have a vibrant safety committee and other mechanisms in place to prevent serious injuries or death while at work. The average employer is probably familiar with the requirements in its particular field and likely has taken reasonable steps to offer a safe workplace for workers.

But the Jasper case brings up another issue: What obligation do employers have to their employees once they leave the workplace? After all, Jasper’s death occurred when she was driving her own personal car while off-duty and outside the control and supervision of her superiors. Employers are often cautioned not to get involved with the personal lives of their employees, generally keeping their hands off the activities of their workers once they are clocked out and off the premises.

For these reasons, it will likely be very difficult for Jasper’s family to prevail in their wrongful death lawsuit against the hospital. In fact, at the time of publication, a motion to dismiss is pending that would end the lawsuit altogether. No matter how difficult or stressful her job was, a court will likely find that employees have to take personal responsibility for their own actions outside of work. Unless the employer was on direct notice that it was causing an employee to put herself at risk, and ignored those warning signs, it is doubtful that an employer would be held accountable for Jasper’s accident.

The lesson to be learned from this case is that employers should monitor the working situation of its employees and ensure that they are being treated in a fair and reasonable manner. If employees complain about working conditions, employers should respond to each complaint and document efforts. If the employer becomes aware that any aspect of the job is causing problems for employees – whether on or off the clock – a supervisor should privately discuss the situation with the employee to see if anything can be done.

Perhaps a reasonable accommodation or some other adjustment to the working environment might be necessary to ensure the safety of employees and the general public. After all, even if a court vindicates the hospital in this lawsuit, you can be sure that there will be no winners in this case, and the outcome will be one that everyone would have rather avoided in the first place.

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.

The post OP-ED: Can an employee be worked to death? appeared first on Daily Journal of Commerce.