No man’s life, liberty or property are safe while the legislature is in session.
· Judge Gideon J. Tucker
In the recently concluded session, Washington legislators enacted numerous laws that will adversely affect employers of all sizes across the State. With so many changes, it is key that employers stay up to date and understand the new challenges they will face in running their workplaces.
WASHINGTON HAS ‘BANNED THE BOX’ (2SHB 1298)
Washington is now firmly on the bandwagon to “ban the box,” barring questions about criminal convictions on initial employment applications. Employers are now prohibited from inquiring into an applicant’s criminal background until the employee is determined to be otherwise qualified for the position. The new law thus provides another area where employers have to tread carefully when rejecting applicants—an employer is much more baldly exposed to disparate impact claims arising from applicants rejected after the employer had determined they were otherwise qualified for the position. The law includes several exceptions, including for law enforcement, employers whose employees would have unsupervised access to children or vulnerable adults, and other employers required by law to conduct criminal background checks. The Attorney General’s Office is in charge of enforcing the law, and employers face an escalating system with increased fines for each subsequent violation.
Suggested Action: Remove any criminal background questions from job applications. While the statute bars advertising that states “no felons” or “no criminal background” or the like, nothing precludes employers from advising applicants at the time they apply that they will have to pass a criminal background check once they have been determined to be qualified for the job. Employers should monitor applicants screened out by the results of a criminal background check. If an employer detects a disparate impact as a result of that screening, the employer should ensure that its actions are consistent with business necessity.
SEXUAL HARASSMENT LEGISLATION
Following the national conversation regarding sexual harassment in the workplace, the Washington legislature has made sweeping changes.
Non-Disclosure Agreements (SSB 5996 and ESSB 6068)
It is now unlawful for Washington employers to require employees to sign non-disclosure agreements (NDAs) regarding sexual harassment or sexual assault as a condition of employment. Moreover, it is now unlawful for employers to retaliate against an employee who discusses sexual harassment or assault. Any pre-dispute NDA between an employer and employee regarding claims of sexual harassment or assault is now unenforceable as well. However, the statute allows confidentiality provisions in settlement agreements.
In addition to those changes, NDAs will no longer affect the availability of witness testimony or the admissibility of past instances of sexual harassment in civil or administrative actions. Previously, this sort of evidence could be precluded by an NDA. Any NDA provision prohibiting witness testimony or disclosure related to discovery is unenforceable beginning June 7, 2018. Even though the two bills were passed nearly simultaneously, it is not clear whether the broadened availability of evidence applies to settlement agreements.
Suggested Action: Review pre-dispute NDAs and remove any provision barring disclosure of sexual harassment or assault before June 7, 2018.
Model Sexual Harassment Policies (SB 6471)
The legislature directed the Washington State Human Rights Commission to draft model sexual harassment policies and best practices for employers, to be made available by January 1, 2019.
Suggested Action: Of course, most employers have had sexual harassment (and other anti-discrimination) policies in place for many years. Once the Commission finishes its work, employers should carefully compare their existing policies to those declared to be “best practices” by the Commission. Employers should be prepared for challenges that policies differing substantially from the Commission’s models are somehow inadequate.
Domestic Violence/Sexual Assault/Stalking Victim Discrimination (HB 2661)
Washington employers are used to finding the categories of employees protected from discrimination in the Washington Law Against Discrimination, Ch. 49.60 RCW (LAD). But now the legislature has created a new “protected class”: actual or perceived victims of domestic violence, sexual assault, or stalking. Beginning June 7, 2018, employers are prohibited from discriminating against applicants or employees because they belong to this newly created class. Refusing to hire or terminating someone because he or she is a victim or perceived victim of domestic violence, sexual assault, or stalking is now unlawful.
Moreover, employers must now provide a “reasonable safety accommodation” upon request from an actual or perceived victim of these crimes, which may include modified schedules, changes in contact information, or other procedures in order to keep the employee safe. Employers may refuse to accommodate only if they can demonstrate that doing so imposes an “undue hardship,” which requires a significantly difficulty or expensive.
Suggested Action: Employers should proceed carefully when faced with claims from members of this newly created protected class. While many possible “safety accommodations” may be easy or low-cost, employers should consult with counsel before rejecting a requested safety accommodation on account of undue hardship—the burden of proving that is on the employer.
BURDENS ON EMPLOYERS IN EMPLOYMENT LITIGATION
Health Care Information and Noneconomic Damages (SB 6027)
As a general rule under Washington law, filing a lawsuit for personal injuries amounts to a waiver of the physician-patient privilege. While that remains the general rule, it will no longer apply to one particular class of defendant: anyone defending against a claim under the LAD. Now, a person claiming noneconomic damages under the LAD no longer waives his or her health care privilege in a lawsuit. The only exceptions are when:
- the person alleges that a specific and diagnosable injury was because of the defending party’s conduct;
- the person relies on records or testimony of a health care provider or expert witness to seek general damages; or
- the person claims failure to accommodate a disability or alleges disability discrimination generally.
When one of those three circumstances occurs, privilege is waived on records between the claimant and the health care provider, limited to the two years prior to the act and the last date the claimant seeks damages. Further, the records are limited only to those relating to the injury alleged or that the claimant relies upon.
Suggested Action: This law will have significant changes on how claimants will bring complaints as well as how employers may defend against those lawsuits in the future. Employers facing these claims should consult with counsel as to the potential impact.
Alternative Dispute Resolution Provisions and Employment Agreements (SSB 6313)
Pre-dispute employment agreements requiring employees to handle employment disputes in arbitration, or to otherwise waive their right to file a complaint in court under the LAD or federal anti-discrimination laws, are now void and unenforceable.
Suggested Action: There are substantial reasons to believe this statute is ineffective because under current jurisprudence from the Unites States Supreme Court, it is preempted by the Federal Arbitration Act. Employers with existing programs requiring the arbitration of all employment disputes should consult with counsel to determine whether they want to challenge the statute, or modify their arbitration programs to exclude discrimination claims.
THE PAY EQUITY ACT (2SHB 1506)
It was, of course, already against the law in Washington (and the rest of the country) to discriminate against women by paying them less than male employees doing the same work. This new statute modifies the Equal Pay Act by broadening the coverage of what constitutes being “similarly employed” for purposes of that comparison. While the statute identifies a number of factors that may, alone or in combination, lawfully explain a differential in pay, the statute requires the employer to prove that those factors account for the entire differential, with no guidance on how that analysis is to be performed in statistical terms. The statute also bars basing a differential in pay on an employee’s previous compensation.
In addition to the complications introduced into equal pay litigation, the statute also makes explicit what attorneys have advised employers for decades: employers may not limit career advancement opportunities on the basis of gender. The statute also bars employer policies that would preclude employees from discussing their pay.
Suggested Action: Employers should be conscious of any pay differentials between employees of different sexes doing similar work. If differentials might exist, consider involving counsel in the discussion so as to obtain a privileged analysis about what to do. In response to highly publicized activism by the National Labor Relations Board, most private-sector employers have long since eliminated workplace policies requiring employees to keep their compensation confidential. If you do have practices along those lines, consider removing them.
SERVICE ANIMAL DEFINITION (SHB 2822)
Washington has adopted the federal definition of a “service animal”: a dog or miniature horse that is trained to do work or perform tasks for the benefit of an individual with a disability. A service animal is an animal that is trained for purposes of assisting a disabled person’s sensory, mental, or physical disability. The new definition now matches the definition contained in the federal disability discrimination statute, the Americans with Disabilities Act. Pets or “comfort animals” are no longer covered by Washington law.
Along with the service animal definition, individuals are now subject to civil infractions for lying about having a service animal. This was done to ensure the rights that come with a service animal are only afforded to people with disabilities.
Suggested Action: Educate supervisors and staff on the new definition and review your workplace policies regarding service animals.
The Washington legislature introduced many changes in the most recent session that will affect employers and require new policies and practices. We hope this overview was a helpful first step in understanding these changes. As the many questions arising from these statutes are litigated and more information is acquired, we are available and will keep you posted on further developments.