Legal Updates Employers May Have Missed This Spring

As employers have been dealing with the impact of COVID-19 and the new laws associated with the virus, other new laws or changes to existing legislation have transpired. The following is an overview of recent laws affecting employers in the Pacific Northwest.

Washington

Protected Class Updates: Effective June 11, 2020, Washington law has updated two items related to protected class status.

1. The definition of “race” in the Washington Law Against Discrimination (WLAD) now includes “traits historically associated or perceived to be associated with race including, but not limited to, hair texture and protective hairstyles…including afros, braids, locks, and twists.” This additional language does not add a protected class but clarifies that traits such as hair texture and style are protected under race.
2. Senate Bill 5165, signed on March 18, 2020, amends the WLAD to add “citizenship or immigration status” as a protected class. However, to the extent that distinction or differential treatment based on citizenship or immigration status is authorized by federal or state law, regulation, or government contract, it is not an unfair practice (for example, I-9 or ITAR). This bill protects anyone perceived to be a noncitizen, regardless of their actual immigration status. It would help prevent discrimination in various settings such as education, housing, public accommodations, and employment.

Paid Family & Medical Leave Amendments: Effective June 11, 2020, amendments to the Paid Family and Medical Leave Act (PFML) include the following:

• Exempts casual labor from the types of employment covered by PFML.
• Clarifies that the definition of “child” includes “child’s spouse.”
• Clarifies the definition of the waiting periods to begin the previous Sunday of the week in which the employee takes leave.
• Clarifies that supplemental benefits may be taken during the waiting period and can be taken in addition to paid family and medical leave without reducing the benefit.
• Provides for a private right of action and liquidated damages payable directly to employees and specifies other enforcement provisions.

Reasonable Accommodation for Expression of Breast Milk: Effective June 11, 2020, RCW 43.10.005 is amended to prohibit an employer from requiring written certification from the employee’s health care provider regarding the need for a reasonable accommodation to express breast milk.

Protections for Long-term Care Workers: Effective June 11, 2020, requirements of employers of long-term care workers include:

• Adopt and maintain written policies and strategic plans to address workplace abuse, discrimination, and challenging behavior.
• Disclose to its employees documented instances of discrimination, abusive conduct, and challenging behavior.
• Keep records of reported incidents.

Overtime Exemption Updates: On Tuesday, April 7, 2020, the Washington State Department of Labor & Industries (L&I) adopted minor technical corrections to the overtime exemption rules originally adopted in December 2019, including changes to subsection 9 to read “Beginning January 1, 2028 …” instead of 2026. L&I extended the implementation schedule of the salary threshold increases from 2026 to 2028.

Beginning July 1, 2020, and through December 31, 2020:

• The minimum salary threshold would be not less than 1.25 times the minimum wage ($675) for a forty-hour workweek;
• For employers with 50 or fewer employees, computer professionals must be paid a minimum of $27.63/hour. For larger employers, computer professionals must earn an amount not less than 2.75 times the minimum wage ($37.13/hour).

For most employers, this will have little impact until January 1, 2021, since the federal salary threshold was increased to $684 per week effective January 1, 2020.

Beginning January 1, 2021, through December 31, 2021:

• For employers with 50 or fewer employees, the minimum salary threshold will be not less than 1.5 times the minimum wage for a forty-hour workweek; for computer professionals, 2.75 times the minimum wage per hour.
• For larger employees, the minimum salary threshold will be 1.75 times the minimum wage for a forty-hour workweek; for computer professionals, 3.5 times the minimum wage per hour.

The threshold will increase incrementally, with a more gradual phase-in for small businesses, through 2028. Beginning January 1, 2028, the state minimum salary threshold will be 2.5 times the state’s minimum wage for all size employers.

Hotel Employee Protections: Four new Hotel Employee Protections Ordinances go into effect on July 1, 2020, for covered businesses in the City of Seattle.

The Hotel Employees Safety Protections Ordinance protects hotel employees from violent or harassing conduct by requiring increased safety protections for employees, including:

• Hotels must post a sign on each guest room door that references the protections of this legislation and the provision of panic buttons to employees.
• Employers must provide a panic button to all employees who work in a guest room or make deliveries to a guest room.
• Employers must develop a written policy against violent and harassing conduct by guests, and distribute the policy to guests and employees.
• Employers must offer reassignment to an employee alleged to have experienced violent or harassing conduct to a different work area, and provide the employee with up to eight hours of paid time to contact the police and consult with a counselor or advisor.

The Protecting Hotel Employees from Injury Ordinance requires increased safety protections for employees, intended to reduce the frequency and occurrence of injuries in the hospitality workforce by limiting room cleaning workloads and encouraging safe working speeds.

The Improving Access to Medical Care for Hotel Employees Ordinance improves low-wage hotel employees’ access, through additional compensation, to high-quality, affordable health coverage for the employees and their spouses or domestic partners, children, and other dependents. A recent court decision ruled that ERISA does not preempt Seattle’s health benefits ordinance.

The Hotel Employees Job Retention Ordinance is intended to reduce job insecurity in the hospitality workforce caused by changes in ownership.

Oregon

Strict Liability for Providing Meal Breaks: On April 23, 2020, the Oregon Supreme Court declined to review a ruling by the Oregon Court of Appeals in which employers were held to a standard of “strict liability” for failing to ensure that non-exempt employees take their full 30-minute meal breaks. The Court of Appeals noted it was an employer’s duty to exercise control over its employees to ensure full 30-minute meal periods are taken and that employers face “strict liability” for failing to ensure that employees take the full meal break.

Pregnancy Accommodations Notice: By June 29, 2020, Oregon employers with six or more employees must post signs and notify employees of their rights under the new Employer Accommodation for Pregnancy Act (EAPA). Effective January of this year, the EAPA made it an unlawful employment practice to deny employment, fail to make reasonable accommodations, or take certain actions because of an employee’s or applicant’s known limitations due to pregnancy, childbirth, or related medical condition.

Minimum Wage Increase: Effective July 1, 2020, Oregon’s standard minimum wage increases from $11.25 to $12.00. Portland Metro’s minimum wage will increase to $13.25 and non-urban counties to $11.50.

Workplace Fairness Act: Effective October 1, 2020, employers will be required to have a written anti-discrimination policy. At a minimum, employer policies must include:

• Reporting procedures, including individuals responsible for receiving reports;
• Notification of five-year statute of limitations for civil actions;
• Notification that an employer may not require or coerce an employee to enter into a nondisclosure or non-disparagement agreement;
• Advice to employees and employers to document any incidents involving discrimination, harassment, or retaliation.

Employers must provide a copy of any written policies and procedures to new employees upon hire and receipt of discrimination, harassment, or retaliation complaints.

Federal / 9th Circuit (and Idaho)

Updated Veterans Voluntary Self‐Identification of Disability Form: The Department of Labor approved the new self-identification form as of May 5, 2020. Federal Contractors have until August 4, 2020, to implement the new form into their applicant and employee systems and processes.

9th Circuit Reaffirms That Salary History Cannot Justify Different Pay: In remand from the Supreme Court, the Ninth Circuit reaffirms its original en banc holding that a “factor other than sex” under the Equal Pay Act (29 U.S.C. §206(d)(1)) must be “job-related,” and thus rejects an employer’s use of pre-employment salary history as a reason to pay a woman less than a man doing the same work. Prior pay, alone or combined with other factors, cannot serve as a defense for pay inequity.

DOL Opinion Letter Regarding Referral Bonuses: The Department of Labor issued several opinion letters in early 2020. Of particular note is FLSA2020-4, which clarifies that a referral bonus may be considered discretionary and may not need to be included in the regular rate of employment for determining overtime. If referral bonus payments are separated into two payments (i.e., one initial payment and one at a later date), the initial payment would be discretionary and does not need to be considered in the regular rate for determining the overtime rate, but the second payment would be considered non-discretionary. Keep in mind that state law may differ – Washington, for example, would consider both payment non-discretionary.

Every year there are more federal and state statutes, city ordinances, regulations, and judicial decisions concerning employment and labor law. Keep your company at the leading edge of compliance and employee engagement. Contact us to find out how we can help.