June 7 Marks Significant Changes For Washington Employers
On June 7, 2018, six new Washington employment laws took effect. They are summarized below.
Washington Fair Chance Act
Washington has joined Seattle as well as other cities and states in enacting a “Ban the Box” law restricting when and how employers may ask about an applicant’s criminal background. Like the Seattle ordinance, per the Washington statute, an employer must determine whether an applicant is qualified for a position before asking about criminal background, running a background check, or otherwise obtaining such information. Among other things, this means employers can no longer make this a question on an employment application. In addition, employers can’t post jobs such that persons with criminal records are barred from applying (e.g., “No felons” or “Clean background check required”) or otherwise result in excluding persons with criminal records from employment.
The statute does not apply to certain categories of employers, including those who hire employees who have unsupervised access to children and vulnerable persons, financial institutions that are otherwise allowed or required to obtain this information, law enforcement groups, some firms that work with securities, and employers seeking a volunteer (non-employee). The law does not give an applicant the right to sue for an alleged violation, but rather gives the Attorney General the authority to enforce it via a notice for the first violation, a $750 fine for the second, and a $1,000 fine for each violation thereafter.
Equal Pay Act
The Equal Pay Act prohibits employers from compensating employees who perform the same work differently based on gender absent a non-discriminatory reason. This applies to employees who work for the same employer and perform work requiring similar skill, effort, and responsibility under similar working conditions. Actual job duties rather than job titles determine whether employees are similarly employed or not.
To justify compensation differences, an employer must show factors consistent with business needs and not otherwise based on a gender-based difference, that distinguish the two employees. Such factors include, for example, education, seniority, merit-based systems, production-based pay, or regional differences in pay.
In order to help employees determine when potential violations have occurred, the statute bars employers from requiring employees to keep their compensation confidential. Employers also can’t retaliate against employees for discussing and asking about wages, asking the employer to explain the employee’s wages or lack of opportunity for advancement, or aiding other employees in performing any such actions.
Non-Disclosures Related to Sexual Harassment
This new law, a result perhaps of the #MeToo movement, prohibits non-disclosure agreements, waivers, or any other type of agreement that bars disclosure of sexual harassment or sexual assault in the workplace, at work events, or involving the employer or another employee outside of work. Such agreements are only prohibited as conditions of employment (e.g., in an employee agreement or contract), meaning separation and settlement agreements can still be confidential. The new law exempts managers, supervisors, and human resources personnel who are expected to keep complaints confidential as part of their job duties. Employees who are interviewed as part of an investigation and are asked to keep the matter confidential until its conclusion are exempted as well.
Domestic Violence Protections
RCW 49.76 (Domestic Violence Leave) has been amended to provide protections to employees who are or may be victims of “domestic violence, sexual assault, or stalking.” Employers cannot fire, threaten to fire, demote, suspend, or retaliate against an employee on such basis. These protections extend to decisions regarding potential hires as well as employees.
Employers must also provide reasonable accommodations, including, for example, “a transfer, reassignment, modified schedule, changed work telephone number, changed work email address, changed workstation, installed lock, implemented safety procedure, or any other adjustment to a job structure, workplace facility, or work requirement….” Employers need not make accommodations deemed unreasonable or that would impose an undue hardship on the business.
Right to Public Cause of Action
The legislature has amended RCW 49.44 (Labor Practice Violations) to prohibit certain restrictions on an employee’s ability to file complaints under state or federal discrimination laws. Specifically, the new law bars employers from requiring employees to waive the right to “publicly pursue a cause of action” or “publicly file a complaint” with the appropriate agency. The law also invalidates any provision requiring such claims be resolved in a confidential resolution process. It is unclear how this new law will interact with the Federal Arbitration Act, which has been found to preempt other state prohibitions on dispute resolution.
Model Sexual Harassment Policies
Finally, the legislature passed legislation directing the Washington Human Rights Commission to establish, by January 1, 2019, a set of model sexual harassment policies and best practices for employers. The law does not require employers to adopt those policies or practices, and no requirements are placed on employers in the meantime. The WHRC will form a work group to develop these proposals. The group will include representatives from the business community so employers are involved in the drafting process.