Today, the Supreme Court blocked the Biden Administration’s vaccine-or-test mandate for large employers, known as the Emergency Temporary Standard (“ETS”), which we wrote about here. The Court held that the federal agency that issued the ETS, the Occupational Safety and Health Administration (“OSHA”), has authority to regulate workplace safety issues, but not to regulate
Tim O’Connell is a partner of Stoel Rives in the labor & employment and telecommunications law sectors. His practice includes collective bargaining, unfair labor practice and representation proceedings before the NLRB and public sector agencies, labor arbitrations, equal employment and discrimination cases before administrative agencies and courts, wrongful discharge litigation, wage and hour counseling and litigation, and general personnel management. He has also been actively involved in the rulemaking process, both drafting and negotiating new rules and leading litigation challenging agency action.
Click here for Tim O'Connell's full bio.
Federal Court Allows OSHA Vaccine-Or-Test Rule To Move Forward
In a decision released late in the day on Friday, the United States Court of Appeals for the Sixth Circuit lifted a stay against the Occupational Safety and Health Administration’s (“OSHA”) rule requiring employers with 100+ employees either to require their employees to be vaccinated against COVID-19 or to submit to weekly COVID-19 testing and…
Be Aware: SHSH Violations Will Be Treated As WISHA Violations
In response to recent developments displaying the difficulties in enforcing Governor Jay Inslee’s “Stay Home Stay Healthy” order (“SHSH”), the state Department of Labor & Industries has acted. Now a violation of SHSH will be treated as a violation of Washington’s health and safety regulations, and subject employers to the full panoply of fines and other penalties available under the Washington Industrial Safety and Health Act (“WISHA”). The text of the new rule is available here. The new rule was adopted on an emergency basis, here without public notice or comment, and is effective immediately.
The SHSH order was issued in late March, and “non-essential” businesses were ordered closed. As the closures have dragged on, some businesses had re-opened anyway. The most high-visibility cases were a pair of gyms, a business not deemed “essential” under SHSH. SHSH had no effective enforcement mechanism, however, and the Washington Attorney General was reduced to threatening litigation under the Consumer Protection Act, on the theory that the open gyms derived an unfair advantage over gyms that were observing SHSH. See the Attorney General’s letter here.
Continue Reading Be Aware: SHSH Violations Will Be Treated As WISHA Violations
NLRB Postpones All Representation Elections Until At Least April 3
The National Labor Relations Board (“NLRB”) announced yesterday that all currently scheduled representation elections – including vote-by-mail elections—have been postponed until at least April 3, 2020 because of the ongoing COVID-19 crisis. Here is what the NLRB had to say:
Due to the extraordinary circumstances related to the COVID-19 pandemic, the National Labor Relations Board today approved the suspension of all representation elections, including mail ballot elections, for the next two weeks effective immediately, through and including April 3, 2020. …
Continue Reading NLRB Postpones All Representation Elections Until At Least April 3
No Peace for Piece-Rate Pay in Washington Agriculture
In yet another blow to agricultural employers, grab your stopwatches. In Carranza v. Dovex Fruit Co., the Washington Supreme Court has just held that agricultural employers are required to compensate piece-rate workers on a separate hourly basis for time spent performing tasks outside the specific scope of the piece-rate work.
In a narrow 5-4…
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 Washington Legislature Enacts Multiple Anti-Employer Statutes
Trump NLRB Shakes Up the Labor World in Striking Down Numerous Obama Board Decisions
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…
California Court of Appeal Puts a Small Crack in the Glass Door
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 California Court of Appeal Puts a Small Crack in the Glass Door
Washington State to Consider Paid Family Leave
Last week, representatives of the business community and employee groups completed negotiations to create a paid family and medical leave insurance program in Washington. Many details need to be worked out, the actual legislation has not yet been drafted, and the Washington Legislature has a number of other issues demanding its attention. Nonetheless, there are substantial prospects that this compromise program will be enacted during this legislative session. If so, the Employment Security Department would begin collecting premiums in 2019, and benefits would become available in 2020.
Continue Reading Washington State to Consider Paid Family Leave
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…