Lisa McDaniel
Recently I took on a
new project and nearly bit off more than I could chew by agreeing to teach a
course at a local college.� As a result
of my desperate attempts to make the class meaningful, I began to realize just
how great the Internet has become.� So
here is a list of my favorite sites for any fellow Internet addicts:
One
of the best sites for keeping up with recent and historical court decisions.
http://search.leg.wa.gov/pub/textsearch/default.asp�����������������������
The
best site for looking up Laws and regulations in Washington State.
http://thomas.loc.gov ������������������
If� you are interested in the status of a
particular bill, or� are curious about
any proposed legislation on a particular topic this is the site to access.
http://www.dol.gov�����������������
The
Home Page for the Department of Labor.�
These are just a few
of the many great Internet sites out there.�
If you are willing to spend the time, the entire text of every law or
regulation can be found on the Internet (including the Code of Federal Register
and US Code).� In addition to the actual
text, numerous sites provide interpretation on these laws.�� Of course there is always the obligatory
disclaimer to contact your legal representative.� The time has come to try one's hand at preliminary research
avoiding that expensive call to the attorney for simple questions that can be
answered by surfing the net!� Good luck
and happy surfing.
I am sure you are
looking forward to the Spring Conference as much as I am, but just in case you
need to get a refresher on the Agenda�.
�
Thursday March 23rd
8:00�� Registration/Breakfast
8:45�� Welcome-Introductions
9:15�� Keynote "Healthcare in Washington -
The Next Three Years"
10:00� "Bring Out the Best in People and Keep
Them"
11:00� "Outcomes of Recent Court Cases - Who
Won and Why"
12:00� Lunch
1:30�� "Trends in Labor Negotiations"
2:30�� "2000 Healthcare @ Work"
3:30��� HR Roundtable
5:30��� Dinner
7:00��� Underground Tour
Friday March 24th
8:00��� Continental Breakfast
8:30��� WSHHRA Business Meeting
9:45��� HRIS Panel
12:00� Box Lunch
FMLA/UI UDATE
Dale Tuvey
CEO Unemployment
Program
United Claims
Management
On January 10, 2026 the Washington State Hospital Association sent out a Red Head Bulletin to all hospitals asking them to send a letter to the US Department of Labor expressing their opposition to the Department�s proposal to extend unemployment� insurance benefits to� employees who take leave after the birth or adoption of a child.� The Red Head Bulletin outlined how this expansion would (1) increase UI costs to employers by transforming unpaid leaves of absence into paid leaves, and (2) tamper with a basic and long-standing tenant of unemployment insurance law, which is that eligibility to receive unemployment benefits is always contingent on being available for and actively seeking work.
The support from the Washington health care community was excellent!� WSHA gives its sincere thanks to all of you who joined the effort by sending letters or e-mails to DOL and your Congressional representatives opposing this proposal.
We have learned that DOL received over 3,700 comments on the proposed regulation and that the comments were fairly evenly divided between proponents and opponents.� ASHHRA and SHRM were key players in the opposition coalition that was led by UWC, a national employer group specializing in unemployment and worker�s compensation issues, and the FMLA Technical Issues Coalition, an employer group lobbying on FMLA issues.
The result of the united effort of the opposition has been to force DOL to delay publication of the regulations until the issues has been more thoroughly debated.
On March 9 the House of Representatives Ways and Means Committee�s Sub-Committee on Human Resources held a hearing to ask the Department of Labor to justify the need or reason for making the proposed changes.� Testimony was heard on both sides of the issue.� Eric Oxfeld, president of UWC as well as several other prominent members of the business community testified in opposition to the proposal.
Congress can intervene and either enact or block the regulations entirely or can take no action either way.� Under Federal law the Department of Labor must review and respond to the comments they received.� There are, in general three possible outcomes from the Department, assuming Congress does not act.� (1) DOL, after making appropriate review, could publish the final regulations in the Federal Register, thereby elevating the regulations into Federal law, (2) DOL could amend the proposed regulations so substantially that the regulations would require a new issue and a new comment period, or (3)� DOL could let the regulations die by simply failing to act (i.e. never publishing the regulations in the Federal Register).
Because this issue has created so much interest and a great number of responses, not the least of which is the congressional hearings, we do not expect a quick resolution.� DOL is not required to meet any deadline.� They must study the responses received, consider the opinions of the proponents and opponents, and formulate a response.� It appears that nothing will happen until at least May and it could be much longer than that.� The ultimate outcome may depend on whether or not this issue finds its way into the presidential campaign and/or whether or not or how strongly President Clinton presses for its adoption in an attempt to leave another mark on the domestic landscape before he leaves office.� Stay tuned.� We will keep you informed of any new developments on this important issue.
Thanks again to all of you who took time to register your opposition to this costly proposal from DOL.
PERSONAL DISCRIMIMINATION LIABILITY RISKS FOR MANAGMENT
Bob
Sebris & Betsy Maurer, Attorneys
SEBRIS BUSTO, P.S.
In the last few months,
our Washington courts have issued a couple of case decisions regarding individual liability for managers and
supervisors.� These cases dealt with
employment discrimination, including workplace harassment and age
discrimination, under Washington�s Law Against Discrimination, RCW 49.60.� Both of these cases are from the Court of
Appeals, and are likely headed for review by our State Supreme Court.� In the meantime, however, employers and
managers must grapple with the increased possibility that individual
management-level employees can be sued personally for their actions -- and not
just the employer.� How can the Human
Resources office in your healthcare institution help reduce this possibility?
Background.�
These two cases were decided on the same day�one published (Brown v. Scott Paper Worldwide Co.) and one unpublished (Raymond v. Pacific Chemical). ��Interestingly, they had different outcomes.�
In Scott Paper the Court� found six individual managers potentially
liable for sex discrimination and sent the case back to Superior Court for
trial.� In contrast, in Pacific Chemical the Court completely
released a manager and three supervisors from liability for age
discrimination.� Why the
difference?�
Personal� Misconduct Liability v. Legitimate Management Actions.�
At the trial level in Scott Paper,
six managers were dismissed by summary judgement from personal liability for
alleged sex harassment and sex discrimination.�
The employer then won the trial.�
On appeal, however, the managers who allegedly engaged in lewd
discussions, sexual overtures, and unwanted sexual touching were held subject
to potential liability individually.� In
twisting logic under our State discrimination law, RCW 49.60, the Court concluded
that these managers could be personally liable for harassment.� This is because the definition of �employer�
under our statute includes �any person acting in the interest of an
employer�.� Consequently, even though
the employer enterprise itself may escape liability for taking prompt investigative
or remedial action once it becomes aware of harassment circumstances, an
individual manager or supervisor as an �employer� may still be personally on
the hook for his or her own misconduct acts.�
By
comparison, the Court in Pacific Chemical
found no personal liability for alleged age discrimination.� In the facts before it, it simply focused on
the management duties that were supposedly age discriminatory practices.� Unlike the alleged major misconduct of
harassment in Scott Paper, the
manager and supervisors were simply performing within the bounds of expected
management responsibilities.� Factually,
they changed the employer�s compensation plan and carried out the plaintiff�s
termination.�� Here the Court justified
dismissal of the claims against the individual employees by focussing on
necessary �personnel decisions� inherent in the performance of a supervisor�s
job.� It distinguished (thereby
protecting) such legitimate management functions from �avoidable or unnecessary
conduct,� such as uttering slurs or making sexual advances.� Together, these cases set up the framework
for future legal battles over supervisor and manager personal liability in
discrimination cases in Washington State.�
Basic management duties should not lead to individual liability, but
personal misconduct outside of your management responsibilities may.�� Your management team has even more reason
than before to be aware of discrimination law liability boundaries.
What Helpful Preventive Steps Can
Human Resources Pursue?
�
Have strong EEO policies, including
well-drafted anti-harassment provisions, in employee handbooks and
administrative manuals at your healthcare institution.
�
Put managers and supervisors on notice that
personal misconduct regarding their employees may make them individually
liable for discrimination or tort claims.
�
Provide
managers and supervisors with regular EEO
training, emphasizing harassment prevention, problem resolution, and sound
employee relations techniques.
�
Be sure
new employee orientation programs review
your EEO program statements and non-harassment policies and procedures in
detail.� Document that employees at all
levels knows how and who to bring concerns or complaints to promptly.
�
Provide
periodic update briefings or written
reminders on EEO and other relevant HR topics (e.g., violence
prevention).� Emphasize the
complaint/concern system at your health care institution to help problems get
�nipped in the bud�.
�
Be
certain that your grievance system has a
�pressure valve� for employees to raise complaints directly to HR, the CEO,
or other senior management, so that there is no �dead end� in the process with
the accused supervisor.
�
Encourage
employees, managers and supervisors to report to HR any instances of possible harassment or discrimination
they witness or learn about from others.
�
Train newly hired or promoted
supervisors in HR
responsibilities, and stress EEO and anti-harassment concerns.� Let them know about possible personal
liability should they �cross the line�, and make it clear that such personal misconduct will not be tolerated
and will lead to appropriate discipline,
up to and including discharge.
�
Assess
your health care institution�s employment
law insurance coverage (if any) for defense costs and policy limits
relating to employment discrimination claims brought against individual
managers or supervisors.� Review this
with senior management.
�
Supervisors and managers who do not cooperate
will still be responsible for �stupid misconduct� acts.� But your HR office can help alert a well-motivated
management team, so that everyone can avoid the legal minefields.� It�s good for your employer, . . . and for
your managers and supervisors personally.
SEBRIS BUSTO, P.S. is a
Washington Law Firm representing health care employers in labor and employment
law matters, and a member of WSHHRA.�
Emphasizing problem resolution and prevention, some of its practice
areas include: labor law and collective bargaining, wage and hour, FMLA,
discrimination, and discharge matters.�
Bob Sebris can be reached at (425) 450-0300 (e-mail: [email protected])� for any questions or comments.