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Matthies Law Firm, P.C. |
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Summary of Oklahoma Employment Laws
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Prohibits discrimination by companies with 15 or more employees, on basis of race, color, religion, sex, national origin, age or handicap. Administered by Oklahoma Human Rights Commission (a 706 deferral agency of the EEOC). Commission may hold administrative hearing, and seek enforcement of Orders in state district court. No private right of suit under statute, except for claims of handicap bias. Unclear as to whether public policy tort claim is available for other bias victims where a comparable federal remedy does not exist.
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Cannot discriminate in employment based in results of genetic testing (DNA, RNA, chromosome testing). Except for determining insurance coverage or benefits, employer may not even ask for such testing. However, is lawful to do routine lab tests and collect family medical history. Note that federal laws, such as the ADA and HIPAA may provide greater protection.
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Unlawful to willfully pay women employees less than males who are performing "comparable work on jobs which have comparable requirements relating to skill, effort and responsibility," except where differential is based upon a merit system; a seniority system; a system in which compensation is based upon quantity or quality of production; or based upon any factor other than sex. Violation of this Act subjects the employer to a fine of up to $100, if the Labor Department elects to file suit to obtain this penalty (40 OS 198.2). No specific private right of action, but it is possible that a public policy tort claim may be available (see discussion under "common law claims").
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Discrimination against persons who smoke during off-duty hours is prohibited. Also unlawful to discriminate against employees because they are non-smokers. Cannot require an employee to refrain from smoking in off-duty hours, unless non-smoking is a BFOQ or is required by union contract. Aggrieved employee may file suit to obtain lost wages and benefits, as well as attorney fees and costs. (40 O.S. 500, et seq).
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Discrimination against persons who file, testify, or otherwise bring (or help others to bring) Workers Compensation claims is prohibited (85 O.S. 5). Cannot fire someone who is drawing Temporary Total Disability (TTD) solely because of absence from work, and cannot stop insurance benefits while on TTD as long as employee pays premiums. Can discharge someone who is physically unable to perform assigned duties after employee is off TTD and has received final release from doctor.
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Oklahoma has a nice webpage devoted to new hire reporting where forms can be downloaded (http://www.youroklahoma.com/oesc/). Oklahoma also recently initiated an online reporting of new hires. Failure to comply with this law is a misdemeanor, punishable by fine up to $500 or prison term of up to 90 days. Each day of violation is considered to be a separate offense (40 OS 5-104).
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An employer which uses an employment agency to bring employees into the state, or to move from point to point within the state, must either adhere to its agreement concerning their employment or, within twelve hours, provide transportation to return the individual to his original location (along with such meals and lodging as may be necessary while making the return trip).
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Unlawful to make false statements to applicant to induce him/her to enter state or to change from place to place within the state. This includes making false statements regarding type of work, amount of compensation, sanitary conditions, or other terms or conditions of employment. Must disclose existence of strike or "other trouble" between employer and employees to applicants, and include such a notice in employment ads. Violation is misdemeanor (fine of up to $2,000 and/or up to 1 year in prison). In addition, any employee who is harmed by such false representations may bring a private suit to recover all actual damages sustained, and also may recover attorney fees (40 OS 170).
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Blacklisting of employees is misdemeanor (fine of up to $500), and also permits employee to sue for damages. (40 O.S. 173). Employers have limited immunity for good-faith provision of employment references upon request of current or former employee. No immunity if references are provided without authorization from employee. (40 O.S. 61). However, standard rules applicable to defamation claims continue to apply where references are provided without express consent of the employee (so the immunity provisions of the reference statute do not appear to provide much, if any, additional protection to employers).
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Unlawful to hire someone who customarily engages in strikebreaking. Also unlawful to be a habitual strikebreaker. (40 OS 199.1, et seq.). Violation is a misdemeanor, punishable by fine of up to $2500 and imprisonment of up to 60 days.
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Unlawful to use force, threats or intimidation to prevent an employee from working, or from leaving to go to work for another, or to prevent an employer from hiring an individual, or to force the employer to change the pay/benefits of employees. Violation is a misdemeanor (21 OS 837-838).
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Oklahoma has a statute which is likely unconstitutional, as it specifically is labeled as a law to prevent "sabbath-breaking." Under this law, Sunday work is forbidden for employees engaged in manufacturing, mechanical or construction work; those engaged in "servile labor"; those engaged in the horse-racing industry; and those engaged in the sale of goods not considered to be "necessities."
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Employee who is required to take exam as condition of employment or continued employment may not be required to pay for exam, and must be given a copy of any report regarding the exam. Failure to comply is a misdemeanor (fine of up to $100).
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Must grant military leave to any employee who is ordered to duty (active or inactive). Employees are entitled to leave of absence without loss of seniority or status during any period of military duty. Aggrieved employee is entitled to seek actual and compensatory damages, as well as other unspecified relief (72 OS 48.1). Thus, damages appear to be higher than those under federal law.
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Cannot fire someone who is drawing Temporary Total Disability (TTD) solely because of absence from work, and cannot stop insurance benefits while on TTD as long as employee pays premiums. Can discharge someone who is physically unable to perform assigned duties after employee has received final release from doctor and is no longer on TTD.
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Discrimination against persons who are performing jury duty is a misdemeanor, punishable by $5,000 fine (38 O.S. 34). In addition, the employee may bring suit, and recover full tort damages for the wrongful discharge (including past and future lost wages, damages for emotional distress and punitive damages). (38 OS 35).
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Failure to grant leave to allow employee sufficient time to vote after request for such leave (which request must be made by no later than the day before the election), is a misdemeanor punishable by a fine of $50-100 (26 O.S. 7-101). Employee cannot be penalized due to missed time, but employer may adjust hours so that employee makes up the time lost.
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Oklahoma uses the same minimum wage schedule as required by the federal FLSA, but small employers which are not covered by the FLSA only must pay a minimum wage of $2/hour to certain employees (40 OS 197.5). Oklahoma does not have any separate requirement for the payment of overtime compensation.
Employees who are not paid the required minimum wage may recover double damages, as well as attorney fees (40 OS 197.9). In addition, failure to pay minimum wage is a misdemeanor, punishable by fine or imprisonment (40 OS 197.13).
Employers are required to post the state minimum wage poster. Violations can subject the company to fines of $25/day (40 OS 197.14). To download a copy of the poster, please see the State of Oklahoma website.
Wages must be paid to non-exempt employees at least twice per month (exempt employees must be paid at least monthly). Employers generally are required to pay all monies earned within a pay period no later than 14 days after the end of the pay period (40 OS 165.2).
All unpaid wages must be paid to a terminated employee at the next regularly scheduled pay day, either through established pay channels or by certified mail.(40 O.S. 165.3). Where the amount is in dispute, the company must pay the portion which is undisputed (49 OS 165.4).
Payment for accrued vacation pay or other accrued time off (such as personal or sick leave accruals) is required only to the extent that the company has specifically agreed to provide pay in lieu of time off, or has a longstanding past practice of doing so (so that the employee had a reasonable expectation of being paid for such time). (Okla.Admin.Code 380:30-1-5). Bonus payments are not normally required where the employee had to be present on a specific date to receive the bonus (Sec. 380:30-1-6). No severance pay is normally required in the absence of a published policy, a specific agreement with the employee, or a longstanding practice.(Admin. Code, Sec. 380:30-1-5).
If an employer uses a contractor to perform work which the employer had agreed to perform, the employer is liable for payment of wages to employees of the contractor if they are not paid by the contractor. (40 OS 165.6).
Wages payable to a deceased employee (up to $3,000) may be paid directly to the surviving spouse or, if none, to the children of the deceased employee. No probate is required. (40 OS 165.3a).
Failure to pay wages when due is a misdemeanor if willful (40 OS 165.8). In any event, the company is subject to suit for non-payment, and may be assessed a penalty of up to 2% of the unpaid wages per day (up to a sum equal to the unpaid wages). The employer is also liable for attorney fees and costs of the suit. (40 OS 165.3).
It also is unlawful to retaliate against an employee who has made a claim under the Act, either internally or to the Labor Department. Likewise it is unlawful to retaliate against an employee who is a witness or participates in connection with such a claim. Violation is a misdemeanor, punishable by fine of up to $250 and jail term of up to 30 days (40 OS 199).
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Unlawful to discriminate against an employee who has presented a claim over a safety problem likely to cause death or serious physical harm. Failure to comply is a misdemeanor (40 OS 412).
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Drug and Alcohol Testing may only be conducted under terms spelled out by the "Standards For Workplace Drug and Alcohol Testing Act." Failure to comply with Act is misdemeanor (fine of $100-5,000 and/or one year in prison). In addition, an aggrieved employee may file suit, and may recover lost wages, compensatory damages, reinstatement and attorney fees (40 OS 563).
Where an employee fails a lawfully-conducted drug test, and that test is confirmed, the employee is treated as disqualified from receipt of unemployment compensation if discharged as a result of the test results. Pending confirmation, the employee may be suspended or transferred, but cannot be discharged until the results have been confirmed.
Refusal to undergo an otherwise lawful drug test is also grounds for termination, and will result in disqualification for unemployment compensation. (40 OS 562 and 40 OS 2-406A).
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Unlawful to use violent, abusive or profane language towards another which is likely to cause a breach of the peace or provoke anger. Violation is a misdemeanor (21 OS 1363).
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Like most states, Oklahoma has a system for payment of unemployment compensation benefits to employees who are out of work through no fault of their own. Employers are required to contribute to the UEC system, based upon the amount of wages paid and their experience rating. Employees can be disqualified from receipt of benefits for engaging in willful misconduct, or for being voluntarily out of work (quitting without good cause or retiring). They are not disqualified if leaving work due to pregnancy or due to some other medical condition which prevents their employment in the job.
Employers are required to display posters concerning the rights of employees to receive benefits under this Act. When a UEC claim is made, the company has a short time to file a protest over payment of benefits. Failure to protest within the time limits allows the Commission to make a determination without input from the employer. All communications to the Oklahoma Employment Security Commission are considered to be absolutely privileged (40 OS 4-511). However, it is a misdemeanor for employees to make false statements to the Commission to obtain benefits, or to fail to disclose a material fact. Likewise, it is a misdemeanor for companies to make false statements to the Commission, to fail to disclose material facts, or to fail to file required reports. (40 OS 5-102, 5-103 and 40 OS 226).
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Employee and dependents are entitled to continued coverage for at least 30 days after termination, unless employee and dependents become covered by another plan. Where employee has been in plan for at least 6 months, employer must provide coverage for ongoing medical treatment which arose during policy period. Premiums may be charged for extension of coverage (similar to COBRA). No pre-existing condition clause may be applied to new employee covered by Health Insurance Portability Act, if employee had satisfied such requirements under prior plan and applies for coverage within 63 days.
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Non-compete agreements which forbid all forms of competition with a prior employer generally are not enforceable in the absence of the sale of a business (15 OS 217-219). However, agreements by a sales representative to refrain from soliciting customers for a period of time are lawful. See Key Temporary Personnel, Inc. v. Cox, 884 P.2d 1213, 1994 OK CIV APP 123 (Okla.Ct. App. 1994) and recent amendments to the above statute.
Oklahoma has adopted the Uniform Trade Secrets Act, and agreements to refrain from disclosing customer lists or other confidential information certainly are enforceable.
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Oklahoma permits suit for breach of contract (express or implied), based upon statements in employee handbooks, so it is important to include disclaimers in any such documents. See Langdon v. Saga Corp., 569 P.2d 524 (Okla. App. 1976). However, general assurances of long-term employment are insufficient to create a claim for breach of contract. See Hayes v. Eateries, Inc., 905 P. 2d 778 (Okla. 1995). Likewise, claims of implied guarantees of long-term employment based upon past practice are insufficient to override express written policies to the contrary. See Jones v. University of Central Oklahoma, 910 P. 2d 987 (Okla. 1995). Oklahoma does not recognize any covenant of good faith or fair dealing in employment contracts, absent some special fiduciary relationship.
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Oklahoma permits lawsuits for tortious discharge in violation of public policy. However, to bring suit, the employee first must exhaust available administrative remedies. See Atkinson v. Halliburton Co., 905 P.2d 772 (Okla. 1995). Where the employee has adequate remedies for the particular harm alleged, no public policy tort claim may be asserted. See List v. Anchor Paint Mfg. Co., 910 P.2d 1011 (Okla. 1996). The current case law is unclear when a remedy is "adequate" to defeat a public policy tort claim.
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Oklahoma permits suits for intentional infliction of emotional distress (although acts must be "utterly beyond all bounds of decency"). Oklahoma also recognizes usual common law torts of assault, battery, defamation, invasion of privacy, tortious interference with contractual or business relationships, and the like.
In general, where tort claim is brought, employee can recover actual damages; compensatory damages (such as mental anguish); and punitive damages (only if employee shows that employer acted with actual or imputed malice). Punitive damages are capped in some circumstances (23 O.S. 9.1, et seq.).
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These materials include summaries of various laws and count rulings. Please be aware that many of these laws are quite lengthy, and the regulations which interpret them may be even longer. As with all summaries, there may be provisions which have been omitted from these materials which could be vitally important in certain factual contexts. Furthermore, these pages are not updated daily, so changes may have occurred which have not yet been included here. In addition, there may be federal laws, or the laws of other states, which govern the particular problem and which may be significantly different, so the answer to a particular legal problem may vary depending on a number of factors. Thus, these summaries should be used ONLY for general management education about employment laws or as preliminary tools to trigger further research, and not as a substitute for consultation with experienced legal counsel (who typically will review the full text of federal and applicable state law, the full text of all regulations, and the applicable federal and state case law before attempting to advise a client about the law which applies to the particular factual scenario presented).
Please be advised that no attorney-client relationship is established by your access to, or review of, materials on this Website. Please also note that these materials are copyrighted, and may not be reproduced, sold or used by any law firm, personnel consulting group or other persons/entities engaged in the business of providing personnel or employment law counselling to businesses, without the express written consent of Matthies Law Firm, P.C. Any other corporation or business entity (including non-profit group) may reproduce the same for their internal use only, provided that appropriate attribution is given to Matthies Law Firm, P.C. for the creation of these materials. By accessing any materials on this website, you acknowledge and agree to the foregoing limitations on your use of these documents, and further agree that any and all disputes arising out of your access or use of these materials must be brought in the courts within Tulsa County, Oklahoma, regardless of the place where you may have accessed these materials.