New (and Current) Labor Laws Impacting Your Bottom Line

Transcription

1 New (and Current) Labor Laws Impacting Your Bottom Line Washington Winegrowers 2018 Convention and Trade Show Presented by Christie S. Totten Davis Wright Tremaine LLP

2 Agenda Joint Employment New Laws Volunteers/Unpaid Interns Immigration Sexual Harassment 2

3 Joint Employment Joint = Worker has 2 (or more) Employers for 1 Job Plaintiffs and agencies look for joint employment 3

4 Joint Employment Payroll functions don t control Realities of situation control Factors Direction & control Authority to hire/fire/discipline etc. FLC issues Risks Shared liability for Responding to harassment complaints Late final paycheck Other violations 4

5 Joint Employment Action steps: 1. Assess realities 2. Plan/Structure relationship 3. Negotiate contracts 5

6 New Laws January 1 Initiative 1433 makes 4 changes: Paid sick leave Increased minimum wage Tips & service charges to staff Retaliation protection from employees under wage and labor act 6

7 New Laws Paid Sick Leave January 1, 2018 WA employers must provide Who: Nonexempt Part-time, seasonal, temp, etc. Not contractors Joint Employment? For what: Care: self or family member Closure: workplace or child s school/care by public health official DV Leave Others at EY option How much: Accrue: 1 hour/40 hours worked Use: upon 90 th day (accrue upon hire) Carryover: up to 40 hours unused NO CAPS on accrual or use during year 7

8 New Laws Paid Sick Leave More details: March 1 deadline to notify employees of entitlement to leave Monthly notice of use/accrual/balance Don t forget dr. appointments Notice: 10 days foreseeable/shorter if unforeseeable Dr. note only after 4 th consecutive absence and if written policy 8

9 New Laws Paid Sick Leave And even more details: Increments = same as timekeeping system Rate of pay = normal hourly comp (watch: commission) PTO policies? Frontloading policies? Tricky calculation without accrual cap No carryover exception Rehired within 12 months reinstate balance 9

10 New Laws Paid Sick Leave Need a written policy if: Require notice Require verification Frontload Shared/Donated Leave Bottom line: Strongly consider a written policy regardless 10

11 New Laws 2019/20 Paid Family and Medical Leave Different than Paid Sick Leave 2019 premiums from employers & employees 2020 up to 12 weeks paid leave for personal illness/pregnancy/family member 11

12 Volunteers/Unpaid Interns Rule: For-profit? General rule: Unpaid volunteers cannot do work Even if don t expect compensation Law assumes: pay for work performed Written waiver exemption from the law Don t open doors to general public volunteers during busy periods 12

13 Volunteers/Unpaid Interns Unpaid? Nonprofit/charitable/educational or Qualifying student-work educational programs NEW guidance from Trump DOL but still narrow: Primary Beneficiary test: 1. Similar to educational/vocational training 2. Tied to formal education (credit/coursework) 3. Tied to academic calendar 4. Limited duration 5. Complements, not displaces, paid employees Q: for benefit of trainee or of business? Q: would you need to hire employee if not for unpaid intern? 6. No job entitlement at end 7. No expectation of wages 13

14 Volunteers/Unpaid Interns How it comes up: Complaint Gov t audit/investigation Random Tip Ads for volunteers? Risks: Injury WC; to others Wage & Hour: wages, overtime, breaks Other claims Agency scrutiny & response during busy time 14

15 Immigration Expect: ICE visits quadrupling Increased I-9 Compliance Audits DACA? H-2A International Interns 15

16 Immigration H-2A Visas Temp ag worker visa for seasonal workers where domestic worker shortage Employer: must advertise & have suitable housing No Quota: (unlike H-2B non-ag temp workers) Processing: compressed timeframe; deal with DOL, DHS, State Dept Limit: generally 18 months, but H-2A workers who limit stay for 10 months and go home for 45 days can return each year Changes? House Judiciary Committee passed changes to streamline ag worker visas under a new H-2C program, in exchange for mandatory E-Verify. Not expected to advance in Congress. 16

17 Immigration International Interns J-1 exchange visitor options include programs for Summer Work Travel Students, Interns, and Trainees. Foreign graduates of U.S. universities employment authorization for at least 12 months in their field of study under Optional Practical Training (OPT) classification Assume pay is required rare exceptions Other short-term employment options assess case-by-case 17

18 Immigration Action steps: 1. Self-audit I-9s; consider e-verify 2. Prepare for investigations and visits 3. Plan intern and work programs 18

19 Sex Harassment #metoo All workplaces! Harassment by: Supervisor Coworker/customer/independent contractor 19

20 Sex Harassment #metoo Action steps: 1. Written policy 2. Prompt investigations & resolution 3. Training, Communication, Culture 20

21 Thank You! Christie S. Totten Counsel Portland