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JUNE 2018

 

In This Issue:

United States Supreme Court Upholds the Enforceability of Arbitration Agreements

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
rorr@cascadeemployers.com

On May 21, 2018, the US Supreme Court decided Epic Systems Corp. v. Lewis, which addressed whether arbitration agreements are enforceable – even if the agreements prohibit employees from bringing class action lawsuits.

There were actually three cases resolved by this decision. In these cases, the employees entered into agreements that they would use arbitration to resolve any disputes between themselves and the companies for which they worked. The agreements specified that individual arbitration would be used and claims pertaining to different employees would be held in separate proceedings – thereby barring class action lawsuits for similar claims. After their employment ended, the employees sued their companies in federal court for various violations of the Fair Labor Standards Act (FLSA). The cases were resolved in different ways in the lower courts, but were all appealed to answer the question of whether the NLRA prohibits the enforceability of arbitration agreements to the extent they prohibit employees from bringing class action lawsuits.

The employees in these cases argued that class action lawsuits are an activity protected under the National Labor Relations Act (NLRA) provisions that give employees a protected right to engage in concerted activity for the purposes of collective bargaining or mutual aid and protection. Therefore, the NLRA prohibits the enforceability of arbitration agreements that require one-on-one resolution of claims.

The court disagreed and held that the NLRA does not confer a right to resolve legal claims via class action, and that the Federal Arbitration Act makes clear the enforceability of arbitration agreements for employment claims.

This is an important decision for employers because it gives them the ability to compel arbitration to resolve employment claims, rather than taking the expense and risk of bringing that claim before a jury. It also provides employers with a mechanism for avoiding class action lawsuits for employment claims, which can be incredibly costly.

For questions about how this decision affects your organization’s practices, give us a call today.

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Five Things You May Not Know About Willamette Valley Vineyards –
Featured Member

By Gayle Klampe, President
Cascade Employers Association
gklampe@cascadeemployers.com

The Willamette Valley is the heart of Oregon wines, thus it’s fitting to feature one of the region’s leading wineries. Did you know....

  1. Willamette Valley Vineyards image and logoWillamette Valley Vineyards (WVV) was founded by Jim Bernau in 1983, following purchase of the estate site near Turner, Oregon. Jim cleared away the old pioneer plum orchard hidden in Scotch broom and blackberry vines and proceeded to plant Pinot Noir, Chardonnay and Pinot Gris. In the beginning he hand watered the vines with seventeen lengths of 75' garden hose.
  2. After attending numerous classes at UC Davis, and seminars from here to France, Jim’s sharpened viticultural skills prepared him to build his dream. In 1989 he constructed a world class winery, making cool-climate varietals, especially Pinot Noir, to be served and sold in the best restaurants and bottle shops in the world.
  3. Jim's personal gift to Oregon State University established the nation's first professorship in fermentation science in 1995.
  4. WVV has collaboratively grown its estate vineyards through partnerships like the merger with Oregon wine industry pioneer, Bill Fuller of Tualatin Vineyards (established in 1973), the O'Briens of Elton Vineyard (established in 1983) and Loeza Vineyard (planted in 2015). The winery now sources all of its barrel-aged Pinot Noir from its estate-grown vineyards and meticulously farms nearly 500 acres in the valley.
  5. Today, Jim's vision of organizing the support of wine enthusiasts to grow world-class wines through shared ownership has resulted in more than 10,000 owners. The winery's Common (WVVI) and Preferred (WVVIP) are traded on the NASDAQ. WWV practices environmentally sustainable farming and were part of the founding of the Low Input Viticulture and Enology Program (LIVE).

Cascade is proud to feature Willamette Valley Vineyards, with the approach of growing by hand the highest quality fruit using careful canopy management and yield balance.

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Hot Compliance Question

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
rorr@cascadeemployers.com

Question: We have an employee who has exhausted all his family leave and PTO. He is not ready to return to work. Can we terminate him and fill his position?

Answer:  Maybe. Often, an employee’s own serious health condition will qualify as a disability under the Americans with Disabilities Act (ADA). When an employee with a disability exhausts all other forms of leave, an employer must engage in the interactive process with the employee to determine if providing additional leave would be a reasonable accommodation.

The EEOC has published guidance on this topic that instructs employers to consider the following factors when determining whether additional leave would be a reasonable accommodation:

  • The amount of leave required;
  • Whether the leave will be taken in a single block or intermittently;
  • If intermittent, the frequency and predictability of the leave;
  • Whether the employee’s need for leave is flexible and can be taken in a way that minimizes any disruption to business operations;
  • The impact of granting leave on co-workers and the employer’s business operations.

There is no bright-line rule when it comes to ADA accommodations. The answer to whether leave must be provided is unique to each situation based on the disability, need for leave, the employee’s job, and the employer’s business.

When in doubt, err on the side of caution, and be as accommodating as possible.

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HR Stats You Should Know

By Jenna Reed, JD, General Counsel and Director, Compliance Services
Cascade Employers Association
jreed@cascadeemployers.com

Summer is coming which means people will be heading out on vacations. Time to rest, relax and rejuvenate, right? Not so fast. While we all claim to understand the importance of taking vacation time, research shows many employees are leaving time on the table. Why?

According to research by Project Time Off, there are many different reasons including:

Poor planning: 52% of employees who take time to plan out their vacations use all of their time off compared to only 40% of employees who don’t take time to plan. Lack of planning also impacts length of time off. 75% of those who planned vacations take at least 40 consecutive hours of time off compared to 18% of those who don’t plan.

Workload and pressure: Workload and pressure is a common reason employees at all levels don’t take all of their time off, but is particularly noticeable at the higher levels. 61% of senior leaders leave vacation time on the table, compared to 52% of non-managers.

Shame and guilt: As my colleague, Carey Klosterman detailed in a recent blog post, more than half of workers feel guilt or feel shamed by their co-workers for taking time off. This is an increase of 10% in the last two years!

So as we head into the summer season (or really any time of year), encourage your employees to actually plan vacation time off. Work with them in advance of taking their time off, so they know things are covered and will feel less guilt. This also sends a message to others that supervisors support and value employees taking vacation time, which hopefully will reduce some of the shaming.

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Effects of Summer Heat on Injuries

Safety Northwest
Cascade Employers Association
safetynorthwest.org

Does summer heat wave try your patience once in a while? You’re not alone. Hot weather can incite more impatience as your brain deals with heat impacts on your body while trying to solve problems.

Aside from the heat on your skin, exposure to hot temperatures also increases your heart rate, which leads to even more discomfort. Combined with regular daily stresses, angry reactions become intensified leading directly to distorted communication tones that to others sound like critical intent. A minor comment or a bump in a hot, crowded space explodes into a serious offense if your level of anxiety and discomfort are already intensified.

Anger is a normal emotion; unfortunately, being hot and angry increases the risk of injuries. Summer heat mixed with anger can quickly distort prudent judgment when dealing with hazard exposures. Patience turns into forcefulness; caution turns into discounting danger.

Six Steps to Handle Summer Heat at Work

  1. Recognize and Anticipate Your Anger

    Do you notice first when you begin to feel angry? There are physical signs of anger like tense muscles, feelings of pressure and tension, frustration, and sarcasm. Learn your anger-triggers and then learn to anticipate them. Does heavy traffic or long lines tend to set you off? Hate reading directions? Sweating too uncomfortable? It’s OK. Take a moment. It will work out. Try to avoid trigger situations during the summer months, or at least be ready to positively respond to them when they happen rather than raging. Practice accepting chilling advice from a trusted friend.

  2. Fundamental Attribution Error

    Analyze your thinking for incorrect assumptions. There is no conspiracy. Many times we become angry when we assume something is true when it is not. These underlying assumptions warp our thinking, yet we believe we act based on truth. This pitfall can be particularly hard to avoid when a person is already physically uncomfortable and cranky. We may find ourselves “looking for trouble” where it doesn’t really exist. Be aware of your Fundamental Attribution Errors.

  3. Realize It’s Hot

    Remember summers are supposed to be hot. Sometimes just remembering and confronting this can be enough to curb anger reactions that lead to hasty actions and avoidable injuries.

  4. Stop and Think!

    Don’t react! Choose actions carefully. Just taking a moment to think, clear your head and calm down is all you’ll need to keep from rash actions.

  5. Breathe

    To calm down, focus your breathing. Count silently to ten if you need to. If you want it to, taking a couple of deep breaths will slow the heart rate and soothe the soul. This can be especially helpful in the summer heat.

  6. You Are Not a Super Hero

    In practicing how to tame your anger, it is important to know what you can control. Summer heat is not on the list. Recall that you can only control your response to situations and circumstances. All you can do is deal with things the best you can, and do your best to recognize, understand and control your own feelings and reactions.

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