Ready or not, the holidays are right around the corner! In anticipation of the upcoming holiday season, UEA often receives calls regarding calculation of overtime when pay periods include holiday pay. There is no federal or state law (in Oregon or Washington) that requires employers to count non-work hours (holidays, vacation, sick, PTO, bereavement, etc.) as hours worked when calculating overtime pay for non-exempt (hourly) employees. Overtime must be paid during a holiday week only if the employee actually worked more than 40 hours in the same work week, unless the employer's policy or union contract provides otherwise. However, exempt employees, those generally classified as executives, managers and professional staff, must be paid for any week in which work is performed, regardless of the number of hours or days worked. 

Please contact us if you have questions about calculating overtime or need assistance drafting or updating a policy!

EEOC Opens the Door to Protections for Transgender Individuals      

In what has been described as a ground-breaking case, the Equal Employment Opportunity Commission (EEOC) determined that transgender individuals fall under the protection of Title VII; an issue that was previously unsettled. Although both Oregon and Washington state laws prohibit discrimination on the basis of a person's gender identity or expression, transgender orientation had not been clearly protected by federal law until now.

The EEOC case involved an individual that presented for a job interview as a man. While a background check was being conducted, the applicant notified the employer he was in the process of transitioning from male to female. Five days later, the applicant was told the position was no longer available; another person was hired for the position soon thereafter. The applicant filed a charge with the EEOC. The EEOC, in ruling for the applicant, likened discrimination based on sexual (or gender) identity to religion, finding that an employee who converted from Christianity to Judaism is clearly protected from discrimination "because of religion." Likewise, an individual who changed their sexual identity should be protected when discriminated against "based on sex," which, like religion, is also prohibited by Title VII.

What does this mean for employers? Employers should revise applicable policies and practices including, but not limited to:

• Non-discrimination, harassment, and EEO policies;
• Pre-employment screening and background check policies;
• Employee codes of conduct;
• Dress codes and other appearance standards;
• Policies and procedures for changing identification cards, personnel records, name changes; and
• Policies governing the use of restrooms and other gender-specific facilities.

Note that while not all transgender individuals elect to have sex-reassignment surgery, employers should apply their policies and procedures equally to all transgender individuals, regardless of surgical status.

Employers should adopt a plan for responding to applicants or employees who approach them regarding their intention to undergo a gender transition. Take the time now to develop guidelines to accommodate the needs of transitioning employees. Most importantly, employers should take all steps necessary, including training managers and employees, to prevent harassment, discrimination or retaliation against transgender employees and applicants.

As of September 2012, employers must provide paid sick and "safe" leave for all employees that work more than 240 hours a year in the city of Seattle. Sick time may be used for personal illness or medical reasons or to care for an ill family member. "Safe" leave relates primarily to domestic violence and stalking, allowing employees to take paid leave to participate in legal proceedings or obtain appropriate aid.

When first enacted, the law applied to employers with 5 full-time equivalent (FTE) employees. The Seattle Office of Civil Rights (the agency responsible for issuing guidance and enforcing the new leave ordinance), recently confirmed that employers with more than 4 FTEs will fall under the scope of the new rule. For example, an employer with a staff of 4 full-time employees and 1 half-time employee (a total of 4.5 FTEs), will need to comply with the new rule.

The new law requires established companies with more than 4, but less than 50 employees (regardless of location), provide at least five days a year of paid leave. Companies with 50 to 249 employees must provide at least seven days, and companies with 250 or more employees must provide at least nine days. The requirement can be waived by a collective bargaining agreement. Employees start earning leave after six months on the job. Businesses less than two years old are exempt from the requirement.