Scandals involving sexual harassment are nothing new. The televised testimony of Anita Hill at the 1991 senate confirmation hearings on the appointment of Clarence Thomas to the U.S. Supreme Court increased public awareness of the issue when Ms.Hill testified to persistent and graphic instances of sexual harassment she endured while working for Mr.Thomas at the EEOC. Her account was largely dismissed and Justice Thomas’ appointment to the Supreme Court was affirmed by the senate.
Today, we hear almost daily news reports about sexual harassment as bad or worse than what Ms. Hill testified to almost 17 years ago. One has to wonder, how there could be so little progress on the sexual harassment front?
Historically, sexual harassment and sexual assault have been used as a tactic to keep women in their place. Indeed, it has long been recognized that sexual harassment is more often about power than ignorance or lust. It is precisely for this reason that sexual harassment remains rampant, despite laws and processes designed to protect employees from it.
To rid the workplace of sexual harassment, companies need to take a hard look at what they might be doing to perpetuate it. Here are just a few practices that are contributing to the problem:
Most companies have anti-harassment policies and complaint procedures. Clearly, just having a policy and procedure in place is not enough in most cases. Employers need to recognize that ridding the workplace of sexual harassment requires some serious introspection and a willingness to remedy whatever they may be doing to perpetuate the problem.
Ater Wynne's employment group can review your workplace policies and provide training and other solutions to prevent and address workplace harassment.
On July 25, the Department of Labor issued an all agency memorandum announcing an increase in the fringe rate contribution required under the Service Contract Act (SCA). The rate will increase from $4.27 to $4.41 per hour, effective August 1, 2017. The SCA sets prevailing wages and benefits that federal contractors who provide certain services to the federal government must pay to their employees.
The memorandum also reminds federal contractors of their obligations under Executive Order 13706, which requires covered contractors to provide employees with up to 56 hours of paid sick leave annually. Executive Order 13706 applies to new contracts with the federal government arising out of solicitations issued on or after January 1, 2017. Sick leave paid to comply with Executive Order 13706 may not be credited to satisfy contractor obligations under the SCA.
In response to court challenges to the federal overtime rule that was scheduled to go into effect on December 1, 2016, the Department of Labor (DoL) has decided not to advocate for the minimum weekly salary ($913) required by the final rule. Instead, the DoL plans to issue a Request for Information (RFI) to aid in formulating a proposal to revise the current overtime regulations contained in CFR Part 541. In response to President Trump's Executive Order 13777, entitled "Enforcing the Regulatory Reform Agenda," the RFI is directed at reducing regulatory burden. The RFI, which is scheduled to be published on July 26, 2017, asks for comment on the following questions:
Interested employers are encouraged to weigh in on all of these important questions.
The Oregon legislature recently enacted an expanded Equal Pay Act designed to eliminate discriminatory pay practices based on race, color, religion, sex, sexual orientation (as defined in ORS 174.100), national origin, marital status, veteran status, disability, or age.
Section 2 of the Act (amending ORS 652.220) prohibits discrimination in the payment of compensation based on protected class for work of "comparable character," defined as work requiring “substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title.” To insure that employers do not perpetuate the effect of other employers' past discriminatory pay practices, the law precludes employers from screening applicants based on current or past compensation, determining compensation for a position based on an applicant’s current or past compensation, or seeking a salary history of an applicant until an offer of employment has been made.
Differentials in pay for work of comparable character are permissible only when they are based solely on one or more of the following factors: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality of production, including piece-rate work; (4) workplace locations; (5) travel, if travel is necessary and regular for the employee; (6) education; (7) training; and (8) experience. Amounts owed to an employee because of the failure of the employer to comply with the Act are defined as “unpaid wages.”
Individuals may address violations of Section 2 by filing a complaint with the Commissioner of BOLI under ORS 659A.820, a civil action under ORS 652.230, or a civil action under 659A.885. Violations of Section 4 of the Act, which makes it unlawful under Chapter 659A to request a salary history of an applicant, may also be addressed under ORS 659A.885. Each of these options affords a prevailing plaintiff a different remedy:
The potential ramifications of Oregon’s Equal Pay Act are significant. An employer’s inability to substantiate a pay differential based exclusively on permissible factors may be sufficient to establish liability without the need to prove discriminatory intent. This means that employers who have never intentionally discriminated, but historically set compensation by relying on salary history or other factors made impermissible under the Act could face monumental financial exposure. Employers may not reduce the compensation of an employee to comply with their obligations under Section 2, so employers who wish to correct the results of past practices will presumably need to raise salaries of all of the employees who were negatively impacted. Also, it is unclear whether a violation of ORS 652.220 may also result in a late payment penalty under Oregon’s final pay law, or whether an individual must elect between the available statutory remedies.
The good news is that employers who want to get ahead of this issue have some time to comply. The prohibition on requesting salary histories of applicants goes into effect 91 days after the end of the current legislative session, but the private right of action to enforce it does not go into effect until January 1, 2024. The rest of the Act's provisions go into effect on January 1, 2019.
Employers who need help analyzing their pay practices and complying with the Equal Pay Act may contact Ater Wynne's employment group for assistance.
Earlier this week, in Matal v. Tam, the United States Supreme Court unanimously ruled in favor of Portland-based rock band, the Slants, finding that the section of the Lanham Act banning offensive trademarks was an unconstitutional restraint on free speech.
Slants founder Simon Tam attempted to trademark the band's name in 2011, but the U.S. Patent and Trademark Office denied the request pursuant to 15 U.S.C. § 1052(a), the section of the Lanham Act that bans offensive or disparaging trademarks. The band members, who are Asian-American, selected the name to reclaim the derogatory term and to drain its denigrating force.
The Lanham Act contains provisions that bar certain trademarks, including 15 U.S.C. § 1052(a) (the disparagement clause), which prohibits the registration of a trademark "which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." When determining whether a trademark is disparaging, an examiner at the PTO applies a two-part test -- first, considering the likely meaning of the trademark, and second, considering whether a substantial composite of persons find the term offensive. Mr. Tam argued that the disparagement clause violated the Free Speech Clause of the First Amendment.
The Government argued that the disparagement clause did not violate the Free Speech Clause because: (1) trademarks are government speech, not private speech; (2) trademarks are a form of government subsidy; and (3) the constitutionality of the disparagement clause should be tested under a new "government-program" doctrine. The Supreme Court rejected all three arguments, and ultimately concluded that the disparagement clause was the "essence of viewpoint discrimination," as it reflects the Government's interest in preventing speech expressing offensive ideas.
Yesterday, the U.S. Supreme Court issued an 8-0 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC that should put an end to “patent trolls” filing lawsuits in “friendly” venues of their choosing.
Patent trolls are individuals and companies that profit from suing over patents, instead of using their patents to make products. Trolls consistently file lawsuits in the most plaintiff/troll-friendly courts they can find, such as the rural Eastern District of Texas. The Supreme Court’s decision could save the companies targeted by patent trolls millions of dollars per year in fees spent litigating patent disputes in jurisdictions that are far away from where those companies are headquartered or incorporated.
In rendering its decision, the Supreme Court construed the word “resides” in 28 U.S.C. § 1400(b), the venue statute for patent lawsuits, to require plaintiffs to file patent claims in the state where the defendant is incorporated. Before Kraft, patent trolls were able to file lawsuits wherever the defendant could be subject to personal jurisdiction, which effectively allowed trolls to subject companies to the jurisdiction of courts in states where they merely sold a minimal number of products.
Now that patent trolls are required to sue companies in less friendly jurisdictions, oftentimes where the companies are located and their employees live, they may think twice before filing a lawsuit.
Earlier this week, the US Supreme Court again invoked the federal policy of enforcing arbitration agreements. The Court reversed a Kentucky state court opinion holding that an arbitration agreement is unenforceable if it is signed by an individual with power of attorney, unless the power of attorney expressly authorizes waiver of the right to a jury trial.
In Kindred Nursing Centers LP v. Clark, two individuals who had power of attorney for their elderly relatives signed paperwork to move the relatives into a nursing home. The paperwork included an agreement to arbitrate any disputes. When the relatives later sued claiming substandard care, the nursing home moved to dismiss, citing the arbitration clause. The Kentucky Supreme Court observed that the state constitution declares the right of access to the court and trial by jury to be “sacred” and “inviolate.” On that basis, the Kentucky court held that an agent – in this case, a person with a power of attorney – cannot deprive her principal of such rights unless it is expressly so provided in the power of attorney.
On review, Justice Kagan, writing for the majority, stated that the Federal Arbitration Act (FAA) requires courts to place arbitration agreements on an equal footing with all other contracts. Regardless of whether access to court and right to trial by jury are given special status by the state constitution, the Kentucky court’s ruling would impermissibly put arbitration agreements on a different footing than other contracts entered into pursuant to a power of attorney. On that basis, the lower court’s holding was reversed.
The Defend Trade Secrets Act (DTSA) provides an important tool for protecting trade secrets from misappropriation by affording owners a federal right of action for misappropriation of trade secrets related to a product or service used, or intended for use in interstate or foreign commerce. The DTSA provides a variety of remedies that track those available under state uniform trade secret statutes, such as actual damages, damages for unjust enrichment, royalties, injunctive and exemplary relief, and attorney fees.
However, the DTSA differs from uniform state laws in some significant respects. The DTSA provides, in extraordinary circumstances, for the ex parte seizure of property to prevent the propagation or dissemination of the trade secret. The DTSA further expands trade secret protection by enabling trade secret owners to seek nationwide relief, without preempting state law remedies. Another significant feature of the DTSA is the immunity from criminal and civil liability it provides to whistleblowers who comply with the Act's reporting provisions.
Employers are required to notify employees and contractors who are subject to confidentiality agreements of the DTSA's immunity provisions. An employer may comply by including the notice in the confidentiality agreement, or by including a cross-reference to a policy document provided to the employee that sets forth the employer's reporting policy for suspected violations of the law. An employer that fails to comply with the notice requirement may not be awarded exemplary damages or attorney fees in an action under the DTSA. The statute applies to contracts governing confidentiality entered into on or after May 11, 2016.
Confidentiality provisions are commonly included in employment and independent contractor agreements, confidentiality/proprietary rights agreements, noncompete and nonsolicitation agreements, and in separation/release agreements, among other employment documents. Employers who have written contracts with employees or contractors entered into on or after May 11, 2016, containing confidentiality obligations should consider adding the DTSA disclosure and perhaps also reviewing their handbook.
Employers may contact Ater Wynne's employment group for assistance with DTSA compliance.
We recently reported on BOLI 's new guidance overturning its long-standing interpretation of ORS 652.020, Oregon's overtime rule applicable to manufacturing establishments. The Oregon Legislature has now weighed in on this issue.
Under ORS 652.020, nonexempt employees working in mills, factories, and manufacturing establishments must be paid overtime for hours worked in excess of 10 in any day and hours worked in excess of 40 per week. BOLI's prior interpretation of that rule required employers to calculate overtime hours worked on both a daily and weekly basis and pay the greater of the two. Under the new guidance, employers are required to pay both daily and weekly overtime.
The revised BOLI guidance has raised many questions. Not only has BOLI done an about-face, the timing of the new guidance is puzzling as the interpretation of the manufacturing overtime rule is the subject of a pending class action filed in Multnomah County Circuit Court, which is likely to resolve the issue.
In an attempt to address the uncertainty created by the new guidance in the manufacturing sector, the Oregon Legislature introduced a bill last Thursday to put the issue to rest. Under SB 984, manufacturers would only be required to pay the greater of the daily or weekly overtime.
Ater Wynne's employment group is available to answer questions regarding the application of the manufacturing overtime rule and other wage and hour concerns.
On January 30, 2017, the House Judiciary Committee received two bills that could have a significant impact on litigators and their clients. One bill seeks to impose mandatory penalties on lawyers, law firms, and parties who file frivolous lawsuits. The other bill seeks to prevent fraudulent joinder of parties and prevent plaintiffs from adding defendants solely for the purpose of destroying federal jurisdiction, only to drop those defendants later.
The Lawsuit Abuse and Reduction Act, H.R. 720, would amend FRCP 11 to require judges to sanction attorneys, law firms, or parties who file frivolous pleadings. The mandatory sanction under the new rule would require parties to pay costs and attorneys’ fees. The rule would also give the court broad discretion to impose a variety of other sanctions, including striking pleadings, dismissing the lawsuit, and requiring that a party pay a penalty to the court. Further, the amendment would eliminate a party’s ability to avoid sanctions by voluntarily withdrawing claims within 21 days. The House Judiciary Committee already voted 17-6 in favor of H.R. 720. If it is passed, it will likely cause a substantial decrease in lawyers asserting frivolous claims, as they will have to consider the possibility of mandatory sanctions.
The Innocent Party Protection Act, H.R. 725, seeks to prevent small businesses from being subject to fraudulent joinder. The bill seeks to protect these small businesses by allowing judges more discretion to see through an attorneys’ motives for naming a party and dismiss a party that was fraudulently joined in a lawsuit. The House Judiciary Committee already voted 17-4 in favor of H.R. 725. If it is passed, it may help protect small businesses from the hardship caused by paying attorneys’ fees in a lawsuit in which the business should have never been involved in the first place.