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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

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

Background checks can provide California employers with vital information concerning their employees. In order to protect individual privacy rights, however, the California legislature has created two separate laws governing the procedure for such checks: the Investigative Consumer Reporting Agencies Act (“ICRAA”), which generally governs reports concerning “character information,” and the Consumer Credit Reporting Agencies Act…

As we noted a while ago, Oregon recently joined the growing number of states that prohibit an employer from demanding access to an employee’s personal social media account. An Oregon employer may not require an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” Neither may an employer require an employee or applicant to friend, follow, or otherwise connect with it via a social media account, or to permit the employer to “shoulder surf” while the employee is logged in. There are exceptions—business-related social media accounts and workplace investigations are notable ones—but the rule is fairly clear: When it comes to employees’ personal social media accounts, it’s probably best for an employer to keep its distance.

Seems simple enough, right? Maybe, but here in Oregon, we like not to be outdone by our neighbors. So, last week, Governor Kate Brown signed Senate Bill 185, which adds a few interesting tweaks to the “model” approach that most other states (including Oregon) have followed when adopting social media protections for employees.Continue Reading Oregon Legislature to Employers: Stay Out of Employees’ Personal Social Media Accounts!

sledgehammerCalifornia Governor Jerry Brown recently signed AB 1897 thereby creating new liability for businesses that engage in labor contracting.  Current California law prohibits employers from entering into labor or services contracts with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor, if the employer knows or should know that the agreement does not…

In this week’s mid-term election on November 4, Oregon, Alaska, and the District of Columbia became the latest jurisdictions to pass referendums decriminalizing the recreational possession and use of small amounts of marijuana.  They join Colorado and Washington, which took this step in 2012.  Oregon’s law becomes effective in July 2015; Alaska’s probably in February 2015.

Each of these laws is slightly different (read the full text here of the measures in Oregon, Alaska, and D.C.).  But employers in all these jursidcitions may be wondering about the same question:  does this affect my company’s anti-drug policy or drug testing program and if so, how?Continue Reading What Does Alaska’s and Oregon’s Legalization of Marijuana Change for Employers? Answer: Probably Not Much.

FootballOn October 28, 2014, the National Labor Relations Board (“NLRB”) issued its decision in Murphy Oil USA Inc., once again attempting to prohibit employers from requiring employees to enter into agreements to arbitrate employment disputes if those agreements preclude collective or class action litigation. As we have blogged about in the past, this new decision runs contrary to an overwhelming majority of federal district and appellate court decisions rejecting and criticizing the Obama NLRB’s previous attempt to so extend the law.  A copy of the Murphy Oil USA decision can be found here.

In Murphy Oil, the NLRB split 3-2 along party lines, with the majority finding that gas station chain Murphy Oil’s arbitration agreements were unlawful.  In so doing, the NLRB reaffirmed its controversial January 2012 DR Horton ruling, where the Board ruled that such agreements conflict with employees’ rights to engage in concerted activity under the National Labor Relations Act.  The Fifth Circuit Court of Appeals refused the enforce the Board’s order, and the NLRB declined to seek review from the U.S. Supreme Court.  In what some might say is refusing to take “no” for an answer, the NLRB is trying to resurrect its DR Horton decision.Continue Reading NLRB Attempts to Make an End Run Around Courts Invalidating its Rulings on Arbitration Agreements

This might be too much. But be prepared.
This might be too much. But be prepared.

The recent outbreak of the Ebola virus in West Africa, with the few isolated cases occurring in the United States, is spurring employers to review their emergency response plans for pandemic preparedness.  In seven steps, this writing sets forth best practices for pandemic preparedness, considerations regarding travel during a pandemic, and addressing employees’ immediate concerns without running afoul of relevant employment laws.

1.        Don’t Panic and Stay Informed

With any emergent threat, accurate and reliable information is critical; with a pandemic threat, not having accurate and reliable information causes panic.  Note that as of this writing, the current Ebola outbreak has not been declared a pandemic (meaning, a global epidemic), but employers should monitor communications from the Centers for Disease Control and Prevention (CDC) for up-to-date information.


Continue Reading Seven Steps for Employers to Address the Ebola Threat (Step 1: Don’t Panic!)

Most competent employment lawyers with experience pursuing and/or rebuffing enforcement of noncompetition agreements know that enforcement against low level workers is highly unlikely.  If recent news reports are true, Jimmy John’s apparently never got that memo.

According to reports in The New York Times, The Oregonian and the Huffington Post, the restaurant franchise is requiring all workers, including sandwich makers, to sign broad noncompetition agreements that restrict their employment opportunities for two years after leaving their cushy, highly technical jobs at Jimmy John’s.

Let’s start with the understanding that courts don’t like noncompetition restrictions, which limit a worker’s ability to pursue his career as he sees fit.  Courts use a variety of tools to limit the enforcement of those clauses.  Although courts use different terms to describe it, almost every decision analyzing enforcement of a noncompetition agreement talks about whether the former employer has a “protectible interest.”  In layman terms that means, is there something legitimate that the former employer actually needs to protect by restricting the post-termination employment opportunities of its former employees?  Customer relationships, knowledge of the company’s confidential or trade secret information, or specialized training provided by the former employer are often found to be sufficient “protectible interests” to justify enforcement of a contract clause which limits the worker’s future employment opportunities.  If there is no “protectible interest,” a court won’t enforce the agreement.Continue Reading “Freaky Fast” Oppression? Jimmy John’s Should Reconsider its Approach to Blanket Noncompete Agreements