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Helsell Fetterman
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Who Owns Lee Harvey Oswald’s Coffin? 
On November 22, 1963, Lee Harvey Oswald killed President John F. Kennedy. Two days later, Oswald was shot and killed by nightclub owner Jack Ruby. Immediately following Oswald’s death, his brother, Robert Oswald, began making funeral arrangements. Robert purchased flowers, a dark suit and a pine coffin for his brother. Three days after killing the president, Lee Harvey Oswald was laid to rest in a Forth Worth cemetery in a service so poorly attended that reporters were asked to be pallbearers. 
The decades following JFK’s death were filled with conspiracy theories. In 1981, to dispel one of these rumors — that the occupant of Oswald’s coffin was a Soviet spy – Lee’s family consented to have his body exhumed. Dental records proved that the occupant was, in fact, Oswald. His body was once again laid to rest, this time in a new coffin because the old one was so badly water damaged. 
More than five decades later, the original, damaged, pine coffin lies at the center of an unusual legal battle. In 2010, after learning that the cemetery owner, the Baumgardner Funeral Home, sold the coffin through an auction house for $87,468, Robert Oswald filed a suit to block the sale. Robert claimed that the coffin belonged to him, since he purchased it back in 1963. 
The funeral home fought back, defending its ownership right to the coffin. They claimed that Oswald had made a “gift” to his brother, because no one purchases a coffin with the intention of getting it back. Therefore, he no longer had ownership. On the other hand, they had been in possession of the coffin since it was exhumed in 1981. Because they stored it for almost 30 years and no one had claimed it, the funeral home believed the coffin was theirs. 
Not being able to reach an agreement as to ownership, the two parties went to trial on December 8, 2014. During the trial, the funeral home admitted that it never notified Oswald’s family that the coffin had not been destroyed after it was exhumed and that they never offered to return the coffin to them. In January, 2015, the judge ruled in favor of Robert Oswald and called the funeral home’s conduct “wrongful, wanton and malicious.” The funeral home was ordered to return the casket to Robert, pay him $87,468 in damages, and pay the auction house that attempted to sell the coffin more than $10,000 in storage fees. 
Lee Harvey Oswald’s widow and children chose not to participate in the lawsuit. Their participation would have further complicated the question of whether the estate or Robert truly owned the coffin.

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With President Obama’s State of the Union address now behind us, it is time to examine the employment law trends for 2015. Last year we predicted that the same topics would continue to dominate the news in 2015, and that has turned out to be true.
Here are the employment law developments we believe are most directly affecting Washington employers this year.
Minimum Wage
Seattle Mayor Ed Murray announced a new minimum wage law last year that takes effect in April 2015. Under the new law, employees of large companies (more than 500 employees) will earn a minimum of $11.00 per hour beginning this April. Employees of small companies (500 or fewer employees) will earn a minimum of $10.00 per hour if they receive wages only. If, instead, the employee receives compensation in addition to wages (including commission, piece-rate, and bonuses) the employer has to pay a minimum compensation of $11.00 per hour. The minimum wage will continue to rise each January until it reaches $15.00 per hour for all employees, and then it will adjust with the rate of inflation. The City of Seattle has hired wage police to enforce violations, and penalties will be assessed. Therefore, it is important that affected businesses are familiar with the requirements of the law and the various deadlines for raising employees’ wages.
Minimum wage raises are not likely to be restricted to Seattle for long. Washington’s Legislature is reexamining the state’s minimum wage, as are numerous other states and municipalities.
Affordable Care Act
President Obama signed the Affordable Care Act (often referred to as “Obamacare” or “ACA”) on March 23, 2010. Under the law, large employers (those with at least 50 full-time equivalent employees) are required to offer health insurance to their employees that covers at least 60% of covered health care expenses for a typical population, and the employees cannot be required to pay more than 9.5% of their family income for the employer coverage. Starting this year, large employers will have annual reporting responsibilities concerning whether and what insurance they offer to their full-time employees. The penalty for failure to comply with the ACA is $3,000 annually for each full-time equivalent employee receiving a tax credit, up to a maximum of $2,000 multiplied times the number of full-time employees minus 30, and the penalty will increase each year by the growth in insurance premium. With the new reporting requirements and steep penalties, now is the time to make sure you understand how the ACA affects your business.
Social Media Policies
The National Labor Relations Board (“NLRB”) continues to exercise its authority over the non-unionized workplace under section 7 of the National Labor Relations Act. Section 7 recognizes the rights of non-union employees to communicate regarding the workplace and potentially organize. The NLRB has been continually restricting social media policies that it deems are overbroad because they interfere with the ability of employees to communicate about the workplace. Employers can draft policies to protect legitimate interests, but the policies must be tailored to a specific interest without being so overbroad that they interfere with employee section 7 communication rights. Some employers are choosing not to adopt such policies at all. What is best for your business depends on the actual interests you are trying to protect.
Pregnancy Discrimination/Accommodation
The United States Equal Employment Opportunity Commission (“EEOC”) issued new guidelines on pregnancy discrimination issues in July 2014. These guidelines address pregnancy as an accommodation issue. Most pointedly, if an employer offers light duty accommodation for employees, it must also be available for pregnant workers if needed and requested. Other accommodations that might be required include allowing more frequent work breaks, seating, and permitting a water bottle at the work station. The United States Supreme Court is currently examining the issue of providing light duty in Young v. UPS. We expect a decision and further guidance this spring.
Religious Accommodation
Last year, the Washington Supreme Court in Kumar v. Gate Gourmet held that employers subject to the Washington Law Against Discrimination (employers with 8 or more employees) may be liable for failing to accommodate an employee’s religious practices. In that case, the plaintiffs alleged that their employer would not allow them to bring their own food to work for security reasons, but also would not alter the mandatory provided meals to accommodate the employees’ religious beliefs. As under federal law (applicable to employers with 15 or more employees), an alleged failure to accommodate religious beliefs requires an employee to establish (1) a bona fide religious practice that conflicts with the workplace policy; (2) notice to the employer of that conflict; and (3) threatened or actual discriminatory treatment by the employer. An employer may defend against such suit by showing that it offered a reasonable accommodation for the employee’s religious belief, or that any accommodation would impose an undue hardship on the employer. Employers, particularly those with 8 or more employees, need to be aware of enhanced obligations in this regard.
Sexual Harassment Policies
On January 14, 2015, the United States Equal Employment Opportunity Commission (“EEOC”) issued a press release regarding its position that sexual harassment remains a major issue in the American workplace. EEOC Chair, Jenny Yang, announced the establishment of a task force directed to examine best practices to educate employers and employees on workplace standards that further eradicate sexual harassment at work. One of such best practices is an emphasis on a comprehensible harassment policy. Having a policy against harassment is insufficient if it is not readily understandable by the relevant workforce. If, for example, your workforce is made up of teenagers, it is unlikely that they have a clear understanding of the technical legalese that comprises many harassment policies. Employers should analyze their workforce and communicate their harassment policies in language meaningful to that workforce.
Noncompete Agreements
The increasingly widespread use of noncompete provisions in employment agreements has led to an equally increasing resistance to enforcing such agreements. Although enforceability has always depended on the reasonableness of such agreements, a federal court in the Eastern District of Washington has further questioned their enforceability in Genex v. Contreras. In that case, the former employer sought to enforce restrictive covenants in their former employees’ employment agreements. The court refused to enforce those covenants, noting that such covenants are less reasonable when applied to lesser skilled workers (such as the bovine inseminators who were the employees at issue) or nonprofessionals. Moreover, the court noted that such covenants must be understandable by the employee to be reasonable. But most importantly, the court questioned whether at-will employment could ever be adequate consideration for a restrictive covenant. It is unknown how wide of an impact this decision will have. However, it demonstrates the basic position we have repeatedly emphasized in numerous employment situations for our clients: be reasonable, be mindful, be understandable in your policies.

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A new Washington Supreme Court case may have implications for brokers who market properties containing community amenities such as golf courses, clubhouses, swimming pools, and the like.  The case, which is known as Riverview Community Group v. Spencer & Livingston, et. al, holds in part that courts may require developers to provide amenities they (and in theory their brokers) marketed to potential buyers, even if those amenities are not formally documented in CC&Rs or deeds, or whether or not they’re economically viable.
Spencer & Livingston platted the Deer Meadows golf course development in the 1980’s, and sold some of the lots.  The plat showed a golf course, restaurant, hotel, store and clubhouse and the marketing materials represented that the development was a “golf course community”.  A local newspaper quoted Spencer as saying that they built the golf complex “so it would help sell the residential lots around here”.
After Spencer died and the recession hit, Livingston closed the golf complex and began platting it into new lots.  Some (but not all) of the homeowners formed the “Riverview Community Group” and sued to stop the platting of the golf course and asked for an “equitable servitude” – a court-imposed covenant –  limiting the use of the property to a golf course.
Livingston moved to dismiss the case because all of the homeowners in the development weren’t involved in the lawsuit and because the law requires “equitable servitudes” to be in writing to be valid.  The trial court granted the dismissal, but the Court of Appeals reversed that decision, holding that the Riverview Community Group represented every owner’s interests, even though not every homeowner was a member.  However, at the same time, it also ruled that it would be “irrational to require the defendants to rebuild and operate a failing business” and denied the request for an equitable servitude requiring the property to remain a golf course.
The Supreme Court granted review, and held that even though the Riverview Community Group didn’t contain every homeowner, they could go forward with the suit because they represented every homeowner’s interests.  Importantly for brokers, the Court also held that Washington Law allows for equitable servitudes to be implied from the conduct of the parties, meaning that the Lincoln County Superior Court has the power to require the developer to rebuild and operate the golf course – based on the plat map, the marketing materials and the representations of the parties – regardless of what their deeds or covenants said – and, in theory, regardless of whether or not it would be profitable.  The Court’s ruling is based in part on an Oregon case that required the developer to “reconstruct, maintain, and operate a nine-hole golf course for 15 years”.
It is unknown at this time how the Lincoln County Superior Court will rule on this issue, but one possibility is that it requires the developer to rebuild and operate the golf course – based on the plat, the marketing materials and the representations of the parties.
Although the case affects developers more than it does brokers, it does contain a warning for those who represent developments with amenities, because if those representations turn out to be incorrect, or if economic conditions change over time, the broker could find themselves involved in a lawsuit.  Here are some tips for brokers who find themselves in this situation:
Confirm that the amenities are formally created through covenants, conditions and restrictions, deed restrictions or other documents;
Advise the buyer to review the CC&Rs or other documents before waiving the title contingency to confirm that they are formally created;
If the amenities are not formally created in the governing documents, disclose this fact;
Stay away from phrases like “clubhouse to be built later”, etc., unless you know for sure that is correct;
If you are a developer, or if you are working closely with a developer, consider qualifying or disclaiming whatever representations you make with phrases such as “seller does not warrant the continued operation of(the amenity)”;
Consider adding these disclaimers or qualifying statements to your CC&Rs and other governing documents;
As always, if you have any questions, advise your client to seek expert advice on matters beyond your expertise, as required by RCW 18.86.050(1)(c)

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