Frequently Asked Questions About Employment Law

Businesses face significant challenges in managing employees and in complying with employment laws, which often challenge common sense. The following illustrate some of the top human resource issues.

Oregon is an "at-will" state, so I can terminate an employee for any reason and not tell him or her the reason why, right?

This is generally correct, but there are legal and practical considerations. Being an at-will state generally means that employers can terminate employees for any reason not prohibited by law, policy, or contract. The at-will relationship can be compromised by handbooks as well as employment, collective bargaining, verbal agreements, statutory provisions, judge-made law, and constitutional restrictions. Refusing to give an employee a reason for termination can raise a red flag to a plaintiff's lawyer, who often conclude that if the employer will not state the reason, the reason must be unlawful.

My employee is sick all the time, which results in excessive absenteeism and is a detriment to employee morale. Can I terminate her?

To answer this, one must analyze a number of laws that may apply, including the Americans With Disabilities Act (ADA), the Federal Family Medical Leave Act (FMLA), and the Oregon Family Leave Act (OFLA) and state disability statutes. Application of these laws can be complex because of potential for overlap. If an employee is protected by any of these, "employee morale" cannot be the basis for termination. If the employee is protected, the process for termination may be lengthy and expensive — but less expensive than violating the law.

My employee quit without notice. Can I withhold his paycheck until he returns company property?

No! The federal Fair Labor Standards Act and the Oregon wage and hour laws mandate that employees be paid for the work they performed, without offset. In Oregon, if an employee quits without notice, his paycheck is due within five business days or at the next regularly scheduled payday, whichever occurs first. If the employer deducts the value of company property, both federal and state laws provide for penalties to be assessed against the employer. Employers should make written demands or file a court claim to recover their property.

An employee has complained that she has been harassed by a coworker but refuses to make a written statement. How should I proceed?

It is not uncommon for employees to use the term "harassment," but that does not necessarily mean that unlawful conduct has occurred. Nevertheless, when such a complaint is made, an investigation and appropriate actions are necessary to protect the company from liability.

Employers should not require an employee to "write down" the facts, which can have a chilling effect on employees' reporting of incidents. If the person is comfortable writing down the facts, fine; if not, the person taking the information should write it down and have the employee verify its accuracy.

My office assistant says I owe him overtime for hours worked in excess of 40 in a week. He is paid a monthly salary and is not due overtime, right?

Not necessarily. Classification as "exempt" or "nonexempt" determines eligibility for overtime, not being paid a salary. Generally, administrative, executive, and professional employees are exempt from overtime pay if they are paid a salary and satisfy their required "duties test." What does the employee actually do in the performance of the job? Does he regularly exercise independent judgment and discretion? Is he generally free from direct supervision? Exemptions from overtime pay may also exist by industry and job functions.

In Oregon, the employer may also designate the workweek, which may help limit overtime. Private employers often make the mistake of allowing "comp time" for employees, but that is allowed only as "flex time" if taken within the same workweek. In Oregon, comp time is allowed only in the public sector.

Conclusion

Because employment laws are often not what one would expect, violating them is easy. Even when the rules are known, compliance is fraught with difficulty. For example, incorrectly calculating wages at termination, including not paying for earned vacation, can result in penalty wages, liquidated damages, and attorney fees being assessed against a company. The consequences of violation can be financially devastating. Avoiding claims is a key to the economic health of your company.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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