STAY CONNECTED: Employment and Labor Law

NEWS that impacts your personnel policies and procedures

Kristin Ferrera

Kristin Ferrera


BREAKING NEWS:

WASHINGTON STATE SUPREME COURT ISSUES RULING ON CASE INVOLVING EMPLOYEES’ MISSED MEAL PERIODS

On June 29, 2017, the Washington State Supreme Court answered two questions certified from a federal district court in the case of Brady v. AutoZone Stores, Inc.

The Court answered the following certified questions as follows:

  1. Is an employer strictly liable under WAC 296-126-092? No. The employer is not automatically liable if a meal break is missed because the employee may waive the meal break under the regulation.
     
  2. If an employer is not strictly liable under WAC 296-126-092, does the employee carry the burden to prove that his employer did not permit the employee an opportunity to take a meaningful break as required by WAC 296-126-092? 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.

The opinion can be found at Courts.wa.gov

What does this mean to employers?

Employers may allow employees to waive their meal periods, but the employer may never coerce or force the employee to do so. Also, if you allow employees to waive their meal periods, then you should keep evidence of the waiver on file for at least three years to protect against liability for violations of WAC 296-126-092.  In practice this could be a written waiver signed by an employee either for a period of time or on a case by case basis.

Washington State’s Department of Labor and Industries has posted the following advice to employers:

Business owners please note: The Department of Labor & Industries recommends that you get a written statement from workers who want to give up their meal periods.”

Agricultural employers please note: The regulation for meal and rest periods for agricultural workers is different than that cited in the Bradycase. WAC 296-131-020 governs meal periods for agricultural workers and states that employees “shall receive a meal period…” as opposed to the nonagricultural regulation that states the employees “shall be allowed a meal period…”[emphasis added]. This could give way to the interpretation that while the nonagricultural meal period is waivable, the agricultural meal period cannot be waived.

If you have further questions about this, contact an attorney to assist you with implementing the proper policies and procedures for missed meal periods.


NEW LAW:

New Law Relating to Pregnancy Accommodations Effective on July 23, 2017

Effective July 23, 2017, Washington employers with 15 or more employees must provide reasonable accommodations to their pregnant employees and may not discriminate against pregnant employees on the basis that the employer will have to provide these accommodations.

The summary of the law is as follows:

It is an unfair practice for any employer 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 —undue hardship means an action requiring significant difficulty or expense;
  • Take adverse action against an employee who requests, declines, or uses an accommodation;
  • And deny employment opportunities to an otherwise qualified employee if the denial is based on the employer's need to make reasonable accommodation;

Reasonable accommodation means:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee's work station;
  • Providing seating or allowing the employee to sit more frequently if the job requires standing;
  • Providing a temporary transfer to a less strenuous or hazardous position;
  • Providing assistance with manual labor and limits on lifting;
  • Scheduling flexibility for prenatal visits;
  • And any further accommodation an employee may request, and to which an employer must give reasonable consideration to in consultation with information provided by the Department of Labor and Industries or the attending health care provider.

An employer may not claim undue hardship or require written certification from an employee for:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • Or providing seating or allowing the employee to sit more frequently if the job requires standing.”

Learn more here: Final Bill Report SSB 5835

The full text of the law is here: Substitute Senate Bill 5835


IMPORTANT UPDATE:

OSHA Extends Deadline for Electronic Record-Keeping from July 1 to December 1, 2017

The U.S. Department of Labor, Occupational Safety & Health Administration (OSHA) is not currently accepting electronic submissions of injury and illness logs and has issued a proposed rulemaking to extend the July 1 deadline for certain employers to electronically submit such data to the agency for posting online.

Employers with 250 or more employees and those with 20-249 employees in certain industries with historically high rates of occupational injuries and illnesses (including agriculture, construction, and other industries, see full list here) must now submit certain 2016 injury and illness data from Form 300A electronically by December 1, 2017.

Although the extension is in the form of a proposed rulemaking, because OSHA is not accepting electronic submissions and the electronic reporting system will not be available until August 1, employers can assume the deadline has been extended at this time. OSHA describes the deadline extension as an opportunity for the new administration to review the reporting requirements and for employers to familiarize themselves with the electronic reporting system. Based on OSHA’s stated intention to also reconsider, revise, or remove other provisions of the prior final rule, employers should watch for further changes prior to the December 1, 2017, implementation date.

JDSA will continue to provide updates as changes occur.

Although the requirement to electronically report injury and illness information has been delayed, employers’ obligations to track and record workplace injuries and illnesses remain otherwise unchanged.


We’ll continue to keep you well informed of current and upcoming changes that impact you, and your business.

UPCOMING – In the coming weeks, we will post updates on the Third Washington State Legislative Session, and bills currently under consideration including paid family and medical leave, workplace bullying, and articles on the federal Department of Labor’s change in: policies regarding independent contractor classification and joint employer status.