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An employment discrimination plaintiff makes a prima facie case of discrimination by showing that (1) she was within a statutorily protected class, (2) she was discharged by the defendant, (3) she was doing satisfactory work, and (4) after her discharge, the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff.
For years, Washington courts have held that employment discrimination plaintiffs must prove that they were replaced by someone outside of their protected class--the replacement element. For example, if the employment discrimination plaintiff was female, she had to prove she was replaced by a man; if the employment discrimination plaintiff was over 40-years of age, he or she had to prove they were replaced by someone under 40-years of age. This often created often monumental burden for employment discrimination plaintiffs. The Washington State Supreme Court, in a decision published today (Mikkelsen v. Public Util. Dist. No. 1, 2017 Wash. LEXIS 985 (10.19.2017), held that the replacement element is not required to prove a prima facie case of employment discrimination. This decision will make it easier for employment discrimination plaintiffs to prosecute their claims and harder for employers to defeat these claims. Contact Mark D. Walters The Washington State Supreme Court just issued a new decision on the topic of meal breaks. You can download the opinion at the link below. The case centered on this Washington regulation that requires employers to allow employees to take meal breaks: WAC 296-126-092 states in relevant part: "( 1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer." The Washington Supreme Court issued this directive for cases that involve claims of failure to allow meal breaks: "An employee asserting a meal break violation under WAC 296-126-092 can establish his or her prima facie case by providing evidence that he or she did not receive a timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or that a valid waiver exists." The Court reasoned that "this should not be an onerous burden on the employer, who is already keeping track of the employee's time for payroll purposes." I'm not sure I agree that it is going to be easy for employers to prove waiver simply because it keeps track of hours worked. Under Washington law, waiver is the intentional and voluntary relinquishment of a known right; waiver can result from an express agreement or be inferred from circumstances indicating an intent to waive. To constitute implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive; waiver will not be inferred from doubtful or ambiguous factors. This is a pretty high standard, and it is not that easy to meet this burden.
Brady v. AutoZone Download Contact Mark D. Walters Employer's really don't like that their employees can sue them, and if the employee prevails, the employee is entitled to recover his or her attorneys fees from the employer. Like it or not, that's what the law says for the vast majority of statutes that protect employee's civil rights and from retaliation.
The United States Congress explained the reason for including the payment of a employee plaintiff’s fees and costs as part of the damages in employment cases in the Senate Report on Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988: “If private citizens are able to assert their civil rights, and if those who violate the nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in Court.” The U.S. Supreme Court has noted that these fee shifting statutes are intended by the U.S. Congress "to ensure effective access to the judicial process" by properly compensating attorneys to ensure that employees had the ability "to attract competent counsel" to represent their claims. Justice Alito, in Perdue v. Keeney, wrote that these fee shifting provisions are intended "to ensure that federal rights are adequately enforced." Many state statutes that protect civil rights and employees from retaliation also include attorney fee provisions that allow a successful plaintiff to recovery attorney fees and costs incurred. The policy is the same as noted above. Contact Mark D. Walters Breaks
Washington employers are required to pay their workers for a rest break of at least 10 minutes for each 4 hours worked. The rest break must be allowed no later than the end of the third hour of the shift. Employers may allow their workers to take several "mini" breaks in each 4 hours of working time. If these mini breaks total 10 minutes this substitutes for a scheduled rest break. Examples of mini rest breaks are personal phone calls, eating a snack, personal conversations, smoke breaks, and whenever there is no work to do for a few minutes during a work shift. Meal Periods If more than 5 hours are worked in a shift, Washington employers must allow their employees to take at least a 30-minute meal period. The employee must be at least 2 hours into their shift before the meal period can start, and the meal period cannot start more than 5 hours after the beginning of the shift. Meal Periods - Paid or Unpaid Meal period breaks are unpaid unless:
Employees can waive their right to a meal period if they prefer to work through it and if the employer agrees. The Department of Labor & Industries recommends that you get a written statement from workers who want to give up their meal periods. For more detailed information, the Washington Department of Labor and Industries has an excellent downloadable PDF on this topic. Contact Mark D. Walters |