Fair Chance – Washington

 Ban-the Box Legislation Fair Chance – Washington h-3695.1-fair-chance-act New legislation beginning to emerge around the country may initially seem counter-intuitive to CFEs. The new laws prohibits employers from asking an applicant about his/her criminal history on a job application or during initial screening and delays that inquiry until after an applicant is determined to be otherwise qualified for the job. There is something in us CFEs that wants to know all but it is becoming clear that many of those caught up in the criminal system have little chance of becoming contributing citizens once they are  branded as a criminal. On November 3, 2015, President Obama signed a ban-the-box (aka “Fair Chance”) executive order addressed to federal agencies (referring to the box to check on an employment application affirming a criminal conviction). According to the National Employment Law Project there are more than 100 cities and counties around the country that have adopted ban-the box rules. Effective October 27, 2015, the New York City Human Right Law was amended by The Fair Chance Act.1N.Y.C. Administrative Code §8-107(11-a) . Guidance which promises vigorous enforcement was published. 2 http://www.nyc.gov/html/cchr/html/coverage/fair-chance-legalguidance.shtml In December of 2015, Portland, Oregon adopted a Fair Chance Law. Under their version of the law, employers are prohibited from inquiring about or even accessing an applicant’s criminal history from any other source before making a “conditional offer of employment.” This is defined as being any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of the offer. There currently is a Ban-the-Box bill...

WA Consumer Protection Law applies extraterritorially

SANDRA C. THORNELL, on behalf of herself and an others similarly situated, Plaintiff, v  SEATTLE SERVICE BUREAU, INC. d/b/a) NATIONAL SERVICE BUREAU, INC.,  and STATE FARM MUTUAL  AUTOMOBILE INSURANCE COMPANY,) Defendants. copy of decision: 151210 Thornell v Seattle Service Bureau “This case involves two certified questions from the United States District Court for the Western District of Washington. First, we are asked to determine whether the Washington Consumer Protection Act (CPA), chapter 19.86 RCW allows a cause of action for a plaintiff residing outside Washington to sue a Washington corporate defendant for allegedly deceptive acts. Second, we are asked to determine whether the CPA supports a cause of action for an out-of-state plaintiff to sue an out-of-state defendant for the allegedly deceptive acts of its instate agent. The United States District Court noted an absence of Washington case law providing guidance on these issues. We answer both certified questions in the affirmative.” “We first focus on the definition of “commerce” – “any commerce directly or indirectly affecting the people of the state of Washington.” RCW 19.86.010(2) (emphasis added). The definition of “commerce” does not describe who may sue under the CPA but rather the scope of the acts and practices the CPA is designed to prevent. Defendants argue that the definition of “commerce” should not be  understood to allow a claim for an unfair or deceptive practice on behalf of people not “of the state of Washington.” Such a reading, however, would require us to give no effect to the words “indirectly affecting.” In order to give effect to the phrase “indirectly affecting,” claims are not limited to those only having...

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...

Washington State False Claims Act

Washington State False Claims Act Mirrors the Federal Act But Limited to Medicaid Fraud The federal False Claims Act has had a long history of government service. Not only does it reward whistleblowers (better known as “sentinels”), it also protects them from retaliation. Past attempts to pass a state version in Washington met with stiff opposition. Even the Attorney General opposed it, arguing that there was plenty of whistleblowing going on and there was no need to encourage more. On March 30, 2012, Washington finally joined the 29 other states that have False Claims Act (FCA) by passing the Medicaid Fraud False Claims Act (MFFCA). Like 10 of the 30 states that have a FCA, it is limited only to Medicaid. Washington’s MFFCLA has been reviewed by the U.S. Office of Inspector General (OIG) and has been approved for a 10 percentage-point increase in Washington State’s share of federal Medicaid FCA cases. History of Qui Tam The traditional name for cases which attempt to recover money defrauded from the government (i.e. the king) is “Qui Tam” litigation. Qui Tam is pronounced “kee tam” or “kway tam”) and is an abbreviation from the Latin “qui tam pro domino rege quam pro sic ipso in hoc parte sequitur” meaning “who as well for the king as for himself sues in this matter”. Qui tam legal actions can be traced back as far as 13th Century England where they were used by private citizens to gain access to the king’s court. The U.S. legal system, derived from the British system, allowed qui tam actions since the nation’s founding in 1776. They were...

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...