Located in the Portland-Vancouver area, attorney Chey Powelson provides clients with practical advice and vigorous litigation representation. He is licensed to practice in both Oregon and Washington.

Areas of Practice

EMPLOYMENT LAW

Workplace Discrimination on the basis of sex/gender, pregnancy or pregnancy-related condition (including disability after childbirth), race, age, religion, or disability (including an employer’s failure to accommodate). Workplace discrimination can be in the form of sexual harassment (a type of sex discrimination), or a hostile work environment concerning a person’s gender, race, or other legally-protected characteristic.

Actionable discrimination can arise when the employee suffers an “tangible employment action”, which is something that materially alters a person’s employment status, such as a failure to hire, demotion, or termination.

Retaliation, including wrongful termination, due to: (A) the employee engaging in a legally-protected activity, such as requesting a workplace accommodation or medical leave (or having an employer perceive the employee will make such a request or “invoke” their legal rights), opposing or reporting non-payment of earned wages, or filing a workers compensation claim; or (B) opposing or reporting employer or workplace conduct the employee reasonably believes to be unlawful. A “retaliatory” hostile work environment can arise in response to the employee’s opposition to or the reporting of workplace discrimination or other unlawful conduct.

Actionable retaliation may be present when the employee experiences an “adverse employment action” which, in contrast to a “tangible employment action”, is “any adverse treatment that is based on retaliatory motive” and “reasonably likely” to deter the reporting employee or other employees from engaging in legally-protected activity.  What constitutes an adverse employment action depends on the context.  For example, under specific circumstances, supervisor coercion, a less desirable work schedule or work assignment, or paid administrative leave, might be an adverse employment action.

Some statutes, such as the Sarbanes-Oxley Act of 2002, do not require the whistleblower employee to prove the employer acted with “retaliatory intent” when “discriminating against” the employee. Rather, the employee need only show their protected activity was a “contributing factor” to the employer’s personnel decision affecting the employee.  The “contributing factor” standard applies in other areas of the law, such as the FMLA.

Sexual Harassment, which is a form of prohibited sex discrimination. Courts may view sexual harassment as existing in one or both of the following forms:

• Quid pro quo conduct by an owner, manager, or supervisor; or

• A hostile work environment. Usually a hostile work environment exists if the harassing conduct is (A) unwelcome, and (B) either “severe” or “pervasive” enough to alter the terms and conditions of the victim’s employment. Whether conduct is sufficiently severe or pervasive is judged from that of a “reasonable [victim’s] perspective”.

  • In assessing whether conduct is “severe or pervasive”, the United States Supreme Court has explained that all of the circumstances should be considered, including: the frequency of the discriminatory conduct; the conduct’s severity; whether it is either (A) physically threatening or humiliating, or (B) a mere [single or isolated] offensive utterance; and whether it unreasonably interferes with an employee’s work performance.  In certain circumstances, a single incident can create a hostile work environment.

  • Usually, if the employer’s owner, manager, partner or corporate officer personally participates in the harassment, then their conduct is imputed to the employer.

  • If the victim’s harasser is by a supervisor, but the harassment does not result in what under Federal law a court would call a “tangible employment action”, then the victim should use the employer’s harassment reporting process. In response, the employer should promptly take all reasonable steps to effectively end the harassment. The employer should also have measures in place — and enforce — written anti-harassment policies, in order to prevent a hostile work environment. State law, such as in Washington, may be slightly different for purposes of when an employer is liable for harassment.

  • If the employee’s harasser is a co-worker, then the employee should promptly report the harassment to the employer’s Human Resources department, and/or other person as identified in the employer’s anti-harassment policies. A report should preferably be in writing, such as email. Certain exceptions to this requirement may exist, such as when the employer already has other notice, or otherwise should have known, of the harassment.

  • Illegal harassment does not need to occur at the employer’s workplace, and a hostile work environment can be caused by someone other than an employee or owner. For example:

    • Harassment can occur away from work, at an off-site employer-sponsored or required function.

    • A hostile work environment based on sexual or other illegal harassment (such as on the basis of race) can arise when a third party — such as a customer or delivery person — visits the employer’s premises and harasses the employee. The employer can be liable for the harassment if it knew or should have known about it, but failed to take prompt remedial measures reasonably calculated to end the harassment. An employer may also be liable if it took remedial measures, but did so negligently.

Medical and Family Leave interference, denial, discrimination, and retaliation issues concerning:

• Federal Family & Medical Leave Act (FMLA), which applies to employers who have at least 50 employees within 75 miles of the employee’s work site. An employee’s eligibility for FMLA leave depends in part, on: whether they or a family member have a “serious medical condition”; and how long they have worked for the employer (at least one year, and at least 1,250 hours during that year just prior to the leave). The employer is obligated to provide employees with notice of their FMLA rights, and unless the leave qualifies as an emergency, the employee also has certain notice obligations to the employer.

  • Interference, Denial and/or Discrimination: An employer’s “interference” with an employee’s FMLA rights can occur when, for example, they discourage the employee from applying for or taking FMLA leave, or denying the employee’s right to return to their former position or its equivalent.  Interference can occur without an employer’s formal denial of the employee’s request or need for leave. Importantly, Federal law prohibits an employer from considering the employee’s FMLA leave as a “negative factor”, when making an employment decision about that employee.  In the Ninth Circuit, the causation standard for FMLA interference claims is more closely aligned with the “contributing factor” standard, instead of a “but for” standard.

  • Retaliation: FMLA “retaliation” usually only applies if (A) the employee had filed a complaint with the U.S. Department of Labor, commenced a lawsuit, or participated in an FMLA proceeding as the complainant or a witness, and (B) on that basis the employer imposed an adverse employment action.

• Oregon Family & Medical Leave Act (OFLA), which is similar to the Federal FMLA, but applies when (A) the employer has at least 25 employees in Oregon, and (B) the employee requiring leave worked an average of 25 hours per week for 180 days just prior to leave.

• Oregon Paid Medical Leave (Paid Leave Oregon)

• Oregon Sick Leave

• Washington Sick Leave

• Washington Paid Family & Medical Leave (PFMLA), which is somewhat analogous to the Federal FMLA.

• Washington Family Care Act

• Pregnancy and parental leave under State and Federal law

Whistleblowing for workplace fraud, safety, and for other matters arising under Federal or State law including:

• The Federal Surface Transportation Assistance Act (STAA)

• The Federal Occupational Safety & Health Act (OSHA), Section 11(c) (or Oregon OSHA, to which certain Federal matters have been delegated for investigation)

• The Food & Drug Administration (FDA) Food Safety Modernization Act (FSMA)

• Sarbanes-Oxley Act of 2002

Negligent Employer Hiring, Supervision or Retention of harasser employees.

Non-Competition (noncompete) and Non-Solicitation Restrictions (restrictive covenants) in Oregon and Washington

Wage Law issues arising under Oregon and Washington wage statutes (e.g., Oregon Revised Statute Chapters 652 & 653; and Revised Code of Washington Chapters 49.46, 49.48 & 49.52), and the Federal Fair Labor Standards Act (“FLSA”), and which relate to:

• Earned but unpaid wages, including overtime

• Late wages and final paychecks

• Equal pay (gender disparity) issues

• Improper or unauthorized pay deductions

• Improper or “non-neutral” time clock rounding

• Misclassification of job positions as exempt from overtime wages (executive, administrative, professional and outside sales exemptions)

CONTRACT DRAFTING & REVIEW

Employment Contracts

Separation Agreements (severance and release agreements), which may include one-sided, unfavorable terms, and/or improper confidentiality, non-disclosure, non-disparagement, or non-compete provisions in violation of Oregon, Washington, or Federal law