Employment Relations Board Orders TriMet to Arbitrate

Employer TriMet is the mass transit district for the greater metropolitan area around Portland. ATU Local 757, the Union that represents Employer’s mass transit operators, brought two grievances: (1) A grievance seeking to enforce a contract provision that would allow a terminated manager to return to a union position; and (2) A grievance seeking to challenge the assignment of bargaining unit work to local non-profits under a federal grant program administered by Employer, as a violation of a contract provision that required “lines of the District” to be staffed by Union members. The Employer contended that neither issue was arbitrable because the manager was not a bargaining unit member, and because the contract could not supersede the grant process used by TriMet to allocate federal funds for transit services. However, the Employer refused to submit either issue to an arbitrator.

The Administrative Law Judge for the Oregon Employment Relations Board held that both issues satisfied the standards for arbitrability. The Judge determined that in both cases, the Union was relying on contract language as the basis for its grievance, and that both grievances are not subject to the arbitration provisions of the collective bargaining agreement. The ALJ ordered the Employer to cease and desist from violating the grievance arbitration provisions of the collective bargaining provision, and to process both grievances. The Employer objected to the order, and the Employment Relations Board affirmed.

Talia Stoessel’s Know-Your-Rights Guide to Oregon Employment Law

Attorney Talia Stoessel created a handy know-your-rights guide on Oregon labor and employment laws to provide a simple overview on various aspects of the law applicable to Oregon workers. This guide is geared towards LGBTQ communities but is generally applicable to workers in Oregon as of May 2017. Feel free to contact her at stoesselt@bennetthartman.com or (503) 546-9609 with any inquiries related to the guide or referrals on various legal matters in Oregon or Washington state. Talia is also available to come speak to community groups on the overview of the employment litigation process and how to assess whether workers have potential claims or remedies.

PDF Download: Talia Stoessel’s Know-Your-Rights Guide to Employment Law

Talia Stoessel's Know-Your-Rights Guide to Employment Law-1 Talia Stoessel's Know-Your-Rights Guide to Employment Law-2

A Plaintiff’s Guide To Fed.R.Civ.P. 26 Discovery Proportionality

The Actual Changes To The Text Of Rule 26(b)

Fed.R.Civ.P. 26(b)(1) now says,

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

The 2015 Amendments changed the text of Rule 26(b) in three ways:

  • First, the language defining the scope of permissible discovery was changed to omit discovery “reasonably calculated to lead to the discovery of admissible evidence.”
  • Second, the language describing relevant evidence was changed to omit discovery of “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter,” but only because, as the Advisory Committee Note states, “discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”
  • Third, when it comes to “proportionality,” which was already part of Rule 26(b), “[t]he considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.” See Advisory Committee Notes.  That “one addition” was the explicit instruction that courts consider “the parties’ relative access to relevant information.”

Supreme Court Allows Non-Profit, Church Affiliated, Hospitals to Continue to be Exempt from ERISA

In Advocate Health Care Network v. Stapleton, 581 US __, 2017 WL 2407476 (2017), the U.S. Supreme Court affirmed long standing precedent that non-profit, church-affiliated hospitals are exempt from ERISA requirements. Employee pension plans are generally subject to the requirements of ERISA. However, “church plans” are excluded from ERISA coverage. 29 U.S.C. § 1003(2). A “church plan” is defined as “a plan established and maintained…for its employees… by a church or by a convention or association of churches.” 29 U.S.C. §1002(33)(A). This includes “a plan maintained by an organization… the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches.” Id. at §1002(33)(C)(i). For simplicity, these can be referred to as “principal-purpose organizations” (PPO). PPOs include church-affiliated hospitals. An employee of a church or association of churches includes “an employee of an organization…exempt from tax… and which is controlled by or associated with a church or a convention or association of churches,” i.e. an employee of a PPO. Id. at §1002(33)(C)(ii)(II).

Circuit courts have been divided over whether the above language as a whole requires pension plans to be both established and maintained by a church to be eligible for the church plan exemption, or whether they need only be maintained by a PPO to be eligible. The Supreme Court recently resolved this split in the circuits and explained how to read the statutory language above. In Advocate Health Care, the Court upheld the traditional agency interpretation of the church plan exemption. Organizations and courts have been relying for some time on a General Counsel Memo from the IRS that said retirement plans for employees of a religious organization that functions as a nursing home or hospital are church plans if maintained either: (1) by the Catholic Church or (2) by a church-affiliated PPO. Gen. Couns. Mem. 39007, 1983 WL 197946 (July 1, 1983). The Supreme Court found that the IRS memo states the proper interpretation.

Specifically, the Court found that ERISA does not require a plan to have been established by a church to be considered a church plan. Advocate Health Care at *4. Rather, pension plans simply maintained by a PPO are eligible for the church plan exemption. Id. PPOs such as religiously-affiliated hospitals may maintain pension plans, and those pension plans can be considered church plans even though they were not necessarily established by a church. Therefore, a church-affiliated hospital can maintain a pension plan for its employees and it will likely be considered a church plan exempt from ERISA’s requirements, including adequate funding requirements.

WELA Press Release: New Pregnant Workers Law

On May 17, 2017 Governor Inslee signed the pregnant workers accommodations act that Washington Employment Lawyers Association (WELA) worked so hard to get passed. WELA member Katherine Chamberlain prepared this press release from WELA and sent it out Wednesday:

Wednesday, May 17, 2017

New Law Requires Washington Employers to Help Pregnant Workers Remain Part of the Workforce During Their Pregnancies

Gov. Inslee on Tuesday signed into law strong new protections for pregnant workers in Washington. The Healthy Starts Act (Senate Bill 5835) requires Washington employers to provide workplace accommodations to pregnant workers who need them. The law prohibits employers from firing a pregnant worker because she needs an accommodation, or from forcing a pregnant employee to take leave from work if another reasonable accommodation can be provided. The Washington Employment Lawyers Association strongly supports the law.

Until now, Washington law only required employers to accommodate a pregnant worker in the workplace when she had a “disability,” or to the same extent the employers accommodated non-pregnant workers.

As a result, most pregnant workers who needed accommodation for their pregnancies previously had no right to an accommodation, such as for the nausea, vomiting, extreme fatigue, and back pain that accompany a large number of typical pregnancies. Although healthcare providers regularly recommend limits on heavy lifting, sitting or standing for long periods of time, or travel, especially in the final trimester of a woman’s pregnancy, too often employers refused to accommodate, fired pregnant women with these restrictions, or forced them onto unpaid leave—during a time when they needed income, and healthcare benefits, the most.

Now, “Washington has a straightforward law that supports pregnant workers and promotes healthy pregnancies by requiring employers to provide reasonable accommodations to pregnant women,” explained employment lawyer Katie Chamberlain, a member of WELA’s legislative committee who testified in favor of the new law. “Reasonable accommodations include: more frequent restroom breaks; modification of no food or drink policy; job restructuring; modified work schedule; reassignment to a vacant position; modification of equipment, seating, or work station; temporary transfer; assistance with manual labor and limits on lifting; and schedule flexibility for pre-natal visits, and may include other changes to the job or work environment.”

An employee who is denied a reasonable accommodation for her pregnancy, or who is fired or otherwise retaliated against by her employer for requesting an accommodation, can seek to vindicate her rights, get her job back, or obtain compensation, through a lawsuit.

Under the new law, an employer need not provide an accommodation if doing so would impose an undue hardship, which means an action requiring significant difficulty or expense. The new law applies to employers with 15 or more employees and will take effect in 90 days.

The Washington Employment Lawyers Association’s Legislative Committee is proud to have advocated for this bill with Representative Jessyn Farrell, Senator Karen Keiser, and many other allies.

NLRB Determinations Regarding NLRA Coverage of Housekeeping versus Theology Faculty at Religious Universities

In Saint Xavier University, 365 NLRB No. 54 (April 6, 2017), the National Labor Relations Board found that housekeepers of a self-identified religious educational institution are within the Board’s jurisdiction. The Board applied Hanna Boys Center, 284 NLRB 1080 (1987), finding that non-teaching employees of religious institutions or nonprofit religious organizations will be covered unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution. This is in contrast to the Board’s finding that faculty employees in Theology and Religious Studies Department and in its School of Theology and Ministry are NOT covered because the University holds those employees out “as performing a specific role in creating and maintaining the school’s religious educational environment.” See Seattle University, 364 NLRB No. 84 (August 23, 2016).

Ninth Circuit Rules in Favor of Employees in Two Sexual Harassment Cases

On March 24, 2017, the Ninth Circuit determined in Anderson v. CRST International, Inc., et al, No. 15-55556 that a jury could find that an employer’s remedy in response to a female truck driver’s sexual harassment complaint was not enough even though the employer separated her from the offending co-worker. The Ninth Circuit explained: “[] Anderson presents evidence that CRST never actually investigated her complaint and never informed Vegtel of the fact that he was prohibited from driving with female truck drivers in the future.” This holding leaves open an interesting question of the extent of an employer’s obligation to inform an employee of the reparative action taken. Most employers refuse to share that information with complaining employees, citing to confidentiality of personnel records. That approach can now be challenged with this precedent.

The Ninth Circuit also reversed summary judgment because of the way that the employer treated the female truck driver after she complained, holding that a jury could find retaliation because the employer failed to reassign her to a new truck route after the incident while providing her with an ambiguous email with a list of other female truck drivers with whom she could work. The Ninth Circuit made clear that “an employer’s remedy is not effective even though it stops harassment if the remedy targets the victim and puts her in a worse position.”

Also, on February 23, 2017, the Ninth Circuit determined in Zetwick v. County of Yolo, No. 14-17341 that a jury could find that a male sheriff created a hostile or abusive work environment through his conduct of hugging and kissing female employees more frequently and in a different way than male employees. The Ninth Circuit rejected the argument that hugging could only constitute “ordinary workplace socializing.” This case also highlights that applying Title VII is not a “mathematically precise test” but, rather, a Court must truly consider the totality of the circumstances.

11th Circuit Finds Title VII Does Not Protect Against Sexual Orientation Bias

The 11th Circuit in Evans v. Georgia Regional Hospital, Case No. 4:15-cv-00103-JRH-GRS (March 10, 2017) finds that Title VII doesn’t protect sexual orientation bias. This is in contrast to the EEOC’s interpretation, which is stated on its website as: “While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

Labor & Employment Law Developments Under the Trump Administration

National Labor Relations Board (NLRB): On January 25, 2017, Philip A. Miscimarra (R) appointed as acting chair to the NLRB. People’s World website reports that prior to 2013, Miscimarra worked for several law firms with a reputation for union-busting and as an NLRB Board member, he “consistently dissented from rulings favoring working people that have been handed down by the (pro-union Democrat) Board majority.”

Equal Employment Opportunity Commission (EEOC): On January 25, 2017, Victoria Lipnic appointed to serve as acting chair of the EEOC. According to a Law360 article, Lipnic voted against the EEOC’s 2015 decision finding that sexual orientation discrimination is gender discrimination under Title VII. She also voted against the EEOC’s 2014 pregnancy discrimination guidance.

U.S. Supreme Court: On January 31, 2017, Trump nominated Judge Neil Gorsuch to fill the open seat. According to an AFL-CIO blog article, Gorsuch “has ruled against protecting the health and safety of workers, made it harder to have discrimination-free workplaces and argued for corporations’ misconduct to be protected from correction by investors and consumers.”

Federal Right-to-Work/Right-to-Shirk Law: On February 1, 2017, Republicans in Congress announce plan to introduce Right-to-Work/ Right-to-Shirk Law and implement it nationwide. This would be a blow to the labor movement and the communities in which union members reside because unions would be required to provide representation to all employees in the unit regardless of whether they pay union dues. For more information from the AFL-CIO: Deceptive Right to Work Laws Hurt Everyone

U.S. Secretary of Labor: Trump initially nominated Andrew Puzder as U.S. Secretary of Labor. Mr. Puzder has repeatedly violated labor laws and is a vocal opponent of workers’ rights, describing the ideal worker as a machine: “They’re always polite, they always upsell, they never take a vacation, never show up late, there’s never a slip-and-fall, or an age, sex, or race discrimination case.” But, as of February 15, 2017, Puzder withdrew his nomination. Luckily, in his place, Trump picked former US Attorney Acosta as a nominee for U.S. Secretary of Labor on February 16, 2017. Richard Trumka, president of the AFL-CIO, has stated “in one day, we’ve gone from a fast-food chain C.E.O. [Puzder] who routinely violates labor law to a public servant with experience enforcing it.” View Article

Tenants Settle Claims of Habitability Violations

Attorney Richard Myers represented tenants who alleged that owners and managers of a 300-unit apartment building in downtown Portland failed to remedy habitability defects, including cockroach and bedbug infestations.

The tenants began noticing insects shortly after moving into the building. The building managers ultimately allowed them to terminate their rental agreements without a penalty, but not before they had to discard personal items, put food in sealable containers, and spend many uncomfortable hours battling the infestations.

Myers filed lawsuits for violation of ORS 90.320 and Portland City Code that requires residential property owners to eliminate pest infestations.

Five tenants settled their claims for a total sum of more than $45,000. A sixth tenant settled her claims for a confidential amount.

SCOTUS to Decide Whether Title IX Compliance Requires Treating Transgender Students Consistent with Gender Identity

SCOTUS will hear oral arguments in Gloucester County School Board v. G.G. on March 28, 2017. The Department of Education issued a letter providing guidance that Title IX compliance requires schools to generally treat transgender students consistent with their gender identity … or schools could lose federal funding. The Gloucester County school board appealed of a lower court decision affirming transgender students’ access to facilities appropriate for their gender identity. Documents and update on the case can be found here: http://www.scotusblog.com/case-files/cases/gloucester-county-school-board-v-g-g/.

Latest development:

On March 6, 2017, the Supreme Court announced that it is sending the case to the Fourth Circuit Court of Appeals to be reconsidered in light of the Department of Justice and Education’s rescission of Title IX guidance that clarified protections for transgender students.

Texas Court Prohibits Implementation of ACA Protections for the Transgender Community and Women Seeking Abortions

On December 31, 2016, Judge Reed O’Connor of the United States District Court for the Northern District of Texas entered an injunction to apply nationwide in Franciscan Alliance v. Burwell, Case No. No. 7:16-cv-00108-O. The order prohibits the Department of Health and Human Services (HHS) from enforcing the portions of the nondiscrimination rule under ACA Sec. 1557 that prohibit discrimination on the basis of “gender identity” or “termination of pregnancy.” The court left untouched the portions of the rule that prohibit discrimination on the basis of disability, race, color, age, national origin, or sex other than gender identity. The decision can be found here: http://courthousenews.com/wp-content/uploads/2017/01/Texas-rule.pdf. On January 9, 2017, the ACLU filed a request for a formal ruling on their intervention in the case, which was apparently ignored by the Court earlier in the litigation, and a request for a stay pending the appeal they would file if intervention is granted. We will keep watch on any appeal of this decision.

Arbitrator Orders Reinstatement of College Program Coordinator

An Oregon Community College with a very successful Medical Office Assistant training program moved the program out of one division into another because of a personal conflict between the Program Coordinator and the Dean of the Health Professions Division, who required the program to accept her husband as a candidate, but he then failed the program. For several years after, the program was moved around campus and twice “reviewed” by outside experts. One such expert issued a report recommending program revisions, without speaking to any of the faculty. Many of the proposed changes were ones long requested by the Program Coordinator who had fallen out of favor with the Dean.

As a result of the new report, the College decided to replace the Program Coordinator, without any corrective evaluation process. The College first claimed that the incumbent Coordinator was unable to implement the changes, but then changed its position and claimed that the change was needed because of promises made to local employers. It then moved the program back under the Dean of the Health Professions Division, and hired a replacement Coordinator. The union grieved the change, even though it did not affect the pay of the removed Coordinator, who was assigned other work.

After two days of hearing, the independent Arbitrator determined that (1) the College never offered a cogent explanation for the decision to replace the old Coordinator; (2) the old Coordinator was well-qualified to enact the recommended curriculum changes; (3) although the College stated at the hearing that the old Coordinator could apply for the new position, that argument was disingenuous; and therefore, (4) the College failed to act in good faith in deciding to replace the old Coordinator. The College failed to articulate a legitimate and reasonable institutional reason for the challenged action that comports with the facts. This arbitrary and capricious action is inconsistent with the language of the collective bargaining agreement, and therefore, the arbitrator held that the old Coordinator must be reinstated to her former position.

EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions

In December 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990 (ADA).

Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They may also have a right to reasonable accommodations at work. Reasonable accommodations are work adjustments that can help individuals to perform their jobs and remain employed. The resource document also answers questions about how to get an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang. “Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

Oregon Could Become First Fair Scheduling State

Oregon is teed up to consider statewide legislation that would require employers to end the abusive practice of unpaid on-call hours and “random scheduling” and require compensation for shifts canceled at the last minute. The bill for Fair Scheduling, proposed by Sen. Michael Dembrow in late September 2016, is supported by Commissioner Steve Novick and could go into effect after September 2017.

Visit http://pamplinmedia.com/but/239-news/327482-206939-oregon-could-become-first-fair-scheduling-state for more information and http://www.portlandoregon.gov/novick/article/568951 to read testimony from real people impacted by random and last minute scheduling.

Arbitrator Rules that College Must Increase Pay to Accommodate Athletic Coach Workload Demands

Lane Community College (LCC) has a very successful Track and Field and Cross-Country programs, led by an experienced college coach. The programs have been quite successful and expanded in recent years, along with the coach’s responsibilities and workload.

The collective bargaining agreement between LCC and the Lane Community College Education Association contains a provision allowing for “interest arbitration” between the College and the Association whenever there is disagreement over compensation for workload that exceeds certain standards set for in the agreement, based on model workloads for four departments in the College. This differs from grievance arbitration in that the arbitrator does not interpret the language of the contract, but instead applies certain standards to set the maximum full-time workload for the instructors who complain of overload assignments.

In 2015, the Association asked for a review of the coach’s workload assignment; a panel recommended a small increase in compensation, but ignored much of the evidence. The Association challenged the workload findings of the panel, and sought interest arbitration. A labor arbitrator upheld the Association’s position, and awarded approximately 49 days of retroactive pay, and an additional 31 days per year going forward, based on current workload.

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues after Public Input Process

On August 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation. The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

Since EEOC’s 1998 Compliance Manual section on retaliation, the U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retali-ation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.

EEOC is responsible for enforcing federal laws against employment discrimination. Further information about the agency is available at www.eeoc.gov.

Summary of Recent FLSA Amendments

In May 2016, the Department of Labor enacted several important changes to the Fair Labor Standards Act (FLSA) relating to overtime-exempt employees. These amendments substantially expand the number of salaried workers that will be able to claim overtime wages. These new rules go into effect on December 1, 2016. It is important for unions and employees to understand these changes in order to ensure that employers can be held accountable to pay their workers fairly. The most important changes are:

1. An increase in the salary threshold for Executive, Administrative, Professional and Computer (“EAP”) employees (from $23,660 to $47,476). This means employees making less than $47,476 cannot be FLSA-exempt regardless of their duties.

2. An increase in the salary threshold for Highly Compensated Employees (HCE) (from $100,000 to $134,004). This means employees making more than $134,004 are FLSA-exempt under a relaxed “duties” test – only minimal involvement in EAP-related duties is required.

3. The creation of an automatic updating mechanic to increase these levels in the coming years.

4. Under the new rules, the employer may count nondiscretionary bonuses and incentive payments towards salary thresholds, but they may not count for more than 10% of the total.

More specific detail on each of these changes follows:

1. Salary Threshold for Executive, Administrative, Professional and Computer employees

One of the largest categories of overtime-exempt employees are Executive, Administrative, Professional and Computer employees. Each of the exemptions is intended to cover salaried employees in highly-skilled or managerial positions and each of these four categories has a slightly different “duties test.” However, the tests do not apply unless the employee meets the salary basis test as well. The salary basis test has two components: (1) the employee must be paid on a salaried, not an hourly, basis, and (2) the salary paid must exceed a minimum threshold.

The rules for salary basis payment have not changed. Generally speaking, the salaried employee must receive as pay a predetermined amount of compensation, which cannot be reduced because of variations in the quality or quantity of the employee’s work. An employee’s salary under these exemptions must be paid each week an employee works, regardless of the number of hours worked each day (exempt employees do not need to be paid in a week in which no work is performed). Reductions in pay for part-day absences destroys the exempt status of the employee, even if the employee otherwise satisfies the applicable duties test. An hourly employee can be docked pay for each hour missed.

Since 2004, the salary threshold to meet any of these exemptions has remained at $23,660 per year ($455 per week). The 2016 FLSA amendments raise this salary threshold to $47,476 ($913 per week). This salary level change will open up overtime eligibility to many more employees.

2. Salary Threshold for Highly Compensated Employees

In addition to the salary-based overtime exemptions for EAP employees, prior to December 1, 2017 there is an exemption for employees who earn more than $100,000 per year. The HCE exemption has substantially lower standards for evaluating the duties of the employee, known as a “minimal duties test.” An HCE overtime-exempt employee has to simply be in a position where the employee’s primary duty includes performing office or non-manual work and the employee customarily or regularly performs at least one of the exempt duties of an EAP overtime-exempt employee.

The 2016 FLSA amendments raise this salary threshold from $100,000 per year to $134,004 per year. The types of pay that can meet this threshold are wider than that of the EAP exemption — the total annual compensation may consist of commissions, nondiscretionary bonuses and other nondiscretionary compensation; though medical, retirement and fringe benefits are not included. The rise in the HCE threshold will render more highly-compensated employees eligible for overtime, provided they are not exempt under the traditional duties tests for Executive, Administrative, Professional and Computer (“EAP”) employees.

3. Automatic Updating

Prior to the 2016 FLSA amendments, there was no formula or structure to update the overtime-exempt salary thresholds; the levels remained stagnant since 2004. With the passage of the 2016 FLSA amendments, the EAP salary threshold is now set at the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage Census Region (currently the South; $47,476 per year) and the HCE salary threshold is set to equal the 90th percentile of earnings of full-time salaried workers nationally ($134,004 per year). Rather than waiting for the Department of Labor to choose when to update this level in the future, these levels are slated to update automatically every three years based on the 40/90 percentile bases. The Department of Labor is required to public the upcoming salary thresholds 150 days before their effective date.

4. Inclusion of Nondiscretionary Bonuses and Incentive Payments for EAP Employees

Prior to the 2016 FLSA amendments employers were not allowed to include nondiscretionary bonuses and incentive payments, such as commissions, in calculating the annual salary of an EAP overtime-exempt employee. After December 1, 2016, employers will be permitted to use nondiscretionary bonuses and incentive pay in the calculation of an employee’s annual salary, however, nondiscretionary bonuses and incentive pay is capped at 10 percent of the required salary threshold. Discretionary bonuses, such as an unannounced holiday bonus, or a bonus that is at the subjective discretion of a manager, do not count toward the EAP overtime pay threshold.

Table Comparison of Prior Regulations & New Final Rule

Justice for Injured Worker

Attorney Richard Myers successfully represented an injured worker who was denied reemployment. The worker suffered a serious on-the-job injury and filed a workers’ compensation claim. Her claim was denied and the employer refused to restore her employment after she recovered from the injury.

Myers represented the worker in a hearing on her workers’ compensation claim. The judge ruled in her favor and issued a penalty for the insurance company’s unreasonable denial of her claim. Shortly after the hearing, Myers successfully pursued separate claims on behalf of the worker for the employer’s unlawful discrimination against a workers’ compensation claimant (ORS 659A.040) and failure to reinstate an injured worker (ORS 659A.043). The worker has since found permanent employment with a new employer.

Arbitrator Rules that Educational Service District Violated the Contract by Failing to Treat Travel Time as Work Time

The Linn-Benton-Lincoln Education Service District provides services to 12 school districts across three counties. The majority of its certified employees are itinerant, providing services at various schools within the ESD. Most are headquartered in Albany. Travel time to school sites ranges from 15 minutes from headquarters to 2 hours away. Under past practice, travel time in excess of the employee’s regular commute (i.e., the time from home to “headquarters”) was considered work time. Employees could either adjust their schedule within week, or earn flex time for travel that occurred before 8:00 a.m. and/or after 4:00 p.m. In addition, the contract recognized that employees could “occasionally” be expected to work 30 minutes outside of their regular workday.

In September 2015, the ESD changed its policy regarding travel time. Under the new policy, the workday for employees working more than 30 miles from home base would be adjusted by 30 minutes in the morning and afternoon to reflect travel time, but any additional travel time would be treated as “commute” time – i.e., not compensable. In addition, the ESD announced that “occasionally” would be interpreted to mean four times per month.

The Association grieved these changes. The ESD claimed that its policy was consistent with the contract and, to the extent practices differed, it was because supervisors were unaware of how employees were calculating flex time. The ESD also argued that the Association failed to follow applicable procedures. Arbitrator David Stiteler rejected all of the ESD’s defenses. He found that under the plain meaning of the word, “occasional” means from “time-to-time,” i.e., neither a frequent nor regular occurrence. Therefore, the ESD violated the contract by expecting employees to work 30 minutes extra regular basis (four times per month).

Turning to travel time, the Arbitrator found that the clear and consistent practice had been to treat an employee’s travel time in excess of their regular commute time as work, and thus compensable. In addition, he found that the contract had not been interpreted to limit travel time for worksites closer than 30 miles away, if it actually took more than 30 minutes to get to the worksite, which was frequently the case. As a remedy, he ordered that the ESD to rescind its policy guidance and return to past practice. This was a complete victory for the Association. Employees had testified that they felt betrayed by the ESD’s actions and extremely burnt out. Moving forward, the ESD will need to honor its contractual commitment and not solve budget issues on the backs of its employees.

Naturopathic Physicians and Their Patients File Discrimination Lawsuit

BHMK filed a class action lawsuit on behalf of naturopathic physicians and their patients. The lawsuit alleges that two insurance companies—Health Net Health Plan of Oregon, Inc., and American Specialty Health Group, Inc.—violated the Patient Protection and Affordable Care Act (“ACA”) by discriminating against naturopathic physicians.

The ACA mandates non-discriminatory health care with the goal of improving the quality, affordability, and accessibility of patient care. Specifically, insurance companies cannot discriminate against a health care provider acting within the scope of their state-issued license.

The State of Oregon has licensed naturopathic physicians since 1928 with a broad scope of practice that allows naturopathic physicians to serve as primary care providers, provide preventative services, prescribe pharmaceuticals, and order tests necessary to diagnose and treat illness.

The lawsuit alleges that Health Net and American Specialty Health violated the non-discrimination mandate by limiting patient access to naturopathic physicians licensed in Oregon. Those discriminatory practices include prohibiting reimbursement to naturopathic physicians for certain types of care, capping annual reimbursement amounts to naturopathic physicians, and paying naturopathic physicians less than other providers performing the same service.

The lawsuit seeks several remedies, including: (1) reimbursement to individuals who have been denied benefits under their health insurance plans; (2) repayment of profits retained by the insurance companies as a result of their discriminatory practices; (3) enforcement of non-discriminatory practices in the future; and (4) a declaratory judgment clarifying application of the ACA’s non-discrimination mandate.

You can read more about the lawsuit here and here.

Federal Labor Ruling Expands Definition of “Joint Employer” in Browning-Ferris Industries of California

A landmark ruling by the National Labor Relations Board (NLRB) in the Browning-Ferris Industries of California case vastly expands the definition of corporate employee by redefining “joint employer,” providing additional protections for millions of workers.  This decision is a win for workers because it expands the number of entities that can be considered joint employers and prevents employers from evading responsibility through use of subcontractors or franchisees.  The NLRB describes the impetus for the rule change as follows:  “With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”  The NLRB will continue to apply the joint employer test: (1) whether both entities are employers under common law;  and (2) whether both entities share essential terms and conditions of employment.  However, the NLRB will now consider as a factor whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.  The decision can be read here.

Arbitrator Rules that College Violated Contract Complaint Procedures

As part of his union duties, the Lane Community College Education Association (LCCEA) President sat on several College Councils, including the Diversity Council.  In 2013 and early 2014 the Diversity Council was working on a cultural diversity training program which proposed required training for all LCCEA Faculty.  The LCCEA president objected to the imposition of mandatory training without first bargaining over contract implications, and the discussion became heated.  Other procedural disputes ensued.  A complaint was filed against the LCCEA President by four students and faculty, alleging vague but far-reaching violations of College policies concerning discrimination and harassment.  The College issued a complaint, and then conducted a far-reaching investigation, by outside counsel, which Arbitrator William Reeves described as “to a large extent secret.”  The LCCEA filed two grievances over violations of the contract complaint procedures.  At the end of the investigation, no violations of College Policy were found, but the College rebuked the LCCEA President for his conduct in general, while refusing to reveal any details.

The Arbitrator found the College’s investigation violated both the contract and its own policies.  He found that the College violated disclosure requirements and investigation timelines, and found the College’s interpretation of the contract to be “nonsensical and inconsistent  with” the contract requirements.  He held the College failed to provide the LCCEA with specific evidence of the charges, and therefore the College “lost authority to sanction or reprimand the Grievant.”  He ordered the expungement from College records of all documents relating to the investigation except those needed to protect against future litigation, which shall not be accessed except by Court order.  He also directed the College to cease and desist from future violations of the complaint procedure.

Federal Court Finds School District Violated Teachers’ and Students’ First Amendment Rights

On the eve of a 2012 teacher strike, the Eagle Point School District adopted policies banning all signs and picketing activity on school property.  The Eagle Point Education Association promptly notified the District that the policies were unconstitutional but the District refused to modify them.  During the strike, the District strictly enforced its new policies to restrict pro-teacher speech by students and others.   The District defended its policies as part of its “educational mission.”  It also argued that school property was not a “not a public forum” and that striking educators had no legitimate reason to be on school property.

The Association filed a federal lawsuit challenging the District’s policies under both the U.S. and Oregon constitutions during the strike.  It pursued those claims after the strike settled.  In a sharply worded ground-breaking decision, Federal Magistrate Mark Clark ruled in the plaintiffs’ favor on each of its claims.  He found that the District’s policies were neither neutral nor necessary to protect the educational mission of the school: “The importance of educating and caring for students in the midst of such a crisis cannot be overstated.  However, it is precisely this mission that gives an even higher purpose to the protections and freedoms afforded by the Constitution.  In this case, what could have been an incredible opportunity for students to witness the function of the Bill of Rights in their very own lives and learn first-hand that the important principals of our government are not mere platitudes instead became a situation of reactionary, fear-based policies designed to suppress any opposition or unpopular viewpoint.”   He also found that the sign policy was unlawful as applied to student Staci Boyer, who was barred from parking in the school parking lot because of a pro-teacher sign in her car.

Magistrate Clark’s report was review by to U.S. Federal District Judge Michael McShane. Judge McShane affirmed the decision in all respects.

Retired Fire Fighters Win Increased Pension Benefits

Portland Fire Fighters are covered by the Portland Fire & Police Disability & Retirement (FPDR) Fund.  The pension benefits of fire fighters who retired under an old FPDR pension system known as “FPDR One” were calculated based on current top step fire fighter base wages.  After the Portland Fire Fighters Association negotiated an “apparatus operator” premium in 2007 that applied to virtually all non-probationary fire fighters, one retiree asked that the apparatus operator premium pay be included in the calculation of his pension benefit.  The FPDR Fund refused.  Hank Kaplan filed two class action complaints on behalf of approximately 500 members of the FPDR One system.  The class action was denied, then appealed while an administrative hearing was held.  The administrative law judge decided the case in favor of the retirees, and ordered recalculation of the pension benefits. The County Circuit Court upheld the ruling of the administrative law judge. After six years of litigation appeals and a writ of mandamus, the City of Portland finally agreed to correct its method for calculating future FPDR One pension benefits, and also agreed to pay class members more than $2.2 million in retroactive benefits.

Federal Law on Workplace Non-Discrimination Now Protects Against Sexual Orientation Discrimination

The EEOC has finally issued a ruling that sexual orientation workplace discrimination is illegal under federal law –  the Civil Rights Act of 1964.  This provides litigants an additional source of protection and cause of action against employers discriminating on the basis of their sexual orientation.  The EEOC found that although the Act does not contain an explicit prohibition on sexual orientation discrimination, “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”

Link to article from The New York Times

BREAKING: U.S. Department of Labor Guidance on Broad Interpretation of Employee for Fair Labor Standards Act

On Wednesday, July 15, 2015, the U.S. Department of Labor issued guidance on how to distinguish between employees and independent contractors.  Employee misclassification is and has been a serious problem for workers seeking to make a living as employers seek to classify them as independent contractors, depriving them of overtime pay and benefits, such as unemployment insurance.  Employers often assert that determining whether a worker is an independent contractor is fuzzy, but the new guidelines provide additional clarification on interpreting the existing regulations.  The guidelines focus heavily on “FLSA’s statutory directive that the scope of the employment relationship is very broad” and “the broader concept of economic dependence.”  The guidance ends with a clear conclusion: “most workers are employees under the FLSA’s broad definitions.”  Read the guidance here.

Court Approves $2 million Settlement in Class Action Wage Lawsuit

BHMK in collaboration with attorneys from the Oregon Nurses Association successfully settled the class action lawsuit of Thanane v. Providence Health & Services – Oregon.

The lawsuit alleged that Providence violated state and federal laws by withholding wages from employees. Specifically, BHMK attorneys argued that Providence managers fraudulently altered employee timecards to avoid payment of overtime wages. They also argued that Providence systematically underpaid wages by using timekeeping software in a way that rounded clock-in and clock-out times to the detriment of employees.

Providence will pay approximately $2 million as part of a settlement of all claims. More than 25,000 current and former Providence employees were notified that they would receive compensation as part of the settlement. Federal district court judge Michael Mosman approved the settlement at a hearing on June 17, 2015. Checks will be distributed to former and current employees in the next several weeks.

You can read more about the settlement here.

Oregon Supreme Court Protects PERS Benefits

For over two decades Greg Hartman has represented a coalition of public sector labor unions in protecting the rights of members under Oregon’s public employee retirement system. This representation has involved not only litigation but multiple appearances before the Oregon legislature as well as before the Public Employee Retirement Board. Greg has handled several cases which have resulted in billions of dollars of saved benefits for members of the Public Employee Retirement System. He was lead counsel in the case Strunk et al. v. Public Employee Retirement Board et al., in which the Oregon Supreme Court held a portions of the 2003 reform legislation were unconstitutional, thereby reinstating over $2 billion of benefits for PERS members.

Most recently Greg, along with partner Aruna Masih, pursued legal challenges to the 2013 changes to PERS benefits in the case of Moro et. al. v. State of Oregon et. al. before the Oregon Supreme Court. On April 30, 2015, the Oregon Supreme Court held that most of the changes to PERS cost-of -living adjustment (COLA) made by the 2013 legislature, including those that were part of the “Grand Bargain,” unconstitutionally impaired PERS members’ contract rights.

At issue in the Moro case was $5.3 billion dollars in benefits for PERS members and retirees. The Supreme Court’s decision finding the SB 822 and SB 861 reductions to COLA unconstitutional for benefits earned before the effective dates of the changes means that over $4 billion of the $5.3 billion in benefits at issue have been protected. This represents a significant victory for PERS retirees and members.

The court affirmed the changes to the 1991 (SB 656) and 1995 (HB 3349) income tax offsets for out of state retirees and to COLA for benefits that members earn on or after the effective dates of SB 822 (May 6, 2013) and SB 861 (October 8, 2013). A complete copy of the Supreme Court’s decision can be found through the link to the pleadings on our PERS Litigation page.

Arbitrator Finds Portland School District Violated High School Workload Contract Provisions

Attorney Margaret Olney has represented local associations throughout the state in efforts to protect their members from the constant pressure of being required to do more work for the same pay.   Most recently, she won a second arbitration for the Portland Association of Teachers (PAT) relating to high school workload. The first arbitration arose in 2011 when the District unilaterally adopted a new block schedule that required teachers to teach six instead of five classes and consequently, substantially more students. An arbitrator found that the new schedule violated workload protections in the contract. There were a number of disputes regarding remedy, but ultimately, the District was required to pay over $2 million to high school teachers as compensation for the excess workload.

During bargaining for the current contract, workload protection and workload relief were priorities for PAT.  Despite District demands for take backs regarding workload, PAT succeeded in maintaining key workload protections.  Unfortunately, within days of the contract settlement, the District announced that it would impose a new schedule at all high schools that added significant additional instructional time per week, and eliminated other time available to assist students.  The schedule was inconsistent with promises made in bargaining and, once again, PAT was forced to file a grievance and take the matter to arbitration.  The arbitrator agreed with PAT that workload under the new schedule was not generally comparable to that in place in 2010-2011 (the benchmark year) and ordered the District to return to the prior workload levels and to negotiate a remedy to compensate teachers for the increased workload.   Those discussions regarding remedy are still pending.

Teacher Order Reinstated with Back Pay

The District sought to dismiss a special education teacher for poor performance and neglect of duty.  Although she had always received excellent evaluations, the District placed her on a plan of assistance in December, based largely on concerns regarding her effectiveness managing two severely behaviorally challenged students during that school year.  Before the plan started, the District also transferred her and her program to a new building where she took over as the teacher for a behavioral classroom.  After less than three months in the new position, the District terminated the teacher for poor performance, neglect of duty and inefficiency.  A three person panel of the Fair Dismissal Appeals Board found that the District did not have grounds to dismiss the teacher.  Regarding the performance issues, the Panel found that the plan was neither well-conceived nor well-implemented.   The statement of deficiencies and expectations was too general to be useful.  The duration of the plan  was also too short, particularly given the lack of specific and timely feedback.  Finally, the Panel rejected the District’s claim that students’ behavioral issues could be blamed on the teacher.  With regard to neglect of duty, the Panel found the teacher credible and that any  proven misconduct would not support dismissal.  As a remedy, the Panel ordered the District to reinstate the teacher with full back pay.

Board finds School District Engaged in Unfair Labor Practice By Failing to Restore School Days and Compensation

When the Medford School District received additional funding from the State but did not use that funding to restore school days and compensation in accordance with a Memorandum of Agreement (MOA) it had entered into with the Medford Education Association, the Association filed an unfair labor practice complaint with the Employment Relations Board.  Aruna Masih represented the Association before the Board.  The Board determined that the District did violate the MOA and ORS 243.672(1)(g) by failing to restore school days and compensation under the MOA.  The Board ordered the District to cease and desist in its unfair labor practice and to bargain a make-whole remedy with the Association regarding the loss of days and compensation.  When the bargaining did not result in an agreement on remedy, the Board issued a Supplemental Order requiring the District to submit $345,067 (plus interest at nine percent per annum) to Association represented employees.

Special Post: Challenges to Fair Share

It is no secret that many members of the United States Supreme Court are extremely hostile to unions. In Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court held that the Union failed to follow the proper procedures when it increased its dues and fair share fees for political purposes related to several hotly contested ballot measures and other political activities. While the result was not entirely unexpected, the majority opinion went beyond what even the plaintiffs were asking for, holding that if a public sector union seeks to increase dues or levy a special assessment mid-year for any purpose, the union must provide non-members a separate notice and may not collect any funds from non-members without their affirmative consent. That is, for the first time, the Supreme Court held that the union must offer an opt-in system in order to protect non-member First Amendment rights.

While the court did not overrule prior precedent, the majority expressed extreme skepticism about the correctness of the “opt-out” approach, referring to it as an “anomaly” and a “remarkable boon for unions.” The opinion also includes scathing comments about the political activities of unions and how they are not to be trusted to properly audit and report such activities to non-members.

The same anti-union sentiment was evident in the Court’s recent decision in Harris v. Quinn, (June 30, 2014). In that case, the majority struck down a portion of an Illinois law that required all homecare workers represented by a union to pay their fair share of the cost of that representation. Similar to Oregon, Illinois law authorized homecare workers who are hired directly by clients but who are paid with state funds to organize and collectively bargain with the state to set basic terms of employment. The majority, in an opinion written by Justice Alito, found that because these employees are not “full-fledged” public employees, the fair share provisions in the collective bargaining agreement were unconstitutional.

Plaintiffs in that case urged the Court to expressly overrule Abood v.Detroit Bd. of Ed., 431 U.S. 209, 222 (1977), the lead case upholding “fair share” fees in the public sector, and unions expressed some relief that it declined to do so. However, the majority decision demonstrates a serious disdain for value of collective bargaining or precedent. As he did in Knox, Justice Alito took cheap shots at Abood and, without any convincing rationale other than he wanting to limit Abood, he found that Abood’s concerns with preventing free ridership and promoting labor peace were not sufficiently substantial for these “partial” public employees to justify any infringement on their constitutional right not to associate.

In a strongly worded dissent joined by four members of the Court, Justice Kagan emphasized that the doctrine of stare decisis would prevent overturning Abood given the lack of any new “special justification” and the existence of enormous reliance interests: “[T]he Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation.” Thus, “[o]ur precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse [Abood].” Justice Kagan also criticized the majority for failing to recognize that the State was the joint employer of the homecare workers where the State continued to have authority over workforce-wide conditions of employment, such as wages and insurance.

What does this mean for Oregon’s public sector unions?

In Oregon, anti-union forces have often taken aim at unions through the initiative process. BHMK has worked with our union clients and allies to ensure that these initiatives have accurate and informative ballot titles and that they fail at the ballot box. As a result, Oregon law still protects the right of public employee unions to require all bargaining unit members to share in the cost of representation the union is legally obligated to provide.

These decisions from the Supreme Court threaten those rights. Like Illinois, Oregon statutes authorize homecare and childcare workers to bargain collectively. Harris will now require unions representing those workers to change their practices with regard to fair share.

For other public employee unions, we need to understand that the current conservative majority on the Court appears prepared to overturn the “opt-out” approach for all fees and/or to seriously limit what is a “chargeable” expense for non-members. In the meantime, neither Harris nor Knox requires any changes in the union’s standard procedures for providing notice and an opportunity to “opt-out” for annual dues or fees. However, if the union determines it needs to increase dues and fees and/or to impose a special assessment mid-year for any purpose, the Knox requires the union to send out a fresh notice to non-members and only collect funds from those non-members who affirmatively opt-in.

If you have any questions about the implications of Harris v. Quinn or Knox v. SEIU, please do not hesitate to contact attorneys Aruna Masih or Margaret Olney.

Initiative and Ballot Title Challenges

As anyone involved in ballot measure campaigns can attest to, the wording of the ballot title for a prospective initiative can make the difference in whether proponents will even gather signatures and, if the measure qualifies for the ballot, the difference between winning and losing a campaign. For almost 20 years, Margaret Olney has worked with a variety of organizations and individuals to help ensure that ballot titles for prospective initiatives are fair and accurate. She has filed countless comments that have improved the ballot title, as well as dozens of successful challenges to the Oregon Supreme Court. Sometimes, she works on behalf of those supporting an initiative; other times for those opposing an initiative. While a large amount of her work has revolved around anti-union and anti-tax initiatives, Margaret has also represented a variety of other clients, including environmental groups, professional associations, Planned Parenthood and Basic Rights Oregon. At BHMK, she is joined by Aruna Masih and Tom Doyle, who also have many successful ballot title challenges to their credit.

Medical Negligence Case Settled

Attorney Nelson Hall of Bennett Hartman Morris & Kaplan, representing the injured party, brought to close a medically complex negligence case that involved multiple defendants who failed to identify and diagnose a heart condition which subsequently harmed the client. Attorney Hall called upon several medical experts to prove violations of the standard of care, causation, and damages. He settled the case short of going to trial, a substantial cost-savings for his client. Additionally, he settled the related case for the injured party’s spouse who brought a loss of consortium claim against the defendants.

In Case of First Impression, Arbitrator Finds District Overreached in Labeling Teacher’s Inappropriate Statements as “Sexual Conduct”

A school district determined that a teacher had engaged in “sexual conduct” within the meaning of ORS 339.370 based on comments he made about the meaning of song lyrics to his 7th grade choir. Essentially, when asked, the educator told the girls that teenage boys are often insincere and just want to have sex.  The District acknowledged that the teacher had not engaged in any grooming or predatory behavior. Nonetheless, it characterized his comments as “sexual conduct” because they made students feels uncomfortable.   If this determination had been allowed to stand, the teacher would always have to report the “sexual conduct” finding to any education employer – a career ending label.

Margaret Olney challenged the determination on behalf of the teacher and the local Association.     In the first case interpreting the statute, the Arbitrator agreed with the Association that the District was overreaching and that the teacher had not engaged in “sexual conduct.” The Arbitrator explained that the label of “sexual conduct” is reserved for conduct consistent with “grooming behavior” and that there must be evidence that the offensive comments are “sufficiently pervasive or severe to create a hostile environment.”   Just making a student feel uncomfortable was not enough. In addition, given the seriousness of the allegation, the Arbitrator determined that the statute required a thorough investigation, which the District did not do.

Contract Settled, Strike Averted

Security officers unit under ILWU contract issued a 10-day strike notice during the 30-day cooling-off period following final offers. The employer filed unfair labor practice charges and a petition to declare the strike unlawful with the Employment Relations Board, and a petition for an injunction against the strike in the Multnomah County Circuit Court, providing less than one day notice to the Union. After a full evidentiary hearing on the request for an injunction, the Circuit Court denied the employer’s request for an injunction. Hank Kaplan acted as lead negotiator and lead counsel on the Circuit Court case. Following the denial of the injunction, the employer changed its bargaining stance and the contract was settled without a need for a strike.

Retiree Health Insurance Benefits Protected

Employees who had taken a leave of absence and not maintained health insurance through the employer were denied early retirement health insurance benefits after retirement.  The union pursued a group grievance under the early retirement benefits section of collective bargaining agreement, arguing that the employees were entitled to benefits based on years of service and the employer was improperly imposing additional eligibility requirements.  Aruna represented the union at the arbitration hearing and succeeded in obtaining retiree health insurance benefits.

Firefighter Wins Cancer Case

In July of 2012, attorney Nelson Hall won an important victory for firefighters in a work-related testicular cancer case. Hall proved to the Workers’ Compensation Board that the insurance company had failed to rebut the presumption that the firefighter’s testicular cancer resulted from his employment as a firefighter. This is the first in a string of cancer cases that Hall is pursuing on behalf of the firefighters. Further information here.

Arbitrator Requires City to Reinstate Fire and Police Pension Reversion Benefits

The City of Portland Fire and Police Retirement Fund had a rule which provided that when an alternate payee (such as an ex-spouse) died before the retiree, the alternate payee’s payments would revert to the retiree. The Board of the pension fund eliminated the reversion benefit, and the Portland Police Commanding Officers Association filed a grievance over the change, asserting that it violated the maintenance-of-benefits clause in the union contract. The City refused to arbitrate. Hank Kaplan filed an unfair labor practice charge to compel the City to arbitrate and then represented the union in the subsequent arbitration. The arbitrator ruled in favor of the union, and ordered the City to reinstate the benefit. The arbitrator held that pension benefits are a mandatory subject of bargaining and that the contract obligated the City to maintain the pension benefits in the contract, regardless of whether the pension fund paid for those benefits.

Oregon’s Domestic Partnership Law Successfully Defended

Margaret Olney successfully represented Intervenors Basic Rights Oregon in a lawsuit brought by a conservative religious foundation to qualify a referendum for the ballot that would have repealed Oregon’s domestic partnership law. We successfully defended the state’s signature verification process before the U.S. District Court and the Ninth Circuit, resulting in the domestic partnership law taking effect to the benefit of thousands of committed couples.

PERS Data Verification

An employee entitled to PERS benefits was told by PERS that she would be receiving a certain amount in retirement benefits. The employee gave up her job and retired in reliance on the information provided by PERS. Several months after the employee retired, PERS told the employee that her retirement benefit amount was actually a quarter less than what it had told the employee she would get before she retired. Aruna took the case to trial and won a unanimous jury verdict in favor of the employee for over $200,000.  When the appellate courts reversed the judgment, Aruna and her client went before the legislature to request a legislative fix for the problem.  The legislature passed ORS 238.285 allowing PERS members to obtain a binding data verification from PERS before they retire.

Teacher Dismissal Overturned

A teacher had attempted to commit suicide off-duty by driving her vehicle into the back of her estranged husband’s unoccupied truck. Despite the fact that the teacher received only minor injuries and was soon released to return to work, the District terminated her employment. Tom Doyle represented her before an administrative panel. That panel ordered reinstatement. According to the unanimous panel, terminating the teacher was “clearly excessive and unreasonable.”

City Not Entitled to Recoup Overpaid Pension Benefits by Self-Help

After the City of Portland discovered a 15-year-old error in its pension payment calculations for public safety members of the Fire Police Disability and Retirement Fund, the City tried to get back overpayments totaling more than $3 million, by taking it directly out of Fire and Police Pension benefits, without giving members a chance to respond or raise defenses.  BHMK Attorney Hank Kaplan brought class action litigation challenging the City’s action, based on violations of Oregon’s wage deduction statute, 652.610.  The City denied the statute applied, and contended that its action was justified by IRS requirements to preserve the tax qualified status of the pension plan.  Multnomah County Circuit Judge Henry Breithaupt, a former tax attorney, rejected the City’s contentions and on July 26, 2012 ruled that the City violated the Oregon wage deduction statutes.

FLSA Action: Two Cases

Approximately 80 Paramedics, Dispatchers, and EMTs filed claims under the Fair Labor Standards Act for wages for training time required to maintain EMT certifications. Hank Kaplan represented the employee class, pursued the case in Federal Court and won a ruling that the employer was in violation of the FLSA and owed two years of back wages for training time.

In another case, Arson Investigators in the Fire Bureau sought overtime for hours worked in excess of standard work week for law enforcement officers, not fire suppression employees. Hank Kaplan brought action in federal court resulted in settlement requiring retroactive and prospective payments to these employees as law enforcement agents.

School District Ordered to Compensate Teachers for Increased Student Contact Time

This is a case dating back to 2007 in which the Association challenged the District’s unilateral decision to increase student contact time by approximately 30 minutes per day, when it adopted a new trimester schedule. The Association argued that the District was required to bargain over the decision; the District claimed that the increase in student contact time was merely an “impact” of its educational decision to change to the trimester schedule. The Association lost before the Employment Relations Board (ERB), but the Court of Appeals reversed and remanded the matter back to the Board for reconsideration. On remand, ERB found that the District had failed to bargain over the significant increase in student contact time. As a remedy, ERB required the District to pay teachers $1000 per year for each year they worked under the excess load. For many teachers, this would add up to over $5000 for the extra time they worked.   In addition, the District had to modify its schedule to reduce student contact time.

Proposed Termination of Special Education Teacher Reversed

The District sought to terminate a long-time and successful special education teacher for paperwork errors. The Association argued that termination was too severe a penalty for problems that were the natural consequence of severe underfunding. After Attorney Margaret Olney provided the District with information from other educators about the District’s inconsistent policies and the prevalence of similar problems throughout the District, the District agreed to reduce the discipline to a short suspension.

Oregon Workers’ Compensation Board Affirms Second Firefighter Cancer Claim

Nearly two years to the day after an Oregon firefighter was diagnosed with testicular cancer the Workers’ Compensation Board (WCB) affirmed an Administrative Law Judge’s finding that the firefighter’s cancer was work–related. Attorney Nelson Hall of Bennett Hartman Morris & Kaplan represented the firefighter.

The firefighter filed a workers’ compensation claim with SAIF in 2010 alleging that his exposure to smoke and chemicals while fighting fires caused his condition. SAIF denied his claim, and the firefighter appealed. On appeal, the issue was whether SAIF had established by clear and convincing medical evidence that the testicular cancer was not caused or contributed to in material part by his work as a firefighter pursuant to ORS 656.802(5). This rule provides that certain identified cancers (including testicular cancer) are presumed to result from qualifying firefighter’s employment. The WCB review panel found that medical experts testifying on behalf of the firefighter persuasively rebutted SAIF’s opinions regarding the relationship between occupational exposures of firefighting and the development of testicular cancer.

Disciplinary Action Reversed

An employee suffering from Family Medical Leave Act (FMLA) covered conditions was disciplined for alleged excessive absenteeism. Aruna Masih, representing the employee through her union, took grievances on behalf of the employee to arbitration under the union’s contract with the employer and won reversal of the disciplinary action.

University Faculty Reimbursed for Unlawful Retirement Contribution Reductions

Tom Doyle represented a group of six plaintiffs on behalf of a class of thousands of Oregon University faculty who participate in State’s Optional Retirement Plan (ORP). The Oregon University System had unlawfully reduced ORP participants contributions by in excess of two million dollars. As a result of the filing of the suit and this settlement, OUS reimbursed its employees in excess of two million dollars, including repaying lost earnings on those contributions and plaintiffs’ attorney fees.

Oregon Taxpayers United

Greg Hartman was lead counsel for the Oregon Education Association in a lawsuit against Oregon Taxpayers United as well as Oregon Taxpayers United Education Foundation, two organizations founded and operated by Bill Sizemore. After a three-week jury trial a Multnomah County jury found those defendants liable for racketeering as a result of which a judgment was ultimately entered against those defendant organizations in an amount in excess of $3 million. In subsequent litigation Bill Sizemore has been found in contempt in four separate proceedings for failing to abide by the orders of the court. Most importantly this case revealed the realities of paid signature gathering and served as the jumping off point for several legislative reforms which have limited the abuses in the initiative process.

Disciplinary Suspension Ruled Excessive

A corrections deputy was arrested for driving under the influence of intoxicants near his home. The arrest was without incident, and resulted in a diversion agreement instead of a conviction. The employer imposed a long suspension as the “minimum” discipline available under its guidelines, and the deputy’s union grieved the discipline. Hank Kaplan, representing the union, established that the employer’s past practice was to impose a single-day minimum for similar offenses, and the arbitrator agreed. The discipline was changed to one day, and the deputy was made whole for the difference.

Unlawful Paycheck Deductions Reimbursed

After an employee was terminated from his employer, the employer made deductions from the employees final paycheck. These deductions were for allegedly incorrect expense account reimbursements. Tom Doyle successfully obtained reimbursement to the employee for all unlawful deductions and penalty wages.

Nurses’ Union Victory at OHSU

Tom Doyle and Hank Kaplan represented the nurses union in an unfair labor practice complaint against Oregon Health Sciences University. During a strike by the nurses union, OHSU paid nurses an incentive to cross the picket line. As a result of this ULP, OHSU was required to pay the same incentive to nurses who did not cross the picket line.

Court Rules That Employer May Not Thwart Strike

In the first known ruling of its kind in Oregon, Multnomah County Circuit Judge Wittmayer rejected an attempt to prevent a public employee strike at the Port of Portland. The Port filed for an emergency injunction on the morning of Wednesday, November 21, 2012 to prevent a strike by Port marine terminal security guards represented by ILWU Local 28, scheduled for Sunday, November 26. The Port invoked the court’s jurisdiction under ORS 243.726 – a statute never utilized before – that allows appropriate injunctive relief where a strike creates a direct threat to public safety, health or welfare.

At the emergency hearing that afternoon, the Port presented evidence of financial harm that would be caused by a strike at the marine terminals and also presented safety concerns relating to the berthing of vessels in the Columbia River.

Judge Wittmayer rejected the Port’s argument on all points. The Judge ruled that ORS 662 (known as the little Norris-Laguardia Act) prevented injunctions prohibiting strikes, including public employee strikes, except where unlawful activity is occurring. In addition the court ruled that there was no threat to public welfare or safety. Finally, the court ruled that whatever harm would occur was in the nature of financial inconvenience – a basis explicitly excluded from being a reason to order injunctive relief.

Subsequent to the court’s ruling, the parties settled the contract.

Hank Kaplan, Tom Doyle and Aruna Masih represented ILWU Local 28 in this matter, and in the negotiations.

Portland High School Teachers Awarded over $3.0 Million for District’s Unreasonable Increase in Teacher Workload

Attorney Margaret Olney ensured that Portland Public School District would not be able to unilaterally increase high school teacher workloads without paying a penalty. The District unilaterally changed their workload from one based on a “5 of 7” schedule. The contract between the Portland Association of Teachers and the District required the District to maintain workload at levels “generally comparable” to those previously in existence (with a few limited exceptions). The arbitrator found that the unilateral implementation increased teacher/student loads by approximately 20%, an “excessive” amount that cannot be attributed solely to staffing cuts. In addition, teachers had to spend significant time developing new lesson plans adapted to the block schedule.

The arbitrator ordered the District to pay approximately $1.5 million to affected teachers as compensation for the increased workload. The arbitrator ruled that the District could return to the 5 of 7 schedule or, if it chose to stay at the 6 of 8 schedule, engage with the Association about how to devise a schedule that does not violate the contract.

The District decided to keep the 6 of 8 schedule. Unfortunately, it failed to honor the arbitrator’s order with high school teaching loads still being excessive. Therefore, PAT was forced to go back to the Arbitrator in two separate hearings in order to enforce the remedy. The Arbitrator agreed with PAT   and required the District to pay “overload” pay to teachers with loads exceeding 180 and also capped the “average student loads,” with compensation for exceeding those average loads. For the 2013-2014 school year, the District paid over $1.5 million dollars in overload pay.

Oregon Workers’ Compensation Board Finds Firefighter’s Heart Condition Work-Related

After an Administrative Law Judge upheld SAIF’s denial of a firefighter’s occupational disease claim for a heart condition, the Workers’ Compensation Board (WCB) reversed the decision, finding in favor of the firefighter on the issue of compensability.

The WCB concluded that the opinions of SAIF’s medical experts were insufficient to overcome the “firefighter presumption” in ORS 656.802(4). The presumption holds that death, disability or impairment of health, caused by any disease of the lungs or respiratory tract, hypertension or cardiovascular-renal disease, and resulting from employment as firefighters, is an occupational disease and shall be presumed to result from a firefighter’s employment.

The WCB found that SAIF had not established that the firefighter’s heart condition was unrelated to his employment. SAIF was ordered to process the claim and pay the firefighter’s litigation costs.

Ban of Paid Signatures Upheld

Margaret Olney helped draft Measure 26, a ballot measure that bans the practice of paying per signature for initiative and referendum petitions. After it was approved by the voters, Margaret represented Chief Petitioners (as Intervenors) in a lawsuit by opponents claiming the measure unconstitutionally chilled political speech. The U.S. District Court and the Ninth Circuit rejected the challenge, finding that the restriction was a reasonable election law regulation that furthered the state’s important interest in preventing fraud. The case set an important precedent for other states seeking to curb fraud in the initiative process.

Sexual Harassment Settlement Awarded

An employee was subjected to sexual harassment by her supervisor and other male co-workers. The situation at work became so unbearable that the employee was forced to quit her job. Aruna Masih helped file a sex discrimination and wrongful discharge case in state court on behalf of the employee. The employer settled the case during depositions of their witnesses, agreeing to give the employee a large portion of money and other relief she was asking the state court to award.

Travel Reimbursements Settlement

An employee was denied reimbursement for travel she did for her employer. Aruna, represented the employee through her union, filed grievances on behalf of the employee under the union’s contract with the employer and negotiated a settlement with the employer for the full amount owed to the employee.

Disability Discrimination Case Settled

An employee suffering from post-traumatic stress disorder was refused the right to return to work by her employer, even after her doctor issued a full release. Aruna helped file a disability discrimination case in federal court on behalf of the employee. The employer settled the case before trial, agreeing to give the employee most of the money and other relief she was asking the federal court to award.

Labor Arbitration Awards Union Members Over $3M in Severance Benefits

In the fall of 1999 Smurfit Newsprint sold its paper mill in Newberg, Oregon to Southeast Paper. The new employer retained virtually all of the union employees and assumed the terms and conditions of the collective bargaining agreement. Most union employees lost no work as a result of the transfer of ownership. Nonetheless a grievance was filed against Smurfit Newsprint arguing that union employees were entitled to their severance payment under the collective bargaining agreement. Greg Hartman handled the arbitration in which the arbitrator agreed and awarded union members in excess of $3 million of severance benefits. With the help of Michael Morris, that arbitration award was successfully defended in both federal district court as well as the Ninth Circuit Court of Appeals.