Employee Discipline: Oklahoma
Federal law and guidance on this subject should be reviewed together with this section.
Author: Daniel Johnson, Crowe & Dunlevy
- Oklahoma adheres to the at-will employment rule. Therefore, employers may discipline or terminate employees for good cause, for no cause or even for cause, without incurring liability for wrongful discharge. See Employment At-Will.
- Oklahoma law includes antidiscrimination provisions. See Discipline and Discrimination.
- Oklahoma employers should use caution when disciplining employees who have taken legally protected leaves. See Attendance.
- Unlike many jurisdictions, Oklahoma does not permit employers to terminate an employee who has been absent from work for a length of time because of an on-the-job injury. See Attendance; Workers' Compensation Leave and Temporary Total Disability.
- Oklahoma recognizes a number of protections for whistleblowers and other employees to shelter them from retaliatory discipline. See Whistleblower and Retaliation Protections.
- Oklahoma employers may not discharge, or other disadvantage, an employee because the employee is a nonsmoker, smokes or uses smokeless tobacco off-duty. See Off-Duty Conduct.
- The use of e-cigarettes is banned in certain areas in Oklahoma. See E-Cigarettes.
- Oklahoma law prohibits an employer from requiring access to an employee's personal social media accounts. See Social Media Privacy.
- Oklahoma employers are free to prohibit weapons, including firearms, in the workplace. However, Oklahoma law permits employees to store a firearm in a locked vehicle in the workplace parking lot. See Firearms.
- Oklahoma law permits employers to protect their trade secrets and other business information. See Protecting Employer Property.
- Employers wishing to conduct drug and alcohol testing must comply with Oklahoma's complex Standards for Workplace Drug and Alcohol Testing Act. See Drug and Alcohol Testing.
- Oklahoma law allows the use of marijuana for medicinal purposes under certain circumstances. See Marijuana.
- Oklahoma law requires employers to post certain information in the workplace. See Required Postings.
- Ada and Shawnee have ordinances that pertain to employee discipline. See Local Requirements.
Oklahoma adheres to the at-will employment rule. Thus, employers are generally free to discipline or terminate employees for good cause, for no cause or even for cause, without incurring liability for wrongful discharge. See Employment At-Will: Oklahoma.
Discipline and Discrimination
Appropriate disciplinary procedures can assist in reducing employers' exposure to lawsuits. If applied consistently and fairly, disciplinary procedures can be an important part of enforcing workplace rules and policies.
Despite Oklahoma's at-will employment rule, Oklahoma statutory and common law narrow the reasons for which an employee may be disciplined. For example, Oklahoma employers may not fire employees for a discriminatory reason, or based on an otherwise illegal basis. See EEO - Discrimination: Oklahoma.
In addition, an Oklahoma employer may not discharge a US citizen employee while retaining an employee who it knows, or reasonably should have known, was an unauthorized alien, and who is working in a similar job and under similar working conditions to the fired employee. +25 Okl. Stat. § 1313(C)(1).
Oklahoma employers should use caution when disciplining employees who have taken legally protected leaves.
Workers' Compensation Leave and Temporary Total Disability
Unlike many jurisdictions, Oklahoma does not permit employers to terminate an employee who has been absent from work for a length of time because of an on-the-job injury. In other states, courts recognize the legality of absence control policies, which allow employers to terminate employees who have been out on workers' compensation leave for a specified period of time.
However, the Oklahoma Workers' Compensation Code prohibits employers from terminating an employee while the employee is off work and receiving temporary total disability (TTD) benefits, regardless of how long the employee has been receiving TTD benefits. +85 Okl. Stat. § 341(B).
After the TTD period ends, an employer is not required, under the Workers' Compensation Code, to rehire or to retrain an employee who is unable to perform his or her assigned duties. +85 Okl. Stat. § 341(C).
Nevertheless, employers may have independent obligations under federal law to an employee returning from leave related to an on-the-job injury, including an obligation to:
- Retrain; or
- Otherwise reasonably accommodate.
The interplay of the Workers' Compensation Code, the federal Americans with Disabilities Act, and/or the federal Family and Medical Leave Act is one of the more perilous areas for employers to navigate. Employers may wish to consult with legal counsel throughout the process.
See also Workers' Compensation: Oklahoma.
Other Leave Protected by Oklahoma Law
Oklahoma protects employees from being disciplined while absent:
- To vote;
- Serve on a jury; or
- To comply with a subpoena.
Oklahoma employers must grant employees two hours, during the timeframe in which the polls are open, to go vote. If the employee is located in a place where two hours would be insufficient time to vote, the employer must provide sufficient time for the employee to vote. +26 Okl. Stat. § 7-101; as amended by +2019 Bill Text OK S.B. 58.
Employees who wish to exercise their right to time off to vote must provide notice, either orally or in writing, to the employer of the employee's intention to be absent. The notice must be provided at least three days prior to the election or the day of in-person voting.
Upon proof of voting, no employee may be subjected to any loss of compensation, other penalty or otherwise disciplined for the absence. The employer may select the days and hours when the employees would be allowed to vote, and must notify employees of their assigned voting times.
An employee whose work day begins three hours or more after the time of opening of the polls, or ends three hours or more before the polls close, is not entitled to voting leave under Oklahoma law. Moreover, Oklahoma employers may alter employees' work hours to allow three hours before the beginning of work or after the work hours to vote.
An Oklahoma employer may not discharge, discipline or penalize an employee because the employee is absent from work for the purpose of attending a judicial proceeding in response to:
- A subpoena;
- A summons for jury duty; or
- Other court order or process that requires the attendance of the employee at the judicial proceeding.
Oklahoma law also requires the employer pay the employee their normal salary while the employee is absent for jury duty.
Whistleblower and Retaliation Protections
Oklahoma recognizes a number of protections for whistleblowers to shelter them from retaliatory discipline.
Oklahoma courts generally enforce private employee whistleblower protections. Oklahoma law includes a narrow exception to the at-will employment rule, which serves to protect employees discharged for either:
- Acting in furtherance of an Oklahoma public policy; or
- Refusing to act contrary to an Oklahoma public policy.
In either case, whistleblowers in Oklahoma shoulder the burden of identifying an Oklahoma public policy goal that is:
- Clear and compelling; and
- Articulated in existing Oklahoma constitutional, statutory or jurisprudential law.
Courts determine whether a particular Oklahoma statute, constitutional provision or judicial decision articulates a public policy that would provide protection to a whistleblower employee. Therefore, an employer confronted with a potential whistleblower situation should use caution, and perhaps consult legal counsel, prior to making any disciplinary decisions.
While whistleblower status does not entitle the complaining employee to special treatment, disciplining a whistleblower for inappropriate conduct calls for care and attention to detail, particularly in light of Oklahoma's unpredictable scope of whistleblower protection.
Public Employee Whistleblower Protections
Public employees have additional retaliation and whistleblower protections when engaging in the following activities:
- Disclosing or reporting legal violations, gross waste of public funds, abuse of authority or substantial danger to the public health and safety. +74 Okl. Stat. § 840-2.5; and
- Filing a complaint, instituting a proceeding or testifying regarding violations of the Occupational Safety and Health Act. +40 Okl. Stat. § 402.
Statutory protections against retaliation include the following:
- Oklahoma Anti-Discrimination Act, protecting employees who oppose unlawful employment discrimination. See EEO - Retaliation: Oklahoma;
- Workers' Compensation Code, protecting employees who assert rights under the Workers' Compensation Code. +85 Okl. Stat. § 341; +85 Okl. Stat. § 342;
- Oklahoma Children's Code, protecting employees who report abuse or neglect. +10A Okl. Stat. § 1-2-101(B)(4);
- Group Homes for Persons With Developmental or Physical Disabilities Act, protecting employees who report abuse or neglect. +10 Okl. Stat. § 1430.8(F);
- Oklahoma labor law. +40 Okl. Stat. §199; and
- Oklahoma Medicaid False Claims Act. +63 Okl. St. § 5053.
An employee's inappropriate off-duty behavior may reflect poorly on the employer's business, particularly for employees in capacities where the employee represents the employer to the public. An employee's off-duty misconduct, particularly criminal activity, may reflect negatively upon an employee's character and fitness to perform a job with the employer's full confidence.
Because Oklahoma is an at-will state, employers are free to craft appropriate off-duty conduct policies, and to discipline employees accordingly. In any case, the employer crafting the policy and taking disciplinary action should have a legitimate business justification for doing so.
Oklahoma employees need not disclose any criminal arrest information contained in sealed records. +22 Okl. Stat. § 19.
Oklahoma employers may not discharge, or otherwise disadvantage, an employee because the employee is a nonsmoker, smokes or uses smokeless tobacco during non-working hours. +40 Okl. Stat. § 500.
Oklahoma employers may prohibit the use of lighted tobacco products in indoor workplaces. +21 Okla. Stat. § 1247; see Future Developments. While an employer is free to make the workplace tobacco-free, it may not discharge or take other adverse action against an employee because of off-duty tobacco use or non-use.
However, an employer may encourage participation in smoking cessation programs without running afoul of the discrimination protections regarding tobacco use. +40 Okla. Stat. § 500.
The sole remedy for violations of this law is a civil action for damages (including any lost wages and benefits), reasonable attorney fees and court costs. +40 Okl. St. § 503.
Local requirements may also apply. See Local Requirements.
The use of electronic cigarettes, also known as personal vaporizers, e-cigarettes or e-cigs, is banned on Oklahoma state property (whether state-owned or leased). Executive Order 2014-43. In addition, the Oklahoma Department of Health has issued a Public Health Advisory regarding the effects of electronic cigarettes and other vapor products.
An Oklahoma employer may wish to manage the use of e-cigarettes in the workplace and discipline accordingly. See Manage E-Cigarettes in the Workplace.
Local requirements may also apply. See Local Requirements.
Social Media Privacy
Oklahoma law prohibits an employer from requiring access to an employee's personal social media accounts. +2014 OK. ALS 315. An employer may not retaliate against an employee who refuses to provide access to a personal social media account. However, an employer may conduct an investigation to ensure compliance with the law or to discipline work-related employee misconduct, including the unauthorized transfer of the employer's confidential business or proprietary information. An employer may request access information (e.g., user name or passwords) to any employer-owned accounts. See Employee Privacy: Oklahoma.
Oklahoma employers may not terminate an employee who is the subject of a garnishment. +14A Okl. Stat. § 5-106.
Oklahoma law provides that no employer may discharge an employee because the employee is the target of a garnishment or similar proceedings if the garnishment is to recover a debt arising from a:
- Consumer credit sale;
- Consumer lease; or
- Consumer loan.
An employer may discharge an employee when served with a garnishment or similar process issued for one or more debts of the same employee on more than two occasions within one year.
Oklahoma employers are free to prohibit weapons, including firearms, in the workplace. However, Oklahoma law permits employees (except convicted felons) to transport and store a firearm in a locked motor vehicle in the company parking lot. +21 Okl. Stat. § 1290.22; +21 Okl. Stat. § 1289.6; +21 Okl. Stat. § 1289.7. See Future Developments.
Oklahoma law defines motor vehicle to include an automobile, truck, minivan, sports utility vehicle, or a motorcycle equipped with a locked accessory container within or affixed to the motorcycle. See +2017 Bill Text OK H.B. 1550; +21 Okl. Stat. § 1277(H).
Therefore, disciplining an employee for violating a policy that purports to prohibit all weapons or firearms on company premises would run afoul of Oklahoma law. Employers should carefully craft and enforce their weapons-in-the-workplace policies to ensure compliance with Oklahoma law. See Workplace Security: Oklahoma.
In addition, Oklahoma employers should use caution when searching employee vehicles. Oklahoma law requires that employers secure a search warrant before conducting any searches on property not owned or rented by the employer. +40 Okl. Stat. § 200.
A person, property owner, tenant, employer, holder of an event permit, place of worship or business entity that allows individuals to carry a concealed or unconcealed weapon while in the scope of employment or in or about a business entity vehicle in accordance with the law is immune from any liability arising from the carrying of the concealed or unconcealed weapon. See +2017 Bill Text OK S.B. 288; +21 Okl. Stat. § 1290.22.
Protecting Employer Property
Like many other jurisdictions, Oklahoma has adopted the Uniform Trade Secrets Act. 78 Okl. St. § 85 et seq. Oklahoma's Uniform Trade Secrets Act permits the injured party to enjoin potential or actual misappropriation of trade secrets, and to recover damages incurred from such misappropriation.
The Uniform Trade Secrets Act defines improper means to include:
- Breach or inducement of a breach of a duty to maintain secrecy; or
- Espionage through electronic or other means.
Trade Secrets include information, including a formula, pattern, compilation, program, device, method, technique or process, that:
- Derives independent economic value, actual or potential, from not being generally known to the public; and
- Is the subject of reasonable efforts to maintain its secrecy.
Employers wishing to claim trade secret status for certain business information must take affirmative, reasonable steps to maintain the secrecy of the information. Similarly, an employer should be prepared to demonstrate the information in question has actual or potential economic value, derived from the fact that it is not generally known or available to other persons. Employers must meet the threshold of proving the existence of trade secrets before courts will proceed with the claim.
Efforts to maintain secrecy may include, among other things:
- Securing written agreements with employees who access the trade secrets in which the valuable and secret nature of the information is stipulated;
- Limiting access to the purported trade secrets within the organization to only those employees who must access the information to perform their jobs; and
- Disciplining those employees who disclose the secret information to unauthorized personnel.
Employers may consult legal counsel to assist with crafting appropriate measures to protect purported trade secrets to the highest degree possible.
Oklahoma law vigorously protects an Oklahoma citizen's right to work where he or she chooses, and in whatever line of work he or she might select. Oklahoma law voids traditional noncompete agreements as against Oklahoma public policy, regardless of the geographic or temporal scope of the agreement. +15 Okl. Stat. § 217.
Oklahoma's prohibition of traditional noncompete agreements contains narrowly construed exceptions, including agreements arising out of:
- The sale of goodwill of a business. +15 Okl. Stat. § 218; and
- The dissolution of a partnership. +15 Okl. Stat. § 219.
Under either exception, an agreement not to carry on a similar business is only permissible "within a specified county or counties contiguous thereto." +15 Okl. Stat. § 218; +15 Okl. Stat. § 219. Both exceptions allow courts to reform otherwise permissible noncompete agreements that exceed the permissible, statutory territorial limitations under Oklahoma law. See, e.g. Eakle v. Grinnell Corp., +272 F. Supp. 2d 1304, 1311 (E.D. Okla. 2003).
Oklahoma employers may include a nonsolicitation of employee clause in employment agreements. See Terms of Employment: Oklahoma.
Given Oklahoma's strict laws regarding anticompetitive agreements, employers who desire enforceable agreements should draft them with the assistance of competent legal counsel.
Drug and Alcohol Testing
Oklahoma employers may implement a substance abuse policy prohibiting the use or possession of drugs and alcohol in the workplace.
However, if an employer wishes to conduct drug and alcohol testing, and take disciplinary action based on the results of the test, the employer must comply with Oklahoma's complex Standards for Workplace Drug and Alcohol Testing Act. +40 Okl. Stat. § 551 et seq. (§§ 551 to 563).
Oklahoma's Standards for Workplace Drug and Alcohol Testing Act sets forth the circumstances, methods and conditions under which an employer may conduct drug and alcohol testing in Oklahoma. The Act also sets forth the circumstances in which disciplinary action, including discharge, may be taken for refusing to take a test, or for an unconfirmed positive result, while other scenarios require a confirmation before discipline.
Any disciplinary action based on noncompliant drug and alcohol testing will expose the employer to liability.
Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:
- Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
- May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.
Oklahoma state law allows for the use of marijuana for medicinal purposes. However, an employer need not permit or accommodate marijuana use in the workplace.
Effective July 26, 2018, Oklahoma permits the use of medical marijuana by registered users. In addition, the Oklahoma Medical Marijuana Authority proposed emergency rules to govern the administration of the law. 63 Okl. Stat. § 420; see Future Developments.
Under the law, unless an employer would imminently lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or any other terms or conditions of employment, or penalize a person based on the person's status as a medical marijuana license holder. Similarly, an employer may not take action against a license holder based on the person's status as a license holder or the results of a drug test that shows a positive result for marijuana or its components. See Future Developments.
However, an employer may take action against a license holder who uses or possesses marijuana while at work or during work hours. 63 Okl. Stat. § 425.
In addition to the postings required by federal law, Oklahoma employers are required to post information regarding a number of employment matters, including minimum wage, workers' compensation and fair employment practices.
Ada Smoking and Electronic Cigarette Ban
The town of Ada has banned smoking and the use of electronic cigarettes in indoor places of employment. Ada, Oklahoma, Code of Ordinances Sec. 7-32.
Shawnee Smoking and Electronic Cigarette Ban
Shawnee, Oklahoma has banned smoking and the use of electronic cigarettes in indoor places of employment. Shawnee, Oklahoma, Code of Ordinances Sec. 15-147.
Oklahoma has amended its laws relating to firearms. +2019 Bill Text OK H.B. 2597, amending +21 Okl. St. § 1272. Effective November 1, 2019, the exceptions from the definition of unlawful carry are expanded to include self-defense and the carrying of a firearm by uniformed service members or veterans if the the member or veteran is not carrying the firearm in the furtherance of a crime. +2019 Bill Text OK H.B. 2597, amending +21 Okl. St. § 1272.
The amendments also allow any person who is not otherwise prohibited by law from carrying a firearm (previously, "except convicted felons") to transport in a motor vehicle a pistol or handgun, loaded or unloaded, at any time. Any person who may lawfully carry may also transport in a motor vehicle a rifle or shotgun, either open or concealed, in accordance with Oklahoma law. +2019 Bill Text OK H.B. 2597, amending +21 Okl. St. § 1289.7. Specifically, a rifle or shotgun may be transported clip- or magazine-loaded, not chamber-loaded, and in an exterior locked compartment of the vehicle or trunk of the vehicle or in the interior compartment of the vehicle. +2019 Bill Text OK H.B. 2597, amending +21 Okl. St. § 1289.13.
The otherwise lawful (previously, when the individual is "issued a handgun license") carrying of a concealed or unconcealed firearm by a person on property that has the proper signage prohibiting the carrying of firearms will subject the person to being denied entrance onto the property or removed from the property. An individual may face misdemeanor penalties under +21 Okl. St. § 1276 if:
- The person has been informed by the property owner, business entity or business manager that the person is in violation of a policy that prohibits firearms on the property;
- The person refuses to leave the property; and
- A peace officer is summoned.
The Oklahoma Medical Marijuana and Patient Protection Act clarifies an employer's obligations with respect to medical marijuana use in the workplace. +2019 Bill Text OK H.B. 2612, adding 63 Okl. Stat. § 427.1.
Under the Act, an employer may refuse to hire, discipline, terminate or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites if:
- The applicant or employee is not in possession of a valid medical marijuana license;
- The licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or
- The position is one involving safety-sensitive job duties.
The term safety sensitive means "any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others."
Examples of safety-sensitive duties include:
- Working with hazardous materials;
- Operating vehicles or machinery;
- Maintaining equipment;
- Working with utilities;
- Working volatile, flammable and combustible materials;
- Preparing or handling food or medicine;
- Carrying a firearm;
- Caring for patients, children and others.
An employer's decision to classify a position as safety sensitive should be reasonable and based on job duties.
The Act does not:
- Require an employer to permit or accommodate the use of medical marijuana on the property or premises of any place of employment or during hours of employment;
- Require an employer, private health insurer, worker's compensation carrier or self-insured employer providing worker's compensation benefits to reimburse a person for costs associated with the use of medical marijuana; or
- Prevent an employer from having written policies regarding drug testing and impairment in accordance with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act. +40 Okl. St. § 554.
The Act also provides that all smokable, vaporized, vapable and e-cigarette medical marijuana products inhaled through vaporization or smoked by a medical marijuana licensee are subject to the same restrictions for tobacco under the Smoking in Public Places and Indoor Workplaces Act.
The Act also defines positive test for marijuana components or metabolites to require a sample to produce a result that is at or above the cutoff concentration level established by the US Department of Transportation or Oklahoma law, whichever is lower.
An employee may institute a civil action within one year of an alleged willful violation. The employee may be awarded lost wages and an additional equal amount as liquidated damages as well as reasonable costs and attorney fees.
In a separate piece of legislation, Oklahoma marijuana laws are amended to loosen the language that allows an exception to discrimination protections in favor of employers. +2019 Bill Text OK S.B. 1030. Specifically, an employer no longer needs to show that it is in danger of "imminently" losing a monetary or licensing-related benefit under federal law or regulations. Under the amendments, an employer must only show that it has "the potential" to lose a monetary or licensing-related benefit under federal law or regulations.
These laws take effect 90 days after the Legislature adjourns sine die, or August 30, 2019.
Smoking in Public Places and Indoor Workplaces Act Amendments
Effective August 30, 2019, the Smoking in Public Places and Indoor Workplaces Act is amended to restrict the smoking or vaping of marijuana, in addition to smoking tobacco, in indoor workplaces and other public places. +2019 Bill Text OK H.B. 2601, amending +63 Okl. St. § 1-1523; +21 Okla. Stat. § 1247.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.