Employer Feedback session on L&I Proposed Overtime Employment Rules

The Department of Labor & Industries (L&I) is changing employment rules that determine which salaried employees in Washington are required by law to receive overtime pay, minimum wage and paid sick leave.  These changes will affect Executive, Administrative, and Professional (EAP) workers across all industries in Washington State.

Feedback Sessions:
You'll learn more about the possible changes for salaried employees and have an opportunity to provide input. A copy of the presentation being provided at the feedback sessions can be located here.

Session will be held October 18 from 9:00 am - 11:30 am at CenterPlace Event Center - Large Meeting Room

Draft Rules:
If you are unable to attend the feedback session, you can review the pre-draft rules here and provide your feedback by October 26th, 2018.

Washington State Paid Family and Medical Leave

The Washington State Paid Family and Medical Leave Program is a statewide insurance program currently under development by the Employment Security Department (ESD). As laid out in bipartisan legislation passed in the 2017 legislative session, premium collection will begin January 1, 2019 with benefits becoming available January 1, 2020.  When fully implemented in 2020, Paid Family and Medical Leave will allow working Washingtonians to take up to 12 weeks of paid leave to care for themselves or their family members in times of serious illness or injury, for certain military connected events, or as parental leave to bond with a new child coming into the family. This program will be fully funded through premiums paid both by employees and employers, and with few exceptions, most Washington workers and businesses will have to participate.
Visit www.paidleave.wa.gov for additional information and click here for a quick overview of the basic rules of the program.
The ESD has released the first draft of the Phase 3 draft rules for Paid Family and Medical Leave.  The third phase relates to:
  • Benefit Applications
  • Benefit Eligibility

The latest draft rules are available here; you can submit your comments here

An Eastern Washington Phase 2 Rulemaking Public Hearing is scheduled on Monday, October 29, 2018.  Location TBD. 

Spokane Fair Chance Hiring Ordinance Passed by City Council

 

The Spokane City Council has passed the Fair Chance Hiring ordinance to effectively "ban the box" on job applications that asks applicants about criminal history. According to a City of Spokane press release, some positions are exempt from the ordinance: 

Under the new policy, applicants for positions that are not exempt will be given the opportunity to apply for work without the fear of a background check or application question regarding criminal history prior to an in-person or video interview or a conditional offer of employment. Exempted positions include those that have unsupervised access to minors and vulnerable persons, positions in law enforcement and employers and/or agencies that are expressly permitted or required under federal or state law to consider criminal background.

City Council to Consider Fair Chance hiring for Spokane Employers, 9 November 2017, available at https://my.spokanecity.org/news/releases/2017/11/09/city-council-to-consider-fair-chance-hiring-for-spokane-employers/. 

 

Case Law Update

Don’t Use Salary History to Set New Wage?

In Rizo v. Yovino, the Ninth Circuit Court of Appeals stated the general rule that an employer cannot use an applicant's previous salary to justify pay differentials between male and female employees who perform similar work. This monumental decision may give rise to claims under the Equal Pay Act (EPA) in Washington, Oregon, Idaho, Montana, Alaska, California, Nevada, Arizona, and Hawaii.

However, in dicta, the Court indicated that discussions of an applicant's prior salary in the context of salary negotiations would not implicate the EPA. Our suggestion? Contact your attorney for clarity on how to proceed within the law!

 

NRLB Vacates Hy-Brand; Reestablishes Broad "Joint Employer" Rule Under Browning-Ferris

On February 26, 2018,the NLRB vacated its decision in Hy-Brand Industrial Contractors, Ltd. [pdf], and resurrected the joint employer rule established under Browning-Ferris Industries of Calif. In Browning-Ferris, the NLRB disregarded 40 years of precedent in expanding the definition of "joint employer" to include (1) those exercising direct and actual control and (2) those exercising indirect control or reserve the potential to exercise control. 

Why did this happen? 

Current NLRB board member Bill Emanuel, one of the three votes in Hy-Brand in favor of overturning Browning-Ferris, was a partner at the law firm that represented Browning-Ferris in 2015. 

What now?

With all this uncertainty, employers do have a possible solution should it pass the Senate: the federal (and bipartisan) Save Local Business Act. This bill defines a “joint employer” under the NLRA and FLSA as one that

directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment, such as hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline

This bill passed the House in November 2017, and is awaiting action in the Senate. 

 

 

Government Affairs Updates

SHRM Olympia has a succinct summary of certain key employment law proposals in Washington State, as well as other case law that may affect human resource management in Washington State.

If you would like to reach out to your local Legislator on a current, pending, or proposed bill or regulation, you can find them on the Washington State Legislature District Finder website. For federal issues, reach out to your State’s Representative or Senator.

 

Get Involved!

The best way to have your voice heard is to get involved locally.

  • Greater Spokane Incorporated is a business development organization that connects businesses, drives initiatives to improve the Spokane region, and advocates for businesses. You can learn more on GSI’s website.
  • Attending Spokane City Council meetings allows you to keep your finger on the pulse of our dynamic City. Meeting agenda and schedule are available on the City of Spokane’s website