Employment
Unemployment Benefits
Wage Claims
Non-Competition Agreements
Rights of Disabled and Injured Workers
Employment in Oregon is generally at will, meaning that the employer or the employee may end the employment relationship for any lawful reason. This rule allows an employer to fire an employee at any time and for any reason, so long as it is not an unlawful or wrongful reason. Even though Oregon generally recognizes the at will rule, certain discharges are considered by the courts to be wrongful. For example, it is wrongful to discharge an employee for complying with a public duty, such as jury duty. It is also wrongful to discharge an employee for filing a workers compensation claim or for resisting on-the-job sexual harassment.
A number of state and federal laws prohibit discharges based on illegal discrimination. For example, it is against the law to be fired because of your race, religion, color, sex, national origin, marital status, age or juvenile record. It is against the law to fire an employee who has reported possible violations of safety and health regulations, testified at an unemployment hearing, or blew the whistle on illegal activity. The law prohibits discharging an employee in retaliation for filing a complaint with the Bureau of Labor and Industries (BOLI), filing a safety complaint, or making use of the workers compensation system. In most situations, it is illegal to fire an employee because of a disability or because the employer suspects the employee is disabled. Some discharges that violate state or federal laws allow the employee to recover attorney fees, in addition to lost wages and other compensation. If your work situation is so bad that you are forced to quit, and a reasonable person in your circumstances would have quit, you may be able to assert that you were constructively discharged even though you quit.
I have successfully represented employees in jury trials involving sex discrimination, disability discrimination and unpaid wages. Marathon Media v.King , 01-10818-E-3; Kuykendall v. Soda Mountain Broadcasting , 98-928-L-2. I have represented both employers and employees in BOLI investigations.
I can help your business draft employment handbooks and personnel policies, which may be the best first defense against employment related claims. If you are leaving your job after lengthy employment, I may be able to assist you in negotiating a severance agreement, whether or not you have wage or other employment claims to compromise.
Unemployment benefits compensate individuals who are out of work through no fault of their own. As a general rule, you can collect up to 26 weeks on a regular claim. After you file your claim, there is a one week waiting period before you are approved for benefits. When you file your claim, a notice may be sent to your employer to verify the reason why you are unemployed. If you were laid off because of a lack of work, you will most likely be entitled to benefits. However, if you quit your job or were fired, the Employment Department may conduct a further investigation.
If you quit your job, you must show that you had good cause to quit. Good cause for quitting work generally requires that the reason for leaving be so serious that a reasonable person would have no alternative but to quit work. Some factors that are considered are why you quit, how bad the problem was, and what you did to try to resolve the problem before leaving. Some examples of good cause may include: illness or physical pain, or certain types of harassment. Good cause is not established if you quit work because you are bored with your job, or are returning to school.
If you are fired, the employer has the burden of proving misconduct. Misconduct generally means you willfully or recklessly violated a standard your employer has the right to expect. Misconduct does not exist if you were fired for exercising poor judgment on one occasion, if you made a good faith error, or if you were fired simply for lacking the skills or experience necessary to perform your job.
You must generally be able to work, be available for work, and be actively seeking work for all weeks you claim benefits. You must be physically able to do some work. Attending school or having child care responsibilities during certain shifts may make you ineligible to receive benefits if it appears you are not available for work.
If you are denied unemployment benefits, you have the right to a hearing. You must request a hearing within 20 days of the date the Administrative Decision denying your benefits was mailed. If your request is late, you may lose your rights unless you can show that the delay was beyond your control. If you are an employer and have received a decision allowing benefits to one of your former employees, you also have the right to a hearing. You may be represented by an attorney at the hearing.
After you ask for a hearing, the Office of Administrative Hearings will send you a Notice of Hearing. The hearing notice will give you the time and place of the hearing and will state what issues will be decided at the hearing. The hearing is conducted by an Administrative Law Judge (ALJ) by telephone conference call. Usually, you dial a toll-free number and enter a code to participate in a conference call.
Preparation is important. You need to have all documents and witnesses you intend to rely on available. Written material must be provided to the ALJ and to all other parties before the hearing. Although further appeals may be available, these appeals are generally based upon the evidence introduced at the hearing. Under Oregon law, an employer must provide an employee with a reasonable opportunity to inspect personnel records at the request of the employee and provide copies, at a reasonable charge
The ALJ will issue a written decision within a week or two after the hearing. It is possible to appeal the ALJs decision, if it is unfavorable to you.
Employers generally must pay for overtime at a rate of one and one-half times your regular rate of pay. If you work more than 40 hours in a week, those extra hours worked are overtime. Executive, administrative, or professional employees are exempt. Salaried employees are NOT automatically exempt from minimum wage and overtime requirements.
The employer must pay you for all the time you work. Your employer must pay you for preparing to work, such as setting up a work station or getting into special protective clothing. Also, your employer must pay you for time spent concluding your work, such as cleaning your workspace or dropping the employer's mail off at the post office. The employer must pay you for attending required training, lectures and meetings related to your job. Waiting on the job is considered work time if you cannot use that time effectively for your own purposes. If you are on-call or use a beeper, your employer will pay you only for time you are actually called to work.
Employees must receive a 10 minute paid rest period during every four hours of work. You should be relieved of all work during the break. Rest periods are separate from meal periods. Meal periods of at least one-half hour are required if you work more than six hours. Employers do not have to pay for that time if you are completely relieved of work during the meal period
Oregon law requires employers to keep regular paydays, such as weekly or monthly. You should get a statement of the amounts and purposes of any deductions from your wages. The statement is required with every paycheck. Deductions other than taxes may be made only if they are for your benefit and you authorize them in writing in advance.
When you quit a job, all wages must be paid on the last day of work if you give the employer at least 48 hours notice. If you quit without notice, the employer must pay all wages due within 5 days, not counting weekends or holidays. If your employer fires you, all your earned wages must be paid no later than the end of the first business day after the termination. If you are not paid within these time periods, you are entitled to up to 30 days of penalty wages.
A claim for wages may be brought on your behalf and the court may order your attorneys fees to be paid by the employer if successful. Under federal law, you may be entitled to double the amount of your overtime wages owed.
In Oregon, non-competition agreements are governed by ORS 653.295. If the agreement is not entered into upon initial employment or on a bona fide promotion it is not valid and will not be enforced. A common mistake that employers make is that they do not have the employee sign the agreement upon the commencement of employment or upon a subsequent bona fide advancement. There may be other defenses that employees have against the enforcement of non-competition agreements. I have handled several of these types of cases, with good results.
The 2007 legislature significantly restricted the enforceability of Non-Competition Agreements entered into after January1, 2008. Such agreements are voidable: 1) if the employer fails to give the employee two weeks written notice before the first day of work that a non-competition agreement is a condition of employment, 2) if the employee's salary plus commissions at termination does not exceed the median income for a family of four, and/or 3) unless the employee is exempt from overtime and the employer has a "protectable interest," such as the employee has access to trade secrets or confidential business information. In some instances, the employer must pay the employee to enforce a noncompetition agreement. Agreements entered in to prior to January1, 2008 are not affected by the new law.
Rights of Disabled and Injured Workers
Under the federal Americans with Disabilities Act (ADA), covering employers with fifteen or more employees, and Oregon law covering employers with six or more employees, it is illegal to discriminate against mentally and physically disabled people. People with mental impairments such as depression are protected just as physically disabled people in wheelchairs are protected. These laws also protect people with a past record of a disability and those people who have no disability but are treated as if they did because of a mistaken belief on the employers part. Federal and state law prohibit employers from refusing to hire or promote disabled people and from discriminating against them in working conditions, wages or benefits. Employers are prohibited from asking any job applicants (not just disabled applicants) medical questions or from putting such questions on job applications. After you accept an offer of employment, the employer may ask medical questions or require a physical exam, and may rescind an offer of employment if you would be unable to perform the essential functions of the job with or without reasonable accommodations.
Federal and state laws also require employers to make changes to their workplace or company policies that will enable disabled employees to perform their job in a safe and efficient manner. If you have a physical or mental impairment and believe that a reasonable accommodation would allow you to perform your job better, you should request a reasonable accommodation from your employer. Reasonable accommodation might mean asking for an ergonomic computer keyboard or wrist pads if you have a wrist problem, or asking to have the office furniture rearranged so you can maneuver your wheelchair around the office. It could also mean asking to have certain office policies relaxed or changed.
Workers who are off work because of a job-related injury that results in a compensable Workers Compensation claim cannot be retaliated against by their employer. Once an injured worker tells an employer that the worker can return to work, the employer has a duty to reinstate the worker to the previous job or to offer other suitable work.
