Author: 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…
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% –…
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…
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)…
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,…
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…
New Washington Supreme Court “Innocent Misrepresentation” Overpayment Case
The 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…
“Concerted Action Waiver” violates the NLRA
Are 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…
New Changes to Overtime Rules Affect Millions of Workers
The 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…
Lumbar Fusion – New Guidelines for DLI
The 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…
Applicant Injured on way to Orientation is not a Subject Worker
In a recent Oregon Workers’ Compensation Board case, the Board found an applicant who was injured on her way to orientation on the employer’s premises was not a covered worker. In Mary K. Meyers, 67 Van Natta 1725 (2015), claimant applied for a telemarketing position, completed a written application and…
Washington Housekeeping Matters – COLA and Vocational Mileage Reimbursement
COLA Effective July 1, 2015, cost of living adjustments (COLA) will take effect for the benefit period of July 1, 2015 through June 30, 2016. Washington’s statewide average wage increased from $52,635 in 2013 to $54,829 in 2014. The maximum monthly time-loss rate for dates of injury on or after…
Neutral Policy Can Violate Title VII Based On New United States Supreme Court Case.
If you have ever been in an Abercrombie & Fitch store, you probably noticed all its employees are dressed in its clothes and look a certain way. A “look policy” governs their attire and bans “caps” as too informal. In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., the United States…
Pregnancy and Work: Young v. UPS
By: Sarah Ewing Pregnancy discrimination is protected under the Pregnancy Discrimination Act (PDA). Courts often struggle with how to handle pregnancy issues because it is separate from the American with Disabilities Act (ADA) and an on-the-job injury. Under the ADA, a person qualifies for protected leave when they have a…
Two favorable decisions from the Washington Court of Appeals.
By: Sarah Ewing Two recent published cases from the Court of Appeals both are favorable to employers. Mario Arriaga v. Department of Labor and Industries – (Division III) – At issue in this case is whether the attending physician’s protest of a segregation Order was timely. In December 2005, Arriaga…
Can you be terminated for being a jerk at work?
Since the 2008 ADA amendments, the ADA seems to get bigger and bigger as more impairments are given protection. The Ninth Circuit recently overturned a District Court jury verdict. This is a big deal in the legal world. Overturning a jury verdict is very unusual, especially one finding an employer…
FMLA vs. Paid Vacation Days: New Case from the Ninth Circuit
Do you have a FMLA policy that requires an employee to first exhaust paid vacation time that runs concurrently with the FMLA leave? What would you do if the employee elected to use paid vacation but not FMLA leave for qualified FMLA leave? The Ninth Circuit provided the answers in…
Court of Appeals Expands Smothers: Dan Alcutt v. Adams Family Food Services, Inc. (A147515) decided October 9, 2013.
The denial of this injury claim was approved as the insurer proved preexisting DDD, rather than a workplace injury, was the major contributing cause of disability/treatment for the combined condition. After an ALJ upheld the denial, the worker filed a negligence civil action against his employer. The trial court granted…
Combined Conditions = OCI +PEC
Court of Appeals boils combined conditions down to a mathematical equation. In Vigor Industrial , LLC v. Randi Ayres, the Court of Appeals held that ORS 656.005(7)(a)(B), permits consideration of only qualifying preexisting conditions when determining the major contributing cause of a “combined condition.” Ayres had an accepted…
Case Alert: Penalties at Claim Closure
In the most recent workers’ compensation case from the Court of Appeals, Walker v. Providence Health System, the court addressed penalties assessed relating to claim closure. The facts and procedural status of this claim have been over-simplified for this summary. The employer noticed an IME to determine if claimant had…
