In a 2017 article (NEW LAW: Washington Paid Family and Medical Leave) we advised Washington employers that a new paid family and medical leave program would be going to effect in Washington starting in January 2020.
While the Paid Family and Medical Leave benefits will not become available to employees until January 1, 2020, the payroll deductions (and the employer’s share of payments) to fund the program begins on January 1, 2019.
This means that starting on January 1st, Washington employers will be required to start doing the following: Continue reading NEW LAW: Washington Employers, Are You Ready for Washington Paid Family Medical Leave?
Attention employers in SeaTac, Seattle, and Tacoma, Washington … minimum wage in these cities is increasing on January 1, 2019.
For employers in SeaTac, minimum wage is increasing for certain employers in the hospitality and transportation industries from $15.64 to $16.09 per hour on January 1, 2019.
For employers in Seattle, minimum wage is increasing on January 1, 2019 as follows: Continue reading NEW LAW — Minimum Wage Increases for Certain Washington Cities
The Washington State Attorney General recently published a Guide (“Pregnant Workers’ Accommodation Rights”) which outlines pregnant employees’ civil rights under the Washington Healthy Starts Act.
As a refresher, the Washington Healthy Starts Act requires Washington employers with at least 15 employees in Washington state provide accommodations to pregnant employee, regardless of a pregnancy disability. Among the accommodations to be provided include, but are not limited to:
- Providing more frequent, longer, or flexible restroom breaks;
- Modifying a no food or drink policy;
- (Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s workstation;
- Providing seating or allowing the employee to sit more frequently if her job requires her to stand;
- Providing for a temporary transfer to a less strenuous or less hazardous position;
- Providing assistance with manual labor and limits on lifting;
- Scheduling flexibility for prenatal visits; and
- Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the attending health care provider of the employee.
Continue reading NEW GUIDANCE: Washington State Attorney General Publishes New Guide on Pregnancy Accommodations
In a major revision of the state’s anti-discrimination law, Washington has passed amendments to its Equal Pay Act to address income disparities, employer discrimination and retaliation practices in the state. The amendment will make it a misdemeanor for an employer to discriminate in providing compensation based on the gender of similarly employed employees. With an effective date of June 7, 2018, employers should begin preparations to comply with these significant changes in the law.
What the New Law Does
Key amendments to Washington’s Equal Pay law include: Continue reading Washington Expands Equal Pay Protections
Washington has become one of the first states to pass laws to further curb sexual harassment and sexual assault in light of the revelations from the #MeToo movement. Specifically, Washington will now prohibit employers from using Non-Disclosure Agreements (NDAs) to prevent victims of domestic violence from disclosing instances of sexual harassment or assault and will soon require specific employment policies and practices to address these issues.
No More Non-Disclosure Agreements
The first of these laws is designed to encourage the disclosure and discussion of sexual harassment and sexual assault in the workplace. This new law prohibits employers from requiring employees to sign, as a condition of employment, an NDA preventing them from disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.
Importantly, this law does not prohibit a settlement agreement between an employee or former employee alleging sexual harassment and an employer from containing confidentiality provisions. Thus, while employers may not require employees to sign any form of agreement that requires them to remain silent about future instances of sexual harassment or sexual assault, such as an NDA at the time of hire, they may request employees to enter into confidential settlement agreements for incidents that have already occurred.
This law will take effect June 7, 2018.
Model Policies and Best Practices Continue reading Washington Takes a #MeToo Stand with Passage of New Laws
In order to protect “survivors of domestic violence, sexual assault, and stalking from employment discrimination,” Washington recently passed an amendment to its domestic violence leave law to make an individual’s status as a victim of domestic violence, assault, or stalking a protected class against employment discrimination.
Additional Protections for Victims of Domestic Violence
Effective June 7, 2018, Washington employers will be prohibited from:
- Refusing to hire a qualified individual because he or she is an actual or perceived victim of domestic violence, sexual assault, or stalking;
- Discharging, threatening to discharge, demoting, suspending, or in any way discriminating or retaliating against an individual because he or she is an actual or perceived victim of domestic violence, sexual assault, or stalking; and
- Refusing to make a “reasonable safety accommodation” requested by a victim of domestic violence, sexual assault, or stalking, unless such an accommodation would pose an undue hardship on the operation of the employer’s business.
Reasonable Safety Accommodation
As defined under the law, “reasonable safety accommodation” includes:
- Transfer or reassignment;
- Modified schedule;
- Change in work telephone number, email, or workstation;
- Installation of locks;
- Implementation of safety procedures; and
- Adjustments to job structure, workplace facility, or work requirements.
Employee Notice Obligations Continue reading Washington Expands Domestic Violence Leave Law to Prohibit Employment Discrimination
Effective June 6, 2018, Washington employers will no longer be permitted to ask applicants about arrests or convictions, or to receive information through a criminal background check, prior to making a determination as to whether the applicant is otherwise qualified for a position. This new law is known as the Fair Chance Act (the Act).
Prohibited Activities Under the Act
Under the Act, an employer is prohibited from doing any of the following before making an initial determination that an applicant is otherwise qualified for the position:
- Asking orally or in writing about the applicant’s criminal record;
- Receive information through a criminal history background check; or
- Otherwise obtaining information about the applicant’s criminal record.
For purposes of the Act, an applicant is “otherwise qualified for the position” when the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.
The Act also limits the content of an employer’s advertisements for job openings and hiring policies by specifically prohibiting:
- Advertising employment openings in a way that excludes people with criminal records from applying (e.g., ads that state “no felons” or “no criminal background”); and
- Maintaining any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.
o Such prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
Activities and Employers Not Covered by the Act Continue reading Washington Joins the “Ban the Box” Bandwagon
The Spokane city council recently passed Ordinance No. C-35564 (The Fair Chance Hiring Ordinance), which goes into effect on June 14, 2018.
When this new law goes into effect, Spokane employers can no longer inquire about an applicant’s criminal history until after the applicant has either:
- participated in an in-person, telephonic, or video interview or
- received a conditional offer of employment.
In addition, under the new law, Spokane employers will be prohibited from advertising job openings in such a way that excludes individuals with arrest or conviction records. Specifically, job postings cannot include language like “no felons,” “no criminal background,” or similar language that conveys a message that people with a criminal history are discouraged from applying. This does not, however, preclude an employer from including in a job posting a requirement that an applicant undergo a criminal background check as a part of the hiring process – provided that the job posting does not state that an arrest or conviction record will automatically eliminate an applicant from consideration for that position.
This new law does not apply to the following Spokane employers:
- any employer hiring an employee who will have unsupervised access to children or a “vulnerable person;”
- any law enforcement agency;
- any position where criminal background checks are specifically permitted or required under state or federal law.
Recommendation for employers
It is recommended that all Spokane employers review the hiring practices to insure compliance with the new laws. In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all Spokane employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before June 14th.
While the minimum pay required for commissioned employees to qualify for an overtime exemption is not changing in 2018, there are several states where the minimum pay requirements for a “commissioned employee overtime exemption” are increasing.
These increases (i.e. in California, Colorado, Minnesota, Oregon, Washington, and Washington DC) are occurring because the pay an inside or commissioned salesperson must receive to qualify for the inside or “commissioned” sales exemption (as established under state law) are scheduled to increase in 2018 (December 31st for New York employers).
Under the Fair Labor Standards Act (FLSA), in order for a commissioned salesperson to qualify for the FLSA’s 7(i) overtime exception (Commissioned Salesperson Exemption), the following three conditions must be met:
- The employee must be employed by a retail or service establishment, and
- The employee’s regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked, and
- More than half the employee’s total earnings in a representative period must consist of commissions.
Unless all three conditions are met, the Commissioned Salesperson Exemption is not applicable, and overtime premium pay must be paid for all hours worked over 40 in a workweek at time and one-half the regular rate of pay.
The below table sets forth the changes to the minimum salary requirements for exempt employees in these states. In those instances where the state minimum salary requirements are lower than the above-listed FLSA requirements, the higher salary threshold applies for employers who are subject to FLSA in order for employees to qualify for an exemption under the FLSA. Continue reading Is The Minimum Pay Required For Commissioned Employees To Qualify For An Overtime Exemption Increasing In Your State In 2018?
In a new case (Zhu v. North Central Educational Services), the Washington State Supreme Court has held that the Washington Law Against Discrimination protects job applicants from “retaliatory discrimination” (i.e. an employer who refuses to hire an applicant in retaliation for the applicant opposing discrimination in a prior job).
In this case, the plaintiff had previously been a math teacher in the Waterville School District. In 2010, the plaintiff sued the District for race discrimination and retaliation. The case was ultimately settled and, as a part of the settlement, the plaintiff resigned from his teaching job.
Following his resignation, the plaintiff applied for a position with North Central Educational Services District No. 171 (an agency that provides cooperative and informational services to local school districts – including the Waterville School District). The hiring committe for North Central Educational Services District was aware of the plaintiff’s past lawsuit and ultimately, the plaintiff was not hired for the position. Continue reading Washington State Supreme Court Expands the Protections of the Washington Law Against Discrimination