Washington State Enacts New Protections for Pregnant Employees

Last week Governor Inslee signed into law the “Healthy Starts Act,” which is aimed at promoting healthy outcomes for pregnant women and newborns.  The law includes new protections for pregnant workers.

Starting on July 23, 2017, it is an unfair business practice for any employer with 15 or more employees to:

  • Fail or refuse to make reasonable accommodation for an employee for pregnancy, unless the employer can demonstrate that doing so would impose an undue hardship on the employer’s program, enterprise, or business;
  • Take adverse action against an employee who requests, declines, or uses an accommodation under this section that affects the terms, conditions, or privileges of employment;
  • Deny employment opportunities to an otherwise qualified employee if such denial is based on the employer’s need to make reasonable accommodation required by this section;
  • Require an employee to take leave if another reasonable accommodation can be provided for the employee’s pregnancy.

Reasonable accommodations listed in the statute include scheduling flexibility for prenatal visits, temporary job transfer, reduced or modified work schedules, providing more frequent restroom breaks, and modifying a no food or drink policy.  The law permits an employer to request written certification from an employee’s health care provider regarding the need for certain accommodations.  It also limits what employers may claim as an “undue hardship” and authorizes recovery of damages, costs, and attorney fees if an employer is found in violation of the statute’s provisions.  The full text of the law is available here:  http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Passed%20Legislature/5835-S.PL.pdf#page=1

If you have questions about a specific employee or need help updating your policies and procedures, please contact any member of our Employment Group:  503-227-1111; http://www.sussmanshank.com/employment.

We will update this post when the Washington Department of Labor & Industries publishes required guidance on the rights and responsibilities of employers and employees who have a health condition related to pregnancy or childbirth.

Oregon Proposed Equal Pay Legislation

The Oregon Senate passed a bill yesterday that addresses pay disparities between protected classes.  The Oregon Equal Pay Act of 2017 (House Bill 2005) provides that it is an unlawful employment practice to:

  • Discriminate between employees on the basis of a protected class in the payment of wages or other compensation for work of comparable character
  • Pay wages or other compensation to any employee at a rate greater than that at which the employer pays wages or other compensation to employees of a protected class for work of comparable character
  • Screen job applicants based on current or past compensation
  • Determine compensation for a position based on current or past compensation of a prospective employee.

An employer may consider the compensation of a current employee during a transfer, move or hire of the employee to a new position with the same employer.  An employer may also pay employees for work of comparable character at different compensation levels if the difference in compensation levels is based on a bona fide factor that is related to the position in question and is based on: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production, including piece-rate work; (d) workplace locations; (e) travel, if travel is necessary and regular for the employee; (f) education; (g) training; (h) experience; or (i) any combination of the factors described in this subsection, if the combination of factors accounts for the entire compensation differential.

The proposed law allows employers to avoid payment of compensatory and punitive damages if the employer can show that it has completed, within three years before the date that the employee filed the action, an equal-pay analysis of the employer’s pay practices in good faith that was:

  • Reasonable in detail and in scope in light of the size of the employer; and
  • Related to the protected class asserted by the plaintiff in the action; and
  • Eliminated the wage differentials for the plaintiff and has made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff.

We will continue to follow the progress of this legislation.  In the interim, employers should consider their pay practices and whether there are positions or categories of positions with pay disparities that cannot be supported by the bona fide criteria suggested above.

Title VII and Discrimination Based on Sexual Orientation

Since July 2015, the EEOC has taken the position that Title VII forbids “any employment discrimination based on gender identity or sexual orientation” and that the protections provided by Title VII “apply regardless of any contrary state or local laws.” This spring, the issue has been addressed by three different Courts of Appeals: the Eleventh, Seventh and Second Circuits.  In March, the Eleventh Circuit ruled that Title VII does not cover sexual orientation discrimination.  However, in early April, the Seventh Circuit ruled that Title VII protects employees from discrimination based on sexual orientation.  Less than two weeks later, the Second Circuit ruled to the contrary, and found that claims for discrimination based on sexual orientation are not covered under Title VII.   This conflict sets the issue up for resolution by the U.S. Supreme Court.

Oregon’s anti-discrimination laws have prohibited discrimination based on sexual orientation and gender identity since 2008. And, Washington law has included such protections since 2006.

We will continue to cover developments related to Title VII. Assuming the Supreme Court takes up the issue, and regardless of how it rules, employers in Oregon and Washington are prohibited from discriminating based on an employee or applicant’s sexual orientation or gender identity.  Employers should ensure their policies and procedures reflect these protections.

The EEOC’s Guidance is here: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

Protect Your Clients, Customers, Employees, and Your Business With a Bring Your Own Device (BYOD) Policy

In 2016, there were over 1,000 reported data breaches in the United States that exposed 36,601,939 records.[1]  An unknown number of those records may have contained information such as Social Security numbers, driver’s license numbers, or financial account information.

If you permit employees to access company data (including business emails) from their smart phones and personal devices, a strong BYOD policy is essential to reduce the threat of a cybersecurity incident and possible disclosure of confidential business or personal information. BYOD policies must be tailored to the needs of your organization, and written in close cooperation with your IT department.  At a minimum, a BYOD policy should cover the following:

  • Mandate that employees use strong passwords on all devices
  • Restrictions on use by family members or other third parties
  • Instructions on what to do if a device is lost or stolen
  • Details on data back-up requirements and mobile device management software
  • No private company data should be sent over personal email
  • No personal information should be sent to or from company email account
  • Directions about what happens to a device when employment ends

If your business is considering implementing a BYOD policy or you need help updating an existing policy, contact any member of our employment group.

[1] http://www.idtheftcenter.org/images/breach/2016/DataBreachReport_2016.pdf

Oregon Layoff Notifications Bill Before Legislature

A new bill is before the Oregon legislature, which if enacted, would require Oregon employers to notify its employees of potential mass layoffs.   House Bill 2567 proposes that Oregon employers with 100 or more employees must provide 60 days’ notice to employees concerning potential closure of the business, relocations and/or mass layoff of 50 or more employees.  If Oregon companies fail to provide notice of a potential reduction of workforce, then employees could receive back pay and other relief, including up to $500 per day for each day during the period for which the employer failed to give such notice.  Certain exemptions would be available. 



Legislature Considering Paid Family Medical Leave

A bill is currently before the Oregon state legislature that, if passed, would create family and medical leave insurance benefits for Oregon workers.


If passed, House Bill 3087 would create the Family and Medical Leave Insurance Fund, which will be funded by employer and employee payroll contributions. This benefit will entitle Oregon workers to receive up to 12 weeks of partially paid leave in order to care for children or family members.  Workers will also be entitled to an additional 6 weeks of benefits for parental leave.


A complete copy of House Bill 3087 is available here: https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB3087/Introduced.


Corporate President May Be Liable For Aiding And Abetting Discrimination

A federal court in Oregon recently held that a corporate president may be liable for aiding and abetting discrimination.  The case, Baker v. Maricle Indus., Inc., Case No. 6:16-cv-01793-AA (D. Or. Mar. 17, 2017), involves claims by an employee that the employer and its president discriminated against him on the basis of his perceived and actual disability, in violation of the ADA and Oregon law, and unlawfully retaliated against him by discharging him for his complaints of a hostile work environment, in violation of state law.  The president moved for partial summary judgment arguing, among other things, that because he was the principal actor in the alleged discrimination, he could not be liable for aiding and abetting himself.

The court denied defendant’s motion, finding that:

When a corporate president acts outside her scope of employment, she acts in her personal capacity, not as an agent of the corporation, and is, therefore, a third party to the plaintiff’s relationship to the corporation. Under those conditions, the Court could hold Mr. Maricle liable for aiding and abetting ServiceMaster Cleaning Specialists under Or. Rev. Stat. § 659A.030(1)(g).

Factors relevant to determining whether one is “acting in the course and scope” include (1) whether the act occurred substantially within the time and space limits authorized by the employment and (2) whether the act is of a kind which the employee was hired to perform. As the court stated, making that determination is a question of fact and in this case defendant did not argue that plaintiff could not show he acted outside the course and scope of his employment.  Therefore, he did not meet his burden to show the absence of a genuine issue of material fact as required by Rule 56 of the Federal Rules of Civil Procedure and relevant case law.

A copy of the opinion may be found here:  https://casetext.com/case/baker-v-maricle-indus-inc



On March 9, 2017, the Multnomah County Circuit Court rejected BOLI’s new interpretation of how manufacturing employers should pay overtime to employees. As our previous post explained, prior to January 2017, BOLI’s guidance instructed manufacturing employers to pay employees the greater of daily or weekly overtime.  In December 2016, BOLI issued an Administrator’s Interpretation stating that manufacturing employers were required to pay both daily and weekly overtime to employees.  The Court found that plaintiffs’ position (which was, not coincidentally, the position taken by BOLI) failed to give effect to all of the provisions in the applicable wage and hour statutes.  In contrast, the Court held that: “Defendant’s interpretation of the statutory scheme is that (consistent with BOLI’s pre-December 2016 interpretation) an employer subject to both ORS 652.020 and ORS 653.261 must calculate both daily and weekly overtime and pay the greater of the two.” And that:”Defendant’s interpretation of ORS 652.020 and ORS 652.261 is the proper interpretation of the statutory scheme.”

It is not yet known if plaintiffs will appeal. Further, legislation has been introduced (Senate Bill 984) to amend the statute to clarify that manufacturing employers are required to pay the greater of daily or weekly overtime (not both).  We will continue to follow developments.

A link to the opinion is here: http://www.sussmanshank.com/files/Opinion and Order re MSJ (02525418x7AC43).PDF

The text of SB 984 can be found here: http://gov.oregonlive.com/bill/2017/SB984/



Has your Company Updated its Whistleblower Policy? Does the Company have one?

If the answer to either question is “No,” here is a reminder that the Defend Trade Secrets Act of 2016 (“DTSA”) requires employers to provide employees with notice of immunity for disclosures of trade secrets made in certain circumstances. Employers must provide the notice of immunity in employment agreements that include confidentiality and non-disclosure of trade secret prohibitions, or may include the notice of immunity in a handbook or other policy, provided that relevant employment agreements include a specific reference to the handbook or policy.

The notice should inform employees that they will be immune from liability under any federal or state trade secret law for disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or if the disclosure is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The notice should also advise employees that, if an employee sues for retaliation based on reporting a suspected violation of law, the employee may disclose trade secrets: (i) to the attorney of the employee and use the trade secret information in the court proceeding, if the employee: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

Where an employer prefers to include the immunity notice in a handbook or other policy, relevant employment agreements must reference the handbook/policy. This can be as simple as including the following language in the agreement: “Notwithstanding any other terms of this Agreement, you may be entitled to immunity and protection from retaliation under the Defend Trade Secrets Act of 2016 for disclosing a trade secret under certain limited circumstances, as set forth in Company’s handbook.”

If you need more information, or want to update your employment agreements and/or handbook policies, contact any member of our employment group.


POWADA Reintroduced

This week, US Senators reintroduced legislation labeled as the Protecting Older Workers Against Discrimination Act (POWADA).  The legislation aims to reduce an employee’s burden of proving an age discrimination claim.  Currently, an employee must prove that age was essentially the sole reason for an adverse employment action.