Washington State Employer Alert: Barran Liebman Examines Recent Legal Developments

Author: Gloria Ju

May 29, 2014

In the ever-changing employment law arena, Washington employers must stay on top of developments in the state that may affect their workplaces. Tyler Volm, an attorney with the labor and employment law firm Barran Liebman LLP, shared his legal and professional insights with XpertHR into the recent changes that Washington employers need to know about.

What is the biggest challenge facing HR in Washington today?

According to Volm, two recent changes in the Washington legal landscape that challenge HR are: 1) complying with the evolving patchwork of new sick leave laws that cities and municipalities have been enacting; and 2) understanding the impact of Washington's legalization of recreational marijuana on employers' rights to maintain and enforce drug-free workplace policies.

  1. Sick leave. With the 2013-2014 legislative failure of HB 1313, there remains no statewide law in Washington governing paid sick time. However, individual cities, including Seattle and SeaTac, have stepped into the breach and passed ordinances that require employers to provide paid time off to sick employees. Tacoma appears poised to follow suit, said Volm. Employers with operations in Seattle and SeaTac must determine which of their employees are eligible for sick time. Under Seattle's law, an eligible employee is an individual who performs at least 240 hours of work in Seattle within a calendar year (a low threshold that amounts to fewer than five hours per week, Volm warned). In SeaTac, eligible employees are limited to nonsupervisory employees working for hospitality and transportation employers. A common feature is that time off is protected, which means employees may not be disciplined or retaliated against for using accrued sick time. In short, absent a comprehensive statewide law, employers are left to work through the crazy quilt of municipal ordinances, each with its own particular wrinkles and idiosyncrasies.
  2. Legalized marijuana. Washington voters' decision to legalize marijuana in the state has many employers wondering about the ongoing viability of their drug and alcohol policies. As everyone in Washington is by now aware, Initiative 502 legalized small amounts of marijuana and marijuana-related products for adults age 21 and over. Despite the legalization of possession and use of small amounts of marijuana, private employers remain free to implement and enforce strict drug and alcohol policies, including policies prohibiting possession or use of marijuana. Because marijuana is still an illegal drug under federal law, an employee who tests positive for the drug may be subject to discipline and termination, even if the employee was using the drug off-premises and after work hours. Public employers are subject to more strict constitutional rules regarding employee drug testing. Volm advised that employers should review their drug and alcohol policies and consider specifically addressing this change in legislation. If appropriate, employers may wish to clarify that the change in state law does not alter employees' ongoing responsibilities under the employer's policy.

Have there been any notable new Washington laws or high court rulings in the last nine months that will have a big impact on the workplace?

Besides the two issues discussed above, 2013 saw the passage of laws governing social media account access, the state minimum wage, employer garnishments and whistleblower investigations.

  • Social media account access. Effective July 28, 2013, SB 5211 prohibits an employer from requiring any employee or prospective employee to submit any password or other related account information in order to gain access to the individual's personal social networking website account or profile. This prohibition includes the practice of shoulder surfing as well, where the employer stands behind the employee as the employee accesses his or her social media accounts. Employers should review their current social media policies not only to ensure that they do not infringe on employees' rights, but also to protect the employer's interests. For example, an employer may want to consider specifically designating that the employer owns any social media accounts created for the benefit of the employer and that employees must turn over passwords to those social media accounts on request or at the time of termination.
  • Minimum wage. The state minimum wage was increased from $9.19 in 2013 to $9.32 in 2014 (making the annual adjustment for inflation), and SeaTac voters passed a law increasing the minimum wage for hospitality and transportation workers to $15 an hour. Seattle announced earlier this month that it will also raise its minimum wage to $15 an hour over the coming years under a deal brokered by Mayor Ed Murray, and the new floor will phase in at different times for different sized businesses.
  • Employer garnishments. With the passage of SB 5360, effective June 12, 2014, the Washington Department of Labor (DOL) may issue and electronically serve a financial institution with a notice and order to withhold the funds of an employer that the DOL has deemed owes money for unpaid wages, streamlining the collections process and allowing the DOL to more quickly garnish funds.
  • Whistleblowers. In a largely procedural change to the laws governing whistleblower investigations by the Washington State Human Rights Commission (Commission), as of June 12, 2014, SB 6046 requires the Commission to notify the complainant of the completion of its investigation, issue written findings of fact and state whether or not there is reasonable cause to believe a violation has occurred. The Commission must also notify any applicable union representative. If the Commission finds that there is reasonable cause to believe that a violation has occurred, but an agreement is not reached within six months, the Commission must also notify all interested parties of that fact in writing.

Are there any bills and/or proposed rules currently pending in Washington (or in Congress) likely to pass that would have a big effect on HR?

Because Washington's legislative session ended earlier this year, there are no additional bills pending at this time.

Are there any employment and labor enforcement trends to watch in Washington?

According to Volm, the Equal Employment Opportunity Commission (EEOC) began implementing its Strategic Enforcement Plan for fiscal years 2013-2016 last year, which contains six enforcement priorities that affect the private, public and federal sectors. Employers should expect to see increased EEOC attention in the following six priority areas:

  1. Eliminating barriers in recruiting and hiring (by analyzing demographic data, job postings, application forms and testing requirements that may discriminate against underrepresented groups);
  2. Protecting immigrants, migrants and other vulnerable workers (including EEOC outreach to empower the workers themselves);
  3. Addressing emerging and developing issues (including targeting reasonable accommodation under the Americans with Disabilities Act (ADA), accommodation for pregnancy-related limitations under the ADA and coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions);
  4. Enforcing equal pay laws (targeting compensation systems that allegedly discriminate on the basis of gender);
  5. Preserving and improving access to the legal system (by investigating employer policies that may discourage individuals from exercising employment rights, including overly broad waivers, settlement provisions that prohibit legal action and mandatory arbitration); and
  6. Preventing harassment.

Also, Volm added, employers in Seattle and SeaTac should be prepared for increased enforcement of sick leave laws by designating a person in their HR department, who is trained on the recordkeeping and calculation requirements, who can answer questions and train others, as appropriate.

What is the number one mistake Washington employers are making?

As discussed at the outset, employers constantly have to keep track of the ever-changing field of employment laws and often fail to keep policies up-to-date with current laws, EEOC guidance and other state regulatory departments. Employers often become very busy and make mistakes or fail entirely to make and keep proper records of employment-related decisions and actions. Comprehensive and timely record generation and accurate record retention will assist employers in defending against subsequent claims. Given most employers' busy schedules, it is often prudent to make a quick call to legal counsel to keep abreast of recent changes or to review current systems for areas of improvement. Being proactive now can help an employer avoid pitfalls down the road.