Emily A. Bushaw Partner

Certain construction workers and other employees in the construction industry must be paid the entire balance of accrued and unused paid sick leave if those workers separate from employment before they reach their 90th day of employment.

The Washington Supreme Court recently considered whether it would adopt the "apex doctrine." This doctrine is a framework used by some courts to evaluate whether a party may take the deposition of a company's executives and officers.

Multiple new laws will take effect in Washington state beginning January 2024, bringing changes to the state’s minimum wage laws and adding requirements under the state’s Paid Sick Leave Law.

Beginning in 2024, both Washington and California will prohibit employers from basing hiring decisions on an applicant’s legal marijuana use.

Connecticut Paid Sick and Safe Leave was expanded to add two additional permitted uses, effective October 1, 2023.

The U.S. Department of Labor (DOL) recently issued Field Assistance Bulletin No. 2023-2 to provide guidance to its field staff regarding enforcement of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), passed in 2022.

The recently enacted Pregnant Workers Fairness Act requires covered employers to provide reasonable accommodations to “qualified” employees or candidates with a known limitation related to pregnancy, childbirth, or related medical conditions, absent an “undue hardship.”

California’s Civil Rights Council, a branch of the California Civil Rights Department, issued proposed revisions, earlier this year, to the Fair Employment and Housing Act regulations governing an employer’s use and consideration of a job applicant’s criminal history in employment decisions.

A recent decision made by the National Labor Relations Board (NLRB or the Board) reinstated setting-specific standards to determine whether employers have violated the National Labor Relations Act (NLRA or the Act) by disciplining employees for engaging in “abusive conduct” when that behavior occurred in connection with activities protected by Section 7 of the Act.

The Washington Employment Security Department (ESD) recently adopted new rules for the state’s Paid Family and Medical Leave Act (PFML) regarding employer reporting requirements, child placement, and self-employment elective coverage requirements.

The U.S. Department of Labor issued Field Assistance Bulletin No. 2023-2 on May 17, 2023, to provide guidance to its field staff regarding enforcement of the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which was passed last year.

The state of Minnesota enacted a labor bill (SF 3035) on May 24, 2023, that prohibits employers’ use of noncompetes. This ban becomes effective July 1, 2023, but does not apply retroactively to noncompetes signed before this date.

The Washington Employment Security Department adopted new rules for the state’s Paid Family and Medical Leave Act regarding employer reporting requirements, child placement, and self-employment elective coverage requirements. The new rules become effective July 1, 2023.

The National Labor Relations Board General Counsel Jennifer A. Abruzzo issued a memorandum on May 30, 2023, opining that noncompete agreements contained in employment agreements and severance agreements violate the National Labor Relations Act except in limited circumstances.

The National Labor Relations Board recently reinstated setting-specific standards to determine whether employers have violated the National Labor Relations Act by unlawfully disciplining or discharging employees who allegedly engaged in “abusive conduct” in connection with activities protected by Section 7 of the Act.

In February 2023, the National Labor Relations Board (NLRB) ruled in McLaren Macomb, 372 NLRB No. 58 (2023), that employee severance agreements with overly broad confidentiality and nondisparagement provisions violate the National Labor Relations Act (NLRA).

Over the past year, several states have rolled out plans to defund diversity, equity, and inclusion efforts. While these initiatives are focused on state agencies and state-funded higher education, they may cause concern for private employers.

The California Joint Legislative Audit Committee has moved to audit the persistent backlog of wage theft cases at the Division of Labor Standards Enforcement. The audit is set to begin September 1, 2023, absent developments demonstrating to the Committee an investigation is no longer necessary. 

Following delays due to the COVID-19 pandemic, Cal/OSHA has finally revisited its indoor heat illness prevention standard.

U.S. President Joe Biden signed the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) into law on December 29, 2022.

The National Labor Relations Board recently ruled in McLaren Macomb that employee severance agreements with overly broad confidentiality and nondisparagement provisions violate the National Labor Relations Act. Recently, NLRB General Counsel Jennifer A. Abruzzo issued a memorandum to all regional directors, officers-in-charge, and resident officers to “assist Regions in responding to inquiries from workers, employers, labor organizations, and the public about implications stemming from the case.”

The Federal Trade Commission (FTC) recently announced its proposal of a new rule that would ban employers from imposing noncompete agreements on their workers and invalidate existing noncompetes currently in effect.

In a recent ruling, the National Labor Relations Board found an employer violated the National Labor Relations Act when it offered furloughed employees a severance agreement that included overbroad nondisparagement and confidentiality provisions.

The Seattle City Council became the first U.S. jurisdiction to identify caste as a protected class under its Human Rights Code on February 21, 2023, when it passed CB 120511, “An Ordinance Relating to Human Rights; Including Protections Against Discrimination Based on an Individual’s Caste.”

Seattle’s new Independent Contractor Protections Ordinance (the Ordinance) requires certain hiring entities to provide independent contractors with disclosures both before entering a contract and at the time of payment.

Multiple new laws took effect in Washington at the beginning of the year, including several that increased the minimum wage in various locations across the state. This Update summarizes those new wage-related laws.

The Illinois legislature passed the Paid Leave for All Workers Act on January 10, 2023, which Governor Pritzker announced he will sign into law. Should the bill be enacted, Illinois will become the third state (after Maine and Nevada) to require private employers to provide employees with earned paid leave to use for any reason.

U.S. President Joe Biden signed the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections for Nursing Mothers Act into law on December 29, 2022. This combined legislation aims to bridge the gap in federal legal protections for employees who are affected by pregnancy or related conditions or who are breastfeeding.

The Federal Trade Commission announced its proposal of a new rule that would ban employers from imposing noncompete clauses on their workers and invalidate nearly all existing noncompetes currently in effect. According to the FTC, this will affect 30 million, or one in five, American workers currently covered by a noncompete agreement.

The National Labor Relations Board released its notice of proposed rulemaking to establish a new “joint employer” legal standard under the National Labor Relations Act on September 6, 2022. This standard is consequential for both unionized and nonunionized entities because if an entity is deemed an employer under the NLRA, it must recognize collective bargaining efforts and can be liable for violations arising from unfair labor practice allegations. The comment period closed on December 21, 2022, so a final rule can be expected in early 2023.

The Washington State Employment Security Department, or ESD, has recently been auditing Seattle restaurants, resorts, hotels and nightclubs and claiming that, under Washington law, their musicians — such as solo artists, bands, pianists and DJs — are employees of the company unless they have a written independent contractor agreement.

This Update provides six best practices to help companies conduct excellent workplace investigations.

Recent news has shined a spotlight on the legal consequences of mass layoff situations. Employers should take steps now to prepare for possible reductions in their workforce.

The Washington Employment Security Department has recently been auditing Seattle restaurants, resorts, hotels, and nightclubs and claiming that, under Washington law, their musicians are employees of the company unless they have a written independent contractor agreement. 

On October 14, 2022, CDPH changed the definition of “close contact." CDPH’s revised definition left employers with large facilities with more questions than answers.

With Congressional, state, and local elections fast approaching on November 8, employers should ensure that their supervisors and human resource departments understand applicable election-related leave laws.

Effective January 1, 2023, AB 1949 adds section 12945.7 to the Government Code to require employers with more than five employees to provide eligible employees with five days unpaid bereavement leave.

On October 31, 2022, Washington Governor Jay Inslee will end the statewide COVID-19 emergency declaration and rescind all remaining COVID-19 emergency proclamations. Despite the governor’s action, however, Washington’s Health Emergency Labor Standards Act will remain in effect for now.

After more than a year of delays and revisions, the long awaited Ban on Non-Compete Agreements Amendment Act of 2020 (the Act) took effect beginning October 1, 2022, following the passage of the Non-Compete Clarification Amendment Act of 2022.

Now that you’re a VC-backed company, chances are you’re about to go hire a bunch of employees with those funds. Your investors are looking to you and your board to comply with the law and protect their investment from employee-related risks.

Effective July 12, 2022, many San Francisco employers face new requirements to comply with the city’s amended Family Friendly Workplace Ordinance to provide flexible or predictable working arrangements to eligible employees.

Seattle’s new Independent Contractor Protections Ordinance took effect on September 1, 2022. The law imposes new requirements on employers who work with independent contractors. Employers must now provide certain notices and information both before a contractor begins work and each time a contractor is paid. Hiring entities with independent contractors working for them as of September 1, 2022, must provide the required notice of rights and pre-work written notice to the contractor by September 30, 2022, or by the date of compensation, whichever is sooner.

Last year, the West Hollywood City Council approved an ordinance establishing a citywide minimum wage and guaranteed leave provisions. On May 16, 2022, the city amended the ordinance, clarifying numerous provisions.

Employers in West Hollywood, California, who employ any individual for two or more hours per week should be prepared for significant changes, which became effective as of July 1, 2022.

The Creating a Respectful and Open World for Natural Hair Act, or the CROWN Act, went into effect in Louisiana on August 1, 2022. The CROWN Act prohibits employment discrimination based on hairstyles and hair textures historically associated with race. The CROWN Act amends the definition of unlawful discrimination in employment under the Louisiana Employment Discrimination Law (LEDL), specifically, La. R.S. 23:332, so that it includes discrimination in employment based on a person’s “natural, protective, or cultural hairstyle.”

The National Labor Relations Board and the Federal Trade Commission, on July 19, 2022, jointly issued a Memorandum of Understanding regarding information sharing, cross-agency training, and outreach of common regulatory interests.

Earlier this year, Washington Governor Jay Inslee signed into law amendments to the state’s Paid Family and Medical Leave Act (PFML Amendments), which permit additional paid leave opportunities for new parents. The PFML Amendments became effective on June 9, 2022.

With summer underway, Washington state employers are reminded to follow the new emergency outdoor heat exposure rules, which went into effect on June 15, 2022. These rules apply through September 29, 2022, and are an addition to the state’s permanent outdoor heat exposure rules effective May 1 to September 30 every year.

Ohio’s new firearm law, Ohio Senate Bill 215, went into effect on June 13, 2022, permitting all qualifying adults to legally carry, possess, or conceal a handgun that is not a restricted firearm without a license, background check, or training.

The U.S. Equal Employment Opportunity Commission issued guidance on May 12, 2022, regarding the use of software, algorithms, and artificial intelligence in assessing job applicants and employees. The EEOC’s guidance discusses how employers’ use of tools that rely on algorithmic decision-making may violate the Americans with Disabilities Act.

As a matter of first impression, on April 7 a panel of the U.S. Court of Appeals for the Ninth Circuit held that two related employers may be treated as one integrated employer to meet the 15-employee headcount threshold under the Americans with Disabilities Act.

Governor Jay Inslee signed ESHB 2076 into law on March 31, 2022, making Washington the first state to require minimum per-trip payments, paid sick leave, and workers’ compensation benefits for rideshare drivers. The law also provides that drivers will remain classified as independent contractors—not employees—and expressly forbids local governments from imposing new regulations on transportation network companies.

As a matter of first impression, on April 7, 2022, a U.S. Court of Appeals for the Ninth Circuit panel held that two related employers may be treated as one integrated employer to meet the 15-employee headcount threshold under the Americans with Disabilities Act.

On March 17, 2022, a judge for the U.S. District Court for the Middle District of Florida denied defendant Scribe Opco, Inc.’s motion to dismiss a class action alleging violations of the Worker Adjustment and Retraining Notification Act.

The U.S. House of Representatives passed the Creating a Respectful and Open World for Natural Hair (CROWN) Act in a 235-189 vote.

Washington Governor Jay Inslee signed into law the Silenced No More Act (Engrossed Substitute House Bill 1795) on March 24, 2022.

Washington Governor Jay Inslee, on March 30, 2022, signed into law amendments to the state’s Equal Pay and Opportunity Act, which soon will require most Washington employers to include pay ranges in their job postings.

On February 2, 2022, Republican Governor Tate Reeves signed the Mississippi Medical Cannabis Act, which legalizes medical marijuana for the treatment of certain debilitating conditions.

The Seattle Office of Labor Standards (OLS) recently announced it will conduct an administrative rulemaking process related to the city’s new Independent Contractor Protections ordinance.

The Washington Legislature made several significant changes to the state’s Paid Family and Medical Leave program during the 2021 legislative session that all Washington employers should know.

The U.S. Department of Labor’s Occupational Safety and Health Administration issued its long-awaited emergency temporary standard requiring all employers with a total of 100 or more employees to mandate vaccination and/or weekly COVID-19 testing. OSHA also released a comprehensive FAQ to address questions.

In Port of Tacoma v. Sacks, the Court of Appeals of the State of Washington recently held that all out-of-town employee travel time is compensable under state law.

The Washington State Employment Security Department (ESD) audits records of employers located in Washington to confirm that wages and hours are accurately reported and to ensure compliance with the state’s unemployment insurance laws and rules. 

Washington Governor Jay Inslee signed the Health Emergency Labor Standards Act (HELSA) on May 11, 2021.

The Department of Labor & Industries filed a new emergency rule on July 16, 2021, that provides increased protection to employees who are exposed to wildfire smoke. The rule took effect immediately.

On July 9, 2021, in the wake of an extreme heat wave that resulted in record-high temperatures, Washington became the second state in the Pacific Northwest to announce emergency rules that provide hot weather protection to outdoor workers.

On April 16, 2021, Governor Jay Inslee signed into law the Washington Wage Recovery Act, allowing employees to place a lien on their employers’ property to secure unpaid wages.

On May 11, 2021, Governor Jay Inslee signed the Health Emergency Labor Standards Act, a sweeping worker protection bill recently passed by the state legislature. The Act amends the state’s Worker’s Compensation and Industrial Health and Safety statutes to provide automatic protections for certain workers and to impose new notification and reporting requirements on employers in the event of a “public health emergency.”

In response to last year’s groundbreaking decision by the Washington State Supreme Court in Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., the state legislature recently passed Engrossed Substitute Senate Bill 5172, amending the state’s Minimum Wage Act as it relates to agricultural workers and adopting a phased approach for imposing overtime requirements on agricultural employers.

In 2019, Washington passed the first law in the nation requiring employees to fund a state-operated long-term care insurance program. The program, codified at RCW 50B.04 and set to begin on January 1, 2025, will be funded by an uncapped payroll tax starting at 0.58% on all employee compensation beginning January 1, 2022.

A subsection of the U.S. Department of Justice’s (DOJ) Civil Rights Division, the Immigrant and Employee Rights Section (IER), formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), enforces the anti-discrimination provision of the Immigration and Nationality Act and the accompanying regulations (8 U.S.C. § 1324b and 28 C.F.R. Part 44).

Since July 2018, Washington businesses have been operating under Washington’s Equal Pay and Opportunities Act (EPOA). The EPOA, which significantly expanded the state’s 1943 Equal Pay Act, is one of the most stringent equal pay laws in the country.

On February 3, 2021, Seattle Mayor Jenny Durkan signed into law a new ordinance requiring grocery employers to provide their employees an additional $4.00/hour in hazard pay due to the COVID-19 pandemic.

More than thirty years ago, the Washington Supreme Court ruled defense counsel may not engage in ex parte communications with a plaintiff’s treating physician. Loudon v. Mhyre, 110 Wn.2d 675, 676 (1988).

In a 5-4 decision, a divided Washington Supreme Court ruled that dairy workers are entitled to overtime pay under Washington law if they work more than 40 hours a week, nullifying an exemption to the Washington Minimum Wage Act’s overtime requirement as applied to dairy workers.

One year after New York City did the same, Seattle enacted an ordinance in 2019 that guarantees a minimum wage for local rideshare drivers.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, on September 8, 2020, to create a comprehensive guide for both employers and employees addressing common questions related to COVID-19 and federal employment laws.

With the global shift to remote work in 2020, the workplace has changed radically and understanding current employment rules and regulations matters immensely.

As new unemployment claims rise, impostors seek to scam the unemployment system at the cost of the state, employees, and employers.

As Washington businesses continue to operate under Governor Jay Inslee’s “Stay Home, Stay Healthy” order in the wake of the global COVID-19 pandemic, workers’ compensation may not be of primary concern.

The best laid plans of mice and men often go awry. Washington State’s 60-day legislative session ended on Thursday, March 12, 2020, after the rapid spread of COVID-19 around the state drastically changed the outcome of this year’s session.

The Washington State Legislature has passed an amendment to the Washington Law Against Discrimination (WLAD) to prohibit discrimination based on hair textures and hairstyles historically linked to race.

The Washington State Department of Labor & Industries (L&I) recently announced significant revisions to Washington’s overtime rules for the first time in 40 years.

Beginning January 1, 2020, Washington employers in industries including hospitality, retail, security, and contracted property services will need to comply with a new law amending the Washington Law against Discrimination (WLAD). 

In Burnett v. Pagliacci Pizza, Inc., 442 P.3d 1267 (Wash. Ct. App. 2019), the Washington Court of Appeals held that the manner in which an employer communicates its arbitration agreement is crucial for determining whether it is valid and enforceable. Employers should carefully review their arbitration agreements to ensure they are compliant with the court’s new decision.

With the California Consumer Privacy Act of 2018 (CCPA) set to take effect on January 1, 2020, California Governor Gavin Newsom signed amendments in October 2019 providing businesses some temporary shelter from the CCPA provisions with respect to information of their employees, job applicants and independent contractors.

Beginning in January 2020, Washington employees can start using new benefits under the Paid Family and Medical Leave Act (PFML).

The U.S. Department of Labor (DOL) issued its long-awaited rule changes to the Fair Labor Standards Act’s (FLSA) overtime requirements on September 24, 2019.

Washington Governor Jay Inslee signed into law legislation in April 2019 that requires school districts to allow parents and guardians to administer to their child marijuana-infused medications on school grounds, in school vehicles and at school-sponsored activities.

The Washington State Supreme Court recently held obesity qualifies as an impairment under the Washington Law Against Discrimination (WLAD).

Recently enacted amendments to Washington’s Equal Pay and Opportunities Act (EPOA) will take effect on July 28, 2019.

Co-editor of a monthly print and online publication focusing on developments in Washington and Ninth Circuit employment law.

President Barack Obama issued a memorandum in March 2014 that directed U.S. Secretary of Labor Thomas Perez to “modernize and streamline” the regulations on exemptions from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements.  On June 30, 2015, the Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) that would substantially narrow the scope of these exemptions, requiring the reclassification of a large number of employees.

Topics discussed include developments in claims for wrongful discharge in violation of public policy, the NLRB’s decision on joint employers and the implications of new election procedures, employee cell phone records and the Public Records Act, new FLSA regulations, recent case law on the enforceability of noncompete agreements, and a general update on the latest employment law developments.

Topics discussed include recent NLRB rulings, guidelines for employee handbooks, wage and hour and leave and accommodation issues and a general update on the latest employment law developments.