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
Oregon recently passed amendments to its statewide sick time law, clearing up several areas of uncertainty for employers. The amendments clarify that:
- Employers may cap employees’ annual accrual of sick leave at 40 hours. The pre-amendment version of the sick leave law stated that employees had the right to “earn and use up to 40 hours of paid sick time per year,” but also mandated that employees accrue one hour of paid sick time for every 30 hours worked. At the “1 for 30” rate, full-time employees would reach the 40-hour limit well before the end of the year, leading to confusion about whether they were entitled to continue accruing sick time for the remainder of the year (which would, in effect, give them more than 40 hours of annual leave). The amendments, which expressly state that “[e]mployers may limit the number of hours of paid sick time that employees may accrue to 40 hours per year,” make clear that continued accrual beyond 40 hours is not a requirement. Once employees have accrued 40 hours, they are done for the year, even if there are several months left in which they will not accrue any time.
Oregon is poised to become the first state to enact a “secure scheduling” or “fair work week” law that will impose significant new employee scheduling requirements on certain categories of large employers. Senate Bill 828, which will set new scheduling standards for employers with 500 or more employees worldwide in the retail, hospitality, or food services industries, passed the Senate last week and just passed the House. It has now been sent to Governor Kate Brown, who has indicated she will sign the bill following a routine legal review. Continue Reading
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
In light of the current administration’s approach to immigration enforcement, it is important that employers understand their legal rights and responsibilities when faced with potential raids by U.S. Immigration and Customs Enforcement (“ICE”) or local police acting in cooperation with ICE. Understandably, many employers will want to ensure not only that they are complying with the law, but also that they are looking out for their employees. Employers must be careful, however, not to provide too much assistance and cross the line between compassionate and criminal behavior. Continue Reading
“Equal pay for equal work.” Everyone – employees and employers alike – can agree that no workers should be paid less than others simply because of their gender, race, veteran status, or any other protected characteristic. But the reality of the pay gap is more complicated. Employers make salary decisions based on a number of business factors, like experience, education, and merit, as well as prior salary history. The Oregon Equal Pay Act (the “Act”), which was unanimously approved by the legislature and is expected to be signed into law by Governor Kate Brown this week, will prohibit employers from asking job applicants about past salary history. Continue Reading
Although federal contractors were able to breathe a sigh of relief after the current administration put a stop to President Obama’s “Blacklisting” executive order, employers in the state of Washington must now comply with their own “blacklisting” law. On May 8, Washington state signed into law Senate Bill 5301 (“SB 5301”), which bans employers from competing for state and local contracts if they have “willfully” violated select wage statutes in the past three years. Employers with such violations are deemed not to be “responsible bidders” and are disqualified from obtaining public works projects. SB 5301 passed with bi-partisan support. Continue Reading
In Mendoza v. Nordstrom, the California Supreme Court answered three questions from the Ninth Circuit concerning California’s “day of rest” statutes. The Court’s decision clarifies a significant ambiguity for employers regarding the obligation to provide employees with their statutorily mandated day of rest.
Mendoza involved a putative class action filed by former Nordstrom employees alleging Nordstrom violated California’s Labor Code by failing to provide them with one day of rest in seven and causing them to work more than six in seven days. After the district court granted summary judgment in Nordstrom’s favor, plaintiffs appealed to the Ninth Circuit. Continue Reading
The federal Occupational Safety and Health Administration (“OSHA”) announced late last week that it was rescinding its 2013 “Fairfax” memorandum, which allowed union representatives to participate in workplace safety walk-throughs.
Here is the background. Soon after the Occupational Health and Safety Act (“the Act”) passed in 1970, OSHA interpreted the law to allow employees to accompany safety inspectors during safety walk-throughs. Historically, OSHA had also allowed third parties like industrial safety specialists to join the walk-throughs if “reasonably necessary.” In 2013, OSHA expanded its definition of allowable third parties to include union representatives, even if the union did not represent the company’s employees. (OSHA’s position was contained in a memorandum issued by Richard Fairfax, who at the time served as the Deputy Assistant Labor Secretary). OSHA justified its position as the natural consequence of its longstanding view that when “employees have chosen a representative, they have a right to have that representative accompany the [OSHA investigator] during a workplace inspection.”
In September 2016, the National Federation of Independent Businesses (“NFIB”) sued OSHA, arguing that OSHA had exceeded its administrative authority by issuing the Fairfax memorandum without allowing notice and comment from interested parties. Substantively, NFIB (and other business groups) opposed the Fairfax memorandum because they viewed its union-access requirement as a boon to union-organizing activity that had little to do with employee safety. NFIB received a favorable ruling from the trial court in February of this year, with the court largely accepting its argument that OSHA was required (but had failed) to engage in the notice and comment process. Although OSHA has confirmed its withdrawal of the Fairfax memorandum (and NFIB voluntarily dismissed its lawsuit), as yet the agency has not commented publicly about its reasons for doing so.
Without comment from OSHA, it is difficult to speculate about how the withdrawal fits into the Trump administration’s overall approach to labor law issues generally or to workplace safety issues in particular. At a minimum, however, it seems clear that organized labor will not view the withdrawal positively, and that the withdrawal is a victory for businesses that wish to keep union organizers away from their workplaces.
“Who will be hurt if gays and lesbians have a little more job protection?” Judge Richard Posner of the Seventh Circuit Court of Appeals posed this question a few months ago during oral argument in a case involving a teacher who alleged she was fired because she is lesbian. On Tuesday, the en banc Seventh Circuit answered Judge Posner’s rhetorical question in a landmark decision holding that Title VII protects employees from discrimination on the basis of their sexual orientation. The court is the first court of appeals in the country to apply Title VII’s job protections to employees on the basis of their sexual orientation, interpreting the definition of “sex” under Title VII to include “sexual orientation.”
To casual followers of the law, this decision may seem unremarkable after the Supreme Court ruled nearly two years ago that same-sex marriage enjoys constitutional protection. (See our blog on the Obergefell decision here, and our blog on the decision’s impact on employee benefits here.) But it is a watershed decision with ripple effects far beyond the three states within the Seventh Circuit. Continue Reading