AG Says Title VII Does Not Prohibit Transgender Discrimination

The Attorney General of the United States issued a memo on October 4, 2017, that reversed the Obama Administration’s position that Title VII protects transgender individuals.  The memo says: “Title VII does not prohibit discrimination based on gender identity per se.”  And, explains that: “the sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation or employer action.” Based on this conclusion, the memo directs the Department of Justice and federal agencies to follow Title VII as written, i.e., not as interpreted to include protection for transgender individuals.

It is unclear what effect the memo will have on private employers or on the courts.  In Oregon and Washington (as well as in a number of other states), state law prohibits discrimination on the basis of sexual orientation (which includes gender expression and gender identity).  Further, the memo conflicts with the EEOC’s current position regarding protections for transgender employees and the agency’s efforts to pursue claims on behalf of transgender employees.  To date, the EEOC has not commented on the memo (or on whether it intends to curtail its efforts).

We will continue to follow developments on this subject.

Oregon’s New Distracted Driving Law

On October 1st, Oregon’s new distracted driving law takes effect. Drivers have been banned from talking and texting in Oregon since 2009. However, drivers could still use other functions on their phone while driving or stopped in traffic. The new law closes that loophole.

Starting Monday, drivers in Oregon cannot use any function of a mobile electronic device that requires holding or touching the device, unless they are pulled over on the side of the roadway or parked. The law applies to tablets, laptops and GPS units, in addition to cellphones. Prohibited uses include: drafting emails, accessing the Internet, navigating, or listening to music. Electronic devices may still be used for navigation or to listen to entertainment while driving, so long as the driver enters the address or selects a song (or podcast or audiobook) while the car is parked.

Drivers may use their devices to call 911 or otherwise summon emergency help, but only if no one else in the car is capable of making the call. The law also excludes emergency personnel, and commercial motor vehicle and school bus drivers under some circumstances.

Oregon employers should look at their policies on cell phone usage and text messaging while driving. Policies drafted under the prior law may need to be expanded to cover the additional devices and prohibited uses. Washington employers take note too; a similar law took effect in Washington State in July.

Washington Paid Sick Leave

Starting on January 1, 2018, employers in Washington will be required to provide employees with paid sick leave.  Generally, the new law provides:

  • Employees are eligible to accrue 1 hour of paid sick leave for every 40 hours worked;
  • Sick leave is paid at an employee’s regular hourly wage;
  • Employees can use sick leave after 90 days of employment and can carry over up to 40 hours of sick leave from year to year;
  • Paid sick leave can be used by employees:
    • To care for themselves or family members;
    • When an employee’s workplace or child’s school is closed for health reasons;
    • For an absence under the Domestic Violence Leave Act;

The benefits above are the minimum entitlement for employees. Employers can elect to provide for employees to accrue and/or carry over more sick time than required by the law.

L&I is currently drafting rules for the new paid sick leave law.  The rules are being developed in two phases:  (1) employer requirements and employee rights, and; (2) enforcement of the new law.  Public hearings on the draft proposed rules begin in November.

We will post again once the rules are released.

Part of Oregon Equal Pay Act in Effect

Oregon’s new Equal Pay Act goes into effect over the next few years.  However, starting on September 1, 2017, the provision of the law that prohibits asking for salary history from applicants and current employees went into effect.  As a reminder, the applicable portion of the law provides:

It is an unlawful practice under ORS Chapter 659A for an employer or prospective employer to seek the salary history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee. This section is not intended to prevent an employer from requesting from a prospective employee written authorization to confirm prior compensation after the employer makes an offer of employment to the prospective employee that includes an amount of compensation.

While this provision went into effect as of September 1, 2017, employees do not have a private right of action to enforce violations of the law until January 1, 2024.

We will continue to post as other portions of the law go into effect. In the interim, employers should revise job applications and other initial hiring documents to remove questions about salary history.

DOL Overtime Rule is Dead

Back in May 2016, the DOL issued the Final Rule updating and modernizing overtime regulations.  The Final Rule raised the minimum salary level for exempt employees from $455 per week to $913 per week. In response, a number of States and private businesses sued to enjoin the application of the Final Rule and obtained an injunction blocking the Final Rule from going into effect.  Yesterday, the United States District Court for the Eastern District of Texas granted the business plaintiff’s motion for summary judgment and essentially killed off the Final Rule.

As we all know (or know by now) to be exempt from minimum wage and overtime, an employee must: (i) perform bona fide executive, administrative, or professional capacity duties; and (ii) be paid a salary of at least $455 per week.  The Court found that the Final Rule essentially ignored the duties test and focused only on the salary component of the exemption, with the result that salary, rather than an employee’s duties, became determinative of whether a bona fide executive, administrative, or professional capacity employee should be exempt from overtime.   Because this ignored Congress’ intent when enacting the exemption, the Court found that the DOL exceeded its authority when issuing the Final Rule.

There is no easy answer to the question of whether employers should reclassify employees as exempt who were switched to non-exempt status when the Final Rule was issued in May 2016.  The decision depends upon the economics of the positions, how much overtime is worked and necessary to operate your business, how switching your employees’ status will impact their income, and how reclassification will impact company morale.

 

Expanded EEO-1 Form No Longer Required: Prior Form Due March 31, 2018

On August 29, 2017, the Office of Management and Budget issued a stay of the collection of certain additional pay information sought to be collected on the EEO-1 Form, which was expanded on September 29, 2016.  Effective immediately, such pay information is not required to be disclosed by employers.  The deadline for submission of the more limited EEO-1 Form remains March 31, 2018.  Critics of the expanded EEO-1 claimed that the additional disclosures would be burdensome on employers.  For more information:  see the EEOC announcement here:  https://www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm

 

Governor Resolves Oregon Daily/Weekly Overtime Issue

On August 8, 2017, the Governor signed House Bill 3458 and resolved the question of how manufacturing employers are required to pay overtime to employees who work both daily and weekly overtime.  Pursuant to HB 3458, manufacturing employers are required to pay the greater of the amount of daily or weekly overtime accrued each week (and not required to pay both).  HB 3458 has a number of provisions worth noting:

  • A workweek” means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods.
  • A manufacturing employer may not require an employee to work more than 10 hours per day or 55 hours per week, except:
    • Employees can consent to work up to 60 hours per week, and
    • Where an employer can show an undue hardship (where a perishable product must be processed after harvest, slaughter or catch) employees can consent to work up to 84 hours per week for 4 weeks, and up to 80 hours per week during the remaining undue hardship period (potentially an additional 17 weeks per year).
  • A manufacturing employer will be eligible for an undue hardship period exemption if the employer, in the ordinary course of the employer’s business, processes perishable products (any product that may spoil, deteriorate or undergo other material changes that render it unsuitable for the use for which it was produced).
  • The combined total duration of the employer’s undue hardship period exemptions may not exceed 21 workweeks in a calendar year.
  • BOLI will issue a form for employers to provide notice to BOLI of undue hardship period(s). The form will include, among other information, a statement that employees consent to working the requisite overtime hours.
  • Daily/weekly overtime rules do not apply to employees whose principal duties are administrative.
  • Employers may not discharge or discriminate against employees who refuse to consent to work more than 55 hours per week.

HB 3458 takes effect as of August 8, 2017.

 

 

Washington Supreme Court Answers Meal Break Questions

The Washington Supreme Court recently answered two certified questions from the 9th Circuit Court of Appeals about employee meal breaks under Washington law.  First, the Court found that an “employer is not automatically liable if a meal break is missed because the employee may waive the meal break.” Second, the Court held that: “an employee asserting a meal break violation under WAC 296-126-092 can establish his or her prima facie case by providing evidence that he or she did not receive a timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or that a valid waiver exists.”

BRADY v. AUTOZONE STORES, INC., et al., No. 93564-5. Supreme Court of Washington, En Banc. (June 29, 2017).

Washington Paid Sick Leave

Beginning in January 2018, Washington’s paid sick leave law will go into effect.  Under the new law, most employees will be entitled to accrue paid sick leave at the rate of 1 hour for every 40 hours worked, employees can use accrued paid sick leave after 90 days of employment, a maximum of 40 hours must be carried over from year to year, and sick leave can be used for an employee’s sickness or in connection with a family member’s illness.

The Washington Department of Labor & Industries is currently developing rules to implement and enforce the new law.  A summary can be found here:

http://www.lni.wa.gov/WorkplaceRights/LeaveBenefits/VacaySick/PaidSickLeave.asp

NEW FORM I-9

On July 17, 2017, U.S. Citizenship and Immigration Services issued a new Form I-9.  Employers can use the new form, or the form issued as of November 14, 2016, until September 17, 2017, thereafter, the new form must be used.  The new form does not contain significant material changes, although it does revise List C of acceptable documents to include birth certificates issued by the State Department.  For practical purposes, employers should begin using the new form as soon as possible (rather than risk using the old form and risk forgetting to switch on September 17th.

The revised Form I-9 can be found here: https://www.uscis.gov/i-9