Performance Appraisals: Washington
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jessica Sussman
- Defamation claims often arise in the employment context, often when negative evaluations or job references have been provided by an employer. See Employer Liability Regarding Performance Appraisals.
- Employees who believe they have suffered as a result of an employment decision often include a claim for intentional infliction of emotional distress. See Intentional Infliction of Emotional Distress.
- Employers in Washington enjoy job reference immunity in limited circumstances. See Job Reference Immunity Under Washington Law.
- Washington employers should be aware of state antidiscrimination laws with respect to performance appraisals. For example, the Washington Equal Pay Act prohibits employers from paying female employees a lower wage than similarly situated male employees. See Performance Appraisals and Discrimination; Equal Pay.
- Washington law prohibits retaliation against employees who engage in protected activities. See Performance Appraisals and Retaliation.
- Washington law recognizes a claim for negligent retention. See Negligent Retention.
- Seattle has requirements pertaining to performance appraisals. See Local Requirements.
Employer Liability Regarding Performance Appraisals
Washington law does not generally restrict private communications involving opinions regarding employee performance in the workplace. However, employers should be aware that certain disclosures regarding performance appraisals could lead to claims of defamation and intentional infliction of emotional distress. Local requirements may also apply. See Local Requirements.
Defamation claims often arise in the employment context, particularly when negative evaluations or job references have been provided by an employer. Generally, advising a third party that an employee has been terminated will not be sufficient to state a claim of defamation.
Elements of Defamation
Under Washington law, defamation claims have four elements:
- An unprivileged communication;
- Fault on the part of the defendant; and
Public and Private Figures
Employers will generally not be liable for defamation if the employee is a public figure. Washington courts rely heavily on the vortex notion of a limited-purpose public figure. Camer v. Seattle Post-Intelligencer, +45 Wn. App. 29 (Wash. 1986). A person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Ass'n, +443 U.S. 157, 168 (1979); see Clardy v. Cowles Publishing, +81 Wn. App. 53 (Wash. Ct. App. 1986).
Actual Malice and Negligence
Washington courts apply a negligence standard to defamation claims brought by private figures when the allegedly defamatory statement creates substantial harm to the individual's reputation.
Contrastingly, public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice. This means the employer must have published the defamatory statements knowing they were false or reckless.
Privileges and Defenses
Washington courts recognize a number of privileges and defenses in the context of defamation actions, including:
- Substantial truth;
- Opinion and fair comment privileges; and
- Fair report privilege.
These privileges and defenses are generally defeated if the employee proves that the employer acted with actual malice.
In order to best avoid defamation claims, employers should limit the dissemination of any negative employee appraisals to only those in management or Human Resources who have a need to know such information. Doing so will also provide employers with a viable defense to defamation claims.
Statute of Limitations for Defamation
The statute of limitations for defamation in Washington is two years. +Rev. Code Wash. (ARCW) § 4.16.100.
Intentional Infliction of Emotional Distress
Employees who believe they have suffered as a result of an employment decision often bring a claim for intentional infliction of emotional distress (IIED).
Washington law requires employees to establish the following in order to prevail on a workplace IIED claim:
- Extreme and outrageous conduct;
- Intentionally or recklessly inflicted emotional distress on the employee; and
- The outrageous conduct actually caused the employee to feel severe emotional distress.
Courts have found the alleged behavior must be so outrageous in character and extreme in degree as to go beyond all possible bounds of decency, so as to be regarded as:
- Atrocious; and
- Utterly intolerable in a civilized community.
Therefore, employees may not base IIED claims on insults, annoyances or other trivial workplace comments.
Job Reference Immunity Under Washington Law
Employers in Washington enjoy job reference immunity in limited circumstances. First, the disclosure about the former employee must only be made to a prospective employer or employment agency. In addition, the disclosure must be made in response to a specific request.
For immunity to apply, an employer can only provide information about a current or former employee that is related to the employee's:
- Ability to perform the job;
- Diligence, skill or reliability when performing his or her job duties; and
- Illegal or wrongful acts committed that relate to the job duties.
Employers who provide information from an employee's performance evaluation about how the employee performed the job or regarding attendance on the job will generally fall within the privilege. However, an employee may rebut the presumption of good faith by showing the employer abused the privilege. See, e.g., Brawley v. Rouhfar, +2011 Wash. App. LEXIS 1718 (Wash. App. 2011).
Despite these protections, an employer should obtain a signed written release from the employee requesting a reference before providing the reference.
Performance Appraisals and Discrimination
Washington employers should be aware of state antidiscrimination laws when conducting performance appraisals.
The Washington Equal Pay Act (WEPA) prohibits employers from paying female employees a lower wage than similarly-situated male employees. +Rev. Code Wash. (ARCW) § 49.12.175. Gender pay differentials based on a good-faith factor other than sex will not amount to a violation of the WEPA.
The WEPA applies to all Washington employers.
In addition to federal protections under the Americans with Disabilities Act (ADA), Washington law provides protections to those with disabilities. +Rev. Code Wash. (ARCW) § 49.60.040.
The definition of disability under state antidiscrimination laws requires the presence of a sensory, mental or physical impairment that:
- Is medically cognizable or diagnosable;
- Exists as a record or history; or
- Is perceived to exist whether or not it exists in fact.
Washington's definition of disability is broader than the federal definition and covers a greater number of impairments and medical, mental or psychological conditions. Under Washington law, a disability exists whether it is:
- Temporary or permanent;
- Common or uncommon;
- Mitigated or unmitigated;
- Whether or not it limits the ability to work generally or work at a particular job; or
- Whether or not it limits any other activity covered by the statute.
Impairment is defined as any of the following:
- Physiological disorder;
- Condition, cosmetic disfigurement or anatomical loss affecting one or more of the body systems; or
- Any mental, developmental, traumatic or psychological disorder.
Washington employers may not discriminate based age. Both state and federal statutes protect employees who are 40 years of age or older from discrimination with respect to:
- Job assignments; and
The law further protects those ages 40 or older from retaliation if they report unlawful discrimination.
Washington law prohibits discrimination in employment on the basis of creed or religion. +Rev. Code Wash. (ARCW) § 49.60.010. Creed and religion are defined broadly and include:
- Practice; and
Employers may not treat employees differently due to creed or religion. It is discriminatory to harass an employee based on creed or religion. Employers should ensure that supervisors do not treat employees differently because that employee does not share their religious beliefs or creed. Supervisors may not base any employment decision on the fact that the employee does not share their religious beliefs.
Employers must provide a reasonable accommodation for an employee's sincerely held religious beliefs that conflict with a workplace rule.
Washington law prohibits discrimination in employment on the basis of sexual orientation or gender identity. +Rev. Code Wash. (ARCW) § 49.60.040. Sexual orientation is defined as:
- Bisexuality; and
- Gender expression or identity.
Gender expression or identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.
Prohibitions against discrimination apply regardless of a person's particular sexual orientation or gender identity.
Performance Appraisals and Retaliation
When conducting performance appraisals, Washington employers should be aware that Washington law prohibits retaliation against employees who engage in protected activities, such as filing complaints under equal opportunity laws. See EEO - Retaliation: Washington.
Washington law recognizes a claim for negligent retention. The elements of such a claim include:
- The employer knew, or in the exercise of ordinary care, should have known of the employee's unfitness before the occurrence; and
- Retaining the employee resulted in the third party's injuries.
See Betty Y. v. Al- Hellou, +98 Wn. App. 146, 149 (Wash. Ct. App. 1999).
In order to avoid negligent retention claims, employers should have all prospective employees complete a job application, including obtaining consent to conduct credit and background checks, references and questions regarding convictions for crimes. Employers should contact any references provided and evaluate the suitability of the prospective employee based on this information.
Employers may also consider including questions regarding whether the prospective employee has ever been a defendant in a civil action for an intentional tort, including the nature of the intentional tort and the disposition of the action.
Seattle Hotel Employees Health and Safety Initiative
The Seattle Hotel Employees Health and Safety Initiative provides for increased employee protections in the hotel industry. See HR and Workplace Safety: Washington. The initiative includes worker retention protections during changes in ownership. NOTE: The Washington Court of Appeals invalidated the Hotel Employees Health and Safety Initiative law on December 24, 2018. It remains unclear whether this decision will be appealed to the Washington Supreme Court. As a result of this decision, Seattle hotel employers are currently not required to comply with the legal obligations under this law. XpertHR will continue to monitor this development.
Specifically, the law requires that when a hotel undergoes a change in control, the incoming hotel employer must maintain a preferential hiring list of retention hotel workers identified by the outgoing hotel employer, and must hire from that list beginning upon the execution of the transfer document and continuing for six months after the hotel is open to the public under the new owner.
An incoming hotel employer must retain these workers for 90 days. During this 90-day period, an employee may only be discharged for just cause. A fair and objective investigation must produce evidence that:
- The employee violated a reasonable and consistently applied workplace standard of which the employee knew or reasonably should have known; and
- Discharge was:
- Reasonably related to the seriousness of the employee's conduct; and
- The consistently applied punishment for a violation of that workplace standard.
At the end of the 90-day transition employment period, the incoming hotel employer must provide a written performance evaluation for each retained hotel worker. If the evaluation is satisfactory, then the employer should consider offering the worker continued employment under the terms and conditions established by the incoming hotel employer, or as required by law. The employer should retain a copy of the written performance evaluation for a period of no fewer than three years.
The measure is codified in Chapter 14.25 of the Seattle Municipal Code. The final administrative rules for the initiative, effective July 1, 2018, clarify and provide additional information regarding a range of topics. For further information on retaliation protections, see Employee Discipline: Washington.
Seattle Secure Scheduling Ordinance
Seattle has passed its Secure Scheduling Ordinance, which requires covered retail and food establishments to provide predictable schedules and related protections to workers. See Managing Employees in Special Situations: Federal.
Specifically, the ordinance requires employers to provide:
- Good faith estimates of work schedules, including on-call shifts, at the time of hire;
- Advance notice of work schedules and changes to those schedules;
- The right to request schedule preferences;
- Retaliation protections for exercising rights under the ordinance;
- Rest breaks between shifts;
- Access to available additional hours; and
- Compensation for work schedule changes.
The law applies to:
- Retail and fast food businesses with 500 or more employees worldwide; and
- Full service restaurants with 500 or more employees and 40 or more full-service restaurant locations worldwide.
Although the ordinance has provisions regarding additional hours, an employee may not qualify for additional hours under the ordinance if he or she is not currently in good standing due to a bona fide employer documented discipline or improvement plan. See Employee Discipline: Washington.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.