Stuart C. Morgan Receives Premier 100 Designation from National Academy of Jurisprudence

The National Academy of Jurisprudence (NAJ) has recently recognized Stuart C. Morgan as one of 100 premier trial attorneys in the state of WA. This is a distinction reserved for attorneys who have established themselves through their professionalism and excellence in service.

Membership into NAJ’s Premier 100 requires the satisfaction of stringent criteria and standards as established by the NAJ’s Board of Directors. Less than 1% of the 1.2 million attorneys currently practicing in the U.S. will be selected to receive this important and prestigious designation. Criteria for membership may include, but is not limited to, the following:

• An individual attorney’s commitment to ethics and professionalism
• Notable verdicts, achievements or settlements
• Board Certified Specialization as designated by the State Bar or other leading organization
• Nominations from the Board of Directors, industry leading trial attorneys, and existing Premier 100 Trial Attorney membership
• Membership and executive positions held within state trial attorney organizations or other leading organizations
• Any Current ratings or ranking profiles as identified by reputable and credible online or local evaluations

Stuart C. Morgan has been licensed since 1996 and focuses on trust and estate litigation, commercial litigation, wrongful death and serious personal injury matters. He has been recognized for his commitment to providing excellent representation for clients both inside and outside of the courtroom.

Ledger Square Lawyers Defend Business Community Against Government Overreach

Ledger Square Lawyer Jason Whalen represented the Economic Development Board for Tacoma-Pierce County in a joint rebuke of the State of Washington’s misguided effort to sanction the EDB, Port of Tacoma, and the Chamber of Commerce for purported violations of the State’s campaign finance disclosure law, following their successful, joint litigation against the facially invalid local ballot propositions promulgated by Save Tacoma Water citizens.

Concluding that the State’s campaign finance disclosure law did not require the EDB, Port or Chamber to report, as independent expenditures, their legal fees incurred in seeking judicial review of the local ballot propositions, Pierce County Superior Court Judge Ron Culpepper granted the EDB/Port/Chamber motions for summary judgment, dismissing all claims brought by the State of Washington.   Ledger Square Law will now seek reimbursement of its reasonable attorneys’ fees incurred, as authorized by statute. 

Ledger Square Law Helps Dunk Unlawful Local Initiatives Sponsored by Save Tacoma Water

Clock Tower Tacoma

Seeking to influence the administration of water rights for future development,  a group of concerned Tacoma citizens (organized as “Save Tacoma Water” or STW) sought to place local initiatives on the ballot to amend Tacoma City Code and the Tacoma City Charter to require a public vote for any future water use application exceeding one million gallons per day (“STW Initiatives”).  Because the proposed STW Initiatives were facially invalid under established state law, Ledger Square Law attorney Jason Whalen, representing member investors of the Economic Development Board of Tacoma-Pierce County, teamed with attorneys representing the City of Tacoma, the Port of Tacoma, and the Tacoma-Pierce County Chamber of Commerce (collectively, as Plaintiffs), to score a significant legal victory which sustains the rule of law regarding appropriate, pre-ballot court review of local citizen initiatives.  Today’s ruling provides certainty for the Port of Tacoma, the EDB, and the Chamber over the City’s administration of water and water rights for prudent economic development in our community.   The ruling also saves the citizens of Tacoma thousands of dollars in unnecessary expense in placing unlawful measures on the ballot.

After significant briefing and lengthy oral argument, the Pierce County Superior Court Judge Jack Nevin granted Plaintiffs declaratory and permanent injunctive relief, finding that the STW Initiatives, as written, exceeded the permissible scope of local initiative power and were therefore invalid, as a matter of law.  By court order, the STW Initiatives are now precluded from placement on the November 2016 ballot—or any other ballot in the future, regardless of the signature validation by the County Auditor. 

The Court’s ruling properly relied upon the Washington Supreme Court’s recent decision in Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185 Wn.2d 97 (2016), in holding the STW Initiatives legally invalid.

Changes To Wage and Overtime Laws Take Effect December 1, 2016

Wage laws change December 1st, 2016

Wage and overtime laws are changing once again. In May 2016, the U.S. Department of Labor announced its Final Rule updating the overtime provisions of the Fair Labor Standards Act. The Final Rule takes effect December 1, 2016, and will update the minimum salary level every three years for the executive, administrative, and professional employees exemption.  Key provisions of the Final Rule are:

  1. The minimum standard salary increased from $23,660 to $47,476 annually (from $455 to $913 per week), which is the current salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region – which is currently the South.
  2. The minimum annual compensation requirement for highly compensated employees increased from $100,000 to $134,004, which is the annual equivalent of the 90th percentile of full-time salaried workers nationally.
  3. The salary and compensation levels will be automatically updated every three years to maintain the levels at the above percentiles.  The initial salary increases take effect on December 1, 2016, and the first update will occur on January 1, 2020.
  4. Employers may now use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. Payments must be paid on a quarterly or more frequent basis.
  5. The Final Rule makes no changes to the duties tests for highly compensated employees or employees under the executive, administrative or professional exemption.

All employers should review their handbooks and polices to ensure they are consistent with applicable law. Changes to the foregoing wage and overtime laws take effect December 1, 2016. If you have any questions or concerns regarding employee overtime or any other employment issues, please call us at Ledger Square Law.

NLRB Expands Definition Of Joint Employer

The National Labor Relations Board (NLRB) significantly expanded its definition of “joint employers.”  The new standard will substantially impact many employers, but most significantly in the franchisor-franchisee and temporary labor context.  In Browning-Ferris Industries, the Board did away with the long-standing requirement that a putative joint employer must not only possess, but also exercise, authority to control the terms and conditions of employment of employees alleged to be jointly employed with another employer.  Under the new standard, an employer must only possess that authority, even if it chooses not to exercise it.  The new standard also will allow for a finding of joint employer status based on nebulous concepts of “overall circumstances” and “industrial realities.”

The case before the Board involved Browning-Ferris Industries (“BFI”), which operates a recycling facility in California, and Leadpoint, a temporary labor provider that supplied certain employees to BFI’s facility. The agreement under which Leadpoint supplied employees to BFI specified that Leadpoint was the temporary employees’ sole employer. Leadpoint handled all discipline of Leadpoint employees, hired and fired them, and primarily determined their wages.  BFI, on the other hand, did not have the authority to fire Leadpoint employees, though it could prohibit them from continuing to work at BFI facilities.

The International Brotherhood of Teamsters sought to represent BFI employees as well as the temporary employees provided by Leadpoint in the same bargaining unit, alleging that, despite the facts described above, BFI and Leadpoint jointly employed the Leadpoint employees.  The regional director rejected that theory under the now-former joint employer standard, but the Board’s recent decision overturned that decision and found BFI and Leadpoint to be joint employers of the Leadpoint employees under its new, broadened standard.

The Board majority justified its decision on shifting needs in American companies.  “As the Board’s view of what constitutes joint employment under the [National Labor Relations] Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded,” the Board stated, citing shifts toward greater use of temporary workers.  The majority’s decision explained that its decision returns to what it viewed as a more appropriate definition of joint employer, more firmly grounded in common law principles of control, rather than continuing to apply the requirement that a company actually exercise its control over putatively jointly-employed employees in order to be considered a joint employer.

“The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment,” the decision stated. “In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may ‘share’ control over terms and conditions of employment or ‘codetermine’ them, as the Board and the courts have done in the past.”

Although the specific implications of this decision will vary depending on the facts of each case, the decision will likely lead to more findings of joint employer status by the NLRB – and that, in turn, will mean greater legal and financial obligations on the part of employers who use temporary and other contingent workers.

For more information, please contact the employment law attorneys at Ledger Square Law, www.ledgersquarelaw.com.

On The Employer’s Time – Washington’s Supreme Court Rules on Paid Rest Breaks for Agricultural Employees Paid on a Piece Rate Basis.

On July 16, 2015, the Washington Supreme Court issued a ruling interpreting the statutory requirement for agricultural employees to receive paid breaks as applied to those paid solely on a piece rate basis.

By law, employees in Washington are entitled to short rest breaks “on the employer’s time.” In the case of hourly employees, that means employers must pay the employees their regular hourly rate during these breaks. In other words, hourly employees remain “on the clock” during these breaks.

Piece rate employees, however, are paid at a rate tied directly to their production, not time or hours worked. Thus, as the Court observed in Demetrio v. Sakuma Bros. Farms, Inc., 2015 Wash. LEXIS 807 (Wash. July 16, 2015), “the clock stops during periods of inactivity however brief.”

In Demetrio, seasonal agricultural workers employed to harvest crops on a berry farm in Skagit County brought an action against the farm for unpaid wages, specifically their rest breaks. While this action was in Federal District Court, and the parties settled without admission of wrongdoing, Washington’s Supreme Court was asked to answer two certified questions:

Whether a Washington agricultural employer has an obligation under WAC 296-131-020(2) and/or the Washington Minimum Wage Act to separately pay piece rate workers for the rest breaks to which they are entitled; and if so, how must Washington agricultural employers calculate the rate of pay for the rest break time to which piece rate workers are entitled?

WAC 296-131-020(2) applies to agricultural employees, and provides:

Every employee shall be allowed a rest period of at least ten minutes, on the employer’s time, in each four-hour period of employment. For purposes of computing the minimum wage on a piecework basis, the time allotted an employee for rest periods shall be included in the number of hours for which the minimum wage must be paid.

In its analysis, the Court examined the language “on the employer’s time” specifically. In doing so, it held that the only reasonable interpretation is that “on the employer’s time” requires pay separate from the piece rate. Since the piece rate is earned only while the employee is working (i.e., no pay accrues during rest breaks) the employees’ rest breaks cannot reasonably be said to be “on the employer’s time” if paid by the piece. As such, piece rate employees were effectively financing their own breaks, in that they were forfeiting pay in order to take them. The Court further concluded that the only way to give meaning to the phrase “on the employer’s time” in this context is to require compensation separate from the piece rate for rest breaks.

In answering in the affirmative to the first certified question, the Court then turned to the second question: how is this separate rate of pay calculated for these piece rate employees?

Based on previous case law and policy behind payment during rest breaks, the Court rejected the notion that this separate pay should be based solely on minimum wage. It reasoned that because all hours worked “on the employer’s time” are treated equally, the WAC entitles pieceworkers to their regular rate of pay for rest break time. This regular rate of pay is calculated by tallying the total piece rate earnings and dividing those earnings by the hours the pieceworkers worked, excluding the time spent resting. This formula yields the average rate of pay pieceworkers earn during active production—their regular rate. It also prevents rest break time from being double counted. This method of calculation is devised to prevent employers from paying rest breaks at a lower rate than production, thus providing an incentive to employees to miss breaks.

While this analysis applies directly to agricultural piece rate workers, this ruling is a reminder that prudent employers may wish to examine their operations closely for practices or policies that incentivize employees to ignore or disregard rest breaks or other benefits provided by statute to employees, and the importance of staying up to date on the latest in labor laws and regulations.

This opinion is the latest of developments in the employment law field, and comes on the heels of a number of wage and hour updates. In the past year, increased minimum wage laws, a trend towards mandatory paid sick leave, and the Department of Labor’s proposed rule updating FLSA coverage for employees exempt from overtime are just a few of the many issues employers should be aware of. The lawyers at Ledger Square Law are dedicated to protecting your interests. Give us a call to discuss your wage and hour issues before they result in protracted and expensive litigation.

Seattle’s minimum wage ordinance goes into effect on April 1, 2015

Bistro

Minimum Wage

The Seattle Office of Labor Standards (SOLS), a division of the Seattle Office for Civil Rights, released proposed administrative rules last month to implement the city’s $15 minimum wage.

Seattle’s minimum wage ordinance goes into effect on April 1, 2015. On that date, all employers, regardless of size, must pay employees working in Seattle $11 per hour. Employers with 501 or more employees must pay a “minimum wage” of $11 per hour, while employers with 500 or fewer employees must pay a “minimum compensation” rate of $11 per hour.

Number of employees irrelevant

The number of employees is not location-specific; this means that even employees who work outside Seattle count. Employees are covered if they work in Seattle for more than two hours in two consecutive weeks. Covered employees must be paid the minimum wage or minimum compensation rate for all hours worked in Seattle during the two-week period.

Employers have the discretion to determine how the two-week period will run (e.g., by pay period or calendar period), but the method must be applied consistently. If employers meet the ordinance’s notice requirements and provide employees a reasonable system for tracking time, they may delegate the responsibility for tracking time worked in Seattle to employees.

Differences between “minimum wage” vs. “minimum compensation”

The definition of “minimum wage” includes wages, commissions, piece-rate pay, and bonuses received by employees. On the other hand, “minimum compensation” includes wages, tips, and money paid by an employer toward employees’ medical benefits. Thus, small employers are able to count tips and medical benefit payments to help them reach the $11 minimum compensation rate. The minimum wage and minimum compensation requirements will increase over time and on different schedules based on employer size and contributions toward employee medical benefits until the $15 minimum wage takes effect on January 1, 2018, for large employers and January 1, 2021, for small employers.

Must maintain proper payroll records

The proposed rules require employers to retain covered employees’ payroll records for three years. Payroll records include, among other things, (1) the time of day and the day of the week on which an employee’s workweek begins, (2) hours worked each workday, (3) hours worked’ each workweek, and (4) information regarding medical benefits and tips that demonstrates that an employee was paid the minimum wage or minimum compensation rate.

The ordinance requires employers to notify employees of their rights under the law, including (1) the right to be paid minimum wage or minimum compensation, (2) protection from retaliation, and (3) the right to file a complaint for violations. Notice must be given in English, Spanish, and “any-other language commonly spoken by employees at [a] particular workplace.”

Implementing Seattle’s minimum wage

Here are some tips to help you comply with Seattle’s minimum wage ordinance:

  • Review the ordinance and the administrative rules to ensure compliance.
  • Determine your total number of employees, including joint employees and employees who work outside Seattle.
  • Notify employees of their rights under the ordinance in English, Spanish, and any other applicable language.

Make sure you have evidence that you provided notice.

  • If you have employees who work in Seattle periodically, notify them of their rights under the ordinance, and develop a reasonable system for tracking each employee’s time worked in Seattle.
  • Review your payroll and record-keeping procedures to ensure compliance with the ordinance and its regulations.
  • Consider consulting legal counsel to ensure compliance with the ordinance.

The ordinance takes effect on April 1!

Important Information about HB1646

The Washington State Legislature is currently considering H.B. 1646, which would reaffirm many of the rights granted under State and Federal law regarding employees’ ability to discuss their wages amongst themselves and with their supervisors.  Unlike other State and Federal laws, H.B. 1646 contains no exemption for certain employers regularly exempted from employment laws, such as public employers, religious employers, agricultural workers, certain overtime-exempt employees, or certain domestic workers.  H.B. 1646 would also prohibit the assignment of less favorable employment based on gender, potentially requiring employers to articulate a reason for each job assignment and task given to a particular employee in the event a discrimination claim is raised.  H.B. 1646 would also permit an employee to bring a private lawsuit and provides for payment of a successful plaintiff-employee’s attorney fees and damages.  Please contact us with any questions or concerns regarding this bill and how it may impact your business.

Tacoma City Council Approves Paid Sick Leave for Employees

court room

On January 27, 2015, the Tacoma City Council approved an ordinance that will require employers that operate within the Tacoma City limits to offer at least three days of paid sick leave to both union and non-union employees.  By the second year of employment, employees will be permitted to use up to five days of paid sick leave.  The leave may also be used in a manner similar to that already provided under the State’s Domestic Violence Leave law.  The ordinance will not take effect until February 1, 2016, after a period of rulemaking, to determine, among others things, whether this ordinance will apply to all employers of any size in Tacoma.  Please feel free to contact us to discuss how this ordinance may impact your business and whether you should amend you handbook to reflect the changed requirements. 

Pierce County Agrees to Pay $750,000 in Wrongful Death of University Place Man

Clock Tower Tacoma

A settlement has been reached following the wrongful death of Ronald Hillstrom, a man who died on his way to the hospital after an altercation with Pierce County Sheriff’s Deputies on May 11, 2014.

Police were responding to a disturbance call and found Mr. Hillstrom, who has a history of mental illness, holding a screwdriver and running in circles in the parking lot of his apartment complex. Four officers arrived, and when Mr. Hillstrom failed to respond to their commands he was tased. A struggle ensued, and over the next several minutes officers attempted to subdue and handcuff him. At one point Mr. Hillstrom lost consciousness, but when he awoke he resumed struggling and yelling incoherently. Paramedics arrived to transport Mr. Hillstrom to a local hospital for treatment of a laceration to his head, but he suffered a cardiac arrest while being transported and could not be revived.

A federal civil rights lawsuit filed by the Hillstrom family alleged that Mr. Hillstrom’s death was caused by inadequate training and excessive force by the Pierce County officers. A subsequent autopsy revealed multiple blunt force injuries, a broken nose, and thirteen rib fractures due to trauma.

The Hillstrom family and Pierce County came together in late-January to discuss resolution of the lawsuit. As part of the settlement negotiations, Pierce County confirmed that it has partnered with MultiCare Mental Health to provide additional training for its Sheriff’s deputies in the wake of Mr. Hillstrom’s death. The Hillstrom family was represented by attorneys Nathan Roberts and Julie Kays of Connelly Law Offices and Jason Whalen of Ledger Square Law. The County was represented by attorneys Michelle Luna-Green and Sean Davis of the Pierce County Prosecutor’s Office.