Seattle has joined more than 50 other cities across the country with similar measures. According to its proponents, led by Councilman and Mayoral Candidate Bruce Harrell, the ordinance is designed to decrease criminal recidivism rates by enabling more individuals with criminal backgrounds to obtain jobs.

Under the ordinance, most Seattle public and private employers may only ask about a candidate's criminal record after an initial screening to eliminate unqualified applicants. Even at the initial screen, the employer may only consider the applicant's criminal background if there is a "legitimate business reason" to do so. Legitimate business reasons exist when the employer believes that the nature of the criminal conduct affects the applicant's fitness or ability for the position or may cause injury to people or business assets. As the measure is implemented, the Seattle Human Rights Commission will release a more extensive definition of legitimate business reasons.

The ordinance does have some exceptions:

• It does not cover employers that are permitted or required by federal law to obtain background checks before making offers.
• The ordinance does not apply to positions that provide services to children, the mentally ill, or other vulnerable adults, or to those involved in law enforcement, crime prevention, security, or private investigation.
• Employers seeking to fill a position involving access to money, financial information, or personal identifying information of others may consider these responsibilities as legitimate business reasons when determining whether to exclude applicants with records of embezzlement, theft, fraud, or other financial crimes.
• The ordinance applies only to jobs where the employee will work at least half the time within the Seattle city limits.

Applicants may report violations to the Seattle Office for Civil Rights, which can issue a warning for a first offense, a $750 fine for the second offense, and a $1,000 fine for each later violation.

Many employers will have to consider changes to their recruiting and hiring process as a result of the ordinance. Members of the Foster Pepper Employment and Labor Relations Group will be glad to assist.

Washington Residents Least Likely to Curse on the Phone: The Marchex Institute reports that Washingtonians are less likely to curse on the phone than residents of any other state. Researchers examined more than 600,000 phone calls placed by consumers to businesses across 30 industries, and found that Washington residents were least likely to use specified offensive words. Evergreen State residents also ranked in the top third of the country for saying “please” and “thank you.”

Watch Your Tweets – We Know Where You Live: Students at Humboldt State University in California traced the origin of 150,000 tweets, finding that most with racist and homophobic content came from users in smaller towns and rural areas.  They even developed a map, so curious users can find where there are concentrations of offensive tweeters.  In Washington state, hot spots for objectionable tweets are Aberdeen and rural areas west of Olympia.

To find materials from other presentations on employment and labor relations topics, click here and choose the "News/Pubs" tab.

However, even paid internships can lead to wage and hour woes. A wage and hour class action was recently filed against Hamilton College by a former paid intern. The intern claimed the college intentionally misclassified him and other interns as exempt from minimum wage and overtime pay. See Kozik v. Hamilton College. The complaint asserted that the college lacked funds to hire full-time assistant coaches and used interns instead, requiring them to work up to 100 hours per week below minimum wage.

Employers should be very cautious when paying interns to ensure compliance with minimum wage and overtime requirements under the Fair Labor Standards Act and applicable state law.

If you have questions about offering internship programs at your company, please contact the Foster Pepper Employment and Labor Relations Group.

The first 20 years: In earlier posts (first of a four-part series; second installment; third installment, and final installment), we outlined the traditional requirements of the FMLA and related Washington law. For more detail, we provided this comprehensive article which will be updated this summer. We more recently noted a link to new regulations expanding FMLA benefits for military caregivers.

New regulations: The US Department of Labor released 115 pages of new rules applying to military caregiver leave, qualifying exigency leave, and leave for airline flight crew employees. The DOL’s summary of the main provisions of the new rule can be found here.

New forms and posters: In case you missed it, a new poster should be adorning your workplace. A number of other FMLA forms are available on the DOL website. Check in periodically, since DOL may update the forms.

• Certification of Health Care Provider for Employee’s Serious Health Condition WH-380-E Form & Instruction
• Certification of Health Care Provider for Family Member’s Serious Health Condition WH-380-F Form & Instruction
• Notice of Eligibility and Rights & Responsibilities WH-381 Form & Instruction
• Designation Notice WH-382 Form & Instruction
• Certification of Qualifying Exigency For Military Family Leave WH-384 Form & Instruction
• Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave WH-385 Form & Instruction
• Certification for Serious Injury or Illness of a Veteran for Wage and Hour Division Military Caregiver Leave WH-385V Form & Instruction

New spin: On the eve of FMLA’s 20th birthday, the Department of Labor took the opportunity to trumpet the success of the FMLA, with statistics that seem at odds with our experience. Specifically, the DOL claims that:

• 91% of employers find that complying with the FMLA has had either a positive effect or no noticeable effect on absenteeism, turnover and morale.
• 85% of employers say that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.
• 24% of FMLA leave is intermittent leave, and fewer than 2% of employees who take intermittent leave do so a day or less at a time.
• Employee misuse of FMLA is rare.

Our experience is closer to the findings on a SHRM survey from 2007, which found more frequent problems with FMLA, particularly with intermittent leave and employee misuse of the law.

If you have questions about FMLA requirements, please contact the Employment and Labor Relations attorneys at Foster Pepper.

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• Determining exempt status
• Engaging independent contractors
• Correcting misclassifications
• Compensating interns and volunteers
• Employing and paying minors
• Utilizing internal employment audits

We will also present a brief update on recent employment and labor law developments. We hope you can join us for this informative and lively presentation.  Registration is now open for the event.

Be sure to mark your calendars for May 14, when Foster Pepper will present Part II of this briefing, covering a host of additional wage and hour issues.

In the first groundbreaking decision, Alan Ritchey Inc., the company and its recently-certified union were negotiating their first collective bargaining agreement. Before an agreement was reached, the company disciplined a union employee. The union filed an unfair labor practice charge, arguing that the company should have bargained before disciplining the employee. The Board agreed, ruling that before the first union contract is in place, the employer must offer to bargain over the decision to discipline a union employee. Although the Board hoped to encourage “even-handed and uniform application of rules of conduct,” in practice employers face one additional hurdle before issuing corrective action while trying to bargain a first contract.

In a second significant decision, WKYC-TV, Gannet Co. Inc., the Board ruled that employers must continue to honor arrangements to deduct union dues from employee paychecks even after the collective bargaining agreement has expired. This decision represents a substantial change for many employers and overrules half a century of labor law precedent on the issue. The Board thus stripped employers of a valuable bargaining tactic. Employers used to be able to use the threat of loss of dues to pressure the union to reach a new agreement. Now, employers must continue dues deductions until an agreement is reached, or valid impasse allows unilateral employer action.

Finally, in Hispanics United of Buffalo, the Board found that the employer unlawfully fired five employees because of their off-duty Facebook activities. The five targeted a co-worker named Lydia who criticized their work performance. One of the criticized employees, Marianna, sparked a conversation among four other co-workers about the criticism in a Facebook post. Lydia observed and commented on the Facebook postings, and subsequently complained to management about the abusive conduct. All five employees were fired. In reversing the terminations, the Board found the communications were protected, concerted activity under the National Labor Relations Act, and that the protected communications were the only basis for the terminations. The decision illustrates the Board’s application of its existing rules to new technology, in this case limiting discipline for employee use of Facebook as a “virtual water cooler.” It also emphasizes the Board’s continued application of the NLRA to non-union employers.

If you have questions about the effect of the National Labor Relations Board decisions on your workplace, please contact the Foster Pepper Employment and Labor Relations group.

Washington law recognizes that garnishment of wages, funds or other property “is necessary for the enforcement of obligations of debtors.” RCW 6.27.005. In general, wage garnishments may be served on the garnishee (i.e., the employer) in most cases by certified mail. RCW 6.27.110. But, proper service of a writ of garnishment on the State or a local government requires service in the same manner as in other civil suits. RCW 6.27.040. That means personal service of the writ, not mailed service, may be required for garnishments directed at State or local government employers. Note, if the creditor is the state or federal government, the rules may differ. Be sure to check the creditor’s authority and required process before implementing a wage garnishment.

If you have questions about a garnishment order or other employee compensation issue, please contact the Foster Pepper Employment and Labor Relations Group.

In addition to those requirements which have already gone into effect, the ACA imposes several duties on employers and plan sponsors which are effective between now and 2014, including:

• Mandatory Employee Coverage – Employers with an average of 50 full-time employees must offer health coverage that meets minimum essential coverage requirements or pay a fine ($2,000 per employee over 30 FTEs). Effective: January 1, 2014.
• Summary of Benefits and Coverage – Employers are required to provide a standardized summary of benefits and coverage ("SBC") to all applicants and enrollees at initial enrollment and annual enrollment. Effective: Plan years beginning on or after September 23, 2012.
• W-2 Reporting Requirement – Employers are required to report the aggregate cost of applicable employer-sponsored health coverage on W-2s provided to employees. Effective: Calendar year 2012.
• Comparative Clinical Effectiveness Research Fee – The ACA imposes a fee on all health plans to fund comparative clinical effectiveness research. Effective: Plan years beginning November 1, 2011.
• Limit on Flexible Spending Account Contributions – Employee pre-tax contributions to a Section 125 health flexible spending account ("FSA") will be limited to $2,500 annually. Effective date: Plan years beginning on or after January 1, 2013.
• Medical Loss Ratio Rebates – Employers must begin handling medical loss ratios rebates received from insurers in accordance with guidance issued by the Department of Labor (for ERISA plans) and the Department of Health and Human Services (for non-federal governmental and church plans). Effective: First applied to 2011 plan year and the first rebate is due by August 1, 2012.
• Health Insurance Exchange Notices – Employers must prepare notices to employees as to the availability of health insurance coverage through the state’s health insurance exchange, and eligibility for premium tax credits through the exchange, if the employer’s health care coverage does not satisfy the ACA’s minimum value test. Effective: March 2013.

While most employers are generally aware of the ACA's requirements, implementation of the legislation remains unclear without further regulatory guidance addressing vague and undefined provisions. Following President Obama’s victory, employers can expect increased activity by federal regulatory agencies to address critical aspects of the ACA, such as:

• Essential Health Benefits – Guidance on the definition of essential health benefits, which will determine which benefits the health insurance exchange plans must offer and, for insured or self-insured plans, which benefits are subject to the prohibition on lifetime and annual limits (for plan years beginning before January 1, 2014).
• Minimum Value Test – Rules for determining whether a plan satisfies the ACA's "minimum value" test (i.e., covers at least 60% of the costs of benefits that the employer has determined will be provided under its plan).
• Shared Responsibility – For employers with 50 or more full-time employees, the ACA's “shared responsibility” provision imposes penalties on the employer if any full-time employee obtains subsidized coverage through a health insurance exchange, either because the employer does not offer coverage at all or because the coverage offered is "unaffordable" or does not satisfy the ACA’s "minimum value test."
• "Full-Time" Employees – Standards for calculating the number of full-time employees.
• Automatic Enrollment – Standards addressing the ACA's automatic enrollment provision, which requires employers with 200+ full-time employees to automatically enroll employees into a default plan if the employee does not affirmatively elect health plan coverage or opt-out.
• Wellness Plans – Rules governing the design of employee-sponsored wellness programs and the ACA’s employee incentives to participate in such wellness plans.

Employers should take immediate action to begin the process of implementing ACA requirements, communicate plan changes to employees, and continue monitoring regulatory activity regarding implementation guidance. The Department of Labor website provides regulatory guidance and FAQs.

If you require assistance complying with the ACA's employer requirements, you may contact Amy Kauppila at kaupa@foster.com or (206)390-1071.