On June 10, 2013, the Seattle City Council unanimously approved an ordinance restricting employers’ ability to access public records and conduct criminal background checks on potential employees. The ordinance will take effect on November 1, 2013 if approved by Mayor Mike McGinn, which is expected. Under the ordinance—which covers all private employers with one or more employees and applies to positions requiring at least 50 percent of working time within the Seattle city limits—employers are no longer able to inquire about a potential employee’s criminal history or to conduct a background check until a conditional offer of employment is given.

The Equal Employment Opportunity Commission (EEOC) recently issued four new “Question and Answer” documents that address how the Americans with Disabilities Act of 1990 (ADA) relates specifically to diabetes, epilepsy, intellectual disabilities, and cancer. These documents provide clear answers to common employer questions about hiring and accommodating employees with one or more of these conditions. They also offer various concrete examples showing how to apply the ADA to specific scenarios.

Social media in the workplace has been a “hot” issue for several years, and there are no signs of a slowdown for this controversial topic. In fact, recent National Labor Relations Board (“NLRB”) decisions and the Washington State social media privacy bill show that employee use of social media is presenting more complicated issues than ever.

My employer retaliated against me because: I complained about sexual harassment; I reported a supervisor’s discriminatory treatment of my coworkers; I provided negative information about a manager during an investigation of alleged discrimination. Retaliation claims have become more numerous and can be more difficult to dismiss on summary judgment than claims based on the discrimination out of which the retaliation allegedly arises.

In a notice issued March 7, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced that employers should begin using a revised version of the I-9 employment eligibility verification form immediately.

In early February, the U.S. Department of Labor (DOL) issued a new final rule on the Family and Medical Leave Act (FMLA). The new rule relaxes the requirements for obtaining military “qualifying exigency” leave or “military caregiver” leave, addresses disclosure of family history for FMLA purposes under the Genetic Information Nondiscrimination Act (GINA), describes what minimum increment to use for intermittent leave, and contains provisions for members of airline flight crews. The DOL has also made revisions to its FMLA forms and poster, which go into effect March 8, 2013. The following paragraphs summarize these changes.

On January 4, 2012, President Obama appointed three individuals to the National Labor Relations Board (“NLRB” or “Board”) while the United States Senate was not in session. The President claimed he had the power to make such appointments without the “advice and consent” of the Senate under the United States Constitution’s Recess Appointments clause. Since then, the Board has issued a number of controversial decisions concerning, among other subjects, social media and employer confidentiality rules. Many of these notable opinions have had a great impact on employer policies and practice, as detailed in prior Sebris Busto James monthly Employment Law Notes.

No “winds of change” swept over us during the November 2012 elections. To the contrary, the results in Washington, D.C. and Olympia reinforced current politics in our nation’s capitol and our statehouse. By maintaining Democrat control in the Governor’s mansion and the legislature, and by reelecting President Barack Obama, our electorate has endorsed the current power dynamics. The impact on the workplace—labor and employment law matters—may not just mean “more of the same.” Instead, employers will have to gird themselves for “much more of the same.”

Today is the day Washington’s voter-approved Initiative 502 (“I-502”) goes into effect, which decriminalizes certain cultivation, sale, possession, and use of marijuana. It is clear that I-502 will drastically impact law enforcement in Washington State where marijuana use is concerned. I-502 also authorizes the Washington State Liquor Control Board to regulate and tax marijuana, thereby requiring the creation and implementation of new tightly-regulated and licensed systems (similar to those used to control alcohol). Despite all these changes, employers may happily take note of one area that I-502 does not touch: the workplace.

The Washington Minimum Wage Act (MWA) unequivocally requires employers to pay non-exempt employees overtime for all hours worked in excess of 40 hours in each workweek. Regulations issued by the Washington State Department of Labor and Industries (L&I Rest Period Regulation) are equally clear that employers must provide non-exempt employees with a paid 10-minute rest break for every four-hour period worked. Under such standards, an employer may likely believe that it has satisfied its legal obligations in circumstances where an employee misses a rest period during his or her scheduled 40-hour workweek yet is provided additional compensation for that time at his or her regular hourly rate. Not necessarily, says the Washington State Supreme Court.

The holiday season is just around the corner, and organizations throughout Washington are once again preparing to celebrate the holidays with their employees. Many organizations are privy to holiday party legends—some good, some bad, and some that will live forever on Facebook. Whether your company-sponsored event is at the office or at an outside location, the company may be liable for the behavior of its employees. If alcohol is part of your company’s holiday celebration, you could be at risk for more than just a hangover.

In Washington, hostile work environment claims can be based on the cumulative effect of discrete acts. As a result, a hostile work environment can arise over a period of days or even years. When a claim involves several years of cumulative conduct, how do Washington courts address the situation where the conduct becomes unlawful in the middle of the series of acts?