Employers are well aware of the explosion of statutes and case law providing protection to whistleblowers. Typically, the alleged bad actor is the employer who disciplines or terminates an employee for engaging in protected activity. In the recent case of Ozark Constructors, LLC, the National Labor Relations Board addressed the issue of whether a union violated the National Labor Relations Act by disciplining a union member for blowing the whistle on a fellow union member. In the Ozark Constructors case, a union member reported another member's safety violation to management pursuant to the Company's safety rules which were expressly incorporated into the collective bargaining agreement. The safety scofflaw filed a complaint with Local 513 of the Operating Engineers, and claimed that the reporting union member should be fined for squealing on him. Remarkably, the Union agreed and assessed a fine of $2,500 against the whistleblower. Read the full article.

General contractors have a non-delegable duty to employees on a jobsite to ensure compliance with health and safety regulations set forth in the Washington Industrial Safety and Health Act ("WISHA"). If the workplace is unsafe, subcontractor employees can sue the general contractor. Not only does the general contractor have a non-delegable duty, a project owner also may have such a duty, but that arises only when the owner retains the "right to control" as to the manner in which the independent contractors and its employees perform work. In Neil v. NWCC Investments V, LLC (March 15, 2010) the Washington Appellate Court addressed a claim that the project owner had a non-delegable duty to an independent contractor's employees. Read the full article.

In a recent decision, Smith v. Employment Security Department, 2010 WL 774963 (March 9, 2010), a Washington Appellate Court barred an ex-employee from receiving unemployment benefits because he had engaged in disqualifying misconduct. Generally, a terminated employee may recover unemployment compensation unless he or she engaged in disqualifying misconduct. The burden is on the company, not on the ex-employee, to establish disqualifying misconduct. In Smith, the employee was a senior program manager for the county and had secretly recorded conversations with coworkers and the public for over three years. He claimed that he did that because he feared retaliatory harassment by his supervisors after he allegedly refused to sign a false affidavit for the county and because he had supported a coworker's sexual harassment claim. He also claimed that he recorded conversations because his supervisor had physically threatened him. He used an unsophisticated recording device which he placed in his pocket resulting in the recording random conversations – in the office, in company owned vehicles, in local businesses, and in private citizens' homes. Read the full article.

In Valdez-Zontek v. Eastmont School District, 154 Wn. App. 147 (2010), a Washington appellate court affirmed a former special program director's defamation claim against her ex-employer, the local school district. In Valdez-Zontek, some in the school district believed that the special program director had submitted false time sheets and that those time sheets were approved by the superintendent because they were having a sexual affair. These affair and time sheet allegations were discussed at school board meetings and rumors of the affair circulated throughout the school district and local community. There were board discussions that the superintendent would be forced to resign because of the affair. The school district determined that the time sheet incident was a misuse of public funds and, without asking for any explanation, referred the matter to the Washington State Auditor's office. The auditor found no misuse of public funds based on the school district's past practices of allowing the time sheets to be filled out after the work had been completed. The superintendent denied that there was any sexual affair. No one asked the special programs director if there had been an affair, but she denied its existence at trial. The school board took no action to stop the rumors from circulating throughout the community. Read the full article.

The federal Department of Labor announced recently that, as part of its effort to increase employer compliance with wage and hour and safety laws, it will implement administrative rules requiring submittal of written employer plans to enforcement agencies in areas of concern. The draft requirements are intended to primarily target the restaurant, discount retailing, coal mining, and construction industries, which are viewed as problem areas for wage violations, including independent contractor misclassification, as well as safety violations. Employers will be asked to put together written plans on how they intend to identify and avoid safety hazards in the workplace and how the plans are to be implemented and maintained. With regard to wage and hour issues, employers will be required to put together written explanations of why they consider a worker an independent contractor and provide that written explanation to the worker. Read the full article.

One of the National Labor Relations Board's decisions on organized labor's dart board is Dana Corp. governing voluntary recognition of a union by an employer. In the Dana Corp. decision and subsequent regulations authored by the Board, the Board openly criticized the efficacy of card checks as the basis for an employer voluntary recognition of a union absent the more trustworthy secret ballot election. The Board therefore mandated that employees be provided notice of the employer's voluntary recognition and a reasonable opportunity to void it by filing a decertification petition within 45 days. The requisite notice to trigger commencement the 45 day period must comply with Board regulations. Absent employee filing of a decertification petition during the 45-day period, the recognition bar or the contract bar on such petitions will be in effect. Read the full article.

While Congress and President Obama have been unable to deliver the long-promised Employee Free Choice Act to labor unions, the President has attempted to deliver on other campaign promises to labor. Within a month of his election, he signed an executive order setting aside his predecessor's proscription on project labor agreements and, instead, encouraging the use of such agreements on large–scale construction projects. The rules to flesh out this executive order were recently promulgated by the Defense Department and other agencies, provide some guidance regarding factors that agencies may consider to determine whether a project labor agreement is appropriate, although, the use of a PLA is strongly encouraged. The regulations also allow an awarding agency to specify in the bid solicitation, the terms and conditions of the PLA and require the successful bidder to become party to the PLA. The regulations can be found at edocket.access.gpo.gov/2010/2010-8117. Read the full article.

SEATTLE
Two Union Square ~ 601 Union Street, Suite 4100 ~ Seattle, WA 98101

TACOMA
1301 A Street, Suite 900 ~ Tacoma, WA 98402

PORTLAND
888 SW Fifth Avenue, Suite 600 ~ Portland, OR 97204

www.williamskastner.com

Notice: These materials have been prepared by Williams Kastner for information purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon this information without seeking professional legal advice, as legal counsel may be only given in response to an inquiry regarding a particular situation. For more information, comments or suggestions regarding the Labor & Employment Advisor, or to enroll others to receive future alerts, contact Nina Huang.

Click to unsubscribe from the Labor & Employment Advisor.

Copyright and Trademark Notice: Williams, Kastner & Gibbs PLLC ("Williams Kastner") is, unless otherwise stated, the owner or licensee of all rights in these articles. The materials contained in this presentation are protected by the copyright and trademark laws and other laws of the United States.

Williams, Kastner & Gibbs PLLC - 2010