Employment Law
The Law Office of Christopher J. Graves, LLC is committed to providing employers and employees alike, with sound, practical, and common sense advice. Whether you are the victim of an unlawful employment practice, or an employer seeking to educate yourself of the current laws and requirements, CJ is here to assist.
CJ believes the best way to avoid employment disputes is by having sound and effective policies in place to prevent unlawful practices in the first place. Employers need to be aware of the law and requirements placed upon them in order to care for their workers and prevent liability by preventing unlawful employment practices. Likewise, employees need to be informed of their rights under their law and offered remedies when those rights are violated.
The following topics are examples of some employment law matters that employers and employees alike should consider. Because employment law is a complex and diverse area of law, if you have any questions, please contact the Law Office of Christopher J. Graves, LLC to discuss your individual circumstances.
At-Will Employment
Both state and federal laws control employment law in Oregon. Like many states, Oregon is an “at-will” employment state. This means that generally, unless an individual has an employment contact or is subject to union rules, an employer may choose to hire or discharge an employee for any reason.
Exceptions to At-Will Employment: Protected Classes
Despite Oregon’s “at-will” employment status, under both Oregon and federal law, an employer may not refuse to hire, terminate or discriminate against an employee based on his or her membership in any of the following protected classes:
Sex/Gender;
Race;
National Origin;
Religion;
Disability;
Age (40+ for federal, 18+ for Oregon);
Sexual Orientation (Oregon only);
Expunged Juvenile Record (Oregon only);
Marital or Family Relationship (Oregon only);
Child Support Garnishment (Oregon only);
Injured Worker Status;
Veteran or Military Membership;
Family Medical Leave; and
Whistleblower/Retaliation.
The mere fact that an employee is treated differently than his or her co-workers or hassled, intimidated, or badgered at work does not necessarily mean that the employee has a legal employment claim; the treatment must be because of the above categories in order to be illegal discrimination or harassment. If you are unsure as to whether your claim or a claim against you may fall under one of these categories, contact our office and we will be glad to advise you on any options you may have.
Wrongful Discharge
An employer may also be found in violation of Oregon employment law in cases where an employee is terminated because he or she has exercised a job-related right of “important public interest” – such as reporting harassing behavior – or has complied with a public duty – such as serving on a jury. In these instances, an employee may have a cause of action against the employer for wrongful discharge in violation of public policy.
Discrimination
Employment discrimination generally falls into one of two types: disparate treatment and disparate impact. Disparate treatment discrimination occurs when one employee or group of employees is treated differently than other employees on the basis of a protected trait. On the other hand, disparate impact involves a facially neutral policy that, when applied, has the effect of discriminating against a group of people subject to membership in a protected class.
Whether you’re an employee who feels as if your rights have been violated by overt or tacit practices, or an employer who wants to be sure your policies are not unfairly discriminatory, our office is more than happy to help assure you of your legal rights.
Retaliation
Just as it is unlawful to terminate or discriminate against someone based on their membership in a protected class, it is also unlawful to terminate or discriminate against someone who decides to report or complain of unlawful behavior.
Employees have a right to work in an environment that is free from discrimination and harassment, and a duty to report illegal behavior to their employers. Employers should encourage employees to report illegal or unlawful behavior so that the employer can take effective steps to remedy it. Likewise, employees should be free to report unlawful activity without fear of reprisal by their employer.
Harassment
There are two types of workplace harassment: Quid Pro Quo and Hostile Work Environment. When most people think about harassment, they think of sexual harassment. However, hostile work environment harassment may be based on membership in any protected class (i.e. not just sex). Quid pro quo harassment is, on the other land, limited to cases where the harassment is sexual or sex-based in nature.
Quid Pro Quo harassment involves unwelcome sexual conduct, including sexually based comments, advances or physical contact, as well as promises for advancement in exchange for sexual favors.
Hostile Work Environment harassment claims require the employee show a pattern of severe or pervasive harassment or conduct based on membership in a protected class. Generally, an isolated remark or action will not be sufficient to prove the existence of a hostile work environment. The discrimination and/or harassment must also be based upon the employee’s membership to a legally protected category, such as gender, race, national origin, age, disability, or religion.
Leave Laws
Both federal and state laws govern the laws for leave acts. The federal law is known as the Family and Medical Leave Act (“FMLA”) and state law is known as the Oregon Family Leave Act (“OFLA”). Both of these laws provide job protection for qualified employees who need to take time off of work for: (1) the birth of a child; (2) to treat his/her serious health condition; or (3) to care for a family member with a serious health condition.
In order to qualify for medical leave under FMLA, an employee must have worked for a covered employer (50+ employees) for at least 1,250 hours in the twelve months preceding the medical leave. In order to qualify for medical leave under OFLA, an employee must have worked for a covered employer (25+ employees) for an average of twenty-five hours per week in the 180 days preceding the medical leave.
FMLA and OFLA each entitle an employee to take 12 weeks off of work each calendar year. There are some circumstances under which an employee may take more than twelve weeks per year. The time off of work for medical leave does not need to be consecutive and, often, is intermittent or as needed, depending on the specific reason(s) for the leave.
Whether you are an employer who would like to learn more about how to follow Oregon and federal law mandates leave laws and provisions, or an employee wondering about your rights under these leave laws, our office is here to help you.
Severance Agreements
A severance agreement is a contract between an employer and an employee in which, typically, the employer offers to provide the employee with some benefits (usually wages) in exchange for the employee’s agreement to release the employer from legal liability. Severance agreements are common at the end of employer-employee relationships, although their amount and terms vary considerably.
Severance agreements can provide a useful way to extricate an employee from a hostile or discriminatory work place. Further, the agreement works as an assurance to the employer that the employee will not pursue legal action and as a means for the employee to transition out of his/her job while maintaining some security (both financial and otherwise).
If you are an employee seeking help with negotiation or advice on the terms of a severance agreement or an employer wondering what is considered fair and just, our office is here to help.
Wage and Hour Laws
Federal and state laws govern wage and hour issues for most employees in Oregon. Employers are required to abide by minimum wage regulations (different rates for federal and state), and, in most cases, pay overtime at a rate of 1.5x the regular hourly rate of pay for each hour exceeding 40 hours per week.
Under Oregon law, covered employees are entitled to 10-minute paid rest periods (or breaks), separate from meal periods, for every 4 hours worked. Meal periods are required for all employees that work more than six hours and should be at least a 30 minutes. Employers must also pay their employees for all time worked, including work preparation, concluding or wrapping up work, attending required meetings or training, or even waiting on the job, so long as the time cannot be used effectively for the employee’s personal reasons.
Oregon also requires employers to maintain regular paydays and to provide their employees with a statement of any deductions from employees’ wages. Deductions may be lawfully made for taxes and for the fair market value of meals and lodging for the employee’s benefit. Additional deductions may only be made if they are (1) authorized by the employee and (2) are for the employee’s benefit.
When an employee quits a job, he or she should be paid all remaining wages on the final day of work so long as the employee provides forty-eight or more hours of notice. If the employee quits and does not provide notice, all remaining wages must be paid within five business days. If the employee is fired, the employer must pay the employee all of the remaining wages no later than the end of the first business day after the termination.
Penalties, Damages and Compensation
Depending on the specific facts of a case and underlying causes of action, federal and state statutes – as well as common law claims – provide for a variety of remedies under the law. These remedies include, but are not limited to:
Monetary relief in the form of lost wages and benefits of employment;
Back pay;
Front pay;
Injunctive relief;
Reinstatement;
Compensatory damages for emotional distress and mental anguish;
Attorney’s fees and costs; and
Punitive damages.
For these reasons, it is extremely important to contact our office and have an attorney experienced in employment law matters if you believe that you have been the victim of or, in the case of an employer, knowingly or unknowingly participated in an unlawful employment action.
Requirements and Qualifications
Generally, both Oregon and federal employment laws have requirements and qualifications for applicability, such as the number of full or part time employees an employer must have, how many hours the employee must have worked to be eligible under the law, and whether the worker is an employee or an “independent contractor.” For a more in depth analysis of your particular circumstance, please contact our office to discuss your situation.