Washington Legislature Enacts Multiple Anti-Employer Statutes

No man’s life, liberty or property are safe while the legislature is in session.

· Judge Gideon J. Tucker

In the recently concluded session, Washington legislators enacted numerous laws that will adversely affect employers of all sizes across the State. With so many changes, it is key that employers stay up to date and understand the new challenges they will face in running their workplaces.

WASHINGTON HAS ‘BANNED THE BOX’ (2SHB 1298)

Washington is now firmly on the bandwagon to “ban the box,” barring questions about criminal convictions on initial employment applications. Employers are now prohibited from inquiring into an applicant’s criminal background until the employee is determined to be otherwise qualified for the position. The new law thus provides another area where employers have to tread carefully when rejecting applicants—an employer is much more baldly exposed to disparate impact claims arising from applicants rejected after the employer had determined they were otherwise qualified for the position. The law includes several exceptions, including for law enforcement, employers whose employees would have unsupervised access to children or vulnerable adults, and other employers required by law to conduct criminal background checks. The Attorney General’s Office is in charge of enforcing the law, and employers face an escalating system with increased fines for each subsequent violation.

Suggested Action: Remove any criminal background questions from job applications. While the statute bars advertising that states “no felons” or “no criminal background” or the like, nothing precludes employers from advising applicants at the time they apply that they will have to pass a criminal background check once they have been determined to be qualified for the job. Employers should monitor applicants screened out by the results of a criminal background check. If an employer detects a disparate impact as a result of that screening, the employer should ensure that its actions are consistent with business necessity. Continue Reading

California Supreme Court Instructs Employers How to Calculate Employee Overtime Pay Rate

By Bryan Hawkins on March 9, 2018 Posted in California, employer policies

In Alvarado v. Dart Container Corporation of California, the California Supreme Court determined how employers must calculate an employee’s overtime pay rate when the employee earns a bonus during a single pay period. While the holding was fairly fact specific, it is a reminder on an often ignored (but critical) issue in California employment law: the computation of an employee’s overtime rate of pay.

Alvarado involved a putative class action filed by a former Dart employee. Plaintiff alleged that he was a member of a group of Dart employees who, in addition to being paid on an hourly basis, also received a $15 per day flat sum “attendance bonus” if they worked on a Saturday or Sunday. The thrust of plaintiff’s complaint was that Dart had improperly factored the attendance bonus into his regular rate of pay, resulting in an improper calculation of his overtime rate of pay and, in turn, an underpayment of overtime pay.

The trial court granted Dart’s motion for summary judgment, which was affirmed by the Court of Appeal. The Supreme Court, however, reversed the Court of Appeal’s decision and found that Dart had used the incorrect calculation in factoring in the attendance bonus. Specifically, the Court held that the flat sum bonus at issue should be factored into an employee’s regular rate of pay by dividing the amount of the bonus by the total number of non-overtime hours actually worked during the relevant pay period.

In addition to clarifying how flat sum bonuses should be factored into an employee’s regular rate of pay, the Supreme Court also confirmed the value of the Department of Labor Standards Enforcement’s so-called “underground interpretive regulations.” These are regulations that did not comply with the California Administrative Procedures Act.

Dart is important because it informs employers how to factor in flat sum bonuses during a single pay period. Almost as important, however, the case confirms that calculating an employee’s overtime pay rate isn’t always as simple as multiplying the employee’s hourly rate by 1.5 and that there are significant legal consequences for employers making this type of (relatively) small and innocuous error.

California Proposes New Legislation Prohibiting Confidentiality Provisions in Settlement Agreements

By Bryan Hawkins on January 5, 2018 Posted in California

In the face of a continuing wave of highly publicized complaints of sexual misconduct in the workplace, California state senator Connie M. Leyva introduced Senate Bill 820. If passed, this law would prohibit the inclusion of nondisclosure terms in settlement agreements relating to actions alleging claims of sexual harassment or discrimination in the workplace. Continue Reading

Trump NLRB Shakes Up the Labor World in Striking Down Numerous Obama Board Decisions

By John Dudrey, Ryan Kunkel, Tim O'Connell and Jim Shore on December 19, 2017 Posted in Board settlement, Cases, Labor, News, NLRB, Updates

It might appear that in some years, the National Labor Relations Board (the Board) issues a series of decisions just as the year comes to a close, but it is not because the Board wants to give out holiday presents (or, from the employer’s perspective for the past several years, multiple lumps of coal). Rather, the year-end eruption of decisions comes about as the Board rushes to complete its work before one of the Board member’s term expires. This year was no different, as Chairman Miscimarra’s term ended on December 16. This time, employers have every reason to celebrate the gifts they received.

Within the last few days, the NLRB has overruled or indicated its intent to reverse several significant Obama Board decisions, including:

the controversial “joint employer” standards;
the creation of “micro units”;
the controversial 2014 “quickie election” rules;
the basis for the Board reaching out to strike down common employer policies, such as rules requiring civility in the workplace;
the degradation of the “dynamic status quo”; and
the standard for reviewing settlement agreements.

California Implements Significant Changes in the Employment Application Process, Employee Training, and Protected Leaves

By Bryan Hawkins on October 19, 2017 Posted in California, Legal, Updates, wage and hour

On October 12, 2017, California Governor Jerry Brown signed several bills regulating a wide range of employer actions, everything from the labeling of cleaning fluids to the employment application process. While compliance with all of these new laws is important, four are of particular importance as they directly impact the information employers can seek from potential applicants, the training that must be provided to current employees, and protected leaves.

AB 168 and AB 1008 restrict the information employers can obtain from potential job applicants. AB 168 makes it unlawful for California employers to either obtain or rely upon an applicant’s salary history to determine whether to offer an applicant a job or what salary to offer an applicant. The law, however, does not prohibit a job applicant from voluntarily and without prompting disclosing to a prospective employer his or her salary history. If a job applicant voluntarily discloses information in this way, then the employer is permitted to rely upon that history in determining the salary for that applicant.

AB 1008 imposes a statewide “ban-the-box” law. Specifically, this law prohibits California employers with five or more employees from (1) including on any application for employment any question that seeks the disclosure of an applicant’s conviction history or (2) inquiring into or considering an applicant’s conviction history prior to providing that applicant with a conditional offer of employment. The law also provides that employers who intend to deny an applicant a position of employment based upon that applicant’s conviction history must make an individualized assessment as to whether the applicant’s prior criminal history has a detrimental impact on the prospective employment. Employers must also provide applicants with notice of a preliminary decision to deny employment based on the individualized assessment and allow applicants the opportunity to challenge the accuracy of their conviction history. Prior to the signing of AB 1008, many local jurisdictions had enacted similar ordinances prohibiting the use of an applicant’s prior conviction history in the initial application process. With passage of AB 1008, this prohibition is now statewide. Continue Reading

California Responds to Increased Federal Immigration Enforcement Actions

By Bryan Hawkins on October 6, 2017 Posted in Immigration, Legal

On October 5, 2017, California Governor Jerry Brown signed AB 450. With the passage of this bill, California becomes the first state in the nation to enact a law prohibiting employers from providing voluntary assistance to immigration enforcement agents during workplace investigations.

Earlier this year, U.S. immigration authorities conducted a series of high-profile raids of workplaces across the country in an attempt to locate undocumented immigrants. In response, California Assembly member David Chiu introduced AB 450, the Immigrant Worker Protection Act. AB 450 prohibits both public and private employers from voluntarily providing immigrant enforcement (ICE) agents with access to nonpublic work areas or employee records, absent a judicial warrant or subpoena. AB 450 also mandates that employers provide certain notices to their employees concerning any inspections by ICE agents of I-9 Employment Eligibility Verification forms and the results of such inspections.

Critically, the law also provides for penalties of up to $10,000 for violations. While the law provides that enforcement of the sections concerning access to nonpublic work areas and employee records is limited to the California Labor Commissioner and/or Attorney General, the sections pertaining to required notices contain no such limitations. As such, private employees may be able to recover penalties for violations of these notice provisions pursuant to California’s Private Attorney General Act.

This law requires employers to walk a fine line. On one hand, employers must comply with federal law prohibiting them from hiring individuals without verifying their eligibility to work in the United States. On the other hand, AB 450 means that employers in California must also be cautious in how vigorously they apply immigration laws, e.g., voluntary compliance with a federal enforcement action.

Employers with California operations should promptly begin revising their employment processes and advising their management employees to ensure compliance with this new law. By failing to do so, they will leave themselves exposed to substantial liability from both public agencies and private employees.

Employers Need Not Disclose Pay Data on EEO-1 Reports; September Deadline Moved to 2018

By Ryan Kunkel and Jim Shore on August 31, 2017 Posted in EEOC, News, Uncategorized, Updates

Employers can breathe a sigh of relief. The Office of Management and Budget (“OMB”) announced this week that it was removing a requirement that EEO-1 reports contain employee pay data. The now-defunct Obama-era requirement announced in 2016 would have required employers to disclose compensation information to the EEOC regarding all employees, including executives – which many employers consider to be highly confidential. The OMB also announced that it extended the EEO-1 reporting deadline from September 30 of this year to March 31, 2018. Continue Reading

Department of Labor Seeks Input on New Rules for White Collar Exemptions

By Ryan Kunkel, John Dudrey and Matt Durham on August 24, 2017 Posted in Department of Labor, FLSA, Gov't Agencies, Updates, wage and hour

Employers know that the salary rule for “white collar” exemptions from President Obama’s Department of Labor (“DOL”) was blocked by a federal court last year (we blogged about that here). (UPDATE: A Texas federal court invalided the rule on August 31, 2017.) That rule would have more than doubled the salary requirement for an overtime exemption. Now, President Trump’s DOL has formally announced that it will not pursue that rule. Instead, it is soliciting comments to draft its own rule.

Employers have an opportunity to weigh in on what, if any, changes should be made to the white collar exemptions. The DOL’s request for information suggests it is seriously considering making at least some changes to the exemptions. Continue Reading

The Washington Supreme Court Addresses Meal Break Claims

By Chris Wall on August 17, 2017 Posted in Supreme Court, wage and hour, Washington

The Washington Supreme Court case Brady v. Autozone recently addressed the standards that apply when a non-exempt employee alleges that an employer did not provide meal breaks. In short: it is now clear that if a lawsuit is brought, employers are likely to bear the burden to show that break laws have not been violated.[1] Continue Reading

California Court of Appeal Puts a Small Crack in the Glass Door

By Bryan Hawkins, Amy Joseph Pedersen and Tim O'Connell on July 26, 2017 Posted in Articles, California, Practical Tips, States

An employer who unfairly and inaccurately is slammed by a former employee (or maybe even a current employee!) on a job-posting or employer-rating website will often look to its lawyer for help. Surely the law protects against outrageous false statements that harm the employer’s ability to recruit new talent? Maybe not—and if there is, it isn’t easy. The websites that provide the platform for these posts are immune from liability under the federal Communications Decency Act, and most courts have put up substantial roadblocks to enforcement of a subpoena targeted at getting the names of the anonymous posters. But California now may be leading the way in bringing some sanity to this murky area of the law. Continue Reading