New Washington State Employment Laws Taking Effect on June 7, 2018

Washington’s legislature has been busy on the employment front, enacting a number of new employment-related laws that became effective on June 7.  Here’s a summary of these new laws:

Disclosure of Religious Affiliation (EHB 2097)

This new law includes new sections to Washington’s Law Against Discrimination, Chapter 49.60 RCW, which prohibit employers from requiring employees to disclose their religious beliefs or affiliation, unless the disclosure is needed to provide a religious accommodation that’s requested by the employee.  The law also prohibits state and local government entities from collecting or sharing information on their employees’ religious beliefs, affiliation, or practices, and exempts religious affiliation information from public records requests.  As Governor Inslee explained, “In a time when divisive rhetoric is used and our liberties are threatened from a national level, I stand with you and will not allow for the government or employers to begin collecting religious information on our residents.”  This law will not apply to a “religious or sectarian organization not organized for private profit.”  Technically, it also does not apply to companies with less than eight employees; it could, however, be used against such small employers in a wrongful termination lawsuit.

Waiver of Discrimination Claims in Employment Agreements (SSB 6313)

This law, which adds a new section to Chapter 49.44 RCW (“Violations—Prohibited Practices”), voids any provision in an employment agreement that requires employees to (1) waive their right to file an employment discrimination lawsuit or a complaint with the state Human Rights Commission or federal Equal Employment Opportunity Commission; or (2) resolve discrimination claims in a confidential dispute resolution process.  The statute is confusing because the second provision is unnecessary – if an employment contract requires an employee to resolve a discrimination claim in a confidential dispute resolution process (such as arbitration), then it would necessarily waive the employee’s right to pursue a discrimination claim in court.

The bill reports make clear that the law is Washington’s response to the #MeToo movement and sexual harassment claims, and the bottom line for employers is that an arbitration clause in employment agreements are not enforceable under state law as to discrimination claims.  For employers covered by the Federal Arbitration Act, however, this new law is likely preempted by federal law, which would enforce the agreement to arbitrate discrimination claims.  In addition, public employers may be able to exempt themselves from this provision through a collective bargaining agreement, as long as employment discrimination provisions are included in the collective bargaining agreement.

Employers should still consider arbitration clauses for non-discrimination employment claims and clauses waiving employees’ right to participate in class or collective action lawsuits, which are not addressed in the statute.

Employment Protection for Survivors of Domestic Violence, Sexual Assault, and Stalking (HB 2661)

Chapter 49.76 RCW provides victims of domestic violence, sexual assault and stalking the right to reasonable employment leave to participate in legal proceedings, receive medical treatment, and obtain other related services.  This new law provides additional protections to such victims, prohibiting employers from discriminating against them in hiring and employment and requiring employers to make reasonable safety accommodations requested by victims.  Safety accommodations include reassignments, modified schedules, changed work phone numbers, etc.

Gender Wage and Advancement Equity (SSHB 1506)

This law updates Washington’s Equal Pay Act (enacted in 1943) to eliminate the gap in wages and advancement opportunities between men and women.  It prohibits differentials in pay and career advancement opportunities based on gender.  The law identifies bona fide job related factors that would justify pay and advancement differentials, but makes clear that previous wages earned is not a valid defense.  In addition, it protects employees’ right to disclose, discuss, and ask about their and other employees’ wages, but does not require an employee to disclose his or her compensation.  Finally, the law provides for an administrative remedy with the Department of Labor and Industries, as well as strengthened right to a private civil action with double damages and attorneys’ fees.

If you have any questions about how these or other employment laws affect you or your business, please contact Kevin Hansen or Rebecca Penn at Livengood Alskog, PLLC.

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