Employment & Labor Updates | Spring 2014
By Karen Kalzer, Jonathan Minear and Lauren Parris Watts
Top Ten Employment Law Developments of 2013
In determining the top ten employment law developments for 2013, the Helsell Fetterman Employment Law Group concluded that we may well be revisiting these same issues for next year. These topics are important for their arrival into the employment law world; they will continue to make waves and relevant law as they are actually worked into everyday work life.
The Ever-changing Landscape of the Affordable Care Act
Undisputedly the biggest social program of this White House Administration, the Affordable Care Act (“ACA”) changed the way employers make decisions and the way that employees work. With its multi-step approach and many, many hiccups along the way, it will only continue to change. Many of the ACA’s hiccups, and the subsequent relief, had little-to-no effect on Washington State (which runs its own insurance exchange available at www.wahealthplanfinder.org). For example, the Obama administration’s announcement in late 2013 that state Commissioners could essentially “un-cancel” the old plans by allowing insurance companies to sell them for one more year despite the fact that the plans do not comply with the ACA, did not affect Washington because Insurance Commissioner Mike Kriedler did not allow such extensions. Thankfully, Washington small businesses were able to take advantage of the increased credit rate of 50% for eligible small employers (35% for tax-exempt eligible small employers) if they provide their employees with health insurance that meets current rules, even if the employer’s principal business address is in a county not currently offering a qualified health plan through the Small Business Health Options Program (SHOP) Exchange.
However, things are far from settled when it comes to the ACA, even in Washington. There are requirements that will not be enforced until a future date. Also, the United States Supreme Court will review two ACA cases, including Sebelius v. Hobby Lobby, that challenge the government regulation that requires employer-sponsored health plans to cover certain contraceptives to determine whether this requirement is a violation of the free exercise of religion rights of for-profit corporate employers. The first decision is expected in June 2014. Therefore, it is important for employers to stay tuned into a trusted source as the ACA continues to unfold and evolve.
Minimum Wage: A Hot Button Issue
SeaTac Proposition 1, a minimum wage ballot that successfully set a $15 hourly wage floor for hospitality and transportation workers in SeaTac, was just the beginning of what is now clearly a minimum wage movement. Labor activists and Seattle’s newly elected Mayor Ed Murray have turned their attention to the city of Seattle’s wage floor with intentions to raise the city’s hourly minimum wage in the near future to $15 for all workers. What’s more, conversations about minimum wage or “livable wage” are taking place outside of the Puget Sound area. LA city council recently announced that they are considering raising the hourly minimum wage to $15.37 at big hotels, and legislation to boost Iowa’s minimum wage has earned preliminary approval in the state Senate. Also, in his State of the Union address, President Obama announced an executive order to raise the hourly minimum wage for federal contract workers from $7.25 to $10.10. This is clearly a hot topic issue at the moment, and it is safe to say that it will continue to come up in cities across the nation.
Seattle Paid Sick and Safe Time Ordinance
Although Seattle’s Paid Sick and Safe Time Ordinance has been in effect for over a year, there has been recent chatter within the employment law world of significant employer non-compliance and soon-to-come enforcement by the Seattle Office for Civil Rights. For those in the dark, as of September 1, 2012, Seattle employees accrue paid sick and safe time according to a schedule based on the number of workers employed. The Act affects non-federal, non-state, and non-county employers in any location with five or more full-time equivalents, and full-time, part-time, temporary and occasional-basis employees who perform work in Seattle; employees who telecommute in Seattle; or employees who stop in Seattle as a purpose of their work. Employees are covered if they perform full-time, part-time or temporary work within Seattle and work for an employer with five or more full-time equivalent employees. Moreover, for companies with five or more full-time equivalent employees with at least one employee who works in Seattle, the city requires that the company have a written policy allowing sick and safe time to ensure compliance.
To avoid employee complaints, SOCR investigations, and penalties for not complying with the notice, documentation, and recordkeeping requirements, now is the time to review your company’s policies and practices for those employers who are still in non-compliance.
Marijuana
Private recreational use may be permitted in Washington but federal criminalization is still the law of the land. Employers can still test and still refuse to accommodate even medical marijuana use. But remember: if you screen, you must enforce uniformly. Selective enforcement can result in discrimination claims and other problems.
Corporate Social Media Policies Under the Microscope
Over the past couple of years, the National Labor Relations Board (NLRB) has aggressively investigated and struck down corporate policies nationwide that discourage workers from exercising their right to communicate with one another with the purpose of improving wages, benefits, or working conditions. In doing so, the NLRB has declared illegal many policies that ban employees from discussing corporate matters publicly or disparaging managers, co-workers, or the company itself on Facebook and other social media. These decisions can apply to both union and non-union employers. Last year, Washington also banned employers from requiring, as a condition of employment, that an individual provide access to his or her social networking account, as well as similar behavior. RCW 49.44.200.
Same Sex Marriage
Federal benefits continue to be a bit of a hodge podge as different agencies determine the validity of a same sex marriage and thus the availability of a federal program or benefit, based on two separate theories: whether “state of celebration” (the marriage is valid if performed in a state that recognizes same sex marriage) or “state of residence” (the marriage is valid if the couple resides in a state that recognizes same sex marriage). Especially for multi-state employers, many have chosen to proceed with recognition of and benefits to all same sex marriages regardless of state of residence. Both Utah and Oklahoma are currently in federal court over the validity of their laws prohibiting same sex marriage and the two cases will be heard by the same 10th Circuit panel. Whatever that decision is, expect it to be appealed to the US Supreme Court.
Obesity Discrimination Lawsuits
In June 2013, the American Medical Association (AMA) officially recognized obesity as a disease. This decision fuels legal arguments that the Americans with Disabilities Act (ADA) protects obese individuals from discrimination based on their obesity. Legal commentators anticipate that lawsuits predicated on the AMA’s decision will begin congesting the courts. Outside of Washington, some state and local jurisdictions already prohibit discrimination based on weight and personal appearance.
High Court May Invalidate Many Recent NLRB Decisions
Many of the National Labor Relations Board’s recent decisions may be overturned in a case up for review this term before the U.S. Supreme Court. On January 13, 2014, the Court heard oral argument in NLRB v. Noel Canning, a case examining the constitutionality of President Obama’s January 2012 “recess appointments” of three NLRB members and whether the NLRB lacked a quorum to make valid decisions. Even if the Court affirms the lower court and invalidates the NLRB’s decisions, readers should expect the NLRB to promptly revisit its rulings and reinstate them, now that it has a fully-constituted Board and confirmed General Counsel.
Religious Accommodation
Reasonable accommodation of the religious rights of employees continued to result in civil actions across the nation, with particular attention to schedule changes (to accommodate worship) and dress (particularly in theme wear businesses such as apparel and fast food). Expect these challenges to continue as we become an increasingly diverse nation. From the opposite side of the coin, the serious question of what accommodation private businesses are entitled to when their owners have deep seated genuine religious beliefs that they feel are being violated by the government through regulation such as the Affordable Care Act. The US Supreme Court will hear argument on this issue on March 25, 2014.
Criminal Background Checks
The EEOC made a strong push for systemic change in the use of criminal background checks in 2013. The EEOC contended that these checks had a disparate impact on minority groups. That theory got little to no traction in civil courts, but changes to conducting criminal background checks continue to require attention under our City of Seattle ordinance and additional recent attention from the EEOC. The simple key to remember: background checks should be performed upon a contingent offer of employment, not as part of an initial screening except for certain defined categories, such as working with children and vulnerable adults.