Washington State Enacts Its Own “Blacklisting” Statute

Although federal contractors were able to breathe a sigh of relief after the current administration put a stop to President Obama’s “Blacklisting” executive order, employers in the state of Washington must now comply with their own “blacklisting” law.  On May 8, Washington state signed into law Senate Bill 5301 (“SB 5301”), which bans employers from competing for state and local contracts if they have “willfully” violated select wage statutes in the past three years.  Employers with such violations are deemed not to be “responsible bidders” and are disqualified from obtaining public works projects.  SB 5301 passed with bi-partisan support. Continue Reading

California Supreme Court Clarifies California’s Day of Rest Statutes

In Mendoza v. Nordstrom, the California Supreme Court answered three questions from the Ninth Circuit concerning California’s “day of rest” statutes.  The Court’s decision clarifies a significant ambiguity for employers regarding the obligation to provide employees with their statutorily mandated day of rest.

Mendoza involved a putative class action filed by former Nordstrom employees alleging Nordstrom violated California’s Labor Code by failing to provide them with one day of rest in seven and causing them to work more than six in seven days.  After the district court granted summary judgment in Nordstrom’s favor, plaintiffs appealed to the Ninth Circuit. Continue Reading

OSHA Rescinds Rule on Union Reps Participating in Safety Walk-Throughs

The federal Occupational Safety and Health Administration (“OSHA”) announced late last week that it was rescinding its 2013 “Fairfax” memorandum, which allowed union representatives to participate in workplace safety walk-throughs.

Here is the background. Soon after the Occupational Health and Safety Act (“the Act”) passed in 1970, OSHA interpreted the law to allow employees to accompany safety inspectors during safety walk-throughs. Historically, OSHA had also allowed third parties like industrial safety specialists to join the walk-throughs if “reasonably necessary.” In 2013, OSHA expanded its definition of allowable third parties to include union representatives, even if the union did not represent the company’s employees. (OSHA’s position was contained in a memorandum issued by Richard Fairfax, who at the time served as the Deputy Assistant Labor Secretary). OSHA justified its position as the natural consequence of its longstanding view that when “employees have chosen a representative, they have a right to have that representative accompany the [OSHA investigator] during a workplace inspection.”

In September 2016, the National Federation of Independent Businesses (“NFIB”) sued OSHA, arguing that OSHA had exceeded its administrative authority by issuing the Fairfax memorandum without allowing notice and comment from interested parties. Substantively, NFIB (and other business groups) opposed the Fairfax memorandum because they viewed its union-access requirement as a boon to union-organizing activity that had little to do with employee safety. NFIB received a favorable ruling from the trial court in February of this year, with the court largely accepting its argument that OSHA was required (but had failed) to engage in the notice and comment process. Although OSHA has confirmed its withdrawal of the Fairfax memorandum (and NFIB voluntarily dismissed its lawsuit), as yet the agency has not commented publicly about its reasons for doing so.

Without comment from OSHA, it is difficult to speculate about how the withdrawal fits into the Trump administration’s overall approach to labor law issues generally or to workplace safety issues in particular. At a minimum, however, it seems clear that organized labor will not view the withdrawal positively, and that the withdrawal is a victory for businesses that wish to keep union organizers away from their workplaces.

Landmark Seventh Circuit Decision Interprets Title VII Protections To Prohibit Sexual Orientation Discrimination

“Who will be hurt if gays and lesbians have a little more job protection?” Judge Richard Posner of the Seventh Circuit Court of Appeals posed this question a few months ago during oral argument in a case involving a teacher who alleged she was fired because she is lesbian.  On Tuesday, the en banc Seventh Circuit answered Judge Posner’s rhetorical question in a landmark decision holding that Title VII protects employees from discrimination on the basis of their sexual orientation.  The court is the first court of appeals in the country to apply Title VII’s job protections to  employees on the basis of their sexual orientation, interpreting the definition of “sex” under Title VII to include “sexual orientation.”

To casual followers of the law, this decision may seem unremarkable after the Supreme Court ruled nearly two years ago that same-sex marriage enjoys constitutional protection.  (See our blog on the Obergefell decision here, and our blog on the decision’s impact on employee benefits here.)  But it is a watershed decision with ripple effects far beyond the three states within the Seventh Circuit.  Continue Reading

Whistleblower Retaliation Protection Expands in Oregon

We are confident that employers already take employee reports of potentially unlawful activity seriously.  Such internal reports can help employers investigate and eliminate unlawful conduct in the workplace.  The Ninth Circuit Court of Appeals recently held that retaliating against an employee for making an internal report of potentially unlawful activity—not a report to an external agency—is unlawful whistleblower retaliation.

What Happened

In Brunozzi v. Cable Communications, Inc., an employee complained several times to his supervisor that he was not being properly paid for working overtime. Continue Reading

Breaking: Court Rules Against Double Overtime for Oregon Manufacturing Employers

Oregon manufacturing employers have been following the ongoing turmoil surrounding the Oregon Bureau of Labor and Industries’ (“BOLI”) recent interpretation of Oregon’s requirement that manufacturing employees receive overtime when they work more than 10 hours in a day.  In the latest turn, a Multnomah County Circuit Court judge ruled yesterday that, contrary to BOLI’s advice, a manufacturing employer is not required to pay employees daily overtime and weekly overtime when manufacturing employees work more than 40 hours in a work week.  Instead, the judge ruled that the employer must pay the employees the greater of either weekly overtime or daily overtime, but not both. A copy of the opinion in the case (Mazahua v. Portland Specialty Baking LLC) is here.

Here is the background.   Continue Reading

Oregon Legislature’s Attempt to Protect Pot Users Poses Challenges to Employers

Some Oregonians are no doubt breathing clouds of relief with the introduction of Senate Bill 301, the Oregon Legislature’s proposal to protect employees from being fired for personal marijuana use.  Employers, on the other hand, may find themselves in a sticky (icky) situation trying to comply with the proposed law, which, at first glance, seems straightforward but would present significant challenges if passed. Continue Reading

New Drug Testing Rules in Oregon Follow OSHA

Employers are probably aware that OSHA’s new drug testing and anti-retaliation rule is now in effect. (See our post here discussing the rule.)  However, as we blogged previously, many states have their own reporting requirements, which are not required to track OSHA’s  rules precisely, but which must be “at least as effective” as OSHA’s rules.  While many states, like Washington, are still in the early stages of revising their regulations, Oregon’s new regulations will go into effect on May 1, 2017.

Oregon’s regulations follow OSHA’s and are summarized as follows:

  • Employers must have a “reasonable” procedure for employees to report work-related injuries or illnesses.  “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  As we discussed in a prior blog, OSHA interprets “reasonable” to exclude blanket drug testing policies.  This means that policies mandating drug testing after all workplace accidents are probably not reasonable.   Instead, drug testing policies should be targeted to situations in which employee drug use is likely to have contributed to the incident.  For example, drugs or alcohol is not likely to contribute to the workplace injury of a bee sting, so testing in that situation would be unwarranted.  But drugs or alcohol may contribute to an injury caused by a worker stumbling down a hallway before falling down some stairs; thus, testing may be appropriate.
  • Employers must notify employees about the procedure.
  • Employers must inform employees that they have a right to report workplace injuries and illnesses and that they will not be retaliated against for doing so.

For more discussion about OSHA’s rule, see our blog posts here and here.  As always, our experts are happy to talk if you have any questions about the rule.

Another Setback for Student Athletes … or Is It?

On December 5, 2016, Berger v. National Collegiate Athletic Association brought a major setback for those advocating that “student athletes” deserve to be compensated for their contributions to the multi-billion-dollar industry of college sports.

The plaintiffs were two former “student athletes” at the University of Pennsylvania (“Penn”) who participated on the women’s track and field team.  Their lawsuit alleged that “student athletes” were employees under the Fair Labor Standards Act (“FLSA”) and that Penn, along with the National Collegiate Athletic Association (“NCAA”) and over 100 other Division I universities, was violating minimum wage laws by not compensating “student athletes.”  The district court dismissed their lawsuit, finding that the plaintiffs had no standing to sue any colleges other than Penn and that “student athletes” were not employees under the law.

On appeal, the Seventh Circuit affirmed the decision.  Briefly addressing the issue of standing, the court found that the plaintiffs’ connection with the NCAA and other colleges was “far too tenuous to be considered an employment relationship.”  Turning to the real issue—whether the plaintiffs are employees of Penn—the plaintiffs argued that the court should use the Second Circuit’s intern test to determine if they were employees.  Continue Reading

California Supreme Court Prohibits Employers from Implementing “On-Call” Rest Breaks

In Jennifer Augustus v. ABM Security Services, Inc., the California Supreme Court determined that employers are prohibited from implementing “on-call” rest breaks.  This holding led the Supreme Court to reinstate an approximately $90 million judgment against the defendant employer.

The plaintiff in Augustus worked as a security guard for defendant.  Plaintiff’s lawsuit alleged that defendant’s policy of requiring security guards to carry radios during their rest breaks in order to respond to emergencies violated California law requiring employers to provide employees with uninterrupted rest periods.  The superior court ruled in favor of plaintiff and awarded her and the class approximately $90 million in statutory damages, interest, and penalties. Continue Reading

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