2016 Annual Employment Law Update

Transcription

1 Oregon Law Institute of Lewis & Clark Law School 2016 Annual Employment Law Update Friday, May 13, 2016 Ambridge Event Center 1333 NE Martin Luther King Jr. Blvd. Portland, Oregon 97232

2 2016 Annual Employment Law Update Course Materials from the May 13, 2016 Program in Portland OREGON LAW INSTITUTE OF LEWIS & CLARK LAW SCHOOL SW Terwilliger Blvd. Portland, OR (503) (800) Fax: (503) Website: Follow us on

3 BOARD OF DIRECTORS Oregon Law Institute Lewis & Clark Law School Katherine Heekin, Esq., President Hon. Robert D. Durham, Vice President Hon. Meagan A. Flynn, Secretary/Treasurer Martin F. Medeiros II, Esq., Past President Jeffrey G. Condit, Esq., Member at Large H. Thomas Andersen, Esq. Hon. Richard C. Baldwin Amy C. Bushaw, Esq. Thomas D Amore, Esq. Grace Y. Lee, Esq. Richard F. Liebman, Esq. Hon. Marilyn E. Litzenberger Kathleen K. Miller, RP Hon. Susie L. Norby Peter C. Richter, Esq. Hon. Timothy J. Sercombe Hon. Michael H. Simon Richard A. Slottee, Esq. Dayna E. Underhill, Esq. Jere M. Webb, Esq. Simon Whang, Esq. Robert Truman, Esq. Assistant Dean for CLE and Director, Oregon Law Institute Lewis & Clark Law School The materials in this course book are published by the Oregon Law Institute, Lewis & Clark Law School for the use of attorneys. Neither OLI nor the contributors make either express or implied warranties regarding the use of these materials. Each attorney must depend upon his or her own knowledge of the law and expertise in the use and modifications of these materials by Oregon Law Institute, Lewis & Clark Law School

4 Schedule 8:25 am Welcome and Opening Remarks Amy L. Angel 8:30 Out of Office: Oregon Sick Leave Amy L. Angel 9:15 The Missing Link: Interpreting Oregon s R. Kyle Busse Aid and Abet Statute 9:45 Networking Break 10:00 Oregon 2016 Legislative Update and 2015 Recap Dan Grinfas 11:00 Electronic Lawyering: Ethics Update on #Trending David J. Elkanich Topics for Lawyers 12:00 Lunch (you are on your own) 1:00 Workplace Drug Testing: Marijuana vs. Alcohol Jana Wolfgang 1:45 Case Law Update Richard F. Liebman 3:00 Networking Break 3:15 Implicit Bias and Race Barbara J. Diamond 4:30 pm Adjourn

5 Planner Richard F. Liebman, Founding Partner, Barran Liebman LLP, Portland; B.A. (1969) and J.D. (1972), University of California at Berkeley; admitted to practice in Oregon, Washington, Hawaii, and U.S. Court of Appeals, District of Columbia; has represented employers for 40 years in labor and employment law; former chair, Tri-County Affirmative Action Association and the Oregon State Bar s Labor Law Section; management editor, Oregon State Bar s book and supplements entitled LABOR AND EMPLOYMENT LAW; instructor, EEO law at Portland State University s Professional Development Center; selected repeatedly by peers for listing in the Best Lawyers in America (1995 present); elected by his national colleagues as a national fellow of The College of Labor and Employment; ranked #1 for Labor and Employment Law defense in the State of Oregon by Chambers & Partners USA, America s Leading Business Lawyers (2003 present); recipient of the first OSB Labor and Employment Section s Award for Distinguished Service (2003); first recipient of the Management Practitioner of the Year Award by the Industrial Relations Research Association (2004); ranked as one of the top 50 lawyers in Oregon by Super Lawyers; selected by Best Lawyers as the Labor and Employment Lawyer of the year in Portland (2010, 2012, and 2014); board member, Oregon Law Institute (2007 present) and Oregon Independent College Foundation (2006 present). Faculty Amy L. Angel, Partner, Barran Liebman LLP, Portland; B.A., Cornell University (1996); J.D., cum laude, Duke University School of Law (2001); member of the Oregon State Bar since 2004; admitted to practice in the U.S. District Court, District of Oregon; represents public and private employers in all stages of employment litigation, including advice and compliance, administrative complaints, trial, and appeal; member, OSB New Lawyer Mentoring Committee (Mentor, 2012 present); Executive Committee member, OSB Alternative Dispute Resolution Section (2014 present); editorial board member, OSB Civil Rights Section Newsletter (2008 present, member, , Chair 2010); Board member, Multnomah Bar Foundation (2014 present); member, CourtCare Campaign Committee, Multnomah Bar Foundation (2010 present, Chair 2012 present); member, Employment Practices Steering Committee, Associated Oregon Industries (2013 present); member, U.S. District Court of Oregon Historical Society, and OWLS (2004 present); selected as a Rising Star, Oregon Super Lawyers (2010- present) and included in Best Lawyers (2015); frequent author and speaker addressing businesses and trade organizations on employment related cutting-edge issues. R. Kyle Busse, Partner, Busse & Hunt, Portland; B.A., University of Oregon (2003); J.D., Pace University School of Law (2006); member of the Oregon State Bar since 2007; admitted to practice in the U.S. District Court, District of Oregon, and the U.S. Court of Appeals for the Ninth Circuit; represents employees in the matters involving discrimination, harassment, retaliation, whistleblowing, wrongful discharge, family medical leave, fraud, unpaid wages, unemployment benefits and discrimination in places of public

6 accommodation; member, MBA Solo and Small Firm Committee; member, OSB Civil Rights Section, and OTLA Guardian; Chair, Portland Human Rights Commission Human Trafficking Task Force; Mentor, American Constitution Society for Law and Policy Mentorship Program; selected as a Rising Star, Oregon Super Lawyers (2008 present) and Best Lawyers in America for Litigation in Employment Law Individuals, and Labor and Employment Law ; contributor to publications on various topics including federal practice, alternative dispute resolution, EEOC enforcement, injured worker and workers compensation discrimination. Barbara J. Diamond, Founder, Diamond Law, Producer and Director, Diamond Law Training, Portland; B.A., State University of New York at Binghamton (1980); J.D., New York University School of Law (1983); member of the Oregon and New York State Bars since 1985; practice focuses on labor and employment law; member, OSB Labor and Employment Executive Committee; recipient, 2016 LERA Labor Attorney Award; producer, 2016 Implicit Bias CLE; trainer, Implicit Bias, 2016 Oregon Judicial Conference. David J. Elkanich, Partner, Holland & Knight LLP, Portland; Adjunct Professor, Lewis & Clark Law School; B.A., magna cum laude, University of Arizona (1996); J.D., University of Oregon School of Law (1999); member of the Oregon State Bar since 1999, Washington State Bar since 2005, and Idaho State Bar since 2009; admitted to practice in the U.S. District Courts, District of Oregon, Western District of Washington, and District of Idaho, and the U.S. Court of Appeals for the Ninth Circuit; advises lawyers and law firms in a wide range of professional responsibility matters, including ethics advice, bar discipline defense, and litigation assistance with sanctions issues, withdrawal and disqualification motions; regularly counsels lawyers and other professionals on how to navigate an electronic practice, including the rules of engaging in online activity, mining metadata, and in utilizing social media; past chair and current member, Oregon Legal Ethics Committee; Chair, RPC 8.4 (Anti-Bias) Drafting Committee; former member, Washington Rules of Professional Conduct Committee; former member, OSB Unlawful Practice of Law Task Force; former member, Washington Rules of Professional Conduct Committee; former member OSB Uniform (Civil) Jury Instructions Committee; member, Association of Professional Responsibility Lawyers; member, ABA Center for Professional Responsibilities. Dan Grinfas, Buchanan Angeli Altschul & Sullivan LLP, Portland; B.S., U.C.L.A. (1988); J.D., Willamette University College of Law (1994); member of the Oregon State Bar since 1994; practice focuses on counseling employers, conducting training in a variety of employment-related areas, and representing management before administrative agencies including BOLI and the EEOC; former lead program coordinator, BOLI Technical Assistance for Employers; member, OSB Labor and Employment Law Section, and OSB Civil Rights Section; editorial board member, Oregon Civil Rights Newsletter; co-authored Family Leave Laws, Labor and Employment Law, Private Sector (OSB 2002), Statutes Affecting Compensation, Labor and

7 Employment Law, Public Sector (OSB 2002 and 2011), and Equal Employment Opportunity: Disabilities, Labor and Employment Law, Private Sector (OSB 2011); certified as a Senior Professional in Human Resources (SPHR) by the Human Resources Certification Institute; certified as a Senior Certified Professional (SHRM-SCP) by the society for Human Resources Management; selected for inclusion in the Employment Law category of Chambers USA, America s Leading Business Lawyers, Best Lawyers in America, and Oregon Super Lawyers; teaches Employee and Labor Relations as an adjunct professor with the School of Business Administration at Portland State University. Jana Wolfgang, MS, C-SAPA, President, Wolfgang Associates, Inc., Portland; A.B., Princeton University (1976); M.S., Fairleigh Dickinson University (1981); independent provider of random selections and other services assisting employers with drug-free workplace programs, Department of Transportation (DOT) drug and alcohol regulations, and joint union/contractor drug free workplace programs (1986 present); Certified Substance Abuse Program Administrator (C-SAPA) credential (1997); co-chair, Portland Employer Drug-Free Initiative (PEDI) ( ).

8 Table of Contents 1. Out of Office: Oregon Sick Leave AMY L. ANGEL 2. The Missing Link: Interpreting Oregon s R. KYLE BUSSE Aid and Abet Statute 3. Oregon 2016 Legislative Update and 2015 Recap DAN GRINFAS 4. Electronic Lawyering: Ethics Update on #Trending DAVID J. ELKANICH Topics for Lawyers 5. Workplace Drug Testing: Marijuana vs. Alcohol JANA WOLFGANG 6. Case Law Update RICHARD F. LIEBMAN ANTHONY D. KUCHULIS 7. Implicit Bias and Race BARBARA J. DIAMOND