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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,…

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 Class Action Waivers in Employment Agreements Are No Longer Enforceable in the Ninth Circuit

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.

Continue Reading City of Seattle Proposes New Ordinance Regulating Employee Scheduling

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:

  1. You have fewer than six employees;
  2. Federal, state, or local law requires you to consider an applicant’s criminal history;
  3. You are a law enforcement agency or part of the criminal justice system; or
  4. You are seeking a nonemployee volunteer.

Continue Reading Portland, Oregon’s More Restrictive “Ban the Box” Ordinance

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 2016 Oregon Legislative Update: What You Might Have Missed

On May 2, 2016, The U.S. Supreme Court declined to hear the legal challenge to the Seattle Minimum Wage Ordinance’s impact on Seattle franchisees (IFA v. Seattle–denial of cert).  We have blogged about Seattle’s Minimum Wage Ordinance (“Ordinance”) before. The Ordinance requires large businesses, defined as those with more than 500 employees, to…

A recent California Supreme Court decision has the potential to affect all California employees who are required to stand while performing parts of their job.  In response to numerous lawsuits brought by cashiers, retail employees, bank tellers and other employees, the California Supreme Court clarified the meaning of a decades-old law that requires employers to provide their employees with “suitable seats” when the nature of the work permits it.  The Court rejected the interpretation favored by employers—creating instead an interpretation that will make it more difficult for employers to deny their employees a seat.

As a result of this decision, California companies must give careful consideration to whether their employees can perform any of their tasks while sitting.  Employers who fail to provide seats when the nature of the work would reasonably permit their use face significant penalties.

Suitable Seating Laws

Different variations of seating laws have been in place in California since 1911.  The current language dates back to 1976, when the Industrial Welfare Commission modified a wage order to require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  The wage order also requires that “when employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”
Continue Reading California Employers Must Carefully Reconsider Whether Employees Can Be Provided With “Suitable Seats” In Light of New Decision

After heated debate between legislators and among the business community, the Utah state legislature has passed HB 251, the Post-Employment Restrictions Act.  As passed, the Act prohibits “post-employment restrictive covenants” with restrictive periods longer than one year.  The Act defines a “post-employment restrictive covenant” (also identified in the statute as a “covenant not to compete” or “non compete agreement”) as

an agreement, written or oral, between an employer and employee under which the employee agrees that the employee, either alone or as an employee of another person, will not compete with the employer in providing products, processes, or services that are similar to the employer’s products, processes, or services.

The Act prohibits employers and employees from entering into post-employment restrictive covenants of more than one year and declares such agreements void.  The Act specifically requires that non-competition must comply with other requirements for enforceability that have developed under common law.  Finally, the Act provides that employers who unsuccessfully attempt to enforce such agreements are liable for actual damages, court or arbitration costs, and attorney fees.
Continue Reading Utah Passes Bill Regulating Non-Competes

The Utah Legislature has passed SB 59, which amends the Utah Antidiscrimination Act to provide additional protections for pregnant and breastfeeding women in the workplace.

This law requires employers to provide reasonable accommodations to employees upon request for conditions related to pregnancy, childbirth, and breastfeeding, unless doing so would create an “undue hardship.”  Employers are…