Publications

SEBRIS BUSTO JAMES highlights key issues in labor and employment law in its monthly newsletter, Employment Law Notes. In addition, the firm publishes an in-depth survey of legal trends and developments in major labor and employment areas each year, in its Year in Review series.

The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves.
Many organizations are privy to holiday party legends – some good, some bad. As the holiday
season unfolds, companies throughout the Puget Sound region […]

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Seattle Issues Final Rules for City’s Minimum Wage Ordinance

On September 29, 2017, the Office of Labor Standards (“OLS”) for the City of Seattle published the final proposed revisions to the administrative rules for its Minimum Wage Ordinance, which, if approved, will take effect on January 1, 2018. These are rule revisions to Ordinance […]

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Washington State Approves Paid Family and Medical Leave Law

On July 5, 2017, Washington became the fifth state in the nation to approve a paid Family and Medical
Leave law. The new law, which takes effect on January 1, 2020, is one of the most generous in the
country and will apply to any person or business that employs at […]

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Employers Beware of Missed Meal Periods

Washington law is clear that employees working more than five hours must be allowed a 30-minute meal period, unless the employee chooses to waive the meal period. However, an employer’s responsibility for ensuring that employees actually take meal breaks has been less clear. Recently, the Washington Supreme Court […]

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Employer Immigration Law Compliance and the New Administration

The new administration made it clear that it is making immigration a priority and employers should expect stepped up enforcement of workplace immigration laws. Based on the administration’s indications, ICE audits will increase, new investigation officers will be hired, and enforcement in this area will get a lot of […]

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The Equal Pay Pendulum

Equal pay has been in the news of late, with marches and other efforts by advocates to raise public awareness of pay inequity between men and women in the workplace. These efforts have focused on strengthening the 1963 Equal Pay Act, which requires employers to pay men and women the same for equal work. Recent developments […]

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New Washington Case Law

Washington is known for having among the country’s strongest protections ensuring the payment of wages. When a company becomes insolvent, former employees will seek payment of their earned wages from the former company managers and […]

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Protecting Trade Secrets

Waymo is the self-driving car subsidiary of Google’s parent Alphabet Inc. On February 23, 2017, Waymo
filed a lawsuit in federal court in San Francisco, accusing Uber and two other companies of stealing its
trade secrets. The allegations in the […]

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Blacklisting Rule Nullified by Executive Order

On March 27, 2017, President Trump signed a measure under the Congressional Review Act as well as an Executive Order which set aside President Obama’s Executive Order 13673 requiring federal agencies to determine whether businesses seeking to perform federal contracts were […]

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WA Minimum Wage and Paid Sick Leave

In recent years, a wave of new laws has been seen in cities across the country increasing
the minimum wage for workers in each locality as well as requiring employers to provide
workers with paid sick leave. A number of cities […]

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The EEOC Issues Publications on Mental Health Conditions

Employers’ obligations under the Americans with Disabilities Act (ADA) are often confusing and vague. Last month, the Equal Employment Opportunity Commission (EEOC) issued two resource documents in Q&A format, which summarize the workplace rights of job applicants and employees who […]

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends – some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again […]

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Seattle City Council Passes Secure Scheduling Law

With a unanimous vote by the Seattle City Council on September 19, 2016, Seattle became the second major city in the country to mandate employer notices prior to changing employee schedules. Championed by organized labor and employee rights […]

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Class Action Waivers Take a Hit

By Judd Lees and Jillian Barron In a decision handed down on August 22, 2016, the Court of Appeals for the Ninth Circuit–the federal court with jurisdiction over Washington State–set aside an employment class-action waiver requiring employees to pursue employment claims exclusively through […]

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OSHA Takes Aim at Workplace Drug & Alcohol Testing

By Nate Bailey Many employers seek to protect their workers and themselves by taking reasonable steps to ensure that employees are not under the influence of drugs or alcohol while at work. Some, for instance, require drug and alcohol testing whenever there is a workplace […]

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NLRB Once Again Overrules Precedent to Expand its Reach Over Joint Employers

by Judd Lees and Nate Bailey In our October 2015 Employment Law Note, we discussed the National Labor Relations Board’s activism in expanding “joint employer” liability to the employer-subcontractor relationship in its Browning Ferris Industries decision. In that case, a recycling facility that used a subcontractor’s workers was found to be a joint employer with the […]

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Persuader Rule

by Judd Lees and Nate Bailey As we reported to you in our April 2016 Employment Law Note, the U. S. Department of Labor (DOL) finalized new regulations that will require employers and consultants to report and disclose direct or indirect communications that had an object to persuade employees with regard to union organizing, including […]

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DOL’s New Persuader Rule Has Major Consequences for Employers And . . . The New Seattle Workplace Poster

by Judd Lees and Nate Bailey The various labor-relations laws can seem like a minefield in which innocent conduct can lead to unfair-labor-practice charges and other adverse consequences for employers. The laws regulating union elections are particularly tricky, and well-intentioned employers rely heavily on competent labor counsel to help them comply with these complex laws […]

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Joint Employment Can Have Expensive Consequences for Unsuspecting Businesses

by Darren Feider and Nate Bailey During its waning hours, the Obama Administration has been busy issuing new regulations and administrative interpretations to accomplish administratively what it was unable to accomplish legislatively. An area of focus has been wage and hour law because of the Administration’s concerns about income inequality and its belief that workers […]

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Employers Beware: Obama’s Lame Duck Presidency and You

by Matt Lynch and Bob Sebris Introduction. No matter what your political persuasion, if you work as an executive or human resources manager in the United States, the next couple of years will be extremely volatile—and not in a good way. Even though there are only about sixteen months remaining in the Obama presidency, the […]

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Employers May Discipline for Threats of Violence Caused by a Disability

By Matt Lynch and Nate Bailey On July 28, the Ninth Circuit Court of Appeals held, in Mayo v. PCC Stucturals, Inc., that the Americans with Disabilities Act (ADA) does not protect employees who threaten to kill coworkers, even when the threats are caused by a disability. After several recent decisions holding that disability-caused misconduct […]

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Employers Need to Review Their Handbooks and Policies Now to Avoid NLRB Scrutiny

by Matthew W. Lynch The National Labor Relations Board (NLRB) has been busy rewriting the rules on union organizing, employee use of e-mails, NLRB jurisdiction and workplace investigations. These initiatives, along with others, weigh heavily in favor of unions and employees. Perhaps the most impactful document on employer day-to-day operations, however, came with the March […]

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EEOC Steps Up Scrutiny of Workplace Wellness Programs: What’s the Skinny?

As is commonly known, over the last several decades an epidemic of “lifestyle diseases” has developed in the United States. Certain unhealthy lifestyle activities—such as inactivity, poor nutrition, tobacco use, and frequent alcohol consumption—have caused a sharp increase in the prevalence of chronic disease, such as diabetes, heart disease, and chronic pulmonary conditions. Out of a direct concern for the impact of chronic disease on employee health and well-being—as well the cost of health care coverage and employee productivity—employers have increasingly begun implementing health promotion and disease prevention policies, commonly referred to as workplace “wellness programs.”

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Leave to Accommodate a Disability May Stretch Endlessly

The Americans with Disabilities Act (“ADA”) may require employers to allow disabled employees well more than six months of unpaid leave as a reasonable accommodation, according to a federal district court in western Washington. There is no doubt that unpaid leave beyond the three months guaranteed by the Family and Medical Leave Act (“FMLA”) can be a reasonable accommodation under the ADA. But the district court’s October 23 decision in Casteel v. Charter Commc’ns. Inc. suggests that such a reasonable accommodation might include unpaid leave of surprising length.

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The FMLA Helps Those Who Help Themselves: Employees May Decline the FMLA’s Protection

When employees take leave to care for their own or a family member’s serious medical condition, they are often entitled to the protection of the Family and Medical Leave Act (“FMLA” or “Act”). But what if an FMLA-eligible employee expressly declines to use FMLA leave? The Ninth Circuit recently answered that question in Escriba v. Foster Farms Poultry, Inc., 743 F.3d 1236 (9th Cir. 2014) and held that employees are free to decline FMLA leave, but if they do so they are not entitled to the protections of the Act.

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Employment Law Update: Summer 2014

This summer has been one of the warmest and sunniest in recent memory. But while the rest of the Northwest has been enjoying the weather, local courts have been busy deciding employment law issues. So as summer turns to fall, we reflect on four noteworthy cases decided by Washington courts and the Ninth Circuit.

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Washington Supreme Court’s Storti Decision: A Reminder to Check Your Employee Handbooks

Washington courts have long recognized that employee handbook provisions may form the basis for unilateral contracts between employers and employees. The Washington Supreme Court’s recent decision in Storti v. Univ. of Wash., No. 88323-8, 2014 Wash. LEXIS 570 (2014) serves as an important reminder for employers to pay close attention when drafting employee handbooks, and also offers valuable guidance on how, if necessary, employers can preserve the right to modify handbook language construed as a promise.

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Arbitration Agreements Can Protect Employers from Class-Action Litigation

Arbitration provides an alternative to the expense of formal litigation, but in January 2012, the National Labor Relations Board (“NLRB”) appeared to limit the efficacy of employment arbitration agreements when it held that arbitration agreements containing class-action waivers violate the National Labor Relations Act (“NLRA”). D.R. Horton Inc. & Cuda, 357 N.L.R.B. No. 184 (2012). In labor and employment litigation, class-action lawsuits give employees tremendous leverage by exponentially increasing the risk of employer liability and the cost of litigation.

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“Employers Must Accommodate Religious Beliefs,” Says Washington Supreme Court

The Washington Supreme Court recently announced that the Washington Law Against Discrimination (WLAD) requires employers to accommodate employees’ religious beliefs. The Court’s recent decision in Kumar v. Gate Gourmet, Inc. marked the first time Washington’s high court has directly considered whether the WLAD requires employers to make religious accommodations. The Court’s May 22, 2014 ruling is a significant change for employers because it overturned a 2012 court of appeals decision, which had held that the WLAD imposed no such duty.

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Controversial NLRB Representation Rules Reemerging: Union Organizing Promotion Redux—The Obama “Labor Board” Doing Everything It Can to Advance Union Representation Cases

The National Labor Relations Board (“NLRB” or “Board”) is once again racing down the road of major regulation changes regarding union organizing/representation election cases. Continuing political efforts to help the Labor movement slow the downslide of union representation in America, the Obama Board in February 2014 reissued its controversial 2011 regulation changes. Those regulations had been overturned by federal court decisions in 2012-2013 related to administrative procedure errors by the Board.

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Washington Supreme Court Limits the Non-Profit Religious Organization Exemption from the Law Against Discrimination

In February, the Washington Supreme Court issued a landmark decision limiting the scope of the non-profit religious organization exemption from the Washington Law Against Discrimination (WLAD). The Court, in Ockletree v. Franciscan Health Sys., held that the exclusion of non-profit religious organizations from the definition of “employer” was unconstitutional as applied to discrimination that was unrelated to the organization’s religious purpose.

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To Screen or Not to Screen: Navigating the Muddy Waters of the EEOC’s Criminal Background Check Guidance

Since its issuance in 2012, the United States Equal Employment Opportunity Commission’s (“EEOC” or “Commission”) guidance on the use of criminal records in hiring has been a source of confusion and criticism from employers and the legal community alike. In 2013, the attorneys general of nine states sent a letter to the Commission challenging the EEOC guidance and urging it to withdraw two lawsuits it had initiated enforcing its stance against two employers’ use of bright-line criminal background checks in the hiring process. In direct response to the attorneys generals’ challenge, the Commission recently issued additional informal guidance providing further clarification of what it views as an employer’s legal obligation when using criminal history information to make hiring decisions.

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ICE: Is Your Business Prepared for a Silent Raid?

Immigration reform has been on the government’s radar for some time, and 2014 promises to be no different. Over the past four years, U.S. Immigration and Customs Enforcement (ICE) has audited the I-9 employment records of over 10,000 employers and imposed more than $100 million in fines. In September 2013, ICE notified another 1,000 employers that it would be conducting I-9 compliance and worksite enforcement audits. This new wave of “silent raids” is the largest round of I-9 inspections since 2009.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

read more

Union Organizing Campaigns for a New Age

Over the past 30 years, the labor movement in the United States has steadily declined. Union membership rates have plummeted from 20.1 percent to just 11.3 percent. With membership at historic lows, unions are turning to new organizing strategies in an attempt to stay relevant to the working class.

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The Horror! A Spooktacular Employment Law Update

Autumn is upon us. In Washington, that means we are busy savoring our pumpkin spice lattes and enjoying the last few days of sunshine. This is also the time of year when some of us carve pumpkins and tell scary stories as the Halloween holiday approaches. To celebrate the season, we bring you this light-hearted update on cases sure to strike fear in the heart of unions and employers. Read on if you dare!

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The EEOC Ramps Up Enforcement of GINA

The Genetic Information Nondiscrimination Act (GINA) governs how employers may acquire and use employee genetic information. Since GINA became effective in 2009, there has been little enforcement of GINA and therefore little guidance on employer responsibilities under GINA. In May, however, the Equal Employment Opportunity Commission (EEOC) began actively enforcing GINA. The EEOC’s recent enforcement activity serves as a reminder that employers must proactively ensure that their practices comply with GINA.

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Supreme Court Delivers Two Late Term Victories to Employers

Employers who lately have felt under siege by federal and state enforcement agencies can take comfort in two recent decisions by the United States Supreme Court. In University of Texas Southwestern Medical Center v. Nassar, a narrow Court majority held retaliation claims under Title VII to a stricter standard of proof than standard discrimination claims. In Vance v. Ball State University, the same majority narrowly defined “supervisor” for purposes of establishing an employer’s vicarious, or strict, liability for harassment. Both decisions will make it more difficult for employees to establish claims of employment discrimination under federal law.

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After DOMA: Next Steps for Employers

The U. S. Supreme Court’s June 26, 2013 ruling in United States v. Windsor that invalidated section 3 of the federal Defense of Marriage Act (DOMA) will require employers to take action now to ensure compliance with various federal employment laws. Unfortunately, the decision also raises questions regarding the scope of the Supreme Court’s decision, and how federal agencies will react to the court’s ruling.

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Seattle Criminal Background Ordinance

On June 10, 2013, the Seattle City Council unanimously approved an ordinance restricting employers’ ability to access public records and conduct criminal background checks on potential employees. The ordinance will take effect on November 1, 2013 if approved by Mayor Mike McGinn, which is expected. Under the ordinance—which covers all private employers with one or more employees and applies to positions requiring at least 50 percent of working time within the Seattle city limits—employers are no longer able to inquire about a potential employee’s criminal history or to conduct a background check until a conditional offer of employment is given.

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The EEOC Provides ADA Guidance on Specific Conditions

The Equal Employment Opportunity Commission (EEOC) recently issued four new “Question and Answer” documents that address how the Americans with Disabilities Act of 1990 (ADA) relates specifically to diabetes, epilepsy, intellectual disabilities, and cancer. These documents provide clear answers to common employer questions about hiring and accommodating employees with one or more of these conditions. They also offer various concrete examples showing how to apply the ADA to specific scenarios.

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Social Media Law Update

Social media in the workplace has been a “hot” issue for several years, and there are no signs of a slowdown for this controversial topic. In fact, recent National Labor Relations Board (“NLRB”) decisions and the Washington State social media privacy bill show that employee use of social media is presenting more complicated issues than ever.

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Retaliation Claims: Recent Cases Are a Reminder of Their Broad Scope

My employer retaliated against me because: I complained about sexual harassment; I reported a supervisor’s discriminatory treatment of my coworkers; I provided negative information about a manager during an investigation of alleged discrimination. Retaliation claims have become more numerous and can be more difficult to dismiss on summary judgment than claims based on the discrimination out of which the retaliation allegedly arises.

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Use of Updated Form I-9 is Now Required

In a notice issued March 7, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced that employers should begin using a revised version of the I-9 employment eligibility verification form immediately.

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New FMLA Rule In Effect on March 8

In early February, the U.S. Department of Labor (DOL) issued a new final rule on the Family and Medical Leave Act (FMLA). The new rule relaxes the requirements for obtaining military “qualifying exigency” leave or “military caregiver” leave, addresses disclosure of family history for FMLA purposes under the Genetic Information Nondiscrimination Act (GINA), describes what minimum increment to use for intermittent leave, and contains provisions for members of airline flight crews. The DOL has also made revisions to its FMLA forms and poster, which go into effect March 8, 2013. The following paragraphs summarize these changes.

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Obama’s National Labor Relations Board Recess Appointments Deemed Unconstitutional: How Board Precedent and Employer Practices May Be Impacted

On January 4, 2012, President Obama appointed three individuals to the National Labor Relations Board (“NLRB” or “Board”) while the United States Senate was not in session. The President claimed he had the power to make such appointments without the “advice and consent” of the Senate under the United States Constitution’s Recess Appointments clause. Since then, the Board has issued a number of controversial decisions concerning, among other subjects, social media and employer confidentiality rules. Many of these notable opinions have had a great impact on employer policies and practice, as detailed in prior Sebris Busto James monthly Employment Law Notes.

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Four More Years! Labor & Employment Law Scrutiny & Enforcement Will Grow!

No “winds of change” swept over us during the November 2012 elections. To the contrary, the results in Washington, D.C. and Olympia reinforced current politics in our nation’s capitol and our statehouse. By maintaining Democrat control in the Governor’s mansion and the legislature, and by reelecting President Barack Obama, our electorate has endorsed the current power dynamics. The impact on the workplace—labor and employment law matters—may not just mean “more of the same.” Instead, employers will have to gird themselves for “much more of the same.”

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Initiative 502: Marijuana Goes Mainstream, but Not in the Workplace

Today is the day Washington’s voter-approved Initiative 502 (“I-502”) goes into effect, which decriminalizes certain cultivation, sale, possession, and use of marijuana. It is clear that I-502 will drastically impact law enforcement in Washington State where marijuana use is concerned. I-502 also authorizes the Washington State Liquor Control Board to regulate and tax marijuana, thereby requiring the creation and implementation of new tightly-regulated and licensed systems (similar to those used to control alcohol). Despite all these changes, employers may happily take note of one area that I-502 does not touch: the workplace.

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Washington Supreme Court Holds That Employees May be Entitled to Overtime Compensation For Missed Rest Periods

The Washington Minimum Wage Act (MWA) unequivocally requires employers to pay non-exempt employees overtime for all hours worked in excess of 40 hours in each workweek. Regulations issued by the Washington State Department of Labor and Industries (L&I Rest Period Regulation) are equally clear that employers must provide non-exempt employees with a paid 10-minute rest break for every four-hour period worked. Under such standards, an employer may likely believe that it has satisfied its legal obligations in circumstances where an employee misses a rest period during his or her scheduled 40-hour workweek yet is provided additional compensation for that time at his or her regular hourly rate. Not necessarily, says the Washington State Supreme Court.

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The Corporate Survival Guide to Holiday Parties

The holiday season is just around the corner, and organizations throughout Washington are once again preparing to celebrate the holidays with their employees. Many organizations are privy to holiday party legends—some good, some bad, and some that will live forever on Facebook. Whether your company-sponsored event is at the office or at an outside location, the company may be liable for the behavior of its employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

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Courts Clarify Methods for Determining Exempt Status & Calculating Overtime

A recent decision by the Washington Court of Appeals clarifies two tests that are often misunderstood and misapplied by employers. In Fiore v. Ppg Indus., 2012 Wash. App. LEXIS 1556 (Div. I 2012), the Washington Court of Appeals considered the test for applying the administrative exemption test under Washington’s Minimum Wage Act (“MWA”). It also reviewed the test for calculating overtime when a non-exempt employee is paid a salary. Although the decision turned out badly for employer PPG Industries (PPG), the Court’s decision provides guidance for employers seeking to avoid costly overtime suits.

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U.S. Department of Labor Issues FMLA Guide for Employees

The Family and Medical Leave Act (“FMLA” or “Act”) provides eligible employees with up to 12 weeks of leave per year and, except in specified circumstances, guarantees employees reinstatement to their same or equivalent position upon return from leave. As anyone who has dealt with the Act is well aware, the FMLA is complex to administer and can be confusing both to employers and employees alike. In an effort to offer compliance assistance, the U.S. Department of Labor (“DOL”) from time to time issues guidance addressing and clarifying appropriate application of the FMLA.

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EEOC Issues Guidance Addressing Employer Use of Criminal Background Checks

Employers conduct background checks on current and prospective employees for many valid reasons. Background checks can be a useful tool for promoting productive business operations, weeding out workers who may threaten the workforce, preventing employee theft, protecting vulnerable business clients, and avoiding negligent hiring lawsuits. Under decades-old guidance, the U.S. Equal Employment Opportunity Commission’s (EEOC) position is that employer reliance on criminal background information for employment decisions may have an unlawful adverse impact based on race.

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Seattle Office For Civil Rights Pub lishes Revised Administrative Rules For City of Seattle Paid Sick/Safe Time Ordinance

The clock is ticking toward September 1, 2012, the date on which Seattle’s Paid Sick and Safe Leave Ordinance (“the Ordinance”) will go into effect. Every employer that has employees who spend any time in Seattle should take notice. The Seattle Office for Civil Rights, the administrative body charged with overseeing and enforcing the Ordinance, recently released amended proposed administrative rules that cover aspects of the Ordinance’s implementation, such as how sick time will accrue, notice requirements for employers, notice requirements for employees, and employee documentation.

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Social Media Policies: Do’s and Don’ts

In the past few years, social media technologies have emerged as double-edged swords in the workplace. In the right hands, such technologies can provide unprecedented marketing and growth opportunities. In the wrong hands, they can create embarrassment and liability for an employer. To protect their interests, employers have implemented policies addressing, and sometimes restricting, employee use of social media.

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To Return an Employee to Work, or Not? Details and Dilemmas at the End of Medical-Disability Leave, and When Leave Seems to Never End

Although most employers are sympathetic to their employees’ medical difficulties and generally are aware of the obligation to provide medical and disability leave under some circumstances, they may not realize the full scope of their obligations in this tricky area. When facing difficult return-to-work situations at the end of FMLA leave, compliance with the FMLA’s technical rules can be critical to avoiding potential liability. And the FMLA is not the end of the story—the ADA and state disability law may require extended leave even when FMLA eligibility does not exist or has been exhausted.

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Prepare for the Worst: How Employment Audits Can Protect Your Organization

In the past few years, federal and state agencies have increased enforcement efforts through investigations and inspections. Now, most businesses can expect to be visited by a government agency at some point during their existence. These visits often occur because the organization was selected for an audit, either at random or in response to a specific employee complaint. Agencies such as the Equal Employment Opportunity Commission (EEOC) may also ask for documentation of personnel policies and practices in the course of investigating a discrimination charge.

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Micro Units: Recent NLRB Opinions Prove They Aren’t Just for Health Care Anymore.

In August of 2011, the National Labor Relations Board issued its controversial decision in Specialty Healthcare and Rehabilitation Center of Mobile, 356 NLRB 56 (Aug. 26, 2011), overruling 20 years of Board precedent and imposing a new approach for determining what constitutes an appropriate bargaining unit in non-acute health care facilities. There, the Board announced that it would apply the “community of interest” test to non-acute care settings, such as nursing homes. As a result, the Board allowed certification of a bargaining unit comprised of 53 certified nursing assistants who had similar “training, certification, supervision, uniforms, pay rates, work assignments, shifts and work areas,” and that excluded 33 other non-supervisory personnel. Under Specialty Healthcare, the Board gives extreme deference to a union’s petitioned-for bargaining unit.

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EEOC Discrimination Charges and Monetary Relief Obtained Hit Record Highs in 2011

The EEOC measures its success by numbers, and according to its annual report, 2011 was a record year. The agency received a record 99,947 charges of discrimination in fiscal year 2011, the highest number of charges in the agency’s 46-year history. It also received more than $364 million in monetary benefits, also the highest level ever obtained. The agency’s private sector mediation program also obtained a record level of monetary benefits: more than $170 million.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

read more

Risk Management in the New Year: Assessing The Preventative Health of Your Employment Policies and Practices

In the recent economic downturn, employment litigation has swelled and union organizing is on the rise. In the face of such risks and challenges, you can effectively manage your own destiny through well crafted and consistently applied employment policies and practices. As this year comes to a close and a new one approaches, now is the time for a thorough checkup and healthy dose of preventative medicine. The following are key focus areas for review that may prove invaluable in reducing the risk of lawsuits and avoiding employee morale problems that can lead to successful union organization.

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National Labor Relations Board Update: Board Reverses or “Clarifies” Several of Its Prior Decisions

The National Labor Relations Board (the “Board”) has issued a number of recent noteworthy opinions either overturning prior Board decisions or clarifying longstanding Board rules. Specifically, in recent months, the Board has: (1) allowed the formation of so-called “micro-units”; (2) revived the successor bar doctrine; (3) eliminated the early opportunity for employees to decertify a voluntarily-recognized union; and (4) limited an employer’s ability to unilaterally enact workplace rules without first engaging in bargaining. These developments are a major victories for organized labor and are likely not the last ones labor will receive from the Obama Board.

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National Labor Relations Board Issues Final Rule Requiring Private Sector Employers to Post Notices of Employee Rights

On August 25, 2011, the National Labor Relations Board (“NLRB” or “Board”) issued its final rule requiring private sector employers subject to the National Labor Relations Act (“NLRA” or “Act”) to post notices informing employees of their rights under the NLRA. The NLRB’s asserted authority to issue such a rule has already been challenged by proposed legislation introduced by Rep. Benjamin Quayle (R-AZ) on September 2 seeking the rule’s repeal. Shortly thereafter, two lawsuits were filed in federal court challenging the legality of the new rule.

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Not All Employee Posts Online Are Protected Under the National Labor Relations Act

Our December 2010 Employment Law Note discussed several charges that had been brought by the National Labor Relations Board (“NLRB”) against employers for maintaining social media policies the NLRB believed infringed on protected rights. Specifically, under the National Labor Relations Act (“NLRA”), which applies to union and non-union employers alike, employers are prohibited from taking adverse action against employees for engaging in “protected concerted activity,” including activities for the “mutual aid or protection” of fellow employees.

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Reefer Madness: What Employers Need to Know About Medical Marijuana and Drug Testing Under Washington Law

In 1998, Washington voters approved the Medical Use of Marijuana Act (“MUMA”). MUMA provides a defense from criminal prosecution for physicians who prescribe medical marijuana and for patients who use prescribed medical marijuana. MUMA’s only reference to “employment” as the law was originally drafted, stated: “Nothing in this chapter requires any accommodation of any medical marijuana use in any place of employment . . . .” In 2007, the Washington legislature amended MUMA, clarifying that nothing in the law required “accommodation of any on-sitemedical use of marijuana in any place of employment . . . .” The legislature’s amendment opened the door to a claim that MUMA was intended to accommodate off-site use of medical marijuana that did not impact an employee’s job performance—or at least that was the argument heard recently by Washington’s Supreme Court.

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Put on ICE: Protecting Your Organization from Increased Immigration and Customs Enforcement

U.S. Immigration and Customs Enforcement (“ICE”) is the investigative arm of the U.S. Department of Homeland Security. Its primary mission is to enforce federal laws governing border control, customs, trade and immigration. Created in 2003, ICE is a relatively new agency but is also one of the largest, with more than 20,000 employees in offices in all 50 states and 48 foreign countries, and an annual budget of more than $5.7 billion.

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NLRB Issues Complaint Against Boeing For South Carolina Expansion

In 2009, Boeing, Inc. decided to complement its production lines in Washington State with a new assembly plant near Charleston, South Carolina. The second line, scheduled to open this summer, will focus primarily on assembly of the 787 Dreamliner. Boeing plans to produce three 787 planes per month at the South Carolina facility, while producing seven planes per month at its Puget Sound facility. Boeing recently reported that construction of the South Carolina facility is nearly complete and that the company has hired more than 1,000 new workers to work the assembly line.

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Reasonable Accomodation: How Far Must a Washington Employer Go?

Washington’s Law Against Discrimination (“WLAD”), RCW 49.60, prohibits discrimination against people for a variety of reasons, including physical and mental disability. Under the WLAD, an employee qualifies for reasonable accommodation if the employee’s impairment is known by the employer or shown through an interactive process to exist and, (a) he or she has an impairment that substantially limits his or her ability to perform the job; or (b) the employer has notice of the impairment and medical documentation establishes a likelihood that engaging in work without an accommodation would aggravate the impairment so that it would create a substantially limiting effect.

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Title VII Anti-Retaliation Protection Extended to Third Parties

The Equal Employment Opportunity Commission (EEOC) recently reported that retaliation (under all the statutes it oversees) became the allegation most frequently asserted in EEOC charges in 2010. Retaliation claims made up more than 36 percent of all claims filed. Thus it is critical for employers to stay abreast of the ever-expanding reach of potential retaliation claims.

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U.S. Department of Labor Emphasizes Enforcement of Fair Labor Standards Act Classifications: Are Your Employees Correctly Classified?

As employers are acutely aware, properly classifying employees under the federal Fair Labor Standards Act (“FLSA”) presents many challenges. Exempt categories are numerous and complex and may inadvertently be jeopardized when seemingly unrelated employment actions are taken (such as payroll deductions). Determining whether to classify an individual as an “employee” or “independent contractor” requires an intense fact-specific analysis of up to 20 different factors established by different government agencies.

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“GINA” Comes of Age: New Regulations Clarify (and Expand on) the Requirements of The Genetic Information Non-Discrimination Act

More than two years after enactment of the Genetic Information Non-Discrimination Act (“GINA” or “Act”), the Act’s impact is still not widely understood. Passed in May 2008 and effective with respect to employment practices in November 2009, GINA prohibits employers, employment agencies, and labor organizations from acquiring employees’ “genetic information,” except under limited circumstances, and from discriminating based on such information in general. Complying with those restrictions may sound simple. Without delving into GINA’s specifics, however, it would be easy to miss the full scope of the Act’s requirements.

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Employers Face New Challenges From Employee Use of Social Media

Emerging social media technologies like Twitter and Facebook are putting a new spin on familiar employment problems. As employees increasingly access social media, employers have become more interested in regulating and monitoring what their employees are saying online, and for good reason. Employers learned in the era of blogging that the online activities of their employees can lead to public relations nightmares, or even employer liability. Unfortunately, monitoring an employee’s online activities can also easily land an employer in hot water.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

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Ninth Circuit Approves of Preemptive Fitness For Duty Exams, In Some Circumstances

Under the Americans with Disabilities Act (the “ADA”), it is illegal to require an employee to undergo a medical examination to determine whether the employee is disabled, unless the examination is both job-related and consistent with business necessity. The Ninth Circuit Court of Appeals has repeatedly emphasized that the business necessity standard is “quite high” and should not be confused with “mere expediency.” As a result, whether and when an employer can send an employee for a fitness for duty exam (“FFDE”) can be a difficult question. This question is even more complicated when an employer is concerned about an employee’s ability to perform his/her job, but has not yet gathered objective evidence of declining performance, such as negative performance reviews.

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US Department of Labor Expands FMLA Definition of “Son or Daughter”

The federal Family and Medical Leave Act (“FMLA”) permits eligible employees to take up to twelve work weeks of unpaid leave for specified family and medical reasons. These reasons include caring for a child with a serious health condition or for bonding following the birth or adoption of a son or daughter (hereafter, “to care for a child”). 29 U.S.C. § 2612(a)(1)(A)-(C). The current definition of “son or daughter” includes a biological, adopted, or foster child, a stepchild, a legal ward, or the child of a person standing “in loco parentis,” i.e., in the place of a biological parent.

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Monitoring Employee Use of Email and Other Electronic Communications

The use of mobile electronic devices such as Blackberries and iPhones has become so commonplace that one can hardly imagine a world without 24/7 connectivity. As common as these technologies have become, however, it was only in June 2010 that the U.S. Supreme Court had its first opportunity to examine a workplace policy allowing an employer to monitor employee electronic communications. In City of Ontario v. Quon the Court upheld a city’s search of a SWAT officer’s text messages for compliance with its electronic communications policy.

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Minimizing the Risks of Independent Contractor Misclassification

Federal and state legislators and government agencies are increasingly cracking down on misclassifications of employees as independent contractors. Misclassification may be on the rise because employers must generally withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment and workers’ compensation premiums based on wages paid to an employee. Employers generally do not have to withhold or pay any taxes on payments to independent contractors, making independent contractors an attractive option in challenging economic times.

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Interns, Volunteers, or Employees? Employers Need to Be Sure They Aren’t Getting Too Much of a Good Thing

The economic climate in the past few years has resulted in a glut of students, recent graduates, and even seasoned workers vying for unpaid internships and volunteer opportunities that will provide experience and possibly lead to a paid position in a field of their choice. Although this may appear to be a boon for employers, the parameters for unpaid internships and volunteer positions must be met, or the individuals involved may be deemed employees entitled to minimum wages and overtime, as well as basic benefits such as workers’ compensation and unemployment coverage.

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Don & Doff — On and Off: Wage and Hour Compliance

Employers continue to confront an increasing number of wage and hour lawsuits with the attendant risk of liability for unpaid wages and overtime, liquidated damages, and attorneys’ fees. Lawsuits often include claims for compensation for time spent before and after a shift “donning” and “doffing” specialized clothing or equipment. In the recent case of Bamonte v. City of Mesa, 2010 U.S. App. LEXIS 6188 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Circuit gave a rare win for employers when it ruled that police officers were not entitled to be compensated for time donning and doffing their uniforms and police equipment.

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The Rising Tide of Pay Discrimination Claims

A little more than one year ago, and just a few days after the presidential inauguration, President Obama signed into law his first piece of legislation, the Lilly Ledbetter Fair Pay Act of 2009 (H.R. 11). The Lilly Ledbetter Fair Pay Act expressly overturned the U.S. Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. It extended the time for employees to bring pay discrimination claims under the federal anti-discrimination laws by treating each paycheck issued after an alleged discriminatory decision affecting compensation as a new, independent violation.

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Electronic Communications and Social Media: Managing Employer Risks with Clear Policies

For many of us, it is hard to remember a time when conducting our work duties did not involve extensive use of email communications and the internet. For this reason, most employers long ago recognized the need to implement email and internet use policies for their employees. Nonetheless, internet use has rapidly changed as a result of the proliferation of interactive social media, with sites like Facebook, Linkedin, and Twitter. When employees engage in such internet social networking, the line between workplace and personal conduct can be easily blurred.

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Employers’ New Years Resolutions

During this past year, there were significant changes to employment laws. As we begin the New Year, a good resolution for employers is to review and update their employee handbooks and employment policies to address these new legal obligations and rights.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

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The Limits of Protected Concerted Activity: Briggs v. Nova Services

Although the doctrine of employment at will is still recognized under Washington law, court decisions over the years have significantly eroded employers’ right to terminate an employee for “good reason, bad reason or no reason.” The Washington Supreme Court recently handed Washington employers a rare victory in the case of Briggs v. Nova Services. The Court refused to recognize a claim of wrongful discharge in violation of public policy based on the terminations of employees that resulted from their efforts to have their superior discharged.

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U.S. Supreme Court Provides Employers Guidance on How to Avoid Disparate Impact and Disparate Treatment Claims

On June 29, 2009, the United States Supreme Court issued its ruling in Ricci v. DeStefano, the “White Firefighter” case that involved dueling discrimination claims arising from a fire department’s promotion practices. And, while the case was somewhat of a dud in Judge Sonia Sotomajor’s confirmation hearings, it provides employers further guidance on how to evaluate problems that may arise in using objective data in personnel practices.

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U.S. Supreme Court Heightens Plaintiffs’ Standard of Proof In Age Discrimination Claims

The United States Supreme Court recently issued an opinion in Gross v. FBL Financial Services, Inc. that greatly enhances the standard of proof plaintiffs must satisfy when asserting age discrimination actions under the Age Discrimination in Employment Act (“ADEA”). In Gross, the court held that, unlike in Title VII discrimination cases, a plaintiff asserting an ADEA claim must prove his or her protected characteristic was the determinative factor for the employer’s adverse action (as opposed to just one factor among many under a “mixed-motives” theory). For this reason, plaintiffs asserting discrimination claims under the ADEA now bear a much greater burden than do those asserting Title VII discrimination claims.

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The Expansion of Washington State’s Domestic Partnership Law

On May 18, 2009, Governor Christine Gregoire signed SB 5688 into law. SB 5688, or the so-called “everything but marriage” law, represents the latest step in the incremental approach the Washington state legislature has taken to the issues of domestic partnership rights and same-sex marriage.

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The Latest in Retaliation Law: The Supreme Court Confirms The Breadth of Employee Protected Activity

As many employers are aware, retaliation claims now comprise one of the largest sources of litigation and potential liability arising out of the workplace. In a recent decision, the U.S. Supreme Court confirmed that federal law broadly protects employees who “oppose” discriminatory conduct. The Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee clarifies one area of retaliation law and provides an opportunity to review other aspects of the law so as to minimize the chances of future retaliation claims.

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Arbitration Trend for Statutory Claims Grows: Supreme Court Gives the Green Light for Employers and Unions to Arbitrate Statutory Discrimination Claims

Since the early 1990’s, arbitration has been viewed by the courts as an option available to the parties in lieu of civil litigation for statutory discrimination claims. However, a major exception existed. Due to the longstanding precedent of the landmark “Gardner-Denver” case, this option was specifically precluded for the most common form of American workplace arbitration—the grievance/arbitration process found in the typical collective bargaining agreement (“CBA”).

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COBRA Benefit Subsidies Strike Quickly

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 (ARRA), commonly known as the Economic Stimulus Package. As a result, effective March 1, 2009, certain individuals involuntarily terminated from employment between September 1, 2008 and December 31, 2009 will be eligible for subsidized COBRA premiums. The subsidy will be paid by the federal government and amounts to 65% of COBRA premiums for up to 9 months.

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The Lilly Ledbetter Fair Pay Restoration Act – A Sign of Changes on the Horizon

With much fanfare, President Obama signed his first bill into law—the Lilly Ledbetter Fair Pay Restoration Act (“FPRA”). This new law relaxes the statute of limitations on filing an Equal Employment Opportunity Commission (“EEOC”) charge related to discrimination in compensation. While this new law is important, it also signals a shift toward more employee-friendly federal and state laws.

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The Employee Free Choice Act (EFCA): Are You Ready?

Today’s political and economic climate has set the stage for the biggest changes to federal labor law in decades. High on the Democratic and Union agenda is the Employee Free Choice Act (EFCA), which contains proposed amendments to the National Labor Relations Act (NLRA). EFCA will likely fundamentally alter the way unions are certified as the exclusive representative of employees, the negotiation of first contracts between newly certified unions and employers, and employers’ potential financial liability for violations of the NLRA. There will undoubtedly be compromises in the final legislation, but employers need to prepare for these changes now.

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The Department of Labor Publishes Final Rule on the Family and Medical Leave Act

On November 17, 2008, the Department of Labor (“DOL”) published a “Final Rule” that revises regulations interpreting the Family and Medical Leave Act (“FMLA”). Originally enacted in 1993, the FMLA provided employees meeting certain eligibility requirements with the right to take up to 12 weeks of unpaid, job-protected leave during a 12-month period for specified family or medical reasons. In January 2008, amendments to the FMLA added two military family leave entitlements. The Final Rule interprets the 2008 amendments and also makes changes to the regulations that have been in effect since they were issued in 1995.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

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Expanding Public Policy Exceptions to At Will Employment

Under Washington common law, employment is presumed to be “at will.” Employers may theoretically terminate employees for any reason or no reason. Of course, the legislature has eroded the employment at will doctrine, such as through passage of civil rights statutes that prohibit terminating an employee for discriminatory reasons or for engaging in protected conduct. Courts have also eroded the employment at will doctrine by recognizing the tort of wrongful discharge in violation of public policy. Danny v. Laidlaw Transit Services, Inc., a new decision from the Washington Supreme Court, expands the public policy exception to employment at will even further.

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U.S. Supreme Court Reminds Employers That Age Discrimination Claims Persist

In its recently ended term the Supreme Court issued an unprecedented number of decisions interpreting the Age Discrimination in Employment Act (“ADEA”), all but one of which generally favored employees. These cases serve as a reminder that age discrimination claims still present significant risks to employers and that care must be taken to avoid liability associated with employment decisions affecting members of the aging work force.

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EEOC Issues Revised Compliance Guidance on Religious Discrimination

On July 22, 2008, the Equal Employment Opportunity Commission (“EEOC”) issued a new compliance manual section regarding religious discrimination, harassment and retaliation in the workplace under Title VII of the 1964 Civil Rights Act (“Title VII”). The number of religious discrimination charges filed with the EEOC more than doubled from 1992 to 2007. This note provides a brief overview of what employers should be aware of regarding what constitutes “religion” within the meaning of Title VII, according to the EEOC’s new Guidance, as well as under Washington’s Law Against Discrimination (WLAD).

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EEOC Attorneys Share Seven Ways That Employers May Improve EEO Practices and Reduce Liability Exposure

Navigating the complexities and intricacies of the many existing federal, state and local employment laws and regulations is not easy. For this reason, despite an employer’s best efforts to act within the boundaries of the law, it may find itself embroiled in litigation with an employee or former employee. During a June 11, 2008 American Law Institute-American Bar Association teleconference, Equal Employment Opportunity Commission (“EEOC”) regional attorneys shared seven common errors employers consistently make in their equal employment opportunity (“EEO”) practices. Employers may avoid or lessen liability down the road by considering and revising their existing practices and procedures to ensure that they do not make these costly errors.

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Protection from Genetic Information Discrimination – Meet “GINA”

Scientists continue to identify genes that are associated with a variety of diseases including types of cancer, diabetes, heart disease, Alzheimer’s and Parkinson’s disease. Screening, detection and treatment of inherited diseases continue to improve and become more commonplace in the United States. With such advances, fears about discrimination based on genetic information have arisen. However, the federal government took steps to prohibit genetic discrimination through the recent passage of the Genetic Information Non-Discrimination Act of 2008 (“GINA”).

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New Domestic Violence and Military Spouse Leave Expand Washington Employees’ Right to Time Off

In this year’s short session, the Washington legislature added two new forms of leave to the already-existing constellation of grounds for protected time off work. First, leave must now be provided to victims of domestic violence, sexual assault, or stalking (“domestic violence” or “abuse”) and their family members. Second, all employers must permit spouses of deployed military personnel to take leave under specified circumstances, and public employers must now provide up to 21 days of paid military leave. The two new forms of leave are broad in their application—each applies to all employers in Washington, public or private, regardless of their size.

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Despite Public Policy Favoring Arbitration, Not All Agreements Are Enforceable

A recent opinion by Division I of the Washington State Court of Appeals serves as an important reminder to employers that, while Washington’s public policy generally favors arbitration agreements, they are not always upheld when challenged by an employee. In Rodriguez v. Windermere Real Estate/Wall St. Inc., 175 P.3d 604 (2008), the court refused to enforce an arbitration agreement that gave the employer the right to select the arbitrators from a pool of other employer-franchisee owners, brokers, managers and sales associates. In light of the Rodriguez opinion, now is a good time for employers to review and revise arbitration agreements used in employment contracts to ensure enforceability under current Washington law.

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Good News from the Washington Supreme Court!

Two weeks ago, the Washington Supreme Court ruled against four corrections officers who sought damages against their employer under three different wage and hour statutes. Champagne et al. v. Thurston County, No. 79209-7, 2008 Wash. LEXIS 155 (February 14, 2008). Now that Spring is almost here, the case serves as a useful tool for some “wage and hour housekeeping.”

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National Labor Relations Board Reinforces Employer’s Right To Regulate and Restrict Use of Employer-Owned Property

To the great relief of employers, in a December 2007 opinion the National Labor Relations Board (“NLRB” or “Board”) clarified an employer’s ability to regulate and restrict employee use of an employer- owned email system. See The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, 351 NLRB No. 70. The decision addressed specifically an employer’s right to prohibit the use of an employer-owned email system for union-related messages. However, the decision potentially has a much broader reach and may affect an employer’s ability to prohibit employee use of all forms of its property, including bulletin boards and telephone systems, for union-related business.

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Ringing in the New?:Pregnancy Discrimination and Pregnancy-Related Leaves

In recent months, the Washington Supreme Court clarified state anti-discrimination laws and regulations regarding hiring and employment of pregnant women. Protections for pregnant women are also part of Washington and federal laws that allow leaves for pregnancy-related conditions and newborn childcare. Now is a good time to review your policies and procedures to ensure that you are following the most recent guidance from the Court and complying with state and federal leave laws.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

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New Form I-9

U.S. Citizenship and Immigration Services announced changes to its Employment Eligibility Verification Form (Form I-9) on November 7, 2007. All employers are required to complete a Form I-9 for each employee hired in the United States. Employers should use the newly revised Form I-9 for employees hired from today forward. Current employees DO NOT need to fill out a new form.

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Washington Supreme Court Rewards Employees for Driving Company Cars During Commute

A recent Washington Supreme Court decision sheds light on when employers must pay non-exempt employees who use a company vehicle for the commute between their home and a remote worksite. Stevens v. Brinks Home Sec., Inc., No. 79815-0, 2007 Wash. LEXIS 792 (October 18, 2007). Unfortunately for employers, the Court held that the commute in Stevens constituted “hours worked” and was thus compensable under the Washington Minimum Wage Act (“MWA”).

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Removing Salt (and Other Ailments) From Employers’ Wounds: Recent Case Developments at the National Labor Relations Board

The National Labor Relations Board (the “Board”) recently issued a number of decisions, including three notable employer-friendly cases. Although approximately 90 percent of all Board decisions historically have been unanimous, a small number of cases tend to be decided along political party lines because three of the Board’s five members traditionally are members of the party in the White House. These split cases often involve shifts in Board precedent. In four decisions issued in early October, existing Board law was modified significantly, consistent with a trend of the “Bush Board” to establish precedent more favorable to employers.

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Department of Homeland Security Seeks to Heighten Immigration Enforcement Policy by Stepping Up Employer Obligations Under the “No-Match Rule”

On August 10, 2007, the Department of Homeland Security (“DHS”) announced several procedural changes to strengthen enforcement of existing federal immigration laws. Included in these changes are regulations that employers must follow when they receive a “no-match” letter indicating that an employee’s social security number or work eligibility information does not match government records. Due to a recent California federal court ruling, the date on which the regulations will take effect is unknown. Nonetheless, “no-match” letters themselves are not new, and the new regulations seek to ultimately impose heightened obligations that employers should be aware of to ensure compliance and avoid increased fines and penalties once the new regulations ultimately take effect.

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Information Theft and What You Can Do About It

Recently, a former Boeing employee was charged with first degree computer trespass under Washington State law for taking more than 320,000 pages of confidential Boeing documents. According to the prosecutor’s charging papers, the Boeing documents were not encrypted or password protected, but the employee had to exploit a weakness in Boeing’s computer systems to obtain the files. Had the documents been leaked to competitors, Boeing calculates that the potential financial damage for the disclosure of even a portion of the documents could have meant a loss of $5-$15 billion. While the case is pending, the court has ordered injunctive relief that prevents the dissemination of any purloined data.

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Supreme Court Limits Suits on Pay Disparity in Ledbetter v. Goodyear Tire & Rubber Co.

On May 29, 2007 the Supreme Court decided that employees claiming pay discrimination under federal law must file a charge within 180 or 300 days (depending on the state) with the Equal Employment Opportunity Commission (EEOC) after each allegedly discriminatory pay decision or forever lose the claim. By a 5-4 vote, the Court affirmed an Eleventh Circuit decision that overturned a jury verdict in favor of Lilly Ledbetter on her Title VII claim of sex discrimination against Goodyear Tire & Rubber Co (Goodyear) because she failed to file her claim within 180 days of a discriminatory pay decision.

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New EEOC Guidelines Regarding Disparate Treatment of Employees with Caregiving Responsibilities

As the Baby Boom generation continues to age and women continue to comprise a greater percentage of the workforce, the number of employees responsible for aging family members and children will increase. In response to this trend, on May 23, 2007, the Equal Opportunity Commission (EEOC) issued new enforcement guidance on how disparate treatment of employees who care for children, spouses, parents, in-laws, elder, or disabled persons may violate Title VII of the 1964 Civil Rights Act. The guidelines do not create a new protected category of employees with caregiving responsibilities. However, they make clear that disparate treatment of employees with caregiving responsibilities can amount to prohibited discrimination under Title VII or the Americans with Disabilities Act (ADA).

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Walton v. U.S. Marshals Service: When Is An Employee “Regarded As” Disabled?

A recent Ninth Circuit Court of Appeals decision sheds important light on what an employee must show in order to establish that s/he is “regarded as disabled” under the Rehabilitation Act (the “Act”). Walton v. U.S. Marshals Service, 476 F.3d 723 (9th Cir. 2007). Fortunately for employers, Walton holds that an employer’s mere awareness of an employee’s impairment is insufficient to satisfy the “regarded as” requirement. Instead, an employee must also prove that the employer believed that the impairment substantially limited her/his major life activities or that s/he was, in fact, so limited.

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Will Employers Be Left Holding the Check? “Card Check” Legislation Raises Concerns for Employers

If you are an employer that has a “union shop,” you may soon have more company—at least if the Democrats in Congress get their way. On March 1, 2007, the U.S. House of Representatives passed the proposed Employee Free Choice Act (EFCA). The Act is on its way to the Senate where opposition is expected to be more strenuous, and passage is viewed as less likely. So, should you be concerned? If you are a Washington employer and any of your employees are “non-union”—and you want to stay that way—the answer is “yes.”

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“You’ve Got Mail” – and Other Electronic Data

For many of us, it is hard to remember a time when our waking hours did not consist of surfing the Internet, sifting through an endless sea of emails, hearing the all-to-familiar hum of cell phones and PDA’s, and being able to remotely access our office desktops via laptops and other electronic devices. The landscape in which we conduct business is continually changing. Many organizations today transact the majority of their business via some form of electronic medium. One study several years ago found that over 130 million workers are flooding recipients with 2.8 billion email messages each day! Since the study was conducted, that number may have doubled.

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Employers Face New Obligations to Preserve Electronic Data

Employers need to add an other item to their list of New Year’s resolutions. Due to recent amendments to the Federal Rules of Civil Procedure, an employer must now safeguard potentially relevant electronic data when it reasonably suspects a current or former employee may file a lawsuit. The amendments signal the judiciary’s recognition that electronic data, i.e., email and other relevant electronic data, can inadvertently disappear with the click of a mouse or the absence of an electronic data retention policy.

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The Corporate Survival Guide to Holiday Parties

For many employers, the company holiday party is as ubiquitous as the holidays themselves. Many organizations are privy to holiday party legends—some good, some bad. As the holiday season unfolds, companies throughout the Puget Sound region are once again preparing to celebrate the season with their employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

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No Longer in the Dark: Ninth Circuit Sheds Light on Employers’ Duty to Accommodate

The ADA imposes a continuing duty upon employers to reasonably accommodate employees for ADA-recognized disabilities, which may leave employers wondering: For how long does this continuing duty extend? In addressing this question in Dark v. Curry County, 451 F.3d 1078 (2006), the Ninth Circuit Court of Appeals highlights and expands upon the “continuing” duty to accommodate, suggesting that only a jury can say when the duty has been met. The Dark opinion also holds that misconduct resulting from an employee’s disability is likely to be considered a part of that disability under the ADA. As a result, the Dark opinion serves as a reminder that employers must act cautiously and consistently when disciplining disabled employees.

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Don’t Get Caught by Your Release

Business owners, managers, human resource professionals, and in-house counsel know that one way to sleep easy at night is to get a release of claims and covenant not to sue from a departing employee. In all cases, the employee must be given something in exchange for signing the Agreement, such as severance pay, but the resulting peace of mind from knowing the employee can’t come back and sue is considered worth the price. What if you awoke one day to learn that your release of claims was not valid because it didn’t comply with the Older Worker Benefit Protection Act (OWBPA)? That nightmare was recently visited upon IBM by the Ninth Circuit in Syverson v. International Business Machines Corp.

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Washington Supreme Court Adopts ADA Definition of “Disability”

Since the federal Americans With Disabilities Act (ADA) was adopted in 1993, we have consistently counseled our clients that the Act is largely irrelevant in Washington because our Washington Law Against Discrimination (WLAD) defined “disability” so much more broadly than the ADA. Now, in a recent decision that is a welcome relief to employers, the Washington Supreme Court adopted the definition of “disability” contained in the federal ADA, thereby providing for the first time a consistent approach to disability discrimination under both statutes. McClarty v. Totem Electric, 2006 Wash. LEXIS 504 (2006).

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Increased Immigration Enforcement Increases Risk for Employers

Intense national debate continues regarding possible changes to our immigration laws, and proposed reform legislation is presently stalled in Congress. Nonetheless, the politicized climate has brought increasing pressure on the agencies responsible for enforcing the present laws to crack down on employers of illegal aliens. Press reports indicate that enhanced enforcement action is focused particularly on the construction and hospitality industries, but health care and retail have also been mentioned as targets, and all employers remain subject to penalties for violations of the Immigration Reform and Control Act (“IRCA”). This Employment Note is to remind employers of their obligations under the existing law and of the significant penalties that can result from violations.

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Potential Dangers of Stereotyping Employees with Mental Illnesses

A recent Ninth Circuit Court of Appeals decision illustrates the perils of stereotyping employees with a current or prior mental illness. Josephs v. Pacific Bell, 443 F.3d 1050 (9th Cir. 2006). In Josephs, the Court held that an employer violated the Americans with Disabilities Act (“ADA”) for terminating an employee after learning that he previously had been found not guilty by reason of insanity for attempted murder. While this may seem remarkable at first glance, the decision makes more sense when viewed through the prisms of the ADA.

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Family and Medical Leave: The Continuing Evolution Of Washington State Law

Employers with 50 or more employees are well aware of, and often understandably mystified by, the complex requirements imposed by the federal Family Medical Leave Act (FMLA) and its implementing regulations promulgated by the U.S. Department of Labor (DOL). As many of you are aware, serious debate has been brewing in Washington D.C. about possible amendments to the FMLA. Fueled in part by concerns that future amendments to the FMLA might restrict employees’ leave entitlements, the Washington State Legislature recently passed significant amendments to our state Family and Medical Leave Act (WFMLA).

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The New Law You Haven’t Heard About

Sexual orientation discrimination was not the only employment related issue that consumed the Washington Legislature this year. Our representatives in Olympia passed another piece of legislation that will impact employers, and you probably haven’t heard about it. The new law authorizes the Department of Labor and Industries to issue citations to employers for violating any wage payment requirement. The law goes into effect June 7, 2006.

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Retaliation Claims – the Ticket to Trial

A recent case by the Court of Appeals, Division III, highlights the danger we reported on in our November 2002 Employment Law Note: retaliation claims are a plaintiff’s ticket to trial. In Barker v. Advanced Silicon Materials, LLC (ASIMI), the plaintiff brought claims for sex discrimination and retaliatory discharge. The sex discrimination claim was dismissed on summary judgment; the retaliatory discharge claim made it to trial. Along the way, the employer made a series of mistakes that might have proved fatal but for its sincere and good faith belief that it was doing the right thing.

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Sexual Orientation Becomes Protected Status in Washington

After unsuccessful attempts 29 years in a row, the Washington State Legislature has passed a law adding sexual orientation to the list of “protected classes” under the Washington Law Against Discrimination, RCW 49.60. Governor Gregoire signed the law on January 31, only four days after its passage. Washington becomes the 17th state to have such a law. Although Tim Eyman has already commenced efforts to place an initiative on the November ballot to overturn the law, for the present it is “the law of the land” in Washington.

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Deductions from Employees’ Wages: New Regulations Clarify The Do’s and Don’ts

Employers often find it necessary, and in some cases desirable, to deduct certain sums from their employees’ paychecks, including not only medical insurance and retirement fund payments, but also cash advances, the cost of lost or damaged property, and wage overpayments. As of January 1, 2006, new state regulations define when such deductions are permitted. While consistent with previously existing statutes, the new regulations provide more detailed guidance and include examples as to the deductions that may be made in three different contexts: during employment, at the time of separation, and when the employer has paid an employee too much.

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Donning and Doffing: U.S. Supreme Court Clarifies Compensable Time for Preparatory and Concluding Activities

In two consolidated and closely watched cases, the U.S. Supreme Court unanimously rendered a decision on November 8, 2005, that serves as a poignant reminder to employers of the importance of remaining vigilant on wage and hour issues. The decision in both cases involved whether workers should be paid for the time spent putting on personal protective equipment (“donning”), walking from the changing area to the production area, and for the time spent removing the protective equipment (“doffing”) following the end of the work shift. IBP, Inc. v. Alvarez and Yum v. Barber Foods, Inc., U.S. LEXIS 8373 (November 8, 2005).

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Aggressive Union Campaigns Are Coming: How Employers Should Respond

The percentage of American workers that are represented by unions has declined steadily from its peak in the 1940s. At that time, unions represented more than one-third of the eligible American work force. In the following decades, that number plummeted steadily to the point in the 1990s where well less than one-fifth of eligible workers were represented. However, the decline in union membership may reverse due to a recent split in the AFL-CIO that promises aggressive campaigns aimed at unionizing the modern workforce. This Note discusses the split’s effect on union organizing campaigns, steps employers can take to avoid becoming a target of such campaigns, and what employers should do if they are targeted.

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Methamphetamine Use in the Workplace: What’s An Employer To Do?

Like an increasing number of employees, “Scott” snorts a white, odorless powder before reporting to work. Scott’s rationale? He claims that his drug use increases his productivity and concentration, thus making him a more valued employee. Scott is a methamphetamine user and represents a troubling pattern for Washington employers.

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Harassment Update: Recent Cases Highlight Employer Liability for Harassment by Customers and Supervisory Favoritism

Two recent court decisions, one from the Court of Appeals for the Ninth Circuit and the other from the Supreme Court of California, provide timely reminders to employers about their responsibility to maintain a harassment-free workplace. The Ninth Circuit decision, Galdamez v. Potter, reminds employers that they can be held liable if their employees are harassed by customers. The California decision, Miller v. Department of Corrections, instructs employers that they can be held liable for harassment if supervisory favoritism toward subordinates with whom supervisors are having consensual relationships is widespread.

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When Litigation Threatens

Although preventative employee relations can greatly reduce the risk of employment litigation, the unfortunate reality is many employers will eventually face the threat of a lawsuit by a current or former employee. This Note examines the steps a prudent employer should take, and not take, when litigation threatens.

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Cleaning House: The New Federal “Disposal Rule” Provides Guidelines for Disposing of Certain Personnel Records

Fair and Accurate Credit Transactions Act (the FACT Act). Among other things, the FACT Act directed the Federal Trade Commission (FTC) to issue regulations that require businesses to “properly dispose” of consumer information. The FTC issued its regulations in November 2004. The regulations, collectively referred to as “the Disposal Rule,” became effective June 1, 2005. This Note discusses the Disposal Rule, how it applies to employers, and the penalties for violating the Rule.

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New Law Protects Employers from Liability for Giving Good Faith Job References

Increasingly, employers are frustrated by the fact that when they try to check references on an applicant, former employers are unwilling to provide substantive information. Yet they themselves fear liability for giving such information to prospective employers of their former employees. This leads to a vicious cycle of employers passing on undesirable employees. Fortunately, the Washington Legislature recently passed legislation (HB 1625), that protects employers from job reference liability and Governor Gregoire has signed it into law. This Note discusses the new law and provides practical tips to help employers benefit from its protections.

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“Aging Baby Boomers: The Next Wave of Employment Litigation – Disparate Impact Analysis for Age Discrimination Claims”

We have all been bombarded with information about the growing impact of the (my) graying “Baby Boomer” generation. In 2004, “Boomers” (ages 45-60) comprised about one-third of the American workforce. Reviewing the state of our national economy or Social Security fears, pundits point out that Boomers are today working to older ages or returning to work after initial forays into the world of retirement.

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Department of Labor Gets Busy: Time for a Wage and Hour Review?

The Department of Labor (DOL) spent much of its time and resources in 2004 preparing and advocating for a revised set of “white-collar” exemptions to the Fair Labor Standards Act’s (FLSA) overtime requirements. The new rules went into effect on August 23, 2004. With those revisions in place, DOL has begun interpreting their application in specific circumstances. In addition, DOL has turned its attention to enforcement of wage and hour rules, with a particular focus on low-wage workers.

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Hostile Work Environments Come In Many Forms

When people think of hostile work environment claims, sexual harassment is generally the offense that comes to mind. However, employers need to be mindful that other forms of harassment, such as race, religion, national origin, or disability, may also create a hostile work environment. The Ninth Circuit Court of Appeals recently reminded us of this in McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004), which involved allegations of a racially hostile work environment.

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Employment Law Resolutions for the New Year

The beginning of the year presents a great opportunity for employers to make some New Year’s resolutions about their employment practices. A few well-chosen resolutions now may save your organization significant resources and expense later. Consider adopting the following suggestions and bringing them to the attention of your managers to make this a better year in your workplace.

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