EMPLOYMENT LAW
Richard Hughes
Hughes Law Group PLLC
(360) 336-6120
rhughes@isomedia.com
Speaker:
Richard Hughes has been practicing employment law representing both
management and employees for over 18 years. His employment practice covers
everything from business formation through discipline, training, termination and
litigation. He also practices labor law, as well as contract, commercial and real
property litigation.
HUMAN RESOURCES LIABILITY
I. How can HR become a potential party to a lawsuit?
A. One way might be if you are sued as a civil conspirator.
1. A civil conspiracy is simply defined as (1) two or more people
combined to accomplish an unlawful purpose, or combined to
accomplish a lawful purpose by unlawful means; and (2) the
conspirators entered into an agreement to accomplish
the conspiracy.

HR and management agree to terminate employee within a
protected class.

HR and management agree no other accommodations are
available.

HR and management decide … This has potential application
for any employment issue even beyond 49.60 et.seq.
II. How does HR and company avoid a lawsuit?
A. Comply with the law;
1.
Washington’s Laws Against Discrimination
a.
RCW 49.60.010 - Policy/Purpose
This chapter shall be known as the “law against discrimination.” It is
an exercise of the police power of the state for the protection of the
public welfare, health, and peace of the people of this state, and in
fulfillment of the provisions of the Constitution of this state
concerning civil rights. The legislature hereby finds and declares
that practices of discrimination against any of its inhabitants
because of race, creed, color, national origin, families with
children, sex, marital status, sexual orientation, age, honorably
discharged veteran or military status, or the presence of any
sensory, mental, or physical disability or the use of a trained
dog guide or service animal by a person with a disability are a
matter of state concern, that such discrimination threatens not only
the rights and proper privileges of its inhabitants but menaces the
institutions and foundation of a free democratic state. …
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b.
Court Interpretation of Purpose of RCW 49.60.010
“The overarching purpose of the law is to deter and to
eradicate discrimination in Washington.” Brown v. Scott Paper
Worldwide, Inc., 143 Wn.2d 349 (2001). The statute expressly
mandates liberal construction in order to accomplish the
broad purposes of the law. RCW 49.60.020. Our courts “view
with caution any construction that would narrow the coverage
of the law.” Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922
P.2d 43 (1996).
TIP: It important to know the policy behind RCW
49.60.et.seq., because it has the potential to redefine and expand
the law against discrimination. For instance:



Employers
with
fewer
than
8
still
liable
for
discrimination/harassment;
Businesses with independent contractors liable under statute
as if they were employers;
Supervisors engaged in illegal activities i.e., discrimination
personally liable as if they were an employer.
B. Regularly train management and subordinates with respect to
discrimination and accommodation laws.
DISCUSSION: HOW OFTEN DO YOU TRAIN/REMIND STAFF?
HOW DO YOU ENSURE NEW EMPLOYEES ARE SUITABLY
TRAINED? HOW DO YOU CREATE CULTURE OF RESPECT?
C. Have an updated anti-harassment/anti-discrimination policy that is
regularly trained.
NOTE: If harassment is by a subordinate or peer on peer and is
not reported to HR, you have a free defense. Farragher & Ellerth
D. Objectively determine wage classifications i.e., salaried exempt;
and ensure (1) salary and (2) duty tests are met.
E. Make sure workplace is safe.
1. Deliberate Intent (Exception to L&I)
a. An employee can bring an action against individual and/or
employer if it can be shown that he/she was injured out of a
deliberate intent. TEST: Did employer have actual knowledge
that an injury was certain to occur and did it willfully disregard
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that knowledge? Baker v. Schatz, 80 Wn. App 775, 780, 912 P.2d
501 (1996) citing RCW 51.04.010.
b. The law does not require an actual intent to injure the
employee. Baker, 80 Wn. App. at 782.
c. Once a plaintiff establishes that the employer had actual
knowledge that an injury was certain to occur, a plaintiff will be
able to establish 'willful disregard of that knowledge' when she
produces evidence sufficient to challenge the correctness or
effectiveness of an employer's remedial measures.
d. “Remedial measures do not insulate an employer from
liability if repeated injury follows failed measures.” Hope v.
Larry’s Markets ____ Wn.App. _____
TIP: Check each and every Material Safety Data Sheet
(MSDS) for chemicals, cleaners, toxics, etc., used at your place
of employment to see whether any indicate that an injury will
occur from exposure and take appropriate safety precautions
for all chemicals, cleaners, toxics, so that harmful contact will
not occur.
F. Consider expanding concept of reasonable accommodation.
1. Employer Has a Duty to Reasonably Accommodate a Disability.
While legal tests exist to determine whether the condition is a
disability, I believe this analysis sometime misses the mark from a
management perspective.
TIP: Don’t get so hung up over what is or what is not a
disability. If an individual is requesting assistance for a physical or
mental issue strongly consider going down the interactive approach
by asking for a release authorizing you to review medical records
and speak with the employee’s medical provider to determine (1)
diagnosis, (2) how the employee can be accommodated and (3)
when the employee will be able to return.
TIP: Don’t stop at one accommodation model. Recent
cases have suggested that while the employer gets to determine
the mode of accommodation, the method made must work or else it
is not really an accommodation. So be flexible and be creative.
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TIP: In my 18 years as an employment attorney, I have
never once seen the best and most well liked employee not given a
reasonable accommodation.
TIP: What is reasonable? I tell my business clients that the
best test to determine whether an accommodation is reasonable is
to determine for themselves how comfortable they would be
justifying their decision to a jury and answering questions from a
fired up lawyer. If they can answer those questions with ease and
comfort and say “we really did all that was reasonable and then
some” then they probably are unable to reasonably accommodate
the individual.
TIP: Even if you know the employee is working it and they
were likely to be fired do not let your knowledge interfere with
engaging in the interactive model. Otherwise, a claim for failure to
accommodate and retaliation could be coming your way!
DISCUSSION: SO WHY DO FAILURE TO ACCOMMODATE
CASES ARISE?
G. At time of termination treat employees with respect.
TIP: Consider asking whether denying employment benefits
is in the best interest of the business.
H. Be familiar with employment laws beyond Title VII; RCW
49.60.et.seq; and disability accommodations (state and federal)
I. Duty to 3rd Parties
1. Negligent Supervision: An employer has a duty to competently
hire and supervise employees. Haubry v. Snow, 106 Wash.App.
666, 679, 31 P.3d 1186 (2001). This duty is owed to third parties.
And it is independent of the doctrine of respondeat superior. Scott
v. Blanchet High Sch., 50 Wash.App. 37, 43, 747 P.2d 1124 (1987)
(quoting 53 AM.JUR.2D Master and Servant § 422 (1970)).
J. Employee vs. Independent Contractor.
DISCUSSION: What is the key element to determine whether a
person is a contractor or employee? See also RCW 51.08.070
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(presumption is employer/employee relationship). What about
contracted services? Are they your employee? Be careful.
K. Covenants in Restraint of Trade
1. What are they?
a. Non-Compete
b. Non-Solicitation
c. Confidentiality
2. Are they enforceable?
3. Under what circumstances?
4. In 2004, the Washington Supreme Court held: “continued
employment “did not serve as consideration by Employer in
exchange for Employee’s promise not to compete.”
5. How can you get current employees to sign one which will be
enforceable if continued employment alone is insufficient
consideration?
6. Why might an employer opt not to have them?
7. Why might an employer opt to limit their application to certain
employees and which employees should get them?
TIP: Limit agreements to Key employees where it is
necessary to limit their employment with 3rd parties for a reasonable
period of time.
TIP: Have agreement presented with offer letter to be
signed and delivered prior to start of employment.
L. Retaliation statutes
1. Retaliation for Union activities
a. Washington offers broader protection against retaliation for
concerted employee activity or union affiliation and, for example,
permits claims based on an employee's right to be free from
'interference, restraint or coercion' related to concerted activities
aimed at improving working conditions. See Bravo v. Dolson
Companies, 125 Wn.2d 745, 756, 888 P.2d 147 (1995). Note:
Employer held liable to employees for “concerted activities aimed at
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improving working conditions” even though bargaining unit had not
been formed.
TIP: The complaint is not a concerted activity if only
one employee brings a complaint-unless the employee is
bringing the complaint on behalf of himself/herself and/or
others. Regarding discipline: (1) meet with each employee
one at a time; (2) discuss each person’s individual issues, and
(3) do not retaliate against an individual who brings a
complaint on behalf of others. Contact legal.
b.
c.
d.
e.
f.
g.
RCW 49.60.
Title VII
ADA
FMLA
FLSA/49.46.et.seq. (overtime)
Filing or informing of intent to file workers compensation
statutes
h. Notice of Garnishments
i.
WISHA
j.
Patient Health
k. Report of bullying at school
l.
Farm or agricultural workers rights
m. Fraud or illegal conduct by state, county, city or municipality, its
employees or agents. RCW 42.
M. Torts at Work
1. Assault, a harmful or offensive touching which is intended by the
actor even if the desired outcome is not intended.
2. Invasion of Privacy: Personal identifiers (Soc. Sec #, D.O.B,.
What about facebook where employee disseminates
embarrassing information to others (WORLD)?
3. Defamation
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HYPOTHETICAL 1: An employee and dental assistant of a dentist
breaks a tooth and the dentist decides to play a practical joke on the employee
by offering to fix her teeth. He took a mold of her mouth and had boar tusks
created and then implanted them on the patient and took photos of the same
while the woman was unconscious. The other dental assistants went along with
the “prank”. The woman is later shown the photos and becomes nearly catatonic
since the dentist’s actions caused the woman to relive a prior assault and light up
latent PTSD.
OUTCOME: Big money; real case; included civil conspiracy against assistants;
included invasion of privacy case: False light; assault; no workers compensation
Discussion: What can be learned from this case?
NOTES:
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HYPOTHETICAL 2: Open Doors, Inc., a revolutionary software
company has been growing quickly. Its founder, president and CEO Ron Darling
along with the co-founder and Vice President Rob R. Stamp have opted not to
hire new employees. Instead, to save money they have been hiring software
engineers and others on contract – characterizing them as “independent
contractors”. On its books, Open Doors, Inc., only has two employees, Ron and
Rob. The other 29 software engineers, 5 marketing executives and its production
staff are located on Open Doors, Inc.’s premises but are employed as
“independent contractors”. Ron continually asks one of the marketing agents,
Doris, out on dates, openly discusses his own dates/conquests with her and
remarks on Doris’ outfits and her body and asks her about her own social life.
Doris asks Ron to stop. Of course, Ron doesn’t stop his conduct. Doris
complains to Rob R. Stamp who does nothing. Doris talks to her friend who
immediately says, “you should sue.”
Can Open Doors, Inc. be sued by Doris?
Under what theories?
Can it defend itself? How?
Does it matter that the “workers” are characterized as independent contractors?
Does it matter that there are less than 8 employees?
Would it make any difference if Open Doors, Inc. hired the workers temporarily as
“employees” from EASY RIDER another software company?
What if EASY RIDER knew that Ron Darling had previously worked for it and had
been disciplined for sexual harassment while he worked there?
What if EASY RIDER and Open Doors, Inc., share the same workplace, have the
same mailing address, have the same phone number and use the same
receptionist and Ron is the President and CEO of both – can Doris sue either or
both?
NOTES:
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ANSWERS TO OPEN DOORS HYPOTHETICAL:
Can Open Doors, Inc. be sued by Doris? Yes, lawsuits are easy to draft and
file. The better question is will it arguably have merit and likelihood of success.
Under what theories?
RCW 49.60.et.seq.
(1) Possibly liable under theory of sexual harassment,
Can it defend itself? Yes.
How? Washington state requires that the employer have 8 or more persons. To
constitute a hostile environment, the frequency and severity of the offensive
conduct must be such as to affect the terms and conditions of employment.
It is not sufficient that the conduct is merely offensive. Washington v. Boeing Co.
105 Wn. App. 1, 10, 19 P.3d 1041 (2000). To determine whether the conduct was
sufficiently pervasive so as to alter the conditions of employment and create an
abusive working environment, we look at the totality of the circumstances. In
addition to its frequency and severity, we look at whether the conduct involved
words alone or also included physical intimidation or humiliation, and whether the
conduct interfered with the employee's work performance. Harris, 510 U.S. at
21; Glasgow, 103 Wn.2d at 406-07;MacDonald v. Korum Ford, 80 Wn. App. 877,
885, 912 P.2d 1052 (1996).
…. The conduct must be both objectively abusive (reasonable person test)
and subjectively perceived as abusive by the victim. Harris, 510 U.S. at 2122.
Does it matter that the “workers” are characterized as independent
contractors?
Probably not. Even if the workers were actually independent contractors our
courts allow independent contractors to bring claims under RCW 49.60. See
Marquis v. City of Spokane; 130 Wn.2d 97 (1996) (a golf pro who was
employed as an independent contractor allowed to bring suit under RCW
49.60.et.seq.)
Does it matter that there are less than 8 or more employees?
Maybe not. Wahl v Dash Point Family Dental Clinic, Inc., 144 Wn.App 34 (Div. 2,
2008)(claim of sexual harassment can be brought based upon a violation of
public policy where employer employed less than 8 employees.)
Would it make any difference if Open Doors, Inc., hired the workers
temporarily as “employees” from EASY RIDER another software company?
Probably not, except that we would have to determine who the employer was and
there is a possibility Doris would file suit against both - EASY RIDER and OPEN
DOORS would have to determine whether to sue each other.
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What if EASY RIDER knew that Ron Darling had previously worked for it
and had been disciplined for sexual harassment while he worked there?
Perhaps, Doris could sue EASY RIDER for transferring her to Open Doors, Inc.
based on a claim of negligence or negligent supervision.
Even if OPEN DOORS did not know about Ron’s issues EASY RIDER would
want contractual commitments that Open Doors would comply with state and
federal laws with respect to its borrowed employee and some warranty that it has
not mistreated workers in the past and would indemnify them for any
mistreatment.
Make sure borrowed employee knows that he/she can report harassment to both
Open Doors, Inc., and to EASY RIDER and Easy Rider should make sure Open
Doors, takes prompt, effective action to investigate and resolve the issue.
TIP: If your company is using temporary employees through either a
temp. service or through another similar business as a borrowed servant, make
sure background checks are performed and have a good contract drawn up to
memorialize obligations and risks.
What if EASY RIDER and Open Doors, Inc., share the same workplace, have
the same mailing address, have the same phone number and use the same
receptionist and Ron is the President and CEO of both – can Doris sue
either or both? Perhaps under a “joint employer” theory.
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HR HYPOTHETICALS

How does an employer effectively deal with a consistent, ‘star’ performer
who makes a significant, costly mistake?
ANSWER: Mistakes are human nature and it depends upon the mistake.
However, if value is still there reprimand, counsel and make sure person
understands mistake – written warning.

Or, the same question when the mistake is one of character – they lied,
fabricated a timecard, etc?
ANSWER: Much more difficult is this a one-time indiscretion or is this
really their character. I think you still need to find out why the person acted
as they did. However, it is difficult for a leopard to change its spots.
Discussion:

Do you have any suggestions for how to stay union free in 2012?
Threats, transfers and terminations don’t work and are illegal!!!
IDEAS TO INCREASE LIKELIHOOD OF REMAINING UNION FREE

Try to understand susceptibility to attack by union: Wages;
benefits; termination; working conditions.

Create comparatively well paying jobs under relatively good
workings conditions;

Can job security be increased for key people? Contract for
term of employment. This creates termination for cause but
that is not that difficult to prove.

Comparable benefit plan;

Job security;

Take surveys of contentment;

Create a sense or right of ownership: Profit sharing;

Suggestion box with bonus given to employees who make a
valuable contribution.

Do you have suggestions for when to use an in house investigator vs. an
outside consultant?
ANSWER: It depends. Generally, the more significant the impact the
more likely an outside investigator may be called into play. The problem is
potential loss of control and loss of work product privilege if the
investigation is being run by outside investigators. If the person at issue is
higher up or a key employee, an outside consultant may actually help from
having relationships damaged-especially if the allegation is false.
However, in situations like harassment the allegation needs investigation
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so in general the tension is (1) loss of control and increased cost versus
(2) control and potentially damaged relations. Also, can inside investigator
remain impartial and does inside person have skills necessary to get the
job done?

Do you have suggestions about how to speak with an employee regarding
odor issues?
ANSWER: First, is it a problem? Second, is the odor chemical/perfume or
is it body odor? If the former think about creating non-perfume and nonperfumed product policy. This will also reduce likelihood of chemical
sensitivity risks. Then ask all employees to stop using perfumes or
products. If body odor try to discern cause i.e. stress, heath (physical and
mental) or simply hygiene. This should be done in a caring, discreet and
sensitive manner. If caused by stressors or health inquire as to how
employer can assist. BE KIND!

How do I begin the accommodation process with an employee?
The first question to ask is whether the employee has started it already by
making a request for an accommodation. It is the employee’s obligation to
make the request. However, if you see someone in need who can benefit
from an accommodation and that will facilitate their doing their job ask
them how you can help. DISCUSS PROS and CONS of affirmatively
assisting.

Are employers liable for employee injuries that occur in home offices?
ANSWER: Probably, as an L&I injury. Instruct employee on filing a claim
if home offices are allowed/authorized by employer. If not, perhaps a
claim on home insurance is proper and determine whether some type of
reasonable accommodation is necessary. DISCUSS PROS and CONS of
home office.

What policies should we include in an employee handbook? (We have
less than 50 employees.)
Disclaimer - handbook is not a contract and does not alter at will
employment; anti-discrimination and anti harassment policy; email &
internet policy and tie in to harassment; workplace standards i.e., no
horseplay; generic confidentiality clause; instructions to file workers
compensation claim if injured.
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
Do you have a suggestion for how to approach social media in the
workplace? Use by individual i.e. facebook; twitter?
ANSWER: If it is a distraction or causing unsafe work I would suggest
banning it except while on breaks.

Can I tell my employee to turn off her/his cell phone during work hours?
ANSWER: Yes, but you may want to determine reason for it being on
such as ill parent; child at home etc., and then determine whether to
impose request. On or off is probably not the problem – talk or no talk
probably is. Obviously, the employee could use it while at lunch or on
break providing it is not disruptive.

We have several employees who are hunters and sometimes leave their
rifles in their cars at work. We are a little nervous about having guns in
such close proximity to our office, and we do ban guns inside our offices.
But, can we also prohibit our employees from having guns in the parking
lots?
ANSWER: Is this a public or private employer? If private yes. If public,
while safety concerns are always valid best not to get into a 2 nd
amendment lawsuit without first consulting legal.

Do you have some helpful tips for companies that are covered by
affirmative action plans to improve good faith recruiting efforts?
Allow sufficient time to develop pool of applicants to apply for jobs even if
that means extending the hiring time. Develop a plan to market to
ethnic/community/VA organizations and consider developing a flyer
customized to these groups. Make sure you use objective criteria when
hiring. Document, document, document.

OFCCP audits are not fun (from what I hear). Do you have any tips to help
feel more confident going through one or steps to take to avoid them
altogether?
As with almost any agency, cooperation is almost always the right choice.
Pull together your affirmative action plans and have them reviewed and be
ready to discuss the results. If you think the audit was not random but
targeted talk with counsel. Regardless, counsel should be brought in and
kept apprised. Also, see prior hypothetical.
The summary above is not exhaustive nor is it intended to create an attorney client relationship,
nor is it to be relied upon. Rather, it is a guide to allow you to research these and other areas to
assess a particular situation.
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