Today’s article is a re-post from guest author Jon Rehm, from Rehm, Bennett & Moore.
Last Monday, the U.S. Supreme Court ruled 9-0 that contracted warehouse workers for Amazon did not have to be paid for time spent waiting to clear through an anti-theft security screening after their shifts. Justice Clarence Thomas ruled that time spent in an after-work security screening was not integral and indispensable to the primary activity of a warehouse worker, therefore not covered under the federal Fair Labor Standards Act. So what does that mean for you?
First of all, this should mean that any worker who has to go through a security check after work will not have to be paid by their employer for the time that process takes. However other pre- and post- workday activities should still be covered under the Fair Labor Standards Act. Donning and doffing safety equipment is still compensable because such safety equipment helps an employee work safely. Call-center workers still should be paid for time spent booting up and logging into a computer and phone because a call-center employee is unable to do their job if they are not logged into their phones and computers. Employees should also consult with a lawyer about state wage and hour law as state law may be friendlier to employees.
Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.
Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?
Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.
Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.
However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws. State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded.
I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.
The election season begins early in Washington this year. You may already be suffering from election advertising fatigue, as I am, but election ballots are set to be mailed in the next week for the August 7th primary, and in the past many of you have sought our recommendations on judicial races. There are three critical elections on the primary ballot for the Washington State Supreme Court.
Why are we getting this message out now? Because election statistics show that about twenty percent of voters skip the judicial races on their ballots. As you know, our ability to represent injured and disabled workers can be dramatically affected by who is ultimately deciding cases on appeal. It is critical to have the right men and women leading our judicial system, so here are our views on the candidates you will see on your ballot.
Here are our recommendations in the three Supreme Court races:
For Position 2, we recommend voting for incumbent Justice Susan Owens. Owens has served on the high court for twelve years ably, while her opponents have no judicial experience.
For Position 8, we recommend voting for the newly-appointed incumbent Justice Steve Gonzalez. Gonzalez, a former Assistant US Attorney, King County Prosecutor, and King County Superior Court Judge, was appointed to the bench last year following his outstanding record throughout his legal career and his commitment to access to justice issues across our state. In contrast, his opponent has been rated ‘Not Qualified’ by his local colleagues in the bar association in his races for lesser judicial offices. Since there are only two candidates on the ballot in this race, it will be decided in August.
Finally, Position 9 is an open seat being vacated by Justice Tom Chambers, who is irreplaceable as a champion for the rule of law and citizens’ rights. This race drew a strong field of candidates. Bruce Hilyer, John Ladenburg, and Sheryl McCloud would all make excellent justices. We have no particular preference. The fourth candidate, Richard Sanders, who was defeated in the last election by current Justice Charles Wiggins and is running again, has had his day and we don’t believe he deserves the same consideration.
While we’re at it, I’ll give you the first of my personal views on the three other most important races coming up on the November ballot that will have potentially great impact on you as a Washington citizen and consumer: the races for Governor, Attorney General and Insurance Commissioner.
In the Governor’s race, Jay Inslee is the clear civil justice candidate. Prior to public office, Jay was an attorney representing victims in Yakima. He then began a long career of public service where he has diligently protected citizens’ constitutional and civil rights, and been a champion of worker and consumer protections. (Personal note: I’ve known Jay for many years.) In contrast, his opponent Rob McKenna has fought to remove or reduce citizens’ ability to hold government accountable through the court system. For example, his first request for legislation as Attorney General would have taken away our right to hold the government or ANY government contractor accountable—whether from poisoned food in schools, faulty bridge construction, or any other number of the most reckless or careless acts that lead to serious injury or death. It was breathtaking that our state attorney would propose such a lack of accountability. It’s a pretty sure bet that Mr. McKenna’s philosophy concerning business versus individual rights will percolate down to the Department of Labor & Industries, where your workers’ compensation claims are decided and managed. As the weeks go on, we’ll have much more to say about the Governor’s race.
The Attorney General is the chief legal officer for the State of Washington and its citizens, and 90% of the office’s job is representing the state in civil cases. I believe it is critical that the Attorney General believe in a government accountable to the protection of its citizenry and who shares a commitment to going after the powerful special interests that harm the public by abusing our laws. I strongly recommend Bob Ferguson for this job. Bob is a lawyer and King County Councilman, who has committed his campaign to the same issues he has committed his public service to thus far: protecting public safety, going after fraudulent actors like mortgage lenders and servicers, prosecuting polluters, and protecting taxpayers against fraud and abuse. Bob would be a champion for us all as Attorney General and deserves your vote.
Finally, incumbent Insurance Commissioner Mike Kreidler must be re-elected. Commissioner Kreidler has been the number one champion in the state shaping our insurance system to try and make it work for consumers in every line of insurance. The Insurance Industry writes $30 billion worth of business every year in our state, and he uses his office to fight to make sure consumers are actually getting the coverage they pay for, fighting delay or denial of legitimate claims, and trying to reduce rates and create a fair system.
We hope you have found this information useful. We are sharing my views with you because of our strong belief that all our clients seeking a chance for justice through the court system, and the administrative law systems that the courts review, depend on these public servants. Please share this message with family and friends. Regardless of your views on these races, though, please make sure you vote on August 7th. We owe it to each other to participate and have our voice heard in our electoral process.