Employment Law

• Wrongful Termination
  In general, employment in Oregon is "at will." The "at will" employment rule generally means that an employer is free to hire or fire an employee for any reason or no reason at all whether the termination is fair or unfair, just or unjust. Similarly, an employee is generally free to quit employment for any reason or no reason at all. There are three primary exceptions to the employment at will rule. First, an employer may not terminate an employee because of their membership in a "protected class." This is called unlawful discrimination. Protected classes include race, sex, age, national origin, marital status, disability, religion, sexual orientation and other groups of individuals defined in state or federal laws. Second, an employer may not terminate an employee for a socially undesirable motive. This is called a wrongful discharge. (See FAQ "What is a wrongful discharge"). Third, if the employer and employee have an agreement that limits the employer's ability to terminate the employee, the employer may only terminate the employee in compliance with the agreement. This is called a breach of contract.
• Employment Discrimination
  On February 4, 2010, the Oregon Supreme Court issued a favorable decision in the cases of Ronald Doyle, Robert Deuel, Ben Miller and Charles Steinberg v City of Medford and Michael Dyal. This case involves claims by four retirees of the City of Medford who contend that the City violated a state law, ORS 243.303, engaged in age discrimination and violated due process rights when the City denied plaintiffs the option of continuing their group health insurance upon retirement.
• Employment Contract
  Most employees don't have written contracts covering their employment. However, the Oregon courts have held that employers may be contractually bound to comply with termination procedures set forth in personnel policies or employee handbooks that the employer promises to follow or circulates to employees. If an employer's personnel policies and procedures are made known to employees and if those documents promise that an employer won't terminate employees except upon certain grounds (for example "just cause") or except by following procedures (for example a verbal warning, a written warning, a suspension) then a termination may be a breach of contract if the employer doesn't comply with it's personnel policies or employee handbook. Many employers are aware that their personnel policies or employee handbooks may create contractual rights and include specific language ("disclaimers") in these documents designed to inform employees that they remain employees "at will" who can be terminated at any time for any reason. The Oregon courts have held that clearly stated "disclaimers" in an employee handbook can preclude the creation of an employment contract based upon the employee handbook. If a client has a question about whether an employer's personnel policies or employee handbook creates a contract that limits the employer's ability to terminate or whether a disclaimer is sufficient to prevent the creation of an employment contract, the client should consult an attorney knowledgeable about implied contracts. Employees who are members of unions are likely covered by a contract between their union and their employer. These employees should consult their union if there is a concern about whether a termination is a breach of the union contract.
• Severance Agreement
  If you need advice about a legal problem, need a severance agreement reviewed, need help in going through the BOLI or EEOC complaint process or have questions about your legal rights, you can contact us for an individual consultation. Mr. Brischetto conducts individual consultations on an hourly basis.
• Sexual Harassment
  Wrongful discharge is one of the exceptions to the employment at will doctrine under Oregon law. Generally, the Oregon courts have held that an employee may have a claim for a wrongful discharge when the employer terminates the employee for a "socially undesirable motive." The Oregon courts have identified two general categories of undesirable motives which will be sufficient to state a claim for wrongful discharge: (1) if the employer terminates the employee for exercising rights of public importance related to the employee's role as an employee; or (2) if the employer terminates the employee for fulfilling important societal duties. An example of an employee "exercising rights of public importance related to the employee's role as an employee" is a situation where an employee complains of sexual harassment or racial discrimination and is terminated for making the complaint. An example of "fulfilling important societal duties" is a situation where an employee is absent from work for jury duty and the employer fires the employee in response. Whether a specific factual situation fits within the definition of a wrongful discharge is a complex area of law and clients who have concerns about the propriety of a termination should consult an attorney knowledgeable about this area of law.

Health Law

• Disability Discrimination
  The law relating to disability discrimination and reasonable accommodation is complex. As a result, clients having questions about disability laws and reasonable accommodation should consult with an attorney knowledgeable about the area of law and how the law applies to their particular situation. Generally, a qualified person with a disability is entitled to a reasonable accommodation that is necessary for the person to perform the essential functions of the job they hold or the position they seek. An employer who knows that an employee has a disability that is affecting their ability to perform the job has an obligation to initiate an interactive process (for example meetings) to arrive at an accommodation. Nevertheless, even if an employer knows or should know that an employee has a disability, the employer may not know of the need for accommodation. Thus, an employee who believes they need an accommodation in the workplace should make a written request for accommodation specifically mentioning that the request is made under the Americans with Disabilities Act and state disability laws. Once the employee makes such a request, the employer is required to engage in the interactive process with the employee, to determine whether an accommodation is actually needed, and if so, what accommodation might be appropriate. Both parties have a responsibility to cooperate in finding a reasonable accommodation. For example, if the employee refuses to provide medical information necessary to determine if the employee has a disability that requires accommodation or if the employee refuses to inform the employer of the essential job functions that he or she is having difficulty performing, the employer may not be held responsible for failing to provide an appropriate accommodation. Likewise, the employer cannot make a single offer of an inadequate accommodation and, if the employee refuses it, decline to search for other alternatives. Employees should attempt to develop their own ideas about how they can be accommodated at work to bring to the interactive process and may wish to consult with physicians or other professionals knowledgeable about their disability and workplace accommodation to develop reasonable accommodations. An employer may also be required to make reasonable accommodations for a job applicant, if the accommodations are necessary for the applicant to meaningfully participate in the application process. An applicant who believes that he or she may need an accommodation must, like an employee, inform the employer of the need for accommodation, and then work with the employer to find an effective accommodation, if one exists. An example might be moving a typing test to a room that the applicant can reach or allowing the applicant to bring adaptive equipment to the interview, such as special keyboards. An applicant with hearing or visual impairments may be accommodated by allowing an interpreter to accompany the applicant to the interview.