States

Subscribe to States via RSS

Employers in Washington should take note of last week’s decision from the Washington State Supreme Court holding that state law allows a claim for failure to reasonably accommodate an employee’s religious practices. That result is hardly surprising, but how the Court reached that result, and its other conclusions along the way, will complicate how businesses in Washington operate. While the obligation to accommodate employees’ bona fide religious practice has existed under federal law since at least the early 1970s, smaller employers not subject to Title VII must now comply — and all employers are now subject to suit for such claims in Washington state courts.Continue Reading Washington State Supreme Court’s Decision on Religious Accommodation: What It Means for Employers

Not to be outdone by its neighbors to the north–Portland and Seattle–Eugene, Oregon appears poised to become the next jurisdiction to pass an ordinance requiring employers to provide employees working within city limits with paid sick leave. A coalition of pro-sick leave advocacy groups, including Portland-based Family Forward, first brought the topic before the council in…

In an unapologetic rejection of a decades-old legal fiction hatched by the federal Occupational Safety and Health Administration ("OSHA") and embraced by Utah Division of Occupational Safety and Health ("UOSH"), on January 31, 2014, the Utah Supreme Court repudiated the multi-employer worksite doctrine. Hughes General Contractors v. Utah Labor Commission, 2014 UT 3. The Court based its repudiation on the doctrine’s “incompatibility with the governing Utah statute.”

The so-called multi-employer worksite doctrine makes a general contractor responsible for the occupational safety of all workers on a worksite, including those who are not even the general contractor’s actual employees. In rejecting that doctrine, the Supreme Court reaffirmed that the responsibility for ensuring occupational safety in Utah is limited to an employer’s actual employees.

Hughes was a general contractor overseeing a construction project involving multiple subcontractors, including a masonry subcontractor. UOSH invoked the multi-employer worksite doctrine and cited Hughes for improper erection of scaffolding in connection with the masonry subcontractor’s work, concluding that Hughes was responsible as a “controlling employer” under Section 34A-6-201 of the Utah Occupational Safety and Health Act (UOSH Act) given Hughes’ “general supervisory authority over the worksite.” Hughes challenged the legal viability of the doctrine before the Administrative Law Judge, who upheld the citation; and then the Labor Commission’s Appeals Board affirmed the ALJ’s decision. The Board based its decision on the notion that Section 34A-6-201 “mirrors its federal counterpart, which was interpreted [by the 10th Circuit] to endorse” the doctrine. Id., ¶5.Continue Reading Utah Supreme Court “Repudiates” the Federal Multi-Employer Worksite Doctrine

The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.

Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).

The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.Continue Reading Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees

In a time when California courts are busier than ever, the California Court of Appeal recently did double duty by issuing an opinion that both decided an issue of first impression in California and implicitly approved Senate Bill ("SB") 292, a relatively new law (and one that we blogged about last year) clarifying that sexual harassment under California’s Fair Employment and Housing Act (“FEHA”) does not require proof of sexual desire towards plaintiff.

The Court’s opinion in Max Taylor v. Nabors Drilling USA, LP can be found here. (Warning: this one is not family friendly!)  The case involved an employee working as a “floorhand” on an oil rig. For anyone who has never worked on an oil rig before (myself included), a floorhand is usually the lowest member of a drilling crew and is given the dirtiest and most physically demanding jobs. During the course of plaintiff’s employment, his male supervisor subjected him to serious and extreme harassment. For example (and this is where it gets bad, although we’re only giving you the PG version), his supervisors called him multiple derogatory terms for gay men, made several offensive comments when he had an infection on his face, posted his photograph in the restroom with offensive graphics, urinated on him, spanked him, and aroused themselves in his presence and then asked him to sit on his lap.Continue Reading California Court of Appeal Affirms That It Pays To Be the Squeaky Wheel

Today we continue with our recent New Years theme.  Not to be outdone by their neighbors to the south, the Oregon Legislature was also busy in 2013.  And now that 2014 is upon us so too are a slew of new Oregon employment laws. In areas ranging from social media to sick leave, Oregon employers should carefully review their policies and practices to ensure current compliance with these new laws.  Here is a round up of the major changes to employment laws enacted by the Oregon Legislature (and the City of Portland) that employers should be aware of in 2014:

  • Employers may not demand access to employees’ social media accounts. Beginning on January 1, 2014, employers may not demand access to employees’ or applicants’ personal social media accounts. House Bill 2654, which Governor Kitzhaber signed into law on May 22, 2013, prohibits employers from requiring an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” It further prohibits employers from requiring that an employee “friend” or otherwise connect with an employer via a social media account, and from compelling the employee to access the account in the employer’s presence such that the employer can view it. A number of other states have passed or are considering similar legislation.

Continue Reading Happy New Year from the Oregon Legislature: New Employment Laws To Watch Out For in 2014

It has become an annual New Year’s tradition in California — employers getting up to speed on a host of new employment laws that will affect them in the coming year. The California Legislature was busy in 2013 imposing new burdens on employers for 2014 and beyond. We previously blogged about an increase in the state minimum wage and a statutory clarification of the definition of sexual harassment, but those new laws are only the tip of the iceberg. Here’s our annual summary of the most important new laws affecting California employers.

  • Expanded Whistleblower Protection (SB 496): California law already prohibits employers from retaliating against employees who report the employer’s violation of state or federal law to a government or law enforcement agency. SB 496 expands whistleblower protection in several ways. First, it prohibits retaliation against internal whistleblowers, so an employee who reports suspected violations within the company is entitled to whistleblower protection to the same extent as an employee who reports violations to a government agency or law enforcement. Second, SB 496 provides whistleblower protection for reports of violations of local ordinances and regulations, as well as state and federal statutes. Third, SB 496 provides whistleblower protection to employees whose duties include the disclosure of legal compliance issues, which overturns case law excluding such employees from whistleblower protection.

Continue Reading A Not-So Happy New Year for California Employers: 2014 Legislative Update

A November 27, 2013 opinion from the Idaho Supreme Court reinstated a former Assistant Vice Principal’s claim seeking damages for negligent infliction of emotional distress. This decision highlights that allegedly harassing workplace comments may subject employers to liability even though e the complaining employee cannot make out a traditional sexual harassment claim. 

In Frogley v. Meridian Joint School Dist., 2013 opinion No. 124, the employee claimed that he had been the victim of sexual harassment based upon sexually-charged comments to and about him. Mr. Frogley claimed that the behavior continued despite making known that the behavior was offensive. The complaints came at approximately the same time his superiors began to question his work performance.

All of the claims, including sexual harassment under federal and state law, were dismissed before they were allowed to proceed to trial. The Supreme Court’s opinion does not detail the reason for the lower court’s decision in that regard and the employee chose not to appeal dismissal of the sexual harassment theories; pursuing instead his claims for retaliation and negligent infliction of emotional distress.Continue Reading No Harassment, No Problem: Idaho Court Holds Harassing Comments May Still Support Liability for Negligent Infliction of Emotional Distress

In March 2013, the Portland City Council passed the new Portland Paid Sick Leave Ordinance requiring all but the smallest employers to provide paid sick leave (“PSL”) for employees who work within city limits. On November 1, the city released final regulations interpreting the Ordinance and fleshing out some of the requirements in more detail. Also, the original Ordinance was amended in early October while the regulations were being finalized. The law becomes effective January 1, 2014, so employers with employees in Portland need to review relevant policies to confirm they comply with the new ordinance.

Many of the Ordinance’s requirements will look familiar to employers used to dealing with other leave laws, particularly the Oregon Family Leave Act (“OFLA”). But this Ordinance has its own twists, many of which result from the fact that it’s not a state-wide law like OFLA but instead only applies to employees within Portland. This list of 25 frequently asked questions (“FAQ”) covers many of the the questions employers might have as they work through understanding the Ordinance and update their policies to ensure compliance. Yes, there are really 25 of them.

The Basics

 

1. What does the Ordinance require in 20 words or less?

Employers with six or more employees must allow employees in Portland at least 40 hours of PSL per year.  That’s 19 words!  But of course, there’s a lot more to it than that, so read on.

 Continue Reading Top 25 FAQs Employers May Have About Implementing the New Portland Paid Sick Leave Ordinance in 2014

Seattle employers are about to become much more restricted in their ability to inquire into or act upon the criminal records of applicants and employees. On November 1st, the Seattle Job Assistance Ordinance, SMC 14.17, takes effect and will apply to positions that are based in Seattle at least half of the time. The Ordinance does not apply to governmental employers (with the exception of the City of Seattle) or to positions involving law enforcement, crime prevention, security, criminal justice, private investigation, or unsupervised access to children under the age of sixteen or to vulnerable or developmentally disabled adults.

The Ordinance imposes the following new restrictions on the hiring process:

  • Advertisements for positions cannot state that applicants with criminal records will not be considered or otherwise categorically exclude such applicants;
  • The employer cannot implement any policy or practice that automatically excludes all applicants with criminal histories;
  • The employer must complete an initial screening process to weed out any unqualified candidates before the employer can question applicants about their criminal histories or run criminal background checks on applicants;
  • The employer cannot refuse to hire an applicant solely because he or she has an arrest record (as opposed to a conviction record); and
  • The employer cannot refuse to hire an applicant solely because of his or her conviction record, conduct underlying his or her arrest record, or pending criminal charges unless the employer has a legitimate business reason to do so.

Continue Reading New Seattle Job Assistance Ordinance Limits Employers’ Reliance on Criminal Records