My office routinely reviews EEOC and BOLI files.  In most cases, I suggest having an attorney review the status of an administrative investigation before any findings are issued.  There are some cases where it is advantageous to close the administrative investigation before the agency has a chance to finalize its findings.  This is a rather complex analysis and is something that needs to be considered on a case-by-case basis.

In the lawsuit I mentioned above, which was filed against a Kansas-based staffing agency called Spencer Reed Group, a 55-year-old Caucasian female employee was subjected to differential treatment by her younger male African American supervisor.  The employee submitted a complaint and was fired one day later.

There is not enough information to remark on the strength of the employee’s actual discrimination claims.  However, it appears that retaliation is a real problem for the employer in this case.  Even if the employee cannot prove she was subject to discrimination, there is no getting around the fact that the employer fired the employee within 24 hours of receiving a complaint.  The timing of the discharge is very problematic and is likely to overshadow whatever legitimate, non-discriminatory ground for termination the employer will allege.

This case is also a great example of why the new Oregon whistleblowing law is so important.  H.B. 3162, which was signed by the governor on June 24, 2009, prohibits retaliation against employees for good faith reports of information an employees believes to be evidence of unlawful activity.  (Read bill here).  The law applies to actions filed on or after January 1, 2010, which means that retaliatory conduct occurring any time after January 1, 2009 could theoretically be subject to this new law.   Retaliation has been prohibited in various forms under the Oregon common-law for some time.  See e.g., Galenbeck v. Newman & Newman, Inc., 2004 US Dist LEXIS 9249 at **21-25 (D. Or. May 14, 2004); McGanty v. Staudenraus, 321 Or. 532 (1995); Goodlette v. LTM, Inc., 128 Or. App. 62,65 (1994).  However, the new law will alleviate the need for employees to navigate the nuances of a wrongful discharge claim.

Here is the pertinent text of the new law:

It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.

***PLEASE NOTE:  The Oregon Whistleblowing Statute was amended effective Jan. 1, 2010.  This article is outdated.

Employment whistleblowing provisions are scattered throughout Oregon statutory and common law.  Likewise, your employment contract or employment policies may protect you from disclosing an employer’s wrongful conduct.  However, the main whistleblowing statute is codified at ORS 659A.230(1), which reads:

It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported criminal activity by any person, has in good faith caused a complainant’s information or complaint to be filed against any person, has in good faith cooperated with any law enforcement agency conducting a criminal investigation, has in good faith brought a civil proceeding against an employer or has testified in good faith at a civil proceeding or criminal trial.

This statute protects reports of criminal activity and participation in civil proceedings against an employer.

I disagree wholeheartedly with Lawrence Z. Lorber’s quote that “[p]eople take legal action out of desperation as it becomes more difficult to find new employment”.  Instead, I think people take legal action because they feel a sense of injustice for the way they were treated and want to investigate whether they may have been subject to unlawful employment practices.  From my perspective as a plaintiff’s lawyer, I would say, “companies take illegal actions out of desperation as it becomes more difficult for them to fulfill their moral obligations to employees.”

This all said, I still believe that plaintiff and defense attorneys need to be particularly mindful of the realities of the cases they are handling.  Cases will not be won or lost on the current status of the economy.  Instead, cases will be won or lost depending on whether the employer violated applicable employment laws during the statutory period.

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.

One example is Anderson v. Evergreen International Airlines, Inc., 131 Or App 726, 734, 886 P2d 1068 (1994).  In that case, an airline company employee refused to violate FAA safety regulations and refused to cover-up the company’s past violations.  The employee was then fired.  The court found that the employee’s refusals were the full or partial cause of his termination and that the termination was unlawful.

Bottom line: Employees should not allow employers to coerce them into breaking laws or acting unlawfully.  If such employees are fired for standing up to illegalities, the law has protections the employee can take advantage of.

• Employment contractual rights (severance, commission, bonus, vacation/holiday pay, continued employment)
• Wrongful discharge (in violation of public policy)
• Tort issues (emotional distress, fraud, etc.)
• Wage issues (final wages, overtime, minimum wages, deductions, unpaid wages)
• Retaliation
• Discrimination
• Unemployment
• Workers’ Compensation
• Personnel Records
• Statutes of Limitation
  

This list is not exhaustive, but is intended to show one thing:  ending employment is a complicated matter.  For employers, a termination of employment is when most liability issues come to a head.  And for employees, being fired is a stressful time where one’s financial future comes into question.  At any rate, the situation is one that requires attention.  As always, I highly recommend talking to a lawyer if and whenever dealing with a termination of employment situation.  Termination of employment involves certain rights and even if nothing is wrong with the termination, it can be helpful to understand the rights involved.

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