employment law update & hr hot list. jodi slavik-min.pdf–gender specific bathrooms: may use...
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EMPLOYMENT LAW UPDATE & HR HOT LIST
Jodi Slavik, Employment Attorney
We counsel companies across the west coast on complex employment-related issues.
2016 Felt Like….
• Click to edit Master text styles • Second level
• Third level
• Fourth level
• Fifth level
What We’ll Cover
• Legislative update
• State sick & safe leave
• FLSA rulemaking
• Key federal & state cases
• New rules, guidance & forms
• Bathroom refresher
• To-Do list
Legislative Update
Federal Changes on the Horizon
• Supreme Court
• Appointments
–DOL Alexander Acosta?
–HHS Tom Price
– EEOC 1 app’t expires each year
–NLRB 1 app’t expires each year
• Executive Orders & Rulemaking
Washington Had An Election, Too
D + D + R + budget year =
State Bills Likely to Survive
• SHB 1298 – job applicants/arrests
• EHB 1506 – workplace/gender equity
• ESHB 1796 – pregnancy accommodations
• EHB 1967 – non-competes
• HB 2097 – religious affiliation disclosure
• ESSB 5312 – criminal record/employment
State Sick & Safe Leave
• January 1, 2017 = $11.00/hour for all employers
– Workers under 16 can be paid $9.35/hour
– $11.50 in 2018
– $12.00 in 2019
– $13.50 in 2020
• After 2020, adjusted for inflation by L&I
• Tips may not be counted toward minimum wage.
Initiative 1433 – Minimum Wage
Other minimum wages
• Seattle
– Large Employers (>500 employees): $15.00 per hour
– Small Employers (<500 employees): $13.00 per hour
– Companies in Seattle and EEs working > 2 hours
• Tacoma – $11.15/hour
– All employees working > 80 hours in city limits
• SeaTac – $15.35/hour
– Hospitality and transportation EEs
• Effective January 1, 2018
• L&I to draft rules
• Current details: – No preemption!
– All ERs with at least 1 EE
– Any EE covered by MWA
– Accrual = 1 hour/40 worked, including OT
– May require 90-day wait, notice, and doctor’s notes
– Medical diagnosis and treatment for EE and family, school or business closure, and domestic violence
– 40 hours carryover
– Regular rate of pay
– No need to cash out
– Reinstate accrued, unused leave within 12 months
Initiative 1433 - Paid Leave
FLSA Rulemaking
• On May 8th, 2016, DOL announced an increase in minimum salary level for exempt executive, administrative and professional employees from $455/week to $913/week.
• 10% of minimum salary could be met with non-discretionary bonuses, incentive payments and commissions, so long as quarterly.
• HCE annual salary from $100K to $134K (cannot use in WA!)
• No change to duties tests
That Was Then…
• On November 22nd, 2016, a Texas federal district court temporarily blocked the regulation nationwide.
• Congress focused on worker duties, not salary. Minimum salary was DOL’s idea. By raising the salary so high, it overrode the duties test.
• Past DOL Secretary Perez appealed ruling on 12/1/16; no oral args yet
• Pursue appeal, withdraw rule, or propose new rule?
This is Now…
Key State & Federal Cases
9th Circuit Decisions
• Class action waivers signed at hire violates NLRA. Morris v. Ernst & Young, 9th Cir, Aug. 2016 – Section 7 of NLRA cannot be waived
– Split in circuits; petition to Supreme Court
– Review arbitration agreements w/your attorney
• Neutral rounding policies permitted. Corbin v. Time Warner Entertainment-Advance/Newhouse Partnership, 9th Cir, May 2016 – Include upward and downward rounding
– When averaged over time, employees fully paid
– Use one system and conduct random audits
More 9th Circuit
• Fiduciary duty of prudence required ER to reevaluate fund options at lower costs. Tibble, et. Al. v. Edison International, 9th Cir 2016 – 401K sued after stock drop
– Check with brokers about investment options
• Independent contractors are employees when they aren’t customarily engaged in independent business. Swift Couriers, Inc. V. Employment Department, Ore Ct of Appeals, Dec. 2016 – ESD sued for taxes on distribution/delivery worker
More 9th Circuit
• Hugging can land you in hot water. Zetwick v. Yolo County, 9th Cir, Feb. 2017) – County correctional officer gave 100 hugs in 12 years
• Claim of hostile work environment, disparate treatment & retaliation going to trial. Reynaga v. Roseburg Forest Products, 9th Cir, Jan. 2017) – Racially derogatory comments
– Dispute about adequacy of investigation/response
– Sufficient pre-textual retaliation evidence
Do you really know what’s going on at work?
Washington Decisions
• Can ask for reasonable documentation, including diagnosis from appropriate health care professional, for disability request. Heit v. Aerotek Inc., W.D. Wash., Oct. 2016
• Employees equally responsible to engage in interactive process. Huge v. Boeing Co., W.D. Wash., Mar. 2016
• Disparate treatment can occur even if done to protect employees. Blackburn v. DSHS, Wash., July 2016.
• Former EE has enough facts to justify trial on discrimination and retaliation. Moore v. Lowe’s Home Ctrs., LLC, W.D. Wash., July 2016.
• EE claimed she was demoted after maternity leave, subject to sexist comments, unfairly disciplined, and terminated after participating in an investigation.
• Inconsistencies reviewed most favorably for EE.
From the Actions Speak Louder than Words File…
New Rules, Guidance & Forms
New I-9 “Smart” Form
New I-9 Form as of January 22, 2017
• Easier to complete on computer with drop-down lists and calendars for dates, on-screen instructions for each field, easy access to the full instructions, and option to clear form and start over
• Section 1 asks for “other last names used”
• Streamlines certification for certain foreign nationals
• Prompts to ensure information is entered correctly
• Ability to enter multiple preparers and translators
• Dedicated area for additional information
• Supplemental page for preparer/translator
EEO-1 Reporting
• No EEO-1 Reports due in 2017; first due by 3/31/18.
• Snapshot date to tally EEs; any pay period from October – December 2017.
• Summary pay data from fed K’ors & private 100+ – Total FT and PT EEs in 12 pay bands; no individual pay report
– Total hours worked by all EEs in each pay band
• Fed contractors w/ 50 – 99 EEs submit old report.
• New form and instructions on the EEOC’s web page for the 2017 EEO-1 Report.
• And don’t forget the…
Antitrust Guidance
• FTC & DOJ issued joint guidance to HR professionals to avoid wage fixing and “no-poaching” agreements.
• Quick reference card
• Limited exception in labor negotiations.
• Make sure you or your wage survey company is within safe harbor.
• Creates federal claim for trade secret misappropriation
• Can seize misappropriated trade secrets without providing notice to wrongdoer
• Actual and exemplary damages, restitution, injunctive relief & attorneys’ fees
• Must put whistleblower immunity clause in any confidentiality agreements
Defend Trade Secrets Act
Busiest Regulator of 2016 Award Goes To…
• ADEA, ADA, EPA, GINA, Title VII of Civil Rights Act
• 44.5% of discrimination charges include retaliation
• Highlights:
– Retaliation and interference with ADA rights prohibited
– Discussing compensation may be protected activity
– Retaliation can occur outside of work
– EE must prove “but for” AND ER defense = unaware, legit reason, or would have happened anyway
– After complaint filed, instruct all EEs retaliation prohibited
– Give supervisors/managers specific retaliation examples & check-in during investigation
– Assign retaliation “screener”
Retaliation Guidance
Muslim & Middle Eastern Discrimination
• Q&A docs for ERs and EEs on preventing discrimination against EEs who are or are perceived to be Muslim or Middle Eastern
• Nicknames or stray comments
• Dress code
National Origin Enforcement Guidance
• Replaces former EEOC Compliance Manual chapter on national origin discrimination
• Also released Q&As and Small Business Fact Sheet
• Highlights: – All job applicants and EEs protected
– Protection for “perceived” national origin
– Extends to regions, not just nation-states
– “English-only” work rules must have legitimate business necessity
– Human trafficking victims protected by Title VII
• EEOC published Guidance, “Employer-Provided Leave and the ADA”.
• Even if the employer doesn’t have a medical leave policy or the employee has run out, leave may be a reasonable accommodation.
• Treat employees the same (e.g., same paperwork).
• Soften end-of-leave letters.
Leave Guidance
Wellness Program Rules
• Acceptable incentives & participation requirements: – Reasonably designed to promote health or prevent disease
– “Voluntary” program includes robust notice and cannot require participation, deny health coverage, or retaliate
– Incentives okay if value doesn’t exceed 30% of total cost of self-only coverage for group health benefits
– Tobacco-related programs have 50% or 30% limit, depending on confirming nonuse or medical test
– If disability prevents or interferes, provide accommodation
– Family medical questions okay only if incentive offered even if genetic info not provided
– Incentive for spouse providing own info okay
Mental Health Guidance
• 12/12/16: “Depression, PTSD & Other Mental Conditions in the Workplace: Your Legal Rights”
• ERs may ask medical questions when: – EE asks for accommodation
– Post-offer (if all asked the same)
– When engaging in affirm. action for people with disabilities
– On the job with objective evidence can’t do job or safety risk
• Accommodations: – Schedules around appointments, quiet environment, written
instructions, work-from-home, unpaid leave
Bathrooms, Anyone?
The Bathroom Battle Wages On
• Best Practices: A Guide to Restroom Access for Transgender Workers, OSHA (2015) – Gender specific bathrooms: May use bathroom consistent
with gender ID
– Single occupancy bathrooms: May be gender neutral but can’t force transgender individual to use
– EE should determine most appropriate & safest option
• Lusardi v. Dep’t of the Army EEOC (2015) – Cannot deny transgender employee access even if employees
are upset…
“confusion or anxiety cannot justify discriminatory terms and conditions of employment.”
Bathrooms and the law
What to do Now
• Accept use by gender identity
• Gender neutral, single use if possible
• If no gender neutral, enhance privacy features (cover gaps and extend doors/walls)
• Create private changing areas in locker rooms with stalls or curtains
• One private, single stall shower if possible
• Work with employees NOW to brainstorm options
Summary
1. Don’t panic about
2. Begin planning for 1433
3. Review hiring practices & pay disparity
4. Hold on FLSA salary changes, but check duties
5. Review arbitration agreements with counsel
6. Confirm you are using new I-9 form
Super Awesome Summary To-Do List:
7. Prepare for EEO-1 reporting requirements
8. Put whistleblower immunity clause in agreements
9. Review wellness program
10.Invest in manager/supervisor training
11.Begin diversity & bathroom conversations
NOW!!!
Super Awesome Summary To-Do List…Part II
Now Back to the Real World…
