Regulatory Compliance: It’s the Little Things…

At some point, nearly every regulatory client has asked me, in a tone of incredulity, why “such a little thing” mattered to a regulating agency. Often the client also asks why a government regulator focuses on the “little guy” when big business appears to skate through regulatory compliance with no issues. The second answer is far simpler but answering it first leads us to part of the answer for the first question. How Big Businesses Treat Regulatory Compliance Big businesses appear to skate through regulatory matters without issues, in a sense, because they are big. Being big, they hire regulatory compliance experts to eliminate issues and quickly correct any problems that do come up. They have support personnel to do the actual work. The proactively address most problems before they get to the point of administrative sanctions or lawsuits. This is not to say big businesses don’t have regulatory problems: many do. Some businesses simply don’t bother to comply and have problems as a result. But most big businesses place an emphasis on regulatory compliance. They recognize that compliance failure can be a business-ending proposition. They place a priority on regulatory compliance. Simply making regulatory errors can put a company under heightened scrutiny, causing more frequent examinations and other disruptive and costly consequences. A series of errors, or repeated errors, may also raise questions that lead to more serious investigations or prosecutions. Each situation drags at a company’s bottom line and pulls focus from the company’s mission and vision. As a result, most big businesses solve their regulatory issues quickly. They hire staff to address compliance. They include it...

Commission’s Back Pay Award Exceeded Its Authority

Decision: 141103 – City of Medina v Skinner 711571 On November 3, the Court of Appeals, Division I held that the Civil Service Commission’s Back Pay Award Exceeded Its Authority when it awarded back pay and benefits after it had modifed Officer Skinner’s discipline. Lieutenant Roger Skinner was terminated from his position with the City of Medina Police Department for a violation of department standards. Skinner appealed his dismissal to the City’s Civil Service Commission. The Commission found that the City acted in good faith and with just cause when it disciplined Skinner. It also found that the City did not have cause to terminate Skinner. The Commission ordered the City to set aside Skinner’s discharge. Instead of discharge, the Commission ordered Skinner to be suspended without pay and benefits for sixty days.  It also ordered Skinner to be demoted to patrol officer effective the last day of his suspension and ordered the City to pay Skinner back pay and benefits as a patrol officer from the end of the suspension until his health precluded his return to work.  The Commission retained jurisdiction over the matter until resolution of what it called the “remedy phase.” It said that it would set a hearing as to implementation of its order if the parties could not resolve it through stipulation. The City moved for partial reconsideration, challenging the Commission’s award of back pay and benefits.  The Commission denied the motion stating that issues regarding the offset of Skinner’s wages or earnings after his suspension would be addressed during the remedy phase. The City applied for a statutory writ of review under Chapter 7.16 RCW, arguing...

Redactions of Employees Name Not Proper

Under Washington Public Records Act redactions must violate right to privacy Identifying employee not highly offensive Case Opinion: 140826-West-v-Port-of–Olympia West v. Port of Olympia, 2014 Wash. App. LEXIS 2097 (Wash. Ct. App. Aug. 26, 2014) Arthur West appeals the trial court’s dismissal of his Public Records Act (PRA) claim against the Port of Olympia. West’s claim is based on the Port’s redactions of a Port employee’s name, job title, job duties, and other identifying details from an investigative report relating to unsubstantiated allegations of governmental misconduct made against that employee. The Port made the redactions under the exemption in former RCW 42.56.230(2) for personal information that would violate an employee’s right to privacy. We assume without deciding that the employee’s identity constituted personal information and that the employee had a privacy right in his or her identity in connection with the allegations. However, we hold that the Port’s redactions violated the PRA because disclosure of the identifying information would not be highly offensive to a reasonable person and therefore would not violate the employee’s right to privacy. Accordingly, we reverse the trial court’s dismissal of West’s PRA claim. In addition, we award attorney fees to West on appeal and remand to the trial court to award West his attorney fees and costs below and to determine whether a statutory penalty is proper. Share...

Debt Purchasers Need Collection License

Gray v Suttell & Associates (Supreme Court WA, Aug 28, 2014)   Copy of the Opinion: 140828 WSC Gray v Suttell Over a thousand collection lawsuits were filed in the name of the purchaser of the debt. The Supreme Court held that was unlawful if the buyer did not have a debt collection license from Washington State. The court included the following industry analysis in its opinion. Since the enactment of the WCAA, the debt collection industry has grown and changed to keep up with the increasing amount of consumer delinquent debt. TheFederal Trade Commission noted that ‘”[t]he most significant change in the debt collection business in recent years has been the advent and growth of debt buying.”‘FED. TRADE COMM’N, THE STRUCTURE AND PRACTICES OF THE DEBT BUYING INDUSTRY (2013) (alteration in original) (quoting FED. TRADE COMM’N, COLLECTING CONSUMER DEBTS: THE CHALLENGE OF CHANGE 13 n.1 (2009)). Although a relatively new industry, by 2007, the debt collection industry employed over 200,000 people and reported annual revenue of $58 billion from consumer collections. RICK JURGENS & ROBERT J. HOBBS, NAT’L CONSUMER LAW CTR., THE DEBT MACHINE, HOW THE COLLECTION INDUSTRY HOUNDS CONSUMERS AND OVERWHELMS COURTS 5 (201 0). A “debt buyer” is an entity or individual that purchases delinquent or charged-off debts from a creditor, usually for a fraction of the face value of the debt, and then takes some action to collect on those claims. H.B. REP. on SUBSTITUTE H.B. 1822, at 2, 63d Leg., Reg. Sess. (Wash. 2013). There is growing concern that collection practices employed by debt buyers are harmful to consumers. A legislative staff summary of public...

L&I Disputes – WA

Washington Labor and Industries  Disputes Appeal of Washington Labor and Industry Assessment A major cost for Washington employers is the hourly charge imposed by Washington State’s Department of Labor and Industry (Workers’ Compensation). For manufacturing and construction businesses, the rates exceed $1 per hour. The calculation of L & I is a complex process requiring expertise. Often Washington employers make errors on their L & I forms – sometimes paying excess fees and sometimes not paying all that is due. The Department of Labor and Industry regularly audits Washington employers. Surprisingly, their audits can also contain errors. Also, if there is a question of interpretation or an alternative calculation possible, Washington L & I tends to take the position that results in the highest cost and penalties to the employer. What should you do if you are facing an audit by Washington State’s Department of Labor and Industry? First, make sure you are working with a professional who is knowledgeable in the L & I process. Hire an experienced accountant or consultant. It is preferable that the consultant or accountant has the experience of previously working for Washington’s L & I agency. It is important you do not delay. You have only 30 days after you receive the Notice and Order of Assessment to ask for reconsideration. Hire the professional before the field audit is conducted by Labor and Industry. Even if you have failed to file the proper reports with the agency, a qualified consultant can save money far in excess of the cost of obtaining the assistance. What if you need to appeal a Notice and Order...

Voluntary Reduction in Force

Loophole Created in Unemployment Law for Big Business to Save State Money Verizon Nw., Inc. v. Employment Sec. Dep’t, 164 Wn.2d 909, 194 P.3d 255, 2008 Wash. LEXIS 1040, 28 I.E.R. Cas. (BNA) 516, Unemployment Ins. Rep. (CCH) P9044 (Wash. 2008), (Wash. Oct 23, 2008) (NO. 81024-9) If a small business downsizes and lays-off employees, it generally has no choice but to terminate specified employees. Big business can tell employees that they are within the class of employees being considered for lay-off and ask for voluntary participation in a force reduction program. The employment security commissioner has provide rules governing whether these “voluntary” participants qualify for unemployment benefits or have been separated for a disqualifying reason: You will not be considered to have been separated from employment for a disqualifying reason when: (a) Your employer takes the first action in the separation process by announcing in writing to its employees that: (i) The employer plans to reduce its work force through a layoff or reduction in force, and (ii) That employees can offer to be among those included in the layoff or reduction in force; (b) You offer to be one of the employees included in the layoff or reduction in force; and (c) Your employer takes the final action in the separation process by accepting your offer to be one of the employees included in the layoff or reduction in force, thereby ending your employment relationship. WAC 192-150-100(1). In this case, Verizon argued that it did not take the final step because it gave the employees the right to rescind their acceptance of the force reduction program. No...