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?

Mark Twain reportedly said that “a lie can run around the world six times while the truth is still trying to put on its pants.” If Twain had ever conducted a workplace investigation, he might have more accurately remarked that the truth is actually still in bed wearing pajamas.

A recent decision by the Washington Court of Appeals clarifies two tests that are often misunderstood and misapplied by employers. In Fiore v. Ppg Indus., 2012 Wash. App. LEXIS 1556 (Div. I 2012), the Washington Court of Appeals considered the test for applying the administrative exemption test under Washington’s Minimum Wage Act (“MWA”). It also reviewed the test for calculating overtime when a non-exempt employee is paid a salary. Although the decision turned out badly for employer PPG Industries (PPG), the Court’s decision provides guidance for employers seeking to avoid costly overtime suits.

The Family and Medical Leave Act (“FMLA” or “Act”) provides eligible employees with up to 12 weeks of leave per year and, except in specified circumstances, guarantees employees reinstatement to their same or equivalent position upon return from leave. As anyone who has dealt with the Act is well aware, the FMLA is complex to administer and can be confusing both to employers and employees alike. In an effort to offer compliance assistance, the U.S. Department of Labor (“DOL”) from time to time issues guidance addressing and clarifying appropriate application of the FMLA.

Employers conduct background checks on current and prospective employees for many valid reasons. Background checks can be a useful tool for promoting productive business operations, weeding out workers who may threaten the workforce, preventing employee theft, protecting vulnerable business clients, and avoiding negligent hiring lawsuits. Under decades-old guidance, the U.S. Equal Employment Opportunity Commission’s (EEOC) position is that employer reliance on criminal background information for employment decisions may have an unlawful adverse impact based on race.

The clock is ticking toward September 1, 2012, the date on which Seattle’s Paid Sick and Safe Leave Ordinance (“the Ordinance”) will go into effect. Every employer that has employees who spend any time in Seattle should take notice. The Seattle Office for Civil Rights, the administrative body charged with overseeing and enforcing the Ordinance, recently released amended proposed administrative rules that cover aspects of the Ordinance’s implementation, such as how sick time will accrue, notice requirements for employers, notice requirements for employees, and employee documentation.