Washington Supreme Court Rules that Trial Court Judges Must Thoroughly Investigate Allegations of Juror Misconduct Based on Racial Bias

The Washington Supreme Court tasked trial court judges with being aware of “implicit, institutional and unconscious biases” and to conduct a “searching inquiry” into allegations of racial bias and juror misconduct tainting a criminal defendant’s right to a fair trial.  In the case State v. Berhe, the sole African-American serving on a jury for an African-American defendant raised issues of racial bias in jury deliberations post-verdict.  The trial court judge, however, did not conduct an evidentiary hearing on the allegations before denying defendant’s motion for a new trial.  The trial judge reasoned that “that there is insufficient evidence to conclude that juror misconduct occurred with respect to racism-implicit or explicit”.  The Washington Supreme Court held that this was an abuse of discretion and vacated the order denying the motion for a new trial. 

Justice Mary Yu, the author of the unanimous Washington Supreme Court decision, wrote that “as our understanding and recognition of implicit bias evolves, our procedures for addressing it must evolve as well.”  Similar to the recently adopted GR 37 “objective observer” standard applied to peremptory challenges in jury selection, the “ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington state) could view race as a factor in the verdict.”  This puts a clear duty on trial court judges to identify implicit bias and to thoroughly investigate allegations of racial bias.  As Ann Murphy, a Gonzaga University law professor pointed out, hopefully this ruling will result in training of trial court judges to identify implicit bias. 

MBE Law Group assisted with amicus briefing in State v. Berhe submitted on behalf of ACLU of Washington Foundation, ACLU Foundation, South Asian Bar Association and Loren Miller Bar Association. 

Our clients

At MBE Law Group, we are proud to assist a group of talented and courageous individuals who fight for their rights, uplift their communities, and care deeply about a fair and just world. 

Here are just some of our clients who are making a difference: 

Samiha Carroll just published a delightful children’s book called My Hair that celebrates the beauty of all types of hair. 

John Jung, an enforcement officer with the WA Liquor & Cannabis Board, bravely testified before a Washington Senate committee regarding the need for more training and consistent enforcement of laws by LCB officers to protect public safety and small business owners. (TVW video at 25:00-34:16)

Sharon Blake is sharing her story of facing harassment while working as a paraeducator in public schools and increasing awareness on the challenges educators of color face in the public school system. 

Thank you to all of our clients.  We are honored to be a part of your story.      

Supreme Court Deals Devastating Blow to Employee Rights

On Monday, May 21, 2018, the Supreme Court of the United States sealed the fate of many low income hourly employees by ruling that companies can require employees to preemptively sign away their rights to bring class action claims against their employers.  The decision in Epic Systems v. Lewis will make it particularly difficult for employees to band together as victims of wage theft, effectively precluding many of those employees from meaningful recovery. SCOTUS Green-Lights Class Action Waivers.

The decision has already had a dramatic impact on pending class action litigation.  Within a matter of days of the ruling, Chipotle moved to knock approximately 3,000 employees out of an approximate 10,000 employee wage and hour class action currently pending against the fast food conglomerate.  Chipotle claims that the 3,000 employees in question have preemptively waived their rights to bring class action claims against the company because those employees signed class action waivers before they began working.  In that case, Chipotle has been accused of systemically forcing hourly workers to work off the clock and uncompensated.  Chipotle Wage and Hour Violations.

If Chipotle is successful in moving the Court to follow the Epic decision, the 3,000 employees in question will be forced to individually pursue claims in arbitration.  Arbitration is a less than ideal forum for the adjudication of wage and hour claims where an individual claim in controversy can be quite small.  Prohibitive cost coupled with the inability to find an attorney willing to dedicate the time and attention to each of these claims will likely mean that many employees will suffer illegal wage loss for which there is no meaningful recovery.  Companies, like Chipotle, will in turn benefit from free labor and lack of consequence. 

Uber Drops Arbitration Requirement for Sexual Harassment and Assault Victims

This article discusses Uber’s response to growing public disapproval of mandatory arbitration requirements, especially in cases involving sexual assault or harassment.  On May 15, 2018, Uber announced that it would immediately end its practice of forcing victims of sexual assault and harassment (employees and customers) to submit their claims to binding arbitration.  Forced arbitration requires claims to be decided behind closed doors rather than in open court and prevents individual claimants from joining in class actions. 

Lyft similarly dropped its forced arbitration requirement for sexual harassment claims.  And in December 2017, Microsoft eliminated its forced arbitration requirement for sexual harassment claims.  Microsoft also publicly supported a proposed federal law banning confidentiality requirements for sexual harassment victims.  These voluntary moves are limited.  For one, Uber’s mandatory arbitration clause still applies in other disputes, like discrimination or wage claims. 

Voluntary moves like this might become more common as legislators consider limiting or outright banning mandatory arbitration clauses.  New York, for example, recently passed a law that bans mandatory arbitration clauses in sexual harassment settlements.  Washington is the first state to pass a law voiding employment agreements that require arbitration or otherwise preclude an employee from pursuing a harassment or discrimination claim in open court.  SB 6313 was signed into law on March 21, 2018 and will go into effect on June 7, 2018.  

MBE Law Group

Lisa Burke (formerly of Sipherd Burke Law) , David Martin and Margaret Enslow (formerly of Enslow Martin) are joining forces to start MBE Law Group in 2018. We look forward to helping you out with your Employment and Commercial/Business matters! 

Family Medical Leave Damages

Many clients call Sipherd Burke Law PLLC and ask about the Family Medical Leave Act.  Specifically, clients want to understand what damages are available in a Family Medical Leave Act case.  Many clients are surprised to find how comprehensive the statute is and how many types of damage it covers.  If you are denied Family Medical Leave or retaliated against for taking Family Medical Leave under the Family Medical Leave Act, you may be entitled to the following damages:

·       Lost Back Pay – wages, salary, and damages you lost as a result of the denial, interference, or termination.

·       Lost Front Pay – wages, salary, and damages you will lose in the future as a result of the denial, interference, or termination.  Front pay can be offset by your mitigation efforts (i.e. a new job).

·       Liquidated Damages – damages awarded unless your employer can show that it acted in good faith (i.e. it made a simple mistake).  Liquidated damages are equal to lost back and front pay.

·       Attorneys’ Fees and Costs – a court can award your attorney all of your attorneys’ fees and costs if you prevail on your Family Medical Leave claims.  Your employer will be responsible for paying these fees and costs. 

Washington State also has a state version of Family Medical Leave, which includes Military Family Leave, Pregnancy Disability Leave, Domestic Violence Leave, and Family Leave Insurance (currently suspended due to budget constraints).

For more information on Family Medical Leave, please visit https://www.dol.gov/whd/fmla/

If you have specific questions or concerns about your Family Medical Leave rights or your employer’s obligations, please contact an attorney at Sipherd Burke Law PLLC.

Washington Approves Long Awaited Paid Family and Medical Leave

The Washington State Legislature passed Senate Bill 5975, providing for paid family and medical leave effective December 31, 2019.  Some key provisions of the new bill include:

• Once the law goes into effect, you will be able to take up to 12 weeks of paid leave for family care-giving and 12 weeks of paid medical leave, with a combined annual cap of 16 weeks of paid leave. For those with pregnancy-related health complications, the cap is extended to 18 weeks. 
• A key feature is portability; to be eligible, you have to have worked a threshold number of hours (820 hours in the qualifying period, which in most cases is the first 4 of the last 5 quarters), but the hours can be with different employers. Moreover, even self-employed individuals and independent contractors can elect coverage. 
• The law also defines “family” broadly to include children, grandchildren, grandparents, parents, parents-in-law, siblings, and spouses – in recognition of the reality of family caregiving. 
• The benefit is a progressive benefit; in other words, those who earn less will receive a larger percentage of their wage, while high-earning workers will receive a smaller percentage of their wage. 
• The program will be funded by contributions from both employers and employees. Someone working full time at $13.50 an hour and making about $28,000 a year will pay $1.36 a week and the employer will pay $.80 week. Employers with 50 or fewer employees are exempt from paying the employer share of the premium. 
• Employees of employers with 50 or more employees are entitled to be restored to the same or equivalent job, as with the FMLA. 

The text of the bill can be found here:http://lawfilesext.leg.wa.gov/biennium/201718/Pdf/Bills/Senate%20Passed%20Legislature/5975-S.PL.pdf

Additional information, if desired, can be found on the Seattle Times webpage:http://www.seattletimes.com/seattle-news/politics/washington-legislature-passes-paid-family-leave-measure/

When Your Gender and Race Dictate Your Employment Fate

A former track coach is suing the University of Texas, alleging race and gender discrimination.  Coach Bev Kearney was forced to resign after university officials learned that she had a romantic relationship with one of her athletes more than a decade earlier.  Kearney’s lawsuit alleges that she, a black female employee, was treated worse than her Caucasian male peers – one of whom not only had a relationship with one of his athletes but who also received continued employment and promotions following the disclosure of that relationship. 

Despite being one of the top track trainers in the country at the time, Kearney was pushed out while other alleged transgressors were retained and promoted.  The Texas Supreme Court recently ruled that Kearney’s case could continue on.  For more information, please read the article:

http://www.seattletimes.com/sports/appeals-court-refuses-to-block-texas-track-coachs-lawsuit/

If you have been the victim of disparate treatment based on race or gender, you have rights.  It is important to contact an employment attorney at your earliest convenience as many of your claims may contain statutes of limitations. 

Port of Seattle Illegally Gave Out $4.7M in Raises

A state audit recently revealed that the Port of Seattle illegally gave out nearly $5 million in raises to hundreds of employees about a year ago.  While it appears as though safeguards will be put in place to avoid this error in the future, it also appears as though the state will launch a legal review to see whether the improperly paid money can be recovered from the employees. 

While it remains to be seen whether the state can find a way to recover its losses, the legal obstacles to recovery appear high.  Employees affected by any retroactive attempts at wage recovery are encouraged to contact counsel and review the provisions of WAC 296-126-030, excerpted below:

WAC 296-126-030

Adjustments for overpayments.

(1) An overpayment occurs when an employer pays an employee for:

    (a) More than the agreed-upon wage rate; or

    (b) More than the hours actually worked.

(2) Recouping the overpayment may reduce the employee's gross wages below the state minimum wage.

(3) An employer cannot recover an overpayment when the disputed amount concerns the quality of work.

(4) An employer can recover an overpayment from an employee's paycheck provided the overpayment was infrequent and inadvertent. Infrequent means rarely, not occurring regularly, or not showing a pattern. Inadvertent means an error that was accidental, unintentional, or not deliberately done. The burden of proving the inadvertent error rests with the employer who made the error. The employer has ninety days from the initial overpayment to detect and implement a plan with the employee to collect the overpayment. If the overpayment is not detected within the ninety-day period, the employer cannot adjust an employee's current or future wages to recoup the overpayment. Recouping of overpayments is limited to the ninety-day detection period.

(5) In the case of employees covered by an unexpired collective bargaining agreement that expires on or after January 1, 2006, in which overpayments are included in the terms of the collective bargaining agreement, the effective date of this rule shall be the later of:

   (a) The first day following expiration of the collective bargaining agreement; or

   (b) The effective date of the revised collective bargaining agreement.

Helpful information:

The following are examples of when overpayments may or may not be allowed:

Example 1. Allowed. Overpayment of agreed wage rate: An employee was paid an agreed rate of ten dollars per hour but received a paycheck at the rate of eleven dollars per hour. The employer provided documentation of the overpayment to the affected employee and adjusted the employee's next paycheck for the amount overpaid in the previous pay period.

Example 2. Allowed. Overpayment for hours worked: An employee worked seventy-two hours in the pay period, but the employee was paid for eighty hours for that period. The employer provided documentation of the overpayment to the affected employee and adjusted the employee's next paycheck for the eight hours overpaid in the previous pay period.

Example 3. Not allowed. Overpayment not detected within ninety days of first occurrence: An employer agreed to pay an employee ten dollars per hour, but when the first check was received, the amount paid was paid at eleven dollars per hour. The employee may or may not have brought it to the attention of the employer. Six months later the employer detected the overpayments and adjusted the employee's wages in the next paycheck for the entire amount of the overpayment. This is not an allowable adjustment because it was not detected within ninety days from the first occurrence.

(6) The employer must provide advance written notice to the employee before any adjustment is made. The notice must include the terms under which the overpayment will be recouped. For example: One adjustment or a series of adjustments.

(7) The employer must provide documentation of the overpayment to the affected employee or employees.

(8) The employer must identify and record all wage adjustments openly and clearly in employee payroll records.

(9) Regardless of the provisions of this section, if appropriate, employers retain the right of private legal action to recover an overpayment from an employee.

(10) This regulation does not apply to public employers. See chapter 49.48 RCW, Wages—Payment—Collection.

[Statutory Authority: Chapter 49.12 RCW. WSR 10-04-092, § 296-126-030, filed 2/2/10, effective 3/15/10. Statutory Authority: Chapters 49.12, 49.46, 49.48, 49.52 RCW, and RCW 43.22.270. WSR 05-24-019, § 296-126-030, filed 11/29/05, effective 1/1/06.]

Layoffs in the Seattle Area

A handful of major Seattle employers have recently laid off employees.  Two weeks ago, Microsoft let about 520 people go.  The layoffs are the latest round of the 2,850 layoffs in total that are expected.  

Microsoft's supplier Lionbridge also recently laid off all of its unionized workers, two months after completing its first contract with a group of temp workers.  The reason given was reduced demand, and Lionbridge said the union had nothing to do with it.  Regardless, employees should have the rights the union fought for - temporary worker classification, pay raises, severance pay, increased time off and paid holidays.  

If you or someone you know has been mistreated at work, call us today and put us to work for you!

Obama Extends Overtime Pay to Millions

Are you salaried employee who receives less than $47,476 a year?  If so, you might be positively impacted by the Obama Administration's latest Labor Department regulation.

The Obama administration increased the annual salary threshold that determines who qualifies for overtime pay when they log more than 40 hours a week to $47,476 a year, up from $23,660 a year.  This means, if you earn less than $46,476/year, you are now eligible for overtime pay.  This is estimated to impact 4.6 million workers in the United States and is a win for employment attorneys fighting for employment rights, as well as wage and hour rights.  The regulation goes into effect Dec 1, 2016.

If you would like more information on your rights, call us today.  We are here for you!

Seattle Passes Law Allowing Uber Drivers to Unionize

Seattle City Council voted 8-0 to pass legislation that gives Uber, Lyft and other "for-hire" drivers the right to unionize - the first law of its kind in the nation.  This law would allow drivers the ability to negotiate pay rates and employment conditions with Uber and other companies directly.  Currently, these drivers are considered independent contractors and are therefore not protected by labor laws.  This exempts them from Seattle's new $15 minimum wage law, union rights under federal law, reimbursement for expenses and non-discrimination requirements.

This is just one more example of Seattle taking the lead in the nation on behalf of employees.  If you or someone you know, has been wronged at work whether or not in a union, please call us today!

Seattle to Potentially Set Another Employment Record

Seattle was the first major city in the United States to set a minimum wage on a path to $15 an hour.  Now, Seattle may be the first to assist Uber drivers in unionizing.  Councilmember Mike O'Brien is fighting to give drivers the ability to bargain collectively despite the fact Uber regards drivers as independent contractors.  His proposal would require taxi companies, for-hire vehicle companies and app-based ride-dispatch combines (like Uber and Lyft) to negotiate with drivers on issues such as payment and working conditions.

While it remains to be seen what will happen, it is a good sign for employee rights and benefits.  If you have ever been treated unfairly at work, please contact us now to put us to work for you!

Study Finds Workers Unaware of Rights→

As Seattle continues to grow, unfortunately workers' benefits do not.  In a recent study conducted by the ROC of Seattle, of 524 workers in the Seattle area, most were unaware of their basic rights, such as Seattle's paid sick leave law, and not properly paid overtime.  Furthermore, a little less than half are paid below the poverty level, ~20% have worked after clocking out, and many have had management take a cut of their tips.

To add insult to injury, men earn $5 more on average an hour than women of color, which is larger than the national average of $4. The ROC is trying to crack down on wage theft by passing a bill that if found guilty would require employers to pay the victims three times the amount of stolen wages. 

If you or someone you know has been mistreated at work or unfairly paid, please contact us today.  We are here to help you!

Woman Discriminated Against for Pregnancy Wins Over $300K

A Colorado woman recently won $306,000 after being discriminated against for being pregnant.  She was the former director of the Montrose County Internal Services division.  After speaking with her manager about transitioning to part-time work during her pregnancy, she was fired.  To make matters worse, weeks later she miscarried. 

Pregnancy discrimination is a real issue and can have monetary and emotional damages.  If you or anyone you know has been discriminated against, please contact us today.  We are here to help.

Sipherd Burke Law PLLC hosts employee rights event

Brandon Sipherd and Lisa Burke, of Sipherd Burke Law PLLC, will host an employee rights event to educate and empower community members to better understand their employment rights.

On May 9, 2015, Sipherd Burke Law PLLC will host Know Your Rights, a community outreach event aimed at educating and assisting under-served employees. Participants will learn to navigate issues related to proper payment of wages, discrimination, harassment, retaliation, and wrongful termination. They will also have the opportunity to learn about specific employment statutes such as the Family Medical Leave Act, the Pregnancy Discrimination Act, and the Washington Law Against Discrimination.

Attendees will have a chance to meet with employment attorneys to discuss specific concerns related to their employment. In addition, business professionals will be on hand to assist with résumé and interview skills.

The event will be held on May 9, 2015 at the Kent Senior Center from 5:00 pm to 7:00 pm.The Center is located at 600 E. Smith Street in Kent, Washington. 

Know Your Rights

The Supreme Court Saves the Pregnancy Discrimination Act

Today the Supreme Court made a positive affirmation of the importance of the Pregnancy Discrimination Act. Peggy Young claimed that her employer discriminated against her at work when it denied her a reasonable accommodation for her pregnancy while other employees with similar physical limitations were granted accommodations. Ms. Young worked as a driver for UPS. When—after several miscarriages—Ms. Young finally became pregnant, her doctor instructed her to not lift more than a certain amount of weight at work. UPS, however, decided not to grant Ms. Young her medically mandated restriction and informed her that she could only continue working if she was able to lift the amount required in her job description. Ms. Young protested and requested a light-duty assignment; UPS denied her request. Consequently, Ms. Young was forced to take unpaid leave and, as a result, lost her health insurance. Ultimately, UPS allowed her to return only after she gave birth.

As a result of UPS’s decision to deny her a reasonable accommodation, Ms. Young sued, claiming that UPS had violated the Pregnancy Discrimination Act. A lower court, however, dismissed her claims. In the US Supreme Court’s ruling in Young v. UPS, the Court ruled that Ms. Young should have the opportunity to show that UPS illegally discriminated against her because of her pregnancy when it refused to provide her with an accommodation that was made available to her co-workers. The Court did not state that UPS’s conduct violated the Pregnancy Discrimination Act, but it did clarify the law’s language. Despite the Court’s ruling, there are many issues that remain to be decide with regard to pregnancy discrimination.

Please contact us today if you or someone you know has been subject to discrimination.

Booze and Pics for Perks: Seattle Tunnel Project→

Almost anyone who lives in the Seattle area is aware of the Seattle tunnel project.  Recently, allegations of unprofessional and unsafe behaviors, and harassment on the project were reported to the WA State Dept of Transportation by a Seattle Tunnel Project (private contractor: STP) employee.  The allegations assert that the supervisors of a carpentry crew were hostile, discriminatory, and featured a quid pro quo system of needing to bring alcohol to the foreman in exchange for perks (better shifts, overtime, etc).  Furthermore, many employees would show up to work intoxicated, furthering the unsafe environment for the employees and the public.

Additionally, this employee reported episodes of sexual harassment, where a woman's supervisor solicited provocative photos via text messaging.  King 5 investigated the situation and found many people who corroborated the allegations.  Despite all of this, STP continues to deny any wrongdoing.

Unfortunately, the employee who brought the concern has since quit the company.  No one should ever feel that quitting is their only option.  If you feel you have worked or are working in unprofessional and unsafe environment, please contact us today!

Disabled REI Employee Fired

James Osborne worked at REI for 18 years prior to being fired abruptly three months after he sued the company over a defective bike that left him paralyzed.  He was among several other Novara bicycle riders to sue over the defect and REI recalled 260 of the bicycles.  He fought hard through therapy to come back to work; however, his employer, as argued by his attorneys, violated laws protecting his rights as a disabled worker.

If you feel your rights have been violated, please contact us today.

SeattlePi

The Business of Booze

Nationwide, small distilleries are surging, with Washington State having more than any other state in the country. The American Distilling Institute (ADI) projects that a fifth of all the micro distilleries in America are here in Seattle.  So what does that mean for Seattle?  Well apart from more booze, it means more jobs! 

seattletimes