OSHA – Potential Employer Knowledge Rule – A Solution in Search of Problem.

Stephen VerotskyThis morning, Michael Wood, the Administrator of Oregon OSHA, convened an “informal gathering” of employers and other stake holders to discuss whether a rule is needed to “help clarify the issue of employer knowledge” when a serious safety violation is issued. The meeting was well attended by various construction trades, private and public entities. Many employers were concerned OSHA had already drafted a rule and was only convening these meetings as “window dressing.” Mr. Wood stated there was no formal rulemaking proposal at this time. Assuming rulemaking goes forward following a series of public forums, Oregon OSHA anticipates a stakeholder advisory group will be assembled in February 2013 with a formal rulemaking proposal occurring some time after… Continue reading

ADA/FMLA Employer Work Group

Jamie CarltonWe hope to see you Thursday, November 8th at the Kaiser & DMEC Oregon/SW Washington ADA FMLA Employer Work Group. Rebecca Watkins and I are partnering with DMEC along with Mike Moses of Kaiser, to host an employer roundtable discussion to answer questions regarding all aspects of the ADA and FMLA. This will be an opportunity for employers to ask questions and discuss their difficult ADA/FMLA cases. The format will be an open forum with a focus on problem solving. The Work Group Session will be from 11:30 – 1 p.m. at the Kaiser Permanente – Town Hall Ballroom, 3704 N. Interstate Avenue, Portland. A free lunch will be provided. If you would like… Continue reading

Court Less Likely to Find Parking Lot Injuries Compensable?

rebecca watkinsIn Enterprise Rent-A-Car v Frazer, a divided Court of Appeals reversed the WCB’s finding of compensability in a parking lot injury. The employer at issue had a storefront in a strip mall, including several parking spots its rental cars occupied. It had two break rooms, but employees were allowed to leave the premises at breaks. Frazier, the worker, took a paid break in a smoking hut on the strip mall property about 100 feet from her workplace; the smoking hut was not owned or controlled by the employer. During the break, she vented with coworkers about customers and smoked a cigarette. As she returned to her workplace, she caught her foot in a hole in… Continue reading


Stephen VerotskyOregon OSHA is developing an administrative rule which has the potential to significantly change what it must prove to establish a violation of a safety rule. Currently, to establish a valid citation, OR-OSHA must prove the employer knew (actual knowledge) or could have known (constructive knowledge) of the condition giving rise to the violation. Since 1999, the Oregon appellate courts have found constructive knowledge does not exist where the alleged violation resulted from the “bad acts” of a “rogue supervisor.” A rogue supervisor is a supervisor who acts contrary to an established safety program and such actions were not foreseeable. Notwithstanding the decisions from the Oregon appellate courts, OR-OSHA has continued to argue an employer is… Continue reading

Dr. Makker Surrenders Medical License

Jamie Carlton By the terms of a stipulated Order with the Oregon Medical Board, Dr. V. James Makker has agreed to surrender his Oregon medical license. The local neurosurgeon is familiar to those in the industry as he accepted workers’ compensation patients and operated on many. Dr. Makker came under increased scrutiny after The Wall Street Journal published report in 2011 accusing him of performing medically unnecessary spinal fusions. He is alleged to have one of the highest repeat fusion rates in the nation. No longer able to practice medicine in Oregon, Dr. Makker still faces a barrage of pending medical malpractice lawsuits which will continue to make their way through the courts. SBH will monitor the ongoing developments.

Discriminatory practices or just claims increasing?

According to MSNBC reports, the EEOC received a record 99,947 job-related discrimination complaints in 2011. The largest increase is in the area of religious discrimination, with increases in national origin and disability complaints as well. This shifting pattern of complaints may reflect a growing diversity in the work force. The overall increase may be a side effect of a poor economy, which means a high number of complaints can be expected for 2012 as well. The EEOC has faced budget cuts in the past year, and with the increase of complaints may shift its focus to widespread problems or be more interested in settlement. For an historic overview of EEOC complaints from 1997 to present,… Continue reading

Oregon Minimum Wage increases to $8.95 for 2013

BOLI announced today that Oregon’s minimum wage will increase 15 cents to $8.95 per hour on January 1, 2013. Oregon law requires the state minimum wage to be adjusted each year based on the Consumer Price Index (CPI), and the new minimum wage reflects a CPI increase of 1.7%.

Medical Provider Network Reforms in Washington

lee ann loweBeginning January 1, 2013, Washington medical providers will be required to be in the new statewide workers’ compensation medical network in order to treat injured workers beyond an initial office visit or emergency room visit, regardless of whether the injured worker is covered by a self-insured employer or L&I. Beginning January 1 the following providers will be required to be in the new network in order to provide ongoing care to injured workers: physicians, chiropractors, naturopathy physicians, podiatric physicians and surgeons, advanced registered nurse practitioners, physician assistants, dentists, and optometrists. As of that date self-insured employers will only need to pay in-network providers for ongoing care. It will be up to the self-insured employer to confirm whether… Continue reading

EEOC Update

Jamie Carlton In April 2012, the EEOC issued updated enforcement guidance on employer use of arrest and conviction records in hiring decisions. This comes on the heels of a $3 million settlement with an employer whose criminal background check policy disproportionately excluded African-American applicants. The policy was neutral on its face. The EEOC guidance provides that the use of individual arrest and conviction history to exclude a potential hire may amount to unlawful employment discrimination where the employer policy disproportionately impacts or excludes certain protected classes from hiring consideration. This is true even where the policy is facially neutral. With the EEOC’s eye on the issue, SBH recommends employers reconsider hiring policies and its use of arrest and… Continue reading

Wage Claims at a Record Setting High

Jamie Carlton Reports indicate the number of wage claims filed under the Fair Labor Standards Act is at an all time high. Last year, there were approximately 7000 lawsuits filed under the FLSA. With less than 5 months left in the reporting year, the number of FLSA suits already exceeds the total for last year. In 2011 SBH employment attorneys counseled employers to expect greater inquiry into whether workers classified as independent contractors actually met the requirements for such a designation. We correctly anticipated increased litigation alleging misclassification of employees as independent contractors (which are exempt from overtime as well as meal and rest breaks). Our predictions were correct and increased litigation is likely to… Continue reading