Washington Workplace Law

On May 9, BNSF and Union Pacific Railroads filed a lawsuit against the City of Seattle, seeking to invalidate Seattle’s sick and safe leave ordinance.  As we discussed in this blog here and here, in presentations, and in business publications, the ordinance requires most employers to provide paid sick and “safe” time for employees who work at least 120 days in Seattle each year.  

The two railroad plaintiffs argue that the ordinance is invalid for several reasons. 

• Railroads are covered by federal laws that govern employment rights and benefits.  One such law already requires compensation for employees who are unable to work due to illness, injury or pregnancy.  Plaintiffs assert that because federal law ordinarily preempts or trumps state or local law, Seattle cannot enforce the part of the ordinance that requires sick leave.
• Another federal law governs labor relations in the railroad industry.  That law requires collective bargaining over issues of pay and benefits, including paid leave.  According to plaintiffs, Seattle is not permitted to impose requirements that interfere with the exclusive method for establishing paid leave – collective bargaining.
• Railroad health insurance plans and certain sickness benefit plans are governed by ERISA, the federal law that regulates employee benefit plans.  Because of ERISA, plaintiffs contend, Seattle cannot enforce an ordinance that conflicts with the terms of their employee benefits plans.
• Finally, plaintiffs claim that the “safe” time provisions in the ordinance are invalid in light of Washington state law on the same topic.

Plaintiffs ask for an order prohibiting the city from enforcing the ordinance. 

For more information on the ordinance, the lawsuit, or other leave of absence requirements, please contact Foster Pepper's Employment and Labor Relations Practice Group.

In an April 23, 2012 decision, the Equal Employment Opportunity Commission (EEOC) declared that discrimination against transgender people is impermissible under Title VII of the Civil Rights of 1964.  Title VII prohibits discrimination on the basis of sex, race and other characteristics.  Until now, the EEOC and federal courts had not specifically determined that bias against transgender individuals constitutes sex discrimination under Title VII. 

Mia Macy, a transgender woman, brought a discrimination claim against the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives.  She alleges the agency virtually assured her it would hire her as a ballistics expert, but chose another candidate when the background check revealed her gender transition.  In refusing to dismiss Macy’s claim, the EEOC reasoned that because both biological and gender sex characteristics are protected against discrimination, transgender individuals are covered by Title VII. 

The decision means that employees and job applicants can now file claims with the EEOC under Title VII when they experience discrimination based on transgender status.  Although the Macy decision arose from a claim against a federal agency, private employers are also subject to the EEOC’s interpretation of Title VII.  

The Macy decision is less significant in Washington and other states that already prohibit transgender discrimination.  Under the Washington Law Against Discrimination, employers are prohibited from discriminating on the basis of sexual orientation, which is defined broadly to include transgender status: 

"Sexual orientation" means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.   

If you have any questions regarding compliance with federal or state law, please contact the Foster Pepper Employment and Labor Relations Practice Group.

As we wrote in February and October of last year and January of this year, the National Labor Relations Board (NLRB) has been trying to require employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA).  Until today, the deadline for compliance was April 30, 2012.  

The United States Court of Appeals in Washington, DC is considering a legal challenge to the posting requirement brought by various business groups.  Today the Court temporarily prohibited the NLRB from requiring the posters, thus allowing time for briefing and argument (to be set for September).  We’ll provide updated information when it becomes available.

If you have any questions about compliance with NLRB requirements, please contact the Foster Pepper Employment and Labor Relations Practice Group. 

Foster Pepper’s employment and labor blog – www.washingtonworkplacelaw.com – is becoming a go-to site for employers seeking information about various workplace legal issues, including employee bullying, patent law challenges, FMLA, social media, and developments under federal and Washington court case, legislation and regulations.

Tom Mighell’s Technology Blog – Inter Alia – recently named Washington Workplace Law its “Blawg of the Day.” It has also been praised by HR Examiner’s Employment Law Blog Carnival and Dr. Cori Zuppo’s The Full 360 blog.

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What was once considered a playground problem has now become a concern for employers.  As awareness of workplace bullying has grown, academics, advocacy organizations and business consultants have focused their efforts on recognizing and addressing harmful and intimidating behavior. 

Anti-bullying messages have even made their way into legislation.  Earlier this year, a “Healthy Workplace Bill” was introduced in Washington State.  The bill sought to amend the Washington Law Against Discrimination so that “subjecting an employee to an abusive work environment” would constitute an unfair practice.  Although the proposed law was not enacted, it highlights the seriousness of issues facing employers as they seek to maintain a safe and productive workplace.

More employers are implementing policies and practices that recognize and remedy workplace bullying.  The Washington State Department of Labor and Industries has issued a report intended to assist employers seeking to address these issues. 

Some of the information in the Report is useful, while other portions are too vague and general to provide real guidance.  The questions and answers below are taken from the L&I report, with our modifications and suggestions. 

What is workplace bullying?

• Workplace bullying is repeated and ongoing unreasonable actions toward one or more employees that is intended to intimidate, undermine, degrade, threaten, humiliate or harm the employees.
• Workplace bullying generally involves an abuse or misuse of power, verbally or in conduct.  Bullying can also be corporate or institutional, for example where a company uses policies or practices to intimidate and demoralize its employees.

What are some examples of workplace bullying?

• Deliberately giving employees unrealistic and unmanageable deadlines, or placing unrealistic expectations on employees, where failure to meet expectations means making life unpleasant for the employees or dismissing those employees who might object.  Even high-pressure, high-production work environments ordinarily have an institutional standard for productivity and efficiency.  When a manager or company goes well beyond this standard to “set employees up for failure,” giving physically impossible assignments and deadlines, then criticizing employees for their inability to meet the unrealistic expectations, it might be a sign of workplace bullying 
• Excessive monitoring or micro-managing of employees. All effective mangers monitor their subordinates, but when monitoring is constant, invasive and oppressive and done without a legitimate purpose, it might be bullying behavior. 
• Interference or sabotaging actions that intentionally prevent an employee from completing required work.  Examples of interference might include deliberately preventing access to information (such as a key memo or data) that an employee needs to complete a task, or constantly interrupting the employee with a barrage of unrelated menial tasks so that he or she cannot complete the required work.  Such behaviors could be considered bullying. 
• Providing unwarranted, invalid and excessive criticism of employees or blaming employees without factual justification.  Criticism and discipline should be based on concrete actions or behaviors that need correcting.  Falsely accusing an employee of errors, or consistently commenting on past errors without a constructive reason, could be considered bullying. 
• Berating or humiliating employees.  Feedback and criticism should be communicated in a respectful manner, as the goal is to elicit improved performance, not to personally attack an employee for his or her failures.  Yelling, shouting and insults could be viewed as workplace bullying. 
• Deliberate exclusion or social isolation of employees.  Some examples of isolating actions might include: refusing to invite an employee to a meeting in which he/she would normally participate, refusing to include an employee in social, team-building events where the rest of a group has been invited, or moving an employee’s workspace far from the rest of his or her team.  Such behaviors could be considered workplace bullying.

 What is the difference between workplace bullying and harassment?

• Harassment is a type of illegal discrimination defined as offensive and unwelcome conduct serious enough to adversely affect the terms and conditions of a person’s employment.  A harassment claim arises out of the employee’s status as member of a protected class, such as race, sex or disability. 
• Bullying, on the other hand, might not be overt or serious enough to adversely affect the terms and conditions of employment, and the target of a workplace bully might not be a member of a protected class.  Bullying might be covert, through indirect, constant criticism, unrealistic expectations or deadlines, or actions that force a person to feel demeaned or isolated from a group.  Unlike harassment, bullying is ordinarily not illegal.

How can employers demand top performance or impose discipline without bullying?   

• Employers should not be dissuaded from direct and sometimes critical feedback, evaluations and discipline.  Respectful communications are key.  Prudent employers train managers on effectively and sensitively managing their subordinates and correct overly-aggressive or hostile behavior promptly.  Similarly, managers should treat reports of bullying with sensitivity.

How can employers address and prevent workplace bullying? 

• Understand the behaviors that constitute bullying. 
• Consider an anti-bullying (or respectful workplace) policy as part of the wider commitment to a safe and productive workplace.  
• Consider workplace training and awareness so employees and managers can recognize and understand bullying. 
• Address and investigate bullying behavior promptly, including situations where there are allegations of institutional/corporate bullying. 
• Consider reassignment of the bullying individual(s) to another group as necessary. 
• Structure the work environment to allow employees some level of autonomy, create clear expectations of how tasks should be performed, provide constructive criticism and feedback to employees on how to improve performance, and include employees in decision making processes as appropriate. 
• Adopt and encourage open door policies. 
• Regularly evaluate the effectiveness of the foregoing policies.

For more information on workplace bullying or assistance implementing anti-bullying measures, contact Foster Pepper’s Employment and Labor Relations group.