The Employer's Legal Resource: 2014 Oklahoma Law - A Year in Review
2014 OKLAHOMA LAW — A YEAR IN REVIEW
As we close out 2014, we thought we should spend a few moments recapping the changes in Oklahoma employment law. So, in case you missed it, here are the highlights.
Although passed in 2013 (and even its first constitutional challenge last year), the Oklahoma Administrative Workers' Compensation Act (AWCA) did not become effective until February 1, 2014. As we mentioned before, we are not in the business of traditional workers' comp law and won't endeavor to comment extensively on the many changes this law has had on that system. However, there are a few basics we can note. It abolished the old law for claims arising on or after February 1, 2014, but claims already in the pipeline will continue to be handled under the old system – the Oklahoma Workers' Compensation Act.
Under the AWCA, a Commission was created to hear claims for compensation and to hear and approve settlements. The Commission consists of Commissioners appointed by the Governor. The Commissioners appoint administrative law judges (ALJs) to hear the claims. In other words, claimants do not go to court any more. For much more on the passage of this law and the first constitutional challenge, see our September 2013 and January 2014 ELRs.
Retaliation Claims under the AWCA.
If an employee claims he has suffered discrimination or retaliation for exercising rights protected under the AWCA, he can bring a claim as well. This claim is brought under the AWCA and heard by an ALJ. We addressed this in the June 2014 ELR in more depth.
Interestingly, since that article, there has been a rash of cases filed in courts claiming it is unconstitutional to disallow a person the right to proceed in court. There have also been cases filed before the Commission asserting that the claimant should be permitted a jury trial (even before the Commission). All of these cases are currently making their way to the Oklahoma Supreme Court for decisions. While the cases – thus far – have upheld the AWCA as written, there is much discussion as to whether retaliation cases will ultimately proceed before the Commission without juries.
What does this mean for employers? A whole lot of uncertainty. We will keep you posted.
Municipalities and Political Subdivisions and Leave
On July 1, 2014, a new law became effective which banned any municipality or political subdivision from establishing a minimum wage rate or from establishing any minimum number of vacation or sick leave days which an employer would be required to pay or grant its employees. In essence, the state wanted to be certain that it was the only entity which could pass such a law and that no other city, township, or the like could pass an ordinance, etc., on those issues.
The law recognized that municipalities also employed persons and noted that the law would not affect the number of vacation or sick days a municipality could authorize for its own employees as a benefit of employment. Interestingly, the law did not carve out the same exception for political subdivisions.
November 2014 – The effective date of most laws
Social Media and Privacy
Oklahoma joined the wave of states to address social media and privacy concerns in the employment arena. Oklahoma provides some protections for an individual's privacy concerns, but continues to provide employers with strong rights to protect legitimate business concerns. Notably, even when there may be privacy breaches, the damages provided to the individual are modest. For a full discussion of the new law, you can read our October ELR.
The highlights are that an employer may not require an employee or prospective employee to disclose information allowing the employer to access (or require the employee to access in the employer's presence) the employee's social media accounts. The law goes on to describe all the things an employer may do including accessing its own computer system or information technology networks including reviewing or accessing personal online social media accounts "that an employee may choose to use while utilizing an employer's computer system, information technology network or an employer's electronic communication device."
An employee may recover up to $500.00 per violation.
It is worth noting the law is specifically states an employer cannot be held liable for NOT reviewing an employee's personal online social media accounts. Indeed, the "employer's failure to access such information shall not be admissible in any legal proceeding."
The Oklahoma Legislature again modified the definition of "misconduct." Effective November 1, the definition of misconduct "shall be limited to the following"
1. Any intentional act or omission by an employee which constitutes a material or substantial breach of the employee's job duties or responsibilities or obligations pursuant to his or her employment or contract of employment;
2. Unapproved or excessive absenteeism or tardiness;
3. Indifference to, breach of, or neglect of the duties required which result in a material or substantial breach of the employee's job duties or responsibilities;
4. Actions or omissions that place in jeopardy the health, life, or property of self or others;
7. Violation of a law; or
8. A violation of a policy or rule enacted to ensure orderly and proper job performance or for the safety of self or others.
If you are fighting a claim for unemployment benefits, you will need to prove one or more of these if you are relying upon misconduct as the basis to defeat the claim.
Also new as of November 1 is this provision – very helpful to employers:
Any misconduct violation ... shall not require a prior warning from the employer. As long as the employee knew, or should have reasonably known, that a rule or policy of the employer was violated, the employee shall not be eligible for benefits.
Although prior warnings are still advisable, according to the new law, they are no longer required if you can prove the employee "knew, or should have reasonably known" the conduct was a violation of a rule or policy.
The law also added a provision making it substantially more difficult for an employee to recover unemployment benefits if discharged because of an agency finding that the employee violated the "applicable civil, criminal or professional standards of the employee's profession."
Finally, the law now provides that an untimely employer's objection to the original claim for unemployment benefits "may be allowed for good cause shown." Of course, what constitutes "good cause" is an unanswered question. Our best advice is to make all objections within the time allotted – within ten days after the date of the notice or the date of the postmark on the envelope in which the notice was sent, whichever is later.
Professional Employer Organizations (PEOs)
If you are a registered PEO, the unemployment laws were amended effective November 1, to integrate the PEO concepts. "For purposes of the Employment Security Act of 1980, the PEO and its client shall be considered coemployers of the covered employees that are under the direction and control of the client." Notably, if you are a PEO with a current employer tax account with the OESC as of November 1, 2014, you have obligations to comply by January 1, 2015, concerning certain elections which have to be made. You may not have to change anything, but you should check your elections.
By Kristen L. Brightmire, firstname.lastname@example.org