March Update – More Changes & Challenges For Employers

This year has been filled with changes and challenges for employers.  This month is no exception.  To assist you in navigating through these challenges, we offer brief, practical articles about the status of efforts to pass State and Federal legislation impacting the process of unionization and about the impact of the U.S. Supreme Court expansion of retaliation protection through its decision in Crawford v. Metropolitan Government of Nashville and Davidson Country, Tennessee. 

To further assist you, the Dunn Carney Labor and Employment Law Team is hosting a no-cost program Wednesday, March 18, 2009, from 7:30 a.m. to 9:30 a.m., at the Multnomah Athletic Club.  We will address retaliation claim prevention in more detail and provide you tools you need to protect your organization, as well as provide information about the new COBRA requirements under the Stimulus Bill (“ARRA”). [Click here for program details and registration].  We hope to see you there!

We just learned that both the U.S. House and Senate will be presented with identical versions of the Employee Free Choice Act (“EFCA”) today, March 10, 2009.  More information about the impact of EFCA can be found in our prior article on the topic, here. 

Oregon Senate Bill 519

The Oregon Senate is considering a bill that would severely chill the information employer’s may communicate with employees in the workplace.  The Bill, SB 519, would prohibit employers from holding meetings on company time or otherwise communicating with employees about “religious or political matters.”  These terms are defined very broadly and include communications to employees about unionization.  An employee who prevails against the employer is entitled to reinstatement, back pay and shall be awarded treble damages, attorney fees and costs. 

Retaliation Protection Expanded by the Courts

Over the past year, the U.S. Supreme Court has issued three significant decisions reinforcing employee protection against employer retaliation for asserting rights under various anti-discrimination laws.  In January, the Court decided, in Crawford v. Metropolitan Government of Nashville and Davidson Country, Tennessee, that Title VII protects those employees who are interviewed during their employer’s internal investigations into allegations of sexual harassment or other unlawful discrimination.

Under Title VII, employees are protected from retaliation for participating in a protected activity.  Protected activity includes an employee’s opposition to an employer’s unlawful practices (“Opposition Clause”) or participation “in any manner in an investigation, proceeding, or hearing" under Title VII (“Participation Clause”).  In Crawford, the Supreme Court focused on the Opposition Clause when it held that minimal disclosure of alleged unlawful conduct, even when not initiated by the employee, can be enough to invoke retaliation protection.  This is a significant departure from the prior case law of some circuits, and opens the door for similar, broad interpretation of the retaliation provisions of several other federal and state anti-retaliation statutes.

For more detailed analysis of the Crawford decision and best practices for employers to adopt as part of their efforts to prevent and defend retaliation claims in light of Crawford¸ please click here for our white paper.

New Form I-9 Effective Date

We recently informed you of the new Form I‑9 along with its substantive changes- click here.  As a reminder, the new Form I‑9 must be used as of April 2, 2009.  The form will be made available on the USCIS web site, located here.

If you have any questions or concerns about these issues, or should you need assistance to ensure compliance with applicable law, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Thanks to Kelly Martin for her contribution to this article.

Employment and Labor Law Team

Leader:Tamsen Leachman
Bob Allen
Laura Althouse
Tim Bernasek
Jack Cooper
Dan Drazan
Elizabeth Knight
Kelly Martin
Irene Scruggs
Sam Smith
Renee Stineman

MARCH 2009