$2 Million Dollar Consent Decree Against Tire Chain - What Lessons Learned for Employers?
Earlier this week, a federal judge approved a $2 million consent decree, finally settling an Equal Employment Opportunity Commission (EEOC) suit alleging that the Les Schwab Tire Center violated Title VII by discriminating against women in its 420 stores in California, Idaho, Montana, Nevada, Oregon, Utah, and Washington. Click here to download a copy of the EEOC v. Les Schwab Consent Decree.
The consent decree comes out of a lawsuit filed by the EEOC alleging that Les Schwab had a pattern and practice of hiring men for sales and service positions (such as tire changers and brake and alignment techs), while hiring women for less-desirable administrative positions. The EEOC also alleged that promotions to store management positions were only made from the male-dominated ranks of the sales and service employees. The $2 million will be shared by an estimated 200 women who filed applications for sales and service positions and were turned down by the tire chain. Les Schwab also agreed to make its best efforts to hire women into service and sales positions in proportion to their availability in the qualified applicant pool, affirm its commitment to equal employment opportunity, achieve a diverse workforce, review its recruiting and hiring procedures, and train its employees on equal employment opportunity issues.
The Les Schwab case illustrates a difficult reality that many employers face: certain industries are, for various non-discriminatory reasons, dominated by employees of one sex. While that is not necessarily proof of sex discrimination, the EEOC (and plaintiff's lawyers) absolutely look at such industries very, very carefully for signs of discrimination. Employers in such industries can take steps to ensure that they don't become the next target of an EEOC lawsuit, including:
- Review application statistics to ensure that women and men are hired in proportions roughly equal to the number of qualified female and male applicants
- Review promotion statistics to ensure that women and men are promoted in proportions roughly equal to the number of qualified female and male employees
- If employees appear to be segregated by sex into different jobs, investigate why this is and ensure that it is not for discriminatory reasons
- Ensure that your EEO policies are up to date, appropriately posted, and understood by all employees
- Provide EEO training to managers who make hiring decisions
- Partner with trade schools and colleges to actively recruit members of the underrepresented sex
- Review job descriptions to ensure that any physical requirements are job-related and necessary
Washington Domestic Partnership Law Impacts Employee Benefits and Family Leave
Washington voters recently approved Referendum 71, giving registered domestic partners all of the rights and responsibilities of married couples under Washington state law. Prior domestic partnership laws gave registered domestic partners limited rights and responsibilities such as hospital visitation, health care decision making, inheritance and community property rights. The new law includes all of the rights and responsibilities granted to married couples under state law.
Notably, the Washington State Insurance Commissioner has given notice that all insurance policies that include spouses will also be required to cover registered domestic partners. Washington employers and insurance providers should review the new law and existing policies and procedures to ensure compliance when the law takes effect on December 3, 2009. More information, including verification of registered domestic partnerships, is available at the Secretary of State’s website. Additional information on how R 71 may affect employee benefits and family leave laws is available as part of a recent Stoel Rives LLP Client Alert.
Washington Court of Appeals Upholds Termination Where Medical Marijuana Use Caused Drug Test Failure
A Washington Court of Appeals has ruled that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. Click here to download a copy of the Court of Appeals Decision in Roe v. Teletech Customer Care Management.
Jane Roe (who did not use her real name because medical marijuana use remains illegal under federal law) sued Teletech for rescinding its employment offer after she failed a drug test required by Teletech’s substance abuse policy. She sought reinstatement and damages, alleging that she had been wrongfully terminated in violation of public policy since her marijuana use was legal under MUMA. The trial court granted summary judgment in favor of Teletech, and Roe appealed.
The Washington Court of Appeals, Division II affirmed the trial court’s dismissal of Roe’s case, stating, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act." Rather, the Court held that MUMA merely protects qualified patients and their physicians from state (not federal) criminal prosecution related to the prescribed use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. The lawsuit and appeal, handled for the employer by Stoel Rives attorneys Jim Shore and Molly Daily, is likely to be further appealed by Roe to the Washington Supreme Court.
The workplace implications of medical marijuana continues to be a developing area. If your company has employees in any state allowing the use of medical marijuana under certain circumstances (including Washington, Oregon and California), you should review your substance abuse policies and make certain that all local human resources personnel and drug test administrators know whether the company will consider an exception for medical marijuana usage. Currently, Washington employers do not need to accommodate medical marijuana usage by making an exception to an otherwise valid substance abuse policy. However, because of court rulings in other states interpreting their states’ disability laws and advocacy groups’ continued attempts to expand medical marijuana rights, employers should continue to exercise caution when dealing with requests for disability accommodation involving medical marijuana. If such an issue arises, consider consulting with legal counsel.
President Obama Orders Federal Employees Not to Text While Driving
Last week, President Obama signed an executive order prohibiting all federal employees from text messaging while driving on official business or while using government equipment. Click here to read President Obama's executive order on texting while driving. While President Obama's order does not effect private employers, it does directs federal agencies to encourage contractors and their employees to also to ban texting while driving on government business.
Private employers may also want to consider adopting policies prohibiting employees from texting or using cell phones while driving. Several studies, including this one from Car and Driver Magazine, show that texting while driving is more dangerous than driving while intoxicated. There have been numerous cases in recent years where employers have been sued by the victims of accidents alleged to have been caused while the employees were texting or using cell phones and driving.
Several states have banned cell phone use while driving (including Washington and, effective Jan. 1, 2010, Oregon) and several more are banning texting while driving. Need to know the law in your state? Check out this great overview of cell phone/texting while driving laws by state from the Governors' Highway Safety Association.
Washington Minimum Wage to Remain $8.55/Hour in 2010
Washington's minimum wage will remain $8.55 per hour in 2010, the Washington State Department of Labor and Industries (L&I) announced this week. Click here to view L&I's press release on the 2010 Washington minimum wage.
L&I recalculates the state’s minimum wage each year as required by Initiative 688, which requires that the minimum wage be increased for inflation annually according to any increases in the federal Consumer Price Index. This year, the CPI actually decreased by 1.9 percent. However, Initiative 688 does not allow L&I to decrease the minimum wage, so it will remain the same in 2010. Washington employers can continue to use the current minimum wage poster for at least one more year. Click here for more information on Washington's minimum wage from L&I.
As we reported last week, Oregon's minimum wage will also remain unchanged in 2010, at the rate of $8.40 per hour. A total of ten states have minimum wage rates tied to various cost of living measures: Washington, Oregon, Vermont, Ohio, Nevada, Montana, Missouri, Florida, Colorado, and Arizona.
Washington Supreme Court Upholds Employer's Right to Fire Workers who Protest Bad Boss
.jpg)
Sometimes the Washington Supreme Court pleasantly surprises employers. Today is one of those days. The Court issued its decision today in Briggs v. Nova Services. The plaintiffs in this case were eight employees of Nova Services, a non-profit social services organization in Washington. The employees apparently had major problems with the executive director who was appointed by the board, Linda Brennan. They sent a letter to the board expressing their disapproval with Ms. Brennan’s job performance. They explained that she “left managers to do work in isolation, failed to delegate authority well, did not hire needed staff, failed to foster open communication, and was poor at managing finances.” The board hired a lawyer who confirmed that regardless of whether Ms. Brennan was a decent manager, she had done nothing illegal. He suggested that the board either fire Ms. Brennan or the two employees who were the ringleaders of the disgruntled group, Ken Briggs and Judy Robertson, because their animosity clearly ran too deep to foster a positive working environment. The board decided to let Ms. Brennan stay. After an unsuccessful attempt to mediate their dispute, Ms. Brennan ultimately fired Briggs and Robertson. The other six employees responded by writing another letter to the board protesting the firing of Briggs and Robertson and threatening, in essence, unless Brennan is fired and Briggs and Robertson are reinstated, we quit. The employees gave the board one day to respond and stated that the deal was “non-negotiable.” The board did not respond and the employees did not report to work.
The at-will employees sued for wrongful discharge in violation of public policy. This cause of action is a narrow exception to the at-will employment doctrine. It only applies where an employee is fired for something like refusing to engage in an illegal act, performing a public obligation like jury duty, exercising a legal right like voting, or in retaliation for reporting employer misconduct (whistle blowing). Relying on RCW 49.32.020, the employees argued that Washington law, like the federal labor laws, protects employees’ rights to engage in concerted activities. In essence, this law protects non-union employees who work together to complain/negotiate/bargain with their employers over terms and conditions of employment. The Court determined that RCW 49.32.020 was not meant to apply to this context of a protest walk out over the firing of two employees and the retention of a disliked boss. The Court focused on the idea that “working conditions includes things like better wages, improved medical coverage, better treatment from supervisors, lunch and rest breaks, layoffs and recalls, production quotas, work rules, on the job harassment, and even food prices at in-plant dining rooms.” The Court determined that management decisions which “lie at the heart of entrepreneurial control” are not terms and conditions of employment. Thus Nova’s decision to replace the employees who walked out in protest was not a wrongful termination in violation of public policy. There was a dissent which focused more on federal labor laws as persuasive. Under federal law, this case might have come out differently. There were also two concurring opinions. Justice Madsen’s opinion focused on the fact that the plaintiffs never raised the RCW 49.32.020 issue until the appeal, which is arguably way too late to bring it up. Justice Johnson’s opinion was a bit more complicated but essentially argued that the Court mixed up two completely separate issues, the wrongful discharge tort and the protected concerted activity statute. He agreed that complaining about a bad boss is not protected.
The bottom line for employers is that in Washington, it is not necessarily “protected concerted activity” (and that is a legal term of art to be discussed with your labor lawyer when necessary) for employees to protest everything in the workplace. There are still going to be some workplace issues that are clearly terms and conditions of employment. Employees can band together to complain about these issues. Other workplace concerns may not be safe for at-will employees to protest. One such concern is clearly who’s the boss. With support from today’s decision, there will be others. Before taking any action in response to employees who act collectively, however, it would be very prudent to consult an experienced labor lawyer.
Washington Wal-Mart Workers Get Their Wish - $35 Million
.jpg)
The Washington state class action by Wal-Mart employees for missed meal and rest breaks and for being forced to work off the clock finally ended this week with a payment to the workers of $35,000,000 and $10,000,000 to their attorneys. Wal-Mart (are you surprised?) denies any wrongdoing. For more on the lawsuit and subsequent settlement, click to read the Huffington Post's analysis or this coverage by Forbes. The settlement, which is just one of many for Wal-Mart, is another important reminder that liability for wage and hour violations can really add up. And it adds up really fast when the class size is over 80,000 workers.
Washington employers should check with the Washington State Department of Labor and Industries for information on meal and rest break rules.
Now, Washington Wal-Mart workers, go spend those "stimulus" dollars! You have until August 19 to fill out your claim form.
Use Workshare Program to Cut Costs and Keep Workers
Are you looking for ways to hang on to staff, yet reduce costs? Those goals are not necessarily mutually exclusive if you choose to participate in your state's workshare program. A workshare program allows your employees to collect some unemployment benefits but continue working part time. Here's an article from the Center for Law and Social Policy that gives additional detail.
Seventeen states have such programs: Arizona, Arkansas, California, Connecticut, Florida, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New York, Oregon, Rhode Island, Texas, Vermont and Washington. For a sample of a workshare law, see Section 1279.5 of California's unemployment insurance code.
Each state’s program is a little different, but they have common attributes. We’ll use Oregon’s program as an example.
Continue Reading...Washington Supreme Court Decides Morgan v. Kingen - Bankruptcy is No Defense
The Washington Supreme Court issued a decision today in Morgan v. Kingen, holding that bankruptcy is not a valid defense to a willful withholding of wages under RCW 49.52.070. The plaintiffs in this case worked at Funsters Grand Casino in SeaTac, Washington. The casino was not a success and the owners voluntarily filed for Chapter 11 bankruptcy after only one year in business. After it became clear that the owners were not going to inject badly needed capital, the bankruptcy court converted the proceedings to a complete liquidation under Chapter 7. After the conversion, the owners couldn't have paid their employees even if they had wanted to (at least from the seized Funster assets).
The plaintiffs brought a class action lawsuit on behalf of over 180 employees to recover unpaid wages. The owners of the bankrupt casino argued that while the wages were admittedly owed, the withholding was not willful because the assets were seized in bankruptcy. This distinction is crucially important because willful withholding of wages allows a plaintiff to recover double damages, attorneys' fees and exposes the withholder to personal liability. The owners of the bankrupt casino were thus personally liable for twice the amount of all the unpaid wages plus attorneys' fees unless they could assert a bankruptcy defense. They tried. They failed at the trial level, the appellate level, and as of today, at the Washington Supreme Court as well. Justice Sanders dissented, noting that the owners could not have paid as their assets were seized and unavailable. He was joined by Justice Johnson and Justice Sweeney, pro tem.
The bottom line for businesses in Washington remains unchanged by this decision. A financial inability to pay wages does not constitute a defense to a willful withholding of wages. Today's decision establishes that even a complete liquidation in bankruptcy is no defense. The lesson? If your business is failing and it looks like there may not be enough assets to satisfy all the looming creditors, you might want to seriously consider paying wages before anything else.
Extension of Federal Benefits to Same-Sex Partners Falls Short of Goals
The memorandum issued by President Obama yesterday extends some benefits to the same-sex partners of federal employees, including access to a government insurance program that pays for long-term conditions such as Alzheimer's disease, and to sick leave to care for a sick same-sex partner or a non-biological child. However, the extension did not provide eligibility for health care to same-sex partners, drawing protest from gay activists.
Why did President Obama stop short? The Defense of Marriage Act (DOMA), the 1996 federal law that, among other things, defines marriage as a legal union exclusively between one man and one woman. According to President Obama's press statement, the White House determined that DOMA prevented an extension of all benefits to same-sex partners, including health care. In the statement, President Obama called on Congress to repeal DOMA and signaled an intend to extend all benefits to same-sex partners if and when that happens.
President Obama's actions will clearly impact Federal agencies and their employees, but what effect does it have on private employers? For now, none - the memorandum only applies to the federal government. However, it does signal a growing trend in mandating the extension of employee benefits to same-sex partners. States that recognize same-sex marriage generally require private employers to extend benefits to same-sex spouses; other states that do not recognize same-sex marriages but do recognize same-sex partnerships (such as Oregon, Washington and California) may require private employers to extend benefits to same-sex partners under certain circumstances. Private employers should consult legal counsel about their possible obligation to provide such benefits.
Washington's Minimum Wage To Rise to $8.55 January 1, 2009
Washington employers get ready to give your minimum-wage employees a raise: effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country. For more information, click here to read the Department of Labor and Industries' Press Release. Washington's current minimum wage is $8.07 per hour.
As previously reported in the World of Work, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009. Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index.
The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009. For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor.
"Blonde Jokes" Support Workplace Emotional Distress Claim
Usually when I get an employment lawsuit alleging "negligent infliction of emotional distress," I chuckle to myself and immediately begin drafting a motion to dismiss. However, a recent case out of the Washington Court of Appeals may indicate that NIED claims are not totally frivolous!
In Strong v. Wright, the plaintiff sued her former supervisor because he told "blonde jokes" (apparently plaintiff was blonde), made fun of her house, ridiculed her husband's job, and referred to her as a "bum mother" because she put her son in therapy. The plaintiff alleged that this treatment "caused her to vomit and to have anxiety attacks, depression, and heart palpitations." Really. Blonde jokes=heart palpitations.
The trial court granted the defendant's motion for summary judgment, reasoning that the claims were nothing more than a run-of-the-mill workplace dispute. The Washington Court of Appeals reversed, holding that the events went beyond a mere workplace dispute. One of the facts that helped the court reach this decision: the defendant stood so close to plaintiff while telling the blonde jokes that his spit would fly and hit her face, constituting an "assault" under Washington law.
What's the lesson here for employers? Even though none of the supervisor's conduct violated federal or Washington discrimination or harassment law (although the blonde jokes could be construed as race or national origin discrimination under Title VII), employers still need to watch out for boorish and demeaning workplace behavior. Courts appear willing to find a way--or even create a way--to continue policing the workforce. Lastly, whatever you do, DO NOT let your employees visit this website full of blonde jokes.
Washington: Public Policy Against Domestic Violence Supports Claim of Wrongful Discharge
Is a Washington employer prohibited from terminating an at-will employee because she took leave from work to protect herself from domestic violence? Yes, according to last week's opinion from the Washington Supreme Court in Danny v. Laidlaw Services.
In Danny, the plaintiff sued her former employer in federal court, alleging she was terminated for taking leave from work in order to respond to domestic violence. The federal court certified to the Supreme Court the question of whether Washington has a clear public policy that would support Danny's claim of wrongful discharge. The Washington Supreme Court responded in the affirmative, stating that Washington "has...established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable."
Washington employers take note: if you have an employee who is taking time off from work - perhaps in violation of your attendance policy - to respond to an incident of domestic violence or to testify against an abuser, terminating that employee will be extraordinarily risky. A safer course may be to work with that employee to find a way to allow her or him to get the time off that she or he needs, and then return to work. Need more help on how to work with an employee who is dealing with domestic violence? Check out these resources from the Family Violence Prevention Fund.
Ninth Circuit Asks Washington Supreme Court to Define "Disability" under WLAD
The Ninth Circuit Court of Appeals earlier this week certified a question to the Washington Supreme Court, seeking that court's help in defining "disability" under the Washington Law Against Discrimination (WLAD).
Two years ago, in McClarty v. Totem Electric, 137 P.3d 844 (2006), the Washington Supreme Court significantly narrowed the definition of "disability" under the WLAD. In 2007, the Washington Legislature passed a law codifying the broader, pre-McClarty definition of disability, and explicitly stated that definition would apply retroactively.
This week, in Moore v. King County, the Ninth Circuit certified to the Washington Supreme Court the question of whether the retroactive application of the 2007 law is lawful under the separation of powers doctrine in the Washington Constitution, where the cause of action arose prior to the McClarty decision.
This case is of interest to Washington employers with pending disability claims under the WLAD. It will be a significant win for Washington employers if the Washington Supreme Court answers that the retroactive application is unlawful, as any WLAD disability cases arising before July 6, 2007 (the effective date of the new definition of "disability"), will be decided under the narrower McClarty definition of disability.
City of Vancouver Settles Race Discrimination Suit for 1.65 Million
The City of Vancouver, Washington announced yesterday that it will pay a former police officer $1.65 million to settle a federal retaliation and racial discrimination lawsuit he filed two years ago over his termination. To read the Oregonian's coverage on the case, click here.
This isn't plaintiff Navin Sharma's first settlement with the city: he settled another race discrimination claim against the city in 2001 for $287,000. In the most recent lawsuit, Sharma claimed that his 2006 firing was in retaliation for his 2001 settlement. Vancouver admits no wrongdoing, but claims that the cost of a trial and keeping police officers in the courtroom for two or three weeks instead of performing their regular police duties promted the settlement decision.
Sharma's attorneys are calling the settlement the Northwest's largest-ever individual settlement for employment discrimination. We'll never know for sure: most discrimination cases are settled privately and the terms are confidential. This settlement is public only because the 'Couve is a public entity. In any event, it appears that the bar has been raised.
Jail Time For Washington Employer
As part of a plea agreement reached earlier this month, Jerry and James Schram, co-owners of a Vancouver, Washington construction company, will serve 30 days of jail time and perform community service. Their crime? Hiding information in an attempt to reduce their workers' compensation premiums. In addition, the Schrams also pleaded guilty to misdemeanors for the unpaid wages and will pay 13 employees their back overtime, totaling over $350,000. The plea agreement was announced by the Washington Department of Labor and Industries, which brought the claims.
Hang Up and Drive! Washington and California Ban Cell Phone Use While Driving
Last night I was riding home and was almost run off the street by a woman reading a novel while driving, when I remembered: Effective July 1, 2008, new laws in California and Washington prohibit the use of hand-held cell phones while driving. Drivers may, however, use a cell phone if the communication is made using hands-free device such as a bluetooth headset or wired headset. Earlier this year, another Washington law went into effect banning text messaging while driving. In Washington, both the cell phone and the text messaging laws are "secondary enforcement " laws, meaning that offenders will only receive a ticket if pulled over for another traffic violation such as speeding or running a stop sign. California law enforcement, however, is authorized to ticket drivers only for cell phone use. As far as I know, Oregon does not yet prohibit reading while driving (but it should!)
Want more information? The California DMV has a great Q&A site on its new law. Don't live in Washington or California but want to know what the law is in your state? Check out this handy chart of state cell phone laws from the Governor's Highway Safety Association.
Employers should alert their employees who may drive in California or Washington as part of their job duties. And employers in all states might consider implementing a cell phone policy that restricts the use of cell phones while driving. Recent years have seen a large upswing in lawsuits against employers who supply their employees with cell phones, if the employee is then in an accident while using the phone.
Washington Passes New Domestic Violence and Military Family Leave Laws
On April 1, 2008, Governor Christine Gregoire signed new laws requiring Washington employers of any size to provide two kinds of leave to Washington employees: domestic violence leave for victims and family members, and military family leave. To learn more, check out Stoel Rives’ update.
