1. What legal protection does Oregon provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Oregon recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a socially undesirable motive. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge is socially undesirable (i.e. in violation of public policy).
To determine what constitutes public policy, Oregon courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Oregon statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Oregon's public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Oregon Legislative Assembly has adopted extensive statutory protections for many activities. Notably, Oregon has a general whistleblower protection statute that protects employees who report illegal activity. Also, Oregon has adopted narrow statutory protections for other activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination (including discrimination of disabled persons), employee housing, family leave, hazardous substances used in agriculture, leave to attend a criminal proceeding, minimum wage, occupational safety and health, wage claims, and workers' compensation.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a socially undesirable motive. Oregon courts protect employees who fulfill a societal obligation or attempt to exercise statutory rights. Specifically, Oregon courts have protected the following activities:
- Disclosing information about dangerous conditions and potential physical abuse
- Refusing to commit perjury
- Refusing to make a false allegation against a fellow employee
- Insisting that employer comply with state law
- Refusing to disclose customer's confidential financial information
- Objecting to violations of state regulations
- Filing health and safety complaints
- Filing workers' compensation claims
Statutory Protections
General Whistleblower Protection: An employee may not be discharged (or discriminated against) in retaliation for performing any one of the following protected activities:
- Reporting criminal activity by any person. The report must be made in good faith.
- Causing criminal charges to be filed against any person.
- Cooperating with any law enforcement agency conducting a criminal investigation.
- Bringing a civil proceeding against an employer. The civil proceeding must be brought in good faith.
- Testifying at a civil proceeding or criminal trial. The testimony must be made in good faith.
- Reporting possible violations of laws concerning health care facilities and residential facilities and homes .
- Testifying at an unemployment compensation hearing. The testimony must be made in good faith.
- Testifying before the legislative assembly, committee, or task force. .
Abuse- Assisted Living Facility: An employee may not be retaliated against for reporting suspected abuse of a mentally or physically disabled resident of an assisted living facility. Or. Rev. Stat. 430.755.
Adult Foster Homes: An employee may not be retaliated against for filing a complaint with the licensing agency about an adult foster home. Or. Rev. Stat. § 443.765.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding under Oregon's Fair Employment Practices (FEP) Act. The FEP prohibits discrimination on the basis of race, religion, color, sex, national origin, marital status or age of any other person with whom the individual associates, or because of a juvenile record. Or. Rev. Stat. § 659A.030(1)(f).
Discrimination Disabled Persons: An employee may not be discharged (or discriminated against) in retaliation for applying for benefits, invoking or utilizing the procedures, or giving testimony under Oregon's laws that prohibit unlawful discrimination against disabled persons. Employers who employ fewer than six employees are exempt from this provision. Or. Rev. Stat. §§ 659A.109. 659A.106.
Employee Housing: An employee may not be discharged (or discriminated against) in retaliation for reporting or complaining about possible violations of Oregon's laws against unlawful employment discrimination relating to employee housing. Nor may an employee be discharged (or discriminated against) in retaliation for conferring with any authorized or invited person. Or. Rev. Stat. § 659A.259.
Family Leave: An employee may not be discharged (or discriminated against) in retaliation for exercising rights under Oregon's Family Leave law. Under this law, an employee may take time off from work provided the employee satisfies the statutory requirement to care for an infant, a family member with a serious health condition, or a child who is suffering from an illness, injury, or health condition that requires home care. Also, an employee may take time off from work to recover from or seek treatment for a serious health condition. The Oregon Family Leave laws do not apply to employers who employ fewer than 25 employees in the state of Oregon. Or. Rev. Stat. §§ 659A.183, 659A.153.
Hazardous Substances Used in Agriculture: An employee may not be discharged (or discriminated against) in retaliation for opposing any practice made unlawful under Oregon's laws concerning hazardous chemicals in agriculture. Nor may an employee be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under those same laws. These laws require agricultural employers to provide employees with information on hazardous substances in the workplace. Or. Rev. Stat. § 654.062(5).
Leave to Attend a Criminal Proceeding: An employee may not be discharged (or intimidated) in retaliation for taking a leave to attend a criminal proceeding. Or. Rev. Stat. § 659A.194.
Military Family Leave: An employee may not be retaliated against for taking leave when a military spouse is called to active duty under the Military Family Leave Act. Or. Rev. Stat. § 659A.096.
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding under Oregon's minimum wage laws. Or. Rev. Stat. § 653.060.
Nursing: A member of the nursing staff of a hospital may not be retaliated against for reporting a violation of law or a violation of professional standards that the nurse reasonably believes poses a health or safety risk to patient welfare. Or. Rev. Stat. § 441.174.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for opposing any practice made unlawful under the Oregon Safe Employment Act (OSEA). Nor may an employee be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under OSEA. OSEA requires Oregon employers to provide a safe workplace for employees. Or. Rev. Stat. § 654.062(5).
Wage Claims: An employee may not be discharged (or discriminated against) in retaliation for making a wage claim. Nor may an employee be discharged (or discriminated against) in retaliation for instituting a proceeding or testifying in a proceeding relating to wage claims. Or. Rev. Stat. § 652.355.
Workers' Compensation § Injured Workers: An employee may not be discharged (or discriminated against) in retaliation for applying for workers' compensation benefits, invoking or utilizing procedures provided for under workers' compensation laws, or providing testimony in a workers' compensation proceeding. Employers who employ fewer than six employees are exempt from this provision. Or. Rev. Stat § 659A.040.
3. How do I file a whistleblower or retaliation claim in Oregon?
Generally Common Law: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action. If you believe you have a claim, you should contact a lawyer.
Generally Statutory (includes General Whistleblower Protection): Unless the statute contains a different or more specific procedure (see below), an employee may enforce his or her rights by choosing one of two routes: filing a complaint with an administrative agency or filing a lawsuit in an appropriate court.
An employee may file a signed, written complaint with the Oregon Bureau of Labor and Industries (BOLI). Within BOLI, the Civil Rights Division is responsible for handling retaliation complaints (including whistleblower retaliation complaints). A complaint must be filed within one year of the retaliatory action. BOLI's web site provides a useful walk-through on how to file a complaint. If you believe you have a claim, you should contact BOLI immediately at:
Oregon Bureau of Labor and Industries
Civil Rights Division
800 NE Oregon St., Suite 1045
Portland, OR 97232
E-mail: BOLI.MAIL@state.or.us
Phone: 971-673-0761
Fax: 971-673-0762
TTY: 971-673-0766
Alternatively, an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action, unless a complaint has been made with BOLI. If a complaint has been made with BOLI, an employee must file a lawsuit within 90 days after the 90-day notice is mailed to the employee.
Minimum Wage: An employee may file a lawsuit in an appropriate court. If you believe you have a claim, you should contact a lawyer.
Occupational Safety and Health + Hazardous Substances: An employee may file a complaint with the Bureau of Labor and Industries (BOLI). The complaint must be filed within 30 days of the retaliatory action. If you believe you have a complaint, you should contact BOLI immediately.
Alternatively, an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action. If you choose to proceed by lawsuit, you should contact a lawyer immediately.
Wage Claims: An employee may file a lawsuit in an appropriate court. An employee may be entitled to actual damages, court costs, and reasonable attorney fees. If you believe you have a claim, you should contact a lawyer.