On March 12, 2014, attorneys from the Foster Pepper Employment and Labor Relations Group were joined by expert threat assessment specialists and psychologists for a presentation titled “Bullying and Violence in the Workplace: Prevention and Intervention Strategies.” Special guests Dr. Steven White, President of Work Trauma Services, Inc., and Dr. Lynn Van Male, Assistant Professor of Psychology in the Department of Psychiatry at Oregon Health & Science University, partnered with Foster Pepper attorneys to share insights and strategies for identifying and managing workplace bullying and violence. The panel provided practical tips based on real-life scenarios. Even if you missed the presentation, you can review the slides and handout materials. You can also find materials from other presentations on employment and labor relations topics in our “News & Publications” on www.foster.com. 

In an article posted earlier this week, we wrote about the Washington Supreme Court’s new test for determining whether a worker is an employee entitled to minimum wage and overtime, or an independent contractor entitled only to compensation set by the parties. The article described the “economic-dependence test” in general terms: the worker is an employee if “as a matter of economic reality,” the individual “is economically dependent upon the alleged employer or is instead in business for himself.” Anfinson v. FedEx Ground Package Sys., Inc.

The article noted that the Court did not list the factors it would apply to the economic-dependence test, or suggest how to flesh out the general outlines of the test, but merely referred in passing to “competing lists of nonexclusive factors” that some federal courts use. Finally, the article warned that other courts and agencies have different factors for determining whether a worker is an employee or independent contractor.

In this post we will detail the factors used by the federal courts cited in the Anfinson decision, as well as the factors applied under other laws.

Cases cited in Anfinson

In supporting its economic-dependence test, the Supreme Court mentioned “competing lists of nonexclusive factors” that some federal courts use, citing Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008) and Real v. Driscoll Strawberry Assocs., 603 F.2d 748, 754 (9th Cir. 1979).

Hopkins applied these “non-exhaustive” factors:

(1) the degree of control exercised by the alleged employer;

(2) the extent of the relative investments of the worker and the alleged employer;

(3) the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer;

(4) the skill and initiative required in performing the job; and

(5) the permanency of the relationship.

Real applied these factors:

(1) the degree of the alleged employer’s right to control the manner in which the work is to be performed;

(2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill;

(3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;

(4) whether the service rendered requires a special skill;

(5) the degree of permanence of the working relationship; and

(6) whether the service rendered is an integral part of the alleged employer’s business.

Other formulations

The Anfinson case applies only to the Washington Minimum Wage Act. Courts and agencies apply different formulations for different laws. Therefore, a worker could be considered either an employee or an independent contractor depending on the law or agency. For example, a worker who qualifies as an independent contractor for federal income tax purposes may be entitled to overtime pay as an employee under the Washington Minimum Wage Act.

A few of those formulations, along with links to source materials, follow below:

United States Department of Labor (applying the federal Fair Labor Standards Act, governing minimum wage and overtime):

(1) The extent to which the services rendered are an integral part of the principal’s business.

(2) The permanency of the relationship.

(3) The amount of the alleged contractor’s investment in facilities and equipment.

(4) The nature and degree of control by the principal.

(5) The alleged contractor’s opportunities for profit and loss.

(6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.

(7) The degree of independent business organization and operation.

Washington Department of Labor and Industries (covering workers compensation and safety requirements):

(1) Are you hiring someone for more than personal labor? [“Yes” answers tend to favor an independent contractor relationship.]

• Are they bringing employees?

• Are they bringing heavy equipment?

(2) Are you supervising?

• You ARE NOT supervising if you are only scheduling and inspecting the work.

• You ARE supervising if you are telling your worker or a subcontractor’s workers how to do the job, assigning tasks, training, keeping time sheets, paying a wage or setting regular hours.

(3) Do they have an established business of their own? [“Yes” answers tend to favor an independent contractor relationship.]

• Supervision: Does the worker perform work free of your direction and control?

• Separate business: Does worker offer services that are different from what you provide? Or, does the worker maintain and pay for a place of business that is separate from yours? Or, does the worker perform service in a location that is separate from your business or job sites?

• Previously established business: Does the worker have an established, independent business that existed before you hired?

• IRS taxes: When you entered into the contract, was this person responsible for filing a tax return with the IRS for his or her business?

• Required registrations: Is the worker up-to-date on required Washington State business registrations?

• Maintains books: Does the worker maintain his or her own set of books dedicated to the expenses and earnings of the business?

• Construction trades: If the work performed is in the construction trades, does the worker have an active contractor registration or electrical contractor’s license?

Internal Revenue Service (covering federal income tax responsibilities):

The IRS traditionally applied a 20 factor test enunciated in a 1987 revenue ruling. The IRS since has modified its analysis to cover three factors and a number of sub-factors. They are:

(1) Behavioral: Does the company control or have the right to control what the worker does and how the worker does the job? [These factors tend to favor an employment relationship]

• Type of instructions given (when and where to do the work; what tools or equipment to use; what workers to hire or to assist with the work; where to purchase supplies and services; what work must be performed by a specified individual; what order or sequence to follow when performing the work)

• Degree of instruction (the more detailed the instructions, the more control the business exercises over the worker)

• Evaluation system (measures the details of how the work is performed)

• Training (training on how to do the job, and periodic or on-going training about procedures and methods)

(2) Financial: Are the business aspects of the worker’s job controlled by the payer (such as how the worker is paid, whether expenses are reimbursed, and who provides tools/supplies)? [These factors tend to favor an independent contractor relationship.]

• Worker’s significant investment in equipment

• Unreimbursed expenses

• Opportunity for profit or loss

• Services available to the market (rather than just to one enterprise)

• Method of payment (e.g., flat fee)

(3) Type of Relationship: Are there written contracts or employee type benefits (such as pension plan, insurance, or vacation pay)? Will the relationship continue, and is the work performed a key aspect of the business?

• Written contracts (not controlling)

• Employee benefits (tend to show employee status)

• Permanency of the relationship (indefinite engagement tends to show employer-employee relationship)

• Services provided as key activity of the business (if worker’s services are a key aspect of the business, it’s more likely an employment relationship)

The IRS uses Form SS-8 in determining whether the worker is an employee or independent contractor for federal income tax purposes.

Equal Employment Opportunity Commission (covering federal anti-discrimination law, including Title VII of the Civil Rights Act of 1964, list below found at note 67):

(1) The employer has the right to control when, where, and how the worker performs the job.

(2) The work does not require a high level of skill or expertise.

(3) The employer furnishes the tools, materials, and equipment.

(4) The work is performed on the employer’s premises.

(5) There is a continuing relationship between the worker and the employer.

(6) The employer has the right to assign additional projects to the worker.

(7) The employer sets the hours of work and the duration of the job.

(8) The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.

(9) The worker does not hire and pay assistants.

(10) The work performed by the worker is part of the regular business of the employer.

(11) The employer is in business.

(12) The worker is not engaged in his/her own distinct occupation or business.

(13) The employer provides the worker with benefits such as insurance, leave, or workers’ compensation.

(14) The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).

(15) The employer can discharge the worker.

(16) The worker and the employer believe that they are creating an employer- employee relationship.

This list is not exhaustive. Other aspects of the relationship between the parties may affect the determination of whether an employer-employee relationship exists. Furthermore, not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship.

Washington Common Law (covering the responsibility of the principal for the negligence of agents):

(1) the extent of control which, by the agreement, the principal may exercise over the details of the work;

(2) whether or not the worker is engaged in a distinct occupation or business;

(3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of an employer or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work:

(6) the length of time for which the worker is engaged;

(7) the method of payment, whether by the time or by the job;

(8) whether or not the work is a part of the regular business of the principal;

(9) whether or not the parties believe they are creating the relation of principal and agent; and

(10) whether the principal is or is not in business.

Hollingbery v. Dunn, 68 Wash.2d 75, 79-80 (1966).

Conclusion

The conflicting standards imposed by various courts and agencies make it difficult for businesses, non-profits and government entities to determine whether the people engaged to provide services are employees or independent contractors.  Foster Pepper’s Employment and Labor Relations attorneys can assist.

In the first of a four-part series on the Family and Medical Leave Act (FMLA) and related Washington law requirements, we addressed the fundamentals of the FMLA, including coverage, permitted reasons for leave, and significant definitions.  In the second installment, we covered the process for requesting leave, granting or denying leave, employee rights during the leave, and reinstatement rights after the leave.  In the third installment, we took on Washington’s family and medical leave obligations and the relationship between FMLA and these state law requirements.  More detailed information about these topics is available on our website.  In this final chapter, we provide simple strategies for managing family and medical leaves. 

1.         Know the law.  It’s complicated, and unless employers know the rules, they can’t administer leaves consistently and efficiently. 

2.         Maximize FMLA protections.  Employers can take several steps to better manage FMLA leaves.  

  • Adopt the rolling twelve month calendar.  Eligible employees are entitled to up to 12 weeks of FMLA leave per year.  But the statute allows employers to determine when the year begins and ends.  For example, employers can measure the year by the calendar year or fiscal year.  These measures may result in the employee taking 12 weeks at the end of the year and another 12 weeks at the beginning of the next year.  For that reason, many employers measure the year backwards from the date that the employee uses any FMLA leave.  SHRM offers a handy guide for administering leave under that method.  
  • Require simultaneous paid leave and FMLA leave.  FMLA gives employers the option to require the employee to exhaust paid time off during FMLA leave.  The alternative would be allow the employee to return from unpaid FMLA leave and then take paid leave for more time away. 
  • Promptly issue FMLA notices.  It’s important to have the clock ticking as soon as possible, so the employee does not end up with more than 12 weeks of FMLA leave.  Therefore, FMLA notices should be given right away.  
  • Require medical certifications.  The statute allows employers to require employees seeking leave for medical reasons to provide medical certification.  Rather than just accepting a claim of a medical problem, employers can ensure that employees really do qualify for leave.

 3.         Coordinate all leaves.  FMLA and the Washington Family and Medical Leave Act don’t address many other kinds of leave.  Employers shouldn’t forget about all the other ones.  Here’s a partial list:

  • Uniformed Services Employment And Reemployment Rights Act (USERRA)
  • Washington Workers Compensation Act
  • Washington Veterans Employment & Reemployment Act
  • Washington Paid Military Leave for Public Employees
  • Washington Military Family Leave Act
  • Washington Family Care Act
  • Washington Domestic Violence Leave
  • Jury Duty Leave
  • Seattle Paid Sick Leave Ordinance
  • Voting Leave
  • Continued leave as a reasonable accommodation under the Americans with Disabilities Act or Washington law
  • Employer-specific leaves (based on contract, handbook or practice)

4.         Review and consider changes to leave policies.  Leave policies may be outdated.  A review could reveal deficiencies that can be corrected.

5.         Adopt and enforce attendance policies.  Yes, there are exceptions to attendance requirements – including FMLA.  But employers still can expect most employees to have regular and reliable attendance most of the time.  A clear policy and consistent enforcement can increase the likelihood that employees will be at work as needed. 

In the first of a four-part series on the Family and Medical Leave Act (FMLA) and related Washington law requirements, we addressed the fundamentals of the FMLA, including coverage, permitted reasons for leave, and significant definitions.  In the second installment, we covered the process for requesting leave, granting or denying leave, employee rights during the leave, and reinstatement rights after the leave.  In this article, we will take on Washington’s family and medical leave obligations and the relationship between FMLA and these state law requirements.  More detailed information about these topics is available on our website.  

What is the Washington Family Leave Act (WFLA)?

WFLA is Washington’s version of FMLA.  Washington passed WFLA in 1989, four years before FMLA was enacted.  In 2006, however, Washington revised WFLA by mirroring WFLA after FMLA.  The benefits provided under both statutes are nearly – but not entirely – the same.

How does WFLA differ from FMLA?

WFLA defines family member to include registered domestic partners.  If the Marriage Equality Act takes effect, these provisions are likely to change. 

  • WFLA provides for a civil penalty of at least $1,000 for each violation.   
  • While leave under WFLA must generally be taken concurrently with any leave under FMLA, any leave taken for sickness or temporary disability because of pregnancy or childbirth is provided for in addition to leave otherwise available through FMLA or WFLA.
  • Like FMLA, WFLA requires that employers restore an employee to the original position or to a similar position upon return from leave; WFLA, however, requires that the equivalent position be located within twenty miles of the workplace from where the employee took leave.  
  • WFLA does not have the military exigency or military caregiver leave provisions present in FMLA.

What is Washington Pregnancy Disability Leave (WPDL)?

WPDL is a regulation issued by the Washington State Human Rights Commission.  WPDL provides for additional benefits and protections to Washington women who wish to take leave related to pregnancy or childbirth.  Specifically, the regulation requires employers to (1) provide a leave of absence for the time during which a woman is “sick or temporarily disabled because of pregnancy or childbirth;” and (2) treat a woman on such leave the same as other employees on leave for sickness or other temporary disabilities.

When is a woman “sick or temporarily disabled because of pregnancy or childbirth”?

“Pregnancy” means actual pregnancy, the potential to become pregnant, and pregnancy-related conditions, which include related medical conditions, miscarriage, pregnancy termination, and the complications of pregnancy.   

Which employers are covered by WPDL?

An “employer” under WPDL is broader than either FMLA or WFLA, and includes any person who directly or indirectly acts in the interest of an employer that employs eight or more persons.  However, WPDL does not cover non-profit religious or sectarian organizations.  

What reinstatement rights are available under WPDL?

If a woman takes leave under this regulation, the employer must allow her to return to the same job, or a similar job of at least the same pay, unless business necessity dictates otherwise.  This leave is in addition to leave provided for under WFLA or FMLA.

How does the employer reconcile FMLA and Washington leave requirements?

As noted above, WFLA and FMLA ordinarily run concurrently, meaning that most leaves count against both FMLA and WFLA at the same time.  However, leave under Washington law (whether WFLA or WPDL) may be taken for sickness or temporary disability because of pregnancy or childbirth in addition to leave available through FMLA.  In other words, even if the employee has exhausted or is ineligible for FMLA leave, she may qualify for pregnancy disability leave under Washington law. 

How does the employer ensure that the employee receives all required leave (and no more)?

The safest approach is to stack and credit leave.  The employer would apply FMLA leave first, and then continue the leave under Washington law until the women is no longer disabled.  At that point, the employer would credit the woman’s FMLA account with the period of time available under Washington law.   In other words, at the end of the period of actual disability, the employer would credit the employee with additional unpaid FMLA leave for “bonding” purposes in an amount equal to the length of FMLA leave exhausted during the pregnancy-related disability.  Examples of how this works are found here.  PDF P. 22

Why not let the pregnant employee use Washington law leave first, and then count the absence against FMLA leave when she is physically able to return to work?

Some employers do that.  We prefer the stack and credit approach for two reasons: 

  • Limiting FMLA use.  Prudent employers begin tracking and counting down FMLA entitlement as soon as permitted.  Some women may begin pregnancy leave before medically necessary, and that time should count against FMLA.   
  • Reducing health insurance complications.  Federal law governs health plans.  Pregnancy disability leave arises under Washington state law.  Federal law ordinarily trumps state law.  Under FMLA the employer is required during the leave to maintain the employee on health insurance as if he or she were still at work.  In contrast, Washington law cannot tell health plans how to treat employees on leave.  Therefore, if an employee has extended pregnancy disability leave, she may lose coverage under the health plan, unless she receives COBRA continuation rights (which also arise under federal law).  If the employee begins pregnancy disability leave first, she may need to take COBRA right away, return to regular health plan participation when the FMLA leave begins, and potentially take COBRA again if she exhausts FMLA entitlement and either remains away on other personal leave or terminates employment.  Stack and credit avoids this potential yoyo effect.  

What’s next in this series?

The final installment will provide practical tips for complying with and managing family and medical leave obligations.

If you have questions about questions about leaves of absence or any other employment law issue, please contact the Foster Pepper Employment and Labor Relations Practice Group.

In the first of a four-part series on the Family and Medical Leave Act (FMLA) and related Washington law requirements, we addressed the fundamentals of the FMLA, including coverage, permitted reasons for leave, and significant definitions.  In this installment, we will cover the process for requesting leave, granting or denying leave, employee rights during the leave, and reinstatement rights after the leave.  More detailed information is available on our website.  

How does an employee request FMLA leave?  

If leave is foreseeable, the employee must provide at least thirty days notice before the leave is scheduled to begin, unless it is impracticable.  If impracticable, the employee must give notice as soon as practicable.  

The notice must make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.  The employee ordinarily need not use any magic words or even mention “FMLA.”  The employer is required to determine whether the employee qualifies.  

The employer may require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  For example, the employer may require notice in a certain format or directed to a specific individual. 

Before taking foreseeable leave for medical treatment, the employee must make a reasonable effort to schedule the treatment so as not to unduly disrupt the employer’s operations. 

When the need for leave is unforeseeable, the employee must notify the employer as soon as practicable.  If the employee is unable to give notice in person, notice may be given by the employee’s “spokesperson.” 

How does the employee show medical need for leave?

Generally, if an employee requests FMLA leave for medical reasons, the employer may require a certification from the health care provider of the employee or relevant family member.  Deadlines for notifying the employee of certification requirements and for the employee response are found here

Certification should be “complete and sufficient.” If an employee omits information or provides “vague, ambiguous, or non-responsive” answers, the employer should notify the employee in writing and explain what additional information is necessary.  If the employee does not rectify the deficiencies, leave may be denied.  The content of the medical certification is described here

If the employer has reason to doubt the certification, it may, at its own expense, require a second opinion from an independent health care provider.  Disagreements between opinions may be resolved by a third independent opinion.

An employer may request recertification when reasonable, but generally no more often than every thirty days.  An employer may request certification if the employee seeks an extension of leave, circumstances have changed significantly, or new information casts doubt on the stated reason for leave or on the certification. 

How does the employer respond to the request for leave?

The employer ordinarily must notify the employee within five business days of whether he or she is eligible for FMLA leave.  The employer also should provide a notice to the employee that explains rights and responsibilities under FMLA.  The contents of the notice are found here

Assuming that the employee is eligible for leave, the employer next must determine whether he or she qualifies for leave.  Here the employer examines whether the employee has a serious health condition or fits under any of the other reasons for FMLA leave. 

If the leave request is denied, the employer must notify the employee.  If the request is granted, the employer must designate leave as FMLA-qualifying and notify the employee, specifying the information found here

The employer must designate leave as FMLA-qualifying based solely upon information provided by the employee (or his or her spokesperson).  If there is insufficient information to make a designation, the employer should inquire further. 

If an employer fails to timely or properly designate leave as FMLA-qualifying, it may do so retroactively with appropriate notice, provided the failure does not harm or injure the employee.  The employer and employee also can agree to retroactively designate leave. 

What happens during the leave?

An employee generally is entitled to receive health insurance benefits while on leave.  An employee who chooses to maintain health coverage is still responsible for any employee-paid premiums.  If the employee fails to return to work after the leave, the employer may collect from the employee the premiums paid on his or her behalf during the leave. 

An employer may require an employee on FMLA leave to periodically report his or her status and intent to return to work.  If the employee needs to take additional leave, he or she should give the employer at least two days notice when practicable. 

What happens after the leave?

The employer may require certification from a health care provider stating that the employee is healthy enough to return to work or perform specific tasks, so long as the requirement policy is uniformly applied.  An employee who remains unable to work after exhausting FMLA leave has no right to restoration, and failure to provide a fitness-for-duty certification disqualifies an employee from reinstatement.  If leave is intermittent, the employer may only request a certification of fitness to return to duty once every thirty days and only if there are “reasonable safety concerns” regarding the employee’s ability to perform job duties. 

If the employee is medically able to work, he or she is entitled to return to the position held before the leave or to one with similar requirements, pay, and benefits.  However, an employee has no greater right to reinstatement than if he or she had been continuously employed.  If the employee would have been terminated if still at work, the employer has no duty to reinstate.  In fact, the employer may terminate an employee during FMLA leave so long as the reason for termination is unrelated.  An employer also may deny reinstatement to certain highly-compensated “key” employees to prevent “substantial and grievous economic injury” to employer operations.  

What are FMLA’s record keeping requirements?

Those requirements are summarized here

What’s next in this series?

The third installment will explain Washington’s family and medical leave obligations and the relationship between FMLA and state law leave requirements.  And the final installment will provide practical tips for family and medical leave of absence compliance.

If you have questions about questions about FMLA or any other employment law issue, please contact the Foster Pepper Employment and Labor Relations Practice Group.

Leaves of absence requirements are among the most vexing part of HR administration for most employers. The Family and Medical Leave Act (FMLA) and related state law requirements cause practical headaches and risks of litigation for the unwary. Through a four part series, we will try to demystify family and medical leave obligations and provide a practical guide for compliance. More detailed information is available on our website.

What does FMLA provide?

FMLA provides eligible employees with up to twelve workweeks of unpaid leave within a twelve month period. Family members of qualified servicemembers may receive more unpaid leave – up to twenty-six workweeks in a twelve month period. If a husband and wife are employed by the same employer, they may be limited collectively to twelve weeks of leave within a twelve month period, depending upon the reason for leave.

What effect does paid leave have on FMLA?

If the employer offers paid leave, and the employee’s reason for leave would qualify under FMLA, in most cases the employee or the employer may substitute paid leave for unpaid FMLA leave. However, the employee is entitled to full FMLA protections for both the paid and unpaid parts of the leave. Most employers require employees to exhaust paid leave before FMLA continues without pay.

Which employers are covered under FMLA?

The statute applies to employers who have 50 or more employees for each working day during 20 or more workweeks in the current or preceding year. The statute also covers public agencies and public and private elementary and secondary schools, regardless of the number of employees.

Which employees are covered by FMLA?

Employees must (1) work for an employer covered under the statute; (2) for at least a cumulative twelve months; (3) and have at least 1,250 hours of service during the twelve month period immediately before the leave. The employee must also work at a location where at least 50 employees are employed by the employer within 75 miles of the location. So employees in a remote outpost of a large employer may not be covered by FMLA. There also are special rules for certain federal officers and flight attendants.

When can an employee take leave under FMLA?

FMLA provides continuous (rather than intermittent) leave for:

(1) childcare after the birth of the employee’s child;

(2) care for a child placed with the employee for adoption or foster care;

(3) care for the employee’s spouse, child, or parent with a serious health condition;

(4) the employee’s own serious health condition;

(5) a qualifying military exigency; or

(6) care for an injured servicemember (military caregiver leave).

What is a serious health condition?

The definition is complicated. A “serious health condition” includes an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. A detailed discussion of what constitutes “inpatient care” and “continuing treatment” is found here.

What is a “qualifying military exigency”?

There are seven kinds of “qualifying military exigencies” that are found here. All involve responding to military obligations, where the employee is the servicemember or a civilian directly involved with a servicemember.

What is military caregiver leave?

This leave is available to an employee to care for an immediate family member who has a disability, injury or illness incurred in the line of duty.

What is intermittent leave?

In some situations, an employee may qualify for leave taken in separate blocks of time due to a single reason or for a reduced work schedule if: he or she has a serious health condition; must care for a spouse, child, or parent with a serious health condition; faces a qualifying military exigency; or must care for an injured servicemember. Leave is tracked in small increments of less than one hour.

How is intermittent leave scheduled?

If leave is due to planned medical treatment, the employee is supposed to made a reasonable effort to schedule treatment so as not to disrupt unduly the employer’s operations. As a practical matter, the employer cannot effectively schedule such leave. The employer may temporarily transfer an employee on intermittent leave to a position with similar pay and benefits.

What’s next in this series?

In the second installment of this series, we will cover the process for requesting leave, granting or denying leave, employee rights during the leave, and reinstatement rights after the leave. The third installment will explain Washington’s family and medical leave obligations and the relationship between FMLA and state law leave requirements. And the final installment will provide practical tips for family and medical leave of absence compliance.

If you have questions about questions about FMLA or any other employment law issue, please contact the Foster Pepper Employment and Labor Relations Practice Group.

Established in 1949 by the Washington State Legislature, the Washington State Human Rights Commission (HRC) is the state agency responsible for administering and enforcing the Washington Law Against Discrimination. The WLAD applies to employers with eight or more employees, and prohibits unfair employment practices because of a person’s:

• Filing a complaint or advocating rights under the WLAD

• Sensory, mental, or physical disability

• Use of a trained guide dog  or service animal

• HIV/AIDS or Hepatitis C Status

• Race

• Creed

• Color

• National Origin

• Sex

• Marital Status

• Age (40+)

• Sexual Orientation, including Gender Identity

Any person who claims to have been discriminated against in violation of RCW 49.60 may file a complaint with the Commission. Complaints must be filed within six months after the alleged discrimination. If there is jurisdiction under a federal law enforced by the Equal Employment Opportunity Commission (EEOC), such as under Title VII of the Civil Rights Act or the Americans With Disability Act, such complaints are also cross-filed with the EEOC. This cross-filing satisfies requirements under federal law and allows an eligible complainant to file a lawsuit in federal court after the end of the administrative process.

Once a complaint is filed, an HRC investigator is assigned to the file. Due to budget cuts and other administrative challenges, there often are delays before the investigation begins. The HRC investigator first contacts the complainant for an initial interview, then requests a written response from the respondent (the person or employer named in the complaint). Once the respondent complies, the HRC investigator once again contacts the complainant to allow him or her to respond to the respondent’s position. The investigator may interview management representatives, coworkers of the complainant, and third party witnesses, and may request additional documents from the employer.

After concluding the inquiry, the HRC investigator prepares a written report. The investigator may recommend either a “no reasonable cause” or “reasonable cause” finding.

The recommended finding is forwarded to Commissioners of the Washington State Human Rights Commission for final action. A “no reasonable cause” finding means that the facts of the case do not support a finding of discrimination, and results in a dismissal of the case. Complainants are free to pursue private litigation after a finding of no reasonable cause. If the Commission finds “reasonable cause,” it will seek conciliation of the complaint. The Commission’s objective is to obtain a solution that best eliminates the unfair practice and prevents its reoccurrence.

Despite this elaborate administrative process, claimants can bypass the HRC entirely and file a lawsuit in Superior Court under state law. The deadline for filing is three years after the alleged discriminatory act. In fact, most discrimination lawsuits in Washington courts are filed without any involvement by the HRC.

In addition to investigating complaints, the HRC has also issued rules in the Washington Administrative Code at Chapter 162. These rules provide important guidelines on topics such as pre-employment inquiries, employment and disability discrimination, sex discrimination, etc. The HRC also offers brochures and guidance for Washington employers on Washington’s nondiscrimination laws, including guides on breastfeeding, dress codes, and pregnancy and the intersection of FLA, FMLA, and WLAD.

If you have additional questions regarding the HRC, please contact the attorneys in the Foster Pepper Employment & Labor Relations Practice Group.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. It applies to employers with 20 or more employees, including state and local government. The Equal Employment Opportunity Commission (EEOC) enforces the ADEA.

ADEA applies to both employees and job applicants. The ADEA prohibits discrimination against a person because of age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

A brief summary of ADEA protections:

• Job Notices and Advertisements: It is generally unlawful to include age preferences, limitations, or specifications in job notices or advertisements. Employers may specify an age limit only in the rare circumstance where age is a “bona fide occupational qualification” reasonably necessary to the normal operation of the business. Prohibited language includes words that the EEOC considers age-related, such as preferences for “energetic” candidates.

• Pre-Employment Inquiries: While the ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth, requests for age information must be necessary for a lawful purpose.

• Benefits: Employers may not deny benefits to older employees. Employers may be able to reduce benefits based on age under very limited circumstances where the cost of providing reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

• Waivers of ADEA Rights: An employer may ask an employee to waive rights under the ADEA in settlement of a claim or an employment termination. The ADEA, as amended by the Older Workers Benefit Protection Act of 1990 (OWBPA) sets specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary. Particularly in the context of group terminations, these requirements can be complex.

Washington employers covered by ADEA also are responsible for complying with the Washington Law Against Discrimination (WLAD). WLAD similarly prohibits age discrimination, and covers employers with as few as 8 employees. County and city ordinances also may prohibit age discrimination, and these local measures may cover even smaller employers.

For more information on compliance with the ADEA as well as state and local laws, please contact Foster Pepper’s Employment and Labor Relations Practice Group.