Senior Counsel Robert Olson is part of Construction Law Deskbook Team and Speaker on Construction Law

The Construction Law Section of the Washington State Bar Association is planning to publish a Construction Law Deskbook for Washington state lawyers who practice in that field. There is currently no comprehensive or up-to- date resource and the Section’s publication will fill that void. SGFS Senior Counsel Robert Olson has been chosen to be an integral part of that effort. He is on the editorial and planning committee for the Deskbook and will author a chapter on “Payment” that will cover state laws and contract provisions dealing with that important subject. He is also monitoring the writing of a chapter on “Surety Bonds” and will be the peer reviewer of that chapter. The Section hopes to publish the Deskbook in time for its next annual construction law seminar in June, 2017.

Mr. Olson will also be representing the Section at a seminar to be presented on November 4, 2016 in Vancouver, WA in conjunction with the Oregon State Bar Association. He will be presenting a talk and paper on Payment and Retainage Laws and Issues in Washington.

Mr. Olson is a long-time member of the Construction Law Section. He served as chair of the Section during 2006-07 and has been a speaker at many of the Section’s annual seminars. He continues to serve as an ex-officio member of the governing Council and for the last three years has organized the Section’s highly successful annual dinner meeting and CLE.

Bob OlsonBob Olson has been practicing construction law in Washington State for over 35 years and is well versed in all phases of business and construction disputes. When he’s not practicing law, he is often riding his bike, playing some sport or traveling with his family. Click here to get in touch with him today.

Disability Related Inquiries in the Workplace

The protections afforded to disabled workers are expansive under both federal and state law, including the American with Disabilities Act (ADA) and Washington Law Against Discrimination (“WLAD”), RCW 49.60 et seq. Companies must remain vigilant to ensure they do not run afoul of these protections including the ways in which they communicate with existing and potential employees regarding actual or perceived disabilities. For example, employers are not permitted to make broad inquiries regarding an employee’s health status or medical condition(s). See, Disability Guide published by the Washington State Human Rights Commission as well as the Equal Employment Opportunity Commission (“EEOC”) Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act. This general prohibition is also true with respect to potential employees. In other words, the general guidance is that employers may not ask a potential or existing employee if they are disabled, how they became disabled, if they are taking prescription medication(s), or seeking to obtain medical documentation (amongst other inquiries).

To be clear, employers are not prohibited from asking questions that are not likely to elicit information about a disability. Examples given by the EEOC include questions about an employee’s well-being (e.g., “How are you?), whether the employee can perform their job functions, or whether they have been drinking alcohol. During an interview or application process employers may ask if the potential candidates are able to perform the essential functions of the job with or without an accommodation. While this may be perceived as limiting the ability of an employer to ascertain whether an employee is disabled and/or may need an accommodation, the burden to request an accommodation generally rests with an employee. If this occurs, an employer may then make certain inquiries so the request for an accommodation can be considered and discussed.

However, an employer can make a disability related inquiry in certain circumstances including instances where the employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform their essential job functions will be impaired by a medical condition. Inquiries can also be made if there is a reasonable belief that an employee will pose a direct threat due to a medical condition. Thus, for example, this could occur if an employer observes performance problems and can reasonably attribute the problems to a medical condition. Inquiries may also be allowed in instances where a credible third party provides reliable information that the employee has a medical condition. In sum, employers must generally avoid inquiries into an employees’ health status or medical conditions. It is true that certain situations will require an employer to initiate or participate in an interactive process with its employee but an employer should not preemptively seek medical or health information without first seeking legal counsel as to whether the necessary prerequisites have been met.

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit orwebsite for more information. 

Update on Employment and Recreational Marijuana

Last May, SGFS posted a blog article entitled “Marijuana and Employment: What is truly ‘Green’ Workplace in Washington.”  Recently, the Washington State Human Rights Commission (“HRC”) updated its guidance on related issues in the workplace and specifically included changes to its “Guide to Disability and Washington State Nondiscrimination laws.” 

The link to these materials can be found here.

As detailed in SGFS’s blog post last year, marijuana (even for medical purposes) remains an illegal drug as a matter of federal law and therefore its use is something employer’s do not necessarily have to accommodate or permit by its actual or potential employees.  January’s update to the HRC’s website and written guidance reaches a similar conclusion and clarifies further that because “federal law prohibits the possession of marijuana, the Washington State Human Rights Commission has determined that the use of medical marijuana is not a reasonable accommodation for a disability.”  The HRC also states that “a claim of termination due to a disability because of the results of a drug test will most likely result in an immediate No Reasonable Cause Finding.”  This certainly indicates that any administrative claims filed with the HRC the grounds of disability discrimination for use of medical marijuana will be dismissed even if the use occurs during off-work hours.  The reason being employers cannot be forced to accept or allow accommodations that violate federal law. 

However, the HRC also states that its guidance and conclusions “does not preclude an individual from filing a case in state or federal court.”  This does not necessarily mean that any such claim would be successful, or even meritorious, but it does create confusion as to whether a related disability discrimination claim would survive initial efforts to dismiss on legal grounds.  It is most likely that the HRC’s language in this regard is more an indicator that its guidance does not preclude a person’s ability to access the judicial process by filing a legal claim for discrimination, even if that claim is not supported by the law. At the same time, it also serves as recognition that, in certain factual scenarios, a claim might be actionable in a court of law.  For now, employers should be on solid grounds if they refuse to provide an accommodation in the form of medical and/or recreational marijuana use.  Regardless, it is always recommended that companies obtain legal guidance from an attorney before making any decisions that might negatively impact its employees.

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit or website for more information. 

Businesses in the Construction Industry: Beware the Independent Contractor Risks

SGFS welcomes Brian Keeley to the firm. Brian is an employment lawyer who represents businesses in employment, employee benefits, and litigation matters. Just before joining the firm, Brian co-wrote and article about the dangers of using independent contractors or subcontractors. The article ran in the Seattle Daily Journal of Commerce, and the Associated General Contractors of Washington (AGC) reprinted it.

The US Department of Labor recently dropped some not-so-subtle hints that it would step up its investigations into businesses that misuse the independent contractor label and treat workers as independent contractors who could be considered to be the business’s employees instead. The risks to businesses can be substantial: if a worker who was treated as an independent contractor is re-classified as an employee, they could be owed back pay and back benefits, and the business that they worked for could owe back income and payroll taxes, unemployment taxes, workers’ compensation premiums, and penalties and interest. Any business that engages others to do work who aren’t employees (including subcontractors at any level) could be at risk. Please take a look at the article, and contact Schlemlein Goetz Fick and Scruggs, PLLC by phone at 206-448-8100 and ask for Brian or email Brian at bkk@sgfslaw.com if you think you might be at risk or want to confirm that you are not.

Returning to work after FMLA leave: Employee Rights and an Employer’s Duty

No one should be put in the position of choosing between their job and taking care of themselves or a loved one.  Fortunately, federal law provides leave protections for many employees when who are injured or ill. More specifically, the Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of  unpaid leave for eligible employees for qualifying reasons like the birth of a child, a serious health condition, or to care for an immediate family member with a serious health condition.  During this time, employees are entitled to have health benefits maintained as if they were working.  Employees also have the right to return to the same or equivalent position at the conclusion of the leave. This is true even if the employer has filled the position or restructured the job as a result of an employee’s absence.  Taking FMLA leave cannot result in the loss of any benefit that accrued prior to the start of the leave.

But what happens if an injury or illness continues to impact an employee after the 12 week period expires?  A number of issues can arise in this situation because an employee’s right to return to work is finite.  If an employer can show that an employee would no longer be employed at the time of their return, for reasons unrelated to utilizing FMLA leave, it can terminate the employee. In addition, if an employee is no longer able to perform an essential function of a position due to a physical or mental condition, including the injury or illness that originally prompted the leave, then the FMLA does not guarantee restoration to that position.  However, the employer may have obligations to the employee pursuant to the Americans with Disabilities Act (ADA), worker’s compensation laws, or state laws such as Washington’s Law against Discrimination (WLAD).

Therefore, “If an employee is a qualified individual with a disability within the meaning of the ADA [or WLAD for that matter], the employer must make reasonable accommodations… barring undue hardship.” Id. (b). For example, an employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship. In conclusion, it is important to understand that while the FMLA protects an employee’s right to return to work, this right must be exercised at the end of the leave period, which can extend up to 12 weeks.  If an employee’s ability to return to work is unclear, it is important to communicate with the employer and, if medically possible, attempt to return to work.  While the FMLA may not protect an employee in such situations, the ADA and/or WLAD may afford additional protections in the form of a reasonable accommodation.  Initiating an interactive process between employee and employer is the best way to determine whether an accommodation is a reasonable option to allow continued employment.

Individual employment issues surrounding this subject vary by case. These posts are meant to be educational and are not legal advice. For your own specific situations please seek legal counsel so that your unique set of circumstances can be considered.  Our firm is prepared to assist you in these matters, reach out to us at info@sgfslaw.com or call us at 206-448-8100.

 

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit or website for more information. 

SGF&S Named 9th Best Small Company to Work for in Washington

We here at SGF&S try to keep our bragging to a minimum and our practice as the focus, but last night we received some wonderful news. We are officially one of Seattle Business Magazine’s top 10 small businesses! This is a rank that we can only receive based on our employees and their love of the work that they do.  We are humbled to be on this list now for two years running and very excited to have broken into the top 10 this year (we were 13th last year).

So, last night we celebrated! Our wonderful team headed down to the Washington State Convention Center in the heart of downtown to attend the 100 best party thrown by Seattle Business Magazine and toasted to a great work family.

 

 

 

Marijuana and Employment: What is a truly “Green” Workplace in Washington

Washington State has been at the forefront in allowing access to marijuana for medical and, more recently, recreational purposes. See RCW 69.51A (Medical use of Marijuana Act or “MUMA”) and RCW 69.50 (Uniform Controlled Substance Act). These state laws have decriminalized marijuana possession and use. To be clear, this has not impacted federal law, which still categorizes marijuana as a schedule I controlled substance. See 21 U.S.C. § 801 et seq. Because of this, at least in part, Washington courts have refused to expand MUMA’s protections in other settings, including the workplace. In fact, the Washington State Supreme Court has expressly held that MUMA does not prohibit “an employer from discharging an employee for medical marijuana use.” See Roe v. TeleTech Customer Care Management LLC, 171 Wn.2d 736, 760 (2011). The Court in Roe also held that an employee terminated for authorized use of medical marijuana does not have any civil remedy against her former employer. Id. The Court cited language in the MUMA statute, which only allows “patients with terminal or debilitating illness to legally use marijuana when authorized by their physician,” and it accomplishes this goal by giving these patients an affirmative defense to criminal prosecution. Id., at 758. In fact, a number of state and federal courts have ruled that federal agents, housing authorities, and employers can take adverse actions against individuals who use medical marijuana even when authorized by state law. See Raich v. Gonzales, 545 U.S. 1 (2005); Barber v. Gonzales, 2005 U.S. Dist. LEXIS (2005); Assenberg v. Anacortes Housing Authority, 268 Fed.Appx. 643 (2008); Ross v. Ragingwire Communications, 42 Cal. 4th 920 (2008).

Medical Marijuana, pc iStock
It should be noted that, as part of his dissent in Roe, the late Justice Chambers disagreed with his colleagues “exacting” examination of MUMA and argued the law created a public policy basis for an aggrieved employee to pursue a wrongful termination claim. Justice Chambers’ dissent indicates there may be room for argument and reconsideration in the future. In other words, it is impossible to predict how changing social views and the nascent marijuana industry might influence future decisions by Washington Courts. For practical purposes, employees and employers should pay close attention when considering marijuana issues in the workplace. While Roe holds that termination for marijuana use is lawful, a plaintiff might prevail on a similar claim if they could demonstrate an underlying disability motivated the termination. This is because aggrieved employees are only required to show a protected class (such as a qualifying disability) was a substantial factor leading to an adverse action; not necessarily the only factor. See Scrivener v. Clark College, 334 P.3d 541 (2014). At the same time, employees must tread with care. Even though State law now permits marijuana use for medical and recreational purposes, there are no bright line restrictions precluding an employer from taking adverse action. Washington is an “at-will” state where marijuana use could constitute grounds for termination of employment under Roe.
If you have any questions about your potential risks as an employee or employer, you should contact an attorney to better understand your options.

 

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit or website for more information. 

Congratulations to Our Newest Member, Mark Davis

Things at our firm just keep getting busier and busier – and that’s a good thing. To make sure we have the bandwidth necessary to meet all of our clients’ needs, we have expanded a bit and would like to recognize the hard work and achievement of our lawyers. In addition to the two attorneys who joined our ranks recently, one of our associates was invited to become a member of our firm this month.

 Mark Davis has been practicing law in Washington since 2007.  In building his practice, Mark has established a track record of representing individuals and businesses with passion and integrity, and in doing so has created a name for himself as a skilled trial attorney.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few).   Mark’s tireless efforts on behalf of his clients have been highlighted by his recent selection as a Rising Star among attorneys in Washington State, a prestigious award named by Super Lawyers and only bestowed upon less than 2.5 percent of lawyers in the State.  Whatever the matter, Mark does his best to obtain justice for each client as swiftly as possible.  He sets a great standard of practice and it’s a high bar we strive to maintain.

Mark is a team player and a hard worker. When Mark’s not hard at work in his office or in meetings with clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.

So with our sincerest gratitude and excitement we are proud to recognize this achievement.

Congratulations, Mark!

Annual Construction Law Section Dinner and CLE

As a member (and past chair) of the governing council for the Construction Law Section of the Washington State Bar Association and with the immeasurable help of our firm’s cracker-jack legal assistant/paralegal and event organizer Laurel Barton,  I have initiated, organized and overseen the Section’s Annual Dinner/CLE program.  We completed our second event last week (February 26) and it was another rousing success.  This one was at Cutter’s Bayhouse in Seattle’s Pike Place Market.  Fifty one members of the Section signed up and a good majority of those attended to enjoy a social hour, dinner and a presentation good for one hour of CLE credit, all for the unheard-of low price of $50.

Our speaker was John Livengood of Navigant, a national construction consulting firm.  John is a Managing Director of Navigant’s Global Construction Practice and an experienced claims expert with more than 38 years of construction related experience.  He is a registered architect and an attorney experienced in construction litigation, project management, design analysis, and document preparation

Traveling from his office in San Francisco, John talked for more than hour about Schedule and Delay Analysis and Why Results Differ.  He started with an overview of the Critical Path Method (CPM) for project scheduling and then explained the four predominant ways to analyze schedule delays (as planned vs. as built; contemporaneous period analysis; retrospective Time Impact Analysis (TIA); and collapsed as built).  These methods are discussed in the Recommended Practice 29R-03 Forensic Schedule Analysis (2011) published by the Association for Advancement of Cost Engineering (AACE).  For each of the methodologies John explained both the benefits and the drawbacks and why they may not be suitable for all schedule conditions.  He concluded with some observations on why results differ, the most prominent reason being that the different methodologies measure delay impact in different ways.

Although the subject seems esoteric and complex, John was able to provide both an informative and entertaining overview.  The experienced construction lawyers in the audience were attentive to the very end and appreciated the useful knowledge they gained – especially since the talk followed a good meal and the chance to socialize with friends and colleagues.

 

Bob Olsen

Bob Olson has been practicing construction law in Washington State for over 35 years and is well versed in all phases of business and construction disputes. When he’s not practicing law, he is often riding his bike, playing some sport or traveling with his family. Click here to get in touch with him today.

SGFS Welcomes Rick Birinyi to the Team

We are very excited to welcome Richard Birinyi to our growing firm! Rick is an established bankruptcy attorney focusing mainly on creditor and debtor issues with over 30 years of experience to bring to the team.  We here at Schlemlein Goetz Fick & Scruggs couldn’t be more excited to have him on board with us.

Rick is a leader in Washington State’s bankruptcy law, having lent his talents to firms such as Schwabe, Williamson & Wyatt and Bullivant Houser Bailey. We feel lucky that he has decided to join us for this next chapter of his career. He is no stranger to creditor/debtor issues, corporate reorganizations, business transactions and complex commercial litigation. His expertise and dynamic personality will be a great asset to us as well as our clients.

Welcome to the team, Rick!

For more on Rick visit our website.