Big Changes to Some Big Employers’ Employee Scheduling Practices

“Affected employers will have to provide their employees with seven days advance notice of their shift schedules”

On June 29, 2017, the House approved and sent to the governor, Senate Bill 828 which will require large employers in certain industries to provide advanced notice to employees of their work schedules. This new law will affect only retail, hospitality, and food service establishments with 500 or more employees worldwide. Affected employers will have to provide their employees with seven days advance notice of their shift schedules. Affected employers will also need to make a good faith effort to provide new employees with an estimation of the average number of hours the employee can expect to work in a month. It is expected that the governor will sign the bill into law.

The new law will also provide employees of the affected industries with a right to rest between work shifts. The right to rest, which an employee may waive, requires the employer to not schedule an employee to work during the first 10 hours following the end of a work shift. If the employer does schedule an employee during a rest period, then the employer must compensate the employee at time and a half for each hour worked during the rest period.

If an employer requests changes to an employee’s work schedule without seven days’ advance notice, then the employee may decline the work shifts. However, if an employee requests additional work shifts in writing, then the employer does not need to provide advanced notice. If an employee accepts the shift, then the employer will have to provide additional compensation in most circumstances. Additional compensation requirements will not apply in some circumstances such as when an employee initiates and arranges a work shift swap or coverage agreement with another employee.

Employees of the affected employers will also have a right to provide input as to limitations or changes to their work schedule. However, an employer will have no obligation to grant an employee’s work schedule requests.

Affected employers will be required to post in the work place a notice of employee rights under the new law. Employers will also be required to keep records for three years documenting their compliance with the new law.

Employers will be permitted to maintain a voluntary standby list of employees willing to cover shifts because of unanticipated customer needs or unexpected employee absences. Employees will have the option to be removed from the list at any time. An employer may not retaliate against an employee that does not want to be on the list or declines to work additional hours. The punishment for coercing an employee into being added to the standby list is a civil penalty up to $2,000.

The seven days’ notice requirement, good faith estimation of a new employees work schedule, voluntary standby list, right to rest between work shifts, employee right to input into work schedule, compensation for work schedule changes, notice of employee rights and recordkeeping requirements will become effective in July, 2018.The enforcement provisions and retaliation prohibitions will take effect in July, 2019. Beginning in July, 2020, affected employers will be required to provide two weeks’ notice to employees concerning their work schedules.

Are You Really In Good Hands – Ensuring Your Insurance

“With insurance contracts… disputes are often about coverage”

Everyone should have insurance, and being insured does, in many ways, help us sleep at night. However, as with many contracts (and remember, an insurance policy is actually a contract), disputes sometimes arise. It is not unusual for there to be a dispute regarding the interpretation of insurance contract terms. And, with insurance contracts, those disputes are often about coverage. That is, the insurance company may claim that, even though you have insurance, your claim is not covered. This can be frustrating.

A short time ago, I attended a seminar on insurance coverage where recent Court of Appeals’ decisions served as reminders of some important issues to remember when faced with a coverage dispute.

First, Oregon law provides that if an insurance claim is not paid within six months of the filing of a proof of loss, the insured is entitled to a recovery of attorney’s fees if the dispute goes to court.

Second, many insurance policies include a “contract statute of limitations.” Ordinarily, a party to a contract has six years to bring a lawsuit. However, an insurance contract could provide for a much shorter statute of limitations; say, one year instead of six.

Finally, one must be careful that they are accurate when submitting a claim. Under certain circumstances, an insurance company has the right to cancel the insurance policy if the insured makes misrepresentations about the loss during the adjustment of the claim. In fact, accuracy matters in all insurance transactions; not only in submitting claims but in submitting applications and underwriting information as well. Coverage could be denied if information provided to the insurance company was not accurate, no matter when that information was provided.

In summary, treat any insurance claim as a contract dispute and pay careful attention to the details.

Steven W. Seymour is an accomplished business litigator with an emphasis on labor and employment law as well as fiduciary litigation. To contact Steve, or another attorney at Samuels Yoelin Kantor, call 503.226.2966, or by email at info@samuelslaw.com.

 

The Magna Carta: A Sabbatical in England

The Magna Carta (The Great Charter)

To end this series of sabbatical articles, I return to the beginning: That is, the beginning of the rule of law enjoyed by both England and America.

The year was 1215. King John was the reigning monarch of England, and it was not going well for him. Born on Christmas Eve, 1167, he has been called a lecherous traitor, a depraved tyrant and a hopeless leader in war. It is no wonder that his subjects rose up against him.

Like his predecessors, King John ruled using the principle of “force and will,” making executive and sometimes arbitrary decisions on the basis that the King was above the law.

The barons in the north and east of England renounced their feudal allegiance to the king and marched on London, capturing the city, and forcing King John to negotiate. On June 10, 1215, both sides met on a meadow at Runnymede on the south bank of the  River Thames. This was a traditional place for assemblies, and was on neutral ground between the two sides. Over the next ten days the two sides mediated their dispute, using the Archbishop of Canterbury as a mediator.

This process was substantially similar to the mediation process we use today in litigation. When we have a litigation case that reaches a point where a mediated resolution appears possible, the litigators in our firm coordinate with counsel for the other side to arrange a mediation. We agree on a location for the mediation and we agree on a mediator. Both sides submit positions and proposals to the mediator, who works with both sides to move toward a negotiated settlement, which we then confirm in writing with a document called a Settlement Agreement, which is then signed by both sides.

This same process was employed by the parties at Runnymede. Both sides brought with them written proposals, which they gave to the Archbishop, who worked with the parties to move toward a negotiated settlement. Over a period of ten days the Archbishop’s pragmatic efforts resulted in a settlement agreement which was written down and signed by both sides. This written agreement has become known as The Magna Carta (The Great Charter).

The barons renewed their oaths of allegiance to King John and copies of the Magna Carta were formally issued. Of those copies made in 1215, only four have survived, and one is owned by the Lincoln Cathedral in the City of Lincoln, England. It is on display in a vault at a museum there for all to see.

I was privileged to visit that museum and see, with my own eyes, this great document. I was amazed that this historic document is written in tiny script, and is contained entirely on one page. Though small in size, it’s importance is huge. For the first time, it established that no one, not even the king, was above the law. It provided for the protection of rights, including protection from illegal imprisonment, access to swift justice and limitations on taxation. It even protected certain rights of serfs.

Standing in the presence of this historic document which serves as the basis of our own country’s allegiance to the rule of law, I was reminded of the words of John Adams, one of our founding fathers, referring to our Constitution, “May [it] be a government of laws, and not of men.” It is this rule of law that is at the core of the American idea that makes possible individual freedom. And, this rule of law has its origin in The Magna Carta, on display in a museum next to the Lincoln Cathedral, in England.

Rural Justice in Old England: A Sabbatical in England

In contrast to the established courts and courtrooms in London, justice was once delivered to the outlying rural areas of England by horseback. For example Cambridgeshire had three towns which hosted periodic courts called “assizes.”  The word “assize” refers to the sessions of the judges who traveled across the seven circuits of England and Wales, similar to the original concept of circuit courts in America. Abraham Lincoln was known to have traveled on such circuits during the time that he practiced law in Illinois. In England, these assizes were still active until they were abolished by the Courts Act of 1971, which replaced them with a single, permanent Crown Court.

These old assize courts were authorized by a commission of “Oyer and Terminer” (literally, to “hear and determine”), which authorized them to investigate through a grand jury and to hear the case by means of a petit jury (commonly known as a trial jury), similar to modern American criminal procedure. As an interesting historical aside, the governor of Massachusetts commissioned a court of Oyer and Terminer for the Salem witch trials in 1692.

While traveling through Cambridgeshire, I stopped at the old market town of Wisbech where, in the old days, the King’s Court would ride into town with judges, barristers, soldiers and horsemen, together with wives, children and many others to administer justice, which was often summary and brutal. The departure of the Court was celebrated in the Market Place with a feast!

The Queen v Scott and Dyer, Part 2: A Sabbatical in England

Trial resumed with the banging of the gavel at 10:30 a.m., the traditional starting time for court in England. An American court would have ordinarily started at 9:30, or even earlier. Indeed, in my experience, I have often been in court, ready to go by as early as 8:30.

The Crown’s first witness for the day was the CCTV detective. England is awash in CCTV (closed circuit television) cameras. Although the use of CCTV dates back as early as the 1960s, the IRA bombing in Bishopsgate, London in 1993 resulted in the construction of a “Ring of Steel” around the capital, with CCTV cameras playing a major role. And, by 2011 there were an estimated 1.85 million CCTV cameras in use in the UK. These cameras are often very useful in criminal investigations in England.

The murder in this case was captured on three CCTV cameras placed at various points around the apartment complex where the crime occurred. One member of the detective team was responsible for obtaining and analyzing the surveillance videos. He testified that these cameras shot one image every two seconds, so not every move by the subjects was recorded. The entire incident lasted only 62 seconds, yet the detective had been able to reconstruct the incident into a series of still images which told a compelling story. The detective testified that he had spent literally “hundreds of hours” viewing and analyzing the images of those 62 seconds. The result was clear and convincing .

Although the use of CCTV cameras in America is not unusual, the US has not embraced stat-sponsored CCTV the way the UK has. That may be changing in the wake of the Boston Marathon bombing in which surveillance video was used to identify the suspects.

After the CCTV testimony, two more eye witnesses were called to round out the Crown’s case, and then the pathologist was called to testify. To aid the jury’s understanding of his testimony, the pathologist had created a series of images identifying the wound locations on the body of the victim. However, instead of using the actual photographs of the wounds, as would be routine in an American trial, he had created a booklet showing a series if images of the stab wounds on a virtual body with a human form, but not showing the gruesome reality of the wounds. The purpose, I was told, was to spare the jury the shock of witnessing the grisly nature of the knife wounds. If this practice has been adopted in US courts, I am not aware of it. Ordinarily, an American prosecutor would tend to favor reality in the images in order to demonstrate the brutality of the crime. Criminal defense lawyers often see it differently, and American judges are routinely asked to balance the risk of unfair prejudice to an accused against the prosecutor’s obligation to present the facts to the jury. The practice I saw in the English court may provide an appropriate middle ground for some delicate cases in the US.

With the last of the Crown’s evidence presented, it was time for the defendants to present their evidence, if any. And then, the case would go to the jury for deliberation and verdict, just as in an American trial.

The Queen v Scott and Dyer: A Sabbatical in England

“Just after 6:00 pm… Scott and Dyer attacked Fearon and his companion, Junior Inneh, stabbing both, and killing Fearon.”

Just before the proceedings started, the Detective-Sergeant in charge of the murder investigation provided me a short summary of the facts of the case: Two young men, both age 15 at the time of the crime, were charged with the stabbing death of one Shaquan Fearon on September 3, 2015. Just after 6:00 pm on that date, Scott and Dyer attacked Fearon and his companion, Junior Inneh, stabbing both, and killing Fearon. The incident took place outside a block of flats in south east London. It was captured on closed circuit television (CCTV), and was witnessed by local residents. No motive for the attack had been determined by the time of trial.

The Crown called “Jane Liverpool” as a witness. She lived near the crime scene, and because she had a fear of consequences, the court had granted her anonymity. She appeared under a pseudonym, and before she took the stand, a curtain was drawn in front of the witness box so she could be seen by the judge and the jury, but not by the defendants in the dock, nor by the public in the gallery. In America, an accused has the right to confront his accusers under the Confrontation Clause of the Sixth Amendment, so witnesses are rarely granted anonymity. I am not aware of any circumstance in which a witness in an American criminal proceeding has been screened so that the defendant could not view the witness’s testimony. In fact, there is a 1988 US Supreme Court case that holds that such screening violates the Confrontation Clause (Coy v Iowa, 487 US 1012).

The Barrister for the Crown led “Jane Liverpool” through her testimony. She testified that she was walking home, using her phone, when she saw four youths in a corner and saw a knife in the hand of one of the defendants. The testimony went well, and there was little cross examination. Later I learned that in an English court, the Barrister never meets with the witness prior to trial. In America, the prosecutor would have met with “Jane Liverpool” prior to trial and would have prepared her to testify. In England, however, that sort of witness preparation is viewed as very improper. The Barrister relies only on the witness statement provided by the detectives.

The next witness was an eyewitness who had been arrested since the incident, so he was appearing as a prisoner. The Detective Sergeant told me that the witness would be unpredictable and might even refuse to testify. He was brought down to the court during the lunch recess in chains, and was unshackled and placed in the witness box before the jury was brought in. As it turned out, the witness was combative, but generally cooperative. The defense tried to poke holes in his eyewitness account, but not very successfully. I did notice that on his way out of the courtroom, he turned and waived to the defendants.

This ended the proceeding for the day. I was struck by the realization that I had watched an entire day of trial without one objection being raised. I later learned that objections are not favored in English courts, and are rarely raised. This is in contrast to proceedings in an American court in which failure to object waives your right to appeal.

Courtroom No. 9: A Sabbatical in England

“It should be no surprise that English courtrooms differ in many ways from American courtrooms”

Everyone has seen an American courtroom on television or in the movies. And, we have seen American lawyers walk freely about the courtroom, sometimes standing right up next to the witness. English Barristers never walk around the courtroom, and never move up next to a witness. Therefor, it should be no surprise that English courtrooms differ in many ways from American courtrooms.

We entered Courtroom No. 9 from a foyer on the third floor reserved for Barristers, witnesses and court personnel. Members of the public who wished to observe the proceedings could access a viewing gallery from the fourth floor. This prevented the general public from mingling with the court officials and witnesses. In an American courtroom, the public, the parties and the court personnel all congregate together.

The entry door was on the side of the courtroom, past the desk of the Court Usher. The Usher, Robert, from Scotland, was responsible for announcing the judge, escorting the jury, and other participants to and from the courtroom. Next to the Usher’s desk were two desks used by the police detectives who were in charge of investigating the murder being tried.

The front of the courtroom was dominated by a long, raised desk or “bench,” similar to, if longer than, an American judge’s bench. It was fronted by the clerk’s desk, also raised, but not as high. The clerk would ordinarily be a solicitor whose job it was to maintain the records of the court.

At the end of the bench near the Usher’s desk was the witness box (in America it is known as the witness stand), and at the other end of the bench was the jury box.

At the back of the courtroom was the prisoner’s dock, a wood and glass enclosure with a secure entrance through which the guards brought the defendants. In an American courtroom, the defendant sits at counsel table next to his lawyer and may confer with his lawyer at any time. In contrast, in an English court, the defendant remains in the dock, and may confer with his Barrister and Solicitor only during a court recess.

The center of the courtroom, known as the “well” of the court, was filled with three tables, each running the width of the courtroom, for the Barristers and their clerks. Each Barrister had set up a portable podium at his or her place at one of the tables. These podiums had shelves for their court binders and other documents used during the trial. For this trial, there were two Barristers for the Crown on one side of the courtroom and four Barristers, two each for each of the two defendants, on the other side. Since the prosecutors were from Sarah’s chambers, I was allowed to sit at the third table behind the prosecution.

It was almost 10:30 am, the traditional time for the court to “sit,” or begin its session. Sarah told me I could leave the courtroom at any time during the proceedings, but I should bow to the court as I left. This is not done in American courts, so I asked just how I should bow. She demonstrated with a slight nod of her head while leaning forward just a bit. About that time, the Usher announced the judge, and the trial commenced.

The Old Bailey: A Sabbatical in England

As we finished our coffee, Sarah Whitehouse, my sabbatical facilitator, said it was time to go to court. We fetched our umbrellas and headed off to the Central Criminal Court located in the famous courthouse, The Old Bailey.

The Old Bailey is a venerable building. The site on which it stands was the principal west gate of the Roman City of Londinium. At the time of the Norman Conquest, circa 1066, the gate was being used as a prison, and during the 12th century the gate was rebuilt, and renamed the “New Gate.” As part of the legal reforms of Henry II, through which the Crown gained more control over judicial administration, Newgate Prison was established on that site. The first court was erected in 1539; prior to that time, courts were generally held outside.

Newgate Prison, for centuries a symbol of the harsh criminal law of the time, was demolished in 1902 to make way for the present building. The name, “Old Bailey,” is taken from the name of the street on which it stands, and which follows the the line of the City of London’s fortified wall (or bailey).

Sarah led me through the back streets and lanes from her chambers to a back door in the Old Bailey known as The Lord Mayor’s entrance, through security and up to her rooms (barristers have rooms, not offices), where I was introduced to several of her colleagues who were putting on their robes and wigs for court.

Sarah had identified a murder case in Courtroom 9 which she thought would provide a good opportunity for me to observe the customs and procedure of the English courts. I was ready and eager.

The Briton Vote: A Sabbatical in England

The Briton Vote – to “Brexit” or not to “Brexit”?

Today is a big day for Briton; voters will decide whether to remain in the European Community, or leave it. As I have been traveling through England on my sabbatical these past few weeks, this question has loomed large in the media, in the pubs and around kitchen tables.

My wife, Vicki, and I arrived at the home of our friends, Bob and Jill, yesterday, on the eve of the Briton vote. Bob and Jill are solid citizens, retired, with five lovely grandchildren. They live in a small community near Cheltenham in the West of England. They are, I think, typical of the people whose views I’ve heard while traveling. They are just not sure which way to vote.

As I write this article, we are sitting around the kitchen table with Bob and Jill, discussing the issues at hand. There are real passions and convictions on both sides of the question. The debates we have watched on television have featured well crafted questions from the audience and very articulate responses from the supporters of both sides. It comes as no surprise, the issues are all familiar to those that we have seen in the states: the economy, national security and immigration.

This morning’s issue of The Times reported that the race is too close to call, so we will watch the results from Briton with great expectations.

To learn more about the United Kingdom and their ongoing debate over whether or not to exit the European Union, or “Brexit” as it has been termed, check out this Wall Street Journal article.

The English Barrister: A Sabbatical in England

Early morning rain was falling steadily from the gray London sky as I made my way to the Holborn Street underground station. It was the first day of my sabbatical, and I was keen to make the most of it. I got off the train at St. Paul’s and made my way to the barrister’s chambers at 21 College Hill. As I stepped through the door, I was met by a clerk who took me directly upstairs to the Board Room, and introduced me to Sarah Whitehouse, QC (Queen’s Council), the English barrister who had graciously agreed to facilitate my sabbatical.

Barristers are specialists in courtroom advocacy. They practice independently, but generally form together into “chambers,” similar to an American law firm, except each barrister practices independently. Unlike in America, barristers in the same chambers may represent clients opposed to each other in court.

To become a barrister, one must either earn an undergraduate degree in law or a degree in another subject, followed by a post-graduate diploma in law. This is followed by the Bar Professional Training Course (the BPTC) which takes one year and includes specialized training in advocacy, after which which a prospective barrister may be “called” or admitted into one of the four English “Inns of Court” (professional associations for barristers in England). However, before they can practice, they must complete a 12-month residency or “pupillage.”

A limited number of senior barristers may become Queens Counsel (QC) (or, as they say, they “take silk”), as a mark of outstanding ability. Only about 10% of barristers are QC.

Over coffee in the board room, Sarah Whitehouse explained that, in addition to being QC, she is one of only seven Senior Treasury Council (an historical title with nothing to do with revenue) specializing in criminal advocacy, and she handles only complex, high profile and terrorist cases. She added that her chambers is regarded as having the premier criminal advocates in England.

After only one cup of coffee, I was convinced that my trip through the rain that morning was, indeed, worth every drop of London rain.