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In Taylor Patterson v. Domino’s Pizza, LLC, the California Supreme Court restricted the ability of a franchisee’s employees to sue the franchisor based on theories of vicarious liability and the theory that the franchisor was an “employer” under California’s Fair Employment and Housing Act (“FEHA”). With this decision, franchisors can breathe a sigh of relief as the Supreme Court’s decision could have opened the flood gates for employment claims brought by employees seeking a recovery from the perceived “deep pocket” franchisor.

The plaintiff in Taylor alleged that she was sexually harassed by her supervisor while employed at a Domino’s Pizza franchise owned and run by a company called Sui Juris. She subsequently filed suit against her supervisor, Sui Juris, and the franchisor, Defendant Domino’s Pizza Franchising, LLC (“Domino’s”). Plaintiff’s claims against Domino’s were premised on the theory that Domino’s was her and her supervisor’s employer.Continue Reading California Supreme Court Clarifies When a Franchisee’s Employees Can Bring Employment Claims Against the Franchisor in Taylor Patterson v. Domino’s Pizza, LLC

The Washington courts are strict in their interpretation of the classification of individuals as employees versus independent contractors, resulting in many an employer discovering that an “independent contractor” is instead an employee. But the Washington Court of Appeals’ recent ruling in Currier v. Northland Services, Inc., confirms that even those individuals who qualify as bona fide independent contractors will be deemed subject to the full protections of the Washington Law Against Discrimination (“WLAD”), including protection from retaliation. 

In Currier, the plaintiff, who worked as an independent contractor truck driver for NSI, overheard another independent contractor make a racist “joke” to a Latino driver. Currier reported the incident to NSI’s quality assurance manager, who informed the dispatchers of Currier’s complaint. Two days later, the dispatchers terminated Currier’s contract, citing “customer service issues” and informing Currier that they had spoken with the other truck drivers and “they had decided that the joke was funny.”Continue Reading Washington Court of Appeals Holds Independent Contractors Are Protected from Retaliation by the Washington Law Against Discrimination

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

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

Last year, we posted about a decision from the Southern District of Texas in which the court ruled that firing a woman because she was lactating or breast-pumping did not amount to sex discrimination under Title VII or the Pregnancy Discrimination Act (PDA).  The Fifth Circuit Court of Appeals recently reversed the district court’s decision. …

Coming as no big surprise since other states, like Utah and California, have been passing similar laws, the President of the Oregon Senate recently signed the final version of HB 2654, which will prohibit Oregon employers from compelling employees or applicants to provide access to personal social media accounts, like FaceBook or Twitter.  The law will also keep off limit to employers other sites that allow users to create, share or view user-generated content (like videos, still photos, blogs, videos, podcasts or instant messaging, email or website profiles), and also prohibits requiring that employees allow the boss to join or "friend" them on social media sites.  It also prohibits retaliation against any employee or applicant who refuses to provide access to accounts or to add the employer to his or her contacts list. The law becomes effective in January 2014.

Specifically, under the new law Oregon employers will not be allowed to:

  • Require or ask an employee or applicant to share a username or password allowing access to a personal social media account;
  • Require employees or applicants to add their employers to their contacts or friends lists;
  • Compel employees or applicants to access the accounts themselves to allow the employer to view the contents of a personal social media account;
  • Take or threaten to take any action to discharge, discipline or otherwise penalize an employee who refuses to share their account access information, allow their employer to view content, or add the employer to their contact or friends list (or fail or refuse to hire an applicant for the same things).

Continue Reading Oregon Legislature Passes HB 2654 Prohibiting Employers From Requiring Access To Employee Social Media Accounts

We continue our recent end-of-year postings (on new California employment laws and things every employer should resolve to do in 2013) with an update on recent cases by the National Labor Relations Board ("NLRB" or "Board").  In late December, 2012, the NLRB issued a series of controversial decisions which from an employer’s perspective cannot be considered Christmas presents.  While some of these cases impact only narrow circumstances, each of the decisions dramatically changes the law, always in ways adverse to employers. 

The Board’s December 2012 Decisions

In Alan Ritchey, Inc., the Board created an entirely new obligation for employers operating a workplace where a union has been recognized or certified, but no collective bargaining agreement has yet been agreed to. In this setting, the Board concluded, an employer must notify the union and provide it with an opportunity to bargain over individual discretionary discipline before the discipline is imposed. The Board made clear that this obligation requires sufficient advance notice for meaningful bargaining. Moreover, the employer must respond to union requests for information regarding the discipline before such meaningful bargaining can occur. The Board dismissed concerns that the new obligation it had created would be unduly burdensome for employers, suggesting that there may be circumstances in which an employee could be removed from a job prior to bargaining, when leaving employee on the job might present “a serious imminent danger to the employer’s business or personnel.”Continue Reading Obama NLRB Presents Employers With Several Lumps Of Coal

 Employers got some relief from a situation that is becoming more and more common: an employee that claims a scent allergy and wants a work accommodation. In Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio Oct. 17, 2012), plaintiff claimed she was allergic to a particular scent that substantially limited her breathing and requested, as an accommodation, that her employer institute a policy requesting that all employees refrain from wearing scented products of any kind. The U.S. Court for the Southern District of Ohio threw the case out, concluding that (1) plaintiff was not disabled, as that term was used under the pre-2009 amendments to the Americans with Disabilities Act; and (2) even if the broader post-2009 definition of “disability” were used, plaintiff’s requested accommodation was not reasonable. 

Plaintiff worked for the Champaign County Department of Jobs and Family Services as a social service worker. Her job required her to conduct onsite inspections of childcare facilities, interact with the public and clients both onsite and offsite, and perform in-house client interviews, among other things. She claimed a disability because one particular scent she encountered occasionally in the workplace—Japanese Cherry Blossom—triggered asthma attacks, which substantially limited the major life activity of breathing. (She claimed reactions to other scents, too, but those reactions only included headaches and nausea, which the court found had no impact on plaintiff’s breathing or on any other major life activity.)Continue Reading Allergy to Perfume Not a Disability, Says Ohio Federal Court

Is the Oregon Court of Appeals back in the wrongful-discharge business? It’s a fair question to ask after the court’s decision last week in Lucas v. Lake County, –Or. App.– (2012).  Reversing the trial court’s motion to dismiss, the court held that a sheriff’s deputy who served as a correctional officer could sue for wrongful discharge in violation of public policy based on his allegation that he’d been fired for demanding that the sheriff implement a training program regarding sexual relations with inmates, and for concluding that another sheriff’s deputy had traded contraband for sex with an inmate.  

What Is An "Important" Public Duty?

Wrongful discharge has had an eventful history in the Oregon courts.  Broadly speaking, in a wrongful discharge claim an employee alleges that the employer terminated him for a reason that is inconsistent with an important public policy.  The key (and usually thorny) legal issue is identifying the public policy and weighing whether it is sufficiently important to protect an employee from being fired.  The Oregon courts have deemed an employee’s need to be absent from work to serve on a jury (Nees v. Hocks, 272 Or. 210 (1975)) and an employee’s internal protest that a fire department covered up evidence of a safety violation (Love v. Polk County Fire Dist., 209 Or. App. 474 (2006)) important enough to qualify.  On the other hand, a doctor’s disagreement with his medical group’s treatment recommendations (Eusterman v. Northwest Permanente P.C., 204 Or. App. 224 (2006)) and private security guards’ lawful arrest of drunken concertgoers (Babick v. Oregon Arena Corp., 333 Or. 401 (2002)) didn’t make the cut.

Continue Reading Oregon Court of Appeals Upholds Wrongful Discharge Claim By Whistleblowing Prison Guard

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including customer requirements, government contracting requirements (e.g.,the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. 

Some Washington state …