Washington Workplace Law

The battle over health care reform appears to be over, as President Obama's re-election eliminated the last major threat to the his signature healthcare reform law, the Affordable Care Act ("ACA"). The US Supreme Court's June 2012 decision upheld the ACA in its entirety, which means that employers must now prepare to implement its provisions.

In addition to those requirements which have already gone into effect, the ACA imposes several duties on employers and plan sponsors which are effective between now and 2014, including:

• Mandatory Employee Coverage – Employers with an average of 50 full-time employees must offer health coverage that meets minimum essential coverage requirements or pay a fine ($2,000 per employee over 30 FTEs). Effective: January 1, 2014.
• Summary of Benefits and Coverage – Employers are required to provide a standardized summary of benefits and coverage ("SBC") to all applicants and enrollees at initial enrollment and annual enrollment. Effective: Plan years beginning on or after September 23, 2012.
• W-2 Reporting Requirement – Employers are required to report the aggregate cost of applicable employer-sponsored health coverage on W-2s provided to employees. Effective: Calendar year 2012.
• Comparative Clinical Effectiveness Research Fee – The ACA imposes a fee on all health plans to fund comparative clinical effectiveness research. Effective: Plan years beginning November 1, 2011.
• Limit on Flexible Spending Account Contributions – Employee pre-tax contributions to a Section 125 health flexible spending account ("FSA") will be limited to $2,500 annually. Effective date: Plan years beginning on or after January 1, 2013.
• Medical Loss Ratio Rebates – Employers must begin handling medical loss ratios rebates received from insurers in accordance with guidance issued by the Department of Labor (for ERISA plans) and the Department of Health and Human Services (for non-federal governmental and church plans). Effective: First applied to 2011 plan year and the first rebate is due by August 1, 2012.
• Health Insurance Exchange Notices – Employers must prepare notices to employees as to the availability of health insurance coverage through the state’s health insurance exchange, and eligibility for premium tax credits through the exchange, if the employer’s health care coverage does not satisfy the ACA’s minimum value test. Effective: March 2013.

While most employers are generally aware of the ACA's requirements, implementation of the legislation remains unclear without further regulatory guidance addressing vague and undefined provisions. Following President Obama’s victory, employers can expect increased activity by federal regulatory agencies to address critical aspects of the ACA, such as:

• Essential Health Benefits – Guidance on the definition of essential health benefits, which will determine which benefits the health insurance exchange plans must offer and, for insured or self-insured plans, which benefits are subject to the prohibition on lifetime and annual limits (for plan years beginning before January 1, 2014).
• Minimum Value Test – Rules for determining whether a plan satisfies the ACA's "minimum value" test (i.e., covers at least 60% of the costs of benefits that the employer has determined will be provided under its plan).
• Shared Responsibility – For employers with 50 or more full-time employees, the ACA's “shared responsibility” provision imposes penalties on the employer if any full-time employee obtains subsidized coverage through a health insurance exchange, either because the employer does not offer coverage at all or because the coverage offered is "unaffordable" or does not satisfy the ACA’s "minimum value test."
• "Full-Time" Employees – Standards for calculating the number of full-time employees.
• Automatic Enrollment – Standards addressing the ACA's automatic enrollment provision, which requires employers with 200+ full-time employees to automatically enroll employees into a default plan if the employee does not affirmatively elect health plan coverage or opt-out.
• Wellness Plans – Rules governing the design of employee-sponsored wellness programs and the ACA’s employee incentives to participate in such wellness plans.

Employers should take immediate action to begin the process of implementing ACA requirements, communicate plan changes to employees, and continue monitoring regulatory activity regarding implementation guidance. The Department of Labor website provides regulatory guidance and FAQs.

If you require assistance complying with the ACA's employer requirements, you may contact Amy Kauppila at kaupa@foster.com or (206)390-1071.

By August 30, employers that sponsor 401(k) and other plans which provide for participant-directed investments must disclose retirement plan fees. This requirement is the second stage of the Department of Labor's initiative to ensure that sponsors of and participants in such plans receive more detailed information about fees charged to the plans. The first stage – DOL regulations requiring service providers to advise employers regarding fees that they charge to plans – became effective earlier this summer.

This second stage of the regulations now requires employer to adequately disclose such fees to participants. Most employers will have been led down the path toward compliance by third-party administrators. But employers that have not yet acted should understand that the compliance deadline is approaching and that failure to disclose is a fiduciary breach.

To comply with the regulations, employers must take several steps.

• First, they must ensure that they received the disclosures that their service providers should have supplied.
• Second, employers must organize that information into a format that is acceptable to the DOL. The DOL has provided a model comparative chart that employers may use as a starting point.
• Finally, although not required by the regulations, employers also should, as a part of "best practices," determine whether the data raises issues of excessive fees or other problems. It is far better to resolve such issues before they prompt additional disclosures to participants.

DOL regulations require quarterly disclosures, so employers should ensure that they receive the necessary information from service providers on a timely basis, and promptly disseminate that information to participants.

If you require assistance in complying with the fee disclosure regulations, you may contact Scott Galloway at gallj@foster.com or (206) 447-8919.

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.

A recent Massachusetts case highlights the continued responsibility on all health care organizations to protect confidential health information. The Massachusetts Attorney General announced that South Shore Hospital agreed to a $750,000 settlement after the hospital failed to protect confidential patient health information.

The data breach occurred when the hospital shipped several boxes of unencrypted backup tapes to a third party vendor to be erased. The backup tapes contained the protected health information (PHI) of approximately 800,000 individuals, including names, Social Security numbers, financial account numbers, and medical diagnoses. Unfortunately, only one of the boxes arrived at the Texas-based vendor. The other boxes were never recovered.

As a result of the breach, the Massachusetts Attorney General sued the hospital under authority granted by Congress in the “HITECH Act” of 2009, alleging violations of both the Health Insurance Portability and Accountability Act (HIPAA) and a state consumer protection statute. The suit claimed the hospital (1) failed to implement appropriate safeguards, policies, and procedures to protect consumers’ information, (2) failed to have a “business associate agreement” with the vendor, and (3) failed to properly train its workforce to protect the privacy of health data.

As we previously discussed, health care employers can expect continued enforcement efforts from both federal and state agencies for violations of the HIPAA Privacy Rule and state consumer protection and privacy laws. In light of the high price tag for mistakes, health care organizations should review existing policies and procedures and implement the following suggestions:

• Health care organizations should implement policies and procedures to address removal of PHI from hospital premises.
• Removal of PHI should only occur when absolutely necessary, and all information taken offsite should be rigorously safeguarded and encrypted.
• Covered organizations should implement a comprehensive and well-documented HIPAA training program for all employees.
• Covered organizations should consider on-site destruction of PHI whenever possible, consistent with document retention and destruction policies, and should select vendors that will comply with HIPAA privacy and security standards.
• Obtain a business associate agreement with all vendors who handle PHI.

If you have questions about your organization’s HIPAA compliance efforts, please contact the Foster Pepper Health Care Practice Group or the Foster Pepper Employment and Labor Relations Practice Group.

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.

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. 

On February 13, 2012, Governor Gregoire signed into law the Marriage Equality Act, which provides "equal protection for all families in Washington by creating equality in civil marriage and changing the domestic partnership laws."

Washington already provides equal rights to unmarried couples (whether gay, lesbian, or heterosexual) who enter into registered domestic partnerships.  The Act goes further by permitting gay and lesbian couples to enter into civil marriages.

The Act will go into effect on June 7, 2012, although opponents are expected to gather sufficient valid voter signatures to force a referendum in November and thus delay implementation of the Act.

Foster Pepper will monitor and provide updates on this breaking development, particularly the impact of the Act on Washington employers.

On January 3, 2012, the Washington Department of Labor and Industries (“L&I”) adopted the “Hazardous Drugs Rule” (the “Rule”), which is intended to protect workers from potentially harmful exposure to chemotherapy or other hazardous drugs. Washington is now the first state to require health care employers to take precautions such as installing proper ventilation or using protective equipment to prevent exposure. Without these measures, workers may be at risk for harmful effects such as cancer, reproductive and developmental problems, and allergic reactions. The Rule is consistent with recommendations from the National Institute of Occupational Safety and Health (“NIOSH”), OSHA, and The Joint Commission.

Who must comply with the Rule?

The Rule applies to all “health care facilities” that have employees with occupational exposure to hazardous drugs, including but not limited to hospitals, clinics, nursing homes, laboratories, and pharmacies.

What is a “hazardous drug”?

A “hazardous drug” is any drug that NIOSH identified as hazardous in its 2010 report. Some substances on the list are dangerous cancer-causing agents, while others cause different kinds of irreversible harm to health care workers – even at low exposure levels.

What does the Rule require?

The Rule requires affected employers to develop a hazardous drugs control program that addresses the following elements:

• A written inventory of hazardous drugs in the workplace.
• A current hazard assessment for the hazardous drugs.
• Hazardous drugs policies and procedures that cover among other things:
  
  
  
  • Engineering controls (equipment use and maintenance);
  • Personal protective equipment;
  • Safe handling practices for receiving and storage, labeling, preparing, administering, and disposing of hazardous drugs;
  • Cleaning, housekeeping, and waste handling;
  • Spill control;
  • Personnel issues (such as exposure to pregnant workers); and
  • Employee training.

When does the Rule take effect?

The Rule will go into effect in three stages:

• By January 1, 2014, employers must complete and implement a written hazardous drugs control program.
• By July 1, 2014, employee training must be implemented.
• By January 1, 2015, employers must complete installation of required ventilated cabinets.

What should the employer do now?

L&I has not yet provided much guidance regarding developing and implementing a hazardous drugs control program. It has announced a plan to form a Hazardous Drugs Advisory Committee to develop model programs. As described here, L&I will host a public meeting on January 29 for those interested in the formation of the Advisory Committee.

In the meantime, employers subject to the Rule should begin initial assessments of their hazardous drug inventory and policies.

If you have questions about the Rule, please contact the Foster Pepper Employment and Labor Relations Practice Group or the Foster Pepper Health Care Practice Group.

Initiative Measure 1183, approved by voters, privatizes spirit sales in the State of Washington.  Spirits retailers will face more stringent training and supervision requirements than previously required for sales of beer and wine.

Training Requirements For Retail Spirits Vendors

Under the new law, businesses seeking or renewing a “retail spirits license” must provide specified training of retail clerks and supervisors before they are permitted to sell spirits. The training must be renewed every five years, and the employer must maintain training records for all retail sales staff.

Although no training program currently exists, the Liquor Control Board is required to develop a “responsible vendor program” and create guidelines for employee training. In addition to the new training requirements, licensees must accept only certain forms of identification for alcohol sales, adopt related policies, post signs in the business, and keep records verifying compliance with the new requirements. We will provide updates as the Board defines the training requirements.

State Liquor Stores to Close by June 1, 2012 -- Stay Tuned

I-1183 takes effect immediately upon certification of the 2011 General Election by the Secretary of State. But, holders of a new spirits distributor license or spirits retail license may not commence distribution earlier than March 1, 2012; or for retailers, June 1, 2012 (the date retail sales by State Liquor Stores cease). Over the next few months the Liquor Control Board will issue regulations to implement I-1183. Sign up here to receive Foster Pepper's e-alerts on this rapidly changing industry. If you have questions about the training requirements for spirit sales licensees, please feel free to contact Foster Pepper’s Wineries, Breweries and Distilleries Group.

Three recent National Labor Relations Board (NLRB) memoranda concluded that employees posting complaints about their jobs on social media websites may not be protected from disciplinary action even if their complaints are job-related. In each of the three cases, the NLRB Division of Advice recommended dismissal of the claims that employers violated the NLRA when they disciplined or discharged employees for Facebook activity.

In the first case, an employee was disciplined for profanely criticizing local management on his Facebook page. The remarks were visible only to his Facebook friends, some of whom were co-workers. Although two co-workers posted notes of support, the Division of Advice found that no evidence of protected concerted activity, as the Facebook posts were essentially a personal gripe made only on his own behalf. The employee had not included any language suggesting that his co-workers initiate or participate in group action; instead, the employee expressed his frustration over a single incident with a particular manager.

Likewise, the Division of Advice found no evidence of protected concerted activity where an employee in a mental health institution engaged in a Facebook conversation with a set of friends about the facility's clients. Her employer learned of the Facebook conversation when it was reported by a former patient, and the employer fired the employee. None of the employee's co-workers were Facebook friends, and the employee admitted she had never discussed her Facebook posts with co-workers. Therefore the employee had not engaged in protected concerted activity because she was not seeking to "induce or prepare for group action," and because her Facebook posts did not mention any terms and conditions of employment.

In a third case, the Division of Advice concluded that a bartender had not engaged in protected concerted activity when he complained about his employer's tip pooling policy on Facebook. Even though the bartender's complaint centered on his terms of employment, he did not direct his Facebook post to co-workers or discuss the post with them. In short, he was simply complaining and was not seeking to induce collective action.

Finally, the General Counsel also released a report summarizing the outcomes and reasoning behind more than a dozen cases in the past year involving employees' use of social media and employer social media policies. In each of the three memoranda and the vast majority of the social media cases, the General Counsel used similar legal standards, including:

• When an employee "acting with or the authority of" coworkers (a) "seeks to initiate, induce or prepare for group action," or (b) "brings truly group complaints to the attention of management," that employee's action is protected.

• When the employee's activities are "the logical outgrowth of concerns expressed by the employees collectively," the employee's activities are protected.

• When the employee is engaged in activity "solely by and on behalf of the employee himself," the employee's activity is unprotected.

• When the employee's comments are "mere griping," as opposed to "group action," the employee's comments are unprotected.

While not comprehensive, these guidelines will assist employers considering disciplining or terminating employees for offensive social media posts. Employers should consult competent employment counsel for additional guidance during the disciplinary process.

For more information on social media guidelines, compliance, and resulting employee discipline, please contact Foster Pepper's Employment and Labor Relations Practice Group.

Many Washington employers hire workers under the age of 18 to work in a variety of jobs, but they need to follow special rules. Employment of children between 14 and 17 is governed by the Washington State Department of Labor and Industries (L&I) and the U.S. Department of Labor (DOL). Absent limited exceptions, such as for agricultural or theatrical jobs, children younger than 14 ordinarily cannot be employed at all.

Federal and state regulations regarding the employment of 14- to 17-year olds are found on the DOL and L&I sites. The regulations include specific requirements and limitations unique to minor employees in areas such as hours of work, meal and rest breaks, and prohibited job duties.

In Washington, employers must also obtain a minor work permit through L&I on their Master Business License for each work location with employees under the age of 18, and renew the permit annually. The minor work permit application may be completed online.

In addition to posting the minor work permit, Washington employers must also maintain the following information about each minor worker in a file at the minor’s work site:

1. Personal data: Name, address, and a copy of the minor’s Social Security card and other appropriate employment documents including an I-9.

2. Proof of age: Copy of birth certificate, driver's license, baptismal record, etc.

3. Job description: Must include equipment used, such as copiers, computers, power equipment, or vehicles.

4. Work schedule: Must show earliest and latest work hours (download chart showing work hour limits, PDF).

5. Parent/School Authorization Form: signed by parent/guardian and high school (if in session).

6. Special Variance Form: For a 16- or 17-year old high school student who wants or needs to work more than four hours a day or 20 hours per week (up to maximum 28 hours per week), a special variance form is available from the student's high school.

7. Position funding: Must pay at least minimum wage, currently $8.67/hour (effective January 1, 2010).

Employers must maintain employment records for three years after hiring a minor employee.

Civil and criminal penalties may be assessed for violations of state or federal child labor regulations. Under federal law, child labor violations by employers may be subject to a civil penalty up to $11,000 per minor worker.

If you have questions about employment of minor workers, please contact the Foster Pepper Employment and Labor Relations Practice Group.

In our post on May 10 covering best practices for using social media in the recruiting process, we shared guidelines for using social media in screening applicants as part of the hiring process. Among other tips, we suggested that each organization designate an employee or group of employees who would conduct the Internet search for additional information about the applicant’s work qualifications, interests and negative work history or behavior. That employee would cull through the publically-available information and then share only the relevant data with the hiring managers. We also noted that the employer could engage a third party service provider to perform the work.

One prominent vendor, Social Intelligence, searches social media sites such as Facebook and Twitter for negative information about candidates. The company is particularly keen to locate racist remarks or activities, sexually explicit photos or video, potentially violent tendencies, and demonstrations of illegal activity.

The US Federal Trade Commission has dropped its investigation into Social Intelligence’s business practices.  The FTC found no evidence that Social Intelligence violated the Fair Credit Reporting Act, the federal law that regulates third-party investigations.

Thus, despite blog criticisms of Social Intelligence’s activities as “scary” and “creepy,” employers may decide that third-party social media searches are preferable to asking HR employees to scour the net in search of disqualifying behavior.

NOTE: Foster Pepper does not endorse Social Intelligence or any other vendor. Employers should carefully investigate before engaging any third party to assist in the hiring process.

Seattle may join San Francisco, Milwaukee, and Washington D.C. as one of the few cities to require “paid sick and paid safe time” for all employees if a proposed ordinance passes later this summer.

The legislation, introduced by City Councilman Nick Licata, would require businesses to provide employees with “paid sick and safe time.” The ordinance would mandate paid leave “to take care of their own or their family members’ health needs or their own or family members’ safety or other needs resulting from domestic violence, sexual assault, or stalking.”

In its current form, the ordinance mandates the amount of leave based on the size of the business:

• Businesses with 1 – 49 full-time employees: Each employee must accrue at least 1 hour of paid time off for every 50 hours worked, for a maximum of 5 days (40 hours) off in a year;

• Businesses with 50 – 249 full-time employees: Each employee must accrue at least 1 hour of paid time off for every 35 hours worked, for a maximum of 7 days (56 hours) off in a year;

• Businesses with 250 or more full-time employees: Each employee must accrue at least 1 hour of paid time off for every 30 hours worked, for a maximum of 9 days (72 hours) off in a year;

• Businesses with 1,000 or more employees using paid time off (PTO), such as a plan that combines vacation and sick time: Employees must receive the equivalent of at least 1 hour for every 15 hours worked, with at least half the time available for paid sick time.

Any unused “paid sick and paid safe time” must be carried over to the following calendar year, but the carryover may not exceed the limits outlined above (5 days, 7 days, or 9 days).

Employers that already have a paid leave policy, such as a PTO policy, will not be required to provide additional paid sick and safe time leave, provided that the PTO policy may be used for the same purposes.

The accrual rates discussed above reflect changes made to the proposal after conferences with business owners around Seattle. The ordinance drafters also included other provisions intended to allow small business owners more flexibility, including:

• Allowing workers to swap shifts rather than take paid sick leave; and

• Implementing a waiting period before workers could start using their accrued paid time off. Employees would have to wait 180 days before using their paid leave if employed by a business with fewer than 250 employees. For larger businesses, employees would have only a 90 day waiting period before paid leave is available.

If the ordinance is implemented, businesses with fewer than 250 full-time employees would have one year to implement a compliant paid leave policy, while employers with 250 or more full-time employees would have only 180 days. Businesses opening or relocating to Seattle with fewer than 250 full-time employees would have two years to implement a compliant paid leave policy.

The measure remains controversial. As the Seattle Times reported, advocates of the ordinance say that it will improve public health by keeping sick employees and their children at home. Small business owners argue that the costs of the program could be staggering to businesses with a small profit margin and a large number of part-time workers.  The Seattle Chamber of Commerce is concerned that the legislative timeline is too short for the level of discussion needed to accurately assess the impact of the legislation.

For more information on the proposed ordinance and how it might affect your business, please contact Foster Pepper’s Employment and Labor Relations Practice Group.

Effective June 4, Seattle employers who intentionally fail to pay employees can face criminal charges. Ordinance No. 123596 added "wage theft" to the list of acts punishable as theft under the Seattle Municipal Code, and made wage theft a basis for revoking or denying a business license. In passing the Ordinance, the Seattle City Council found that "wage theft" is a growing national problem, particularly in low-wage industries, and that enforcement measures available under state law are often ineffective.

Under the revised Municipal Code, a person is guilty of theft if "he or she knowingly secures the performance of services by agreeing to provide compensation and, after the services are rendered, fails to make full and complete payment, with intent to avoid payment for services." The Code lists circumstances for a judge to consider in determining whether the employer had "intent to avoid payment for services." Evidence of an employer’s intent to avoid wage obligations may include failing to pay wages at an agreed-upon time, paying less than an agreed-upon amount, and paying wages with a bad check. A person convicted of wage theft faces a maximum fine of $5,000 and up to one year in jail.

The Ordinance also affected the availability of a business license. The Code now allows the City of Seattle to revoke or deny a business license based on a wage theft conviction within the last 10 years. The City may also revoke or deny a business license based on, within the last 10 years, a final judgment, or a final citation and notice of assessment from the Washington State Department of Labor and Industries, for violations of state wage laws if the employer did not timely satisfy the judgment or assessment. A revocation or denial on any of these grounds lasts at least one year. Thus a wage theft conviction, or failure to comply with state wage laws, may preclude a business from operating in Seattle for an extended period of time.

While the Ordinance imposes significant risks to Seattle employers, it does not create a direct remedy for employees. Employees seeking to recover wages (whether in or out of Seattle) remain confined to state law remedies. Washington employees with wage claims may seek relief in one of two ways:

• Employees may file a wage claim with the Washington State Department of Labor and Industries. Many wage claims are resolved each year through this "Workplace Rights Complaint" system, which allows for prompt and informal proceedings.
• Employees may file a lawsuit in court. In such cases, the employees often rely on RCW 49.52, which allows them to seek double damages, attorney fees and personal liability of responsible company officials. While the prospect of greater damages and fee awards may be attractive to some, the time for resolution can be long and the investment in time and attorneys’ fees can be considerable.

As a best practice, Washington employers (not just those located in Seattle) should carefully review their wage payment practices on a regular basis to ensure they are complying with federal, state and local wage payment laws. If you have any questions about this information, please contact the Foster Pepper Employment and Labor Relations Practice Group.

In response to the careless lending practices that led to the U.S. mortgage meltdown, Congress enacted the Secure and Fair Enforcement for Mortgage Licensing Act (the “SAFE Act”) on July 30, 2008. By mandating a nationwide registration system for residential “Mortgage Loan Originators,” the SAFE Act is intended to protect consumers and prevent fraud in the residential mortgage loan business. In August 2010, the federal agencies charged with implementing the SAFE Act released final regulations, and the initial registration period is currently under way. As of July 29, 2011, all Mortgage Loan Originators at federally-regulated financial institutions will be prohibited from originating residential mortgage loans without meeting the requirements of the SAFE Act.

Does the SAFE Act apply to your organization?

The SAFE Act applies if your company is a federally-regulated financial institution, and if you employ individuals working as residential Mortgage Loan Originators (“MLOs”).

What does the SAFE Act require?

The SAFE Act requires any employee of a federally-regulated financial institution who acts as a MLO to register with the Nationwide Mortgage Licensing System and Registry (the “Registry”), obtain a unique identification number from the Registry, and maintain such registration. MLOs who are not employed at federally-regulated financial institutions are subject to different requirements, but must also register with the Registry.

What is a Mortgage Loan Originator?

An MLO is an individual who both (1) takes a residential mortgage loan application, and (2) offers or negotiates the terms of a residential mortgage loan for compensation or gain. This definition does not include individuals who perform purely administrative tasks on behalf of a MLO, real estate brokers who are licensed under state law, or individuals involved in extensions of credit relating to timeshare plans.

What information must be supplied to the Registry?

The Registry requires MLOs to provide particular information and undergo a criminal background check. An MLO must provide his or her name, home address, work address, social security number, date and place of birth, and financial services-related employment history. An MLO’s fingerprints are also required. After all required information is verified and submitted, the Registry coordinates a criminal background check and notifies the employing financial institution of any adverse findings. The MLO will then be registered and will receive a unique identification number. Importantly, the Registry does not screen or approve registration applicants; that is the responsibility of the financial institution.

What are the obligations of the financial institution?

In addition to requiring MLOs to register in the Registry, the SAFE Act places certain obligations on the financial institutions themselves. The employing institutions must require MLOs to comply with the SAFE Act’s requirements of registering, obtaining a unique identification number, and maintaining registration. The institutions must also adopt and follow written policies and procedures designed to ensure compliance with the SAFE Act.

Conclusion

The SAFE Act imposes new requirements on financial institutions that employ MLOs. Such institutions must ensure that all MLOs are registered by July 29, 2011, and adopt procedures to maintain compliance with the SAFE Act. Financial institutions should familiarize themselves with the SAFE Act and applicable regulations to develop an implementation plan and ensure compliance.

If you have questions about the information in this posting please contact the Foster Pepper Employment and Labor Relations Practice Group or Financial Institutions Practice Group.

The federal Fair Labor Standards Act (FLSA) establishes complex regulations governing minimum wage and overtime pay. Like many other employment laws, FLSA has an anti-retaliation provision that forbids employers “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [FLSA].”

In a recent decision, Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court found that the term “filed any complaint” includes oral as well as written complaints, and thus clarifying that employees who make verbal complaints of federal wage and hour violations are protected against retaliation.

Kasten repeatedly complained that the company was violating FLSA through its placement of time clocks. According to Kasten, the location prevented workers from receiving pay for time spent putting on and taking off work clothes – in FLSA parlance, “donning and doffing.” Kasten was persistent, reporting his concerns to his lead operator, shift supervisor, and two HR employees. In each case, however, the complaints were verbal.

Kasten later was fired. In his lawsuit, he alleged that the company discharged him because of his complaints. The company disagreed. It explained that Kasten made no significant complaint about the time clock location and that it discharged him because he failed to punch in and out.

The lower courts did not try to reconcile the two accounts, ruling simply that FLSA does not protect oral complainants against retaliation. The Supreme Court disagreed, sending the case back to the trial court to determine whether the company had adequate notice of the complaints and whether the discharge was retaliatory or justified.

The Kasten decision offers two reminders for employers.

First, employers should not ignore or minimize complaints of alleged illegal or improper treatment of employees, whether based on FLSA or other laws. Instead, each complaint – written or oral, formal or informal – should be reported to HR, reduced to writing, and given careful consideration. Depending upon the circumstances, an internal investigation might be prudent. Naturally, the employer should create documentation showing its thoughtful and respectful consideration of the complaint.

Second, once it receives a complaint, the employer should carefully consider any discipline of the complainant in light of a possible retaliation lawsuit. If possible, the employer should have full documentation of the facts and of its justification for the decision, justification that is independent of the complaint.

The treatment of workplace complaints and the discipline of complaining employees present complex issues. Sound advice from an employment lawyer can help to lower the risk of a lawsuit.  If you have any questions about the information in this posting please contact the Foster Pepper Employment and Labor Relations Practice Group.

The U.S. Supreme Court recently issued a decision that will have a significant impact on public employers' compliance with the Freedom of Information Act ("FOIA"). In Milner v. Department of the Navy, the Court ruled that Navy maps showing ammunition stockpiles at Indian Island (near Port Townsend, Washington) could not be withheld from disclosure under Exemption 2 of FOIA, which allows a government entity to withhold records related to the internal personnel rules and practices of an agency.

While the parties disputed whether the release of the maps would threaten public safety, the crux of the case was whether Exemption 2 could be used to block the release of the type of documents in question. Over the years, "High 2" (as the exemption had become known) was used as a catchall exemption to allow government agencies to withhold even documents that had no connection with an agency’s personnel rules and practices.

The Supreme Court has rejected that practice (established over 30 years of federal caselaw and administrative opinions) and turned instead to the plain language of the rule. Writing for the Court, Justice Kagan stated that the past tolerance of the expansive "High 2" reading of the statute posed "the risk that FOIA would become less a disclosure than a 'withholding statute.'" As noted in the Milner case, Navy maps obviously have nothing to do with personnel matters.

The lesson for government entities is that FOIA exemptions are now more narrowly construed. Public employers should carefully consider whether documents requested under FOIA actually fit a particular FOIA exemption.

Some documents still may be withheld from disclosure under Exemption 2 as "personnel rules and internal practices," including the following:

• Hiring and firing records
• Discipline records
• Compensation and pension information
• Benefits records
• Vacations, hours of work and parking information
• Internal office phone number lists

The key is whether the documents concern the conditions of employment. If so, Exemption 2 still applies.

If you have any questions about the information in this posting please contact the Foster Pepper Employment and Labor Relations Practice Group.

The United States Supreme Court recently issued an opinion that may significantly increase employer liability for the actions of lower-level supervisors. In Staub v. Proctor Hospital, the Court upheld the “cat’s paw” theory of employer liability.  "Cat's paw" is a phrase derived from a La Fontaine fable, referring to a person used unwittingly by another to accomplish his own purposes.  Applied to employment law, the "cat's paw" theory holds employers liable for discrimination when managers with discriminatory motives influence – but do not make – the ultimate adverse employment decision. Although the case addressed rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court’s validation of the “cat’s paw” theory is likely to extend to many types of discrimination cases.

Factual Background

By way of background, USERRA forbids employers from denying “employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of a person’s membership or obligation to perform in a uniformed service. Employers violate USERRA if the person’s military service is a motivating factor in the employer’s action, unless the employer can prove the action would have been taken in the absence of such service.

Employee Victor Staub was a member of the United States Army Reserves while employed by the defendant, Proctor Hospital. According to Staub, his supervisors expressed hostility toward him based on his membership in the Army Reserves, telling co-workers covering for Staub’s shifts that his military service was a “strain on the department” and asking for help to “get rid of him.” In the midst of these alleged anti-military statements and actions attributed to his supervisors, Staub received a disciplinary warning for violating a supposedly non-existent company rule. Shortly thereafter, the supervisors requested that Human Resources terminate Staub.

The Vice President of HR reviewed Staub’s personnel file and decided to fire him. Although the Vice President had never expressed any anti-military animus, Staub alleged that the termination decision was unduly influenced by those who did harbor animosity about his military service. The employer claimed that HR’s review of the personnel file before discharge was enough to wipe away the effect of the prior discrimination.

The Supreme Court sided with the employee, holding that an employer can be held liable under USERRA for an adverse employment action even if the decision maker has no anti-military animus. The Court explained that an employer can be held liable for a lower-level supervisor’s antimilitary hostility, when a supervisor’s act is motivated by the hostility and where the supervisor’s act is intended to (and actually does) result in an adverse employment action.

The Court also rejected the hospital’s argument that its independent investigation eliminated the effects of the prior discrimination, noting that the views of the hostile supervisors remained a motivating factor in the termination. The Court noted, however, that if the investigation turned up reasons for termination or discipline that were unrelated to the supervisors’ original biased action, the employer would not be liable.

Open Questions

Staub left several open questions. First, it is still unsettled whether the cat’s paw theory will apply to discrimination cases under other statutes that prohibit discrimination based on sex, race, religion, national origin, age, disability or and other protected characteristics. The Court did compare USERRA to the anti-discrimination provisions of Title VII of the Civil Rights of 1964, suggesting that the cat’s paw theory would apply to other kinds of discrimination claims.

Second, Staub did not specify whether an employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that was intended to and did cause an adverse employment action. Although the Court expressed no opinion, the case is likely to be broadly applied, even to co-workers who are not supervisors.

Third, it is also unclear whether an employee is required to first utilize the employer’s grievance process to recover under USERRA.

Practical Steps To Minimize Exposure

The Staub decision means that employers are not immunized from their supervisors’ acts, even when decisions are made by a non-biased decision-maker and carefully investigated. So how can employers take steps to minimize their potential exposure?

• Train all supervisors about how to avoid prohibited discrimination, including under USERRA.

• Coach ultimate decision-makers not to reply on the personnel file alone. Decision-makers should conduct an independent, thorough investigation into the facts, before endorsing discipline or discharge decisions requested by supervisors. Employers should examine Human Resources staffing ratios and workloads to ensure Human Resources officials have the ability to fully investigate facts prior to termination.

• Take steps to address bias in lower-level employees. Although it is unclear whether an employer is liable for discriminatory acts committed by a co-worker, employers should promptly investigate and address discriminatory behavior on the part of lower-level employees.

• Establish an adequate internal grievance process for investigation and resolution of claims. Employers should ensure that an internal complaint procedure exists to allow and require employees to inform the employer of allegedly illegal bias in employment decisions.

• Consult legal counsel before making personnel decisions that may be based on discriminatory animus.

If you have any questions about the information in this posting please contact the Foster Pepper Employment and Labor Relations Practice Group.

March Madness is here. References to pools, brackets, and Cinderella are popping up during meetings and hallway conversations across the country. Chances are your employees are organizing co-worker NCAA Tournament pools, which typically involve predicting the outcome of tournament basketball games. Many office pools require a “buy in,” in which participants contribute a certain dollar amount to be divided among the victors at the end of the tournament.

As a savvy professional, you might wonder: are office pools legal in the Washington workplace?

The simple answer is no. Office pools with a monetary component are illegal. Gambling activities are illegal in Washington unless they are specifically authorized by state law. The state’s Gambling Act was passed in 1973 – several years before the rise of ESPN and extensive television coverage of the NCAA tournament. As a result, the only authorized sports pool in Washington is the 100 square sports pool board, which is limited to buy-in of $1 per square, must have 100 squares, must randomly assign game scores to each square, and may only be offered once per athletic event.

So will the vice squad be raiding the workplace if March Madness office pools continue? It’s not likely. Although NCAA pool participants could be subject to criminal charges, enforcement is unlikely if the monetary component is low. Unless your employees are high rollers, your workplace is unlikely to be featured as a crime scene in the local paper.

Successful pool participants should also remember that pool winnings are recognized as income for IRS reporting purposes. (Of course, the employer should not include prize money on the employee’s W-2.)

Putting aside the specter of prosecution, March Madness pools have been known to severely distract large portions of the employee population. With many games available via live webcast, corporate bandwidth capabilities may be strained as employees access streaming media.

At the same time, there are also benefits to the workplace. March Madness can increase worker morale, including positive interactions among employees as they discuss bracket selections and support their chosen teams. Some employers set up viewing parties in company break rooms to further engage employees.

So, as an employer, how do you balance the competing legal and employee relations issues? As a best practice, employers should not encourage or sponsor NCAA office pools where money changes hands. Office pools organized for bragging rights alone are the safest bet for Washington employers.

On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”).  These regulations, which took effect on January 10, 2011, provide guidance on GINA’s relatively young and untested prohibitions on discrimination in the workplace based on genetic information.  This article provides a brief overview of GINA and offers practical tips for employers to ensure compliance with its provisions. 

GINA Prohibits Discrimination on the Basis of Genetic Information

Congress enacted GINA in response to advances in the field of genetics.  Genetic testing can now help individuals determine whether they are predisposed to certain diseases or disorders.  The growing use of this type of technology raised concerns that health coverage providers and employers would consider this information in coverage or employment decisions, discouraging individuals from taking advantage of genetic testing. 

GINA addresses these concerns by prohibiting health coverage providers (Title I) and employers (Title II) from discriminating against individuals on the basis of genetic information.  In addition to generally prohibiting discrimination on this basis, Title II prohibits employers from requesting, requiring or purchasing genetic information, and places safeguards on an employer’s handling and disclosure of genetic information.  

 GINA Broadly Defines “Genetic Information”

At first blush, employers may not think that GINA affects their day-to-day practices.  Few employers obtain or require what is commonly thought of as genetic information.  However, GINA’s broad definition of “genetic information” includes more than just an individual’s genetic test results.  GINA’s definition also includes genetic tests of an individual’s family members, an individual’s family medical history, and an individual’s request for, or receipt of, genetic services or participation in clinical research that includes genetic services.  Therefore, GINA’s protections extend far beyond the ordinary meaning of genetic information.

Employee Protection Falls Into Three Categories – Discrimination, Acquisition, and Confidentiality

GINA provides three basic protections for employees.  First, GINA prohibits discrimination on the basis of genetic information.  Employers may not consider an employee’s genetic information in hiring, firing, promotion, compensation or other similar decisions.  GINA also prohibits employers from segregating or classifying employees on the basis of genetic information, and precludes retaliation based on an employee’s assertion of his or her rights under the statute.  Interestingly, GINA only protects employees from disparate treatment; it does provide a cause of action for employer practices that result in a disparate impact.

Second, GINA prohibits employers from requesting, requiring, or purchasing genetic information from employees or their family members.  Under the EEOC regulations, “requesting” includes activities such as Internet searches likely to reveal genetic information, actively listening to third-party conversations, searching an individual’s belongings for the purpose of obtaining genetic information, and requesting information about an individual’s health in a manner that is likely to reveal genetic information.  GINA provides several exceptions where the acquisition of genetic information does not violate the statute, including, but not limited to:

1.   Inadvertent Discovery:  An employer who inadvertently discovers genetic information does not violate GINA.  For example, a manager or supervisor who obtains genetic information during a casual conversation does not violate GINA, so long as the manager or supervisor does not probe for such information. 

Genetic information that an employer receives in response to a lawful request for medical information will not fall under this exception (i.e. will not be “inadvertent”) unless the employer directs the individual and/or health care provider from whom the information is requested not to provide genetic information, or the employer establishes that the request was not likely to result in the disclosure of genetic information.  To ensure that a medical request meets this requirement, the EEOC recommends adding the following “safe harbor” language in all requests for medical information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II  from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received  genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

The inclusion of this language in a lawful medical request ensures that any genetic information revealed in response to the request falls under the inadvertent discovery exception.

2.   Health or Wellness Programs:  Generally, genetic information that employees voluntarily provide in connection with a health or wellness program does not violate GINA.  To benefit from this exception, employers must follow specific procedures set out in the statute. 

3.   Family Medical Leave Act Leave Requests:  An employer’s request for family medical information to comply with the FMLA or equivalent state or local statutes does not violate GINA.

4.   Publicly Available Information:  An employer’s passive acquisition of genetic information from commercially and publicly available sources does not violate GINA.

Finally, GINA provides safeguards for the handling and disclosure of genetic information in an employer’s possession.  Employers must treat genetic information as confidential and keep written genetic information in medical files separate from personnel files.  Essentially, genetic information must be kept in the same way as other confidential medical records.  GINA also prohibits employers from disclosing genetic information to third parties except in limited circumstances, such as responding to court orders requiring the disclosure of genetic information.

Employers Should Take Proactive Steps to Comply with GINA

Employers should take the following steps to promote compliance with GINA:

1.   Train Managers and Supervisors:  Employers should provide supervisory employees with training on GINA’s provisions.  Managers and supervisors who do not understand the type of information protected by GINA or its limitations on acquiring genetic information may unknowingly inquire about or discover information protected by GINA, creating potential liability for the employer. 

2.   Update Policies and Procedures:  Employers should update their nondiscrimination policies to preclude discrimination on the basis of genetic information.  The policies should also specify that the employer will generally not require genetic information in connection with requests for medical information.

3.   Include “Safe Harbor” Language in Medical Forms:  Employers should include the EEOC’s “safe harbor” language in all medical requests to ensure that any genetic information revealed falls under the inadvertent discovery exception.    

4.  Update EEO Postings:  Employers should update their EEO postings to include GINA.  Employers may obtain a GINA supplement or complete posting with GINA here.

If you have questions about the information in this posting or your organization’s GINA compliance obligations, please feel free to contact the Foster Pepper Employment and Labor Relations Practice Group.

Does your organization have employees or independent contractor drivers subject to hours of service regulations?  If so, you should be aware of potential changes to the hours of service regulations.  The Federal Motor Carrier Safety Administration (FMCSA) has released a proposed rule amending the hours of service requirements for drivers of property-carrying commercial motor vehicles (CMVs).  

FMCSA’s proposed rule would make seven changes from current requirements:

1. Limit drivers to either 10 or 11 hours of driving time following a period of at least 10 consecutive hours off duty.  FMCSA currently favors a 10-hour limit, but its ultimate decision will include consideration of comments and any additional data received.
2. Limit the standard “driving window” to 14 hours, while allowing that number to be extended to 16 hours twice a week.
3. Actual duty time within the driving window would be limited to 13 hours.
4. Drivers would be permitted to drive only if 7 hours or less have passed since their last off-duty or sleeper-berth period of at least 30 minutes.
5. The 34- hour restart would be retained, subject to certain limits. The restart would have to include two periods between midnight and 6 a.m. and could be started no sooner than 168 hours (7 days) after the beginning of the previously designated restart.
6. The definition of “on duty” would be revised to allow some time spent in or on the CMV to be logged as off duty.
7. The oilfield operations exception would be revised to clarify the language on waiting time and to state that waiting time would not be included in the calculation of the driving window.

The formal public comment period runs through March 4, 2011.  The full text of the proposed rule changes, as well as information on how to submit public commentary, is available on the Agency’s website. 

If you have questions about the proposed rule change, or any other employment-related question, please contact the Foster Pepper Employment and Labor Relations Practice Group.