WHAT EVERY CHIEF SHOULD KNOW ABOUT LABOR AND EMPLOYMENT LAW 2016

WHAT EVERY CHIEF SHOULD KNOW ABOUT LABOR AND EMPLOYMENT LAW 2016 Annual Conference April 11 – 15, 2016 Kathy Peck Peck Rubanoff & Hatfield PC [email protected]

EMPLOYMENT LAW DANGER ZONES p ro c e e d w i t h c a u t i o n 2

VETERAN’S PREFERENCE Oregon public employers are required to grant a preference to veterans and disabled veterans when: hiring or promoting decisions are made based on a merit based competitive process ORS 408.230; OAR 839-006-0435 through OAR 839-006-0480 5 points for veterans 10 points for disabled veterans 3

Veteran’s preference points must be added at each ”stage” of the hiring or promotion process that is competitive! BOLI’s informal enforcement posture is that a “stage” means any time candidates are eliminated through a competitive process. 4

What about the “Chief’s Interview” stage are veteran’s preference points required at that stage? YES – if more than one applicant or candidate for promotion is being considered [elimination]. NO – if only one applicant or candidate for promotion is being considered for approval 5

Do veterans preference points have to be granted for premium pay assignments? has declined to answer that question Although the administrative regulations suggest the answer is “no,” no clear guidance has been issued. Veterans preference only applies to hiring and promotion and “promotion” is defined as: “any position with a higher maximum salary rate” OAR 839-006-0440(8) Watch your words. Always refer to premium pay assignments 6 as “assignments.”

DANGER ZONE PERILS AND PITFALLS ARISING FROM DUE PROCESS OBLIGATIONS Due process is required before an employee can be deprived of a PROPERTY or LIBERTY interest in their job 7

PROPERTY INTERESTS ARISE FROM 1. CONTRACTS: Collective Bargaining Agreements and Individual Employment Agreements with “just cause” or other protections that give rise to “legitimate claims of entitlement” 2. POLICIES: Department and employer-wide policies that provide “just cause” or other such protections. 3. STATUTES: Statutes that provide “just cause”

DUE PROCESS OBLIGATIONS As you know before an employee can be deprived of property ( ), the employee must be given: Notice of charges Notice of sanctions being considered Opportunity to be heard (a “Loudermill Hearing”)

BUT THERE ARE LESSER KNOWN DUE PROCESS TROUBLE SPOTS Check your policies. Some Lexipol policies include the statement: “No member of the department will be terminated without just cause” This creates a “property” interest for probationary employees and reservists, as well as non-representeds. Harmonize policies with CBA. Revise and reissue if your policy is not what you intend.

DUE PROCESS TROUBLESPOTS Due process is required before an employee is removed from a premium pay assignment for conduct or performance reasons. NOT just for terminations, suspensions and demotions. Notice of contemplated action does not mean “discipline up to and including discharge” Although more than one contemplated action can be listed in due process notice, be specific.

DUE PROCESS TROUBLESPOTS When a “just cause” employee is not subject to CBA grievance/arbitration, more is required at the Loudermill hearing. In Oregon, pre-termination and posttermination processes are viewed together to determine whether a violation has occurred. Maddox v. Clackamas County School District, 293 Or 27 (1982) In these situations, expand normal due process rights. Invite personal attorneys and representatives. Inform employee of willingness to make employer witnesses available for questioning, as well as to hear from employee witnesses.

DUE PROCESS TROUBLESPOTS Remember the decision-maker must preside over the Loudermill. Always record Loudermills (as well as witness interviews)

DUE PROCESS TROUBLESPOTS If an employee tells a lie in a Loudermill and you want to use that, lie to terminate, a second Loudermill may be required. Is it a “new” lie? Do you intend to use that “new” lie to terminate? If “yes” a 2nd Loudermill is required.

The principle statute which creates due process property rights is ORS 236.650. This statute grants “just cause” rights to public safety officers after 12 months probation. EXCEPTION S: Officers covered by a CBA that provides safeguards “of the sort of” Supervisors as defined by PECBA (ORS 243.650)

DUE PROCESS TROUBLESPOTS BUT, that is not the only statute which creates “just cause” property rights. Under USERRA, employee who return from active military leave cannot be terminated without “just cause” for 1 year from the date they return to work. For military reservists – 6 months.

DEPRIVATION OF A “LIBERTY INTEREST” A name-clearing hearing is required before information that damages an employee’s reputation can be “published.” Applies to probationary employees and other employees who are not protected by “just cause” (temporary employees, etc.)

NAME CLEARING HEARINGS Examples of statements that damage reputation and trigger obligation to provide a name-clearing hearing: Dishonesty Theft Unethical conduct Unlawful conduct (including harassment or sexual misconduct” Psychological imbalance/mental unfitness ANYTHING THAT INVOLVES MORAL TURPITUDE

THE FOLLOWING MUST EXIST BEFORE A NAME-CLEARING HEARING IS REQUIRED: 1. Termination of Employment. (Includes forced resignation, failure to allow employee to rescind resignation and failure to rehire.) 2. Stigmatizing statement that could impair the employee’s reputation for honesty and morality 3. Connection between termination and stigmatizing statement 4. Employee disputes the charges If 1 – 4 exist, a name clearing hearing is required before “publication”

NAME CLEARING HEARINGS “PUBLICATION” MAY TAKE MANY FORMS: Press release Disclosure to Oregon Employment Department for purpose of unemployment benefits processing and appeals Verbal statements in public meeting Letter from attorney threatening legal claims, referenced in public meeting Reference check statements to a prospective employer DOES NOT INCLUDE MERE PLACEMENT IN PERSONNEL FILE OR DPSST REPORTING

When does a name clearing hearing need to take place? Generally the opportunity can occur after termination, but it must occur before the information is publicized. BEST PRACTICE: Offer the opportunity for a name clearing hearing – notice of contemplated reasons for termination and a meaningful opportunity to refute BEFORE termination. WHY? Fairness

ASIDE FROM FAIRNESS Why is compliance with name-clearing obligations important? THE FETSCH DECISION Employee who allegedly had an affair with a coworker and allegedly tried to get a subordinate to keep things secret was pressured to resign. The employee’s requests for a meeting to clear his name were denied. Information regarding accusations was later shared with the media and a prospective employer. The employee filed a lawsuit for deprivation of his “liberty interest” (damage to reputation) without due process.

WHAT HAPPENED? Employee won HOW MUCH? 750,000 plus attorney fees (over 1,000,000) 23

OTHER ”DUE PROCESS” TROUBLESPOTS Avoiding the “Bermuda Triangle” DECISION MAKER WITNES S INVESTIGATOR 24

THE “BERMUDA TRIANGLE” Due process violations can occur when the same person(s) serves more than one role. All 3 roles VIOLATION Investigator & Witness VIOLATION Investigators can become witnesses if they don’t tape record witness interviews (including off-the-record substantive conversations before/after taping) CONSIDER: What would happen if there is a conflict 25

THE “BERMUDA TRIANGLE” Investigator & Decision Maker VIOLATION ONLY IF BIAS/LACK OF OBJECTIVITY IS PROVEN Witness & Decision Maker VIOLATION ONLY IF BIAS/LACK OF OBJECTIVITY IS PROVEN Arbitrators also apply these principles to determine whether “just cause” exists. 26

EMPLOYEE RIGHTS UNDER PECBA: WHAT CONSTITUTES A VIOLATION? It is an unfair labor practice (ULP) for a public employer to “interfere with, restrain, or coerce employees in or because of the exercise of rights guaranteed under PECBA ORS 243.662.” There are two prongs to this prohibition: 1. Discrimination “in” the exercise of protected rights; and 2. Discrimination “because” of the exercise of protected rights. “In” prong violations are easy to commit 27

VIOLATIONS OF THE “IN” PRONG To establish a violation of the “in” prong, the test is simply whether the “natural and probable effect” of the employer’s actions, judged under the totality of the circumstances, would tend to interfere with the employee’s exercise of protected rights. Oregon Public Employees Union v. Malheur County, 10 PECBR No proof of bad motive required 514 (1088). No proof of actual coercive impact on the employee is required Truthfulness is no defense Violations found if employer’s conduct, when viewed objectively, would tend to deter employees (in general) from exercising 28 PECBA rights

EXAMPLES OF “In Prong” VIOLATIONS it takes very little. Recommending or attempting to influence the selection of union representatives Criticizing an employee for actions taken as a union representative Making comments in performance evaluations that suggest union activities played a role in entries Criticizing an employee for contacting the union Making a statement that the positive aspects of the relationship between employees and management could deteriorate if grievances were filed Making negative comments about union representatives 29

What about negative comments made by union representatives about management? Does the same rule apply? 30

NO. The “I’m wearing my union steward’s hat” rule applies. ERB grants significant leniency to union representatives who are engaging in union activity. This leniency allows those who are “wearing the hat” to swear, yell and engage in conduct that would not otherwise be 31 acceptable, as long as their hat is on.

EXAMPLE: Trooper calling superintendent an “uneducated moron” not protected . but only because the comment was not connected to union activity. 32

PECBA TROUBLESPOTS: THE THYFAULT CASE FACTS: Complaint about a teacher spanking a student. Evidence that teacher tried to get aides to give false statements about what happened. School district responded by ordering teacher not to discuss the charges with staff, parents and students and threatened discipline for failure to obey order. Teacher and Union filed ULP with Employment Relations Board 33

PECBA TROUBLESPOTS: THE THYFAULT CASE ISSUE HOLDING Does the employee’s right to participate in the activities of a labor organization include the right to participate in the investigation? Yes. Violation of PECBA because the order had the “natural and probative effect” of interfering with protected union activity. Thyfault v. Pendleton School District 13 PECBR 275, aff’d without opinion 116 Or App 675 (1992) 34

POST-THYFAULT TIPS Replace “no contact” directives in Notices of Investigation and/or Paid Leave with more limited directives. “You are directed to refrain from engaging in conduct that could intimidate or influence the willingness of a witness or complainant to provide information regarding the matters being investigated.” “Any threatening menacing or retaliatory behavior against any witness or person who assists in bringing this complaint to our attention is strictly prohibited. 35

POST-THYFAULT TIPS CONSIDER “These directives are not intended to limit you from participating in the investigation. However, to avoid claims of intimidation, improper influence or retaliation, we strongly encourage you to consult with your association representatives and/or association attorney regarding your involvement in the investigation.” In addition to honesty, availability and other directives. 36

WHISTLEBLOWER RETALIATION CLAIMS limitless opportunities to be sued WHAT’S UNLAWFUL? ORS 659A.199 It’s unlawful for an employer (public or private) to discharge, demote, suspend, or in any way discriminate or retaliate against an employee because the employee has in good faith reported information that he/she believes is a violation of state or federal laws, rules or regulations. 37

WHISTLEBLOWER RETALIATION ORS 659A.203 It’s unlawful for a public employer to prohibit an employee from disclosing or to take or threaten to take disciplinary action against an employee for disclosing information the employee reasonably believes is evidence of: a violation of federal or state laws, rule or regulation by a governmental agency mismanagement, gross waste of funds abuse of authority a substantial and specific danger to the public IT IS ALSO UNLAWFUL TO PROHIBIT AN EMPLOYEE FROM health and MATTERS safety WITH LEGISLATIVE COMMITTEES. DISCUSSING 38

What does “mismanagement” mean? “Protected disclosures of ‘mismanagement’ are limited to disclosures of information similar in magnitude to the other listed categories.” Such disclosures do not include: Routine complaints about policies that employers must follow OR Practices that employees don’t like “ the legislature intended ‘mismanagement’ to refer to serious agency misconduct having the effect of actually or potentially undermining the agency’s ability to fulfill its public mission.” Hall v. State of Oregon 274 Or App 445 (2015) 39

WHISTLEBLOWER RETALIATION This is not about whether an employee is right or wrong. An employee can be totally wrong and still be entitled to protection. DIFFERENT STANDARDS ORS 659A.199 – Disclosures protected if made in subjective good faith ORS 659A.203 – Disclosures protected if employee had an objectively reasonable belief 40

WHISTLEBLOWER RETALIATION ORS 659A.203 does not prohibit disciplinary action against an employee if: the information disclosed is known by the employee to be false OR the employee discloses the information with reckless disregard for its truth or falsity OR the information disclosed relates to the employee’s own violations, mismanagement, gross waste of 41 funds, etc

IN ADDITION Public employees are entitled to free speech rights, including the right as a citizen to speak on matters of public concern and cannot be discharged or retaliated against for exercising free speech rights. When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. 42 Garcetti v. Ceballos

EXAMPLES OF PROTECTED SPEECH Making critical comments about the Reagan administration to a co-worker Criticizing a department head’s practices to the city council Writing to a judge about the incompetence of public law enforcement officials Making statements to media about how firefighters and police had performed 43 their duties

EXAMPLES OF UNPROTECTED SPEECH Employee’s statements rebutting claims of ineptitude (personal interest) Circulating petition protesting no-beard requirement/employees wearing respirators (no public interest (only interested in his own beard) Writing memo about misconduct during investigation (written pursuant to job duties) MIXED SPEECH – FIRST AMENDMENT PROTECTIONS APPLY 44

WHERE DOES THAT LEAD Whistleblowing protections are very broad Abuse Of Authority Commentin g on a Matter of Public Interest Reporting Violation Of Any Law Vulnerabl e To Abuse Reporting "Mismanageme nt” “Gross” Waste Of Funds and seldom dismissed on summary judgment 45

FURTHERMORE “Chain of Command” rules do not apply and cannot be enforced. No employee can even be required to give notice to a public employer before disclosing mismanagement, gross waste of funds, etc. to the media or others. OAR 839-010-0050 “Conduct Unbecoming” and other rules aimed at building positive working relationships do not apply and cannot be enforced. 46

AND TO MAKE THINGS MORE COMPLICATED Public employers cannot identify the employee who “whistleblows” during any investigation of the information he/she provided without written consent. Supervisors and managers cannot identify the employee who “whistleblows” to the employee accused. DISTINGUISH Complainant (do not identify) Witnesses who are also complainants (only identify as witnesses) 47

TIPS FOR MANAGING WHISTLEBLOWERS Take the high road. Respect their right to engage in whistleblowing. Conduct thorough, prompt and objective investigations of all whistleblowing claims Extra care on selection of investigator Do not make “loose lip” comments that are critical of a whistleblower’s message and/or failure to take steps to address issues internally Train your supervisors to do the same 48

Alert supervisors and manages who become aware of a whistleblower’s identity to refrain from disclosure If a whistleblower self discloses his/her identity, issue an email to other employees notifying them that the whistleblower has the right to disclose. Remind them of their obligation to respect that right. Tell them the concerns raised will be investigated. 49

OTHER “LOOSE LIP” MISTAKES Comments that indicate you have already made your mind up to discharge, suspend, demote before due process obligations are satisfied Comments that can be used to establish gender, racial, ethnic, religious, etc. bias stereotyping. even i made jokingly “venting” comments made in frustration that reveal unlawful motive and can’t be proven to be true 50

EXAMPLES OF “LOOSE LIP” MISTAKES EXAMPLES ”She was a great employee whenever she was at work. The problem is she’s always getting pregnant.” [reference check to caller] “If she can’t handle a dirty joke, how in the world is she going to be a cop?” 51

“I swear, if he files one more comp claim, I’m gonna nail him.” [manager to manager] 52

TIPS TO FOLLOW Remember that the standard for whether a communication can be kept confidential is not loyalty or common interest. IT IS LEGAL PRIVILEGE Is the communication with your doctor, attorney, minister, counselor, priest, or another you have a legal privilege with? There is no such thing as an “off the record” conversation with another supervisor or manager Legal privilege protections also do not apply to communications with workers compensation insurance representatives, outside HR or business consultants Same rule applies to emails, texts and social 53 networking

DISABILITY DISCRIMINATION TRAPS An applicant/employee is disabled if he/she: Has a physical or mental impairment that substantially limits a “major life activity”; Has a record of such an impairment; or Is regarded as having such an impairment. even if none exists. Many “regarded as” cases are filed because supervisors don’t know how to handle situations where an employee’s unsatisfactory performance or misconduct may be caused by a medical condition that 54

TIPS TO FOLLOW: Never speculate about an employee’s performance deficiencies or unacceptable conduct being cause by a physical or mental condition. Focus on the employee’s conduct not physical or mental traits. If the employee tells you that a physical or mental condition is causing or contributing to performance deficiencies or unacceptable conduct OR You have a genuine reason to believe that may be true, GET HELP (HR). THE GAMBINI DILEMMA 55

THE GAMBINI DILEMMA ARISES WHEN EMPLOYEE BLAMES UNSATISFACTORY PERFORMANCE OR CONDUCT ON A MEDICAL CONDITION. FACTS OF CASE: Outbursts of temper from bipolar employee. Employee argued outbursts are symptomatic of disability and that the discharge because of outbursts should therefore be unlawful. 9th Circuit Holding (Jury Instruction) “An employer cannot fire an employee for poor job performance if the job performance was due to a mental [or physical] disability and reasonable accommodation plausibly would have rectified the Ramifications: Mandates interactive process step as a prerequisite to performance problem.” discipline whenever an employer (or employer agent) knows or thinks a disability may be causing the problem. 56

FITNESS FOR DUTY EXAMS any troublespots? 57

PRE-HIRE Physical and psychological exams can be conducted only after a conditional job offer has been made [offering job conditioned upon satisfactory completion of physical and psych] In addition, physicals and psychological exams must be the final and only step of the hiring process Leonel v. American Airlines th 400 F.3d 702 (9th Cir.2004) 58

POST-HIRE The general rule is that employees may be required to undergo a fitness-for-duty examination when employers have a good faith concern regarding whether they can perform the essential functions of the job [ADA Standard] Fitness-for-duty exams and medical inquiries must be tailored to address the areas of concern only. The focus of medical exams and inquiries must be placed on the employee’s current medical limitations. No diagnosis, family 59 history or genetic information.

Use tailored/current limitations medical questionnaires Obtain written authorization to release [EXCEPTION: Workers Compensation] 60

OFLA/FMLA (Medical Leave Limitations) When an employee is returning to work from OFLA and/or FMLA leave (before their leave has expired) all that can be required is a simple statement of release [John Doe is released to return to work on June 1st]. From the employee’s health care provider*. Employee must be returned to work without delay. *Health care provider is defined to include a long list of medical professionals, not just doctors. 61

THE “NO DELAY RULE” APPLIES Whenever an employee presents a release to return to work before the expiration of FMLA/OFLA leave (including the last day), he/she must be returned to work WITHOUT DELAY REGARDLESS of how legitimate management safety concerns may be. 62

Return must be to the same job Conditioning or delaying return to work on a release from employerselected doctor is not allowed. The same rule does not apply after expiration of OFLA/FMLA leave. At that point, employer can make good faith inquiries and delay employee’s return to work pending receipt [ADA Standard]. 63

COMPLIANCE TIPS balancing the risks If you have concerns about an employee’s fitnessfor-duty and the employee has not triggered OFLA/FMLA protections (i.e. is not asking for time off or claiming inability to do the job) PLACE THE EMPLOYEE ON PAID LEAVE [ADA Standard applies] NO DEDUCTION FROM PAID LEAVE BANKS Employee returns to same status vis-à-vis under investigation, paid leave pending, etc. 64

LAST BUT NOT LEAST Do everything you can to hire applicants who will be good employees honest employees Review personal history questionnaires. Are there any gaps? EXAMPLE: PHQ asks only if the applicant has been “arrested, detained, or pled guilty or no contest to assault or domestic violence.” Applicant was investigated by OSP for rape, but never charged. Applicant answers “no” because question was too narrow. Add: “Have you ever been investigated by a law enforcement agency for potentially criminal activity?” 65

WIRING YOUR HIRING EXAMPLE: Applicant does not disclose a previous employer on the application then claims he was not misleading because he disclosed it to the background investigator or Chief of Police. Add: “I understand that any oral disclosures do not affect my obligation to provide complete and accurate information on this application and all other hiring questionnaires and documents.” 66

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