Employers face a variety of threats from departing employees, including theft of intellectual property, use and disclosure of trade secrets, and unfair competition and solicitation of customers and employees. Prudent employers can reduce those risks through effective employment agreements and other steps, and can curtail the bad behavior through timely and effective legal action.

Please join attorneys from Foster Pepper’s Employment & Labor, Intellectual Property and Litigation groups to consider strategies for preventing and addressing post-employment misconduct.

Panelists will discuss:

  • Preparation of enforceable employment agreements
  • Protecting inventions and trade secrets
  • Responding to employee theft
  • Legal remedies and strategies for enforcing employer rights after termination

Continue Reading Upcoming Seminar: “‘My Ex-Employee Did WHAT?’ – Preventing and Addressing Post-Employment Misconduct

A reader recently commented on the compensation of seniors who work as resident monitors in a building where they live. The building (in Colorado) is operated by a religious charity. The monitor oversees the premises when management is not present. Although working more than 60 hours each week, the monitor is paid only about $200.

While the reader may resent building management, the arrangement is proper under the Fair Labor Standards Act because the monitors are volunteers. (We do not address Colorado law, which might have contrary provisions.) As we wrote several years ago:

Nonprofit and public sector organizations may have volunteers as long as the volunteers are not employees of the organization and give time and services gratuitously. There can’t be any pressure or coercion to donate time, and all services must be free and voluntary.

Continue Reading Ask Washington Workplace Law: Don’t I have the right to get paid more?

An updated explanation of FMLA and Washington’s family and medical leave law is now available on the Foster Pepper website. Family and Medical Leave Guide for Washington Employers is a valuable resource for HR and business managers who face complex requirements under federal and state leave law. For the attorney, the Guide includes current regulatory and case citations, including developments in 2014 and 2015.

If you have questions about FMLA or other leave law issues, please contact the Foster Pepper Employment and Labor group.

Contributing Research by Dori Kojima

On July 15, 2015, the U.S. Department of Labor (DOL) released an Administrator’s Interpretation addressing how to determine whether a worker is an independent contractor or employee under the Fair Labor Standards Act (FLSA). The FLSA is the primary federal law regulating minimum wage and overtime pay. The Interpretation puts employers on notice that the DOL is increasing efforts to curtail the misclassification of workers.

The “Economic Realities” Test Under the FLSA

To determine whether a worker is an employee or independent contractor under the FLSA, courts apply the “economic realities” test. The test focuses on whether the worker is economically dependent on the company or in business for himself or herself. The “economic realities” test has six factors:

Continue Reading Department of Labor Targets Use of Independent Contractors

A class of employees is suing Kmart in a California state court for allegedly engaging in unfair business and employment practices in its use of payroll debit cards.
Payroll debit cards have become popular, especially in the retail and fast food industries.  Instead of a paycheck or direct deposit, the employer loads funds onto a debit card held by the employee.  The employee then uses the debit card to withdraw cash and pay bills.
In the California lawsuit, the plaintiffs claim (among other things) that
• Kmart earns interest on the payroll funds not withdrawn from the debit card, thereby using employee wages for investment purposes.
• Employees must pay fifty cents each time they make a withdrawal, thus depriving them of their full wages.
• Employees face other limitations, such as not being able to withdraw all their wages at the same time.
The lawsuit seeks various kinds of relief, including restitution and punitive damages.
We previously summarized the legal issues surrounding payroll debit cards here.  We identified two sources of law affecting payroll debit cards in Washington State.
First, we described a bulletin issued by the Consumer Financial Protection Bureau (CFPB) that applies the Electronic Fund Transfer Act and Regulation E to payroll debit card accounts.  Under that Bulletin, the CFPB announced that
• Employers may not require their employees to receive wages by payroll card, but must offer a substitute method, such as direct deposit or paper check.
• Employees must be informed of all fees, limitations on liability, and requirements related to making electronic fund transfers with the payroll card.
• The payroll card issuer must disclose specified information about the employee’s account balance and transaction history.
• Employees are entitled to limited liability protections for the unauthorized use of their payroll cards and designated rights to correct account errors.
Second, we noted that the rules in Washington State are less elaborate.  We reported, however, the Department of Labor & Industries agrees with the CFPB on one essential point: if there are fees for using payroll cards, the employer must provide an alternative that allows access to wages without any fees or costs.
For more information about payroll debit cards, please contact Foster Pepper’s Employment & Labor group or Financial Institutions group.

A class of employees is suing Kmart in a California state court for allegedly engaging in unfair business and employment practices in its use of payroll debit cards.

Payroll debit cards have become popular, especially in the retail and fast food industries. Instead of a paycheck or direct deposit, the employer loads funds onto a debit card held by the employee. The employee then uses the debit card to withdraw cash and pay bills.

In the California lawsuit, the plaintiffs claim (among other things) that

  • Kmart earns interest on the payroll funds not withdrawn from the debit card, thereby using employee wages for investment purposes.
  • Employees must pay fifty cents each time they make a withdrawal, thus depriving them of their full wages.
  • Employees face other limitations, such as not being able to withdraw all their wages at the same time.

Continue Reading Kmart Sued for Use of Payroll Debit Card System

Medical and recreational marijuana is legal in Washington and Colorado; however, the highest courts in both states have ruled that employers can still discharge employees for using it.

Most recently, in Coats v. Dish Network, LLC, the Colorado Supreme Court ruled that Dish Network properly discharged an employee for failing a drug test. At the time of his discharge, Brandon Coats (who suffers from quadriplegia), held a valid Colorado license to consume marijuana for medical purposes. As a result of Coats’ positive test for marijuana, Dish discharged him for violating its zero tolerance drug policy. Coats did not use marijuana on Dish’s premises, he did not use it during working hours, nor was he under its influence while at work. Instead, Coats’ urine test detected traces of THC metabolites, the chemical residue of THC, which is the active ingredient in marijuana. These metabolites can remain in the body anywhere from several days to several weeks after last consuming marijuana.

Continue Reading Colorado Supreme Court Upholds Employer’s Right to Discharge Employee for Marijuana Use

On April 21, 2015, attorneys from the Foster Pepper Employment and Labor group presented a webinar titled “Is Your Employee Handbook Ready for Prime Time?” They discussed various updates that should be considered for employee handbooks including the following hot topics:

  • Avoidng NLRB attacks on employers’ social media policies
  • Assuring compliance with local ordinances; and
  • Amending drug policies in light of legalization of marijuana in Washington

If you missed the presentation, you can review the materials or listen to a recording of the webinar here. To find materials from other presentations on employment and labor topics, click here and scroll to the bottom of the page.

April 1 is implementation day for Seattle’s new Minimum Wage Ordinance. Starting April 1, large businesses with over 500 employees must pay workers wages of at least $11 per hour. Smaller businesses with 500 or fewer employees must pay either a flat hourly wage of $11, or a wage of $10 per hour with an additional $1 per hour in compensation comprised of tips or payments made to a qualifying medical-benefits plan.

The City of Seattle’s Office of Labor Standards, a new division within the Seattle Office for Civil Rights, has released the Final Administrative Rules for the new Ordinance, along with detailed set of Frequently Asked Questions.

If you have questions regarding compliance with Seattle’s Minimum Wage Ordinance, or any other wage and hour question, please contact Foster Pepper’s Employment & Labor group.  

At their best, handbooks can effectively communicate employer policies and culture, and provide a strong defense against employee claims. At their worst, handbooks can sow confusion or trigger liability.

Join attorneys from Foster Pepper’s Employment & Labor group to discuss updates that you should consider for your employee handbook. Topics will include:

  • Avoiding NLRB attacks on employers’ social media policies
  • Adjusting policies in light of marriage equality
  • Assuring compliance with local ordinances requiring paid sick and safe time
  • Assessing use of interns and independent contractors
  • Amending drug policies in light of legalization of marijuana in Washington
  • Adapting policies to new technologies
  • Altering language to preserve at-will employment

Continue Reading Upcoming Seminar: “Is Your Employee Handbook Ready for Prime Time?”

As we previously reported, the Seattle City Council enacted an ordinance that will raise the minimum wage for workers at many Seattle businesses.  The ordinance, which is scheduled to take effect in April, designated the Seattle Office for Civil Rights to interpret and administer the new provisions.  SOCR now has released proposed Administrative Rules.  Readers can visit SOCR’s website for details, including a press release and frequently asked questions about the new ordinance.