Bruce Michael Cross Of Counsel

As expected, Governor Jay Inslee signed legislation that will significantly restrict the use of noncompetition agreements for Washington-based employees and independent contractors.

Last week, the Washington State Legislature passed a proposal that, once signed into law, will significantly restrict the use of noncompetition agreements in Washington.

The federal Fair Credit Reporting Act (FCRA) applies to employers who obtain “consumer reports” from a “consumer reporting agency” for employment purposes.

The U.S. Supreme Court this week overruled longstanding precedent to hold that public-sector unions may no longer extract agency fees from nonconsenting employees who have opted not to join a union.

The Washington Equal Pay Opportunity Act will go into effect on June 7, 2018. House Bill 1506, signed by Governor Jay Inslee on March 21, 2018, amends the Washington Equal Pay Act, RCW 49.12.175, to “address income disparities, employer discrimination, and retaliation practices, and to reflect the equal status of all workers in Washington state.” This statute goes beyond federal equal pay legislation by providing additional protections for employees and imposing restrictions on employers. An employer who discriminates based on gender in providing compensation is guilty of a misdemeanor.

The state of Washington’s new paid sick and safe time requirements became effective January 1, 2018.

The National Labor Relations Board issued a decision relating to the test for joint employment under the National Labor Relations Act.

In addition to championing greater employee and workplace protections via ballot measures and city ordinances in Santa Clara County, California, several unions have set their eyes on the employees of the private companies that provide services to Silicon Valley’s high-tech campuses.

The Seattle City Council unanimously passed the Secure Scheduling Ordinance (Ordinance) on September 19, 2016.

A federal judge in Texas has issued a nationwide injunction against the new labor “persuader” reporting requirements that were due to take effect on July 1, 2016.

Although some states have long imposed personal liability on officers and directors for unpaid wages, the laws in both California and New York have recently been amended to address personal liability.

In a game-changing event, on February 23, 2016, the U.S. Court of Appeals for the Ninth Circuit in a 2-1 decision ruled that it is a violation of federal law for an employer to use a tip-pooling arrangement that shares tips with normally non-tipped employees, such as kitchen workers or supervisors, even when the employer does not take advantage of the minimum wage “tip credit” permitted by the federal Fair Labor Standards Act (FLSA).

The decision by the National Labor Relations Board (NLRB) last week in BFI Newby Island Recyclery expands the circumstances in which two otherwise separate and independent employers may be found to be joint employers of a group of workers. 

The new election rules adopted by the National Labor Relations Board (NLRB) went into effect on April 14, 2015, and will apply to all requests for elections filed after that date. The new rules significantly speed up the scheduling of an election when a union files a petition seeking to represent a group of employees.

Earlier this week, the federal Occupational Safety and Health Administration issued the news release, “Crowd Management Measures Are Critical During Major Sales Events,” and sent a reminder to major retailers and retail associations about the need to take precautions to prevent employee injuries during major sales events.

The National Labor Relations Board, the agency that enforces federal labor law, continues to challenge employer policies that seek to impose confidentiality constraints on employees.  This is unlikely to change now that the Senate has confirmed President Obama’s nominations for all five members, bringing the NLRB to full strength for the first time in years.

On April 16, 2013, the U.S. Supreme Court concluded, in a 5-4 decision, that when the individual plaintiff in a "collective action" under the Fair Labor Standards Act (FLSA) resolves her own claims before certification, the case is moot and must be dismissed.  Genesis Healthcare Corp v. Symczyk, No. 11-1059 (U.S. 2013).

On April 3, 2013, the New York Times published an article about commercial databases that contain reports from retail employers about employees who were accused of stealing from their workplaces.

Last Friday, March 8th, the Department of Homeland Security, U.S. Citizenship and Immigration Services, adopted a new I-9 Form that must be used by all employers (and some other entities), starting no later than May 8, 2013—two months after the new requirement was published in the Federal Register.  A copy of the announcement can be found here.

In the waning days of 2012, the National Labor Relations Board (NLRB) issued several game-changing decisions that are important to all private sector employers—both union and nonunion.

On January 1, 2013, all employers with employees in California who are paid by commission will be required to have written contracts with those employees.  This law is a significant departure from the previous law, which only required employers based outside of California to have written contracts with their commissioned employees.

The Washington Supreme Court has just issued its unanimous decision in the Washington State Nurses Association case.  The court concluded that when a full-time employee (working 40 hours a week) works through a paid rest break, the employee is entitled to overtime pay on top of his or her regular pay.

In the holiday rush, it's easy to overlook wage-hour issues.  This Wrapping Paper discusses common ones to which you should be alerted.

Determining whether a worker is an independent contractor or an employee is important for a number of reasons, including:  employee benefits, wage-and-hour laws, discrimination laws, payroll taxes and liability to third parties.  Historically, a number of different tests have been applied to distinguish between employees and independent contractors.  Recently the Washington Supreme Court held that the “economic realities” test used under the federal Fair Labor Standards Act also applies to cases brought under the Washington Minimum Wage Act.

The National Labor Relations Act ('the Act') is the federal law designed to protect employees engaged in union and other concerted activities.  But these protections do not just apply to unionized employees - they extend to virtually all private sector employees, unionized or not.  One of the rights the Act protects is an employee's right to discuss matters of common interest such as wages and working conditions.  An employer therefore commits an unfair labor practice if it prohibits or interferes with those discussions.

A recent decision illustrates the dangers of even a modest wage-hour claim under Washington law.  A $12,000 overtime dispute turned into a bill for over $500,000 before the costs of appeal.  According to the decision, an employee was incorrectly classified as an "administrative" employee exempt from Washington's overtime requirements.  He was awarded $12,000 for his unpaid overtime.

In a decision that represents more good news for employers doing business in California, the California Supreme Court recently held that employees may not recover attorneys' fees for meal and rest period claims.

The new employee poster requirement adopted by the National Labor Relations Board, that was scheduled to take effect on April 30, 2012, has been postponed by the Court of Appeals in Washington, D.C. pending consideration of an appeal from the decision of the lower court upholding the requirement.

A federal court in Washington, D.C., upheld the new rule adopted by the National Labor Relations Board that requires virtually all private sector employers to post large official notices informing employees of their rights under the National Labor Relations Act.

Last Friday, the National Labor Relations Board issued its decision in D.R. Horton, Inc., concluding that private arbitration agreements that require employees to waive their right to pursue class actions are illegal because they interfere with the employees' rights to engage in collective activities protected by federal labor law.

On December 21, 2011, the National Labor Relations Board (NLRB) announced new rules that will make it significantly easier for unions to win NLRB elections.

The National Labor Relations Board (NLRB) continues to find garden-variety employer policies to be unlawful because they restrict or interfere with employee rights protected by federal labor law.

The Washington Court of Appeals has just released its decision in Pellino v. Brink's Inc., concerning Washington's meal and rest breaks requirements.

On August 30, the National Labor Relations Board NLRB published new rules that require virtually all private sector employers to post notices informing employees of their rights under the National Labor Relations Act—the federal law that protects employees who engage in union and other concerted activities.

On March 22, 2011, the U.S. Supreme Court decided that an employee’s complaint alleging violations of the federal Fair Labor Standard Act ("FLSA") need not be in writing to count as “protected activity” for purposes of an FLSA retaliation claim; an oral complaint will suffice.  The court did not, however, decide the related question of whether complaints to private employers, as opposed to government agencies, constitute protected activity under the FLSA.  Kasten v. Saint-Gorbain Performance Plastics Corp., No. 09-834 (U.S. Mar. 22, 2011).

This well-established principle surprises many nonunion employers who mistakenly think that the federal law protecting union activities, the National Labor Relations Act ("NLRA"), does not apply to them.  The reality is that the NLRA protects nonunion employees in exactly the same way it protects employees engaged in union activities.

Recent news reports that the National Labor Relations Board has accused an employer of violating federal labor law when it discharged an employee for bad-mouthing her boss on her Facebook page is a timely reminder that most employees have extensive protection under federal law, whether or not they are represented by a union.