2017 LEGAL UPDATE PAID LEAVE, PREGNANCY & OTHER NATURAL DISASTERS. Jodi Slavik, Employment Attorney

Transcription

1 2017 LEGAL UPDATE PAID LEAVE, PREGNANCY & OTHER NATURAL DISASTERS Jodi Slavik, Employment Attorney

2 We counsel companies in California, Idaho, Oregon, and Washington on complex employment-related issues.

3 Agenda Paid Leaves: Sick & Family Pregnancy Accommodation I-9s Wage & Hour Pay Equity Disability & Discrimination and Grab Bag! 3

4 Paid Leaves

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6 WA Paid Sick Leave Washington Paid Sick Leave Law: Passed by initiative (I-1433) in November 2016 Initiative created new higher minimum wage as well Labor and Industries (L & I) tasked with creating rules (WACs) to help administer the law (final rules expected mid-oct.) Those with employees in cities where local paid leave ordinances are in place will now have to administer both leaves (may overlap but must meet minimum requirements of ordinance and state law) 6

7 Covered employers and employees Every employer Individual Partnership Association Corporation Business trust Any person/group Employee defined by MWSLR 7

8 Covered employers and employees Employee situation Anyone covered by WA minimum wage (RCW ) Exempt employees as defined by WA law Independent contractors Work training program administered under state or federal assistance program Public employees (elected officials, members of the legislature and WA DOT ferry operating crews, etc.) Individual care providers (RCW 74.39A.240) Law applies Yes No No? Some Yes 8

9 WA Paid Sick Leave: Summary Effective: January 1, 2018 Accrual rate: 1 hour for every 40 hours worked, including overtime hours. No cap on accrual. Frontloading: May frontload but must meet or exceed requirements for accrual, use, and carryover. Usage: Begins 91 st day of employment. No cap on usage. Carryover: Up to 40 hours of accrued but unused paid leave. 9

10 WA Paid Sick Leave: Summary Written policy: Employer must have a written policy and provide to employees by start of work or March 1, 2018 (for current employees). Notice of leave amount: Employer must provide information in writing to the employee at least monthly concerning the employee s leave amount. Existing Policies: Employers may use existing paid leave policies (e.g., PTO, sick, vacation), but must make all necessary adjustments to comply with requirements of the law. 10

11 Steps to take before January 1, 2018 Communicate! Is leadership on same page? Talk to employees to anticipate issues Talk to your vendors payroll, HRIS, counsel Talk to your union(s) Give your leads, supervisors, and managers tools to talk Get a lay of the land Review current paid leave policies (vacation, sick, PTO, S&LTD) Review other affected policies (attendance, call-in) What other leave laws apply? 11

12 Steps to take before January 1, 2018 How do you want to tackle big issues? Moving deck chairs or adding benefits? Frontload leave or use the accrual method? Same or different leave year? Keep PTO and apply sick leave rules to all? If multiple state employer, one or more policies? Check final rules & administrative guidance Draft your policy and ask for help if needed 12

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15 Washington Paid Family Leave sneak peak Paid family and medical leave insurance program Administered by ESD Local laws pre-empted Collect premiums starting January 1, 2019 Workers can apply/receive benefits January 1, 2020 All employers with at least 1 employee in WA Eligible if employed by any WA employer for at least 820 hours during first 4 of last 5 calendar quarters before application OR last 4 completed calendar quarters before application 15

16 Washington Paid Family Leave sneak peak Paid family leave benefit when employee: Is bonding during first 12 months after birth or placement Needs to care for family member with serious health condition Needs time off for military family qualifying exigency Paid medical leave benefit for employee s serious health condition 12 weeks for each or combined 16 (18 max if pregnancy incapacity) Benefit = percentage of weekly wage ($1K cap)

17 Washington Paid Family Leave sneak peak Premium rate is.4 % of wages for 2019 Medical leave = 2/3 of premium rate Employers = 55% Workers = 45% Family leave = 1/3 of premium rate Workers = 100% Total.63% from employers & 37% from workers Employers < 50 employees pay NO premium Job protection, employer & employee notice, CBA delay & small business grants

18 Pregnancy Accommodation

19 Washington Healthy Starts Act Effective July 23, 2017 Employers with 15 or more employees Required to provide pregnant employees with: More frequent, longer, or flexible restroom breaks Modified no food or drink policies Added seating or more frequent sitting Limited lifting over 17 pounds No undue hardship defense

20 Washington Healthy Starts Act Employer must also provide any other pregnancy accommodation requested Unless undue hardship Examples: job restructuring, part-time schedule, modified schedule, reassignment, modified work station, assistance with lifting or manual labor, acquiring or modifying equipment or devices Can t require employee to take leave if another reasonable accommodation is available

21 Healthy Starts Act Are we allowed to ask the pregnant employee to bring in any proof? How do I make sure the managers are allowing the accommodations? Can we count the bathroom breaks as part of the 10 minute breaks? We have to allow breaks, but can we put restrictions on them, like how long or where they occur? How do we prove that a modified schedule is an undue hardship?

22 I-9s

23 Enough With the New Forms Already! New form by 1/22/17 (Rev. date 11/14/2016) Clearer fields, expanded instructions, electronic improvements New form by 9/18/17 (Rev. date 07/17/17) Sec. 1 completed by the first day of employment Reorganizing List C documents Immigrant and Employee Rights Section Handbook for Employers (M-274) also updated

24 New Green Card

25 New EAD

26 Cha-Ching! Don t require specific IDs (Pasco Processing and WA Potato Co, DOJ settlement, May 2017) $225,750 Fill out Sec. 2, on time, and keep for 1 or 3 (Buffalo Transportation, Inc. v USA, 2 nd Cir Dec. 2016) $109,000+ Unlawful employment (first order): $548 $4384 Paperwork violation: $220 - $2191

27 Wage & Hour

28 Overtime Rule

29 Other Wage & Hour Notables No pay for orientation if extension of job application process without guarantee of work. (Nance v. May Trucking, 9 th Cir, March 2017) WA blacklisting: no state contracts awarded if willfully violated wage & hour laws in last 3 years (SB 5301) Minimum wage, OT, paid sick leave, final paychecks

30 Pay Equity

31 EEO-1 Reports Pay data no longer required Submit and certify by March 31, 2018

32 CA, OR & WA Pay Equity Movement CA Equal Pay Act expanded 9/2016 Cannot pay employees of opposite sex, race or ethnicity less pay for substantially similar work Cannot use prior salary as sole reason for pay disparity OR Equal Pay Act expanded 6/2017 Cannot ask for salary history (can verify after offer) by 10/6/17 10 protected classes: race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, age Cannot have disparate pay between protected classes in work of comparable character unless entire difference justified by one of 8 authorized reasons

33 And WA Pay Equity?

34 Notable Pay Cases Can t blame recession as factor other than sex when paying women less with similar working conditions (Dindinger v. Allsteel, Inc. 8 th Circ. April 2017) Prior salary allowed as factor other than sex if effectuates business policy and used reasonably (Rizo v. Yovino, 9 th Circ. April 2017) Don t fall into pay traps!

35 Tips to Avoid Pay Traps If you pay more for a new hire or by request, adjust for comparable jobs. Adjust pay after duty transfer in downsizing. Analyze pay after a merger or acquisition. Track job duty changes following tech advances. Encourage applying for higher wage positions to avoid cluster disparity.

36 Disability & Discrimination

37 Disability Cases Can continue disciplinary procedures even if employee raises disability (Alamillo v. BNSF Railway 9 th Circ. August 2017) Time in jail for DUI not required as reasonable accommodation (McElwain v. Boeing, WD Wash, March 2017) Regular attendance can be required as essential function (Credeur v. State of Louisiana, 5 th Circ. June 2017) Don t have to promote as an accommodation (Brown v. Milwaukee Board of School Directors, 7 th Circ. May 2017)

38 Discrimination Cases Don t question whether Satan is in the hand scanners. (EEOC v. Consol Energy, 4 th Circ., June 2017) Are you really upset about the stale cake or do you have a mean supervisor? (Mayes v. WinCo Holdings, 9 th Circ., Feb. 2017) Just because you re 60 doesn t mean we can t fire you. (Merrick v. Hilton, 9 th Circ., Aug. 2017) Tell your supervisors to keep a lid on the Godtalk unless you re a church. (Magden v. Easterday Farms, ED WA, May 2017)

39 Grab Bag!

40 Grab Bag Employer violated FCRA by including waiver in disclosure form for background check. (Syed v. M-I, 9 th Circ. Jan 2017) Supreme Court will address class action waivers in arbitration agreements. (Morris v. Ernst & Young, 9 th Circ., Aug. 2016) Internal whistleblowing counts under Dodd-Frank (Somers v. Digital Realty Trust, 9 th Circ., March 2017) and Oregon law (Brunozzi v. Cable Communications, 9 th Circ., March 2017).

41 One for the Road.

42 Questions?

43 QUESTIONS? Learn more about presentation: Jodi Slavik, Learn more about Vigilant: Amanda Rusk,