Although Washington law favors arbitration, the Washington Court of Appeals made clear this week that it will not enforce an arbitration agreement that lacks neutrality. In Rodriguez v. Windemere Real Estate/Wall Street, Inc. a real estate agent sued his brokerage, a franchisee of Windemere Real Estate Services (WRES), for unpaid commissions. The brokerage moved to compel arbitration pursuant to a brokerage/sales associate agreement between the parties that required all disputes to be resolved through arbitration. The agreement entitled WRES to select the three-person arbitration panel from its “family” of owners, brokers, managers and sales associates, all of whom had contractual and financial ties to the company. On these facts, the court found the process lacked neutrality and was, therefore, unenforceable.
New laws affecting Oregon employers that may not have hit your computer screen yet:
HB 2254: Employers who receive a request for a current or former employee's personnel file must now respond within 45 days or face a possible administrative penalty of up to $1,000.
SB 946: Requires employers of six or more employees to provide employees who are victims of domestic violence, sexual assault, or stalking with unpaid leaves of absence to obtain legal or medical assistance or counseling. This law became effective last May, but BOLI's final regulations went into effect on January 1, 2008.
The Oregon minimum wage increased to $7.95.
On January 28, 2008, President Bush signed into law amendments to the Family Medical Leave Act. The amendments grant additional leave under FMLA to employees who have family members in the military. The legislation creates two new categories of FMLA leave:
1) Active Duty Family Leave - Employees with a spouse, parent, or child who is on, or has been called to, active duty in the Armed Forces, may take up to 12 weeks of FMLA leave when they experience a "qualifying exigency."
2) Injured Servicemember Leave - Employees who are the spouse, parent, child or next of kin of a servicemember who incurred a serious injury or illness on active duty in the Armed Forces may take up to 26 weeks of leave in a 12-month period (including regular FMLA leave).
The February 2008 issue of Washington Healthcare News includes an article by blog contributor Kathy Feldman, who practices employment law in the Ater Wynne Seattle office. The article addresses the law governing leave and disability in a leanly staffed medical practice.
We previously alerted readers to San Francisco's attempt to force employers to provide a certain level of health benefits to employees, or to pay a tax to fund the city's public health programs. A Unted States District Court has held that the city ordinance violates ERISA's preemption provision, following a similar outcome in the Fourth Circuit reviewing a Maryland statute.
The Ninth Circuit recently stayed the district court's ruling, allowing the ordinance to become effective pending the Circuit Court's consideration of the appeal addressing the substantive issue of ERISA preemption. It appears the panel thinks that ERISA does not preempt the ordinance; part of the standard for granting the stay is "likely success on the merits." That outcome would create a direct conflict with the Fourth Circuit decision on a very similar statute, suggesting that the Supreme Court will eventually have to resolve conflicting circuit decisions addressing the relationship between ERISA and attempts by local government to fund health care for the uninsured.
For the first time since 2001, the U.S. Supreme Court this term will consider what types of disputes can be heard by Tribal courts. Earlier this month, the Court agreed to review Plains Commerce Bank v. Long Family Land and Cattle Company, a decision by the Eighth Circuit Court of Appeals. The Eighth Circuit held that the Cheyenne River Sioux Tribal Court has jurisdiction over a discrimination action by Tribal members against a non-Indian bank doing business on the reservation. The question presented in the Surpreme Court is "Whether Indian tribal courts have subject matter jurisdiction to adjudicate civil tort claims as an 'other means' of regulating the conduct of a nonmember bank owning fee-land on a reservation that entered into a private commercial agreement with a member owned corporation."
This case could have a dramatic effect on business relations within Indian Country, particularly if the Court takes the opportunity to address a question left unresolved by its last Tribal jurisdiction case, Nevada v. Hicks, in 2001: When does an Indian tribe have adjudicatory jurisdiction over nonmember defendants? The Court's ruling will impact both Indian tribes and those doing business in Indian Country by addressing the ability of non-Indian businesses to be sued under Tribal law in Tribal Court for matters arising out of transactions within Indian Country.
In the latest in a string of rulings favoring business interests, the U.S. Supreme Court held today that parties who did not directly mislead investors cannot be liable for securities fraud under SEC Rule 10b-5. By a 5-3 vote, the court refused to recognize the concept of "scheme liability" as to third parties who participate in a fraudulent scheme but do not themselves issue a false statement.
Oregon's move to "electronic courthouses" (a goal of the 2006 State of the Courts report) continues, with a series of proposed Uniform Trial Court Rules allowing electronic filing and service of circuit court documents. Proposed UTCR Chapter 21 is among the new and amended rules recently recommended by the UTCR committee. The electronic filing protocols used in the United States District Court in Oregon are the model on which Chapter 21 is based. According to the UTCR committee, the proposed rules are a first step toward implementing e-filing on a trial basis in certain counties.
The UTCR Committee is accepting comments on the rules through April 2008.
Litigation is about to get a little more expensive in Oregon. Starting February 1, a filing fee must accompany certain motions and responses to motions in state court. The fees -- $50 for motions and $35 for responses -- apply to filings including Rule 21 motions to dismiss, summary judgment motions, and motions to compel discovery.
House Bill 2331, passed in 2007, authorized these new fees. A committee appointed by Chief Justice Paul DeMuniz determined that the motions subject to the fees are less likely to be used by pro se parties, and tend to require significant judge time.
See a complete list of motions subject to the fees and more details at the Oregon Judicial Department web site.
Oregon greets 2008 with a raft of new legislation. Laws affecting Oregon businesses include an expansion of the family medical leave law under House Bill 2635 to cover grandparents who must care for sick grandchildren. New mothers must be given break time and a private place to express milk at work, per HB 2372. Senate Bill 2 prohibits discrimination based on sexual orientation. Health insurers are now required to include coverage for contraceptives (HB 2700) and for prosthetic and orthotic devices (HB 2517). And HB 2513 makes it unlawful to sell gift cards that expire or have a face value that declines over time with lack of use. See summaries of other new laws in this press release from the legislature.