Posts tagged Devon Gray
Obesity: Now a Protected Impairment Pursuant to Washington Anti-Discrimination Law

On July 11, 2019, the Washington Supreme Court ruled that obesity is now considered a protected class under the Washington Law Against Discrimination (WLAD). In a 7-2 ruling, the high court said obesity is covered by the WLAD, Washington State’s discrimination law that protects individuals with disabilities. The majority held that obesity “is recognized by the medical community as a ‘physiological disorder, or condition'” and is therefore an “impairment” under the WLAD.

While the federal Americans with Disabilities Act (ADA) does not currently treat obesity as an impairment or otherwise protected class, the WLAD offers broader coverage than the ADA so this recent decision may require Washington employers to adjust their personnel practices to ensure compliance.

What Does This Mean for Employers?

Now that the Washington Supreme Court ruled it illegal for employers to refuse to hire someone who is obese if they are otherwise qualified for the job, employers should take the following actions:

  • Hiring Standards: If hiring practices include the use of physical examinations or medical questionnaires, consider discussing with legal counsel how to use an applicant’s ‘weight’ information to determine employment eligibility. If you decide to utilize this type of information, ensure your supervisory and hiring personnel (along with any third-party testing providers) act pursuant to your written instructions, policies, and hiring standards.

  • Policy Review: Review all employment policies, particularly anti-discrimination and hiring qualification policies. Revise your policies, as appropriate, to reflect that obesity is now a protected class under WLAD.

  • Training Materials: Update any training manual or document to include obesity as a protected class and ensure that all supervisory hiring personnel understand what that means. Any employee in a supervisory position should acquaint themselves with this new aspect of the WLAD. This can be a great opportunity to provide a refresher course to supervisory and hiring personnel regarding employee protections under the WLAD.

  • Reasonable Accommodations Practices: If an existing employee or applicant indicates they need to have a reasonable practice accommodation because of this obesity class, be prepared to offer an accommodation if possible. Most importantly, employers must ensure they apply the same standards and policies to all similarly-situated individuals.

This recent decision significantly expands the disability discrimination protections in Washington state. To learn more about this change and what you can do to respond, contact an attorney at JDSA Law.

Tip Pooling: Is Now Permissible

In March, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin that announced a rollback in the tip credit rules under the Fair Labor Standards Act (FLSA).  This changes the way Washington employers can administer tip-pooling in their businesses.  Under the rollback, “back of house” employees (e.g., cooks, bussers, or even stock clerks), can now benefit from—and even share—tips with “front of house” employees (e.g., wait staff, food and beverage servers).  So whether you own a winery, restaurant or other business that employs staff who receive tips, it is important to understand your tip-pooling options.  

What Does This Mean for Employers?

With this rollback, employers now have the option to implement back of house tip-pooling and can implement a policy that shares tips received by front of house staff with back of house individuals. However, back of house tip-pooling is entirely optional: employers are not required to adopt this change. 

Employers that choose to adopt this change may select any method to disburse the funds. Some employers may elect to have the front of house employees choose how much they tip back of house staff, while others may elect to disburse a certain pre-defined percentage from all staff to back of house workers.

However, tip-pooling can be a trap for the unwary.

Regardless of the tip-pooling method chosen, the change in the FLSA has other stipulations employers should be aware of:

  • The FLSA prohibits employers, managers and supervisors from participating in tip pools

  • Employers can also withhold certain fees and costs from pooled tips (such as credit card processing fees if tip was paid via credit card), but not others

  • The FLSA also contains a monetary penalty for violations that employers should be aware of

To learn more about these changes or how tip-pooling may impact your business, visit the U.S. Department of Labor’s website, refer to the published Fact Sheet or contact an attorney at JDSA Law.