Washington Attorneys Assisting Community Organizations May 13, 2013 Gil Sparks, JD Ogden Murphy Wallace, PLLC
SECTION 1: Major Federal and state employment laws impacting non profits Potential liability issues Minimum necessary written policies 2
Key Federal Laws Title VII of the Civil Rights Act of 1964 (Title VII) Prohibits discrimination base on race, color, religion, sex, and national origin 15 or more employees 3
Disability Leave - Federal Americans With Disabilities Act of 1990 (ADA & ADAAA) Prohibits discrimination against qualified applicants/ employees who have physical or mental disabilities 15 or more employees Requires reasonable accommodation for employees with qualifying disabilities, unless an undue burden Unpaid leave may be a reasonable accommodation Need to maintain confidentiality of medical information 4
Key Federal Laws Age Discrimination in Employment Act (ADEA) Prohibits discrimination against individuals over the age of 40 20 or more employees Fair Labor Standards Act (FLSA) Establishes minimum wage & overtime requirements Applies to employers engaged in interstate commerce 5
Key Federal Laws Uniformed Services Employment and Reemployment Rights Act (USERRA) Prohibits discrimination due to military service or intent to serve Applies to all employers, regardless of size Establishes reemployment rights 6
Key Federal Laws Immigration Reform and Control Act (IRCA) Prohibits discrimination against any applicant/employee (other than an unauthorized alien) because of national origin or citizenship status 4 or more employees 7
Key Federal Laws Consolidated Omnibus Budget Reconciliation Act (COBRA) Provides opportunity to continue group health coverage following termination of employment 20 or more employees 8
Key State Laws Washington Law Against Discrimination (WLAD) Prohibits employers from discriminating because of age, sex (including pregnancy), sexual orientation, marital status, race, creed, color, national origin, sensory, mental, or physical disability, military or veteran status, or use of trained service dog by a person with a disability 8 or more employees* * Note: Courts are recognizing common law discrimination claims apply to all employers. 9
Disability Rules - State Any sensory, mental, or physical (medically cognizable or diagnosable) condition Can be temporary Requires reasonable accommodation for qualifying disabilities No need to accommodate if only a trivial effect Unpaid leave may be a reasonable accommodation Need to maintain confidentiality of medical information 10
Key State Laws Washington Minimum Wage Act (MWA) Establishes minimum wage, overtime, and meal & rest break requirements Applies to all employers, regardless of size The Military Family Leave Act (MFLA) Provides leave prior to deployment or while on leave from deployment during a military conflict Applies to all employers, regardless of size 11
Key State Laws Domestic Violence Leave To deal with domestic violence, sexual assault or stalking issues Grant reasonable leave for employee and employee s family members Definition of family members includes the employee s child, spouse, parent, parent-in-law, grandparent, or person with whom employee has a dating relationship 12
Key State Laws Washington Family Care Act (FCA) Allows employee to use sick leave or other paid leave to care for a family member with a serious health or emergency condition, or to care for a child with a health condition requiring treatment or supervision Applies to all employees who accrue and are eligible to use paid sick leave 13
Key State Laws Washington Parental Leave Requirements If employer provides any form of child care leave, must grant leave to fathers, adoptive parents, or step-parents Applies to all employers 14
Key State Laws Industrial Insurance Act (Workers Compensation) Establishes eligibility & criteria for worker s compensation for workplace injuries Shields employers from further liability for workplace injuries 15
Key State Laws Washington Veterans Employment and Reemployment Act ( WVERA ) Prohibits discrimination due to military service Parallels Federal USERRA, except: Employer under WVERA must provide up to 4 years of Leave Military leave is in addition to any vacation or sick leave the employee is entitled to 16
Potential Liability Issues Supervisors can be held individually liable for engaging in discriminatory and/or inappropriate workplace harassment Brown v. Scott Paper Worldwide Company and Raymond v. Pacific Chemical 17
Manager/Supervisor Personal Liability Applies to anyone in a decision making role, even temporarily - Owners - Superintendents - Principals - Supervisors - Partners - Assistant Supervisors - Managers - Foreman - Directors - Leads 18
Minimum Necessary Written Policies Disclaimer Equal Employment Opportunity Workplace Harassment At Will Employment Attendance / Punctuality Job Descriptions Domestic Violence Leave Acknowledgment Forms 19
Section 2: Practical and legal overview of hiring and interviewing process Use of social media to research job applicants Reference and criminal history background checking 20
Hiring & Interviewing Practices Negligent Hiring Duty to exercise reasonable care Consider nature of job Carefully reviewing applications/resumes Reasonable investigation of applicant s background Thorough investigating Check references 21
Hiring & Interviewing Practices Applicant Screening Do not accept any incomplete application Review applications carefully for gaps in employment, etc. 22
Hiring & Interviewing Practices Interviews Permissible/impermissible questions Structured interviews Uniform questions 23
Hiring & Interviewing Practices Interviewing tips Open-ended job related questions Job descriptions identifying essential functions Careful choice of words Avoid inappropriate comments or promises Rate applicants Comfortable closing to interview 24
Hiring & Interviewing Practices Obtaining references Ability to release reference information (RCW 4.24.730) Use consent form Prior to job offer Job-related questions 25
Hiring & Interviewing Practices Providing references Require consent form Identify reference checker Identify who is authorized to provide references Keep written record Be objective 26
Hiring & Interviewing Practices Background checks Required for jobs with unsupervised access to children, financially vulnerable adults, or developmentally disabled persons Obtain written disclosure Verify with Washington State Patrol 27
Researching Applicants & Employees Internet searches Employers can conduct a Google search for publically available information on prospective employees 28
Internet Searches of Prospective Employees Cybervetting A recent Microsoft survey indicates 79% of human resource professionals engage in this practice of viewing social network sites to obtain information about a job applicant. 70% reported they have rejected a candidate based on information obtained online about a candidate. 29
Internet Searches of Prospective Employees Factors relating to age, color, gender, disability, age, national origin, and sexual preference may be inadvertently discovered during cybervetting. In the face of a claim that an illegal hiring decision was subsequently made on one or more of these factors, it would be helpful to have a policy for screening applicants in a uniform manner. Potential exists for claims of negligent hiring if employer fails to cybervet. 30
Internet Searches of Prospective Employees Factors to consider include: listing the social media sites that will be searched for each applicant listing the lawful information about applicants desired from every search 31
Internet Searches of Prospective Employees Factors to consider include: having a neutral third party that will conduct the search prohibiting the organization from friending an applicant to gain access to nonpublic social networking profiles 32
Section 3: Wage and hour issues Exempt vs. Nonexempt classifications Interns / Trainees / Volunteers Employee vs. Independent Contractor Meal and rest breaks Overtime and compensatory time 33
Federal (FLSA) and State (MWA) Requires overtime to be paid at the employee s regular rate of pay to non-exempt employees who work more than forty (40) hours in a work week 34
White Collar Exemptions Both state and federal law provide exemptions from both minimum wage and overtime pay for employees who are employed in a bona fide: Executive Administrative Professional Outside Sales 35
Three Tests for Exemption Salary Level Salary Basis Job Duties 36
Minimum Salary Level: $455 For most employees, the minimum salary level required for exemption is $455 per week 37
Salary Basis Test Regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis) The compensation cannot be reduced because of variations in the quality or quantity of the work performed 38
Salary Basis Test Must be paid the full salary for any week in which the employee performs any work Need not be paid for any workweek when no work is performed 39
Executive Employees Primary duty is managing the enterprise, or a customarily recognized department or subdivision thereof Customarily and regularly directs the work of two or more other employees 40
Primary Duty Fact specific inquiry Does not strictly mean more than 50% of time look to relative importance of duties, discretion and judgment, closeness of supervision, relative rates of pay, and other factors Exception for emergencies 41
Management Work Discretion and judgment over work flow or the work force Normal supervisory functions: selecting or training employees; directing the work to be performed; assigning or scheduling which employees to do the work, etc. 42
Administrative Employees Primary duty: office or non-manual work directly related to the management policies or general business operations of the employer or the employer s customers; and Must exercise discretion and independent judgment with respect to matters of significance. 43
Management or General Business Operations Tax Finance Accounting Budgeting Auditing Research Safety and Health Human Resources Employee Benefits Labor Relations Legal and Regulatory Compliance 44
Discretion and Independent Judgment The comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered Must be exercised with respect to matters of significance, which refers to the level of importance or consequence of the work performed 45
Professional Employees Primary duty: the performance of work requiring advanced knowledge In a field of science or learning Customarily acquired by a prolonged course of specialized intellectual instruction 46
Advanced Knowledge Predominantly intellectual in character Includes work requiring the consistent exercise of discretion and judgment The advanced knowledge is generally used to analyze, interpret or make deductions from varying facts or circumstances 47
Advanced Knowledge Not work involving routine mental, manual, mechanical, or physical work Cannot be attained at the high school level 48
Field of Science or Learning Occupations with recognized professional status, as distinguished from the mechanical arts or skilled trades 49
Volunteers Work is performed for a public, religious or humanitarian service Without expectation of pay At the individual s initiative 50
Volunteers Can a current employee also volunteer? Only if all three tests are met, plus two additional tests: Volunteer work is done on employee s own time; and Volunteer duties may not be similar to regular duties 51
Trainee/Intern Criteria Training similar to a school program For the benefit of the trainee Intern does not displace employees, but under their observation Business obtains no immediate advantage Intern not entitled to a job at end of the program Trainee understands no entitlement to pay 52
Independent Contractor Test Washington Supreme Court adopts the economic realities test for determining whether a worker is an independent contractor or an employee Anfinson v. FedEx Ground Package System, No. 85949-3 (July 19, 2012). 53
The Economic Realities Test Looks to whether the hired party is economically dependent upon the hiring party or is instead in business for himself 54
Bottom Line It is likely that more workers will be considered employees rather than independent contractors under Washington State s adopted economic realities test 55
Meal Periods & Breaks Meal periods 30 minutes 2 5 hours after beginning of employee s shift 3+ hours longer than normal shift Can be waived (in writing) Rest breaks 10 minutes for each 4 hours worked Can be on an intermittent basis 56
Meal Breaks Any time an employee works more than five hours, must be allowed a 30 minute meal break between the second and fifth hour of the shift Meal breaks may be waived 57
Meal Breaks May be unpaid if employee allowed to use time as his or her own, and completely relieved from duty If employee is required to be on call may not be completely relieved from duty 58
Rest Breaks Employee must be allowed one 10 minute rest break for each four hours of work Rest periods are paid time Employees may be required to remain on premises 59
Rest Periods Employees may be required to remain on call during a rest period Intermittent rest periods allowed If employee is unable to get a rest break, must be paid for the time but the rate of pay is controversial 60
Missed Rest Breaks / Overtime Employees who miss state-mandated rest breaks during their regular 40-hour workweek are entitled to overtime compensation for the missed rest breaks Washington State Nurses Association v. Sacred Heart Medical Center, No. 86563-9 (October 25, 2012). 61
Compensatory Time Non-exempt employees FLSA not allowed in private sector Washington only in public sector 1-1/2 times hours worked Exempt employees Permissible because of exempt status Allowed in public sector without affecting exempt status 62
Section 4: Documenting performance Attendance / Leave Issues At will employment (reality or myth) 63
Documentation Easier to track behavior and performance Helps establish expectations Provides notice to employee Consistent documentation can counter discrimination or retaliation claims Expected by courts and juries 64
General Guidelines Job related Identify basis for unsatisfactory performance or discipline Thorough Honest, consistent, and even-handed 65
General Guidelines Clearly describe specific conduct or performance deficiencies Decide appropriate level of discipline for conduct or performance Clear consequences for repeat behavior or other inappropriate conduct 66
Counseling Employees Quite often, an employee s actions do not warrant the use of formal disciplinary actions. In these cases, informal verbal counseling may be appropriate. 67
Informal Verbal Counseling Informal verbal counseling should be done in private Before conducting the counseling session, the supervisor or manager should prepare a list of issues that will be covered in the counseling session Do not use accusatory language Do not disparage the employee Attempt to maintain rapport for the sake of the long term working relationship 68
Format The written record should include: Description of incident or activity Rules or expectations violated by employee s conduct Description of discipline Consequences if conduct does not change Check spelling, grammar, punctuation Date Signature 69
Attendance & Leave Issues ADA and WLAD Requires awareness of potential disability Identify essential functions (need job descriptions) Regular & punctual attendance should be a job requirement for all positions Engage in interactive process Evaluate & implement possible reasonable accommodations 70
Attendance & Leave Issues ADA and WLAD Dealing with co-worker resistance Documenting performance issues Disciplining employees with disabilities Maintaining confidentiality 71
At-Will Employment Employee can be terminated at any time, with or without notice, or with or without cause. 72
Exceptions to At-Will Doctrine Written and implied contracts Statutory exceptions Public policy exceptions 73
Handling Terminations Ways to Reduce Wrongful Discharge Claims Document warnings Decide adequate reasons for dismissal Consider employee characteristics 74
Handling Terminations Ways to Reduce Wrongful Discharge Claims Review personnel file Evaluate if just cause can be substantiated Implement consistent termination procedures 75
Handling Terminations Prepare for meeting Avoid arguing Avoid apologies Explain separation benefits Take responsibility Document 76
Handling Terminations After the Discharge Meeting Carefully communicate the termination to co-workers and clients. Consider exploring with the employee a strategy about notice to colleagues and customers. Consider a voluntary resignation and possible severance agreement 77
Latest Employment Law Trends Same-Sex Marriage Referendum (eff. 12/6/12) New I-9 Employment Eligibility Form (May 7, 2013) Affordable Care & Patient Protection Act Social Media Policies Distracted Driving Policies 78
Latest Employment Law Trends Marijuana Reform In 1998, voters approved Medical Use of Marijuana Act (MUMA) In 2012, voters passed Initiative I-502 (Marijuana Reform) Law does not protect marijuana users from adverse hiring or employment decisions based on an employer s drug testing policy Marijuana use is still illegal under federal law 79
Social Media Policies: NLRB National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA) Most private sector employees (whether unionized or non-unionized) are subject to the NLRA Nonprofits. The NLRB asserts jurisdiction based on substantive purposes and revenue threshold 80
Social Media Policies: NLRB Revenue thresholds for NLRB Jurisdiction over Nonprofits: Social services organizations (other than those with a set standard): $250,000 Art museums, cultural centers, libraries, and private nonprofit colleges and universities: $1 million Credit unions: retail standard ($500,000) or nonretails standard ($50,000) (depends on the nature of operations) Day care centers for children: $250,000 Law firms and legal services organizations: $250,000 81
Social Media Policies: NLRA 7: Rights of Employees Employees shall have the right to [form unions] and to engage in other concerted activities for the purpose of mutual aid or protection NLRA protects employee communication rights under 7 of the NLRA, which applies to all employers regardless of union representation 82
Social Media Policies: NLRA Application of 7 in social media context is a developing area of the law Employer has the right to protect its legitimate business interests However, an employee cannot be disciplined for protected concerted activity An overbroad social media policy is a violation of NLRA 83
Model Social Media Policy The NLRB has a draft model social media policy: can be used http://nlrb.gov/news/acting-general-counsel-releasesreport-employer-social-media-policies 84
Social Media Policy: Takeaways Social media policies should Not prohibit the use of social media to discuss or attempt to resolve concerns about working conditions encourage employees to use internal mechanisms to report harassment / discrimination but not require such use 85
Social Media Policy: Takeaways Social media policies should state that employers will investigate harassment / discrimination complaints regardless of how they are discovered (i.e. social media sites) Be clear that the employer is not trying to curtail 7 rights 86
Social Media Policy: Takeaways Employers should also Advise supervisors to be cautions about friending employees or engaging in social media Supervisors should be obligated to report discrimination / harassment claims discovered through friending 87
Distracted Driving Leading to Employer Liability Judgments have been rendered against employers whose employees have been involved in distracted-driving accidents while working 88
Statistics on Distracted Driving At least 24% of crashes in 2010 involved drivers using cell phones The risk of a crash is four times as likely when a person is using a cell phone handheld or hands-free Studies have found that hands-free devices offer no safety benefit because they don't eliminate the cognitive distraction of conversation 89
Distracted Driving Jury Verdicts Against Employers A jury ordered an employer to pay $21.6 million to the family of a Florida woman who was killed when an employee in a company car rear-ended her because he was distracted and didn't react when traffic slowed International Paper paid $5.2 million to settle a case with a woman who lost an arm in a collision caused by an employee on a cell phone 90
Distracted Driving Jury Verdicts Against Employers A Texas jury ordered Coca-Cola to pay $21 million to a 37-year-old woman who suffered nerve damage to her back after she was hit by a car driven by a salesperson who was talking on a cell phone 91
Washington Prohibition Against Distracted Driving Handheld ban for all drivers Ban on all cell phone use (handheld and hands-free) for novice drivers 92
Bottom Line All employers should have a clear cell phone policy banning employees from using any hand held or hands-free device while on company business whether in personal or company vehicles and take steps to train and educate employees on the policy and on the dangers of cell phone use while driving 93
THANK YOU! 94