2020 Employment Update
Below are just a few of the most common Employment Law topics we are tracking and frequently speaking to our clients.
Want to learn more? Contact one of our Employment Attorneys
Paid Family and Medical Leave Act has Officially Launched
As of January 1, 2020, most employees in Washington will be eligible to use their much-anticipated Paid Family and Medical Leave (PFML) benefits. As a reminder, PFML allows employees to use 12 weeks of leave to care for themselves or a family member with a serious health condition; to bond with a child who was born, placed, or adopted; or for military-related events. When more than one qualifying event occurs within a 12-month period, the combined total leave available is 16 weeks, and mothers who experience complications in pregnancy are eligible for an additional 2 weeks. Employers are either covered under the Employment Security Department-operated plan or an approved voluntary plan, and should have been reporting hours worked, wages paid, and premiums collected for their employees since January 1, 2019.
Now that employees are eligible to apply for benefits, employers should be prepared for some critical changes.
First, the mandatory notice required by the Employment Security Department (ESD) is now available on their website for download and posting where you customarily post other employment-related notices. Also on the website is ESD’s draft of the notice of benefits employers are required to provide employees who may be eligible for PFML within 5 days of learning of the employee’s eligibility. ESD has also added a benefit payment calculator for estimating the weekly benefits.
Second, in April the law was changed to allow employees to use other employer-paid leave–such as vacation or sick leave–to supplement their weekly benefit payment. This means that employers will need to be especially diligent with tracking not only hours worked, but also those wages that are designated supplemental benefits and therefore not reportable to ESD.
Finally, as employees begin taking PFML, don’t forget that the law also offers job protection for employees who have worked for an employer with 50+ employees at least 12 months and 1250 hours in the year before they take leave.
More information and an employer toolkit are available at www.paidleave.wa.gov. If you have any questions or need advice on understanding how PFML impacts your business, feel free to reach out to Onik’a directly at ogilliam@helsell.com or (206) 689-2102.
Changes to Law Governing Overtime Pay
At our Fall Employment Breakfast, we previewed impending changes to state and federal laws governing overtime pay. Those changes have been adopted and some are already in effect. The importance of these changes cannot be overstated: the U.S. Department of Labor said changes to the federal rule will make about 1.3 million workers newly eligible for overtime pay.
Overtime pay is governed by the Fair Labor Standards Act (“FLSA”). The FLSA requires employers to pay non-exempt employees for all hours worked. When those hours worked exceed 40 in one week, non-exempt employees are entitled to overtime pay, which is their regular pay with a 1.5 multiplier. For example, if a non-exempt employee’s regular rate of pay is $20 per hour and they work 41 hours in one week, the non-exempt employee should be paid $30 per hour for the 41st hour.
Exempt/non-exempt classifications are often confused with salary/hourly classifications but that is not quite right. In order to be “exempt”, employees must meet both a salary test and a duties test: they must earn a minimum statutory salary and have a job that falls within one of the three exempt categories (executive, professional, and administrative).
Under the new federal rule, the salary test will increase to $679/week (or $35,308/year), with incremental increases every four years. As a point of reference, the previous salary test (which had been stagnant for many years and was almost universally panned as outdated) was $455/week ($23,660/year).
If you have any questions about these changes and how they affect your business, or want guidance on best practices, please do not hesitate to reach out to Emma Kazaryan at ekazaryan@helsell.com or (206)689-2105.
Election Year Tips for Private-Sector Employers in Washington
It’s an election year, which means from now until the polls close in November, politics will be the topic of discussion. And whether you like it or not, those discussions will find their way into your workplace. There are many benefits of having employees who are good citizens engaged in their community but political activity in the workplace comes with risk. There is the obvious loss of productivity when employees are focused on subjects that aren’t relevant to their work. Additionally, because politics is easily intertwined with the topics of race, gender, religion, national origin, and other legally protected groups, political discussions may give rise to a potential claim for hostile work environment. Non-profit corporations face the additional risk of political activity jeopardizing the corporation’s tax-exempt status.
While federal law prohibits employers from intimidating, coercing, or interfering with their employees’ right to freely vote as they choose, private-employers are allowed to establish policies that restrict political activity in the workplace. Some examples of such restrictions include: restricting employees from using the copiers, phones, company email and other company property for campaign-related communications; restricting conversations about political candidates or political issues in the workplace during work hours; and prohibiting employees from wearing campaign paraphernalia as part of a neutral dress code.
Obviously, it’s impractical to try to restrict all political discussion and such an attempt could have negative effects on employee morale. When setting restrictions, the key is to evaluate whether the activity interferes with the company’s production or otherwise disrupts the business. It’s also critically important to make clear that employees are not prohibited from speech that might relate to labor, wages, or working conditions (which notably often overlap with political discussions).
With the start of a new year, and with the upcoming elections, now is the time to review how your company will handle political activity by employees.
Employee Handooks
Employee Handbooks provide a roadmap and guide for employee and employer relations. We want to raise a few important points for your handbooks in the coming year.
Take note that an employee’s use of FMLA or other available leave does not diminish their available Paid Family and Medical Leave (PFML). This means it is possible for an employee to use multiple leave options consecutively. You should examine your various leave policies and consider how they work together.
The National Labor Relations Board (NLRB) has issued an opinion that allows employers more latitude in addressing social media restrictions. Employers are now free to restrict use at work, to require that employees act respectfully in social media conflicts with other employees, and to require that employees use a disclaimer that they are not speaking on behalf of the company when posting opinions. It may benefit you to ask your lawyer to update your social media policy.
Check your anti-harassment policies. Providing meaningful, and multiple, ways for employees to report suspected harassment will help strengthen a harassment-free zone, and will provide evidence of your commitment if you are facing potential liability.
Do not forget your disclaimers. Be sure that your handbook informs employees that it is not a contract and does not alter “at will” employment. This needs to be stated in several places. Also, make it clear that a handbook cannot and does not address every employment situation; we all know how rapidly employment law can change. And reserve your discretion to make independent decisions based on any given situation, including imposing discipline.
It is also important to remember to document acknowledgment that your employees have seen and read the handbook, either through use of an acknowledgement form or by electronic access, or other traceable means. Some employees may believe that if they do not sign the acknowledgement form, they are not bound by the handbook. Although this is not accurate, we prefer to have the actual evidence that employees have access to and are on notice of your handbook policies. If an employee refuses to sign, we have several potential solutions for documenting that.
Like your handbook, this advisory cannot anticipate all the “best practices” changes to 2020 handbooks. Check with your lawyer for a review, draft, or update to your 2020 handbook.