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NOVEMBER 2017

 

In This Issue:

Washington Publishes Sick Leave Rules

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
rorr@cascadeemployers.com

On January 1, 2018, Washington Employers are required to comply with the state’s new sick leave law. The law itself only provided a basic sketch of what would be required of employers. Department of Labor and Industries (L&I), however, recently published comprehensive rules explaining how employers are to comply with the new state sick leave law.

Some key requirements from these rules are as follows:

  • Employees must accrue at least 1 hour of paid sick leave for every 40 hours worked.
  • Employers must allow at least 40 hours of unused sick leave to be carried over at the end of the year (a year can be a calendar year or any other fixed year).
  • Employers may impose a 90-day eligibility requirement for an employee to use sick leave.
  • Generally, employers may not require employees to use sick leave in increments greater than 1 hour. However, employers may make a written application to L&I asking for a good-cause variance. Employers asking for this variance must show that using sick leave in increments of 1 hour is infeasible and that granting a variance will not have a significant harmful effect on the health, safety, and welfare of the affected employees.
  • Employers can require employees to provide reasonable notice of their need for sick leave in accordance with the employer’s established policies, so long as the policies do not interfere with an employee’s ability to use sick leave. Employers can require employees to provide at least a 10-day notice of any foreseeable leave and as much notice as possible prior to the start of a shift for unforeseeable leave, unless in either case such notice is not practicable.
  • For absences exceeding three days, employers may ask for a medical verification from an employee. An employee can challenge the request to the employer claiming an unreasonable burden or expense. Within 10 days of an employee’s challenge, an employer must consider the employee’s claim and respond identifying reasonable alternatives, such as accepting the employee’s explanation for his or her absence or offering to mitigate the expense of obtaining a medical verification.
  • If sick leave is used in conjunction with another leave law, such as domestic violence leave, Washington Family Leave, or the Family Medical Leave Act, employers must comply with the verification request rules in those laws.
  • Employers must pay employees at the rate that would have been earned when sick leave was taken, but in no instance less than minimum wage. For other situations, employers must make reasonable calculations to determine what the employee would have been paid. For instance:
    • For piece-rate employees, employers can look at the compensation for the most recent work week and divide that by the employee’s hours worked in that week.
    • For commission employees, employers can look at the compensation for the last 90 days and divide that by the employee’s hours worked in that period.
    • For salary employees, employers can divide the employee’s annual salary by 52 and divide that figure by the normal amount of hours the employee works each week.
    • For employees with variable rates of pay, and the rate of pay is unknown at the time sick leave is used, employers can look at the employee’s average hourly rate over the past 30 days.
  • For shifts of indeterminate length, employers should look to the amount of hours a replacement employee worked to determine how many hours the employee using sick leave should take for that shift.
  • Sick leave must be paid in the paycheck for the pay period in which sick leave was taken, unless an employer requests a medical verification. In that case, the employer must pay the sick leave in the paycheck for the pay period in which the medical verification was received.
  • Employers are not required to pay out unused sick leave upon termination, but can make an agreement with employees about the terms of a payout.
  • Employers must reinstate all sick leave that an employee accrued during a prior period of employment if the employee is rehired within 12 months of termination (unless sick leave was paid out upon termination) and must credit the employee with all time worked toward the 90-day eligibility requirement (if one exists).
  • PTO policies are acceptable if they meet all the requirements of the law. If an employee uses PTO for reasons unrelated to sick leave, and the employer’s PTO policy complies with all aspects of the law, an employer is not obligated to provide an employee with additional paid sick leave if an employee needs to miss work for one of the reasons set out in the law.
  • Employers may create sick leave donation programs, and if this is done, employees must be allowed to donate sick leave to someone needing it for one of the reasons set out in the law.
  • Employers may frontload sick leave based on a reasonable estimate of what the employee is expected to work during the year. If an employer provides an employee with more time than he or she would have earned under an accrual system, and the employee uses the extra time, the employer cannot recoup the cost of that time from the employee. If an employer provides an employee with less time than the employee would have earned under an accrual system, the employer must provide the employee with the difference in time within 30 days of discovering the discrepancy.
  • Employers may deny the use of sick time if they can demonstrate it was for an unlawful purpose.
  • Employers must provide employees with information about their sick leave entitlement, rate of pay, the authorized purposes for which sick leave may be used, and the employer’s prohibition on retaliation. L&I is going to publish a model notice to satisfy this requirement. Employers must also provide employees with a monthly notice about the employee’s accrued and used sick leave, as well as the employee’s sick leave balance, unless the employee worked no hours during that month.

The enforcement components of the rules are still being developed, with public comment closing in November 2017.

To have your policy reviewed, or for questions concerning your obligations under these rules, give us a call.

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Five Things You May Not Know About Benchmade Knife –
Featured Member

By Gayle Klampe, President
Cascade Employers Association
gklampe@cascadeemployers.com

Benchmade LogoFrom design engineers to skilled machinists, Benchmade’s team is filled with hard-working, passionate individuals committed to producing some of the highest quality knives in the world. Did you know...

  1. In 1979 the Benchmade adventure began, when Les de Asis set out to make the best knives in the world. He wanted a knife that reflected the latest in materials and manufacturing technology to replace the cheap butterfly knives, known as Bali-Songs, he played with as a kid. Proud of his creation, he took his first knife into a local gun store and the owner asked, “Could you build 100 more?”

  2. In 1990 Benchmade became the first company to own and employ a high-power laser cutter, allowing for work with steels too hard to stamp. The Company also became the world leader in automatic knife manufacturing (still true to this day) and began to supply military units. They’ve grown a lot since then, now supplying tools for elite tactical operators, first responders, collectors and outdoor enthusiasts.

  3. Responding to growing customer demand, in 1997 the Company moved its manufacturing facility from Clackamas to Oregon City, which sprawls approximately 144,000 sq. ft. today. This is where they turn sheets of steel, aluminum and titanium into the hand-assembled works of art that can only be called Benchmade.

  4. Over the years, Benchmade has worked with world-class custom knife makers like Mel Pardue and Warren Osborne, perfecting a business model that involves lending manufacturing processes to custom knife designs; affording a level of innovation and quality to the larger market, which was once unavailable. Take a virtual factory tour to see just how they do it.

  5. There's never a dull moment with a Benchmade knife. Every Benchmade knife comes with a lifetime “LifeSharp” promise that includes complimentary cleaning, small parts replacement and of course sharpening. A customer simply ships their knife back to the Company where it’s not only sharpened, but inspected and tuned for optimum performance.

Cascade is pleased to feature Benchmade Knife Company, where hard-working knives are made by hard-working people.

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Hot Compliance Question

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
rorr@cascadeemployers.com

Question: My employee showed up to work drunk. When we confronted him about his behavior, he said he had a problem and asked for leave to go to rehab. I know that leave for rehab qualifies for family leave and can be a disability accommodation. Do we need to give him leave, or can we terminate him for violating our drug and alcohol policy?

Answer: You can terminate this employee.

An employer with a non-discriminatory drug-free workplace policy may terminate an employee for violating the policy, even if the employee asks for leave for substance abuse when confronted with the policy violation. Under the ADA, while leave for rehab can be an accommodation, you have no obligation to accommodate someone by forgoing discipline for coming to work impaired. Bottom line, as long as you have a policy that clearly prohibits impairment at work, you are justified in terminating an employee.

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Tips for HR Ninjas: Workplace Romance Policy – Should You Have One and Do They Work?

By Bethany Wright, HR Consultant
Cascade Employers Association
bwright@cascadeemployers.com

More than half of employees in the United States have participated in some sort of office romance. A whopping 16% of those romances eventually led to marriage.1 For those reasons alone, many companies have some sort of Workplace Romance policy in place to either prohibit those relationships, or establish ground rules for such occurrences.

There are several reasons why a workplace romance policy can be important. First, it addresses an issue that isn’t uncommon considering the amount of time co-workers spend together. Second, it can help establish an appropriate process for times when it occurs, and employees begin dating each other. Third, it helps reduce potential liability by having a process in place to limit the myriad of issues that can arise when employees are dating.

A proper workplace romance policy should:

  • Prohibit romances between anyone in a supervisory/subordinate relationship. It should also include people in leadership positions that may not have a direct supervisory/subordinate relationship, but have the ability to exert influence over decisions that affect the other person.
  • Provide a simple process for reporting romances between two co-workers. Also consider making it mandatory that anyone in a Manager, Supervisor, or Officer/Executive position report any sort of relationship with another employee that has moved beyond purely platonic. In cases like those, the initial solution may be to make sure that the parties involved no longer work together on matters where one is able to influence the other or take action for the other. Matters such as hiring, firing, promotions, performance management, compensation decisions, financial transactions, etc. are examples of situations that may require reallocation of duties to avoid any actual or perceived reward or disadvantage.
  • Establish rules for appropriate behavior in the workplace (public displays of affection, sharing of confidential information, etc.) when co-workers date. Employees should understand that during work time there should never be any physical contact that would be considered inappropriate in the workplace. In addition, during non-work time (i.e., breaks, lunches, or anywhere on company property, including the parking lot, etc.) any physical contact which may be deemed inappropriate or offensive by a reasonable person is strictly prohibited.
  • Be clear about consequences if employees do not comply with the policy or other policies related to employee conduct in the workplace. For example, failure to comply with this policy may result in disciplinary action up to and including termination of employment.

Policies like these are created to ensure that your employees are productive and to help contain any negativity or gossip within the offices when relationships occur.

In light of all of the recent accusations of workplace harassment in the news, a workplace romance policy may help employees better understand how to handle these situations if and when they come up. Having a workplace romance policy in place is also a good way to segue into harassment prevention training and establish what is and isn’t appropriate conduct in the workplace.


1 http://www.businessinsider.com/surprising-office-romance-statistics-2016-2.

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California Passes Several New Employment Laws

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
rorr@cascadeemployers.com

California has several new employment laws that will take effect beginning January 1, 2018.

The first new law bans, with limited exception, employers from asking about salary history, benefits, or other compensation or using this information in making pay decisions. The exception applies when an applicant voluntarily provides such information. However, because use of this type of information tends to perpetuate pay disparities that are prohibited by other laws, employers would be wise to not use an employee’s voluntary disclosure of pay information in making pay decisions. Additionally, employers must provide applicants, upon request, with a salary range for the job to which they are applying.

The second new law expands parental leave rights (12 weeks of bonding leave for birth, adoption or foster placement) under the California Family Rights Act (CFRA) so that employers who have 20 or more employees in a 75-mile radius must comply. Compliance with the law was previously limited to employers with 50 or more employees.

The third new law is a ban-the-box law that prohibits employers from asking applicants about criminal convictions until a conditional offer of employment has been made. If an employer does a background check, it cannot consider most arrests, diversion programs, expungements, etc. An employer must consider the age, severity, and job-relatedness of any conviction prior to disqualifying an applicant. And if an employer does disqualify an applicant, the employer must provide the employee a letter explaining the decision, including a copy of the background check report, and provide the employee with 5 business days to contest the report with additional information. The employer must consider the information, and the employer’s decision not to hire cannot become final until it has considered the information or the 5 days have passed.

Finally, the fourth new law expands on California’s mandatory harassment training law. Under current law, California employers with 50 or more employees must provide a two-hour harassment training at least every two years to its supervisory personnel. The existing law sets out a number of required topics for the training.

The new law requires trainings to include discussion of:

  • How law and company policy requires LGBTQ employees to be treated equally and with respect;
  • That work performance should be the primary factor in evaluating employee performance;
  • That supervisors are required to comply with these policies; and
  • Practical examples of how to promote a fair and respectful workplace with respect to LGBTQ employees.

For questions about any compliance obligations you may have with respect to your California employees, please give us a call.

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Consumer Price Index (CPI)

Consumer Price Indexes listed were issued October 13, 2017 for September data. 1982-84 = 100, unless otherwise noted.

  CPI-W
United
States
2016

235.495
2017

240.939
Change

2.3%
Portland/
Salem

Avg. 1st 
half/year
2016

237.784
2017

247.871


4.2%
  CPI-U
United
States
2016

241.428
2017

246.819
Change

2.2%
Portland/
Salem

Avg. 1st
half/year
2016

247.143
2017

258.055


4.4%

Note: The Consumer Price Index (CPI) program produces monthly data on changes in the prices paid by urban consumers for a representative basket of certain retail goods and services. CPI-W consists of urban households whose primary source of income is derived from the employment of wage earners and clerical workers. CPI-U includes wage earners and clerical workers, salaried workers, the self-employed, retirees, and the unemployed.

US Department of Labor Historical CPI Data

 


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