On September 19, 2016, Seattle became the second city in the nation (after San Francisco) to pass a “Secure Scheduling Ordinance” with broad implications for the food service and retail industries within Seattle’s city limits. Scheduled to take effect in July 2017, the Ordinance will place substantial limitations on covered employers’ ability to flexibly schedule workers. Among other requirements, employers must take employee scheduling input into consideration, provide advance notice of work schedules, provide additional pay for last-minute schedule changes, and offer hours to existing employees before hiring new staff. For a detailed summary of the Ordinance’s requirements and prohibitions, see our previous article on the subject, here. Continue Reading
The Oregon Bureau of Labor and Industries (“BOLI”) recently issued new draft rules interpreting and explaining Oregon’s sick time law. The draft rules, which are currently open for public comment, are available here and summarized below.
In some respects, the draft rules merely reiterate concepts that are already addressed in the statute itself but were not mentioned in BOLI’s initial set of associated regulations. On the whole, there are few surprises, and most employers will not need to make any changes to their current practices if the draft rules go into effect as currently written. Continue Reading
Earlier this year, we wrote about the Ninth Circuit Court of Appeals decision in Oregon Rest. & Lodging Ass’n v. Perez, which prohibited tip-pools that include “back-of-the house” employees. Last week, the Court rejected a petition to review the decision en banc. This means that, unless the Supreme Court weighs in on the issue, restaurants in the Ninth Circuit cannot require front-of-the-house employees to share their tips with the back-of-the-house employees. Read our post discussing the original decision here.
If your company uses a class action waiver in your employment agreements and you are located in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, or Washington, you are out of luck. Thanks to a recent decision from the Ninth Circuit Court of Appeals (which has jurisdiction over the aforementioned areas), that waiver is no longer enforceable.
Recently, the Court ruled in Morris v. Ernst & Young, LLP, No. 13-16599, 2016 WL 4433080 (9th Cir. Aug. 22, 2016), that an employment agreement that requires employees to pursue legal claims against their employer in “separate proceedings” and in arbitration violates federal law. In that case, two employees sued Ernst & Young alleging they were misclassified as exempt employees under the Fair Labor Standards Act and were owed overtime pay. The trial court compelled individual arbitration, pursuant to the “separate proceedings” in arbitration demanded by the employment agreement the two employees signed upon hire. The Ninth Circuit reversed.
Employees are guaranteed the right to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection” by the National Labor Relations Act. The Court held that protection for “concerted activities” means that employers cannot require employees to waive their right to pursue legal claims as a class action. Continue Reading
Seattle restaurants and retail employers may soon face significant restrictions on employee scheduling. The Seattle City Council is currently considering a proposed ordinance with the potential to impact hundreds of employers across the City. Following are the basics of the proposed legislation.
What employers would be covered by the proposed ordinance?
- Retail employers and large limited or quick food service employers with 500 or more employees worldwide; and
- Full-service restaurants with 500 or more employees and 40 or more locations worldwide.
What employees would be covered by the proposed ordinance?
- Hourly, non-exempt employees who work at least 50% of the time within the City of Seattle.
The NLRB recently reversed course again to allow temporary employees provided by a staffing agency to join regular employees in a single bargaining unit without the consent of the employer or the staffing agency. Miller & Anderson, Inc., 364 NLRB No. 39 (2016).
The Board Flip Flops
Historically, unions seeking to organize employees directly employed by an employer (called a “user employer” by the Board) alongside temporary employees provided by a staffing agency (“provided employees”) in a single bargaining unit were required to obtain consent of both the user employer and the staffing agency.
In 2000, however, the Clinton Board overturned that rule to eliminate the consent requirement, allowing employees to form one bargaining unit as long as they shared a community of interest and the employer and the staffing agency were considered “joint employers.” M. B. Sturgis, Inc., 331 NLRB 1298 (2000). Four years later, the Bush II Board decided Oakwood Care Center, 343 NLRB 659 (2004), and overturned the Board’s decision in Sturgis to again require consent. Continue Reading
As previously reported, OSHA’s latest revisions for covered employers will dramatically impact routine post-accident drug testing programs. The new rules are available for review here, but here’s what you need to know:
- OSHA Postponed Enforcement. OSHA just delayed the date on which it will begin enforcing these new requirements. OSHA’s memo postponing enforcement is available here. Now, OSHA will not begin enforcing the new regulation until November 1, 2016.
- Motivation for Change is Unclear. This delay may not be driven by OSHA’s concerns about employers struggling to assess the rules’ impact on wide-spread drug testing regimes. Rather, employer associations have already sued OSHA, in particular challenging the “retaliation” provisions in the new rules that give rise to the threats to routine drug testing programs. These plaintiffs have sought a preliminary injunction against the Department’s new rule, found here, largely predicated on the original August 10 enforcement date. Given the Department’s recent track record before the federal courts, (see a recent preliminary injunction against the Department here), the delay in enforcement may well be designed to allow the Department additional time to fight the attempt to enjoin the new rule.
- Who Does this Concern? OSHA’s new regulations are not applicable to most private sector employers in states such as Alaska, California, Minnesota, Oregon, Utah or Washington that have adopted their own state workplace safety plans. While the state plans must be ‘at least as effective’ as OSHA’s rules, many of the state plan states have their own reporting requirements.
- Timeframe. As we saw when OSHA last changed its reporting requirements in 2014, as can be seen here, for those states with their own workplace safety plans it sometimes takes months (or years) to respond to changes in OSHA’s regulations. Employers outside those states, which are directly regulated by OSHA, now have until at least November 1 to prepare.
We will keep you abreast of these ongoing developments. In the meantime, please check back to our World of Employment blog regularly for updates or contact your Stoel Rives relationship partner for additional information.
Employers that promote workplace safety by ensuring workers are not under the influence of drugs or alcohol after they suffer a workplace injury will soon face greater scrutiny from the Occupational Safety and Health Administration (“OSHA”). A new OSHA rule that goes into effect August 10, 2016 casts serious doubt on whether employers can lawfully maintain mandatory post-incident drug and alcohol testing.
OSHA Thinks Mandatory Testing Deters Reporting
The new OSHA rule becomes effective August 10, 2016, though compliance deadlines may vary from state to state (check with your employment counsel to confirm). When the rule becomes effective, employers must have a reporting procedure for workplace injuries that is “reasonable and [will] not deter or discourage employees from reporting” workplace injuries. To which you say, “My business already has that.” Perhaps you do, but if that procedure includes mandatory post-incident drug or alcohol testing, OSHA may no longer consider it to be reasonable. Though OSHA claims that “the [new] rule does not prohibit drug testing of employees,” the Agency also states that “mandating automatic post-injury drug testing [is] a form of adverse action that can discourage reporting.” In other words, OSHA has determined that mandatory post-incident drug and alcohol testing may be unlawful because it may deter someone from reporting an injury. Continue Reading
Portland, Oregon’s new “ban the box” ordinance went into effect on July 1, 2016. We blogged about Oregon’s statewide “ban the box” law here. Portland’s new ordinance is more restrictive and prohibits covered employers from conducting criminal background checks until after a conditional job offer is made. Detailed information about the new ordinance is available here.
Are You a Covered Employer?
The Portland ordinance applies to private companies that have six or more employees, with at least one employee who spends a majority of his or her time working within the City of Portland.
You are completely exempt from the law if:
- You have fewer than six employees;
- Federal, state, or local law requires you to consider an applicant’s criminal history;
- You are a law enforcement agency or part of the criminal justice system; or
- You are seeking a nonemployee volunteer.
Oregon’s new minimum wage law, signed by Governor Brown on March 2, 2016, received a lot of press during the 2016 legislative session. This new law establishes a tiered system for determination of the minimum wage based on the location of the employer. The minimum wage will increase annually on July 1 of each year, with the first increase (from $9.25 to $9.50 in rural areas and to $9.75 everywhere else) taking place this year. By 2022, Oregon’s minimum wage will increase to $14.75 inside Portland’s urban growth boundary, $13.50 in midsize counties, and $12.50 in rural areas. The full text of the enrolled Senate bill is available here.
With minimum wage receiving all of the attention, Oregon employers may have missed other employment-related bills. Here are the bills that passed during the 2016 Oregon Legislative Session and those that failed (but we might see again in the future). Continue Reading