In Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeal said that where alleged protected activity does not have an adequate statutory remedy under the state’s whistleblower law, an employee may bring a common-law wrongful discharge claim. There, an employee claimed harassment in the workplace. When no action was taken by the employer, the employee sought legal advice from an attorney about the alleged harassment. The employee claimed she was retaliated against because she was fired shortly after seeking legal advice.

The court distinguished between retaliation for reporting unlawful activity, which could be protected under the state’s whistleblower laws, and retaliation for seeking legal counsel, which has no specific statutory protection. Because the employee’s allegations centered on the latter rather than the former, the court allowed the employee’s claims to move forward.

Employers must take care in how they manage employee claims and review potential exposure before taking adverse action against an employee following employee claims.

Action Items

1. EEO-1 Reporting for 2019 and 2020 Opens April 26, 2021
2. Form I-9 Extension Granted for Remote Workplaces
3. CDC Encourages Employers to Offer Paid Leave for Vaccine Recovery
4. California: Public Entities May Still Be Subject to Civil Penalties in PAGA Claims
5. California: Court Limits Class Actions for Independent Contractor Misclassification Cases
6. San Francisco, CA: New COVID-19 Employee Protections
7. San Francisco, CA: Annual Health Care Security Ordinance Reporting Postponed
8. Connecticut: Discrimination Against Natural Hair Prohibited
9. Allegheny County, PA: Paid Sick Leave May be on the Horizon
10. Dallas, TX: Paid Sick Leave Permanently Blocked
11. San Antonio, TX: Paid Sick Leave Preemption Upheld
12. West Virginia: Enacts COVID-19 Shield Law
13. Wisconsin: Employers Have Immunity from COVID-19 Liability

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Congress recently enacted the American Rescue Plan Act, extending the tax credits for the Families First Coronavirus Response Act (FFCRA) paid leave provisions. Although FFCRA leave is still not required, if employers want to voluntarily take advantage of the tax benefits, there are new rules to take into consideration.

Beginning April 1, 2021, employers may voluntarily provide a new bank of 10 days’ emergency paid sick leave to employees and receive the tax credit for it through September 30, 2021. The Rescue Plan also expands the reasons for taking emergency paid sick leave and emergency family and medical leave to include:

• An employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID–19 and such employee has been exposed to COVID–19 or the employee’s employer has requested such test or diagnosis.
• An employee is obtaining immunization related to COVID–19 or recovering from any injury, disability, illness, or condition related to such immunization. (This benefit may support employer vaccination programs.) Read more

In White v. United Airlines, Inc., the Seventh Circuit Court of Appeal stated that employers must provide paid leave for USERRA leave to the extent similar nonmilitary leave is paid by the employer. The Uniformed Services Employment and Reemployment Rights Act (USERRA), in part, protects workers from discrimination based on their military status. More specifically here, USERRA requires that an employee on leave from work while performing their military service be entitled to the same rights and benefits as the employer provides to other employees on leave.

In Bernstein v. Virgin America, the Ninth Circuit Court of Appeal stated that California’s wage and hour laws are not preempted by federal law in the aviation context. Specifically, employees there alleged that Virgin failed to pay state minimum wage, overtime, and for every hour worked; failed to provide required meal periods, rest breaks, and accurate wage statements; failed to pay waiting time penalties; and violated the Unfair Competition Law.  Employees also sought compensation under the California Labor Code’s Private Attorneys General Act (PAGA).