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Labor, Employment and Benefits
Alert - July 29, 2009
 
Oregon Law Restricts Employer's Ability to Hold Mandatory Meetings to Discuss Union Organizing
 
 July 29, 2009
 
Louis Santiago - Portland
Todd D. Steenson- Chicago

In a development with implications for employers with Oregon employees, Oregon Governor Ted Kulongoski recently signed a bill that prohibits an employer from taking or threatening to take any adverse employment action against an Oregon employee who declines to attend or participate in an employer-sponsored meeting or communication, if the primary purpose of the meeting or communication is to convey the opinion of the employer about religious or political matters.

According to Senate Bill 519, which the governor signed on June 30, 2009, and which will take effect on January 1, 2010, “political matters” includes the decision to join, not join, support or not support any lawful constituent group; “constituent group” includes labor organizations. In effect, this bill restricts an employer’s ability to hold mandatory meetings to discuss union organizing.

The new law also prohibits an employer from retaliating against an employee who reports a violation or suspected violation of the law, except when the employee knows the report is false. It does not limit the rights of an employer to offer meetings, forums or other communications about religious or political matters for which attendance is strictly voluntary.

Employee Remedies

An aggrieved employee may bring a civil action to enforce the new law no later than 90 days after the date of the alleged violation. If the employee prevails, a court may order injunctive relief, reinstatement to the former position or an equivalent position, back pay, and the reestablishment of any employee benefit, including seniority, to which the employee would otherwise have been eligible if the violation had not occurred. Additionally, the law provides that the court shall award a prevailing employee treble damages, together with reasonable attorney fees and costs.

Employer Posting Requirement

Employers must post a notice of employee rights under the new law in a place normally reserved for employment-related notices in a location commonly frequented by employees.

Exemptions

Several exceptions to the new law apply. The new law does not do the following:

    • prohibit a religious organization from requiring its employees to attend an employer-sponsored meeting or participate in any communication with the employer if the primary purpose there of is communicating the employer’s religious beliefs, practices or tenets
    • prohibit a political organization from requiring its employees to attend an employer-sponsored meeting or participate in any communication with the employer if the primary purpose thereof is communicating the employer’s political tenets or purposes
    • prohibit mandatory meetings of an employer’s executive or administrative personnel to discuss issues related to the employer’s business, including those issues addressed in the new law

Challenges Expected

Senate Bill 519 was hotly debated: supporters referred to it as the “Worker Freedom Act,” and opponents called it the “Employer Gag Bill.” Now that the bill has been signed into law, employer organizations are expected to challenge it on the ground that the NLRA preempts state action in this area. Additionally, the law may be challenged as a violation of Article I, Section 8 of the Oregon Constitution, which, according to the Oregon Supreme Court, prohibits lawmakers from enacting restrictions that focus on the content of speech because that speech itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences.

What Employers Should Do

Employers with Oregon employees should closely monitor the expected challenges to the new law. If it is not struck down or temporarily enjoined before its effective date, employers who face union organizing efforts in Oregon will be presented with a difficult choice. Some may decide to comply with the new law and forego mandatory meetings, which are arguably the most valuable part of an employer’s campaign. Other employers may choose to defy the new law until the courts have ruled on the challenges and face the consequences if it is ultimately upheld. Before making such decisions, employers should consult with experienced labor counsel.

For more information, contact:

Louis A. Santiago
503.243.2300 | louis.santiago@hklaw.com

Todd D. Steenson
312.578.6541 | todd.steenson@hklaw.com

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