There is no doubt that surviving cancer is a difficult and life changing experience.  Employment issues are one of many hurdles a person faces when dealing with a serious illness.  As a lawyer, I see these issues unfold first hand. I can say with certainty that many employers who face employment lawsuits related to cancer survivors could have been prevented with better communication and collaborative efforts.

What employment-related legal protections are there for people who are diagnosed with cancer, undergoing cancer treatment, or living after cancer treatment?  The protections vary, but as a general point, employers should not and in most cases cannot treat you differently because of cancer.  The bulk of protections come in the form of medical leave laws (Oregon Family Leave Act and the Family Medical Leave Act) and disability laws.  There are also various insurance and benefits-related laws that may impact your situation.

For example, just last week, the EEOC announced a $125,000.00 settlement reached for a woman fired after she attempted to return following medical leave for breast cancer.  (Read press release here)

Because employment circumstances and medical conditions vary drastically on a case-by-case basis, it is almost always important that you contact an experienced employment attorney to discuss how to minimize the impact your illness has on your work situation.  When parties work together to address  illness and its effects at work, many issues can be resolved and lawsuits can be avoided.

• The employee was employed for fewer than 180 days immediately before the date on which the family leave would commence; or
• The employee worked an average of fewer than 25 hours per week during the 180 days immediately preceding the date on which the family leave would commence.

Please note that employee eligibility is only one of many factors to consider when dealing with OFLA leave.  Just because an employee is eligible does not mean that the employee is entitled to OFLA leave.  Likewise, even if an employee is entitled to OFLA leave, there are a number of terms and restrictions applicable to the leave.

Please note that the federal leave laws have separate requirements under which employees may or may not have rights to family and/or medical leave.

There is a wealth of Oregon employment law information available for you on this website.  To get you started in the right direction, please click one of the links below.  However, since the law changes frequently, you should not rely solely on anything you find here.  Instead, it is best to discuss your situation with an attorney.

• I have been fired or treated unfairly by my employer

• My employer is not paying me the wages (including commissions, bonuses, vacation pay, etc.) I am owed

I truly hope the information here helps you understand some basic concepts related to employment rights and gets you started down the right path.

As set forth in McGanty v. Staudenraus, 321 Or 535, 557 (1995), there are four (4) elements a former employee must establish to prove that s/he was constructively discharged:

1. The employer intentionally created or maintained specified working conditions;
2. The working conditions were so intolerable that a reasonable person would have resigned;
3. The employer desired to cause the employee to leave or was certain s/he would leave;
4. The employee left as a result of the working conditions.

In many cases, the question is whether the working conditions were “so intolerable” that a reasonable person would have resigned.  Courts have interpreted these elements numerous times and I will try to cover some of these decisions in later blog posts.

Why this is important:
From an evidentiary standpoint, it can be helpful to show whether an employer has or has not been subject to complaints in the past. This can help establish/erode credibility and prove your case. And, if the employer has engaged in unlawful conduct in the past, it can help make it easier to obtain penalty wages. See ORS 652.150.

For more information
U.S. Department of Labor – Click here to read about FOIA requests
Oregon Bureau of Labor and Industries – Call 971-673-0761

What exactly are employees entitled to? Under ORS 652.750(2), the employee can review all records used to determine:

• Qualification for Employment
• Promotions
• Compensation
• Disciplinary Action
• Termination

ORS 652.750(3) requires the employer to keep these records intact and produce them on demand for 60 days following termination of employment. The statute also requires, by implication, that employers keep records available during the course of employment, with a few exceptions.

The employer may charge for the records, but only a reasonable amount to recoup the actual cost of providing the records (photocopy charges, etc.)