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.

The post OP-ED: Union organizing now a whole lot easier appeared first on Daily Journal of Commerce.

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.

The post OP-ED: Should businesses beware of service dogs? appeared first on Daily Journal of Commerce.

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.

The post OP-ED: Ease those Ebola fears, employers appeared first on Daily Journal of Commerce.

A recent court decision awarded workers’ compensation benefits to a worker who was injured during a company kickball game, causing employers across the country to ask many questions. Could this happen to us? Should we organize recreational activities for our employees at all? If so, what can we do to prevent this from happening? And should we cancel that dodgeball game we were considering? Here is a look at what happened and answers to these questions.

Stephen Whigham thought he came up with a good idea when he suggested the kickball game. He was the director of creative solutions for Jackson Dawson Communications, a marketing and public relations firm based in Greenville, S.C., and he attended bimonthly meetings with other managers where they batted around ideas to help improve company operations.

A frequent discussion centered on employee morale and team-building events, so when Whigham suggested a company kickball game, his bosses were all in. One of the company execs authorized him to spend almost $500 in company funds to secure a venue, print t-shirts, and buy drinks and snacks.

The big game was on a Friday afternoon, and about half of the company was able to attend. Whigham of course came ready to play. After one particularly good kick, Stephen was rounding the bases to the cheers of his colleagues when he jumped to avoid being tagged out by an opponent; unfortunately he landed awkwardly on his right leg and injured himself. This was no “pick yourself up and shake it off” kind of injury – Stephen shattered two bones in his leg, had to undergo two surgeries to repair the damage, and was told that he would eventually need a knee replacement to heal properly.

Whigham filed a workers’ comp claim in hopes of recovering his costs from his employer’s insurance carrier, but the state workers’ compensation commission denied his claim. The commission said that this was a recreational event outside of work hours that he was not required to attend, and that there was no benefit to the company other than general employee morale. Whigham appealed to the state Supreme Court, which ruled in his favor in late August.

The main reason the Supreme Court granted him the victory was because his employer implied that his participation at the event was required, which brought the activity within the “orbit of employment.” After all, he was the event’s organizer, and his boss testified during the legal proceedings that he expected Whigham to attend because he was the one who conceived, planned and organized the event. Because of this, the court found that his absence may have been considered a dereliction of duty and affected his standing at the company, thus taking it a step above true “voluntary” attendance.

Most states have similar rules excluding injuries occurring during pure recreational events from workers’ comp coverage, which means the average company picnic, party or sporting event (planned or impromptu) probably will not lead to company liability. What made this event different, obviously, is that Whigham was found to be implicitly forced to attend, removing it from the voluntary category.

As you can imagine, this means that the workers requested by company officials to attend recreational outings (organizers, party planners, event coordinators) are more likely to be considered performing work during these sessions and thus under workers’ comp coverage. For sporting events, be forewarned that if a star player or a “ringer” is invited to show up at the softball game in order to clinch an important victory over a rival competitor, he or she may be more likely considered under the workers’ comp umbrella.

Other factors that could lead to coverage include the time and location of the event: If it is held on company premises, and during regular work hours, coverage is more likely. Also, if the employer derives some sort of substantial benefit beyond the intangible value of improved employee health and morale, coverage is more likely. So, whereas a company-only event designed only for fun and camaraderie usually is outside of coverage, if this is more of a marketing activity – important clients or potential clients are invited, media coverage is invited to promote a charitable activity, etc. – the company may be more at risk of a workers’ comp scenario.

So, what’s the bottom line? Employers should continue to organize recreational events of all types. They foster employee morale, provide a valuable opportunity for employees in different departments to connect with each other, and demonstrate to workers that managers enjoy connecting with them.

However, recognize that a company can’t necessarily escape workers’ compensation claims just because an event is not happening at the workplace. A company may want to curtail particularly dangerous activities, understanding that getting someone to sign a release is not going to protect it from workers’ comp and even negligence claims depending on the scenario.

As for dodgeball? Proceed at your own risk.

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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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.

The post OP-ED: Marijuana is legal in Washington; now what? appeared first on Daily Journal of Commerce.

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.

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