Businesses face significant challenges managing employees and complying with employment laws, which are fact-specific and 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/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, and verbal agreements. It is also limited by statutory provisions, judge-made law, and constitutional restrictions. Refusing to give an employee a reason for termination can raise a red flag to plaintiff’s lawyers who often think 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/or the Oregon Family Leave Act (OFLA) and state disability statutes. Application of these laws can be complex due to the potential for overlap. If an employee is protected, employee morale cannot be the basis for termination. If 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, their 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 and/or file a court claim to recover their property.
An employee has complained that she has been harassed by a co-worker 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 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 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 he is due 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 “non-exempt” is the basis of determination as to 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 (s)he regularly exercise independent judgment and discretion? Is (s)he generally free from direct supervision? Exemptions from overtime pay may also exist by industry and job functions. Amended federal rules are being considered and employers are advised to re-evaluate their exempt designations when the rules become final.
In Oregon, the employer may also designate the work week, 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 for the public sector.
Because employment laws are often counterintuitive, the probability of a business violating them is substantial. Even when the rules are known, compliance is fraught with difficulty. The consequences of violation can be financially devastating. Avoiding claims is a key to the economic health of your company.
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