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.

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.

E-mail your question about WRONGFUL TERMINATION.

Or call:
Joel W. Christiansen, Attorney at Law
Representing Victims of Wrongful Termination
Phone: 503-928-6750

All contact with our office is strictly confidential.  However, CHRISTIANSEN LAW does not represent you until we agree to do so in writing.

ORS 659A.040, reads (at the time of this post):

It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in [the workers' compensation law] or has given testimony under the provisions of those laws.

If you believe that you have been fired or otherwise discriminated against because you invoked the workers’ compensation law, I would strongly recommend that you contact a lawyer right away.

Wrongful discharge

The term “wrongful discharge” refers to an intentional, independent tort.  In Oregon (and many other states), the legal concept of wrongful discharge is different from discrimination and certain other statutory violations.  The word tort literally translates to wrong.  And therefore, the court in Patton v. J.C. Penney Co. confirmed the general rule for wrongful discharge: To prove a case of wrongful termination, you must prove: (1) the employee was discharged; and (2) the discharge was wrongful.

Element #1 – Discharge

The first issue is proving a discharge.  In many cases, this is simple — the employee was fired.  However, in other cases, the employee is not fired.  Rather, the employee may be forced to resign. Or, the employee may quit because s/he cannot handle the way s/he is being treated.  In these cases, the employee must prove constructive discharge to satisfy the first element of wrongful discharge.  Constructive discharge deserves its own article, and I will link to it here when I have posted it.

Element #2 – Wrongful

The second issue is proving the wrongfulness of the discharge.  This element is often more difficult to prove.  What is “wrongful”?  Oregon courts recognize two ways to prove a discharge was wrongful.  The employee must show that s/he was discharged for either: (1) performing a important societal obligation; or (2) exercising an employment-related right of important public interest.

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.

At-Will Employment – The Starting Point

Oregon is at “at-will” employment state.  This means that as a general rule, Oregon employers may end an employment relationship for any reason or no reason at all.  This rule means that there is no general requirement for Oregon employers to be “nice” to employees.  Absent an agreement, employers are not obligated to keep employees employed.

So what does this mean?  Here is how I explain it:  Any employer action is legal unless there is a contract or law saying the action is illegal.  The obvious next question:  What is an illegal employer action?  There are a number of restrictions on employer conduct.  The following are a few of the restrictions that Christiansen Law handles.

Wrongful Discharge – Societal Obligation or Employment-Related Rights

Wrongful discharge is a tort that allows an employee to recover damages when they are discharged for having (1) performed an important societal obligation or (2) exercised an employment-related right of important public interest.  There is more information about wrongful discharge information available at this link.  If you believe you have been fired for one of these reasons, call a lawyer right away.

Discrimination – Class-Based Protections

With a number of exceptions and quirks, state and federal laws generally prohibit employers from taking employment actions because an employee is part of a protected class.  Some classes that are applicable to employment discrimination laws are: (1) race; (2) religion; (3) color; (4) sex; (5) national origin; (6) marital status; (7) age; (8) family leave inquiry/request; (9) injuries/workers’ compensation application; (10) disability.  If you believe your employer is treating you differently because of your status in one of these classes, call a lawyer.

Retaliation and Whistleblowing

In certain instances, it may be unlawful for your employer to take adverse action against you because you reported wrongdoing or participated in civil or criminal proceedings.  If you believe your employment has retaliated against you for doing so, please call a lawyer.

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.

The OTCA requires that any person asserting a claim against a public body give notice to the public body within a certain time and in a manner that complies with specific statutory requirements.  This time period is very shortly after the first day there has been some discernable injury and the plaintiff has had a reasonable opportunity to discover the injury and the wrongdoer.  The OTCA describes in detail the specific types of notice permitted.

Failure to comply with the OTCA may result in a total loss of claim against the public entity.  Therefore, it is vitally important to strictly comply.  In all cases, I would recommend contacting an attorney to discuss the issue.