Question: We use Craigslist to post job openings and accept resumes. Are there any legal or practical risks involved with hiring people off Craigslist?

Answer: Many companies are taking advantage of the ability to post job openings for free on Craigslist, but there are some things to think about before using the website as your main source of recruiting and hiring. If people are submitting their resumes via Craigslist, you may be missing out on gathering vital information about the candidate that you would generally get through the application process. For example, job applications often ask about criminal convictions, relevant work experience, technical skills or training, and other information specific to the job being filled. Along the same lines, an individual responding to a Craigslist posting may give you more information than you were looking for. Without any quality control on the information coming in, people may send responses containing information about marital status, religion, disabilities, or a range of other information that you simply don’t want from a job candidate.  If you’re just getting emails or resumes from interested job seekers, you may be missing out on useful information while at the same time subjecting yourself to potential legal exposure.

Perhaps a better approach would be to post the job opening on Craigslist, but direct all applicants to your company website where they can fill out an online application. That way you’re gathering the same information from all candidates rather than the inconsistent information you may get through the resume solicitation process.

Finally, you should also ask yourself whether you’re getting the best candidates for a position by posting on Craigslist. Posting in a single location may make sense for an unskilled labor or temporary position, but is it the best place to locate your next electrician or accountant? If you’ve been posting online but coming up short on quality applicants, try reaching out to your local employment office to see if they have any ideas on where to post your job openings to optimize access to the right job seekers. This is an especially important step if you are a federal contractor because posting all open positions with the state is a requirement of your affirmative action plan, other than exempt executive jobs and jobs lasting three days or less.
 
Still have questions about whether posting on Craigslist is right for your company? Call your Vigilant staff representative for more discussion.

A few more bills affecting employers have been signed by Governor Kitzhaber as the Oregon legislative session begins to wind down.

HB 2034 gives the Oregon Bureau of Labor and Industries (BOLI) greater involvement in regulating apprenticeship programs. It also limits the length of the apprentice’s probationary period, so that it is up to one year or 25 percent of the length of the program. Effective May 27, 2011.

HB 2036 makes some technical changes, championed by BOLI. Now all employers, regardless of size, are prohibited from retaliating on the basis of a disability complaint (previously there was a threshold of six employees). Also, if an employer denies leave or takes other negative employment actions against a crime victim who asks for time off to attend a criminal proceeding, the individual must file a complaint with BOLI rather than going straight to court. A similar change was made in situations where an individual believes an employer discriminated on the basis of genetic information. Effective June 1, 2011.

HB 2039 gives BOLI the power to impose a civil penalty against employers that issue checks that bounce for non-sufficient funds. Although civil penalties are already in place, employees currently must go to court to collect the penalties. Under the new law, employees holding bounced paychecks will have the option of contacting BOLI instead. The penalties are capped at a maximum of $500 per paycheck. Effective January 1, 2012.

SB 178 applies to state-funded public works projects that require payment of prevailing wages. BOLI will no longer be required to develop a master comparison of the federal prevailing wages under the Davis-Bacon Act and state prevailing wages. Instead, each covered state contract should specify the amount of the federal and state prevailing wages, and require the employer to pay the higher amount. Effective for contracts and solicitations on or after June 7, 2011.

Governor Kitzhaber has signed two employment-related bills that affect Oregon employers:

HB 2241 expands the types of military service that is entitled to protection from employment discrimination under state law. The good news is that this list is now more consistent with the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Previously, state law didn’t cover the U.S. Public Health Service or the catchall of “any other category of persons designated by the President of the United States in time of war or national emergency.” This bill is effective immediately.

HB 2828 makes it an unlawful employment practice for an employer to stop health, disability, life or other insurance coverage for a worker who is serving or scheduled to serve as a juror, if the worker chooses to continue coverage. If an employer pays the worker’s portion of the premium, the employer can collect it through payroll deductions after the worker returns to work, capped at a maximum of 10 percent of gross wages. If the worker doesn’t return, then the employer may deduct any remaining amounts from the worker’s final paycheck, or use any other legal means (such as small claims court) to recover the amounts owed. Workers may file complaints with the Oregon Bureau of Labor and Industries (BOLI) or file a lawsuit. This bill is effective on January 1, 2012.

Tips: The jury duty bill raises some questions that we would hope to see addressed in regulations. Logically, we believe you would only be required to pay your usual employer portion of the premium during jury duty, but the language is a bit unclear. Fortunately, periods of jury duty service that are long enough to cause an employee to drop below the required number of hours for insurance coverage are rare, but you still need to be prepared. Coordinate with your insurance carriers to ensure that you can continue the coverage without violating your insurance contracts or (for self-insured employers) stop loss agreements.

An employer that terminated a female employee after she obtained a restraining order against a male coworker who she had been dating will have to defend a gender discrimination claim at trial because it couldn’t show a legitimate nondiscriminatory reason for retaining the male employee.
 
The employer tried to argue that it retained the male employee because he was a more skilled and valuable employee to the company, but it had no evidence or documentation to back up that assertion. Since the employer couldn’t prove that its decision to terminate the female employee wasn’t based on discriminatory motives, the court refused to throw out the case, instead sending it on for trial (Sereno-Morales v. Cascade Food, Inc., D Or, May 2011).

Tips: If you encounter this kind of situation, there may be a way to accommodate both workers, depending on scheduling flexibility, the size and geography of your workplace and the terms of the restraining order. You may also have an obligation to grant time off for an employee to seek a restraining order or take other protective measures to address domestic violence, sexual assault or stalking. See our Model Policy, “Crime Victim Leave Policies for Oregon, Washington, and California” (3912). If you decide you must terminate one employee, use nondiscriminatory criteria to select which employee must go—for example, skill level, seniority or past disciplinary history—but be sure you document how you made your decision. Your Vigilant staff representative is always available to help.

If you have employees who cover their non-dependent adult children on your health insurance program, that coverage is now tax-free at the state level, thanks to legislation signed into law on March 9, 2011 (SB 301, Ch. 7, 2011 Laws). As of December 31, 2010, Oregon tax law regarding adult child coverage up to age 26 is in sync with the federal Internal Revenue Code, which means that the value of the adult child’s coverage is now excluded from state income tax. Contact your payroll or tax adviser with questions.

Firing an employee just two days after he’s complained of sexual harassment is still a surefire way to get sued, as a recent Ninth Circuit case out of Oregon reaffirmed. A production worker for Entek International claimed to be the victim of harassment on the basis of his sexual orientation. When the stress from the harassment became too great, he called in to let Entek know he was taking the day off work. Entek recorded this day as a “no call/no show” day because he did not call in at least one hour prior to his shift, as Entek’s policy required. When he returned to work the next day, he complained to Human Resources of the harassment. Two days later he was fired for his no call/no show. When he sued for sexual orientation discrimination the court agreed that the proximity in time of his complaint to his termination was suspect, and may be evidence of retaliation for his complaint to HR (Dawson v. Entek International, 9th Cir, Jan. 2011).

Tips: While making a discrimination complaint does not insulate an employee from discipline for failing to comply with workplace rules and policies, you should be extra careful in these kinds of situations. Remember to contact your Vigilant staff representative before taking disciplinary steps. We can help you safely navigate between the employee’s protected conduct and your need to enforce your workplace policies.

A Wasco County employee can proceed with her sexual harassment complaint against the Chief Deputy Sheriff, despite the fact that she once flashed a coworker and participated in occasional joking of a sexual nature. The employee complained that the Sheriff repeatedly told her she smelled good, called her sweetie, rubbed his hands on her back and waist, and once invited her to sit on his lap. He also used the office’s internal surveillance system to watch the employee during the workday. The employee complained to the Sheriff’s supervisor, but he never conducted an investigation; he merely spoke to the entire department about appropriate behavior and general sexual harassment issues.

The Oregon District Court determined that the employee can continue with her case, finding that her participation in inappropriate conduct doesn’t mean that the Sheriff’s conduct was welcome or that she couldn’t have been offended by it. The employee will now argue her case to a jury (Mendoza v. Wasco County, D Or, Nov. 2010).
 
Tips:  Don’t assume that you’re off the hook for sexual harassment simply because the person complaining has participated in inappropriate conduct as well. Conduct a thorough investigation when a complaint is made and discipline all parties who violated your harassment policy. See our Legal Guides, “Harassment in the Workplace: Avoiding Liability” (3288) and “Conducting an Internal Investigation,” (537) and call your Vigilant staff representative when a harassment issue arises. 

Remember to set your clocks back one hour when Daylight Saving Time ends Sunday, November 7, 2010, at 2 a.m. If you’re not working during the time change, enjoy your extra hour of sleep. For employees who normally work eight hours on the night shift, they may work nine hours that day (e.g., from 11 p.m. Daylight Saving Time to 7 a.m. Standard Time). Employers must pay employees for all hours actually worked, which may include overtime. As an employer, you cannot offset the pay for the extra hour worked on November 1, even if you voluntarily paid eight hours for only seven hours of work when Daylight Saving Time began in March.

Failing to pay an employee about $840 in wages nearly cost one employer an additional $16,000 for the employee’s attorney’s fees, until the Oregon Court of Appeals reversed the trial court’s award. To collect damages and attorney’s fees, Oregon law requires an employee to notify their employer about the potential wage claim, giving the employer an opportunity to remedy their mistake. But this employee’s notice failed to state her name or the amount she was supposedly owed. The employer argued the notice wasn’t specific enough to satisfy the law’s requirements and the appeals court agreed. Thus, the employee was entitled to the $840 for wages owed, but not the $16,000 for attorney’s fees (Belknap v. U.S. Bank National Association, Or App, June 2010). 

Tips: Violating wage payment laws may be an easy mistake to make, but it can also be a costly one. If you receive notice from an employee claiming that you owe them money, don’t hesitate to take action! Contact your Vigilant staff representative or your corporate counsel and plan your response immediately. Like the employer in this case, the right response could help you avoid large sum lawsuits. For more information, see our Legal Guide, “Final Paychecks” (1648).

The Oregon Bureau of Labor and Industries (BOLI) has finalized its recent proposals on clarifications to the rules on meal periods and overtime. The final rules contain three main changes:

• Employees who don’t get 30 continuous minutes for a meal period must be paid for the entire 30-minute meal period. This is a clarification of existing policy. Vigilant warned in written comments that the new language could have the unintended consequence of requiring employers not merely to pay for the actual meal period, but to pay for a guaranteed 30 minutes of meal time on top of the actual hours worked. Although BOLI stuck with its proposal, the head of the wage and hour division confirmed in a subsequent email that BOLI would only require the employer to pay for the actual time worked.
• Employers have the option to pay exempt computer professionals at the salaried equivalent of the minimum hourly rate of $27.63.
• Workers who provide companionship services for the elderly or infirm are exempt from minimum wage and overtime, even if they are employed by a third party. 

If you have questions, contact your Vigilant staff representative, or see our Legal Guides, “Breaks and Meal Periods – Oregon” (2085) and “State Laws on the White Collar Exemptions from Overtime” (4051).