- Posts by Jared Van KirkPrincipal
Jared Van Kirk practices in the area of labor and employment. As a counselor on complex federal and state laws and regulations, Jared provides his clients with advice and training concerning best practices for increasing legal ...
In December 2015, the City of Seattle passed the “Wage Theft Prevention and Harmonization Ordinance,” which made changes to all four of Seattle’s labor standards ordinances—Paid Sick and Safe Time (PSST), Minimum Wage, Wage Theft, and Fair Chance Employment.
Across the board, the new law provides harsher penalties for noncompliance than in the past. For example, there is now a rebuttable presumption that an employer has retaliated if it takes adverse action within 90 days of the employee’s exercise of protected rights. An employer in this situation must demonstrate by clear and convincing evidence that the protected activity was not a factor in the decision to take adverse action. Thus, it is essential to carefully document all responses to concerns about employees’ protected rights as well as reasons for adverse employment actions.
Jared Van Kirk is a member of Garvey Schubert Barer’s Labor and Employment Group and a previous blog contributor. Jared has been following how legalized recreational marijuana in Washington affects all employers and how the Washington State Liquor Control Board (WSLCB) will regulate marijuana consumption in premises holding liquor licenses, which will have a direct impact on the hospitality industry in Washington State. Jared is also a member of Garvey Schubert Barer’s Cannabis Industry Group and has been involved in opposing challenges to Washington’s recreational marijuana laws. Thank you, Jared, for sharing this very important update. – Greg
Since Washington voters passed I-502 in 2012, there has been much discussion concerning how hoteliers should respond to guests who seek to use (or are caught using) marijuana on a hotel property, either in a public area or in a guest room. Could a hotel even promote itself as friendly to marijuana tourists?
Use of marijuana in view of the general public remains illegal under state law and Liquor Control Board regulations have long required liquor licensees to conduct their licensed premises in compliance with such state drug laws. Allowing guests to smoke anything, including marijuana, in public spaces may also violate public smoking laws and smoke-free workplace laws. So, it was fairly clear that guests could not use marijuana in the public areas of a hotel, and a hotel could not allow guests to use marijuana (smoked or otherwise) in any public place. But that left open the question of whether a hotel could allow guests to use marijuana in smoking-friendly rooms, either explicitly or simply by taking no affirmative action against use of marijuana in guest rooms.
Amended Liquor Control Board rules that went into effect earlier this year appear to answer this question with respect to properties with hotel liquor licenses. WAC 314-11-015 addresses the responsibilities of all liquor licensees, including hotel licensees. The amendments state that licensees and their employees may not:
Engage in or permit any employee or other person to engage in the consumption of any type of marijuana, usable marijuana, or marijuana-infused products in a liquor licensed business, including outdoor service areas or any part of the property owned or controlled by the licensee.
Permit any person consuming, or who has consumed within the licensed premises, any type of marijuana, usable marijuana, or marijuana-infused products to remain on any part of the licensed premises.
"Licensed premises" includes all areas under the legal control of the licensee and available to or used by customers, which would include guest rooms.
It is unclear whether the Liquor Control Board intended these amendments to require hotels with premises licenses to exclude marijuana use in guest rooms and require licensed hotels to remove patrons who have used marijuana in guest rooms. However, as written, the amended rule states that a hotel licensee may not permit any person to consume marijuana in any part of the property owned or controlled by the licensee nor remain on any part of the licensed premises after consuming marijuana on the licensed premises. The letter of these rules require licensed hotels to prohibit use of marijuana in all areas of their property, including guest rooms, and to remove patrons who are found to have consumed marijuana on their property.
The Seattle Office of Civil Rights has recently issued proposed rules to implement the Job Assistance Ordinance, which limits the consideration of criminal history information in hiring and employment decisions within the City of Seattle. See my previous post on the topic HERE, and the proposed rules can be accessed HERE. The Office of Civil Rights is seeking public comment on these proposed rules, which can be submitted electronically by Friday, September 20 to firstname.lastname@example.org.
In many ways the proposed rules hew closely to the language of the ordinance and do not significantly alter the law or compliance burden. However, in a few areas the proposed rules differ from the ordinance in ways that are important to the hospitality industry.
The first area of concern relates to the exemption of positions whose job duties include “security” services, which are not covered by the ordinance. For example, questions have been raised about various positions in a hotel that have security functions and whether they would be considered exempt, such as night managers who are directly responsible for managing security situations in hours of lean staffing. The proposed rules take a strict view of a “security” position that would not cover non-traditional security employees. Specifically, the proposed rules state that “security” includes any person who is required to be licensed as a “security guard” under Washington State law and who would typically be referred to as a security officer or guard, patrol service officer or guard, armed escort or bodyguard, armored vehicle guard, burglar alarm response runner, or crowd control officer or guard (these terms and the State licensing requirement come from the Washington statute RCW 18.170). This narrow definition would render the “security” exemption inapplicable to many if not most hotel employees who might be thought to perform security functions.
The second area of concern is the proposed rule’s definition of “verifiable information” of rehabilitation or good conduct that an employer should consider before deciding it has a “legitimate business reason” to make an adverse employment decision based on criminal history information. The term “verifiable information,” though vague, seemed to refer to information that could be checked—like work experience, certificates, diplomas and the like—and not to mere statements from an applicant or employee. However, the Office of Civil Rights believes differently. The proposed definition of “verifiable information” includes “any” information produced by the applicant or employee related to rehabilitation or good conduct, and specifically lists as examples “a written or oral statement” from the applicant, law enforcement or probation officer, member of the clergy, counselor, therapist, social worker, or member of a community or volunteer organization. Thus, under the proposed rules an employer would generally have to consider all applicant or employee statements of good conduct and rehabilitation when determining whether it had a “legitimate business reason” to make an adverse employment decision based on criminal history information.
The third issue is that the proposed rules make a technical change to the definition of “legitimate business reason” that requires the consideration of individualized factors in all circumstances prior to an adverse employment decision. Under the ordinance, a “legitimate business reason” was one of two things:
- a good faith belief that the criminal conduct would have a negative impact on the applicant or employee’s fitness or ability to perform the position or
- a good faith belief that the criminal conduct will harm or cause injury to people, property, or business assets, after considering specified individualized information about the criminal history and the applicant or employee.
Under the proposed rules, however, the definition of “legitimate business reason” has been changed to require consideration of individualized information before reaching either type good faith belief. In other words, under the proposed rules an employer cannot reach a good faith belief that the criminal conduct would have a negative impact on the applicant or employee’s fitness or ability to perform the position without first considering individualized information. Although it is generally good practice to consider individualized factors in all cases, regardless of the technical requirements of the ordinance, the proposed rules would now require this individualized consideration in all cases.
Finally, the proposed rules are disappointing in what they do not do. Specifically, the proposed rules to not attempt to further define or explain the contours of the two types of “legitimate business reason” noted above. What is a “negative impact” on “fitness or ability to perform the position”? What does it mean to believe that past criminal conduct will “harm or cause injury to” people, property, or business assets? What are “business assets” in this context? Does that term include assets other than physical property, such as public good will? These questions and others remain unanswered in the proposed rules.
Jared Van Kirk is a member of Garvey Schubert Barer’s Labor and Employment group and previous blog contributor. Jared has been following City Council discussions surrounding the newly enacted Job Assistance Bill for some time. Thank you, Jared, for this timely and very important update for all hospitality industry employers in Seattle. – Greg
On June 10, the Seattle City Council passed the “Job Assistance Ordinance,” which limits the ways in which most Seattle employers can acquire and consider the criminal history of job applicants and current employees. This City ordinance will become effective on November 1, 2013 and will require many Seattle employers to change their hiring forms and processes and their policies and procedures related to employee discipline and discharge.
The ordinance applies to all employers with even one employee, but excludes all governments except the City of Seattle. Employees and applicants are covered if they perform (or would perform) at least 50% of their work in Seattle. Importantly, the ordinance does not apply to positions in law enforcement, policing, crime prevention, security, criminal justice, or private investigation services or those which may provide unsupervised access to children under sixteen years of age, developmentally disabled persons, or vulnerable adults.
The ordinance will prohibit employers from categorically excluding applicants with arrest or conviction records. To comply, employers must eliminate such exclusions from job postings and other advertisements, as well as from their internal hiring process.
In addition, employers may only perform background checks or ask applicants for information about their arrest or conviction records after first screening applications and resumes to eliminate unqualified applicants. As a result, applications for covered positions may no longer require disclosure of arrest or conviction history and background checks must be delayed until an applicant has passed an initial application/resume screen.
The ordinance also restricts the actions employers can take based on criminal history information. Employers must make changes to their internal hiring, discipline, and discharge policies and procedures to be consistent with these limitations. Employers may not take any adverse action based solely on an arrest, but may inquire about the circumstances related to the arrest. Employers may not reject an applicant or discipline or discharge an employee based on conduct that led to an arrest, conviction, or pending charge without a “legitimate business reason.” A “legitimate business reason” is a good faith belief that that the nature of the underlying criminal conduct will negatively impact the applicant’s or employee’s ability to perform the job or will cause harm or injury to people, property, business reputation, or business assets.
Identifying a “legitimate business reason” will add complexity and documentation to hiring, discipline, or discharge decisions based on criminal history information. Although the standard is likely not as demanding as the “undue hardship” standard familiar in disability accommodation situations, the ordinance does require an employer to consider several specified factors before concluding that there is a legitimate business reason – consideration that a prudent employer will need to support and document.
Finally, the ordinance creates procedural rights that may also change the way many employers hire and discharge employees. Before taking any adverse action against an applicant or employee based on criminal history information, the applicant or employee must be informed of the information being considered and given an opportunity to respond to the information. The employer must hold a position open for at least two business days to give an applicant or employee the opportunity to respond.
The ordinance will be enforced by the Seattle Office for Civil Rights, and provides for monetary penalties and attorneys’ fees, but it does not provide applicants and employees with a private right of action.
The full text of the recently passed Job Assistance Bill is available HERE. Please contact Jared or me if you have questions. Stay tuned - Jared will keep us updated on the Bill and offer practical guidance in an upcoming installment.
On November 6, Washington voters passed Initiative 502 related to the decriminalization of marijuana under state law. We understand that you may have questions about how this new law affects the enforcement of your employment policies including drug free workplace and drug testing policies.
Initiative 502 contains provisions that decriminalize under state law the possession of limited amounts of marijuana by people age 21 and over beginning on December 6. Initiative 502 also contains provisions intended to create a legal marketplace for purchasing marijuana in Washington that is regulated in a way similar to the sale of hard alcohol. These provisions will take up to a year to implement and may be challenged in the courts. If these provisions and the implementing rules are upheld, Washington residents age 21 and over will have legal (under state law) sources from which to purchase marijuana for personal use. Despite these changes to state law, all possession and distribution of marijuana remains unlawful under federal law.
Initiative 502 does not contain any provisions that alter existing Washington employment law or that create new employee rights. As a Washington employer, you may continue to make employment decisions, including discipline and termination, which take into account whether employees are intoxicated at work, test positive for marijuana while at work, or are in possession of marijuana while at work. You may continue to enforce your drug free workplace and drug testing policies with respect to marijuana use and possession in the workplace. Current federal and state disability law do not require you to allow the use of illegal drugs or alcohol in the workplace, although addiction may be a disability which must be accommodated by reasonable measures including time off to pursue addiction treatment. Marijuana use or addiction can and should be treated in the same manner as use of or addiction to any other illegal drug or alcohol.
The passage of Initiative 502 is a good opportunity to review your drug free workplace and drug testing policies to make sure they are consistent with the most current law and to review your disciplinary practices for violations of those policies or similar provisions of collective bargaining agreements.
Greg Duff founded and chairs Foster Garvey’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.