washington – Page 2

September Updates

September 10, 2018/0 Comments/in HR Alerts /by ManagEase

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This Short List addresses the following topics:

The DOL Created a New Department to Support Employer Compliance
OFCCP Staff Must Account for Federal Contractors’ Religious Freedoms
Federal Contractor Minimum Wage Increase for 2019
Sixth Circuit: FLSA Does Not Invalidate Arbitration Agreements
Eighth Circuit: USERRA Still Protects Employees Who Don’t Have Guaranteed Working Hours
Ninth Circuit: Employers Can Prohibit Future Employment With Their Company
California: Update to EDD Workplace Posting DE 1857A
Massachusetts: Railway Unemployment Insurance Act Preempts Statewide Sick Leave
New Jersey: New Bill Expands Ability to Claim Unemployment Insurance Benefits
New Jersey: State and Federal Authorities Pledge Stronger Enforcement Against Misclassification
New York City, NY: Anti-Sexual Harassment Poster and Fact Sheet Now Available
South Carolina: Pregnancy Accommodations Poster Now Available
Austin, Texas: The City’s Paid Sick Leave is On Hold – For Now
Seattle, WA: New Employer Obligations for Domestic Workers

Ninth Circuit: Fair Credit Reporting Act Pre-Adverse Action Notice Is a Procedural Requirement and Not an Actionable Right

August 6, 2018/0 Comments/in HR Alerts /by ManagEase

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Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees

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July 13, 2018

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In Dutta v. State Farm, the Ninth Circuit Court of Appeal stated that an employee did not have standing to sue a prospective employer for failing to comply with the pre-adverse action notice requirements under the Fair Credit Reporting Act (FCRA). The FCRA requires employers to give applicants notice before they take any adverse employment action based on the results of a consumer report (e.g., credit report). This requirement is meant to give the applicant an opportunity to contest or correct information in the credit report. After providing such pre-adverse action notice and certain timing requirements are met, an employer may then take the adverse action if it still intends to do so.

Seattle, WA: Seattle’s Paid Sick and Safe Rules Revised Again

July 6, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with Seattle, WA Employees

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July 1, 2018

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Seattle’s local paid sick leave ordinance has undergone yet another round of changes. When Washington passed a statewide paid sick and safe time (“PSST”) requirement last year, Seattle’s ordinance was amended to more closely align with state provisions. Now, an additional revision to the Administrative Rules governing PSST incorporates a few more important changes and deletions, with a new effective date of July 1, 2018. The below table contains select key revised or expunged rules:

Provision	Previous	Updated
Joint Employer Standard	When employees are sourced through a staffing agency, the staffing agency generally must meet PSST requirements, unless an agreement stating otherwise is in place.	Joint employers are responsible for compliance with the amended ordinance.
Calculating Pay Rate	Set forth normal hourly rate calculation in tandem with state regulations.	Revises part of a previous OLS proposal to include holiday pay, tips, and premium rates when calculating normal hourly compensation. Eliminates lost commissions from normal hourly compensation rate for exempt employees.
Occasional Employees	Employees typically based outside Seattle, who perform occasional work in Seattle totaling more than 240 hours in a calendar year, are covered under the ordinance.	Defines “typically based outside” Seattle to mean an employee who must work outside the city for more than 50% of work hours in a year. Additionally, employees are covered for every hour worked in Seattle if they are regularly scheduled to work in Seattle, even if scheduled infrequently or on a limited basis.
Accrual for Out-of-City Work	Work performed outside of Seattle is not covered under the law for accrual and usage purposes.	Eliminated from revised rules.
Incremental Usage	PSST must typically be taken either in one-hour increments or the smallest increment the employer’s normal timekeeping permits, whichever is smaller. Variance from this standard may be granted by the Department of Labor and Industries (“DOLI”).	The revised rules do not permit a variance issued by the DOLI for work performed in Seattle.
Leave Usage for Voluntary Scheduling	Employers may, but are not required to, permit PSST use during on-call or overtime hours employees elected to add to their schedule.	Employers are required to pay, and permit PSST use, for an hour that the employee is “scheduled to have worked.”
Verification of Documentation	Employers are prohibited from requiring documentation or verification of PSST use that unduly burdens, causes unreasonable expense, or exceeds privacy/verification requirements set by law. Employers may also seek documentation or verification for PSST of fewer than four consecutive days for clear instances or patterns of abuse.	A new framework is provided for employees to challenge employer’s request for verification or documentation of PSST use. Employers must split the cost of specific out-of-pocket medical expenses if the employee is not provided health insurance through the employer. Rule regarding employer’s ability to seek documentation in instances or patterns of abuse has been eliminated.
Posting Requirement	Employers must display a notice provided by the Office of Labor Standards (“OLS”).	The notice must meet the OLS’s specific requirements on size dimensions. The posting must be displayed, or provided individually if display is not possible, no later than when employment begins or within 30 days of an employee becoming covered during employment.
Leave Advancement	Employers may advance or “loan” leave time to employees prior to accrual.	Employers are required to provide written or electronic notice that the advanced amount at least equaled what the ordinance requires an employee to accrue by the end of the time period the advance was intended to cover.
Disciplinary Measures	Anti-retaliation protections do not prevent the employer from disciplining an employee where there is a clear instance or pattern of abuse.	Eliminated from revised rules.

The above amendments are primarily intended to incorporate state requirements. However, employers should still carefully review the revised rules and the potential impact on their operations.

Action Items

Review the text of the Administrative Rules here.
Have PSST policies updated to reflect amended rules.
Review payroll procedures to ensure PSST rates are appropriately calculated.
Review OLS poster requirements for compliance.
Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

July Updates

July 6, 2018/0 Comments/in HR Alerts /by ManagEase

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This Short List addresses the following topics:

California: Janitorial Employers Must Register with Labor Commissioner
New Hampshire Adds Gender Identity as a Protected Category
North Carolina Increases Hiring Opportunities for Individuals with a Criminal History
Texas: 5th Circuit Requires Employer Signature on Mutual Arbitration Agreements
Vermont Issues New Guidance on Marijuana in the Workplace
Washington, D.C. Approves Increased Minimum Wage for Tipped Workers
Washington Governor Fights SCOTUS Arbitration Class Action Waiver Ruling

Ninth Circuit: Tribal Casinos Must Obey NLRA

June 8, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, and WA Employees

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April 26, 2018

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According to the Ninth Circuit Court of Appeals, even self-governed tribal land must obey the provisions of the National Labor Relations Act (“NLRA”). In National Labor Relations Board v. Casino Pauma, the circuit court stated that the casino violated the NLRA by attempting to limit protected union activity.

Under the NLRA, employees have the right to engage in specified protected activities relating to improving or discussing working conditions, free of employer retaliation or adverse action. At Casino Pauma, operated by the Pauma Band of Mission Indians and located on the tribe’s reservation, a number of casino workers began distributing union leaflets to customers entering the casino. The employees were originally removed by security. When they attempted to distribute leaflets some weeks later, the employees were disciplined.

The NLRB filed a complaint on behalf of the employees. An administrative law judge found that the casino violated the NLRA by attempting to interfere with protected union activities, and the circuit court agreed, stating that the NLRA applies to tribal employers.

Action Items

Review the full text of the case here.
Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

Washington: Agricultural Workers Must be Paid Separate Piece-Rate and Hourly Rates

June 8, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with WA Employees in Agricultural Industry

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May 10, 2018

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In a narrow majority, the Washington Supreme Court recently stated that agricultural employees engaged in piece-rate work must also be compensated on a separate, hourly basis for tasks outside the scope of piece-rate work. This means that employers of agricultural employees will need to track and compensate employees at two different pay rates, depending on the work that the individual completes.

Ninth Circuit Overrules Itself: Prior Salary History Cannot Justify Wage Differential Between Men and Women

May 7, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with AL, AZ, CA, HI, ID, OR, MT, NV, and WA Employees

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April 9, 2018

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In April 2017, the Ninth Circuit previously confirmed that employers could consider an individual’s prior salary history when justifying a wage differential. Now, a year later, the circuit court has reversed its own decision, stating that prior salary history cannot be used to justify pay disparities prohibited by the federal Equal Pay Act.

Washington: Domestic Violence Leave Law Amended to Include Safety Accommodations

May 7, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with WA Employees

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June 7, 2018

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Washington’s existing Domestic Violence Leave law was recently amended to require employers to provide reasonable safety accommodations to employees who are victims of domestic violence, sexual assault, or stalking. Specifically, employers must consider an individual’s request for a reasonable safety accommodation, unless the accommodation causes an undue hardship on the business (defined as an action requiring significant difficulty or expense). Employers may require the individual to furnish verification that the employee and their covered family member is a victim of domestic violence, sexual assault, or stalking. The amendments provide a non-comprehensive list of potential safety accommodations, including:

Washington: New “Ban-the-Box” Law Prevents Pre-Qualification Criminal Inquiries

May 7, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with WA Employees

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June 7, 2018

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Effective June 7, 2018, the Washington Fair Chance Act (the “Act”) imposes new “ban-the-box” requirements on employers. Employers may not obtain information about an applicant’s criminal history before the employer has determined the applicant is otherwise qualified, among other new requirements. Additionally, employers may not advertise job postings in a way that automatically excludes individuals with criminal history from applying. However, employers may still solicit information about criminal history after making the determination that the individual is otherwise qualified for the position.

Washington: New Laws Prohibit Silencing of Sexual Harassment Claims

May 7, 2018/0 Comments/in HR Alerts /by ManagEase

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All Employers with WA Employees

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June 7, 2018

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Washington joins New York as one of the first states to enact new laws addressing confidentiality of workplace harassment and discrimination claims. A summary of these bills are included below.

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