Winter 2010Managing a business is sometimes like herding cats, especially when it comes to managing employees. Complying with federal and state employment laws is often a challenge; sometimes compliance defies common sense. The following questions and answers illustrate some of the top employment-law issues that employers confront.
I want to avoid hiring undocumented workers. May I ask to see a job applicant's driver's license and Social Security card before giving him or her an application for employment?
No! While employers have a duty to verify the employment identity and eligibility of each person hired after November 6, 1986, the antidiscrimination clause of U.S. immigration law prohibits the prescreening of applicants. Employers are subject to civil fines and misdemeanor charges if they are found to have discriminated against persons in the application process.
Since Oregon is an "at-will" state, I can terminate an employee for any reason and not disclose the reason, right?
While this is generally correct, there are legal and practical considerations that every employer should consider before terminating any employee. Generally, in an at-will state employers can terminate employees for any reason not prohibited by law, policy, or contract. The at-will relationship can be compromised by the language in handbooks as well as by employment practices, collective bargaining agreements, 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 will 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 loss of productivity; she is a detriment to employee morale. Can I terminate her?
Maybe, maybe not. A number of laws may apply, including the Americans With Disabilities Act, the Federal Family Medical Leave Act, the Oregon Family Leave Act, and state disability statutes. Application of these laws to a specific situation can be complex and troublesome because of the potential for overlap among the various laws and regulations. If an employee is protected by any of these laws, "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. Employers should consult competent employment legal counsel to assist in the evaluation and termination process of employees covered by any of these laws.
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 have 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 and include an award of attorney fees to the employee. Employers should make written demands or file a court claim to recover their property.
A long-time employee has been detained by Immigration and Customs Enforcement ("ICE"), reportedly for being in the United States without lawful admission. He wants me to write a letter to ICE stating that he has full-time employment with my company. Should I write the letter?
Not necessarily. It depends on many factors, including whether you have knowledge that the person is not in this country lawfully and is not employment-eligible. Even when you don't have any knowledge of the person's immigration status or work eligibility, providing a letter may expose you to further scrutiny by ICE if the employee is not lawfully-present and eligible to work here. The Obama administration recently decided to grant to unlawfully present persons employment authorization documents in return for the employee's cooperation in the investigation of the employer. If the employee is represented by immigration legal counsel, call and discuss the matter with him or her, and then consult your own legal counsel.
An employee complains that she has been harassed by a coworker, but she 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, an investigation must be made and appropriate actions taken to protect the company from liability regardless of whether the employee makes an oral or written complaint.
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 from the employee should do so and have the employee verify the accuracy of the notes taken.
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. Eligibility for overtime is not determined by being salaried but by being classified as "exempt" or "nonexempt." Generally, administrative, executive, and professional employees are exempt from overtime compensation if they are paid a salary and satisfy a required "duties test." What does the employee actually do in the performance of the job duties? Does the employee regularly exercise independent judgment and discretion? Is the employee generally free from direct supervision? Exemptions from overtime pay may also exist based on 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 "compensatory time" (comp time) for employees but only as "flex time" if taken within the same workweek. In Oregon, comp time is allowed only in public sector employment.
Because employment laws are often not what an employer 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 an offending employer. The consequences of employment law violations can be financially devastating. Avoiding claims is a key to the economic health of your company. Consult competent employment legal counsel before taking adverse employment action against any employee.