It’s Coming: Overtime Pay for More Workers

Coming to a store or restaurant near you soon!  Supervisors will get overtime!

To be exempt from minimum wage and overtime requirements, currently a worker must perform certain duties (for example, supervise at least two other workers) and be paid a minimum salary of $455 per week ($23,660 per year). These are known as the white collar exemptions and they are categorized as Executive, Administrative, Professional, Outside Sales and Computer Professional. (Computer Professionals have to be paid a minimum of $27.63 per hour, in addition to meeting their duties test.)

The modest salary requirement was raised slightly in 2004 but hasn’t budged since. President Obama has now instructed the Department of Labor to increase that salary level to $50,440 in 2016 (the salary level for another exemption category referred to as “Highly Compensated Employees” is also being proposed to increase from $100,000 per year to about $122,000 per year). The DOL also proposes to add an escalator clause so that the salary level rises automatically over time, and it is also going to consider revising some of the duties tests.

What does this mean for employers?

This massive change in the law is not going to require congressional approval. All that is necessary is that the Department of Labor changes its rules and it is undoubtedly going to do that soon after the end of the 60-day rulemaking comment period.

The DOL estimates that 5 million workers will benefit from the change. And, if the agency tightens the duties tests, even more workers will lose the exemption. Every employer will need to review each of its positions that is currently classified as exempt to determine whether the position retains the exemption. Stay tuned.

Oregon Tightens the Screws on Noncompetes: 18 Months Will Soon Be the Maximum Period of Restriction

As we blogged about earlier, courts in most states just plain don’t like employee noncompete agreements. Particularly when it comes to mid- and low-level employees, courts worry that enforcing a noncompete agreement will hamper innovation, restrict competition, and unfairly burden a former employee’s ability to earn a living. For that reason, a court typically will review an noncompete’s justification, scope, and length with the judicial equivalent of a fine-tooth comb.

Courts have been picking away at the enforceability of employee noncompetes for years, but more recently, legislatures have jumped into the mix with varying levels of aggressiveness. California has long banned noncompetes outright, and several other states either have followed suit (e.g., North Dakota) or are considering whether to pass similar laws (e.g., Massachusetts, Washington). Still others have adopted laws that make it easier for employers to enforce noncompetes (e.g., Georgia), or are considering whether to do so to remedy past judicial reticence in the area (e.g., Wisconsin).

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Oregon Legislature to Employers: Stay Out of Employees’ Personal Social Media Accounts!

As we noted a while ago, Oregon recently joined the growing number of states that prohibit an employer from demanding access to an employee’s personal social media account. An Oregon employer may not require an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to friend, follow, or otherwise connect with it via a social media account, or to permit the employer to “shoulder surf” while the employee is logged in. There are exceptions—business-related social media accounts and workplace investigations are notable ones—but the rule is fairly clear: When it comes to employees’ personal social media accounts, it’s probably best for an employer to keep its distance.

Seems simple enough, right? Maybe, but here in Oregon, we like not to be outdone by our neighbors. So, last week, Governor Kate Brown signed Senate Bill 185, which adds a few interesting tweaks to the “model” approach that most other states (including Oregon) have followed when adopting social media protections for employees.

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U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive

Stoel Rives Summer Associate Dexter Pearce co-authored this post.

In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.

Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.
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Colorado Supreme Court Upholds Firing of Medical Marijuana User

The Colorado Supreme Court ruled today in a 6-0 decision that Colorado’s “lawful activities statute,” which provides protections to employees who engage in lawful off-duty conduct, only applies to conduct that is lawful under both state and federal law. The Court’s decision in Coats v. Dish Network, which can be accessed here, involved a quadriplegic man who is an authorized medical marijuana patient under Colorado’s medical marijuana law. There was no evidence of impairment at work, and the employee had a very good work record. The employer, Dish Network LLC, terminated the employee after he tested positive for marijuana in violation of Dish Network’s drug testing policy.

Colorado is one of only 4 states (along with Washington, Oregon and Alaska) to have legalized so-called “recreational marijuana,” and one of 23 states to authorize medical marijuana use. However, marijuana remains illegal under federal law for virtually all purposes, a fact that is unlikely to ever change unless Congress amends the federal Controlled Substances Act and/or carves out exceptions for state-authorized marijuana use. Because marijuana is illegal under federal law, the Colorado Supreme Court found that Dish Network didn’t violate Colorado’s lawful activities statute when it fired the employee. “The term ‘lawful’ refers only to those activities that are lawful under both state and federal law,” the Court held. “Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.” It is worth noting that Colorado’s constitutional amendment legalizing recreational marijuana also expressly states that employers are not restricted from having zero tolerance policies for marijuana use.

The Colorado Supreme Court’s decision is consistent with decisions from the Supreme Courts of Washington State, Oregon and California, all of which have, to one degree or another, noted the public policy incongruity that would occur if a state workplace protection was predicated on an act that is illegal under federal law. The employer in the Washington Case, Roe v. Teletech, was represented by Stoel Rives and the decision was blogged here.

The bottom line is that, unless Congress either changes how marijuana is classified under the federal Controlled Substances Act or carves out protections for state-authorized medical marijuana users, employment law is not going to experience a sea-change on this issue. A handful of states (Arizona, Delaware, Maine, Rhode Island and Nevada among them) do have some workplace accommodation protections in their medical marijuana statutes, but most states do not. And in case you were wondering, an employer does not need to accommodate medical marijuana under the federal Americans with Disabilities Act because, you guessed it, marijuana is illegal under federal law.

San Francisco Is About to Begin Enforcing the Retail Workers Bill of Rights – Are You in Compliance?

1790100On July 3, 2015, the San Francisco Retail Workers Bill of Rights becomes operative. This ordinance creates major changes for many companies doing business in San Francisco.

Employers Affected

The law applies to “formula retail” businesses with (a) 20 or more locations worldwide, and (b) 20 or more employees in San Francisco, as well as their janitorial and security contractors. Pending amendments to the law, if passed, would change from 20 to 40 the number of retail establishments worldwide for a formula retail business to be covered by the law.

A “formula retail” business is any business that maintains two or more of the following features:

  • Standardized array of merchandise
  • Standardized façade
  • Standardized décor and color scheme
  • Uniform apparel
  • Standardized signage
  • Trademark or service mark

Requirements

1.  Advance Notice of Work Schedule

Employers must provide new employees with a good-faith initial estimate of the number of scheduled shifts the employee will receive each month, along with the days and hours the shifts will occur.

Employers must also provide employees with their schedules two weeks in advance. Schedules may be posted in the workplace or provided electronically, so long as employees are given access to the electronic schedules at work. If the posted schedule is changed, the employer must notify the employee of the change by in-person conversation, phone call, email, text message, or other electronic communication.  This requirement doesn’t apply if the employee requested the change. Continue Reading

Utah LGBT Anti-Discrimination Law Goes Into Effect

The folks at KUER ran a report yesterday on Utah’s ground breaking LGBT antidiscrimination law, which went into effect yesterday. Titled the Antidiscrimination and Religious Freedom Act, the law prohibits workplace discrimination on the basis of sexual orientation and gender identity on the same terms as discrimination on the basis of race, gender, national origin or other protected classes. It also protects employees in expressing their religious, moral and other views in and out of the workplace.  I was interviewed by KUER in its report about the effect the new law would have on employers and likelihood of potential litigation.

“Where is the line between reasonable expression of religious belief and harassment? Where is the line between allowing reasonable off duty conduct and finding something that’s in direct conflict of the business interest of the employer? I think it’s probably likely that there will be a need for courts to weigh in on some of the questions.”

You can hear the KUER report here. For an in-depth discussion of the law, including who is covered, what conduct is prohibited, and how religious beliefs are protected, read my post Utah Legislators Make History, Pass LGBT Antidiscrimination/Religious Freedom Bill.

Are You Ready to be Ambushed? NLRB’s New “Quickie Election” Rules Become Effective

As we have previously reported here and here, the National Labor Relations Board’s (“NLRB”) new rules governing union representation elections go into effect today, April 14, 2015. Congress passed a resolution disapproving the new “quickie” or “ambush” rules, but President Obama vetoed it. While lawsuits have been filed in Texas and the District of Columbia challenging the new rules, at this point no court has halted their implementation. Thus, absent late-breaking developments, employers need to be prepared for this brave new world.

Under the new rules, elections will be expedited. Disputes over the unit selected by the union will be resolved in a hearing normally scheduled for no more than eight days after the filing of the petition. Moreover, the employer must identify all of its concerns with the group of employees targeted by the union in a “statement of position” filed the day before the hearing, or those arguments will be waived. Excelsior lists must be provided more quickly, and elections will be held within 10 to 25 days after the filing of the petition.

The bottom line: by design, employers will not have adequate time to prepare a campaign to educate their employees about the issues that will arise if they vote for union representation. Thus, it is imperative that all employers evaluate their risks of union organizing activity, and do what you can now to prepare ahead of time. Continue Reading

No Joke: Seattle’s $15 Minimum Wage Ordinance Becomes Law

Here’s a couple updates related to the Seattle Minimum Wage Ordinace.  Alas for Seattle employers, this is no April Fools joke.

Seattle’s $15 Minimum Wage Ordinance Becomes Law

As we’ve blogged about before, Seattle’s Minimum Wage Ordinance becomes law on April 1, 2015, raising the minimum hourly wage for Seattle’s lowest paid workers. On March 30, 2015 the City’s new Office of Labor Standards released the final regulations under the Ordinance which along with the City’s approved workplace poster in English, and an expanded FAQ can be found here.

The final regulations include a few minor changes from the February 2015 draft version and no surprises. The final regulations define the terms “bonuses,” “commissions,” and “piece rate” and includes a streamlined definition of “joint employer.”

By now all Seattle employers should have implementation plans that include the required notices to employees, a preferred method of communication that employees know about and use, and any necessary alterations or upgrades to payroll tracking systems. These plans should be executed despite litigation and legislation developing in other forums.

An Update on the Status of Franchises and the Statewide Minimum Wage

Legal and legislative efforts to change or supersede the Minimum Wage Ordinance have not yet been successful.  On March, 20, 2015, Judge Richard A. Jones denied the International Franchise Association’s (IFA) motion for preliminary injunction in the IFA v. City of Seattle case, in which the IFA seeks to eliminate the provision of the Ordinance in which franchisees are grouped with their franchisor in determining whether they are a large employer or not.  Read the opinion here.  Also on March 20, the IFA petitioned the Ninth Circuit for a review of Judge Jones’ Order. The bench trial is scheduled for October 13, 2015.

On March 31, 2015, consideration of a Washington State House Bill to increase the state’s minimum wage to $12 an hour within four years ended when Senate Republicans cancelled a meeting of the State Senate Commerce and Labor Committee set for April 1, the last day for House bills to get a committee vote and advance in the Senate.

Wage Theft Complaints

Also starting April 1, employees will be able to file administrative complaints under the Seattle Wage Theft Ordinance through the new Office of Labor Standards, which will administer both the Minimum Wage Ordinance and the Wage Theft Ordinance.  The Wage Theft Ordinance imposes additional recordkeeping obligations on employers that go beyond state law. Prior to April 1, however, there was no administrative enforcement mechanism for wage theft in Seattle, only a criminal one. Additional information, including the text of the Ordinance, is available here.

 

Supreme Court Sends UPS Pregnancy Accommodation Case to Trial

The U.S. Supreme Court handed a defeat to United Parcel Service (UPS) this week. At issue was whether UPS violated the Pregnancy Discrimination Act (PDA) by requiring a pregnant woman with lifting restrictions to go on leave during her pregnancy, while workers in certain other categories (such as those with on-the-job injuries) were allowed light duty. We consider the ruling and the lessons it holds for employer leave and accommodation policies below.

In a decision announced March 25, 2015, the Supreme Court ruled that the district court, which had dismissed Young v. UPS (PDF) on summary judgment, must proceed to trial on the question of whether intentional discrimination occurred when a pregnant UPS employee was treated less favorably than others in similar situations.

The Court ruled in Young that under the PDA an employee can make a prima facie case of discrimination by showing that she was denied accommodation, while other sick or disabled workers with a similar inability to work were allowed accommodation. The employer then must show that it had a legitimate non-discriminatory reason for the difference in treatment to avoid liability, and if it makes such a showing the plaintiff can rebut the showing through evidence of pretext. Continue Reading

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