March Update – More Changes & Challenges For Employers
By Dunn, Carney, Allen, Higgins & Tongue
1. Employee Free Choice Act
2. Oregon Senate Bill 519 – Limits Employer Free Speech
3. Retaliation Protection Expanded by the Courts
4. New Form I-9 Effective Date
This year has been filled with changes and challenges for employers. This month is no exception. To assist you in navigating through these challenges, we offer brief, practical articles about the status of efforts to pass State and Federal legislation impacting the process of unionization and about the impact of the U.S. Supreme Court expansion of retaliation protection through its decision in Crawford v. Metropolitan Government of Nashville and Davidson Country, Tennessee.
To further assist you, the Dunn Carney Labor and Employment Law Team is hosting a no-cost program Wednesday, March 18, 2009, from 7:30 a.m. to 9:30 a.m., at the Multnomah Athletic Club. We will address retaliation claim prevention in more detail and provide you tools you need to protect your organization, as well as provide information about the new COBRA requirements under the Stimulus Bill (“ARRA”). [ Click here for program details and registration]. We hope to see you there!
Employee Free Choice Act
We just learned that both the U.S. House and Senate will be presented with identical versions of the Employee Free Choice Act (“EFCA”) today, March 10, 2009. More information about the impact of EFCA can be found in our prior article on the topic, here. Noted economist Dr. Anne Layne-Farrar has studied this legislation and concludes that it will, if passed, result in job loss of as much as 600,000 nationwide. If you have not previously done so, please consider contacting your Representatives and Senators and expressing your position on EFCA. Click here for contact information.
Oregon Senate Bill 519
The Oregon Senate is considering a bill that would severely chill the information employer’s may communicate with employees in the workplace. The Bill, SB 519, would prohibit employers from holding meetings on company time or otherwise communicating with employees about “religious or political matters.” These terms are defined very broadly and include communications to employees about unionization. An employee who prevails against the employer is entitled to reinstatement, back pay and shall be awarded treble damages, attorney fees and costs. If passed into law, this would clearly be a gift to plaintiff’s lawyers and labor unions at the expense of employers.
The bill is in the Commerce and Workforce Development Committee, but it is likely it will be on the Senate Floor very soon. Please contact your state Senator and tell them to vote no on SB 519 because:
• A recent US Supreme Court case concerning a similar law in California found restrictions on employer speech in the unionization context to be unconstitutional.
• The bill would cause increased litigation against employers at a time when our economy can least afford it.
• Although the bill appears to be aimed at political and religious speech, the real goal is to silence employers from communicating with their employees during a union organizing campaign.
Retaliation Protection Expanded by the Courts
Over the past year, the U.S. Supreme Court has issued three significant decisions reinforcing employee protection against employer retaliation for asserting rights under various anti-discrimination laws. In January, the Court decided, in Crawford v. Metropolitan Government of Nashville and Davidson Country, Tennessee, that Title VII protects those employees who are interviewed during their employer’s internal investigations into allegations of sexual harassment or other unlawful discrimination.
Under Title VII, employees are protected from retaliation for participating in a protected activity. Protected activity includes an employee’s opposition to an employer’s unlawful practices (“Opposition Clause”) or participation “in any manner in an investigation, proceeding, or hearing” under Title VII (“Participation Clause”). In Crawford, the Supreme Court focused on the Opposition Clause when it held that minimal disclosure of alleged unlawful conduct, even when not initiated by the employee, can be enough to invoke retaliation protection. This is a significant departure from the prior case law of some circuits, and opens the door for similar, broad interpretation of the retaliation provisions of several other federal and state anti-retaliation statutes.
For more detailed analysis of the Crawford decision and best practices for employers to adopt as part of their efforts to prevent and defend retaliation claims in light of Crawford¸ please click here for our white paper.
New Form I-9 Effective Date
We recently informed you of the new Form I 9 along with its substantive changes- click here. As a reminder, the new Form I 9 must be used as of April 2, 2009. The form will be made available on the USCIS web site, located here.
Thanks to Kelly Martin for her contribution to this article.
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