Discipline and Discharge

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Discipline and Discharge

By Lori Cooper

All employers are faced with situations where an employee needs to be disciplined or have their employment terminated. This article will discuss how to avoid making some obvious mistakes when handling the discipline and termination processes.

Use a Thoughtful Process

In this litigious era, employers should expect that any discipline or termination could result in a lawsuit or a claim for damages. If the employer has not thoroughly planned the discipline or termination, which includes demonstrating that you attempted to work with the employee on their shortcomings and articulated a reason for the discipline or termination, you may be left without an adequate defense against a claim of discrimination or retaliation. An employer’s best defense to a claim of discrimination or retaliation is a well-documented, thoughtful, and legal basis for discipline or termination, one that is clearly expressed and explained to the employee.

Avoid Unfortunate Timing

Employers should avoid incidents of unfortunate timing, such as terminating or disciplining an employee after they return from OFLA-protected leave for an event that occurred prior to their leave.  Under state and federal law, timing alone is insufficient to prove a discriminatory motivation. However, prudent employers understand that incidents of unfortunate timing may raise an inference of discrimination. It is not always possible to avoid incidents of unfortunate timing, but it is usually possible to avoid delay. If an offense is sufficient grounds for discipline or termination, then employers should act promptly. Failure to do so can create a question in the mind of a judge or jury: if this offense was so bad, why did the employer wait six weeks to take action?

Make a Record

You have probably heard the saying “If it isn’t written down, it didn’t happen.” A written record of progressive discipline for offenses is particularly important in defending claims that the discipline or termination was in retaliation for taking protected leave, or violates the  ADA (among other reasons).  By its very nature, discipline or termination for “just cause” pursuant to a CBA requires documentation of progressive discipline, except in very limited circumstances. For public sector employers, employees who are represented by unions are, in most situations, required to receive progressive discipline before a termination can occur – this establishes a “just cause” basis for termination.

Give Due Process

Under due process principles, a public sector employee is entitled to “notice and a meaningful opportunity to be heard” before their employer can fire them, or before receiving discipline that has an economic consequence, like a suspension without pay.  Employees represented by a union must receive due process (also known as a “Loudermill” hearing).

Even non-represented employees might be entitled to receive due process because the employer’s policies require it, or because their employment contract specifies that due process must be provided.  In many cases, providing due process even to those employees who are not legally entitled to it can be helpful to an employer facing a potential claim from that employee.

Consult with Your Trusted Legal Counsel

There is no such thing as a “slam-dunk” discipline or termination.  In this era of litigation, every discipline or termination decision could be subject to a claim or a lawsuit.  Therefore, conferring with legal counsel about proposed discipline or termination before issuing notice of such to the employee is a wise use of funds and time.  The Local Government Law Group stands ready to assist you in the event that you need to discipline an employee or terminate their employment.

Changes to OFLA and PLO

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Reminder about Changes to Oregon Family Leave Act

By Mark Wolf

 

This is a friendly reminder about the Oregon Legislature’s recently passed Senate Bill 1515, which made changes to the Oregon Family Leave Act (OFLA) effective July 1, 2024.  The goal of these change was to minimize overlap between the provisions of OFLA and Paid Leave Oregon (PLO).  This is your reminder to review and update your policies consistent with the changes from SB 1515.

Here are the key changes from SB 1515:

  • The qualifying events under OFLA will be significantly reduced.
    • OFLA will no longer protect the following leaves (but leave may qualify under other protected leave laws):
  • Parental leave
  • Leave due to a serious health condition of the employee or employee’s family member
    • OFLA will continue to protect leave for the following reasons:
  • Bereavement
  • Pregnancy-related disabilities
  • Home care for the employee’s child (both serious and non-serious health conditions) as well as school and/or childcare closure for public health emergencies.
  • From July 1, 2024, through December 31, 2024, OFLA will also provide up to two additional weeks of leave “to effectuate the legal process required for placement of a foster child or the adoption of a child.” PLO will incorporate this leave beginning January 1, 2025.
  • OFLA will no longer run concurrent with PLO. Eligible employees may choose from either OFLA or PLO (but not both) for qualifying events. This change clears up current questions regarding leave-stacking.
  • Employees must be permitted to use any accrued paid benefits (paid vacation or sick leave) to supplement their PLO benefits up to the amount of full wage replacement. Employers may allow employees to use accrued leave up to the full number of missed hours, so that they take home more than their full wage.  Employers may determine the order in which accrued leave must be used when more than one leave type is available.
  • OFLA leave is capped at 12 weeks for home care of the employee’s child. Bereavement leave is limited to two weeks per death and is capped at a maximum of 4 weeks per year.
  • OFLA provides up to 12-additional weeks for pregnancy related disabilities.
  • The OFLA leave year is to be aligned with PLO, which is to be counted in the “measured forward” method starting a period of 52 consecutive weeks beginning the Sunday immediately preceding the first date of leave.

In light of these changes, you may need to review and revise your leave policies, forms, and procedures, if you have not done so already.  BOLI’s website contains forms that can be used to track employee leave.

One Year of Recreational Immunity

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Armand Resto-Spotts

Oregon’s “recreational immunity” law has been a hot topic in the local government world this past year.  After a July 2023 Court of Appeals decision, which interpreted and applied the statutory protection in a new way, the Oregon legislature recently passed a bill temporarily re-framing recreational immunity under law.  Although the bill’s language mostly reflects our traditional understanding of recreational immunity, there are a few important changes to note, specifically in how local governments manage recreational trails and areas going forward.

Recreational Immunity

Generally, under Oregon law (ORS 105.668, .682, .688), public and private landowners who make available their land, without charge, for recreational use by the public are protected from liability for injuries that a person may receive while recreating on that land.

Importantly, this “recreational immunity” protects local governments from lawsuits that may arise from the public’s use of trails, recreational spaces, or other public easements.  ORS 105.688 offers the primary protection for local governments that make public spaces available for recreational uses.  ORS 105.668 affords additional protections – namely for any use of a trail or structures within a trail in a public easement or unimproved right of way – which automatically apply to cities with a population of 500,000 or more, and may be opted into by cities with lesser population.

Fields v. Newport Changes

Last year, the Oregon Court of Appeals issued an opinion in Fields v. Newport that changed immediately available relief for cities, counties, and owners of private property.  The plaintiff was injured while walking her dog on a City-improved trail system that provided access to a non-city recreational area, i.e. a state beach.  Although the court affirmed the notion of recreational immunity, it remanded the case to the trial court for the jury to determine the particular question of whether the plaintiff’s primary purpose for using the improved trail was “recreational” in nature.  If so, then state law confers immunity on the city.  However, if the plaintiff’s purpose was not recreational – for example, only using the trail to access the beach – then the City may not be able to avail itself of immunity under state law, because the trail was improved and the statute only confers immunity to unimproved trails leading to recreational areas.

Despite the unique facts presented in the case, the Court of Appeals’ decision did throw into question the application of recreational immunity for public and private landowners – namely, whether immunity applies when the recreational user was not primarily “recreating” as defined by statute, but instead using the trail or area to access another location for recreation.  It also raised a common and related question of whether immunity should extend to an “improved” trail system.

Ultimately, the court’s interpretation of “recreational immunity” exposed public and private landowners to new risks, as it allowed for public users to argue that they were not “recreating,” by definition, and therefore not prohibited from bringing a lawsuit in the event of injury.

Senate Bill 1576 – Changes to Recreational Immunity Law

Given these new risks, the Newport decision garnered severe criticism from local governments, land trusts, and other landowners of recreational spaces.  CIS Oregon also issued advice expressing deep concern of the court’s opinion, and recommended that local governments consider closing trails until the legislature implemented a fix.

In response, due in part to local governments’ collective efforts, the Oregon legislature passed Senate Bill 1576, which sought to bolster and affirm recreational immunity.  The bill modified Oregon’s recreational immunity law in three important ways.

First, the bill adds to the definition of “recreational purposes,” which now extends to “walking, running, and bicycling,” in addition to other recreational activities listed in ORS 105.672.  Ideally, these new activities would capture a scenario like the one in Newport, where a public user is “walking” to access another recreational area.  Walking should now be treated as being undertaken with a “recreational purpose,” which is properly subject to immunity under ORS 105.682-.688.

Second, the bill extended recreational immunity to “improved” right of way that is designed or maintained to provide access for recreational purposes, subject to certain limitations.  This captures trails and areas where a local government has improved the land; however, the purpose of the improvements and right of way must still be for recreational purposes.

Third, the bill replaced “city” with “local government,” as specifically defined under ORS 174.116.  That latter statute defines “local government” as inclusive of cities, counties, and local service districts.  Importantly, then, the bill expressly affords recreational immunity under ORS 105.668 to special districts.

Interestingly, the bill has a sunset clause of January 2, 2026, meaning that these statutory changes are only effective until that time.  After that date, the language under ORS 105.668, .672, and 688 will revert to its original form.  Accordingly, this temporary fix to recreational immunity provides time for the legislature – and interested groups – to figure out a long-term solution to the problem raised by Newport – hopefully in the upcoming longer 2025 legislative session.

Next Steps for Local Governments

As a service provider, through management and maintenance of parks, trails, and other recreational areas, local governments need to be cognizant of these changes to recreational immunity.  Here are a few important reminders.

Foremost, all local governments that are responsible for recreational areas or trails must still actually maintain those areas and trails in a prudent, reasonable manner.  Recreational immunity does not protect against gross negligence or reckless, intentional misconduct.  Local governments should not abdicate their responsibility to maintain recreational facilities.

Second, recreational immunity is not the only defense for a city or local government to reduce liability risks.  For example, cities still have discretionary immunity, particularly in situations where a governing body has approved or adopted specific plans, like a park maintenance plan.  It is recommended that cities and local governments have appropriate policy-makers make decisions about what improvements, if any, are needed for recreational areas.

Finally, local governments with a population less than 500,000 have the option to “opt in” to the additional protections of ORS 105.668, which affords broader immunity than that provided generally to landowners under ORS 105.688.  Specifically, ORS 105.668 provides immunity against negligence claims from the use of a trail or structures (i.e., improvements in a trail) in an unimproved right of way or public easement.  If a local government wants to opt-in to the law, it may do so by adoption of an “ordinance, resolution, rule, order, or other regulation.”  It is recommended that in doing so, the local government establishes the intent to opt in and expressly referencing ORS 105.668’s provisions under which the city wants to extend immunity.

Ordinances, Resolutions, and Motions

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Truman Stone

This article is to provide a review of the fundamentals on how government bodies make formal decisions or exercise the government body’s power.  The first part outlines the options, with the second part providing some overview of the mechanics.

Unlike Federal and State systems, local governments typically do not have separation of powers.  For instance, a Fire District Board may in a single meeting act like a legislature by passing a fire code, or act as an executive branch by approving a contract.  The type of decision will dictate the form used.

When adopting generally applicable laws that would apply in future circumstances, the government body is acting like a legislature.  In that case, an ordinance is the proper vehicle.  You could compare this to a bill coming before the Oregon legislature.  Those ordinances or bills are often then compiled together into a code to make it easier to track and research the enactment.  Ordinances typically go into effect thirty (30) days after adoption, with notable exceptions.

Hiring employees, awarding a construction bid, instructing staff to work on things, or approving a contract are common examples of the government body acting in an executive capacity to run the government.  The more formal of these decisions are typically made by resolution and the less formal by motion, but both are types of the same action.  Resolutions or motions typically go into effect the day following adoption, or at a later specified date.

Clients frequently ask about the structure within the document itself.  Documents usually start with recitals which contain brief explanations of why the action is being taken.  This creates a legislative history for future reference.  These paragraphs often start with a “Whereas” meaning that the government body is finding this specific fact or circumstance exists that caused the government body to act.  Sometimes these facts are more general, and sometimes they are absolutely required by a statute to be found to exist, for instance a factual finding of an emergency.

Sometimes the findings are extensive, and it would create readability problems to list those all out in the main document.  For those occasions, you may include factual findings in exhibits to attach and make a reference to the exhibit in the body of the main document.  An example: “Wherefore, the City Council makes and adopts the findings set out in the attached Exhibit A, which is incorporated by this reference.”

Actions come at the bottom in the section that often starts with “Therefore.”  Because of the facts above, therefore, the following action is undertaken.  All the action happens here, not in the recitals.  If you expect someone to do something, it should be in this part of the document.

It is important to look to your city charter or enabling legislation (i.e. principle act) for specific requirements that may apply to your government.  We are always here to help, so if you are unsure, give us a call.