Remember: New Increase to California Minimum Wage Affects Exempt Employees Too!

California Governor Jerry Brown recently signed into law an increase in the state’s minimum wage, from the current rate of $8.00 per hour up to $9.00 per hour beginning on July 1, 2014. The minimum wage will increase again to $10.00 per hour, effective January 1, 2016. 

In addition to ensuring that all non-exempt employees are paid the increased minimum wage, employers with operations in California should also evaluate how the increase to the minimum wage affects salaries of exempt employees. California law requires that exempt employees be paid a salary of at least twice the minimum wage for full time employment on a monthly basis.  Under the existing minimum wage of $8.00, exempt employees must be paid an annual salary of at least $33,280. With the increase to the minimum wage, the minimum salary for an exempt employee will increase to $37,440 per year by July 2014, and then to $41,600 by January 1, 2016. Employers who do not ensure that their exempt employees are receiving at least these amounts will be exposed to misclassification claims.

Companies with employees in California should review their compensation practices to ensure they are fully in compliance with applicable law before the increased minimum wage takes effect.

OSHA Issues Interim Final Rules on Whistleblower Protection Provisions Under ACA

The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments regarding procedures for handling employee whistleblower complaints under the Affordable Care Act (ACA), Section 1558. This part of the ACA added a new Section 18c to the Fair Labor Standards Act (FLSA), which protects employees from retaliation for exercising certain rights under the ACA, including (1) receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange, (2) reporting a violation of consumer protection rules under the ACA (which, for instance, prohibit denial of health coverage based on preexisting conditions and lifetime limits on coverage), and (3) assisting or participating in a proceeding under Section 1558.

The interim final rule states the time frames and procedures for bringing a whistleblower complaint under Section 18c and covers the investigation, hearing, and appeals processes. An employee has 180 days from the date of the alleged retaliation to bring a whistleblower complaint to the Secretary of Labor. Where a violation is found, remedies can include reinstatement, compensatory damages, back pay, and reasonable costs and expenses (including attorneys’ fees). If the employee brought the complaint in bad faith, an employer may recover up to $1,000 in reasonable attorneys’ fees.

The bar for an employee bringing such a complaint is relatively low, and the bar for an employer defending against the complaint is relatively high. The employee must only have a subjective, good-faith, reasonable belief that the conduct alleged in the complaint violates the whistleblower protections; the employee need not prove that the conduct was an actual violation of law. The conduct complained of must only be a contributing factor in an adverse employment decision for the employee to make his or her case. The employer must then demonstrate through clear and convincing evidence that it would have taken the same adverse action without the protected activity. 

Each party has 20 days after filing the complaint to submit a position statement and supporting documents, and can also request a meeting to present its position to OSHA. OSHA has 60 days from the filing of the complaint to investigate and issue written findings and, if a violation is found, a preliminary order providing relief to the employee.   There is a process to challenge and appeal OSHA’s written findings and order. There is also a process for an employee to file a complaint in federal court either within 90 days after the employee receives OSHA’s findings, or if no final agency order is issued within 210 days of the filing of the complaint. 

For more information, see the DOL fact sheet, which describes how to file a complaint. If you have comments on this interim final rule, they must be submitted within 60 days of the rule’s publication in the Federal Register (Feb. 27, 2013). Comments may be submitted electronically at the eRulemaking portal.

Washington State Marijuana Legalization Law Need Not Affect Employer Drug Testing Policies

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including customer requirements, government contracting requirements (e.g.,the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. 

Some Washington state employers may be wondering whether any workplace implications have been created by the election day passage of voter Initiative 502, which made Washington the first state, with Colorado, to reject federal drug-control policy and legalize recreational marijuana use.  The simple answer is it does not change a Washington employer’s rights. 

We previously blogged a similar issue when discussing a 2011 Washington Supreme Court decision holding that Washington’s Medical Use of Marijuana Act does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. Also previously covered in World of Employment, the Oregon Supreme Court ruled that because federal criminal law preempts Oregon’s medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana.

Similar concepts apply to the new Washington State marijuana legalization law.  Marijuana still remains illegal for all purposes under the federal Controlled Substances Act.  Employers simply do not have to condone illegal drug use, possession or influence at their workplace.

In light of state marijuana legalization efforts, to best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law is prohibited, and that their policies prohibit any detectable amount of illegal drugs as opposed to an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise.

This issue has been getting a lot of attention in the state and national media since the election.  For example, see this story in the Puget Sound Business Journal, and another article I wrote at the Law360 website (note that you need a subscription for Law 360).

Thanks For Nominating Stoel Rives World of Employment As A Top 25 L&E Law Blog!

Based on feedback from you, our readers, LexisNexis has nominated the Stoel Rives World of Employment as a "Top 25" law blog in the Labor and Employment category!  Thanks to those of you who nominated us to this elite group.  Readers now have until September 12 to vote for their favorite blog.  After voting is completed LexisNexis will announce which of the nominated blogs are selected to the final top 25.

Please Cast Your Vote For Us

At this point we'd like to engage in a bit of shameless self-promotion, and urge you to cast your vote for us before September 12.  To do that, simply click here to vote, scroll to the very bottom of the page to the Add a Comment section, and add a comment.  In the comment field, type something like "I vote for the Stoel Rives World of Employment blog."  You can also view information about the competition and see the other nominated blogs on this page too.  If you haven't already used the LexisNexis Communities feature, you may need to create an account to be able to vote.

Again, thanks for the nomination and support!  (Here ends the shameless self-promotion...now we'll get back to blogging.)

- Your Stoel Rives World of Employment Bloggers

 

 

 

 

 

Oregon Minimum Wage to Rise to $8.50/Hour in 2011

The Oregon Bureau of Labor and Industries recently announced that Oregon's minimum wage will increase by ten cents to $8.50 an hour effective January 1, 2011.  Oregon's minimum wage has been $8.40 an hour since January 1, 2009.  Click here to read Labor Commissioner Brad Avakian's press release on the minimum wage increase

As a result of Ballot Measure 25, passed by voters in 2002, the minimum wage is adjusted annually based on changes in inflation as measured by the Consumer Price Index (CPI). The Labor Commissioner is charged with adjusting the minimum wage for inflation every September, rounded to the nearest five cents.

And for your viewing pleasure, here's a fascinating video of an employee who we hope earns much more than minimum wage.  At least we know we wouldn't do this job for under $1,000 an hour:

Oregon Legislature Bans Workplace Credit Checks

This week the Oregon House voted to prohibit employers from using credit histories for any employment purposes including hiring, discharge, promotion and compensation.  The Oregon Senate passed the bill last week, and Governor Ted Kulongoski is expected to sign the bill into law effective July 1, 2010.  Click here to download a copy of the bill, SB 1045

A violation of the new law will be an unlawful employment practice, and an aggrieved employee could either file a complaint with the Bureau of Labor and Industries (BOLI) or file a civil lawsuit for injunctive relief, reinstatement or back pay, and attorney's fees.  

The new law will have some narrow exceptions:  banks and credit unions, public safety and law enforcement officers, employers who are required by state and federal law to use credit histories for employment purposes, and other employment if credit history is "substantially job-related" and the use of the credit check is disclosed in writing.  The bill does not give any guidance on what it means for a credit check to be "substantially job-related," but we're assuming that courts will construe that requirement very narrowly.

Oregon employers who are currently using credit checks as part of their employment processes should make sure they fit into one of the exceptions and, if not, find alternatives by July 1.  The law only prohibits the use of credit history, so other background checks - such as criminal background checks - are not affected.