Byline: On the Job by Bureau of Labor & Industries For The Register-Guard

Q: Three of our staff members recently complained to us about sexual harassment by our on-site security guard, and after an investigation, we've determined that their complaints are valid.

We suspended

A: When the employer is also a landlord, and your employee's right to occupancy of the premises is conditional upon employment, the arrangement is excluded from the normal Oregon landlord and tenant statutes.

Under ORS 90.110(7) and ORS 91.120, you may evict your live-in employee after 24 hours following a written termination notice, or after the period set forth in a written employment contract, if you have one - whichever time period is longer.

Q: We have a full-time office assistant who performs clerical duties. She also operates a cleaning business on the side, and we'd like to bring her in for several hours each week to do evening janitorial work. Can we legally have an employee that also works for us as an independent contractor?

A: Yes, it's possible that your employee also qualifies as an independent contractor, but you should be certain she meets the necessary criteria.

Is her janitorial business properly licensed and registered? Is she free from direction and control when performing the cleaning duties? Does she provide the cleaning tools and equipment? Can she hire and fire her own employees? You should also consider whether she holds herself out to the public as a business.

For example, does she advertise her services? Does she have business cards? Does she enter into written contracts for all work performed? Does she have a business phone line? Simply calling the worker a "contractor" isn't good enough, because the courts look at the underlying realities.

If you incorrectly classify a worker as a contractor when she is truly an employee, all sorts of liabilities can arise. You may face a claim for overtime pay because the employee has worked more than 40 hours for you each week.

If the "contractor" who's really an employee is hurt on the job, you won't have the required workers' compensation coverage. Also, the federal and state tax agencies won't be happy with you if you haven't been properly withholding taxes from the employee's wages.

More information on independent contractor classification is at www.boli .state.or.us/technical/taindocon.html on the BOLI Web site.

Q: Over the past few months, we've taken corrective actions with an employee who falls asleep at her desk. We literally have to wake her up throughout the day.

This week, for the first time, she told us that she has heart problems and that her blood pressure medication is making her drowsy. How do we address this without discriminating?

A: The employee's heart condition may qualify as a disability under Oregon and federal civil rights laws, but that doesn't mean you have to put up with poor job performance.

An employee has an obligation to advise her employer if she needs accommodation because a disability is affecting her ability to work. Now that you do know about her high blood pressure, you should explore options for accommodation. The employee may suggest a plan that would enable her to meet your expectations.

You're entitled to medical certification to determine if the condition is indeed a qualifying disability. The doctor may recommend an option - perhaps different medicine, a dosage adjustment, some time off work, or even extra rest breaks - so that the employee can meet your expectations.

If there's a reasonable accommodation that allows the employee to perform her job, you should offer it. If, however, the employee continues to sleep on the job despite all efforts to accommodate her, the disability laws won't protect her, and you can discipline her as you would any employee who violates your policies.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. The column answers questions about employment law. To contact BOLI, call (503) 731-4200, or write to BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.