NLRB Strikes Down Arbitration Agreement Containing Class Action Waiver

A recent decision from the National Labor Relations Board (the “NLRB”) will likely make it more difficult for employers to obtain and enforce class action waivers in arbitration agreements. The NLRB’s decision in D.H. Horton, Inc. invalidated an arbitration agreement that prevented employees from filing claims with the NLRB or pursuing collective or class action claims in either arbitration or court. In the short term, the NLRB’s decision may provide employee-side attorneys with additional ammunition to prevent arbitration agreements from being enforced. Employers with arbitration agreements should carefully evaluate this decision, and other recent legal developments, to determine whether their agreements remain enforceable.

Protect Your Intellectual Property: Use Care With Consultants

Unless your consulting agreements explicitly require your consultants to assign their inventions to you, they have no obligation to do so, and your competitors could end up owning your intellectual property. Read the article (PDF) for details. For more information, please contact the Intellectual Property and Technology Practice Group at Lane Powell: 206.223.7000 Seattle 503.778.2100 [...]

NLRB Postpones Employee Rights Posting Requirement to April 30, 2012

The National Labor Relations Board (“NLRB”) has once again postponed the effective date of its new rule requiring employers to post notices of employee rights. According to the NLRB, the new effective date will now be April 30, 2012. In the October 10, 2011, Legal Update titled “NLRB Postpones Employee Rights Posting Requirement to January [...]

At-Will Employment is Never as Simple as it First Sounds: Employers Must Treat Workers in a Consistent Manner

Lane Powell Attorney Christine Thelen authored an article in the December 2 Portland Business Journal titled “At-Will Employment is Never as Simple as it First Sounds: Employers Must Treat Workers in a Consistent Manner.” In the article, Thelen discusses what employers can do to preserve at-will employment in their policies and procedures, and offer letters. [...]

H-1B Quota Filled: Some Options Remain

Without notice, the H-1B filing window for the year has closed. U.S. Citizenship and Immigration Services (“USCIS”) announced the day before Thanksgiving that on Tuesday, November 22, 2011, it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2012 (“FY2012”). This means that petitions for first-time H-1Bs received November 23 or thereafter will be rejected and mailed back to the petitioner unprocessed.

NLRB Protects Many Employee Facebook Postings

Lane Powell Shareholder Mike Reilly authored an article in Puget Sound Business Journal’s November 11 issue titled “NLRB Protects Many Employee Facebook Postings.” In the article, Reilly discussed strategies for how employers can deal with the new National Labor Relations Board (“NLRB”) initiative.

Recruiting Veterans and Respecting Their Rights

This Veterans Day, we encourage employers to take a moment to evaluate their policies and practices with respect to veterans, service members and their families. As more veterans are returning from duty, federal and state lawmakers are busy trying to find ways to give employers incentives for implementing and/or improving their outreach and recruitment strategies for protected veterans and their families. Employers should also take care to remember that applicable federal and state laws provide certain protections for veterans, service members and their families.

Safety, Accidents and Investigations: Be Prepared for the Unexpected

As the economy moves forward in a slow recovery, employers vigilantly watch for new opportunities to cut costs. One sure way to reduce costs is to have a strong safety and health program (safety program). If you fail to have a strong safety program, you are exposing your company to potential increases in health care costs, penalties and fines, and lost productivity. Covering the basics in this area will protect your company and its employees.

H-1B Numbers May Run Out Before End of 2011: Quota for Master’s Degree Filled

Under immigration law, the H-1B program allows U.S. employers to hire foreign nationals in “specialty occupation” positions, which require a bachelor’s degree or the equivalent. Under current law, there is a cap on the number of new H-1B petitions that will be granted each federal fiscal year (“FY”). The quota for graduates with a master’s [...]

NLRB Postpones Employee Rights Posting Requirement to January 31, 2012

In the September 22 Legal Update “Don’t Ignore NLRB Rules: Necessary Action by All Employers,” Lane Powell’s Labor and Employment Practice Group discussed the potential for the National Labor Relations Board (“NLRB”) to postpone implementation of the notice-posting rule, due to significant public concerns about the scope of the NLRB’s jurisdictional authority to require the [...]

Seattle Employers: Get Ready for Paid Sick and Safe Leave

On September 12, the Seattle City Council passed an ordinance mandating paid leave for employees who perform work in Seattle. Mayor Mike McGinn signed the ordinance into law on September 23. According to press reports, “This bill is about ensuring healthier workplaces by preventing the spread of disease.” However, the ordinance casts a wide net, mandating paid sick leave when an employee’s family member is sick, as well as paid leave when an employee or his or her family member needs “safe time” because of domestic violence, sexual assault or stalking. And it broadly defines “family member” to include spouses, domestic partners, children, parents, parents-in-law and grandparents. According to the Greater Seattle Chamber of Commerce, the ordinance is “a complex, bureaucratic and prescriptive mandate” for employers.

Don’t Ignore NLRB Rules: Necessary Action by All Employers

Employers should pay close attention to recent activity by the National Labor Relations Board (“NLRB”), which is the federal agency charged with enforcing the National Labor Relations Act (“NLRA”). The NLRB recently adopted a rule that requires all employers to post a new workplace poster. In addition, the NLRB has issued welcome guidance for employers on disciplining employees for social media activities without running afoul of the NLRA.

Lessons for Employers in the Wake of the US Supreme Court’s Rejection of Class Actions for Litigating Gender Discrimination in Wal-Mart v. Dukes

What are the lessons for employers in the wake of the United States Supreme Court’s much-awaited decision in Wal-Mart Stores, Inc. v. Dukes, et al.? While the decision focused on the propriety of using class actions in employment discrimination litigation, it also validated best practices for employers who train local managers to comply with anti-discrimination laws and then delegate decision-making, subject to corporate compliance review.

Employers’ Checklist — Newest Emerging Issues Facing Your Best Company Practices Today.

Employers face new hurdles each day. Here are “Top Ten” thoughts on current issues facing employers, and how to deal with them.

1. Get a social media policy. Do not even think about hacking into a worker’s Facebook account. And, if someone comes to you complaining about inappropriate content on a worker’s website, ask for a copy and respond accordingly.

Safety and Health Investigations — What to do When DOSH Arrives

If you run a business, you already have valuable experience and training to draw upon. But does your background include managing health and safety investigations? If your answer is no, it is important that you have a handle on these basics, or your business could pay a price.

I-9 Immigration Compliance Update: Social Security “No-Match” Letters and New USCIS “I-9 Central” Website

The Social Security Administration (“SSA”) has resumed issuing letters notifying employers of mismatches between an employee’s name and Social Security number (“SSN”), known as “No-Match” letters. A No-Match letter informs the employer that discrepancies exist between an employee’s name and Social Security number contained in SSA’s database against those on the employee’s W-2 form. The purpose is to enable the SSA to allocate Social Security funds correctly. Employers who receive No-Match letters should have a policy of checking records and following up with employees so they can avoid charges of hiring unauthorized workers. However, reverification is not required solely because an employer has received a No-Match letter.

On May 13, U.S. Citizenship and Immigration Services (“USCIS”) launched a new website called “I-9 Central,” an immigration Web-based resource that is available for document verification, but should be used with caution due to lack of completeness of the information it contains. The website includes sections covering employer and employee rights and responsibilities, step-by-step instructions for completing Form I-9, and information on acceptable documents for establishing identity and employment authorization. USCIS has also posted guidance on common mistakes in completing Form I-9, how to correct errors, and how to answer employees’ questions about the I-9 process.

Reminder: New ADAAA Regulations Go Into Effect Today, May 24

How Will the Changes Affect Our Business? The Equal Employment Opportunity Commission (“EEOC”) estimates that the new Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) regulations that go into effect today will result in between 400,000 and 1.2 million new accommodations for employees across the U.S. over the next year at a mean annual cost of $150 per accommodation. The new regulations can be found at: http://federalregister.gov/a/2011-6056.

The EEOC’s regulations are expressly intended to broaden coverage to the maximum extent permitted by the ADAAA. For employers operating in Washington who are already subject to the broader definition of disability under the Washington Law Against Discrimination (“WLAD”), the impact may likely be minimal. For employers operating in states that interpret their state disability protection laws similarly to the ADA, such as Oregon and Alaska, the new regulations will undoubtedly mean that more employees qualify for coverage under the ADAAA’s broader definition of disability and, in turn, will be entitled to request and receive reasonable accommodations.

United States Supreme Court Approves Enforcement of Waivers of Class-Wide Arbitration

On April 27, the United States Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion. The Supreme Court held that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), preempted a California law that invalidated class action arbitration waivers. The Court, in a 5-4 decision, overturned the Ninth Circuit’s prior ruling striking down a class action waiver contained in AT&T Mobility’s consumer arbitration agreements as unconscionable under California state law.

Supreme Court Upholds “Cat’s Paw” Theory of Liability

On March 1, 2011, the Supreme Court issued its opinion in Staub v. Proctor Hospital, upholding a theory of employment discrimination liability generally referred to as the “cat’s paw” theory. Under the “cat’s paw” theory, an employer may remain liable for the discriminatory animus or intent of a biased supervisor, even if the biased supervisor was not the decision maker, if the employee shows that the employer’s decision was influenced by the biased supervisor.

U.S. Supreme Court Decision and NLRB Settlement Expand Employer Exposure to Liability for Interference with Protected Activity

The United States Supreme Court in Thompson v. North American Stainless, L.P., held that an employee may seek relief directly under Title VII if he/she suffers an adverse employment action because of a close relationship with someone who has engaged in protected activity. This is true even where the employee has not engaged in protected activity.

The Accident Prevention Plan: Back to the Basics

It is a common practice for most companies to reevaluate and update company safety programs on an annual basis. With the safety and health of employees a main priority for employers, it is interesting that a number of companies do not have an accident prevention plan, which is a key element in any safety and health program. From the Federal Occupational Safety and Health Administration (OSHA) to state jurisdictions, safety and health programs are an integral part of program monitoring and enforcement. Failure to have a written plan to support those programs is one of the quickest ways to receive a citation.

Subcontractor Liability: Are You Your Brother’s Keeper?

You have just been awarded a large contract to build a new project, a long-awaited one that will move your company into the next stages of growth. In order to compete in the process, you hire multiple subcontractors to work with you (the general contractor). This is an exciting time, and everyone is ready to go. However, this excitement can turn into a nightmare if you fail to manage your subcontractor’s safety programs.

Employer Use of Criminal Background Checks and Credit Reports in Hiring Faces Heightened Scrutiny by EEOC

The Equal Employment Opportunity Commission (“EEOC”) has intensified its oversight of facially neutral employment criteria that may have a disparate impact on protected classes such as racial minorities and women. The EEOC’s recent initiatives including its “Eradicating Racism and Colorism from Employment” Initiative (“E-RACE,” launched in 2007), commission meetings and litigation have focused on eradicating what the EEOC views as more covert forms of discrimination, such as policies that exclude applicants with bad credit reports or criminal convictions. In light of the EEOC’s initiatives, employers who conduct credit or criminal background checks should make sure that their practices do not give rise to claims of “disparate impact” discrimination by members of protected classes.

EEOC Issues Genetic Information Nondiscrimination Act Final Regulations

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employment discrimination based on genetic information. Title II became effective on November 21, 2009. Nearly one year later, on November 9, 2010, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued final regulations under Title II of GINA. Highlights of the new regulations, which will become effective on January 10, 2011, are summarized below, along with best practices for employers.

Long Term Care Facilities May Face Increased Affirmative Action Enforcement by DOL

The Department of Labor’s (“DOL’s”) Office of Federal Contract Compliance Programs is taking a closer look at long term care facilities (in fact, all facilities that provide medical services) to ensure compliance with Executive Orders and other equal employment opportunity laws that govern federal procurement.

In Wage Disputes, Compliance is the Best Defense

Employers face an epidemic of wage-and-hour class actions and government investigations as law firm and the Department of Labor target the health-care industry.

Nonprofits: Make Distinction Between ‘Paid’ and ‘Volunteer’

The situation is familiar for most nonprofit executives: An inspired individual walks into your office and says “I believe in your organization’s cause. How can I help?” At this moment, any rational executive is undoubtedly appreciative of the opportunity to add another contributor for the right price (free). But is the organization truly enlisting a volunteer, or is it unknowingly hiring an employee? The distinction is critically important and not always easy to make.

Washington Supreme Court Holds Statutes of Limitations Do Not Apply to Arbitration Proceedings

A new Washington Supreme Court case will affect companies with arbitration agreements. It’s time to review your arbitration agreements. A narrowly-divided Washington State Supreme Court has held that an arbitration panel cannot apply the state statutes of limitations to bar a claim, unless the parties have contractually agreed to allow the arbitrators to do so. According to the Court, a general reference in an arbitration clause to forum rules will not suffice and can be grounds for vacating an arbitration panel’s dismissal of claims on the state statute of limitations.

Becoming One of the Best — Steps You Can Take to Become a Best Company to Work For

You see the list of “Best Companies to Work For” every year, but now you’ve decided to aim for it yourself next year. But how to get there? Best companies tend to have fewer employee complaints … and fewer lawsuits. Here are a few other thoughts on how to be one of the best places to work.

Cash for Clunkers — Severance Agreements for Underperformers

A framed quote in my office reads, “Irish Diplomacy: The ability to tell someone to go to hell in such a way that they look forward to making the trip.”

How do you terminate underperforming employees so that they look forward to making the trip? It’s not easy. Employers generally have no obligation to offer severance. But, if you are offering a severance package, you may be missing opportunities and creating unanticipated risks.

IRS Announces 401(k) Compliance Check Questionnaire Project

Recipients Will Have 90 Days to Complete and Return Extensive Questionnaire

Late last week, the Internal Revenue Service Employee Plans Compliance Unit (“EPCU”) announced the implementation of a new compliance initiative: the 401(k) Compliance Check Questionnaire Project (the “401(k) Compliance Project”).

New Laws Affecting Oregon Employers in 2010

Oregon employers should be aware that several new labor and employment laws went into effect Jan. 1.

Ringing in 2010 With New Laws Affecting Oregon Employers

Oregon employers should be aware that several new labor and employment laws went into effect January 1. A summary of some of the more significant new employment laws effective with the new year follows:

Plaintiffs Cannot Recover Compensatory or Punitive Damages for Federal Disability Retaliation Claims … at Least for Now

The Ninth Circuit Court of Appeals recently issued an employer-friendly decision in Alvarado v. Cajun Operating Company. The appellate court ruled that, based upon the plain language of the Americans with Disabilities Act (“ADA”), compensatory (i.e., emotional distress) and punitive damages are not available to plaintiffs claiming retaliation under the ADA. Instead, only so-called “equitable remedies,” such as reinstatement, back pay or front pay, are available to persons claiming retaliation under the ADA. Because remedies for retaliation under the ADA are strictly equitable in nature, the Ninth Circuit also ruled that plaintiffs making such claims are not entitled to a trial by jury.

Automatic Defibrillators Required for Certain Oregon Businesses

Effective January 1, 2010, Oregon law requires that businesses with 50,000 square feet or more of floor space and that have at least 25 individuals who congregate at the facility on a normal business day, have at least one automated external defibrillator (“AED”) on their premises. The law contains a Good Samaritan clause that bars lawsuits arising from the use of the AED.

OSHA Issues H1N1 Compliance Directive for Healthcare Workers

On November 20, 2009, the Occupational Safety & Health Administration (“OSHA”) issued a Directive relating to healthcare workers’ occupational exposure risks to the H1N1 flu virus. The Directive is in the form of Instructions to OSHA Compliance Safety and Health Officers (“Compliance Officers”) and its applicability is limited to the inspection of workplaces where workers are likely to have “high” to “very high” occupational exposure risks. Workers at “high” and “very high” occupational exposure risk to the H1N1 flu virus include workers who, through close contact (within six feet), attend to patients with suspected or confirmed H1N1 flu virus, or who transport such patients in enclosed vehicles. The Directive provides that inspections of such workplaces will be conducted in response to worker complaints, referrals (including media referrals), or as part of a fatality and/or catastrophic event investigation.

New Required EEOC Compliance Posters Now Available

The Equal Employment Opportunity Commission (“EEOC”) recently released a new “Equal Employment Opportunity is the Law” poster. The new poster includes updates from the Department of Labor and reflects current federal employment discrimination laws (including the ADA Amendments Act of 2008). The new poster also includes changes to the law, such as the Genetic Information Nondiscrimination Act of 2008, which took effect November 21, 2009.

Social Media May Contradict Applicant’s Info

Social media – to the unindoctrinated – includes Web sites such as Twitter, Facebook, MySpace and Youtube, as well as personal blogs. On these Web sites, individuals offer candid communications about what they are doing, whome they are doing it with, and what they think about a variety of issues from politics to the best place to buy jeans.

How Fast-Growing Companies Avoid Employment Lawsuits

Being a fastest-growing company sounds good, right?

Be careful what you wish for. Rapid growth creates real risks if you are not smart about how you grow. Here is a checklist to help avoid employee lawsuits.

Preparing for and Responding to Issues Relating to Flu Season and Specific Considerations Regarding the H1N1 Influenza Virus

On October 9, 2009, the Equal Employment Opportunity Commission (“EEOC”) updated its pandemic preparedness technical assistance document. This update is just another reminder that flu season is here. The EEOC update follows on the heels of the Secretary of Homeland Security’s issuance of a preparedness guide for businesses, specifically regarding the H1N1 influenza, and similar information provided by the World Health Organization (“WHO”). The Centers for Disease Control and Prevention (“CDC”) has also issued interim guidance on infection control measures. As the sheer volume of information about the coming flu season can be daunting, the following highlights particular concerns of these agencies as applies to businesses and provides practical tips for employers in preparing for and responding to the influenza virus.

Employers Awarded Federal Contracts Must Now Verify Employees’ Work Authorization

Effective September 8, 2009, employers with federal contracts must begin checking work authorization for employees through the government E-Verify system. The rule applies to federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act Funds. E-Verify is an Internet-based program operated by the Department of Homeland Security agency, U.S. Citizenship and Immigration Services (“USCIS”), for employers to cross-check a worker’s birth date, name, Social Security information, and visa and immigration status against records contained in Homeland Security and Social Security Administration (“SSA”) databases. Employers who enroll in the program must use it uniformly for employees, regardless of citizenship.

View full article (PDF).

Oregon Expands Religious Accommodation Rights at Work

On July 16, 2009, Oregon Gov. Ted Kulongoski signed into law the Oregon Workplace Religious Freedom Act (“OWRFA”). The new statute takes effect on January 1, 2010.

OWRFA expands existing protections against discrimination based on religion in the workplace by requiring employers to reasonably accommodate an employee’s use of leave time for engaging in religious observance or practices. OWRFA also prohibits employers from instituting occupational requirements that restrict employees from wearing religious clothing, from taking time off for holy days, or from participating in a religious observance or practice. The OWRFA contains only one occupation-specific exception: Public school teachers will be prohibited from wearing religious dress while “engaged in the performance of duties as a teacher.”

View full article (PDF).

U.S. Supreme Court Rules on Disparate Treatment Discrimination Claims Under ADEA

On June 19, 2009, the United States Supreme Court rejected a “mixed-motive” analysis and held that plaintiffs bringing disparate treatment claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. Section 621 et seq., must prove by a preponderance of the evidence that, “but for” their age, the employer would not have taken the challenged adverse employment action.

View full article (PDF).

The Low-Down on Layoffs — Thinking About a Reduction in Force?

Back in May of 2007, Dell announced plans to lay off 8,800 employees.  By October 2008, the company was embroiled in a class action discrimination lawsuit involving former employees seeking more than $500 million in damages.  While reductions in force may allow your organization to remain viable in difficult financial times, the failure to plan sufficiently and to organize a layoff can spell legal trouble.  Aside from claims alleging discrimination, you may also be facing claims for breach of contract, violation of wage statutes and even federal layoff rules (the Worker Adjustment and Retraining Notification Act, or WARN Act).   View full article (PDF).

This article appeared in Seattle Business magazine.

Revised Form I-9 Becomes Effective April 3, 2009

The Department of Homeland Security has revised the Employment Eligibility Verification Form (“Form I-9″), altering the list of documents employers may accept to verify work authorization and identity. Employers, agricultural recruiters and referrers, for a fee, must use the new version of the I-9 starting April 3, 2009. View full article (PDF).

Stimulus Plan Provisions for Favoring U.S. Workers Before Hiring H-1B Foreign Workers: Focus on Financial Institutions

The economic stimulus package that Congress passed and President Obama signed into law on February 17, 2009, imposes U.S. worker recruitment and retention, as well as record keeping obligations, on certain federal funds recipients before hiring H-1B foreign workers. View full article (PDF).

President Obama Signs Stimulus Bill Expanding Health Care Coverage Continuation Rights For Employees

President Obama today signed into law the economic stimulus bill, formally known as the American Recovery and Reinvestment Act of 2009 (the “2009 Recovery Act”). The 2009 Recovery Act contains an important expansion of health coverage continuation rights for employees who were or will be involuntarily terminated between September 1, 2008, and December 31, 2009. These involuntarily terminated employees qualify for a 65 percent reduction in their continuation health plan premiums. Their covered family members who elect continuation coverage also qualify for the same subsidy. View full article (PDF).

The New President: What the Obama Administration will Mean to Employers

Under Barack Obama’s presidency, employers should expect dramatic changes to their work environment. Here is a short summary of key labor initiatives that will likely be passed. View full article (PDF).

This article first appeared in BUILDERnews magazine.

Ledbetter Fair Pay Act Expands the Time Period for Employees to Raise Pay Claims

Considered a top priority for labor and women’s rights groups, President Barack Obama just signed the Lilly Ledbetter Fair Pay Act of 2009 (“Act”) into law today, January 29, 2009. The Act was passed by both houses of Congress as a direct response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which restricted the time period in which employees could file a discriminatory compensation lawsuit. View full article (PDF).

Reminder: Today, January 16, 2009, is the Day New FMLA Regulations Go Into Effect

The U.S. Department of Labor (“DOL”) has issued new regulations interpreting the Family and Medical Leave Act (“FMLA”). The new regulations are extensive; the regulations and the accompanying comments by the DOL occupy more than 200 pages of the Federal Register. In addition, the long awaited regulations on the new forms of leave for military families have been finalized and adopted. A copy of the new regulations, which go into effect Friday, January 16, 2009, and the DOL’s comments on the regulations, along with the revised poster, new forms and “FAQ” informational material related to both military and nonmilitary related leaves, may be found at the DOL website.

View full article (PDF).

Why Employee Performance Evaluations are Important for Every Size Business

Many small businesses mistakenly believe that because of their size, they do not face the same legal liability as larger companies when it comes to managing their employees. This can be a costly mistake. While small businesses may not be covered by federal legislation—such as Title VII or the Americans with Disabilities Act—state and local laws often apply similar standards to small businesses, including many anti-discrimination laws. View full article (PDF).

This article first appeared in BUILDERnews magazine.

10 Things You Need to Know About Section 409A

As most executives will have heard by now, Section 409A of the Internal Revenue Code changes the legal landscape for any compensation plan or arrangement that promises a benefit in one year and pays the benefit in a later year. Section 409A effectively removes much of the flexibility that previously applied to most forms of deferred compensation. Here are 10 things that every executive needs to know. View full article (PDF).

This article first appeared in Washington CEO magazine.

The Americans With Disabilities Act is Amended with Significant Changes Affecting Employers

On September 25, 2008, President Bush signed Senate Bill 3406, the “ADA Amendments Act,” into law. The ADA Amendments Act (“Amendments”), which goes into effect January 1, 2009, presents new burdens for employers as it may increase the scope of who is “disabled” under the law and an employer’s obligations to those employees. View full article (PDF).

TN Status Expanded from One Year to Three Years

U.S. Citizenship and Immigration Services (“USCIS”) is expanding the validity period of Trade-NAFTA (“TN”) status from one year to three years. TN status comes from the North American Free Trade Agreement (“NAFTA”) among the United States, Canada and Mexico. TN status is available for professional workers from Canada or Mexico to work temporarily in the United States. TN status is available to professional workers from Canada or Mexico. Three years is the same period of time that USCIS currently may grant to H-1B specialty occupation workers. The rule cleared the Office of Management and Budget on September 10, 2008, and publication is expected soon. View full article (PDF).

EEOC Issues New Compliance Manual Section on Religious Discrimination, Offering Guidance on Ways to Prevent, Recognize and Eliminate Religious Discrimination

On July 22, 2008, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Compliance Manual Section regarding workplace discrimination on the basis of religion. This new Section includes what the EEOC calls a “comprehensive review of the relevant provisions of Title VII of the Civil Rights Act of 1964 and the EEOC’s policies regarding religious discrimination, harassment and accommodation.” The EEOC also issued guidelines on best practices for both employers and employees, and a question and answer fact sheet. View full article (PDF).

Employees’ Use of E-mail for Union Support Purposes

Employers now have more flexibility in enforcing communications policies that neither ban all communication nor permit all non-business usage. View full article (PDF).

This article first appeared in Human Resources 2008 (Summer Edition).

U.S. Supreme Court Concludes “Reasonable Factors Other than Age” Exemption is an Affirmative Defense for which Employers Defending Disparate Impact Claims Under the ADEA Bear the Burden of Proof

On June 19, 2008, in Meacham v. Knolls Atomic Power Laboratory, the U.S. Supreme Court held that an employer defending a disparate-impact claim under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §621 et seq., bears the burden of persuasion (that is, the burden of persuading the trier of fact of the defense’s merit) when asserting the “reasonable factors other than age” (“RFOA”) affirmative defense under §623(f)(1). Citing prior cases under the Fair Labor Standards Act and the Equal Pay Act, the Court held that Congress intended to place the burden of proving a statutory exemption to ADEA liability, such as the RFOA defense, on the party asserting the defense. View full article (PDF).

Washington Supreme Court Holds That Statutory List of “Good Cause” Reasons to Quit Are Not Exclusive, Further Opening the Door For Claimants to Claim

On June 19, 2008, the Washington State Supreme Court issued its decision in Spain v. Employment Sec. Dep’t, unanimously ruling that the statutory list of non-disqualifying reasons for voluntarily quitting work contained in former RCW 50.20.050(2)(b)(i) through (x) is not an exclusive list for establishing eligibility for unemployment benefits. The Supreme Court reasoned that the statute, as written, does not show clear legislative intent to limit eligibility for unemployment benefits to individuals who voluntarily quit work for one of the non-disqualifying reasons listed in the statute. View full article (PDF).

New Federal Law Prohibits Employers from Requiring Genetic Testing of Employees or Discriminating Against Employees on the Basis of Genetic Testing, and Imposes New Record-Keeping Requirements on Employers

On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (“GINA”), which prohibits employers and health insurance companies from discriminating against or refusing coverage to individuals based on the results of genetic testing. Passage of this law places new burdens on employers. The Equal Employment Opportunity Commission (“EEOC”) is required to adopt implementing regulations by May 2009, and GINA becomes effective in November 2009. View full article (PDF).

Oregon Supreme Court Rejects Private Right of Action for Missed Rest Breaks

On May 15, 2008, in Gafur v. Legacy Good Samaritan Hospital and Medical Center, the Oregon Supreme Court ruled that no private right of action exists for missed rest periods under Oregon law. View full article (PDF).

Alaska Supreme Court Unanimously Affirms Trial Court Award of Overtime Pay, Prejudgment Interest, Penalties and Attorneys’ Fees to Incorrectly Classified Employee

A recent unanimous Alaska Supreme Court decision, Geneva Woods Pharmacy Inc. v. Thygesen, Opinion No. 6255 (April 25, 2008), serves as a reminder to employers of the financial risks of improperly classifying employees as “exempt” from state or federal overtime pay requirements and of failing to maintain accurate records of hours worked for nonexempt employees. Properly classifying employees can be especially tricky where, as in Geneva Woods Pharmacy, an employee is properly classified as exempt under federal law, but is nonexempt under state law. View full article (PDF).

Washington Legislative Update

The Washington State Legislature ended its regular session on March 13, 2008. The big news for employers this year is in the arena of expanded leave of absence rights for employees. Employers should pay careful attention to two new state laws that guarantee leaves of absence to employees under specific circumstances. Both of these new state leave laws apply to all employers, regardless of the size of the employer’s workforce. View full article (PDF).

Families of Military Service Members Receive Expanded FMLA Rights Under the National Defense Authorization Act

It’s 2008: Are Your Policies for Oregon Employees Up to Date?

We are now three weeks into the New Year and that means its time to ensure that your business is current on new laws that went into effect on January 1 (or in late 2007). This article contains a summary of 19 new laws affecting employers in Oregon. View full article (PDF).

What to Know When Layoffs Occur – Understanding the W.A.R.N. Act can help employees and employers in shutdowns and downsizings

In the past few months, numerous mortgage lenders have closed their doors. Several others have announced substantial layoffs, resulting in a massive decrease in industry employment. Some analysts predict this will continue for the next several months, if not longer. One result of this is that lawsuits have been filed against mortgage lenders based on violations of the Worker Adjustment and Retraining Notification (W.A.R.N.) Act. View full article (PDF).

This article was first published in Scotsman Guide Residential Edition.

EEOC Issues Fact Sheet on Employment Tests and Selection Procedures to Screen Applicants, Workers

Employers often use tests and selection procedures to identify qualified applicants or to promote current employees. These tests might include cognitive tests, physical ability tests, sample job tasks, medical examinations, criminal and credit background checks, and English proficiency tests. On December 3, 2007, the Equal Employment Opportunity Commission (“EEOC”) issued a lengthy fact sheet addressing such screening procedures. View full article (PDF).

Telecommuting: The Legal Landscape and Best Practices For Employers

Telecommuting is a work arrangement or alternative work schedule in which an employee may spend part or all of the regular work week at a location other than the employer’s office, e.g., the employee’s home. The increasing availability of Internet-based communication systems and remote access software systems has resulted in a substantial increase over the last several years in the number of employers offering telecommuting as an alternative work arrangement, and in the number of employees who choose it. Many employees view telecommuting as a way to address family obligations, reduce expenses and commute time, and improve productivity. View full article (PDF).

New Form I-9 and Handbook for Employers

The Department of Homeland Security agency U.S. Citizenship & Immigration Services (“USCIS”) announced on November 7, 2007, that it has released a new version of Form I-9, Employment Eligibility Verification, as well as the M 274, Handbook for Employers, Instructions for Completing the Form I-9. Employers are required to complete an I-9 for all new employees. USCIS has advised that it intends to make additional changes in 2008 and issue another version of the I-9 at that time. View full article (PDF).

Washington Supreme Court Holds That Drive Time To First Jobsite From Home and From Last Jobsite To Home in Company-Issued Vehicle May Be Compensable “Work Time” Under Washington Minimum Wage Act

In Stevens v. Brink’s Home Security, Inc., a class of installation and service technicians filed suit against their employer, Brink’s, alleging that the time they spent driving company-issued vehicles from their homes to the first assigned jobsite, and from the last jobsite back home, was compensable work time under Washington’s Minimum Wage Act. On October 18, 2007, the Washington Supreme Court agreed, affirming the trial court’s summary judgment in favor of the Technicians. View full article (PDF).

Feeding Assistant Regulations Upheld by Ninth Circuit Court of Appeals

On Friday, August 31, the Ninth Circuit Court of Appeals rejected a challenge to the CMS Feeding Assistant Regulations. The regulations allow States to permit skilled nursing facilities to use trained personnel to assist in feeding residents lacking complicated feeding needs. View full article (PDF).

Less Freedom for Employers to Contract: The Oregon Legislature Toughens Laws on Noncompete Agreements

On August 6, Governor Ted Kulongoski signed Senate Bill 248 into law, making more onerous the requirements for a valid noncompetition agreement between employers and their employees. View full article (PDF).

The Most Important Ten Minutes: The Oregon Court of Appeals Creates a Private Right of Action for Missed or Short Rest Breaks

The Oregon Court of Appeals has decided that an employee has a private right of action against an employer for unpaid wages if the employer fails to provide paid rest breaks to the employee as required by Oregon law. However, the employee does not have a private right of action against the employer for failure to provide unpaid meal breaks.

In Gafur v. Legacy Good Samaritan Hospital and Medical Center, 213 Or.App. 343, 161 P.3d 319 (2007), the plaintiffs brought claims against their employer for regular and penalty wages based on allegations that the employer failed to provide paid rest breaks and unpaid meal breaks. The plaintiffs also alleged a breach of contract claim based on the theory that mandatory meal and rest breaks were inherent in their employment contract. View full article (PDF).

EEOC Issues New Enforcement Guidance on “Family Responsibilities Discrimination” and Holds Public Meeting on Employer Best Practices For Work/Family Balance

On May 23, 2007, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance on “Unlawful Disparate Treatment of Workers With Caregiving Responsibilities.” This type of unlawful treatment, also referred to as “Family Responsibilities Discrimination” or “FRD,” has become fertile ground for lawsuits against employers, with FRD claims increasing 400 percent in the last decade. The Enforcement Guidance offers insight into the EEOC’s view of how agency-enforced laws apply to workers with caregiving responsibilities. View full article (PDF).

Recent Legislative Changes and How They Shift the Legal Landscape for Employers

The Washington State Legislature ended its regular session on April 22, 2007. The 2007 legislative session resulted in the passage of several bills that will directly — and likely significantly — affect employers in Washington. Signed by Governor Gregoire on May 4, 2007, SSB 5340 represents the legislative overrule of the Washington Supreme Court’s 2006 decision in McClarty v. Totem Electric, Inc. SSB 5340 amends the Washington Law Against Discrimination (“WLAD” and codifies a definition of “disability” under state law that is much broader than the definition under the federal Americans with Disabilities Act (“ADA”) previously adopted by McClarty. The WLAD has also been amended to include “honorably discharged veteran or military status” as a new protected category, and Washington’s Fair Credit Reporting Act has been amended to limit employers’ access to employee credit information. View full article (PDF).

Cap for H-1Bs Hit in One Day: Some Options Remain

Each year there are 65,000 new H-1B slots available for companies to hire foreign workers. The quota is available starting October 1, and cases can be filed six months in advance. This year, U.S. Citizenship & Immigration Services (“USCIS”) received more than 150,000 H-1B petitions on April 2, 2007, depleting the cap in one day. View full article (PDF).

Telecommuting – The Legal Landscape and Best Practices for Employers

Telecommuting is a work arrangement or alternative work schedule in which an employee may spend part or all of the regular work week at a location other than the employer’s office, e.g. the employee’s home. The increasing availability of internet based communication systems and remote access software systems have resulted in a substantial increase over the last several years in the number of employers offering telecommuting as an alternative work arrangement, and in the number of employees who choose to telecommute. Many employees view a telecommuting arrangement as a way to address family obligations, reduce expenses and commute time, and improve productivity by eliminating interruptions and distractions in the work place. View full article (PDF).

IRS Finalizes Section 409A Regulations for Deferred Compensation–Summary of Key Provisions

The final regulations under Section 409A of the Internal Revenue Code were issued on Tuesday, April 10. Section 409A was added to the Code by the American Jobs Creation Act of 2004 and establishes strict rules for payment of deferred compensation. Failure to comply with the regulations results in significant adverse tax consequences. The regulations must be considered when drafting any type of deferred compensation agreement, including severance plans.

Together, the preamble and regulations were 397 pages in length, and will certainly require an investment of time to digest completely. Lane Powell’s summary of the key provisions provides a starting point. View full article (PDF).

Ninth Circuit Court of Appeals Affirms That Employers May Consent to Government Search and Seizure of Employee’s Private Office and Workplace Computer

In a unanimous decision, a three judge panel of the United States Court of Appeals for the Ninth Circuit affirmed that an employer has the ability to give valid third party consent for a government search of an employee’s private office and workplace computer located on the company premises. In United States v. Ziegler, the defendant, Brian Ziegler, was convicted by a lower court of various criminal charges arising from his use of his workplace computer to view and download child pornography. View full article (PDF).

Washington Supreme Court Refuses to Award Federal Income Tax Offsets for Noneconomic Damages – Gives Guidance on Attorneys’ Fees Awards Under the Washington Law Against Discrimination

In Pham v. City of Seattle, two employees sued the City of Seattle for employment discrimination on the basis of race and national origin under the Washington Law Against Discrimination (“WLAD”), Chapter 49.60 RCW. The jury awarded the plaintiffs front pay, back pay and noneconomic damages. Following the jury verdict, the trial court awarded the plaintiffs additional money to offset the adverse federal income tax consequences they would suffer from receiving a “lump sum” front and back pay award, but declined to award an offset for the tax consequences attributable to their noneconomic (emotional distress) damages award. The trial court also reduced the plaintiffs’ requested attorneys’ fees by $50,000 and declined to enhance the reduced fees by a “multiplier” to compensate plaintiffs’ attorneys for the risks they took, given the contingent nature of success. View full article (PDF).

Unions Allowed to Pressure Investors to Assist Unionization of Investments

The National Labor Relations Board recently ruled that a prospective investor, landlord or customer may require, as a condition of during business with it, that a party (business owner) must commit to waive its legal rights to oppose unionization of its employees. The business owner must make the same analysis that is made in its other business decisions: is the benefit worth the cost? View full article (PDF).

Deadline for Speeding up the Green Card Process Approaches, Window Closes January 20, 2007

A window is open for employers who filed the first phase of the green card process for foreign employees to convert to a speedier process. The window closes January 20, 2007. View full article (PDF).

Washington Court of Appeals Expands the Basis for Awarding Statutory Attorney’s Fees to Successful Employee Claimants

In a unanimous decision, a three judge panel of the Washington Court of Appeals, Division One, awarded attorney’s fees under RCW 49.48.030 in a case where the plaintiff’s claim for lost future wages was not based on a contractual obligation or a wrongful termination. View full article (PDF).

Deficit Reduction Act Deadline Is Rapidly Approaching – Providers Must Be Ready With Employee Education About False Claims and Whistleblower Protections

The federal government wants your employees to know more about false claims and whistleblower protections — and is requiring you to tell them. On January 1, 2007, key provisions of the Deficit Reduction Act (“DRA”) will go into effect, and employers should start preparing now. View full article (PDF).

Guidelines and FAQ on Visa Retrogression

Heavy demand for employment-based permanent resident status can create backlogs and long waits to obtain “green cards,” sometimes due to retrogression of immigrant visa numbers. While retrogression and lengthy processing is frustrating, in many instances applicants and family can remain and work in the United States, and travel abroad, while waiting for quota backlogs to subside. View full article (PDF).

Two New Cases Give Guidance Regarding Requirements For Effective Releases of Federal Age Discrimination Claims

First Case: Ninth Circuit Reinstates Employees’ Age Discrimination Claims, Even Though Workers Signed Releases, Holding That Waivers Were Confusing to the Average Employee. View full article (PDF).

Washington State Supreme Court Narrows Definition of Disability Under Washington’s Law Against Discrimination

In an employer-friendly decision, a fractured Washington Supreme Court has adopted the federal definition of “disability” and rejected the definition promulgated by the Washington Human Rights Commission (“HRC”). In McClarty v. Totem Electric, a 5-4 majority ostensibly resolved the ongoing debate over the proper definition of a disability under the Washington Law Against Discrimination (“WLAD”), holding that “a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) is [sic] regarded as having such an impairment.” This definition is identical to “disability” as defined under the Americans With Disabilities Act (“ADA”). The ruling is a striking departure from the more expansive definition of disability found in WAC 162-22-020, which Washington courts had previously adopted. View full article (PDF).

United States Supreme Court Decision Makes Dismissal of Title VII Retaliation Claims More Difficult

The United States Supreme Court has changed the rules for most courts in assessing whether an employer’s actions are retaliatory in violation of Title VII. A unanimous decision, just issued in Burlington Northern & Santa Fe Railway Co. v. White, holds that retaliation in violation of Title VII of the Civil Rights Act of 1964 includes any conduct that a reasonable employee would have found materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” View full article (PDF).

New Washington Law Outlines Standards, Deadlines, and Procedures That Apply to Department of Labor and Industries’ Wage and Hour Investigations, Provides Authority for L&I to Issue Citations, Authorizes Civil Penalties, and Provides Employers With Protections and Safeguards

On March 17, 2006, Washington Governor Christine Gregoire signed Substitute House Bill (“SHB”) 3185 into law. SHB 3185 adds several new sections to Chapter 49.48 RCW, and will go into effect on June 15, 2006. As an overview, SHB 3185 provides (for the first time) specific standards, deadlines, and procedures that apply to the Washington Department of Labor & Industries’ (“L&I”) investigations and determinations concerning employer compliance with various specific state wage requirements under Washington law. View full article (PDF).

Employer Adviser – Winter 2005/2006

Employer Adviser – Winter 2005/2006: View full article (PDF).

Is the Union Knocking? – Steps Employers Can Take to Address Unionization

The recent split in the AFL-CIO is certain to result in increased levels of union organizing. (See BUILDERNews, September 2005, “AFL-CIO Split – The Largest Union Pullout in Over 70 Years.”) These developments present new challenges for employers in the building industry who may not have previously been targeted for unionization. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

Department of Labor and Industries Adopts New Payroll Deduction Regulations That Take Effect on January 1, 2006

On January 1, 2006, the existing Washington state wage deduction regulation (WAC 296-126-025) will be replaced with three new regulations: (1) WAC 296-126-025, which will govern deductions from an employee’s final wages; (2) WAC 296-126-028, which will govern deductions from a current employee’s wages during ongoing employment; and (3) WAC 296-126-030, which will provide a new procedure that employers can use to make deductions from employee wages to correct for prior wage overpayments. View full article (PDF).

United States Supreme Court Finds Walk Time Between Changing Areas and Work Stations Compensable Under the FLSA and Portal-to-Portal Act for Employees

In a unanimous decision issued on November 8, 2005, in IBP, inc. v. Alvarez, the United States Supreme Court affirmed the Ninth Circuit Court of Appeals’ decision in Alvarez v. IBP, inc., 339 F.3d 894 (2003), holding that the time employees at a meat processing plant spent walking between the changing area and the employees’ work stations was compensable under the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947. View full article (PDF).

CMS Letter to SA Directors Provides Guidelines For Nursing Home Compliance With Federal Screening Requirements During the Hiring Process

On September 22, 2005, Centers for Medicare and Medicaid Services (“CMS”) issued a letter to State Survey Agency (“SA”) Directors asking them to remind all Medicare and Medicaid participating nursing homes of the federal requirements related to screening potential employees and checking with all appropriate nurse aide registries. View full article (PDF).

H-1B Cap Hit Before Year Ends

Without warning, U.S. Citizenship and Immigration Services (“USCIS”) announced on August 12, 2005, that the H-1B quota for the coming year had been reached two days earlier, on August 10, 2005. Once again, this shows that demand for an educated workforce has outstripped the contracted supply in the United States. Unless Congress acts, employers will be left to consider alternatives or to turn away valuable foreign candidates for openings through September 30, 2006. View full article (PDF).

Protecting Company Ownership in Employee Developments

Know the steps to take to help ensure that your company’s trade secrets, inventions and works of authorship are owned exclusively by the company. Written agreements with employees in the form of Inventions Agreements, Non-Compete Agreements and Confidentiality Agreements establish the company’s ownership rights and protect the company’s intellectual property from employee misuse. View full article (PDF).

Relief for Procrastinators–IRS Relaxes Cafeteria Plan “Use-it-or-Lose-it” Rule

After years of warning flexible spending account (“FSA”) participants about the “use-it-or-lose-it” rule, the IRS has issued a notice that provides a very significant exception to the rule and allows FSA participants to receive reimbursement for expenses INCURRED up to 2 1/2 months after the end of the plan year. Although most FSAs already have a grace period for submission of expenses after the end of the plan year, the expense is reimbursable only if it was incurred during the preceding plan year. Notice 2005-42 expands this rule by allowing reimbursement of expenses even if they are incurred during the first 2 1/2 months of the subsequent plan year. View full article (PDF).

Immigration Service Reverses Position, Limiting H-1B “Bonus” Numbers to Master’s Degrees; Filing Begins May 12, 2005

Beginning May 12, 2005, 20,000 “bonus” H-1Bs will become available for employers who wish to hire foreign workers this year in occupations for which degrees are required. However, U.S. Citizenship and Immigration Services (“USCIS,” formerly the Immigration and Naturalization Service (“INS”)) reversed its previous position and limited the bonus numbers to persons with U.S. Master’s degrees, instead of allowing persons with Bachelor’s degrees or the equivalent to apply. View full article (PDF).

New Law Impacts Deferred Compensation Plans Starting in 2005

In the wake of the Enron disaster, the freshly minted American Jobs Creation Act of 2004 takes aim at “deferred compensation” arrangements. Starting in 2005, this new law dictates what deferred compensation plans can and cannot do. The new law contains some unpleasant surprises. Failure to comply can mean dire tax consequences for employees. View full article (PDF).

United States Supreme Court Recognizes Disparate Impact Claims Under the Age Discrimination in Employment Act

On March 30, 2005, in Smith v. City of Jackson, the United States Supreme Court, in a 5-3 decision, expanded liability under the federal Age Discrimination in Employment Act of 1967 (ADEA) to include disparate impact claims. Disparate impact discrimination occurs when a neutral employment practice has an adverse effect on a protected class of persons (e.g., workers age 40 and older). The Supreme Court previously recognized such claims under Title VII of the Civil Rights Act of 1964 over 30 years ago. Since that time, federal appellate courts remained split as to whether a disparate impact theory of liability could also be used by employees in ADEA age discrimination lawsuits, with the Ninth Circuit Court of Appeals authorizing disparate impact claims. View full article (PDF).

H-1B Cap Opens With 20,000 More Numbers, Not Limited to Master’s Degrees

More H-1Bs are about to become available for employers who wish to hire foreign workers in occupations for which degrees are required. With what appears to be uncharacteristic generosity, U.S. Citizenship and Immigration Services (“USCIS,” formerly the Immigration and Naturalization Service (“INS”)) has made 20,000 more H-1B numbers widely available, in addition to the pre-existing annual cap of 65,000 H-1Bs. View full article (PDF).

New Military Service Law Creates Obligations for Employers (Employee Benefits version)

On December 10, 2004, the Veterans Benefits Improvement Act (“VBIA”) was signed into law by the President. The VBIA amends the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and provides a number of enhanced benefits to members of the uniformed services. This new law affects employers in two significant ways. View full article (PDF).

Guidelines For Permanent Resident Status

PERM regulations promise faster processing for labor certification and employer sponsored green cards. Backlog reduction will focus on pending cases. View full article (PDF).

Reminder: Summary of Work-Related Injuries and Illnesses to Be Posted by February 1, 2005

Regulations issued by the Occupational Safety and Health Administration (“OSHA”) require companies that have employed more than ten (10) employees at any time during the preceding year to post a summary of all “work-related injuries and illnesses” that occurred during the preceding calendar year. “Work-related injuries and illnesses,” for the purposes of OSHA, are not necessarily equivalent to work-related injuries and illnesses for the purposes of workers’ compensation laws and regulations. For example, with some exceptions, injuries and illnesses requiring only first aid need not be reported on the OSHA forms. View full article (PDF).

Washington Supreme Court Affirms General Enforceability of Agreements to Arbitrate Employment Disputes

On December 23, 2004, the Washington Supreme Court decided two cases that raised related issues regarding the enforceability of pre-dispute arbitration agreements in the employment context. In Zuver v. Airtouch Communications, Inc., the employer required the agreement as a condition of employment, while the employer in Adler v. Fred Lind Manor presented the agreement to the plaintiff three years after he began working for his employer. View full article (PDF).

All Eyes on the Supreme Court: Does the ADEA Allow for Disparate-Impact Claims?

Firm attorneys D. Michael Reilly and Karin Valaas take a careful look at Smith v. City of Jackson, No. 03-1160, argued before the U.S. Supreme Court in November 2004. The age discrimination case has important implications to both employers and employees alike, as the case could have significant effects on employee compensation and benefits. View full article (PDF).

How to Douse the Fuse When the Political Talk Heats Up

The Seattle Post-Intelligencer article looks at the divisive nature of political debate among employees. Reilly suggests that such talk distracts any workplace from its chief concern – work. View full article.

New Tax Legislation Can Significantly Improve the Ability of Employers to Settle Employment Discrimination Cases

A new federal tax bill, the American Jobs Creation Act of 2004 (“AJCA”) (H.R. 4520), was signed into law on October 22, 2004. This new law contains a provision of particular interest to employers. Found in Section 703 of the AJCA, captioned “Civil Rights Tax Relief” and codified in Section 62(a)(19) of the Internal Revenue Code, the provision changes the tax treatment of settlements and awards in employment discrimination cases by allowing an offsetting “above the line” deduction for the attorney fees and costs recovered by a plaintiff and included in his or her gross income. View full article (PDF).

Significant Nonqualified Deferred Compensation Plan Legislation Headed for President’s Desk

New legislation that promises to significantly alter the landscape for nonqualified deferred compensation plans – plans typically designed for executives to supplement company-sponsored retirement programs – is on its way to the President’s desk where it will likely be signed into law. View full article (PDF).

Washington Supreme Court Refuses to Enforce Non-Compete Agreement Signed After Commencement of At-Will Employment – Continued Employment and Additional Training May be Insufficient Consideration

In Labriola v. Pollard Group, Inc., the Washington Supreme Court unanimously invalidated, based on lack of consideration, a non-compete agreement signed five years after hiring an at-will employee. The Court rejected the employer’s contention that continued employment and additional training constituted sufficient consideration. View full article (PDF).

Companies Increasingly Saying Smokers Need Not Apply

Reilly quoted in article. Smokers cost employers an average of $753 per year more in medical costs than nonsmokers, and miss an average of two more workdays a year than nonsmoking colleagues. Activists groups contend, however, that employers are selectively targeting smokers while ignoring other health risks that cost them even more money. View full article.

How Can I Miss You When You Won’t Go Away? – New Rules Complicate Mandatory Cash-Outs From Retirement Plans

Under final regulations published on September 28, 2004, sponsors of qualified retirement plans who want to “cash-out” small accounts will have to jump through some additional hoops for distributions made on or after March 28, 2005. Sponsors should begin planning now to make sure that they have time to implement their decisions before the effective date. View full article (PDF).

H-1B Blackout Hit In One Day

The H-1B program for temporary workers opened and closed in one day this year and, unless Congress acts, H-1Bs will not be available again until October 1, 2005. In the meantime, employers will have to consider alternatives. View full article (PDF).

Disability Discrimination Laws – How They Affect You and How to Comply

THE COURTS HAVE BEEN ACTIVELY clarifying and, in some cases, expanding the obligations of employers in the complex area of employment discrimination. This second of a two-part article summarizes recent developments affecting employers on the West Coast and suggests compliance strategies for dealing with these obligations. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

Feeding Assistants Class Action

To address the critical shortage of certified nursing assistants, the Department of Health and Human Services, Centers for Medicare andamp; Medicaid Services promulgated regulations effective 2003 that permit long-term care facilities to use paid feeding assistants to supplement services of certified nurses aides. Controversial at their inception, the regulations are now under official attack in the Residents Council of Washington et al. v. Thompson case, which was filed in the United States District Court for the Western District of Washington on July 30, 2004. This article covers the regulations and the pending litigation, which may impact the long-term care industry on a national level. View full article (PDF).

Disability Discrimination Laws – How They Affect You and How You Should Comply

The courts and state legislatures have been active in clarifying and, in some cases, expanding the obligations of employers in this complex area. Part 1 of this two-part article summarizes some of the recent developments affecting employers on the West Coast and suggests compliance strategies for dealing with these obligations. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

Washington Employees Must Demonstrate That an Accommodation Is Medically Necessary

In Riehl v. Foodmaker, Inc., the Washington Supreme Court provided guidance to employers responding to employee requests for reasonable accommodations for disabilities. View full article (PDF).

Tips for Presenting Immigration Applications and Petitions at U.S. Border Crossings and Airports

In view of the September 11 tragedy in the United States there is heightened scrutiny of persons seeking to enter the country, by land, sea, and air. The Immigration and Naturalization Service (“INS”) was abolished in March 2003, and immigration functions were transferred to the several agencies under the U.S. Department of Homeland Security. At the border and airports, immigration functions are handled by Customs and Border Protection (“CBP”). Immigration officials have said that there are no new special procedures. However, if you are driving, there may be long waits at the border crossings, especially in the summertime and during holidays. You can check www.borderlineups.com before you go, to view the camcorder shots of the lines at Canadian border posts. If you are flying, you should allow two hours for processing of your immigration application or petition. View full article (PDF).

USVISIT Fingerprints and Photographs of Visa Holders Begin in January 2004

Visa holders entering the United States or returning after visits abroad now must be fingerprinted and photographed before entering the country. The Department of Homeland Security launched the United States Visitor and Immigrant Status Indicator Technology (“USVISIT”) program, a new entry-exit registration program, at 115 airports and 14 seaports (those with cruise ships) on January 5, 2004. Land border processing is scheduled to be introduced in phases through 2006. View full article (PDF).

B1/B2 Business Visitors and Tourists

With the focus of U.S. immigration policy shifting to “Homeland Security,” visitors to the United States may face heightened scrutiny even over a simple business trip or visit. According to the U.S. Citizenship & Immigration Services (“USCIS”), millions of visitors are admitted to the United States each year under business visitor (B-1) and tourist (B-2) visas. Previously, visitors with B1/B2 status were automatically allowed to stay six months in most cases. Now, the policy is shifting from automatically granting visitors six-month visits, to limiting the stay to “a period of time that is fair and reasonable for completion of the purpose of the visit.” The de facto limit appears to be 30 days, unless the person can provide evidence of a need to remain in the U.S. longer. Persons from friendly “visa waiver” countries (described below) might be able to stay for up to 90 days, although the policy is currently unclear.

New Statute: A Trap for Unwary Contractors and Developers?

Consider this scenario: Your company is retained to serve as the general contractor to build a development in California of a hundred single family homes. You subcontract out the drywall, masonry, and cleanup work to other contractors, each of whom submitted very attractive bids. Two years later, long after the project has been completed, your company is served with a lawsuit filed on behalf of the employees of each of the subcontractors. Over 20 employees are named as plaintiffs, and they are all seeking unpaid overtime, unpaid vacation benefits, as well as penalties and attorneys’ fees. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

IMMIGRATION LAW: The Basics for Businesses

The Immigration and Nationality Act (“INA” or the “Act”)1 provides the basic framework for regulating the flow of foreign visitors, foreign workers, and permanent residents to the United States. This Act sets forth the channels for nonimmigrant (temporary) classification and immigrant (permanent resident) classifications. Through February 28, 2003, the INA was administered primarily by the Immigration and Naturalization Service (“INS”) under the U.S. Department of Justice (“DOJ”). On March 1, 2003, the INS was abolished, and most immigration functions were transferred to the U.S. Department of Homeland Security (“DHS” or “Homeland Security”), except for Immigration Court functions, which remain in the DOJ,2 and some visa issuance functions that remain under the Department of State (“State Department” or “DOS”). View full article (PDF).

Supreme Court Rules That “Constructive Discharge” Can Be “Tangible Employment Action In Title VII Cases

In a case with some bad news and some good news for employers, Pennsylvania State Police v. Suders (U.S. Supreme Court, June 14, 2004), the United States Supreme Court held that:

Final COBRA Regulations Published May 26, 2004: Health Plan Sponsors Must Act

On May 26, 2004, the U.S. Department of Labor published final COBRA regulations. The final regulations vary only slightly from the proposed regulations published in May 2003. They provide safe-harbor model notices for the two most common COBRA notices and require health plan sponsors to develop two new types of notices. View full article (PDF).

Department of Labor Overhauls Overtime Regulations

On April 20, 2004, the Department of Labor (“DOL”) announced final rules overhauling the overtime regulations of the Fair Labor Standard Act (“FLSA”). The new “FairPay” rules become effective August 18, 2004. The rules provide substantive changes to the FLSA’s overtime regulations, some of which have not been updated since 1949. View full article (PDF).

Prevailing Plaintiffs May Obtain Additional Recovery to Offset Adverse Tax Consequences Resulting From Damage Awards Under the Washington Law Against Discrimination

In Blaney v. International Ass’n of Machinists, (Washington Supreme Court, April 1, 2004), the Washington Supreme Court held that, in addition to other remedies, a prevailing plaintiff may also recover a monetary amount sufficient to offset the adverse tax consequences associated with an award of damages under the Washington Law Against Discrimination (“WLAD”). View full article (PDF).

Update to Payroll Departments for Large Corporations with Non-Qualified Stock Option Plans

Some corporations have been hit with multimillion dollar penalties for late deposits of amounts withheld for income tax and employment tax purposes from nonqualified stock option (NQSO) exercises. Employers should confirm that any income and payroll tax deposits on NQSO exercises are being made within the 3-day grace period described below. If brokerages are handling the actual withholding, compliance with the 3-day grace period rule may require expediting the collection of withheld amounts from brokers – including any amounts required to be withheld from cashless exercises. View full article (PDF).

Recent Oregon Events Raise Issues For Oregon Employers With Employees In Same-Sex Marriages

Multnomah County, in Oregon, began issuing marriage licenses to same-sex couples on March 3, 2004. Undoubtedly, gay and lesbian employees residing in Oregon who have recently married will request that their employers recognize the marriages and provide the same benefits the employees’ heterosexual counterparts receive. Although the validity of those licenses is being challenged in court, until there is a definitive ruling, an employer’s safest course of action, in many instances, will be to presume that marriages entered into pursuant to those licenses are valid in Oregon.

United States Supreme Court Rejects “Reverse” Age Discrimination Claim

In General Dynamics Land Systems, Inc. v. Cline (U.S. Supreme Court, February 24, 2004), the United States Supreme Court rejected plaintiffs’ claim that the Age Discrimination in Employment Act (ADEA) is violated when “reverse” age discrimination favors older workers over a group of younger workers — even though the younger workers are at least 40 years old. View full article (PDF).

Reduction in Force in the Last Three Years? Act Soon for FICA Tax Refunds and Property Tax Reductions

The economic downturn in the last few years forced many employers to implement substantial involuntary and voluntary layoffs. These reductions in force (“RIFs”) are also the foundation for two potential tax savings opportunities:

DOL Takes Sides in Civil Suit Against Corporate Board of Directors

The U.S. Department of Labor (DOL) recently filed an amicus brief with a federal court in Oklahoma in support of a class action lawsuit brought by 401(k) plan participants against the board of directors of the company that sponsored their plan. As discussed below, the position taken by the DOL has potentially significant implications for directors of corporations which sponsor retirement plans – especially retirement plans that permit investment in the stock of the sponsoring corporation. View full article (PDF).

Another HIPAA Deadline Approaches

Employers who sponsor group health plans breathed a sigh of relief after gearing up to comply with the Privacy Rules under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) by the April 14, 2003, deadline. Now there’s another fast-approaching HIPAA deadline – the October 16, 2003 deadline for conducting electronic transactions according to HIPAA standards. These standards are typically referred to as the electronic data interchange or EDI standards. View full article (PDF).

INS Successor BICE Conducts

In a steady stream of arrests in the summer of 2003, the Bureau of Immigration and Customs Enforcement began cracking down on companies in such diverse locations as the Sears Towers in Illinois, near the Air Force Academy in Colorado, and the Saratoga Race Course in New York. View full article (PDF).

INS to Dissolve March 1, 2003

As of March 1, 2003, the Immigration & Naturalization Service (“INS”) will cease to exist. It will be abolished and all immigration functions will be transferred to the Department of Homeland Security, except for Immigration Court functions which will remain in the Department of Justice. Immigration benefits (visa, green card, and citizenship processing) will be handled by the Department of Homeland Security’s Bureau of Citizenship and Immigration Services (“BCIS”). View full article (PDF).

New State Regulations on Exempt

The Washington Department of Labor & Industries (L&I) recently adopted a new “salary basis” regulation to clarify what requirements must be satisfied with respect to an executive, administrative or professional employee’s salary in order to ensure that the employee is exempt from state minimum wage and overtime requirements. View full article (PDF).

Rules for Supervisory and Management Personnel During Union Organizing Campaign

These materials were presented as part of “Unions and Your Company,” a seminar produced by Lane Powell. View full article (PDF).

Responding to a Union Organizing Campaign

These materials were presented as part of “Unions and Your Company,” a seminar produced by Lane Powell. View full article (PDF).

Labor Law Traps for the Non-Union Employer

These materials were presented as part of “Unions and Your Company,” a seminar produced by Lane Powell. View full article (PDF).

Washington Supreme Court Rules That Partial-Day Deductions From a Salaried Employee’s Leave Bank May Be Considered in Determining Whether an Employee is Exempt

At the request of the United States District Court in Seattle, the Washington Supreme Court recently issued a new decision that addresses three questions of law concerning the application of the “salary basis” test to overtime exemptions under Washington law. Webster v. Public Schools Employees of Washington, Inc. (Wash. S. Ct. Jan. 9, 2003.) View full article (PDF).

Washington Supreme Court Finds Employees Can Claim Hostile Work Environment Based Upon Disability Under Washington Law

For the first time, the Washington Supreme Court has held that Washington’s Law Against Discrimination allows an employee to bring a suit alleging hostile work environment harassment based upon disability. Robel v. Roundup Corp. (Wash. Sup. Ct. Dec. 12, 2002). View full article (PDF).

Employees May Recover Extra Money to Pay Taxes on Jury Award

In Blaney v. International Association of Machinists and Aerospace Workers, District No. 160 (October 2002), the Washington Court of Appeals addressed whether adverse federal income tax consequences constitute “actual damages” that may be recovered by a successful employment discrimination plaintiff. View full article (PDF).

Ninth Circuit Confirms That Employees May Be Required to Arbitrate Title VII Claims as a Condition of Employment

A new decision by the Ninth Circuit Court of Appeals (which includes Washington, Oregon and California, among other states) has clarified that employers may require employees to sign agreements to arbitrate all employment-related claims, including claims under Title VII. In EEOC v. Luce, Forward, Hamilton & Scripps (9th Cir. 2002), a job applicant rehsed to sign an arbitration agreement required by his prospective employer as a condition of employment. As a result, the employer rehsed to hire him. View full article (PDF).

Deadline For Compliance With Health Information Privacy Regulations Is Looming: Group Health Plan Sponsors Must Prepare

Final regulations protecting the privacy of individuals’ medical information were included in the flurry of major regulatory pronouncements issued in the waning days of the Clinton administration. Hopes in some quarters that a Republican administration would rescind or ease the regulatory burdens of the privacy regulations have not been realized. In fact, in December 2001, Congress codified into law the April 14, 2003, deadline for compliance with the privacy regulations. View full article (PDF).

United States Supreme Court Upholds EEOC

In Chevron USA, Inc. v. Echazabal (June 10, 2002), the United States Supreme Court unanimously ruled that employers may rehse to hire an applicant for a position when that position poses a direct threat to the applicant’s health or safety without violating the Americans With Disabilities Act (“ADA”). View full article (PDF).

Seniority System Ordinarily Trumps an Accommodation Request Under The Americans With Disabilities Act

In US. Airways, Inc. v. Barnett, the United States Supreme Court held that an employer is not ordinarily required to violate a seniority system in order to accommodate the request of a disabled employee. Ordinarily, a requested accommodation that is contrary to an employer’s seniority system will be deemed unreasonable. However, the door remains open for an employee to show special circumstances that make an exception to the seniority rule reasonable in a specific case. View full article (PDF).

United States Supreme Court Rules Illegal Alien Worker Not Entitled to Backpay

In Hoffman Plastic Compounds v. National Labor Relations Board, 00-1595 (Mar. 27,2002), the U.S. Supreme Court ruled that a foreign national who was not authorized to work in the United States was not entitled to backpay from the employer who fired him for union organizing activities. View full article (PDF).

United States Supreme Court Clarifies Family Medical Leave Act and Invalidates Conflicting Department of Labor Regulation

In Ragsdale v. Wolverine Worldwide, Inc. (Mar. 19, 2002), the U.S. Supreme Court considered a federal Department of Labor regulation that stated “[i]f an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement. View full article (PDF).

U.S. Supreme Court Narrows What Is Considered a “Disability” Under the ADA

Two recent opinions provide guidance for employers in determining what constitutes a “disability” under the Americans With Disabilities Act (ADA) and what steps are necessary to provide “reasonable accommodations” to disabled employees under the Washington Law Against Discrimination (WLAD). View full article (PDF).

Ninth Circuit Reiterates Importance of Interactive Process in ADA Reasonable Accommodation and Rejects EEOC’s Approach to Safety-Related Job Requirements

In another blow to employers seeking summary dismissal of claims brought under the Americans with Disabilities Act (ADA), last week the Ninth Circuit Court of Appeals reversed a district court summary judgment in Morton v. United Parcel Service, Inc. View full article (PDF).

Washington Court Restricts Overtime Exemption for Commissioned Employees to Sales Personnel Only

Continuing its recent trend of limiting exemptions from the overtime provisions of the Washington Minimum Wage Act, the Washington Court of Appeals has held that the exemption from overtime pay for commissioned employees of retail and service establishments applies only to those employees working principally as salespersons.  View full article (PDF).

Oregon Employers May Be Subject to Costly Penalties For Improper Deductions From Paychecks and Delays in Paying Wages to Departing Employees

The federal Ninth Circuit Court of Appeals has recently reaffirmed that, under the Oregon state wage laws, an employee could recover statutory damages because of the employer’s unlawful deduction from her paycheck and delay in paying her wages on termination, including penalty wages. The employee had given notice and quit, but the employer deducted a sum from her final paycheck for office supplies her manager believed she had taken.  View full article (PDF).

Military Leave

In light of recent events, President Bush has announced the activation of many military reserve units and the possibility of military action. Our thoughts are with all those whose lives have been impacted by the events of last week and who will be affected by calls for military service. During this difficult time, we offer the information below to help answer questions our clients might have about their obligations to employees who are in, or may become members of, the armed services of our country, including the reserves and National Guard. View full article (PDF).

Privacy In The Workplace

These materials were presented as part of “Monitoring, Investigating, and regulating On-Duty and Off-Duty Conduct of Employees,” a seminar produced by Lane Powell. View full article (PDF).

Written Contract May Not be the Last Word: Oregon Supreme Court Rules At-Will Provision in Contract Did Not Apply

The Oregon Supreme Court has ruled that verbal statements and conduct can override a written contract describing an at-will relationship with an independent contractor. At the same time, however, the Court also rejected the contractor’s claim that the company was liable to him in tort for breach of a duty of good faith based on their “special relationship.” Although this case concerned an independent contractor relationship and was decided under Oregon law, the ruling should serve as a reminder to employers elsewhere as well. View full article (PDF).

Lane Powell Wins Victory For Employers: Washington Supreme Court Sets Standard For Claims to Reach Juries, Preserves Ability to Dismiss Marginal Claims before Trial

Issuing what may be the most significant decision for employers in the past three years, the Washington Supreme Court yesterday clarified the standard that a plaintiff employee must meet in order for his or her state law discrimination claim to reach a jury. The case is entitled Hill v. BCTI, No. 23219-11 (Wash. S. Ct. May 17, 2001) and in it the Court ruled that, to avoid dismissal, an employee plaintiff must present some evidence that the employer’s adverse decision was motivated by discriminatory animus. View full article (PDF).

Washington Supreme Court Rules That Supervisors Can Be Individually Liable For Workplace Discrimination

In a ruling likely to cause concern among human resources professionals, the Washington Supreme Court addressed for the first time whether Washington’s Law Against Discrimination applies to individual managers. Brown v. Scott Paper Worldwide Co., (Wash. Sup. Ct., April 5, 2001). The state’s highest Court ruled that supervisors accused of discriminatory conduct are “employers” as defined in the statute, and are subject to suits alleging harassment and discrimination. View full article (PDF).

Deadline For Assistance For Illegal Aliens — April 30, 2001

U.S. Supreme Court Resolves Arbitration Controversy: Arbitration Agreements In Employment Contracts Are Enforceable Under Federal Arbitration Act

On March 21, 2001, the U. S. Supreme Court ruled in Circuit City Stores v. Adams, that agreements to arbitrate employees’ claims against their employers are enforceable under the provisions of the Federal Arbitration Act (“FAA”). Adams, an employee of Circuit City in Santa Rosa, California, had signed an agreement to arbitrate any claims against his employer, but instead sued his employer in court for discrimination. View full article (PDF).

Some Peace on the Business Method Patent Front

On Valentine’s Day, the U.S. Court of Appeals for the Federal Circuit gave a sweetheart present to Internet retailers and others who had feared they might be held to be infringing others’ patents. Amazon.com, however, had to feel it was left home without a date. View full article (PDF).

Not a One Shot Deal – The Ninth Circuit Explains the Employer’s Continuing Duty to Accommodate Disability

The Ninth Circuit Court of Appeals ruled that an employer had not fullfilled its duty to accommodate a disabled employee, where the employer had given its employee one accommodation that had not worked out and then fired her. Humphrey v. Memorial Hospitals Ass’n, No. 98-015404 (9th Cir., Feb. 13, 2001). View full article (PDF).

U.S. Supreme Court Issues Ruling Favorable to Arbitration of Federal Statutory Consumer Protection Claims: Is There Hope For Arbitration of Employment Disputes

During December 2000, the U.S. Supreme Court decided a case entitled Green Tree Financial Corp. v. Randolph, holding that arbitration agreements requiring mandatory arbitration of federal statutory rights are not rendered unenforceable merely because the agreement is silent with regard to the costs of arbitration. View full article (PDF).

New Regulations Affect Employee Benefit Plans

In the waning days of the Clinton administration, federal regulators have issued three separate sets of final regulations affecting employee benefit plans subject to the Employee Retirement Income Security Act of 1974 (ERISA), especially health plans.  View full article (PDF).

Accommodating Religious Beliefs and Preventing Harassment Claims in the Workplace

This material was presented as part of “2000 Labor and Employment Law Seminar (Portland),” an event produced by Lane Powell. View full article (PDF).

Labor and Employment Law Update

This material was presented as part of “2000 Labor and Employment Law Seminar (Portland),” an event produced by Lane Powell. View full article (PDF).

Avoiding Wage and Hour Pitfalls

This material was presented as part of “2000 Labor and Employment Law Seminar (Portland),” an event produced by Lane Powell. View full article (PDF).

Competing For Talent And Protecting Business Value: Non-Compete Agreements And Trade Secret Law In Washington

Non-compete agreements are well established and enforceable under Washington law. Some states, like California, enforce non-competition covenants involving the sale of a business or segment but not similar covenants between an employer and employee, because the employee’s “right to work” eclipses the employer’s interest in protecting its business value. View full article (PDF).