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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

Oregon’s new minimum wage law, signed by Governor Brown on March 2, 2016, received a lot of press during the 2016 legislative session.  This new law establishes a tiered system for determination of the minimum wage based on the location of the employer.  The minimum wage will increase annually on July 1 of each year, with the first increase (from $9.25 to $9.50 in rural areas and to $9.75 everywhere else) taking place this year.  By 2022, Oregon’s minimum wage will increase to $14.75 inside Portland’s urban growth boundary, $13.50 in midsize counties, and $12.50 in rural areas. The full text of the enrolled Senate bill is available here.

With minimum wage receiving all of the attention, Oregon employers may have missed other employment-related bills.  Here are the bills that passed during the 2016 Oregon Legislative Session and those that failed (but we might see again in the future).
Continue Reading 2016 Oregon Legislative Update: What You Might Have Missed

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

Employers in Washington should take note of last week’s decision from the Washington State Supreme Court holding that state law allows a claim for failure to reasonably accommodate an employee’s religious practices. That result is hardly surprising, but how the Court reached that result, and its other conclusions along the way, will complicate how businesses in Washington operate. While the obligation to accommodate employees’ bona fide religious practice has existed under federal law since at least the early 1970s, smaller employers not subject to Title VII must now comply — and all employers are now subject to suit for such claims in Washington state courts.Continue Reading Washington State Supreme Court’s Decision on Religious Accommodation: What It Means for Employers

Earlier this week, a three judge panel of the Fifth Circuit Court of Appeals issued its long-awaited decision in DR Horton Inc. v. NLRB. As expected by most labor lawyers, including us, the Fifth Circuit (with one judge dissenting) overruled the National Labor Relations Board’s dramatic extension of the law, that employers could not require employees to enter into agreements to individually arbitrate employment disputes, precluding collective or class action litigation. In DR Horton the NLRB had concluded that such agreements conflicted with employees’ rights to engage in concerted activity under the National Labor Relations Act (the “NLRA”) — a conclusion that had since been rejected by almost every court to face the issue. The Fifth Circuit’s decision does contain a cautionary note for employers: an arbitration agreement may not appear to bar an employee from filing charges with the NLRB.

DR Horton

DR Horton is a home builder with operations throughout the United States. Beginning in 2006, DR Horton required all its employees to enter into a “Mutual Arbitration Agreement.” The agreement precluded civil litigation between the parties, requiring that all disputes be submitted to arbitration. Most critically, the agreement also barred any form of collective or class action proceeding. In 2008 the underlying plaintiff filed a putative class action lawsuit, contending that he had been misclassified as an exempt managerial employee in violation of the Fair Labor Standards Act. When DR Horton responded by insisting on individual arbitration pursuant to the agreement’s bar of collective actions, the plaintiff filed unfair labor practice charges with the Board.Continue Reading Foiled Again: DR Horton Overturned (But Be Careful How You Phrase Your Arbitration Agreement)

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 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

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

On Halloween, the National Labor Relations Board (“Board”) General Counsel’s Division of Advice handed out a rare treat to employers by issuing two Advice Memos (Mimi’s Café, Case No. 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), deeming two particular (and common forms of) at-will employment policies contained in employee handbooks lawful under the National Labor Relations Act (the “Act").  

Earlier this year, an Administrative Law Judge frightened many employers by ruling a particular company’s “at-will” policy violated the Act because it theoretically could make employees believe that they could not form a union or otherwise advocate to change their at-will employment status. That challenged policy stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The case, American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), was settled before the NLRB could review it on appeal. 

The Division of Advice’s Halloween memoranda distinguished American Red Cross case from Mimi’s Café and Rocha Transportation – noting that the at-will policy in American Red Cross used the personal pronoun “I” (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”), which as written essentially constituted an impermissible waiver of any right of employees to try and change at-will status (i.e., to try to form a union).  The Division of Advice also noted that the policy in American Red Cross declared that the at-will employment relationship could never be modified under any circumstances whatsoever, which could be interpreted as chilling employees’ rights under the Act to engage in protected concerted activity such as forming a union.   Finally, the Division of Advice, perhaps dismissively, noted that American Red Cross had settled before getting to the Board level.Continue Reading Where There Is At-Will, There Is A Way: NLRB Issues New Guidance On “At Will” Employment Policies

From the Presidential debates to lawn signs, and TV ads to the Voters’ Pamphlet in your mailbox, there’s no denying that election season is in full swing. For employers, the home stretch to November 6 means not only around-the-clock coverage, but the potential for spirited debates—and resulting employee discord—in the workplace. Although with limited exception political activity or affiliation is not a protected status, and Oregon employers no longer have to worry about giving employees time off to vote due to mail-in ballots, the impending election still has significant potential to invoke myriad workplace issues ranging from discrimination and harassment to free speech and bullying. Here are some “dos and don’ts” to help guide employers over the next several weeks and keep polarizing political discourse from disrupting your workplace:

* Do set the tone. If you haven’t already, employers should clearly communicate their expectations to employees and foster a culture of mutual respect and understanding. Diversity—even with respect to politics—can be embraced as a positive. Employers lead the way by conveying their acceptance of varying ideologies, and encouraging employees to handle differences of opinion civilly and without letting it affect normal operations. Political conversations between employees often lead to discussion of sensitive (and protected) issues such as race, religion, immigration, and women’s rights. However, election season should not provide a license for employees to harass or bully one another by attacking contrasting political views, bragging about which ballot measures did or did not pass, or gloating over a candidate’s defeat. Employers can minimize risk by reminding employees that their policies prohibiting harassment, discrimination and retaliation apply to all political discussions, and investigating any complaints promptly. Moreover, some employers have in fact included political activity in their EEO or anti-harassment policies, so it may be prudent to dust off and review your handbook, because employees certainly will know what you have promised. Similarly, given that unions are frequently politically active, some union contracts prohibit politics-based discrimination.  

* Don’t allow bad behavior in the name of “free speech.” Contrary to popular belief, there is no blanket right of “free speech” in a private workplace. The First Amendment covers only state action, and private sector employers are therefore free to limit political discussions in the workplace. Be careful, however, that any such limitations don’t run afoul of laws such as the National Labor Relations Act (NLRA) (see next "do," below) or federal and state anti-discrimination laws.

Read on for more election "dos and don’ts" below!

Continue Reading As the Election Nears, Employers Should be Cautious of Politics in the Workplace