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

Here’s something that should be at the top of your to do list on this Monday morning:  make sure your benefits and other employee policies are in compliance with new guidance from the IRS that becomes effective today relating to federal tax treatment of same-sex marriages under the U.S. Supreme Court’s decision in U.S. v. Windsor.  In Windsor, the Supreme Court struck down provisions of the Defense of Marriage Act (“DOMA”), which had prohibited recognition of same-sex marriages under federal law. That decision has several implications for employers, including application of employee leave laws such as the Family Medical Leave Act (“FMLA”), which we blogged about recently.

Since the Windsor ruling, federal agencies have been busy carrying out President Obama’s directive to update regulations and guidance accordingly.  On August 29, the IRS issued Revenue Ruling 2013-17 and two sets of FAQs (here and here), advising how the IRS will treat same-sex marriages for federal tax purposes. (Windsor was, after all, a tax case, in which the issue was whether the IRS was allowed to disregard a same-sex marriage for federal estate tax purposes).  The guidance becomes effective today, September 16, 2013.

Under that new guidance, the IRS will apply the marriage laws of the state or country in which the marriage was celebrated (‘state of celebration”) to determine if the couple is validly married for federal tax purposes, including tax and other issues relating to employee benefits.  Under the new IRS guidance, any same-sex marriage validly entered into in any state or foreign country that allows same-sex marriage will be recognized by the IRS for income, estate, and other tax purposes, even if the couple does not live or work in a state that recognizes the marriage.  For example, if a same-sex couple is married in Washington (or Canada), which recognizes same-sex marriage, and then moves to Oregon, which currently does not, the couple will still be considered married for federal tax purposes.Continue Reading Employers Should Review Benefits Plans And Other Policies Affecting Employees In Same-Sex Marriages As New IRS Guidance Implementing U.S. Supreme Court’s Windsor Decision Becomes Effective Today, September 16, 2013

Just last week, in the case GameStop Corp., a National Labor Relations Board (NLRB) administrative law judge applied recent Board precedent and ignored contrary cases from federal courts to find an employer’s arbitration agreement was unenforceable because it waived the right of employees to bring class or collective actions.  While the decision has yet to be approved by the NLRB itself (parties can appeal ALJ decisions to the NLRB), it illustrates the continuing tension in this area between the NLRB (which disfavors class action waivers in employee arbitration agreements) and the federal courts (which favor them). 

As we have reported, U.S. federal courts continue to hold that employees may enter into arbitration agreements in which they waive the right to file class or collective action claims.  The U.S. Supreme Court put its stamp of approval on such waivers in 2011 in the blockbuster case AT&T v. Concepcion, holding that the enforceability of arbitration agreements was governed by the Federal Arbitration Act (FAA), which preempted any state law purporting to regulate arbitration agreements, including arbitration agreements with class action waivers.  Building on a decades-long line of cases steadily increasing support for the concept of arbitration and similar alternative dispute resolution (“ADR”) methods for resolving litigation, Concepcion also held decisively that arbitration agreements could include waivers by the parties of the right to bring lawsuits as class actions.  The U.S. Supreme Court has re-affirmed Concepcion in subsequent decisions.Continue Reading Chasm Continues To Widen, For Now, Between NLRB and Federal Courts On Enforceability Of Class Action Waivers In Employment Agreements

As we’ve blogged about before, the EEOC has become more aggressive over the past few years in scrutinizing employer use of criminal background and credit checks.  While federal anti-discrimination laws do not expressly prohibit employers from performing background checks or similar screening methods on employees or applicants, their use can be unlawful where the practice has a “disparate impact” on protected classes of employees under Title VII.  Recently, the EEOC has issued Guidance documents focusing on disparate impact cases involving criminal history and credit checks, all as part of its interest in “systemic” forms of discrimination.  In addition to issuing guidance limiting when and how employers can use criminal and credit history background checks in employment, the EEOC has been actively investigating specific employers, as some readers of this blog are undoubtedly all too aware.  In some cases, the EEOC has even initiated lawsuits challenging employers’ use of background checks.  For example, the EEOC has filed suit just a few weeks ago against Dollar General (EEOC v. Dollar General, No. 1:13-cv-04307, Illinois) and BMW (EEOC v. BMW Manufacturing Co., LLC, No. 7:13-cv-01583-HMH-JDA, South Carolina).

Many employers and employment attorneys who have argued that appropriate use of background checks can be important and necessary believe the EEOC is going too far.  Those employers have complained that the EEOC’s aggressive position presumes the use of criminal or credit background checks is per se unlawful and amounts to a de facto ban on their use under any circumstances, regardless of whether or not they result in an unlawful disparate impact.  If you are one of those raising such concerns, federal judges may be listening.  A few weeks ago, a federal  judge in the U.S. District Court in Maryland issued an opinion granting summary judgment dismissal in another of the EEOC’s enforcement lawsuits, EEOC v. Freeman (No. 1:10-cv-2882, Maryland).  The scathing opinion by U. S. District Court Judge Roger Titus held that the EEOC’s evidence was unreliable and failed to raise a question of fact or show Freeman’s background check policies created a disparate impact in violation of Title VII.Continue Reading Maryland Federal District Court’s Dismissal of EEOC v. Freeman Provides Guidance for Employers on Background Check Rules

Minnesota employers, take note:  laws that impact you are changing this year. Not only did the Minnesota legislature recently expand the use of employee sick leave (as we blogged about here) and legalize same-sex marriage, but several other changes occurred this year that may directly impact your business.  Here’s a quick round up of some of the most important new laws enacted by the legislature affecting Minnesota employers.

Criminal Background Checks

Perhaps the most notable change is, beginning January 1, 2014, most Minnesota employers must change their standard employment applications and hiring practices related to use of a job applicant’s criminal history. The new "ban the box" law, which refers to the check box on most employment applications asking about an applicant’s criminal history, will bar private employers from asking about or considering an applicant’s criminal history until (1) the applicant is selected for an interview or (2) if there is no interview, the applicant receives a conditional offer of employment. Employers who have a statutory duty to conduct criminal history investigations or otherwise consider criminal history in the employment process, such as school districts and many health and human services providers, are exempt from the new law.

When the law goes into effect, Minnesota employers who previously required all applicants to disclose criminal history will need to defer the inquiry until further into the interview process.Continue Reading 2013 Minnesota Labor and Employment Update

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”) 

This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise.  (Shameless self-promotional plug:  these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar.  For details on other Stoel Rives seminars and breakfast briefings, click here.)Continue Reading FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

As almost everyone knows, the U.S. Supreme Court  issued two blockbuster decisions on gay marriage, U.S. v. Windsor, which struck down the Defense of Marriage Act’s ("DOMA") definition of marriage for the purposes of federal law, and Hollingsworth v. Perry, which struck down California’s "Proposition 8" prohibiting same-sex marriage in that state.  Those decisions will likely have significant effects on employers, such as with respect to employee benefits, health care and tax issues related to employees with same-sex partners.  For example,read here for a detailed discussion of how the Supreme Court’s decisions may impact employee benefits.

Those decisions, particularly Windsor, also will have an immediate impact on employee coverage under the federal Family Medical Leave Act ("FMLA"), which requires covered employers to provide up to 12 weeks per year of unpaid leave to eligible employees for qualifying reasons (more leave may be required in certain situations, such as leave related to military duty).  One such qualifying reason entitles an employee to take leave to care for a family member, such as a family member with a serious health condition.  FMLA specifically defines family members to include a "spouse," which is further defined to mean a "husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized."  29 CFR 825.122.  Despite the fact that states have begun recognizing same-sex marriage in recent years, because the DOMA specifically defined marriage as only between a man and woman for the purposes of federal law, the DOMA basically overrode those states’ laws for the purposes of FMLA coverage to spouses.Continue Reading U.S. Supreme Court’s Decisions on DOMA Extend FMLA Definition of “Spouse” To Same-Sex Partners In States Recognizing Gay Marriage