The case had been brought by the NLRB in an effort to prevent the employer, a home healthcare provider, from disciplining employees pending resolution of other pending unfair labor practice claims. At the time the lawsuit was filed, the NLRB had only two of five required members appointed and properly confirmed by the United States Senate. The employer successfully argued that with only two confirmed members out of a required five member Board, the Board lacked a sufficient quorum to validly act.

The court rejected the Board’s alternative argument that the complaint was proper because authority had been delegated to the Region by the Board’s Acting General Counsel. The court determined that like the members of the quorum, the Acting General Counsel’s appointment was procedurally flawed. As a result no delegation of authority to the Region was possible.

If actions were brought by the Board in the window during which the Board lacked a sufficient quorum, the Kitsap Tenant Services decision provides an argument that the Board actions were taken without authority. As the potential implications are substantial – possible invalidity of Board actions both locally in Region 19 and nationally – the issues are likely to require further court resolution and the Kitsap Tenant Support ruling may be appealed.

In the meantime, employers and their counsel should review any litigation or claims pending with the NLRB to determine the impact, if any, of this new decision.
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This post was written by Patrick Pearce, a Member of Ogden Murphy Wallace’s Employment and Labor Law Practice Group on August 28, 2013. This post does not constitue legal advice.

Effective July 20, 2013, employers who have any employees who work at least 50% of the time in the City of Seattle no longer can include a criminal history question on their employment applications. They also cannot automatically or categorically exclude all individuals with any arrest or conviction record from employment.

Employers may perform a criminal background check on a job applicant or require a job applicant to provide criminal history information, but only after completing an initial screening of applications or resumes to eliminate unqualified applicants. Employers may inquire about conduct related to an arrest record but cannot carry out a tangible adverse employment action solely based on the conduct relating to an arrest or criminal conviction record unless the employer has a legitimate business reason for taking such action.

Most Seattle employers will need to change their employment applications, pre-hire processes, and possibly their job descriptions and job postings to meet the requirements of the Seattle ordinance. They should also implement documentation procedures for situations where applicants with criminal histories are not hired.

Suggested Next Steps for Affected Employers:

Employers who have any employees working at least half time in Seattle should change their application forms to be consistent with the ordinance, such as by removing any questions about criminal history unless there is some applicable state or federal law that conflicts with the City of Seattle ordinance.

Employers whose employees have unsupervised access to children under the age of 16, developmentally disabled persons, or vulnerable adults should still include the criminal history questions required by RCW 43.43.834 in their employment applications and can still obtain criminal background checks from the Washington State Patrol under RCW 43.43.832.

Employers who have background checks done by a third party vendor or who outsource parts of their hiring process should make sure the vendor understands the legal requirements.

Employers will need to first identify which candidates are qualified for the position before obtaining the criminal history information. To do so, employers should establish and document what the minimum qualifications are for the position prior to beginning the hiring process. This can be done through development of job descriptions that list all the duties the successful candidate must be able to perform and any other qualifications that are necessary for the position, by listing all of the minimum qualifications in the job posting, or both.

Employers who want to rely on criminal history checks to deny employment should first review their job descriptions and job duties to determine whether there is a legitimate business reason. The factors that go into determining a “legitimate business reason” are set forth in SMC 14.17.010.

Some of the factors for determining whether there is a legitimate business reason for denying employment require obtaining information from the applicant about his or her criminal background. Since such inquiries are prohibited until after the employer has determined that the applicant is qualified for the position, the employer should have a step in the hiring process for obtaining this information from qualified applicants if the employer is considering using the criminal history to deny employment.

The ordinance requires the employer to give the applicant two business days to the applicant to respond, correct or explain the criminal history information.

The ordinance does not prohibit employers from making employment decisions based on dishonesty; in other words, if an applicant or employee is dishonest about their criminal history, that can still be a basis for denying employment.

Incorporating the requirements of the ordinance into the employer’s hiring process is not a one-size-fits-all proposition so employers may want to have their hiring processes reviewed by an employment attorney to be sure they are in compliance.
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Karen Sutherland can be reached at ksutherland@omwlaw.com. This post is a brief summary of a complex law and is not legal advice and should not be relied on.

The distinction is important. Employers are exposed to substantially more risk of liability when a “supervisor” is accused of harassment. Under prior Court decisions, if a supervisor engaged in harassment that culminated in a tangible employment action, the employer was strictly liable for the supervisor’s actions. If harassment is committed by a non-supervisory co-worker, a claimant has a more difficult burden and must show that the employer was negligent in allowing the harassment in order to establish liability. With non-supervisory workers, the employer may also have an absolute defense to any claims if steps were taken to prevent or correct problems and the complaining worker unreasonably failed to take advantage of avenues for internal investigation and resolution.

Prior to Vance, federal appellate courts had been split on the method for determining supervisory status with some courts following a significantly broader test applied by the EEOC. Under the EEOC test, supervisory status depends on whether an individual is able to exercise significant direction of another’s day to day work. As stated by the Court in Vance, the EEOC test allows for “remarkable ambiguity” as determining whether an individual is a supervisor and inherently calls for a case-by-case determination heavily dependent on particular facts and circumstances.

This “remarkable ambiguity” was significant to the Court in rejecting the EEOC test and imposing the “tangible employment action” standard. In Vance, the majority expressed the expectation that a test requiring the ability to take “tangible employment action” would be easily workable, providing courts, employers and employees clarity for more efficient resolution of questions on supervisory status.

Going forward, employers should consider the following in light of the Vance decision:

• Employers should assess and clarify as necessary the authority of individuals who might qualify under the Vance test but are not clearly identified as “supervisors.” The key question is whether an individual has authority to impact another worker’s employment status including hiring, firing, promotion, and work assignments. Both employers and employees should know just who is a “supervisor” in light of Vance.

• Employers should ensure they have effective anti-harassment and anti-discrimination policies in place along with a procedure for presenting and investigating complaints of harassment or discrimination. Employers should also consider training all employees in the policies and what to do if there may be a violation.

• All employees qualifying as “supervisors” should be aware of their status as such and trained on anti-harassment and anti-discrimination practices. Taking steps to ensure that workers qualifying as “supervisors” know and apply best practices will help reduce both risk and complaints, and will help provide evidence to defeat any claims that may come.
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This post was written by Patrick Pearce, a Member of OMW’s Employment and Labor Law Practice Group. He can be reached at ppearce@omwlaw.com. This is a summary of a complex area of the law and is not legal advice and should not be relied on for any purpose.

The elements required for a prima facie retaliation claim are functionally the same under Federal and Washington state law, and were recently restated in Lodis v. Corbis Holdings, Inc., ___ Wn.App. ___, 292 P.3d 779, 788 (January 13, 2013; Division One).  To establish a claim: 1) the employee must have engaged in a statutorily protected activity; 2) the employer must take adverse action against that employee; and 3) there must be a causal link between engaging in the protected activity and the adverse employment action. Id.

Retaliation claims are most often brought as companion claims to other charges such as discrimination or harassment, but may be brought independently.  At times, retaliation charges may develop when an initial workplace misconduct claim or complaint is brought, investigated, and rejected by the employer and the complaining worker is subsequently disciplined for an unrelated issue.  In such circumstances, a worker may argue the discipline was in fact retaliation for previously bringing the rejected charge.

Several practices can help reduce the risk of retaliation claims.  First, employers must be aware of both an employee’s rights to engage in protected activity and what activities are protected.  Supervisors and management considering disciplinary action should consult with HR or employment counsel to confirm whether an employee has or is engaging in a protected activity and whether that participation is implicated in the anticipated discipline.  If a protected activity is potentially at issue, double check the motivations and basis for the possible adverse action.

Next, employers should be sensitive to timelines.  The closer an adverse action against a worker is to the time the worker engaged or participated in a protected activity, the greater the risk the adverse action could be argued as retaliatory.  This is not to say an employer should feel unable to take disciplinary action when and as warranted.  Instead, the employer should be fully aware of risks and whether the timeline presents a potential issue.

Third, the employer should make sure to have clear supporting documentation.  Good records and related communication with the worker regarding the underlying problem can help prevent a retaliation claim arising.  If a claim does come, contemporaneous documents can be crucial in reaching a successful legal result.  This consideration applies both for disciplinary actions and for decisions on non-disciplinary issues such as promotions or task assignments.

Finally, employers should strive for consistent treatment of workers whenever possible.  Along with creating other potential issues, treating similar employees differently may create evidence for a retaliation claim.  Ideally, an employer can establish that like workers were treated the same in similar circumstances.

 WH-381: FMLA Notice of Eligibility and Rights & Responsibilities. WH-381 Form & Instruction.  The employer should give the employee the Form WH-381 when the employee first asks for leave or when it first becomes apparent to the employer that the employee may qualify for FMLA leave even if the employee does not ask for it; for example, if the employee is absent for three or more days.  The employer must give the employee this form (or some other communication containing the information that is in this form) within 5 days of the employee’s request for leave or within five days of the employer learning the employee might qualify for FMLA leave, whichever happens first.

Usually, the employer gives the Form WH-381 to the employee when the employer gives the employee the Form WH-380-E Certification of Health Care Provider described below.  The employer needs to give the employee at least 15 days to return the Certification of Health Care Provider.  The employer should enter the return date for the Certification of Health Care Provider in Part B of Form WH-381.  I recommend including the date the Certification of Health Care Provider is supposed to be returned in a cover letter or memo to the employee too.

The Form WH-381 is a bit confusing because Part A has boxes to check for employee eligibility at a time when the employer has not yet received the medical information it may need to make a determination.  The reason for this is to allow the employee to be placed on provisional FMLA leave pending receipt of the Certification of Health Care Provider.  To do so, the employer would check the box that says, “This Notice is to inform you that you: __ Are eligible for FMLA leave.”  In part B, the employer would fill in a date that is in 15 (or more) days from the date the employer gives the employee the form, and the employer would also check the box indicating that the employee needs to provide sufficient certification to support the request for FMLA leave and the box indicating that a certification form that sets forth the information necessary to support the request is enclosed.

It is important to check the correct boxes on page 2 of the Form WH-381 so that they are consistent with the employer’s policies and consistent with the nature of the employee’s illness.

For example, the middle of page 2 of Form WH-381 has boxes to check for calculating the 12-month period.  There are four different methods to calculate the 12-month period, but the employer needs to use the same method for all its employees.

WH-380-E: FMLA Certification of Health Care Provider for Employee’s Serious Health Condition. WH-380-E Form & Instruction.  This is the form that the employer gives to the employee to give to his or her health care provider.  The employer should not directly give the form to the employee’s care provider because it requests confidential health information that the care provider cannot directly release to the employer without the employee’s consent.

On the Form WH 380-E, the employer fills out Section I, the employer or the employee can fill out Section II (which is just the employee’s name), and the care provider fills out Section III.  In Section I, where it says “essential job functions,” the employer can either list them or put “see attached” and attach them.  If there is a job description, I recommend that the employer check the box that says, “Check if job description is attached” and then attach it even if the employer has also listed the essential functions of the position.

WH-382 FMLA Designation Notice. WH-382 Form & Instruction.  This is the form the employer fills out after the employee returns the Certification of Health Care Provider.  How the employer fills out this form depends on the information on the Certification of Health Care Provider and on the employer’s policies.  For example, does the employer run FMLA leave concurrently with some or all other paid leave, or is it consecutive, or a mix of the two?  I recommend that the employer attach a list of essential functions to this form and require a fitness for duty certificate to ensure that the employer is ready to return to work at the end of the FMLA leave period.

The Form WH-382 also contains a section for the employer to fill out if there is a problem with the Certification of Health Care Provider, such as if the care provider does not answer all of the questions or the answers are vague or confusing.

The final section of the Form WH-382 is to be used by the employer if FMLA leave is not approved.  There are a limited number of circumstances under which leave can be denied, so it is a good idea to seek legal counsel before denying a leave request.

This posting does not have enough detail to answer all FMLA eligibility questions, and it does not constitute legal advice.  The FMLA regulations provide the reasoning behind the forms and have a lot more detail about FMLA eligibility.  It may be helpful to review the regulations or seek legal assistance prior to filling out the forms.

 WH-381: FMLA Notice of Eligibility and Rights & Responsibilities. WH-381 Form & Instruction.  The employer should give the employee the Form WH-381 when the employee first asks for leave or when it first becomes apparent to the employer that the employee may qualify for FMLA leave even if the employee does not ask for it; for example, if the employee is absent for three or more days.  The employer must give the employee this form (or some other communication containing the information that is in this form) within 5 days of the employee’s request for leave or within five days of the employer learning the employee might qualify for FMLA leave, whichever happens first.

 Usually, the employer gives the Form WH-381 to the employee when the employer gives the employee the Form WH-380-E Certification of Health Care Provider described below.  The employer needs to give the employee at least 15 days to return the Certification of Health Care Provider.  The employer should enter the return date for the Certification of Health Care Provider in Part B of Form WH-381.  I recommend including the date the Certification of Health Care Provider is supposed to be returned in a cover letter or memo to the employee too.

 The Form WH-381 is a bit confusing because Part A has boxes to check for employee eligibility at a time when the employer has not yet received the medical information it may need to make a determination.  The reason for this is to allow the employee to be placed on provisional FMLA leave pending receipt of the Certification of Health Care Provider.  To do so, the employer would check the box that says, “This Notice is to inform you that you: __ Are eligible for FMLA leave.”  In part B, the employer would fill in a date that is in 15 (or more) days from the date the employer gives the employee the form, and the employer would also check the box indicating that the employee needs to provide sufficient certification to support the request for FMLA leave and the box indicating that a certification form that sets forth the information necessary to support the request is enclosed.

 It is important to check the correct boxes on page 2 of the Form WH-381 so that they are consistent with the employer’s policies and consistent with the nature of the employee’s illness.

 For example, the middle of page 2 of Form WH-381 has boxes to check for calculating the 12-month period.  There are four different methods to calculate the 12-month period, but the employer needs to use the same method for all its employees.

 WH-380-E: FMLA Certification of Health Care Provider for Employee’s Serious Health Condition. WH-380-E Form & Instruction.  This is the form that the employer gives to the employee to give to his or her health care provider.  The employer should not directly give the form to the employee’s care provider because it requests confidential health information that the care provider cannot directly release to the employer without the employee’s consent.

 On the Form WH 380-E, the employer fills out Section I, the employer or the employee can fill out Section II (which is just the employee’s name), and the care provider fills out Section III.  In Section I, where it says “essential job functions,” the employer can either list them or put “see attached” and attach them.  If there is a job description, I recommend that the employer check the box that says, “Check if job description is attached” and then attach it even if the employer has also listed the essential functions of the position.

WH-382 FMLA Designation Notice. WH-382 Form & Instruction.  This is the form the employer fills out after the employee returns the Certification of Health Care Provider.  How the employer fills out this form depends on the information on the Certification of Health Care Provider and on the employer’s policies.  For example, does the employer run FMLA leave concurrently with some or all other paid leave, or is it consecutive, or a mix of the two?  I recommend that the employer attach a list of essential functions to this form and require a fitness for duty certificate to ensure that the employer is ready to return to work at the end of the FMLA leave period.

 The Form WH-382 also contains a section for the employer to fill out if there is a problem with the Certification of Health Care Provider, such as if the care provider does not answer all of the questions or the answers are vague or confusing.

 The final section of the Form WH-382 is to be used by the employer if FMLA leave is not approved.  There are a limited number of circumstances under which leave can be denied, so it is a good idea to seek legal counsel before denying a leave request.

 This posting does not have enough detail to answer all FMLA eligibility questions, and it does not constitute legal advice.  The FMLA regulations provide the reasoning behind the forms and have a lot more detail about FMLA eligibility.  It may be helpful to review the regulations or seek legal assistance prior to filling out the forms.

 On October 31, 2012, the NLRB issued advice memos explaining that language in a handbook that stated as follows was not unlawful: “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will,” it continued. “Only the president of the Company has the authority to make any such agreement and then only in writing.”  The Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that their NLRA rights are prohibited.

 Next Steps for Employers

 Employers should consider having their handbooks reviewed by counsel for compliance with the NLRB’s positions on workplace policies and at-will notices, as these issues probably were not on their radar screen when the policies were drafted.

The Washington State Supreme Court addressed the issue of marijuana use in employment in a slightly different context after the Washington State Medical Use of Marijuana Act (“MUMA”) was adopted.  In Roe v. Teletech Customer Care Management, the Court decided that MUMA does not provide a private cause of action for discharge of an employee who uses medical marijuana, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy. 

MUMA is different from I-502 in that MUMA was amended by the legislature to read, “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment.”  The Roe case did not involve on-site use, but was about an employee who tested positive for marijuana due to off-site use under a prescription for medical marijuana.  The employee argued that the reference to on-site use in MUMA meant that an employer had to accommodate off-site marijuana use.  The Supreme Court rejected this argument. 

 Although I-502 does not mention employment at all, it is likely that the reasoning the Court applied in the Roe case would be applied to use after I-502 goes into effect.  Ultimately, this is an issue to be sorted out by the courts and the legislature, but for the time being, it appears likely that a workplace policy prohibiting the possession or use of marijuana would not be illegal under I-502.

Additionally, commercial drivers license (“CDL”) requirements are federal, and given the Drug Free Workplace Act and other federal requirements, there is support for employers covered by these laws if they have consistently applied their policies.

For more information about GINA visit www.omwlaw.com.

The new regulations are based on guidelines developed by the U.S. Accessibility Board and include requirements for existing facilities, but existing facilities that meet the 1991 standards do not have to comply with the 2010 standards until the facilities are altered. 

The new regulations also provide guidance on accessible seating, ticketing and ticket pricing; service animals; wheelchairs and other power-driven mobility devices (such as Segways®); video remote interpreting services; and reservations for accessible guest rooms in inns, motels, hotels, timeshares, and condos.

The Department of Justice has published a Fact Sheet summarizing the Highlights of the Final Rule to Amend the Department of Justice’s Regulation Implementing Title III of the ADA, and a Fact Sheet summarizing the 2010 Standards for Accessible Design  that covers everything from amusement rides and swimming pools to parking structures.  The text of the Revised Final Title III Regulation is also available online.

The U.S. Access Board and the Department of Justice are holding a free webinar on the new Title III regulations and standards on September 2, 2010 from 1:30 p.m. to 4:00 p.m., Eastern time.  For more information, or to sign up, go to www.accessibilityonline.org.

There are also new amendments to the Department of Justice’s regulations under Title II of the ADA, Nondiscrimination on the Basis of Disability in State and Local Governmental Services.  The Department of Justice has published a Fact Sheet on Highlights of the Final Rule to Amend the Department of Justice’s Regulation Implementing Title II of the ADA.  The text of the Revised Title II Regulation is also available online.

This posting is a brief and incomplete summary of a very complex law, and should not be relied upon for any purpose.  Additionally, the law may have changed or may have been clarified after this posting was written on August 6, 2010.