Sarah Ewing

Documenting and discussing work performance issues with employees in relation to the ADA and FMLA

How many times have you heard Human Resources tell you to document, document, document? Well, it’s because of cases like Estep v. Forever 21. This case, from the US District Court of Oregon, is a good reminder of what can happen when you fail to document and discuss performance issues with struggling employees. Forever 21 hired Jonathan Estep in July 2012. He quickly worked his way up to district manager, covering all stores in the state of Washington. By November 2015, he was temporarily assigned to stores in the Sacramento district. Despite his quick rise, Estep was not a top performer. In November 2015, Forever 21 identified the 100 worst performing stores in the US. Estep oversaw 6 of the… Continue reading

Benefit to Employers Who Offer Paid Family Leave

Are you an employer who offers paid family and/or medical leave? If so, you may qualify for a tax credit for tax years 2018 and 2019. Depending on how much you pay an employee while on family or medical leave, you may be able to claim between a 12.5% – 25% credit for the wages you paid to the employee during the leave. See 26 USC §45S. The IRS recently issued Notice 2018-71, which provides guidance for employers who want to claim the credit. Many employers I work with have a PTO policy that groups various types of leave into one big leave bank. The Notice clarifies whether an employer can claim the credit for an employee taking leave for… Continue reading

Court of Appeals Case Reaffirms Objective Evidence Required For Reopening

In Hendrickson v. Dep’t of Labor & Indus., the Washington Division One Court of Appeals reaffirmed what evidence must support a reopening application. Claimant injured her middle and lower back in October 2007. The Department closed her claim in May 2012 with a category 4 dorso-lumbar impairment award. Just prior to claim closure, claimant complained to Dr. Martin she was “having ongoing pain all over.” In September 2013, claimant filed a reopening application, which the Department denied in February 2014. Claimant appealed. At hearing, claimant’s medical expert, Dr. Martin, testified that claimant’s cervical and lumbar MRI scans taken prior to claim closure and those taken in 2014 “were essentially unchanged” and there were “no objective findings of worsening” in claimant’s… Continue reading

Washington Paid Sick Leave – Sample Policies and Enforcement Rules

Starting January 1, 2018, Washington employers will have to provide paid sick leave to their employees. All employers are required to provide one hour of paid sick leave to an employee for every 40 hours worked, paid at an employee’s normal hourly compensation. Employees may use paid sick leave: (1) to care for themselves or their family members, (2) when an employee’s workplace or their child’s school or place of care has been closed by a public official for any health-related reason, or (3) for absences that qualify for leave under the state’s Domestic Violence Leave Act. Because you have likely heard or read about the law’s requirements, the focus of this post is to summarize the Department of Labor… Continue reading

Join Sarah Ewing in WSIA’s Webinar Discussing the New Paid Family & Medical Leave Law

Please join me on October 6, 2017 as I present with other panelists in a live webinar to discuss Washington’s new Paid Family & Medical Leave Insurance law. The webinar will discuss Washington’s newly adopted paid family leave insurance program including the origin of the law, the obligations on employers, benefits to employees, and options for self-insurers as well as interactions with workers’ compensation and other disability programs. The webinar will give you a better understanding of the new law and a chance to ask any questions before the state begins to collect premiums in 2019. This live webinar takes place on October 6th from 9:00 am to 11:00 am. You can register here. If you have any questions… Continue reading

Oregon Passes Fair Work Week Legislation

Oregon made national news yesterday as the first state to pass legislation requiring employers to provide greater schedule predictability to low-wage employees in the retail, food service, and hospitality industries. The bill applies to employers with at least 500 employees worldwide. The bill (SB 828) attempts to address issues that arise with irregular and unpredictable scheduling. One in six Oregonians receive less than 24-hour notice of their job shifts. Employers will now be required to post work schedules 7 days in advance that include all work shifts and on-call shifts for the work period. If the employer wants to change the schedule after the advance posting, the employee may decline any work shifts not included in the written… Continue reading

New Washington Supreme Court “Innocent Misrepresentation” Overpayment Case

Ewing, Sarah_160x222The Washington Supreme Court issued a new case addressing whether the Department has authority to issue an overpayment order and an order modifying claimant’s compensation rate based on claimant’s innocent misrepresentation. Claimant was injured at work. He needed assistance to complete the SIF-2 and because of a language barrier and claimant coming in and out of consciousness, the SIF-2 stated claimant was married and had a dependent child at the time of injury. The listed persons were actually his sister and niece. The Department issued several wage orders, each basing the wage calculation on claimant having a spouse at the time of injury. Claimant was awarded a pension and when he filled out the pension paperwork, he indicated he was… Continue reading

“Concerted Action Waiver” violates the NLRA

Ewing, Sarah_160x222Are you aware that as an employer you can violate the National Labor Relations Act (NLRA) whether your employees are unionized or not? A recent case from the Ninth Circuit affirms employers violate the NLRA when policies or agreements prohibit concerted activity. In Morris v. Ernst & Young, LLP, Ernst & Young, an accounting firm, conditioned employment upon signing an arbitration agreement where employees agreed not to join with other employees in bringing legal claims against the company. Specifically, employees were required to (1) pursue legal claims against Ernst & Young exclusively through arbitration, and (2) arbitrate only as individuals and in “separate proceedings.” Employees Stephen Morris and Kelly McDaniel filed a class action for overtime. Ernst & Young argued… Continue reading

New Changes to Overtime Rules Affect Millions of Workers

Ewing, Sarah_160x222The Department of Labor (DOL) just released new rules that will affect millions of workers who are currently exempt from overtime. Workers can be exempt from overtime under a two part “white collar” exemption test – the first step is the salary test and the second test is the duties test. The DOL raised the minimum annual salary requirement to $47,476, making the first step in the two-part test impactful to millions of workers who were previously exempt. The rule goes into effect December 1, 2016. As the current rule stands, the minimum salary requirement is $23,660 – an annual salary so low it rarely was a barrier to overtime exemption status. However, any worker previously exempted because they qualify… Continue reading

Lumbar Fusion – New Guidelines for DLI

Ewing, Sarah_160x222The Department has issued new stricter guidelines regarding when a proposed lumbar fusion is a medically necessity and clinically appropriate. These guidelines, effective March 7, 2016, deny lumbar fusion surgery coverage for patients with uncomplicated degenerative disc disease (“DDD”). An uncomplicated DDD is one where claimant has lower back pain without any evidence of: (1) radiculopathy, (2) functional neurologic deficits, (3) spondylolisthesis (greater than grade 1), isthmic spondylolysis, (4) primary neurogenic claudication associated with stenosis, (5) fracture, tumor, infection, inflammatory disease, or (6) degenerative disease associated with significant deformity. The current guidelines allowed a coverage for a lumbar fusion for a claimant who had no evidence of the above 6 conditions, as long as they completed three months… Continue reading