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Unemployment benefits can be a life line for anyone who has recently lost their job. Unfortunately for Oregon workers, it is likely to become more difficult to obtain benefits. Late last month, the Oregonian reported that the Oregon Employment Department overpaid $392 million dollars in benefits. Neither the Oregonian nor the Oregon Employment Department has pinpointed any single cause for the overpayments. In reality, the problem most likely results from a combination of factors. The poor economy in recent years has resulted in more claims and increased workloads for the folks who work at the Oregon Employment Department. That’s bad news for everyone.

So what does this mean for those involved in an unemployment benefits appeal? It means it is more important than ever to be careful about how you pursue an Oregon unemployment appeal. If the Oregon Employment Department is missing $392 million dollars, it is naturally going to find as many ways as possible to offset those losses. There are essentially three key ways to do that: (1) try to recoup overpaid benefits; (2) increase unemployment taxes to employers;  and (3) pay less claims. All of these options create increased risks for unemployed Oregon workers.

If you have been denied unemployment benefits and feel you are entitled to them, you need to appeal the denial to a body called the Oregon Office of Administrative Hearings. Based on what I’ve seen in these hearings, having counsel can be a very wise idea. I talk with lots of people who make avoidable mistakes and simply call me too late in the process for me to help. Early action is especially important if you have already received benefits and the Oregon Unemployment Department is trying to retroactively deny those benefits. In effect, this is the state’s way of saying, “we overpaid you, now give us our money back.” If you fail to appeal such Administrative Decisions in a timely manner, you may be on the hook to pay back everything you’ve received, plus interest and penalties. And, if you don’t handle the hearing correctly, you are not likely to get any other chance to present evidence. In many cases, overpayment determinations result in repayment obligations of several thousands of dollars.

In the next week or so, I will be posting a detailed article about handling overpayment accusations from the Oregon Employment Department. The sad fact is that the process is very unclear and presents lots of traps for the unwary. In many cases, it can be useful to sit down with an attorney just to make sure you understand your rights. Feel free to call if you would like to set up such an appointment.

Photo: Rev Dan Catt

Contracts play a critical role in the employment context. Employment contracts affect everyone in a workplace, from rank-and-file laborers to C-level executives. I can’t even imagine how many businesses and individuals are parties to employment contracts in the State of Oregon. Almost anyone who has employed someone or been employed has probably been subject to an employment contract of some kind. Yet there is very little writing on the web about Oregon employment contracts. As I sat down to start writing, I realized why that is.

There’s no really good place to start when you are writing about contracts. That is because contracts are pretty nebulous – by nature. An employment contract, like any other contract, is an agreement between two or more parties. With employment contracts, there are usually two parties: (1) the employer, and (2) the employee. Employment contracts are nebulous because, as you might imagine, people can agree to some pretty zany things.

My articles about Oregon employment contracts will start with basics. I would love to jump right into new cases involving nuanced legal concepts. But I think it is important to spend some time covering background information that gives context to those concepts. Context is important because employment contracts have real consequences. They affect real lives. They are more than a strategic collection of words. They define our rights and responsibilities.

After I cover the basics, there are specific types of contracts that merit dedicated articles. For instance, I plan on writing several articles about severance agreements, non-compete agreements, confidentiality agreements, compensation plans and other common types of employment contracts. Just bear with me while we trudge through the boring stuff.

Photo: Ian Sane

Last week, Forbes announced its list of Best Cities for Working Mothers. While I am pleased that Portland, Oregon made the list, it is too bad it’s over halfway down the list.

How can we do better? Our poorest grade was in the “per pupil expenditure” category, where we ranked 38th. That is not surprising. It is no secret that Oregon schools are in dire need of investment. Cost of living and child care are also higher than I’d like to see. But, if you consider that the study compares us with cites like Cleveland, Oklahoma City, and Louisville, I’m not sure how we can decrease our cost of living relevant to those places. I think Portland will probably always be more expensive from those places.

The good news is that we ranked well in the “commute” and “physicians categories.”

Thanks to Randy Enochs over at the Wisconsin Employment and Labor Law Blog for pointing this out. I was born and raised in Milwaukee, I am glad to see they were ranked #6. Milwaukee’s a great city and the rating is well deserved.

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Does having a lawyer really increase the odds of winning an Oregon unemployment appeal? Let’s take a look at some numbers and then we can discuss. In the month of August 2011, the Office of Administrative Hearings issued decisions in 1,955 unemployment appeals. That’s a pretty good data set. Claimants (employees) filed 1,661 of those appeals. That’s 85%. Here’s the staggering part. Employees lost over 75% of the appeals they filed. Employers did not fare much better. They won only about 26% of the appeals they brought.

My clients’ success rates in August were somewhere in the ballpark of 85%. People who ended up having me as their lawyer did about 3 times better than the state average. As much as I’d love to take credit for all that, there’s more in play than just my lawyering skills.

So why are people who contact a lawyer more likely to win an appeal? First, there’s probably something called a selection bias. That means that people who have a good reason to appeal are more likely to contact a lawyer. If you were fired for repeatedly assaulting co-workers after clear written discipline from your employer, you wouldn’t be likely to call me. Most people who call me usually have at least some reasonable basis for considering an appeal.

Second, the folks who reach out for help with unemployment appeals tend to understand that knowledge and presentation can make a world of difference. I often tell my clients, “we need to tell a story that can win you benefits.” The sad fact is that many people without counsel do not understand the legal issues involved in a case. As a result, many people make arguments at hearings that could never win them benefits. In other word, some people make arguments and provide evidence that does not support any winning legal claim. Those people lose the fight before it even starts.

Finally, the increased win rate is a result of case screening.  I frequently tell prospective clients that I will not accept a case unless I think I can increase the odds of success. I turn away some cases when I do not think success is in the cards. The fact that I turn down cases tells me that there are people filing appeals in cases they will never win. Given the nature of the unemployment system, the number of these appeals is not surprising to me. However, unfounded appeals create a strain on the system. Ultimately, these unfounded appeals hurt everybody.

The moral of the story: it’s never a bad idea to reach out for help. I realize it can be intimidating to contact a lawyer. But the truth is that if a lawyer cannot help you or if there are serious risks with a case, they should tell you upfront. But if there is any chance of improving your chances and doing so is cost effective, having counsel can save you several thousands of dollars and lots of stress.

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A well drafted and properly implemented employee handbook can go a long way in preventing headaches for employers and employees alike. When I say “employee handbook,” I mean a document provided to employees by an employer that sets forth the employer’s policies, procedures and relevant resources available to employees. An employee handbook can clarify expectations, outline procedures, and identify contacts and resources within a company. It can also do lots of other great things that would be too long to type out in a blog post. Unfortunately though, an employee handbook can cause more harm than good if it is not drafted or used the right way. It can create confusion, stress, conflict and even liability.

So what makes an employee handbook good or bad? There is an endless list of things that determine whether an employee handbook is good or bad. A handbook that is good for one business might be terrible for a different business. There are lots of things to consider, but here are what I believe are a few of the most important things to consider when looking at any employee handbook.

Does the employee handbook serve a real business purpose? There are lots of businesses that copy form handbooks from a website or library. Many big box office office supply stores sell software that will create so-called employee handbooks (see here for an example). I am not criticizing those forms. Some of the forms may actually be fine. The problems occur when businesses start to implement forms just for the sake of having forms. Employee handbooks are no exception.

It is important to consider whether the contents of an employee handbook are actually serving a legitimate and worthwhile business purpose. Does it make sense to have a handbook? Does it help the business? If so, is the handbook useful for the employee(s)? Is it useful for the employer? Is the employer willing to ensure compliance with any policies set out in the handbook? The bottom line is that an employee handbook needs to be vetted to ensure it is helping carry out out a real business purpose.

Does the employee handbook contain too much or too little information? Some employers want to micromanage their employees’ every move. In some industries (e.g., air travel, manufacturing, security, etc.) that may be essential. Other employers feel that micromanagement is counterproductive. An employee handbook needs to strike a balance. It needs to contain any important information that employees need to work in a safe, productive and positive manner. But, it needs to be concise and simple in order to be effective. Striking that balance can be tough. Unfortunately, for reasons beyond the scope of this article, many employers (and their lawyers) err on the side of overly complex and burdensome employee handbooks.

Is it clear who the handbook applies to? I once worked on a case involving an employer that had a large number of different employee handbooks. There were different handbooks for different types of employees. Then there were numerous revisions to the handbook. Some employees were given the revisions, others were not. It was a total mess. The employer was unable to track which handbooks applied to which employees. The result was widespread confusion.

The lesson is simple: it should (usually) be clear who an employee handbook applies to. Achieving clarity usually requires a business to have clear objectives and an organized work force. It also requires proper communication and documentation.

Is the handbook uniformly implemented? This is pretty self-explanatory. As you might imagine, there are lots of employee handbooks that are simply not followed or enforced. An unused and unenforced employee handbook is likely to confuse employees and create liability for the employer. The good news is that with proper drafting, an employee handbook can reduce the burden of enforcement. Again, this all gets back to making sure an employee handbook is actually serving a legitimate business interest.

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Do you know what the terms “wrongful discharge” and “wrongful termination” mean in the context of Oregon employment law?

If you do, you’re in the minority. I have no evidence to back this claim up, but I am confident that “wrongful termination” and “wrongful discharge” are the most widely misunderstood concepts in Oregon employment law. I receive many calls of confusion from employees and employers. And for good reason. This is confusing stuff. Hopefully this post can help clarify things.

As far as I can tell, there is no practical difference between the terms wrongful discharge and wrongful termination as they relate to Oregon employment law. For instance, in a case decided just a couple months ago, the court talks about “wrongful discharge.” De Bay v. Wild Oats Mkt. Inc. (2011, Or. Ct. Appeals). Other cases use the term “wrongful termination.” Hamlin v. Hampton Lumber Mills, Inc. (2011, Or. Supreme Ct.). There does not appear to be any meaningful distinction.

Before you can understand wrongful discharge, you need to understand Oregon’s at will employment doctrine. There is a full post on at will employment here. In a nutshell, at will employment means that employers in Oregon are generally allowed to make employment decisions for any reason or no reason at all. A firing or other discharge is not “wrongful” just because it is based on false information, incomplete information or some other kind of inaccuracy. It takes more than just that.

So what makes a discharge wrongful? Oregon courts have carved out two types of discharges it deems to be wrongful. To be “wrongful,” a discharge must fall within one of these two categories. First, a discharge may be wrongful when it is based on an employee’s performance of an important societal obligation. Examples of societal obligations include jury duty, mandatory reports of healthcare facility violations, and testifying in court. Second, a discharge may be wrongful when it is based on an employee’s exercise of employment-related rights. Examples here include wage claims, complaints of sexual harassment, and assertions of family medical leave. If a discharge doesn’t fall into one of these categories, then there’s a good chance the discharge wasn’t “wrongful” under Oregon employment law.

I plan on writing more on this topic in the future. Wrongful discharge claims have tons of other complexities. There are statutes, rules and regulations that can all be implicated in a wrongful discharge case. For that reason, I always advise employees and employers alike to seek competent assistance when evaluating whether a discharge is “wrongful.” You would be surprised how complex the analysis can be.

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I commonly hear from employers, “why would my former employee hire a lawyer to come after me for a few hundred bucks of overtime pay?” Fair question. Since I handle employment cases for employees and employers, I wanted to come up with an answer that is fair to both sides. Due to time constraints, I will not try to cover all the arguments. But if you’re reading this post and have something to add, please comment.

View from the Employee’s side. So why would an employee or former employee hire a lawyer to go after a small sum of overtime pay? The answer is obvious for an employee/plaintiff. It’s because the employer owes the employee that money under state or federal law. The law imposes an obligation on the employer to pay overtime. The employee benefits from the law. When the employer fails to meet the obligations imposed by the law, the employee has the right to use the court system to enforce it. Small sum or large sum, the employee will often say they hired counsel because the employer shouldn’t be able to get away with not paying its employees.

Then there’s the money question: why would an employee spend money to try recovering such a small sum of money? The answer is that the employee probably won’t spend any money on a lawyer. Oregon and federal statutes allow prevailing plaintiffs to have the employer pay his or her attorney fees if they prevail in an unpaid overtime claim. Because of the fee shifting law, it makes sense for attorneys to take these cases. It usually goes one of two ways: (1) the employer pays the demand right away and the attorney takes a smaller but reasonable fee for doing a limited amount of work; or (2) the employer fights the case and the attorney pursues statutory attorney fees.

View from the employer’s side. The reality in many unpaid overtime cases is that the attorney fee provision in Oregon and federal overtime claims creates a situation where the tail is wagging the dog. It does not take much work for a plaintiff lawyer to rack up a fee that exceeds the amount of an overtime dispute. If a case is not handled correctly, an employer can face having to defend an overtime claim just to avoid a serious risk of paying attorney fees to the plaintiff’s attorney.

Unpaid overtime claims also create a risk of  “aftershocks.” For better or worse, employers are hounded by all forms of government and big business.  Taxes, permits, licenses, insurance policies, banks, workers’ compensation, unemployment, etc. Anyone who has been an employer for some time can probably imagine how problems with one area of the business can cascade into other areas. Overtime claims only increase the risk of additional headaches involving taxes, accounting, insurance, etc. This is even more true in highly regulated industries, like medical facilities, assisted living facilities, etc.

I don’t list these risks just to scare employers. I list them because they explain why workers will hire lawyers to pursue unpaid overtime claims. They do it because they have power. That power can be increased if the employee has a good attorney who is reasonable and assertive. At the same time though, an employee’s power can be reduced significantly (but not completely) if you are a responsible employer and you respond to the claims in the proper way.

Photo: Joost J. Bakker IJmuiden

As we discussed last post, Oregon’s employment at will rule allows most private employers wide discretion to treat employees as they wish. One exception to this rule is the Oregon Family Leave Act, commonly known as OFLA. I will be covering OFLA basics in some upcoming posts. It is a statute that offers lots of rights to workers. This post just answers the question: “which employers are subject to OFLA?

OFLA is a set of statutes numbered from ORS 659A.150 through ORS 659A.186. The statutes are further clarified by Oregon Administrative Rules and case law. Luckily, the statutes are pretty clear about which employers are subject to OFLA’s requirements. According to ORS 659A.153(1),

The requirements of ORS 659A.150 to 659A.186 apply only to employers who employ 25 or more persons in the State of Oregon for each working day during each of 20 or more calendar workweeks in the year in which the leave is to be taken or in the year immediately preceding the year in which the leave is to be taken

Therefore, OFLA only applies to employers who have 25 or more employees as described in the statute. Under ORS 659A.153(2), some employers may obtain an exemption by offering a qualified cafeteria plan. But even if OFLA does not apply to a certain case, there still may be other possible OFLA-related claims, such as a wrongful discharge claim. The distinction between various claims is really a case-by-case type thing that doesn’t belong in a blog post. If you have questions about how OFLA may apply to you or your business, it is best to contact a qualified attorney.

Defining “covered employer” may seem like an exercise in semantics. Even so, it is an important definition to understand. This definition draws a line. In imposes a broad set of legal obligations on the covered employers defined in the statute. It creates rights for a large number of workers. In other words, it creates an exception to the rule of employment at will.

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Before you can understand employment laws, you need to understand a concept called “employment at will.” It is a very basic legal principle and it applies to almost every private employment case filed in the State of Oregon. You can think of employment at will as the canvas on which most Oregon employment laws are painted.

Oregon, like pretty much every other state in the U.S., adheres to a doctrine known as employment at will. The basic definition of employment at will would be something like: “An employer is free to make employment-related decisions for any reason or no reason at all.” In plain English, this means employers and employees are generally free to negotiate any rules, standards, policies, expectations and other guidelines they see fit. Employers can fire and discipline employees for any reason. Employees can quit whenever they please. Likewise, employers are free to maintain no rules, policies, etc.

Of course, there are rules regarding what employers can and cannot do. But it is probably more accurate to say that most employment laws are exceptions to the employment at will doctrine. Even though an employer is free to discriminate against employees in many ways (productivity, reliability, competence, etc.), there are are laws prohibiting employers from discriminating based on gender, race, religion, and status in other protected classes. And employers may be required by law to take certain actionsUnless there is a law prohibiting certain action or requiring certain action, employment at will applies and employers are free to do as they please.

Employment at will applies to more than just hiring and firing decisions. Under the employment at will doctrine, Employers are free to treat employees as well or poorly as they want. Employers can hire only their friends and may treat some employees more favorably than others. There is no rule against an employer being a jerk. There is nothing requiring a boss to be fair. Like life, employment is sometimes unfair. That is just the way it is.

So why would Oregon or any other state use such a harsh rule as a starting point? Simple – employment at will promotes a free market economy. We want employers to be able to hire those who are best suited for the work. We want employees to find the best possible work for their particular skills. Businesses are free to decide what they believe to be good for them. If an employee is not profitable, we want businesses to be able to replace that employee with someone they believe to be better. If an employee is working for a bad boss, we want them to be free to quit their job. We encourage competition and employment at will promotes competition (at least in theory). We want employers and employees to be free to negotiate terms of employment that work for both. And we want everyone to be free from too many governmental rules and restrictions. If there are too many rules, those rules create liability for those bound by the rules. Potential liability increases costs to businesses and discourages hiring, which are bad things. It’s a jungle out there.

As we’ll discuss in other posts, employment at will is just a starting point. Employers cannot really do anything they want. To the contrary, there are many other laws that are exceptions to the employment at will doctrine. For example, employers cannot make employment-related decisions based on an employee’s status in a protected class. Employers are also required to follow lots of laws regarding pay, working conditions, leave, benefits, etc. Over time, we have passed laws and implemented other measures that create basic rules that govern the employment relationship. But these laws and measures are not so much “rules” as they are exceptions to the rule of employment at will. And that’s why it is so important to understand employment at will.

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Sexual harassment is a term we all hear on a fairly frequent basis. It’s a term you read in the news and hear in conversations. Many of us have sat through sexual harassment prevention videos during training at a job. Despite our vague cultural familiarity with sexual harassment, I believe most of us have a difficult time defining exactly what “sexual harassment” is.

In my line of work, I talk with lots of Oregonians about sexual harassment. Jurors, focus group participants, perpetrators, victims, doctors, and all sorts of other people. Over time, I’ve noticed that different Oregonians hold different views about what sexual harassment is (*). Some people define sexual harassment broadly. Others feel that sexual harassment is a term that applies to only the very rarest sets of circumstances. I’m not saying this disparity of beliefs is good or bad. I’m also not saying that my observations are representative of anything. They’re just my observations. Very anecdotal, I know.

As I will discuss in a different post, there are Oregon and federal statutes, rules, administrative orders, opinions and case law that help define sexual harassment – at least in the context of employment law. But the rules are only part of the equation. Ultimately, the definition of “sexual harassment” will depend on the folks who sit in your jury box. And that is why it is so important to consider what your juror’s personal beliefs might be.

Here’s a concrete example of what I’m talking about. Oregon Administrative Rule 839-005-0030(1)(b) defines sexual harassment to include “[a]ny unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating a hostile, intimidating or offensive working environment.” What types of interferences are reasonable? Which types are unreasonable? That is, more or less, what the jury will decide.

The reason I bring this up is give context to some of my future posts about sexual harassment. Don’t be fooled – simply reading the statutory definitions of sexual harassment will not tell you what sexual harassment is. The definition depends on your jury. And, as I routinely tell people, your jury’s decision can be greatly influenced by a capable trial attorney.

* - I’ve also noticed that many individuals have beliefs about sexual harassment that they are reluctant to share with others for fear of appearing non-PC.