Unusual Developments (and Little-Known Laws) in the Employment Law World

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What’s new and not so new in the ever-changing (and sometimes frustrating) world of employment law?  In the last two months, Oregon employers have been presented with some interesting developments, including:

Liability for Sexual Harassment by Customers.

In late March, the Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcement of most federal employment laws, received court approval for a settlement it had reached with a restaurant in Florida. The settlement required the restaurant to pay some of its servers $200,000 in compensatory damages (also known as “emotional distress” damages) due to the servers’ alleged repeated harassment by a frequent patron of the restaurant. Although most Oregon employers are aware of their obligation under state and federal law to prevent harassment in the workplace caused by vendors, customers and other third parties, this Florida case is a costly reminder of the consequences for failing to do so.

 

New Guidance for the Use of Criminal Convictions in Hiring Decisions.


On April 25, the EEOC issued updated enforcement guidance concerning employers’ consideration of criminal arrest and conviction records when making hiring and other employment decision. The EEOC Guidance allows employers to continue to ask applicants if they have been arrested for or convicted of a crime, and it does not prohibit employers from conducting criminal background checks. But the Guidance does caution employers that they may violate Title VII if they: (1) Use a criminal background check policy that has a disparate impact based on race or national origin without demonstrating a “job-related business necessity” for such a policy; or (2) Intentionally discriminate, on the basis of race or national origin, against individuals with similar criminal histories. Oregon employers who use criminal background checks should consider screening the results of such checks so that an applicant’s criminal background is considered in light of the nature of the crime, the amount of time that has passed since the conviction/commission of the crime, and whether the alleged offense has a connection to the job duties of the position in question.

Protection for Transgendered Workers Under Title VII.

On April 23, the EEOC issued an opinion in which the agency stated for the first time that transgender workers are protected by Title VII. Although Oregon’s law prohibiting discrimination against workers due to “sexual orientation” arguably already covers transgender workers, the fact that the EEOC has also publicly taken this position means that transgender employees in both public and private sector employment markets may now file charges of discrimination with the EEOC. It remains to be seen, however, whether a federal court would agree with the EEOC’s interpretation of Title VII.

Reporting New Hires to the Oregon Department of Justice.

 

Most Oregon employers are unaware of a law that requires them to report all new hires and re-hires (including temporary and seasonal staff) to the DOJ’s Division of Child Support within 20 days. According to the DOJ, who has oversight over the Oregon Employer New Hire Reporting Program, this information is used to collect child support. For more information, and to learn about the various means by which such reports can be made, go to: http://oregonchildsupport.gov/employers/reporting.shtml.

Employer Duties to Report Employee Crimes.

Generally speaking, individuals and employers are not required to report criminal conduct that they observe. Employers, however, have an obligation to report employees who possess child pornography on employer-owned computer equipment. Under 18 U.S.C. § 2258A, any provider of an “electronic communications service” or “remote computing service” (which is what an employer typically provides its employees by way of email and internet service  must report the name, email and/or IP address and any other identifying information of an employee in possession of child pornography to the National Center for Missing and Exploited Children. Those Oregon employers who do not have clear policies on the use of electronic devices in the workplace should implement them. Such policies should address, among other issues, the privacy rights  an employee gives up any time he/she uses personal computers or smart phones for work-related purposes but relies on the employer’s IT department or internet portal to conduct business.

OK to Ban Guns in the Workplace?  

Yes. Although 15 states have enacted “workplace protection” gun statutes that prohibit employers from restricting their employees’ possession of firearms while at work, Oregon is not one of those states. Thus, private Oregon employers may lawfully prohibit their employees (even those who are concealed handgun licensees) from bringing guns: (1)  to the workplace or anywhere on an employer’s property; (2) in company-owned vehicles; and (3)  in employee cars parked on an employer’s parking lot. (Different rules may apply to public employers in Oregon.)  More importantly, both private and public employers should educate all of its employees on how to recognize warning signs of workplace violence and how to handle violent workplace situations.

Tamara E. Russell, an attorney with Barran Liebman LLP, has provided advice to employers of all sizes in Oregon and beyond for the last 15 years. She also represents employers in trials, administrative hearings, and other types of litigation. You can reach her at trussell@barran.com or 503-276-2182.

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