Washington Employment Law Update — May 2019

Preventing Sexual Assault of Isolated Workers

On May 13, 2019, Washington Governor Jay Inslee signed legislation (S.B. 5258) requiring every hotel, motel, retail, or security guard entity, or property services contractor who employs an employee, to:

• Adopt a sexual harassment policy.
• Provide mandatory training to the employer’s managers, supervisors, and employees to:
  • Prevent sexual assault and sexual harassment in the workplace;
  • Prevent sexual discrimination in the workplace; and
  • Educate the employer’s workforce regarding protection for employees who report violations of a state or federal law, rule, or regulation.
• Provide a list of resources for the employer’s employees to utilize. At a minimum, the resources must include contact information of the Equal Employment Opportunity Commission, the Washington State Human Rights Commission, and local advocacy groups focused on preventing sexual harassment and sexual assault.
• Provide a panic button to each employee, which is an emergency contact device carried by an employee by which the employee may summon immediate on-scene assistance from another worker, a security guard, or a representative of the employer.

A property services contractor must submit the following to the Washington Department of Labor and Industries on a form or in a manner determined by the department:

• The date of adoption of the required sexual harassment policy.
• The number of managers, supervisors, and employees who are trained as required.
• The physical address of the work location or locations at which janitorial services are provided by workers of the property services contractor, and for each location:
  • The total number of workers or contractors of the property services contractor who perform janitorial services; and
  • The total hours worked.

Hotels and motels with 60 or more rooms must meet these requirements by January 1, 2020. All other employers must meet these requirements by January 1, 2021.

The law is effective July 28, 2019.

Read WA S.B. 5258

Subminimum Wage Certificates Eliminated for State Agencies

On May 13, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1706) eliminating subminimum wage certificates for persons with a disability. Beginning July 1, 2020, state agencies may not employ an individual to work under a special certificate issued for the employment of individuals with disabilities at less than the minimum wage. Any special certificate issued by the Director of Labor and Workforce Standards to a state agency for the employment of an individual with a disability at less than minimum wage must expire by June 30, 2020. A state agency is any office, department, commission, or other unit of state government.

The law is effective July 28, 2019.

Read WA H.B. 1706

Data Breach Notification

On May 7, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1071) revising state law related to the required protection of personal information and mandatory steps in the event of a security breach. The law imposes updated breach notification requirements and provides a format for this notice. For example, the law adds the following:

• If a security breach involves personal information including a username or password, notice may be provided electronically or by email. The notice must inform the person whose personal information has been breached to promptly change his or her password and security question or answer, as applicable, or to take other appropriate steps to protect the online account with the person or business and all other online accounts for which the person uses the same user name or email address and password or security question or answer.
• When the breach of the security of the system involves login credentials of an email account furnished by the person or business, the person or business may not provide the notification to that email address, but must provide notice using another method. The notice must inform the person whose personal information has been breached to promptly change his or her password and security question or answer, as applicable, or to take other appropriate steps to protect the online account with the person or business and all other online accounts for which the person uses the same user name or email address and password or security question or answer.

Additionally, a time frame of exposure, if known, including the date of the breach and the date of the discovery of the breach, must be included with a breach notice.

The law is effective March 1, 2020.

Read WA H.B. 1071

Equal Pay and Opportunities Act

On May 9, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1969) enacting the Washington Equal Pay and Opportunities Act. Under the act, an employer may not:

• Seek the wage or salary history of an applicant or a current or former employee; or
• Require that an applicant’s prior wage or salary history meet certain criteria.

However, an employer may confirm an applicant’s wage history or salary history:

• If the applicant voluntarily disclosed either; or
• After negotiating and making an employment offer to the applicant with compensation.

The act also includes the following terms for employers with 15 or more employees:

• An applicant may request and receive the minimum wage or salary for the position to which he or she applied.
• An internally transferred employee may request and receive the wage scale or salary ranges for his or her new position.

The law is effective July 28, 2019.

Read WA H.B. 1696

Noncompetition Agreements

On May 8, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1450) related to restraints, including noncompetition covenants, on persons engaging in lawful professions, trades, or businesses. Under the law, agreements limiting competition or hiring may be contracts of adhesion that may be unreasonable.

The law is effective January 1, 2020.

Read WA H.B. 1450

Construction Workers and Sick Leave

On April 30, 2019, Washington Governor Jay Inslee signed legislation (S.B. 5233) creating an alternative process for construction workers represented by collective-bargaining agreements regarding their sick leave benefits. Under the law, the state’s paid sick leave provisions (located at Wash. Rev. Code §§ 49.46.200 – 49.46.830) do not apply to construction workers covered by a collective-bargaining agreement when all of the following apply:

• The union signatory to the collective-bargaining agreement is an approved, authorized referral union program.
• The collective-bargaining agreement establishes equivalent sick leave provisions to the state’s paid sick leave law, except the payment of leave at the normal hourly compensation may occur before usage.
• The requirements of the state’s paid sick leave law are expressly waived in the collective-bargaining agreement in clear and unambiguous terms or in an addendum to an existing agreement, including an agreement that is open for negotiation, so long as the sick leave portions were previously ratified by the membership.

The law is effective July 28, 2019.

Read WA S.B. 5233

Mandatory Domestic Violence Poster

On April 20, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1533) requiring the Washington Employment Security Department to create, and provide on its website, a domestic violence employment poster. The poster must include a space where an employer must provide the name(s) of domestic violence community resources. Employers must conspicuously post this poster where other required employment posters are located. The law does not create any liability for any person or entity for any acts or omissions.

The law is effective July 28, 2019.

Read WA H.B. 1533

Confidentiality of Workers’ Compensation Claim Records

On April 14, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1909) protecting the confidentiality of industrial insurance claims records (workers’ compensation claim records) by imposing a $1,000 civil penalty on employers, or their duly authorized representative, that reveal information about a mental health condition or treatment that is in an individual’s claim file to anyone other than that who is authorized to receive such information (a duly authorized representative). Information contained in workers’ compensation claim files, and records of injured workers, are confidential and may not be open to public inspection (other than to public employees in the performance of their official duties). However, representatives of a claimant, be it an individual or an organization, may review a claim file or receive specific information therefrom upon the presentation of the signed authorization of the claimant.

The law is effective July 28, 2019.

Read WA H.B. 1909

Breastfeeding as a Workplace Reasonable Accommodation

On April 24, 2019, Washington Governor Jay Inslee signed legislation (H.B. 1930) amending the Washington Healthy Starts Act’s workplace accommodation provisions by including:

• The need to express breast milk within the definition of pregnancy; and
• That providing reasonable break time for an employee to express breast milk for two years after the child’s birth is a reasonable accommodation for the employee’s pregnancy.

Reasonable break time must be granted each time the employee needs to express her milk, and the employer must provide a private location at the workplace, other than a bathroom, which may be used by the employee to express her breast milk. If the business does not have a space for the employee to express milk, the employer must work with the employee to identify a convenient location and work schedule to otherwise accommodate her needs.

The law is effective July 28, 2019.

Read WA H.B. 1930

Wage Payment Upon Employee’s Death

On April 19, 2019, Washington Governor Jay Inslee signed legislation (S.B. 5831) increasing the amount an indebted employer must pay to the survivors of a deceased employee to $10,000. Specifically, if at the time of an employee’s death, his or her employer is indebted to him or her for work, labor, and services performed, and there is no executor or administrator appointed to the employee’s estate, the employer must (upon the request of the surviving spouse) pay the indebtedness due up to $10,000 to the surviving spouse. If the decedent leaves no surviving spouse, payment must be made to the decedent’s child or children, or if no children, to the decedent’s father or mother.

The law is effective July 28, 2019.

Read WA S.B. 5831