Bipartisan efforts led to the passage of a paid family and medical leave law, signed by Governor Inslee on July 6. Washington is one of only a handful of states to offer such a program. The paid leave will be funded through weekly paycheck contributions made by both employers and employees (similar to Social Security), and the program will be administered by the state.

Beginning in 2020, an eligible employee can take up to 12 weeks of paid family and medical leave, which can be used to care for a newborn or newly-adopted child, the employee’s own serious health condition, or to care for a family member with a serious health condition. The employee can also take paid leave to be with a family member injured in military service, or to deal with exigencies of military deployment. The employee will receive an additional 2 weeks for a complication related to pregnancy. The total combined paid leave an employee can take in a year (for family care and for care of him or herself) is 16 weeks, or 18 weeks if it includes a pregnancy-related complication.

Weekly leave benefits are calculated based on a percentage of the employee’s wages and the state’s weekly average wage (currently $1,082), though the maximum weekly amount is capped at $1,000 a week. Any employee who earns less than the state average would get 90 percent of his or her income per week. To qualify for paid leave under this program, employees must have worked (for any employer) at least 820 hours in the preceding 12 months.

The new paid leave program will be financed by a 0.4 percent deduction from pretax wages. Both employees and larger employers will make regular payroll contributions – 63 percent to be paid by employees, and 37 percent to be paid by employers with 50 or more employees. Employers with 50 or fewer employees are exempt from paying the employer share. Self-employed people and contract workers may opt in with a three year commitment, and will pay only the employee share of the premiums. Companies that already offer paid leave programs can opt out, so long as the benefits are at least equivalent to the state’s minimum requirements.

Employees and employers will begin paying into the state system as of January 1, 2019, but employees will not be able to take paid leave until January 2020.

For more information on Washington’s leave laws, please contact Foster Pepper’s Employment, Labor and Benefits group.

We’ve written before about employer compliance with Seattle’s Sick and Safe Leave Ordinance. A new report from the Office of the City Auditor asserts that many employers are not complying with the Ordinance, and offers detailed recommendations for the City’s Office of Civil Rights (OCR)’s more vigorous enforcement.    

The report states that although the OCR received and investigated numerous employee complaints since passage of the Ordinance in 2012, the agency primarily responded through non-adversarial advisory letters rather than using tougher enforcement measures, such as investigations or fines to hold employers accountable for past violations. The report recommends that OCR strengthen its advisory letter process, pursue company-wide investigations and fact-finding conferences without requiring that OCR first issue formal charges against an employer, and take other measures to help employees obtain back wages and sick and safe time owed.

While the report sets out recommendations for OCR, responsibility for Sick and Safe enforcement may shift from OCR to a new office. In September, Mayor Murray proposed a new Office of Labor Standards (OLS) which would oversee the Seattle’s Sick and Safe Leave Ordinance as well as City regulations addressing wages, including the new $15 minimum wage ordinance set to go into effect on April 1, 2015. A proposed budget for the new OLS is currently under review. It remains to be seen whether the office will be established, and what OLS’ enforcement priorities will be.   

If you have questions about compliance with any Seattle employment regulations, please contact the Foster Pepper Employment and Labor Relations group.

We’ve written before about employer compliance with Seattle’s Sick and Safe Leave Ordinance. A new report from the Office of the City Auditor asserts that many employers are not complying with the Ordinance, and offers detailed recommendations for the City’s Office of Civil Rights (OCR)’s more vigorous enforcement.    
The report states that although the OCR received and investigated numerous employee complaints since passage of the Ordinance in 2012, the agency primarily responded through non-adversarial advisory letters rather than using tougher enforcement measures, such as investigations or fines to hold employers accountable for past violations. The report recommends that OCR strengthen its advisory letter process, pursue company-wide investigations and fact-finding conferences without requiring that OCR first issue formal charges against an employer, and take other measures to help employees obtain back wages and sick and safe time owed.
While the report sets out recommendations for OCR, responsibility for Sick and Safe enforcement may shift from OCR to a new office. In September, Mayor Murray proposed a new Office of Labor Standards (OLS) which would oversee the Seattle’s Sick and Safe Leave Ordinance as well as City regulations addressing wages, including the new $15 minimum wage ordinance set to go into effect on April 1, 2015. A proposed budget for the new OLS is currently under review. It remains to be seen whether the office will be established, and what OLS’ enforcement priorities will be.   
If you have questions about compliance with any Seattle employment regulations, please contact the Foster Pepper Employment and Labor Relations group.

 

 

What can employers expect from the Equal Employment Opportunity Commission in 2014? The EEOC answers this question, in part, in its recently issued Fiscal Year 2013 Performance and Accountability Report. In addition to summarizing agency activities over the past year, the report provides a glimpse into future areas of EEOC enforcement.

The report’s summary of 2013 highlights the EEOC’s performance, describing significant challenges from sequestration, furloughs, a hiring freeze and the government shutdown. The EEOC received 93,727 charges of workplace discrimination, a 5.7 percent decrease from 2012. Despite the drop in case numbers, the EEOC obtained a record $372 million in judgments and settlements. The largest number of claimants cited retaliation as the reason for filing charges and most frequently claimed improper discharge, harassment and employment conditions.

Notably, the EEOC also began implementing its Strategic Enforcement Plan in 2013. The Plan contains six enforcement and outreach priorities that span private, public and federal sectors. The EEOC approved these priorities in December 2012 and spent most of last year distributing implementation guidance across field offices. The EEOC will continue implementation in 2014, and employers should expect to see increased EEOC attention in six priority areas:

1. Eliminating barriers in recruitment and hiring. The EEOC plans to address recruitment and hiring practices that allegedly discriminate against underrepresented groups. Investigators will analyze demographic data, job postings, application forms, and testing requirements.

2. Protecting immigrants, migrants, and other vulnerable workers. The EEOC will investigate potentially harmful policies affecting vulnerable populations of workers who may not understand their rights. In addition to enforcement action, EEOC field offices will implement targeted outreach and education programs to ensure that these workers feel empowered to exercise their employment rights.

3. Addressing emerging and developing issues. This broad priority allows the EEOC to identify emerging issues prompted by changing demographics, developing judicial theories, and proposing new legislation. While these emerging issues will differ across field offices, the Plan identifies three that the entire agency will target: (1) reasonable accommodation under the Americans with Disabilities Act (ADA); (2) accommodation for pregnancy-related limitations under the ADA and the Pregnancy Discrimination Act; and (3) coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.

4. Enforcing equal pay laws. The EEOC will investigate and target compensation systems that allegedly discriminate on the basis of gender. Field offices will be encouraged to focus on enforcement of equal pay laws.

5. Preserving and improving access to the legal system. The EEOC plans to investigate employer policies that allegedly discourage individuals from exercising their employment rights. Investigators will look for particular red flags, including overly broad waivers, settlement provisions that prohibit legal action, and mandatory arbitration provisions.

6. Preventing harassment. The EEOC will work to prevent sexual and other harassment through systemic enforcement and targeted outreach. The agency noted that harassment is one of the most frequent complaints raised in EEOC charges.

If you have questions about the EEOC’s activities or other employment or labor issues, contact Foster Pepper’s Employment and Labor practice group.

Will the government raise the minimum wage and thereby address “income inequality” (the divide between low and high wage earners)? We’ve written on this issue before (see previous posts here and here), and today bring you the latest updates on local, state, and national efforts.

Seattle: On February 18, new Seattle Mayor Ed Murray vowed to address income inequality in his State of the City address, reiterating his support for a $15 minimum wage. Last month, the Mayor issued an executive order directing his staff to take the first steps toward raising the minimum wage for city workers to $15 per hour, an increase that likely will cost an additional $1 million annually and benefit mostly seasonal and part-time workers.  Mayor Murray also directed a coalition of politicians, labor and local business leaders to consider a minimum wage increase for many employers within the city limits. A report from the coalition is expected this spring.

Newly elected socialist Seattle City Council member Kshama Sawant has dedicated herself to local efforts to raise the minimum wage in Seattle to $15 per hour. She is participating in the Mayor’s collation and in a nonprofit (15now.org) that held several rallies in support of the minimum wage increase.

Washington State: There has been an increasing amount of debate and legislative action in Olympia over the past month. In his January State of the State speech, Governor Jay Inslee proposed a statewide minimum wage increase of $1.50 to $2.50 per hour. Washington already has the highest minimum wage in the nation, at $9.19 per hour.

The state house and senate have also been active. Recent bills introduced by Republican lawmakers would prohibit cities and counties from regulating the minimum wage, leaving that action for the state alone. The bills are designed to preempt initiatives such as that passed by the City of SeaTac last year, or similar local action being discussed in Seattle. Senate Democrats have embraced Governor Inslee’s request, proposing a 30% increase the state minimum wage, to $12 per hour, by 2017. While both parties hope to see their bills move forward, divisions in the legislature along ideological and party lines will likely prevent any bill from being passed this session.

National: On February 12, President Obama signed an executive order making good on the promise in his State of the Union address to raise the federal minimum wage for government contractors. The order increases the minimum wage to $10.10 per hour and applies only to new federal contractors performing janitorial, kitchen work and other low-wage services. The wage increase is expected to benefit approximately 250,000 workers. The nonpartisan Congressional Budget Office released a report finding that boosting the federal minimum wage to $10.10 per hour could cut 500,000 jobs in two years, but also lift 900,000 families out of poverty and increase the incomes of 16.5 million low-wage workers.

Meanwhile, the national debate over minimum wage increases is growing contentious, with aggressive lobbying on both sides of the debate. Proponents appear particularly focused on workers in the restaurant industry, raising concerns over the application to tipped employees.

For more information on minimum wage increases and other wage and hour issues, contact Foster Pepper’s Employment & Labor Relations Group.

Since 1991, Seattle marijuana aficionados have held an annual celebration known as Hempfest.  The August 2013 event was unlike any of the previous ones, since Washington had only recently legalized recreational marijuana.

Even the Seattle Police Department got into the act.  With a lighthearted nod to the hunger caused by marijuana – or so we are told –
officers distributed 1000 bags of Doritos with messages that explained the new cannabis rules (such as “Don’t drive while high” and “Don’t use pot in public”).

At least one officer didn’t appreciate Doritos duty.  According to
KUOW-FM, Seattle’s NPR station, the unidentified officer filed a complaint with the Seattle Office for Civil Rights, claiming retaliation for refusing to participate in the Hempfest give-away.  The officer apparently asserted that participating in the event would have violated his or her political ideology, which is a protected status under the Seattle Civil Rights Ordinance.  Presumably the officer objected to the Department’s approach toward marijuana use, not its choice of snack food.  

Unfortunately the KUOW report did not reveal the specifics of the claimed retaliation.  And because SOCR investigations are not public, we may never know more about this case. 

2014’s Hempfest is scheduled for August 15-17.  No word whether the Seattle Police Department is planning to feed attendees again. 

 

The Affordable Care Act requires employers to notify employees about health insurance that will be available through the Health Insurance Marketplaces beginning January 1, 2014.  The notice must inform employees about the Marketplaces and possible premium tax credits.  The notice also must disclose that if the employee purchases a plan through the Marketplace, he or she may lose any employer contribution to an employer-sponsored health benefits plan.  The Department of Labor has a model notice for employers that offer medical insurance and a model notice for employers that do not.

The notice requirements apply to all employers subject to the Fair Labor Standards Act, regardless of whether the employer offers medical insurance.  Employers must send the notice to current employees by October 1, 2013, and to new employees at the time of hire.  The notice may be provided by first-class mail or, under some circumstances, electronically.
 
If you have questions about the ACA’s employer requirements (summarized here and addressed here), please contact the Foster Pepper Employment and Labor Relations group or the Foster Pepper Health Care group

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.

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

Workplace violence remains a serious issue for all employers.  This article will summarize the background facts and propose a strategy for reducing the risk.

Background

The pervasiveness of violence in the workplace is daunting: 

  • Nearly 2 million American workers report having been victims of workplace violence each year, and more cases go unreported.
  • Homicide is the fourth-leading cause of fatal occupational injuries in the United States, claiming 506 lives in 2010. 
  • Homicide is the leading cause of death for women in the workplace.  

While all workplaces are vulnerable, research has identified factors that increase the risk of violence

  • Working with the public or volatile, unstable people
  • Working alone or in isolated areas
  • Handling money and valuables
  • Providing services and care
  • Working where alcohol is served
  • Working late at night or in areas with high crime rates

OSHA distinguishes four kinds of workplace violence: 

  • Criminal Intent: Violent acts by people who enter the workplace to commit a robbery or other crime.
  • Customer/Client/Patients: Violence directed at employees by customers, clients, patients, students, inmates or any others to whom the employer provides a service.
  • Co-worker: Violence against co-workers, supervisors, or managers by a current or former employee, supervisor, or manager.
  • Personal: Violence in the workplace by someone who does not work there, but who is known to, or has a personal relationship with, an employee.

Responding to the Threat

Eliminating all violence may be impossible, but employers can and should confront the problem in the following ways: 

1.   Take security precautions. Employers may deter violent acts by making changes to the workplace or to workplace procedures.  If the perpetrator cannot enter the workplace or is intercepted before reaching the intended target, violence may be averted.  Precautions could include controlled access to the workplace, enhanced lighting and visibility, alarms, closed-circuit cameras and cell phones. Employee training is particularly important. Government or private security professionals can assist in evaluating and upgrading security.  Moreover, as we recently wrote, Washington employers can prohibit employees from bringing weapons to the workplace. 

2.   Screen applicants carefully. Consistent with legal requirements, employers should try to exclude candidates with a history of violence or other unsuitable behavior. 

3.   Adopt and enforce a “zero tolerance” policy for violence or threats of violence.  Employers should create a clear policy so the entire organization understands the commitment to proper workplace behavior and the protocol to follow in case of threats or violent conduct.  The policy should be enforced rigorously.  Violence or threats in the workplace should lead to termination of employment or exclusion of visitors from the workplace.

4.   Create and train a response team. Even smaller employers should have an experienced team to confront threats of violence – and to deal with the aftermath of actual violence. Team members should be available to confer on short notice and have the authority to implement the group’s decisions.  The team should include as many of the following disciplines as possible: 

  • Human resources: A human resources specialist would know workplace policies and procedures and have experience in dealing with troubled employees.
  • Legal: An in-house or outside lawyer can help to identify options, keep decisions within the law, and, if appropriate, help to shield deliberations with privilege. The lawyer could arrange for anti-harassment orders and other injunctions and may serve as liaison to prosecutors.
  • Security: A full-time security professional naturally would be a team member.  In smaller organizations, this function may be assumed by a safety manager, HR manager, office manager or outside consultant.  This person often is the liaison to the police department.
  • Mental health: An expert on emotional and/or psychological problems should be available on a consulting basis. This expert could advise the team or, if appropriate, intervene directly in defusing potential violence.
  • Others: Company executives also may be on the team. With serious threats or incidents, public relations or media relations professionals may be helpful.

Team members should be trained in recognizing and responding to potentially violent behavior, and they may in turn train other employees.

5.   Use the response team.  If management becomes aware of a troubled employee or other person who poses a risk of harm to others, or if there is a threat of violence, the team should: 

  • Gather and share the facts: First reports may be inaccurate. Team members should quickly learn as many details as possible.
  • Assess the risk: Once initial facts are gathered, the difficult deliberations begin. Is the potential assailant merely blowing off steam, or is there a credible threat of real violence?  Someone who makes a threat may not pose a threat, and someone who makes no threat may pose a substantial risk. What steps are necessary to prevent harm? What warnings should be sent and by whom?
  • Create and implement an action plan: Elements of the plan could include security measures at the workplace or at the homes of potential victims; police or other law enforcement intervention; anti-harassment orders or injunctions; communications with the potential assailant, possibly including offers of drug/alcohol rehabilitation or psychiatric counseling; and communications with employees, unions and others.
  • Monitor progress: After the immediate crisis abates, the team should ensure that the same person does not make future threats or otherwise act inappropriately. The team also should periodically review and assess the organization’s response to similar incidents and update workplace security, training, and policies and procedures.
  • Maintain documentation: Documentation helps to ensure accuracy of information, preserve the group’s collective memory, and defend against legal claims.

If you have questions about addressing threats of violence in your workplace, contact the Foster Pepper Employment and Labor Relations Group.

By Milt Rowland

Under some circumstances, an employer may be held liable under Title VII of the Civil Rights Act of 1964 if its supervisor sexually or racially harasses an employee. In Vance v. Ball State University, issued on June 24, 2013, the US Supreme Court decided that a worker who lacks the power to hire and fire cannot qualify as a supervisor under Title VII.

Maetta Vance, an African-American employee of Ball State University, asserted that white employee Saundra Davis created a racially hostile work environment in violation of Title VII. Vance claimed that Davis was her supervisor and that the University was liable for Davis’s alleged behavior.

The Supreme Court ruled for the University. The Court found that Davis was not a supervisor under Title VII, because she lacked the authority to hire, fire, demote, promote, transfer or discipline. The University was not legally responsible for Davis’s conduct and was not negligent in responding to Vance’s complaints.

While the Vance decision will prevent some Title VII claims based on coworker or team lead conduct, employers should be cautious. Genuine supervisors under the Vance decision still may create liability for their employers under Title VII. Moreover, under a variety of other federal and state laws, employers may be held liable for the conduct of team leads and other employees who have some enhanced authority or responsibility.

If you have questions about the Vance case or other employment or labor issues, please contact the Foster Pepper Employment and Labor Relations Group.