Category Archive: Employment Law

  1. Past supervisor may be sued for badmouthing former employee.

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    A former employee may sue a former supervisor for employment retaliation, held Oregon’s Supreme Court yesterday.

    Nicole McLaughlin worked as a medical assistant at Hope Orthopedics.  She applied to graduate business school. A supervising doctor, Dr. Wilson, wrote her a great reference.  Later, the same doctor sexually harassed her, she alleged to the company.  Ms. McLaughlin was accepted into graduate school, and Ms. McLaughlin’s sexual harassment claim was “resolved.”

    The supervising doctor then visited to school admissions to provide more information on his prior reference.  Allegedly, he told admissions Ms. McLaughlin “left her past two jobs by getting large amounts of money and a gag order,” and was concerned about her manipulating male faculty members.

    Ms. McLaughlin sued for defamation and retaliation under the employment law statutes.  The employment law claim is important because it provides for attorney fees if she wins while defamation claims do not provide for attorney fees. The trial court threw out the employment law claim because Dr. Wilson was not the employer at the time.  Ms. McLaughlin won the defamation case.

    Oregon’s Supreme Court held the employment law claim was proper:

    • The law permits suits against a person such as supervisor even though he was not the employer.
    • The law permits claims when the person “otherwise discriminates.”
    • “Other” discrimination “is not strictly limited to acts inside the employment relationship” and certainly extends to retaliation with a connection “to past or future employment.”
    • In this case, the retaliation had a connection with her past employment and relates to Ms. McLaughlin’s “access to future employment through the [MBA] degree she was pursuing.”

    So, the court ruled Ms. McLaughlin and her lawyers were right and the trial judge was wrong.

    I suppose the next step for the parties is to negotiate attorney fees and call it a day.

    Jeff Merrick, Attorney and Mediator

    I help people with employment law and other civil claims.

    The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.

    © 2019 by Jeff Merrick

  2. Nike Case:  Employers cannot launder bias of supervisor through an independent person who fires employee.

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    Today, Oregon’s Supreme Court held that even if the decisionmaker who fired an employee is not biased, the company may be liable for discrimination or retaliation if a biased supervisor influenced or was involved in the termination.

    In Ossanna v. Nike, Inc., Douglas Ossanna had complained about safety issues.  Electricians in the apprenticeship programs were not properly supervised, he said, and caused of electrocutions.  He went through the chain of command, but he saw no action to fix the problems.  Worse, he felt his supervisors took away his chances for advancement because of this complaints.  Later, he was fired, allegedly for using the gym when he was called in during the holidays to open the facility for some other workers.

    Nike delegated firing authority to a person NOT in the chain of command.  That person talked to the supervisor but did not interview Mr. Ossanna.  Hmm. . . .

    At trial, Mr. Ossanna asked the judge to instruct the jury that if the supervisor were biased, and his bias tainted the decision  — “influenced, affected or was involved in the adverse employment decision against plaintiff”– then the jury may find unlawful bias factored into the decision to fire him.  The trial judge refused to read jury instruction on what’s called “cat’s paw.”  Oregon’s Supreme Court said the judge should have read the instruction.

    We call the legal theory “cat’s paw” because a judge who used it in 1990 referred to an old fable:  A monkey gets a cat to pull roasting chestnuts from the fire.  Then, the monkey takes the chestnuts, and the cat is left with burned paws.  Since then, the legal community uses “cat’s paw” to mean one person using another person to accomplish his or her purpose.

    Another cat’s paw example is a supervisor at a fast food restaurant is propositioning a subordinate.  When the subordinate does not submit, the supervisor goes to the owner and gets her fired for some other reason, like showing up late one day.  The owner might not even know that the supervisor was harassing the subordinate.  In fact, the owner’s true motive was not to punish the subordinate for refusing to submit to the supervisor’s sexual demands.  Yet, that was the real reason she was fired.  The cat’s paw fills that gap.

    Ossanna v. Nike, Inc. officially fills that gap for employment discrimination and retaliation claims in Oregon.

    Jeff Merrick, Oregon Litigation Attorney
    I help people with claims against employers.
    ©2019 by Merrick Law, LLC. and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.
  3. Oregon Public Bodies are NOT above Oregon law Protecting Whistle Blowers.

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    Oregon public employers are subject to Oregon laws protecting employees, confirmed the Oregon Court of Appeals last week in Burley v. Clackamas County.

    Galina Burley sued her employer, Clackamas County.  She alleged it retaliated against her for reporting the county improperly used federal grant money.  A jury agreed and awarded her $386,916.  The county said, “Not so fast, we don’t think the law applies to us.”

    One of the laws in question makes it unlawful for an “employer” to retaliate “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.”  ORS 659A.199.  The employee can be wrong about whether the employer broke the law. The employee must only have a good faith belief the employer violated the law.

    The county argued “employer” means private employer only, not public employer.  It pointed to some words in the legislative history suggesting private employees needed this protection.  But the court of appeals said, Read the dang statutes; they’re clear as can be.

    ORS 659A.001 defines “Employer” as “any person” in the state who engages or uses the personal service of one or more employees.  It then defines “person” to include “public body.”  Game over.  Pay the woman.  And now, pay her the additional tens of thousands it cost for the appeal.

    Whether one likes it or not, Oregon public employers must follow state laws that protect whistleblowers.  According to Burley v. Clackamas County, they must follow ALL other employment laws under that whole chapter of the statutes (ORS 659A), which controls so many of the rights of employees.

    Jeff Merrick, Oregon Litigation Attorney
    I help people with claims against government.
    ©2019 by Merrick Law, LLC. and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.
  4. Six Multi-Million Dollar Employment Law Resolutions Last Quarter Announced by EEOC

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    EEOC announced six multi-million dollar employment law settlements or verdicts last quarter, including a jury award of $5.1 million because an employer pushed a self-help “religion” on its employees.  Here’s the count down.

    #6:  University pays $2.66 million and will increase women’s salaries in pay discrimination case.

    EEOC charged the University of Denver paid a class of female full professors at Sturm College of Law lower salaries than it paid similarly situated male professors.  The average disparity was almost $20,000 per year.

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  5. Woman may sue former co-worker for badmouthing her after she left employment.

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    Yesterday, the Oregon Court of Appeals held a woman may sue a surgeon (who allegedly harassed her at work) for defamation AND for retaliation under the employment laws even though surgeon was not her employer.  The employment law claim provides for attorney fees, where a defamation claim does not.  He badmouthed her AFTER both left their place of employment.

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  6. EEOC Resolutions Last Quarter

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    Threatening women not to get pregnant; “maximize longevity” as an excuse to prefer younger applicants; and who paid $9.8 million because it required “no restrictions” before allowing workers back from medical leave?  These were among the 26 resolutions announced last quarter by the Equal Employment Opportunity Commission (EEOC).  I summarize them below. Continue Reading