Peter A Altman WASPC Fall Training Conference November

Peter A. Altman WASPC Fall Training Conference • November 15, 2018 Sponsored by Washington Cities Insurance Authority Employment and Labor Law

This Morning’s Focus • Bumper crop year of noteworthy employment and labor law updates. • Overview of updates most applicable to law enforcement. • Labor law first. • Employment law second. • Practical suggestions for compliance. • Ask questions! Prizes for stumping the attorney. It’s fun! summitlaw. com 2

Initiative 940, House Bill 3003, and King County Inquests summitlaw. com 3

Overview INITIATIVE 940 / HOUSE BILL 3003 • Replaces “malice” standard with “objective belief” standard, requires independent investigation. • Mandatory de-escalation and mental health training. • Requires first aid in certain situations. KING COUNTY INQUESTS • Less emphasis on officer’s beliefs and ascertainment of situation, more focus on compliance with department training and policy. • Numerous changes to inquest procedure. summitlaw. com 4

What to Expect • Stay tuned for further guidance from State and CJTC. • Potential changes to King County inquest procedure to avoid confusion with “independent investigation” required by I-940. • Budget for increased training. • Increased training (40 hours) could cost local government $12 million. • Refresher training could cost local government $605, 000. • Expect “impacts” bargaining demands from labor unions on issues related to discipline, investigations, training, legal defense, etc. • Issues with recruitment and retention? • Future WASPC training! summitlaw. com 5

Janus v. AFSCME U. S. Supreme Court summitlaw. com 6

Overview • Public employees have First Amendment right to opt-out of union membership and monthly dues deductions. • Employees must “affirmatively consent” to joining a union and paying monthly dues. • Union security language in existing collective bargaining agreements is unenforceable and should be renegotiated. • Employees who opt-out of union membership are still covered in the bargaining unit. summitlaw. com 7

Suggestions for Compliance • No “one size fits all approach. ” Depends on existing CBA language, cooperation from labor unions, and political attitudes of elected officials. • At a minimum, employers should delete illegal language and obtain signed union membership cards from all employees and/or negotiate indemnity language. • Expect more resistance from “franchise” unions (Teamsters, AFSCME, etc. ). • Enforcement of union membership terms is likely lawful but remains disputed. summitlaw. com 8

Bargaining Representative Access “New-Hire Union Orientation” RCW 41. 56. 037 summitlaw. com 9

Overview • Requires an employer to grant bargaining representatives with 30 minutes to meet with newly-hired employees and provide orientation about bargaining unit representation and Union membership. • Must occur during newly-hired employee’s regular work hours. • Must occur no later than 90 days after hire. • Attendance by new-hires is not mandatory. • Time spent by Union officials need not be paid time. summitlaw. com 10

Suggestions for Compliance • Makes sense to negotiate this issue when addressing Janus. • Many employers already provide more than 30 minutes. • Often not a big deal for smaller employers. summitlaw. com 11

Statute of Limitations of ULP Claims RCW 41. 56. 160 12

Overview • Statute of limitations has always been six (6) months to file an unfair labor practice complaint with PERC. • However, ULP complaints may also be filed in Superior Court. • In 2017, Washington’s Supreme Court held a two (2) year statute of limitations applied to ULP complaints filed in Superior Court. • In 2018, Washington’s Legislature amended the RCW to expressly state that a six (6) month limitations period applied to both PERC and Superior Court. summitlaw. com 13

Suggestions for Compliance • A six (6) month statute of limitations now applies to all ULP claims, regardless of the forum selected. • Employers no longer need to worry about incentivizing labor unions to file “stale” claims in Superior Court. • Provides finality and cost-efficiency to open labor disputes. • Keeps those ULP bodies buried. summitlaw. com 14

Interest Arbitration Trends 15

Overview • Uniformed personnel in Washington, including most law enforcement agencies, qualify for statutory interest arbitration. • RCW 41. 56. 465. • Top thee factors considered by arbitrators when awarding wage and benefit increases: 1. Wages/benefits paid by comparable employers. 2. Inflation and increases to the cost-of-living. 3. Recruitment and retention. summitlaw. com 16

Award Trends • Examining all recent awards for local government, the average wage increase is approaching 2. 5% per year. • Wage awards of 3. 0% per year are no longer uncommon. • If current trends continue, wage awards will continue to increase. • Consider this information when bargaining with labor unions, requesting economic authority from elected officials, and determining BATNA. summitlaw. com 17

Washington Paid Sick Leave RCW 49. 46. 200 et seq. WAC 296 -126 -600 et. seq. summitlaw. com 18

Overview • Applies to all employees covered by Washington’s Minimum Wage Act. • Requires sick leave be earned at a minimum rate of at least one (1) hour of paid sick leave for every forty (40) hours worked. • Provides a statutory right to use sick leave for certain authorized purposes. • Expands definition of “family member. ” • Changes the rules regarding notice, scheduling, and discipline. summitlaw. com 19

Overview (cont. ) • Covered absences: • Employee’s own health condition or medical appointment. • Care for family member with health condition or to accompany family member to medical appoint. • Workplace or school/childcare is closed for health-related reasons. • Absences covered by the Domestic Violence Leave Act. • Family members: • Child, parent, spouse, domestic partner, grandparent, grandchild, sibling. • Regardless of age or dependency status. summitlaw. com 20

Overview (cont. ) • An employer may request medical verification only for absences of three (3) consecutive scheduled work days or longer. • An employee is subject to excusal if he/she can establish an “unreasonable burden or expense. ” • No adverse consequences permitted for the use of sick leave. • All sick leave is covered by the law unless an employer segregates or tracks banks differently. summitlaw. com 21

Suggestions for Compliance • Review policies and CBAs to ensure compliance with the law. • Consider legality of any sick leave incentives. • Eliminate accrual maximums and replace with “carryover” maximums. • Train supervisors to ensure they understand authorize usage, discipline limitations, and ability to request medical verification. • Brace for increased employee attendance issues. summitlaw. com 22

Washington Paid Family and Medical Leave (PFML) RCW 50 A. 04 et seq. summitlaw. com 23

Overview • Not to be confused with Washington Paid Sick Leave Law. • New State insurance program providing partial wage replacement while employee is on leave for covered medical and family reasons. • Runs concurrently with existing FMLA leave, up to 12 weeks. • Applies to all public employers regardless of size. Slightly different rules for employers with less than 50 employees. • Premiums must be collected and paid starting January 1, 2019. • Benefits not available until January 1, 2020. summitlaw. com 24

Overview (cont. ) • Premiums valued at 0. 4% of employee wages. • (Default rule): Employees pay 100% of family premiums and 45% of medical premiums, employer pays remainder. Employers with less than 50 employees are not required to pay the employer portion. • Employers of all sizes “may” pay entire amount of both premiums, either voluntarily or subject to bargaining. • Eligible employees must have worked 820 hours for any covered employer during the qualifying period (four of last five full calendar quarters). summitlaw. com 25

Overview (cont. ) • Limited exemption for employees covered by a collective bargaining agreement in effect on October 19, 2017. • No need to comply with law or begin paying premiums until the CBA is reopened, renegotiated, or expires. RCW 50 A. 04. 235. • Open question whether MOUs count as “reopeners. ” • ESD has indicated that elected officials are eligible for benefits and count as employees. • All sorts of fun quarterly reporting and compliance requirements. summitlaw. com 26

Suggestions for Compliance Prepare for premium deductions, effective January 1, 2019. Provide notice and opportunity to bargain to labor unions. Final regulations not yet published. Brace for further (whacky) guidance on interplay between PFML, Paid Sick Leave, L&I benefits, and other leave entitlements. • Investigate feasibility of self-insurance? • Concerns with increased employee absenteeism. • • summitlaw. com 27

First Responder PTSD RCW 51. 08 et. seq. summitlaw. com 28

Overview • Prior law excluded L&I benefits for mental conditions caused by work-related stress. New law creates exception for police officers, firefighters, and EMTs. • Rebuttable presumption that PTSD is an occupational disease. • Eligible employees must have served for ten (10) or more years before becoming eligible. • Psychological exams for new-hires to rule out preexisting conditions. • Excludes benefits if source of PTSD stems from disciplinary action, negative job evaluations, job transfers, layoffs, and demotions, provided such actions were made in good faith. summitlaw. com 29

Suggestions for Compliance • Consider proactive measures to ensure work-related stress does not develop into PTSD. • Educate employees about warning signs of PTSD. • Encourage employees to seek counseling and treatment. • Provide access to employee assistance programs (EAPs). • Promote a positive culture, where PTSD is taken seriously and not viewed as a sign of weakness. • Analyze staffing levels and budget allocations should absences due to PTSD become normal. • Ensure all discipline is supported by just cause. summitlaw. com 30

Clarification of Military Leave RCW 38. 40. 060 summitlaw. com 31

Overview • Prior law provided 21 days of paid leave for military duty. • Definition of “days” problematic for employees working extended shifts spanning two (2) calendar days. • With new law, if an employee is scheduled to work a shift that begins on one calendar day and ends on the next calendar day, then he/she will be charged leave only for the first day. • If an employee is scheduled to work a shift that begins on one calendar day and ends later than the next calendar day, then he/she will be charged military leave for each calendar day except the calendar day on which the shift ends. summitlaw. com 32

Suggestions for Compliance • Review policies and CBAs to ensure compliance with the law. • Ensure supervisors understand how to properly calculate 21 days of paid military leave. summitlaw. com 33

Lawful Resident Hiring Criteria RCW 41. 08. 070 summitlaw. com 34

Overview • New law authorizes the hiring of lawful permanent residents fluent in English. • Modifies existing civil service rules for firefighters and police. summitlaw. com 35

Suggestions for Compliance • Update hiring policies and job application materials. • Ensure hiring managers are aware that lawful residents are now eligible for open civil service positions. summitlaw. com 36

Pregnancy Accommodations “Healthy Starts Act” RCW 41. 100 et. seq. summitlaw. com 37

Overview • When requested by a pregnant employee, the following accommodations must be provided without the ability to request medical proof or claim undue hardship: • • More frequent, longer, or flexible bathroom breaks. Modification of food or drink policy. Allowing sitting if job requires standing. Limiting lifting to under 17 pounds. summitlaw. com 38

Overview • Additional accommodations must be offered, when accompanied by medical proof and when no undue hardship is created: • • • Job restructuring. Reassignment to a vacant position. Modified schedule. Temporary transfer to a less strenuous position. Assistance with physical/manual labor. Any other accommodation an employee may request. summitlaw. com 39

Suggestions for Compliance • Update policies to inform pregnant employees of their rights under the law. • Inform pregnant employees who to contact if an accommodation is needed. • Pregnant employees and their medical providers generally decide how long to continue regular duty. An employer is permitted to tell the employee that accommodations and light-duty assignments are ready when the employee needs them. summitlaw. com 40

Pregnancy Discrimination - Tangent • “We have a pregnant employee who has not requested an accommodation but we are worried about her. Can we place her on light-duty against her wishes? ” • Forcing accommodations on pregnant employees who have not requested them is unlawful. • Employers may pursue fitness-for-duty consultations only if they have objective reasons to believe a pregnant employee cannot perform the essential functions of the job safely and effectively. summitlaw. com 41

Domestic Violence Accommodations RCW 49. 76 et. seq. summitlaw. com 42

Overview • Prohibits discrimination or retaliation against an employee because he/she is an actual or perceived victim of domestic violence, sexual assault, or stalking. • Employers must make reasonable safety accommodations for such individuals, unless it would impose an undue hardship, including: • Transfer, reassignment, or modified work schedule. • Change in work phone number, email, location. • Installation of locks. summitlaw. com 43

Suggestions for Compliance • Hopefully, law enforcement officers are best equipped to prevent and address these types of issues! • Update D. V. leave policies to inform employees of their new right of safety accommodations. • Reiterate to employees that domestic violence is simply not tolerated. Provide access to EAPs or other resources. • Inform employees who to contact if an accommodation is needed. summitlaw. com 44

Brady Lists and Discipline RCW 10. 93. 150 summitlaw. com 45

Overview • Prohibits discipline action against law enforcement officer solely because officer’s name is on a prosecutorial Brady list. • Discipline may still be imposed based on the underlying acts or omissions of the officer, pursuant to employer’s policies or language in a collective bargaining agreement. summitlaw. com 46

Suggestions for Compliance • Assume all Brady violations require independent administrative investigation and establishment of “just cause. ” • Any language in “bill of rights” CBA language should conform to the law. summitlaw. com 47

CASE UPDATE Unlawful Retaliation in Hiring Zhu v. North Central Educ. Service District (WA S. Ct. 2017) summitlaw. com 48

Summary of the Case • Job applicant was not hired and alleged unlawful retaliation based on prior discrimination lawsuit against previous employer. • Employer argued a retaliation claim could not be based on protected activity with a prior employer. • HOLDING: Washington’s retaliation statute applies to protected activity by employees regardless of the employer. Otherwise, employees could be dissuaded from challenging discrimination for fear of being backlisted by future employers. summitlaw. com 49

How to address the case? • Do not inquire into previous legal claims filed by employees. • Do not consider such claims if you know about them. summitlaw. com 50

CASE UPDATE Sexual Harassment Zetwick v. County of Yolo (9 th Cir. 2017) summitlaw. com 51

Summary of the Case • Sheriff hugged female employees but typically shook hands with male employees. • Immediate supervisors knew the Sheriff’s actions caused concerns, but did nothing. • Sheriff knew of concerns but just kept hugging. • HOLDING: Cumulative effect of hugging could be sufficiently pervasive, and chest-to-chest hugging by Sheriff could create hostile work environment claim. summitlaw. com 52

How to address the case? • Train all employees that touching coworkers, even in apparently innocent ways, may support a hostile work environment. • Supervisors should be directed to report all complaints and concerns, even those believed to lack merit. • All employees should know of anti-harassment policies and their right to submit complaints to a supervisor and/or HR. • Just don’t hug people, unless it’s your attorney. summitlaw. com 53

CASE UPDATE Sexual Harassment Floeting v. Group Health (Wash. Court of Appeals 2017) summitlaw. com 54

Summary of the Case • Group Health patient sued employer based on alleged sexual harassment by a Group Health employee. • Alleged harassment occurred in place of public accommodation. • Conduct involved sexually inappropriate comments. • HOLDING: No defense of showing that employee acted outside scope of employment. No defense that conduct was not sufficiently severe or pervasive. Even a single act may be actionable. summitlaw. com 55

How to address the case? • Reiterate to all employees who interact with the public that even a single inappropriate act or comment may result in a lawsuit, liability, and disciplinary action. • The bar is even higher for law enforcement employees. summitlaw. com 56

CASE UPDATE Protected Class Discrimination Mikkelsen v. PUD No. 1 of Kittitas County (WA S. Ct. 2017) summitlaw. com 57

Summary of the Case • Female employee who alleged she was terminated based on gender discrimination but was replaced by a woman. • HOLDING: An employee can establish a prima facie claim of discrimination without showing replacement by someone outside her protected class. Employer did not have defense simply because it hired another female employee. summitlaw. com 58

How to address the case? • Replacing a terminated employee by someone of the same gender, race, religion, etc. doesn’t cut the mustard. • Employers need legitimate, non-discrimination reasons for terminating employees. summitlaw. com 59

CASE UPDATE Prescription Medication Stewart v. Snohomish County PUD No. 1 (W. D. Wash. 2018) summitlaw. com 60

Summary of the Case • Employee had chronic migraines, which the employer accommodated through leave but became frustrated by attendance issues. • Employee had prescription for narcotic painkillers, causing side effects of slurred speed, confusion, and sleepiness. • Employer’s policy prohibited all employees from working under the influence of drugs or alcohol. • Employee failed reasonable suspicion drug testing. • Employee eventually terminated after second positive test. summitlaw. com 61

Summary of the Case (cont. ) • HOLDING: Employer liable for WLAD discrimination, employee awarded $1. 8 million in damages. Employer faulted for treating issue as performance problem rather than disability accommodation issue. Employer should have engaged in the ADA’s “interactive process. ” • From the Court: “The PUD does not show that the effects of Stewart’s medication prevented her from properly performing her job. Any impairment she suffered was temporary, it did not render her inherently and perpetually unable to work. ” summitlaw. com 62

How to address the case? • Always consider the “interactive process” when confronted with disabilities or the use of prescription medication. Do not move directly to discipline or performance management. • Consult an attorney. summitlaw. com 63

CASE UPDATE Religious Discrimination Sprague v. Spokane Valley Fire Dept. (WA S. Ct. 2018) summitlaw. com 64

Summary of the Case • Employer had policy restricting email to business only, but also circulated emails regarding EAP and wellness. • Employee used work email to send messages with religious content. Employee was terminated for violating policy and claimed religious discrimination. • HOLDING: Emails related to fellowship group were strictly personal and therefore not protected. However, emails related to leadership, mental health, suicide prevention, etc. sent by employee in response to employer’s EAP newsletter constituted matters of public concern and were protected, even with religious overtones. Otherwise, viewpoint discrimination could occur. summitlaw. com 65

How to address the case? • Employers with workplace rules should ensure they are being enforced evenhandedly and not selectively. summitlaw. com 66

CASE UPDATE Race Discrimination / Hostile Work Environment Reynaga v. Roseburg Forest Products (9 th Cir. 2017) summitlaw. com 67

Summary of the Case • Two employees of Mexican ancestry claimed discrimination based on racial comments and intimidation. Employer took remedial action after employees complained. One employee was eventually fired for walking off the job. • Trial court dismissed in favor of employer. • HOLDING: Employer not entitled to dismissal. The workplace was “so polluted with insult and intimidation” that employer should have taken action sooner and should have imposed discipline more severe than coaching and counseling. Terminating employee for walking off the job could have been a pretext, because employee was not adequately protected from harassment. summitlaw. com 68

How to address the case? • Do not tolerate inappropriate workplace comments or behavior, even if other employees appear to tolerate it. • Train supervisors to take corrective action even if nobody is complaining. • Many employees, especially new employees, do not speak up for fear of retaliation, not fitting in, etc. summitlaw. com 69

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