Stephen L. Brishchetto

• Stephen L. Brischetto, Attorney at Law (1990-present)

• Partner, Baldwin & Brischetto (1983-1990)

• Director, Oregon Developmental Disabilities Advocacy Center (1980-1983) 

• Staff Attorney, Oregon Developmental Disabilities Advocacy Center (1978-1980)

• Staff Attorney, Legal Services Program of Northern Indiana (1977-1980)

• Recipient of Reginald Heber Smith Fellowship from Howard University (1977-1980) 

• Notre Dame Law School, J.D. (1977)

• University of Notre Dame, B.A. (1974)

email | slb@brischettolaw.com

phone | (503) 223-5814

fax | (503) 256-4197

When is a termination a "wrongful discharge?" 

Wrongful discharge is one of the exceptions to the employment at will doctrine under Oregon law. Generally, the Oregon courts have held that an employee may have a claim for a wrongful discharge when the employer terminates the employee for a "socially undesirable motive." The Oregon courts have identified two general categories of undesirable motives which will be sufficient to state a claim for wrongful discharge: (1) if the employer terminates the employee for exercising rights of public importance related to the employee's role as an employee; or (2) if the employer terminates the employee for fulfilling important societal duties. An example of an employee "exercising rights of public importance related to the employee's role as an employee" is a situation where an employee complains of sexual harassment or racial discrimination and is terminated for making the complaint. An example of "fulfilling important societal duties" is a situation where an employee is absent from work for jury duty and the employer fires the employee in response. Whether a specific factual situation fits within the definition of a wrongful discharge is a complex area of law and clients who have concerns about the propriety of a termination should consult an attorney knowledgeable about this area of law.

What does employment "at will" mean? 

In general, employment in Oregon is "at will." The "at will" employment rule generally means that an employer is free to hire or fire an employee for any reason or no reason at all whether the termination is fair or unfair, just or unjust. Similarly, an employee is generally free to quit employment for any reason or no reason at all. There are three primary exceptions to the employment at will rule. First, an employer may not terminate an employee because of their membership in a "protected class." This is called unlawful discrimination. Protected classes include race, sex, age, national origin, marital status, disability, religion, sexual orientation and other groups of individuals defined in state or federal laws. Second, an employer may not terminate an employee for a socially undesirable motive. This is called a wrongful discharge. (See FAQ "What is a wrongful discharge"). Third, if the employer and employee have an agreement that limits the employer's ability to terminate the employee, the employer may only terminate the employee in compliance with the agreement. This is called a breach of contract.

What is an implied contract that limits the employer's ability to terminate employment? 

Most employees don't have written contracts covering their employment. However, the Oregon courts have held that employers may be contractually bound to comply with termination procedures set forth in personnel policies or employee handbooks that the employer promises to follow or circulates to employees. If an employer's personnel policies and procedures are made known to employees and if those documents promise that an employer won't terminate employees except upon certain grounds (for example "just cause") or except by following procedures (for example a verbal warning, a written warning, a suspension) then a termination may be a breach of contract if the employer doesn't comply with it's personnel policies or employee handbook. Many employers are aware that their personnel policies or employee handbooks may create contractual rights and include specific language ("disclaimers") in these documents designed to inform employees that they remain employees "at will" who can be terminated at any time for any reason. The Oregon courts have held that clearly stated "disclaimers" in an employee handbook can preclude the creation of an employment contract based upon the employee handbook. If a client has a question about whether an employer's personnel policies or employee handbook creates a contract that limits the employer's ability to terminate or whether a disclaimer is sufficient to prevent the creation of an employment contract, the client should consult an attorney knowledgeable about implied contracts. Employees who are members of unions are likely covered by a contract between their union and their employer. These employees should consult their union if there is a concern about whether a termination is a breach of the union contract.

Does an employee have a right to inspect or obtain a copy of their personnel records? 

Under Oregon law, ORS 652.750, an employer is required to provide an employee a reasonable opportunity to inspect and copy the employee's personnel records within 45 days after a request from the employee. The employee should put their requests to inspect and copy personnel records in writing saving a copy for the employee's own personal records. The personnel records that the employer is required to provide include personnel records that are used or have been used to determine the employee's qualification for employment, promotion, additional compensation or employment termination or other disciplinary action. The employer is required to furnish a certified copy of the records to the employee. If the employer refuses to provide the employee access to personnel records or withholds some records from inspection, the employee can file a complaint with the Oregon Bureau of Labor and Industries. BOLI has authority to impose a civil penalty on the employer for violations of ORS 652.750 not to exceed $1,000.

What is considered working time under the wage laws and the overtime laws? 

Any work that an employer suffers or permits an employee to perform is considered compensable time under the wage and hour laws. This means that if an employer knows that an employee has performed work, even if the employee was not specifically instructed to do so or if the work was done outside the employee's normal hours, the employee must be paid for time spent doing this work. The time will also be counted in determining whether the employee has worked forty hours in a week, and is thus entitled to overtime compensation. An employer may discipline an employee for performing unauthorized work, but the employer must also pay the employee for that work. Many pre- and post-work activities have been specifically addressed by the regulations and court opinions construing the wage and hour laws. For example, commuting to and from work is generally not included in working time, nor is changing clothes or washing up at the work site. Performing other preparatory duties, such as assembling tools or receiving a work assignment may be considered hours worked, however. Short rest periods during the workday, such as fifteen-minute breaks, are hours worked. A meal period must generally be at least thirty minutes long in order to be excluded from hours worked. For example, time when an employee is on call must be compensated if the employee must wait at the work site, even if the employee has no duties during that time. An employee who is free to go about his or her own pursuits, however, and merely leave a contact number and arrive when called need not be paid when he or she is not actually performing work. Likewise, an employee who has private sleeping quarters on the employer's premises, and who can sleep at least five hours uninterrupted, need not be paid for the time spent actually sleeping. The employee must be paid when he or she is interrupted for work, however, and if the employee's sleep is frequently interrupted, the employee must be paid for the entire time at the work site, even time spent sleeping. Time spent on training or education is not considered hours worked as long as the employee's participation is completely voluntary, the employee attends outside of his or her regular working hours, and the employee performs no productive work during the class. Finally, time spent traveling for the employer is hours worked if the traveling is part of the employee's principal activities (for example, traveling between multiple work sites, or a day trip to an out-of-town location), although travel undertaken for an overnight trip is not compensable unless the travel is done during normal working hours, or the employee actually works as he or she is traveling.

How can an employee or job applicant secure a reasonable accommodation of his or her disability from the employer? 

The law relating to disability discrimination and reasonable accommodation is complex. As a result, clients having questions about disability laws and reasonable accommodation should consult with an attorney knowledgeable about the area of law and how the law applies to their particular situation. Generally, a qualified person with a disability is entitled to a reasonable accommodation that is necessary for the person to perform the essential functions of the job they hold or the position they seek. An employer who knows that an employee has a disability that is affecting their ability to perform the job has an obligation to initiate an interactive process (for example meetings) to arrive at an accommodation. Nevertheless, even if an employer knows or should know that an employee has a disability, the employer may not know of the need for accommodation. Thus, an employee who believes they need an accommodation in the workplace should make a written request for accommodation specifically mentioning that the request is made under the Americans with Disabilities Act and state disability laws. Once the employee makes such a request, the employer is required to engage in the interactive process with the employee, to determine whether an accommodation is actually needed, and if so, what accommodation might be appropriate. Both parties have a responsibility to cooperate in finding a reasonable accommodation. For example, if the employee refuses to provide medical information necessary to determine if the employee has a disability that requires accommodation or if the employee refuses to inform the employer of the essential job functions that he or she is having difficulty performing, the employer may not be held responsible for failing to provide an appropriate accommodation. Likewise, the employer cannot make a single offer of an inadequate accommodation and, if the employee refuses it, decline to search for other alternatives. Employees should attempt to develop their own ideas about how they can be accommodated at work to bring to the interactive process and may wish to consult with physicians or other professionals knowledgeable about their disability and workplace accommodation to develop reasonable accommodations. An employer may also be required to make reasonable accommodations for a job applicant, if the accommodations are necessary for the applicant to meaningfully participate in the application process. An applicant who believes that he or she may need an accommodation must, like an employee, inform the employer of the need for accommodation, and then work with the employer to find an effective accommodation, if one exists. An example might be moving a typing test to a room that the applicant can reach or allowing the applicant to bring adaptive equipment to the interview, such as special keyboards. An applicant with hearing or visual impairments may be accommodated by allowing an interpreter to accompany the applicant to the interview.

When may an employee be entitled to medical leave from work? 

An employee who is injured or ill or who has a family member who is in need of care may not be limited to sick leave, vacation, or personal leave if he or she needs time off. There are other types of leave that an employer may be required to provide. For example, if the employee has a newborn or newly adopted child under 18 years of age, if the employee or his or her family member has a serious health condition, if the employee has a child who is ill or injured and who requires home care, the employee may be entitled to up to twelve weeks of unpaid leave per year under the Federal Family and Medical Leave Act (FMLA) or the Oregon Family Leave Act (OFLA). A serious health condition is an illness or injury requiring inpatient medical treatment or continuing outpatient treatment by a health care provider, for a chronic medical condition. Medical leave may also be an appropriate accommodation of a disability under the Americans with Disabilities Act (ADA). The ADA does not specify whether or what type of leave must be given to an employee who is in need of leave due to a disability, but courts have held that an employer may be required to provide leave beyond sick leave or personal leave if such leave would be a reasonable accommodation of a disability, as long as the leave is not unduly burdensome to the employer. A leave of one month might be unduly burdensome to a small employer who cannot hire a temporary worker to replace the disabled employee, but a leave of six months might not be unduly burdensome to a large employer who can hire a temporary replacement or reapportion duties. If the employer has allowed other employees to take long leaves for reasons that are not disability-related, such as sabbaticals for continuing education, a court may find that the employer is required to allow a disabled employee to take a similar leave. Further, an employer who includes a medical or personal leave provision in its employee handbook may be contractually bound to provide such leave to an employee who requests it.

When is harassment unlawful? 

The laws relating to harassment in the workplace are complex. If an employee believes that he or she has been subjected to harassment, the employee should consult an attorney knowledgeable in harassment law. In general, it is not unlawful for an employer or supervisor to harass an employee simply because he or she doesn't like the employee. Harassment is unlawful if it is based on some protected characteristic of the employee, such as his or her race, sex, age, national origin, religion, disability or sexual orientation. To establish a claim for harassment, an employee must show that the employee was subjected to verbal or physical conduct of a sexual or racial nature (or verbal or physical conduct directed at an employee about their protected class status or because of their protected class status), the harassing conduct must be unwelcome; and the harassing conduct must be severe and pervasive enough to alter the conditions of employment and create a hostile or abusive workplace. Conduct is severe and pervasive if a reasonable person of the same protected class as the employee would consider the workplace as hostile or abusive. Isolated or occasional use of racial or ethnic slurs, or sporadic dirty jokes, while offensive, may not be sufficiently severe to create a hostile workplace. On the other hand, one incident of harassment, if it is severe enough, may be enough to violate the law. Harassment which is repeated, continuous or pervasive throughout the work environment is more likely to be actionable. Examples of such behavior could include constant dirty jokes or comments, repeated unwelcome sexual advances, repeated anti-Semitic or racist comments, or a workplace routinely decorated with pornographic posters. Behavior which offends a highly sensitive employee, but which would not offend a reasonable person of the same protected class in the same situation, is unlikely to constitute unlawful harassment.