Below is a summary of laws enacted by the 2007 Washington state legislature that will affect Washington employers.
Paid Family Leave Added in Washington
Effective date: October 1, 2009
Summary: Beginning October 1, 2009, Washington will provide all workers with paid family leave benefits, under Washington’s family leave law. This law also will expand the number of employers obligated to restore an employee to his or her previous job after taking family leave to employers with 26 or more employees.
State-Paid leave: Under Washington’s family leave law, all qualified full-time employees will be entitled to state-paid family leave benefits of up to $250 per week for five weeks for the care of the employee’s newborn or newly adopted child.
To qualify for state-paid leave, the employee must have 1) worked at least 680 hours during the previous four calendar quarters; and 2) provided written notice of the intent to take leave. Employees who work fewer than 35 hours per week will receive a prorated amount.
The employee is entitled to a maximum of six weeks of family leave during the application year - five weeks of paid family leave and one week of unpaid family leave. The week of unpaid family leave occurs during the first seven calendar days of leave, during which paid benefits are unavailable.
Job restoration: Beginning October 1, 2009, all employers with 26 or more employees will be required to restore a qualified employee returning from family leave 1) to the same job he or she had before taking leave; or 2) to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment at a workplace within 20 miles of the employee’s workplace when leave commenced. This is consistent with the Washington Family Leave Act (RCW 49.78).
To qualify for job restoration, the employee must have 1) been with the employer at least twelve months and 2) worked at least 1250 hours during the immediately preceding twelve-month period.
The employer’s job restoration obligation continues through the six weeks of family leave available to an employee in an application year.
Nature of leave: Any leave taken under the new law must be taken concurrently with any unpaid leave under the federal Family and Medical Leave Act of 1993 or under the Washington Family Leave Act.
Employers may require that leave be taken concurrently or otherwise coordinated with any leave allowed under the terms of a collective bargaining agreement or other employer policy, as applicable for bonding with the child. Employers must give employees written notice of this requirement.
If spouses or state registered domestic partners are employed by the same employer, the employer may require that they not take leave concurrently.
This law distinguishes child-bonding from child-birth. Washington law already entitles a woman who is disabled by pregnancy, childbirth, or both to all the leave needed for the disability. The parental leave in this new law is in addition to the disability leave. This distinction also means that leave is available to men, as well as women.
An employee wishing to take leave pursuant to this law must provide the employer with written notice of the intent to take leave, as required under the Washington Family Leave Act.
Recommendations: While this law does not take effect until 2009, covered employers would be wise to start preparing for the changes now. We recommend:
- Preparing a revised employee handbook that reflects the changes in this law;
- Devising a system that will allow the employer to hold an employee’s position open for the six weeks of leave available to the employee;
- Implementing policies to prevent discrimination/retaliation against a person for filing a claim for benefits, communicating an intent to file a claim, or testifying or assisting in a proceeding related to a family leave insurance claim.
Background Credit Checks for Employment Purposes Restricted
Effective date: Currently effective (as of July 22, 2007)
Summary: Washington’s credit reporting law now prohibits an employer from obtaining a consumer report bearing on an employees’ or applicants’ creditworthiness, unless the information is substantially job related or required by law. If such information is substantially job related, the employer may obtain it only after the reasons for the use of such information are disclosed to the consumer in writing.
This provision does not apply to credit reports of an employee “who the employer has reasonable cause to believe has engaged in specific activity that constitutes a violation of law.”
It is unclear what circumstances make credit information substantially job related. From an employer’s perspective, credit information may be important if the employee’s job duties involve dealing with cash, handling large funds (e.g. payroll), or dealing with corporate finance or sensitive client information. However, nothing in the provision indicates whether these employer interests would make the credit information “substantially job related.”
This provision creates a new restriction on an employer’s use of credit information in Washington, but such practices are also receiving national attention. The EEOC has stated that basing an adverse employment decision on credit records without a business necessity may be unlawful because doing so has a disparate impact on minority groups. The agency launched an initiative this spring that focuses, in part, on hiring decisions based on credit scores, and arrest and conviction records, and has a new specialized task force that will handle evidence turned up from this program. Several lawsuits have already been filed.
While Washington's law is separate from a Title VII disparate impact claim, it is likely that adhering to Washington's substantially job related requirement will provide employers with the business necessity defense necessary to succeed in a disparate impact claim.
Recommendations: To adhere to Washington's new law, we recommended the following protective measures:
- Make sure employment forms do not indicate that an employee or job applicant is giving permission for a credit report review that is now prohibited under the revised law;
- Ensure that outside background-check vendor(s) are aware of this new restriction and do not cause a violation of the law by providing credit report information in a consumer report; and
- Identify categories of workers, or individual employees, for whom credit information is substantially job related and document that justification.
“Disability” Redefined under Washington Law Against Discrimination
Effective date: Currently effective (as of July 22, 2007)
Summary: The Washington state legislature has expanded the definition of “disability” under the Washington Law Against Discrimination.
In 2006, the Washington Supreme Court redefined the term “disability” under the Washington Law Against Discrimination (WLAD) to mirror the definition in the federal Americans with Disabilities Act (ADA). This year, the Washington state legislature effectively overruled the Washington Supreme Court, by rejecting the ADA definition, stating that Washington’s anti-discrimination law provides protections beyond those provided by federal law.
“Disability” under the WLAD is now defined as a sensory, mental, or physical impairment that is medically cognizable or diagnosable, or exists as a record or history, or is perceived to exist, whether or not it actually exists. The “disability” exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether it limits the ability to do work or engage in any other activity encompassed within Washington’s anti-discrimination law. “Impairment” includes a physiological disorder, cosmetic disfigurement, anatomical loss affecting one or more of several specified body systems, and mental, developmental, traumatic, and psychological disorders.
This definition applies retroactively to causes of action occurring before July 6, 2006 and on or after July 22, 2007.
Recommendations:
- Because this definition is retroactive, employers should immediately revisit
- Any employee requests for accommodation that were rejected under prior definitions, and
- Adverse employment decisions against an individual who may be “disabled” under the new definition.
“Veteran or Military status” Added to Washington Law Against Discrimination
Effective date: Currently effective (as of July 22, 2007)
Summary: The Washington Law Against Discrimination now protects applicants and employees from discrimination in employment based on the individual’s status as a veteran or member of the military. “Veteran or military status” includes any honorably discharged veteran and any active or reserve member of any branch of the armed forces of the United States, including the National Guard and the Coast Guard.
Recommendations:
- Employers should inform employees with authority to hire, fire, or promote, and those with supervisory authority, of their obligation not to discriminate against an employee based on the individual’s status as a veteran or member of the military
- Employers should inform all employees of their obligation not to create a hostile work environment or retaliate against an employee based on the individual’s status as a veteran or member of the military.
Restrictions on Wireless Communications Devices
Effective date: January 1, 2008 (text messaging); July 1, 2008 (voice calls)
Summary: Beginning the first day of 2008, any person operating a moving motor vehicle while reading, manually writing, or sending a text message on an electronic wireless communications device is guilty of a traffic infraction, absent specified emergency circumstances.
Beginning July 1, 2008, any person operating a motor vehicle while holding a wireless communications device to his or her ear is guilty of a traffic infraction, unless 1) the person is using the wireless device in hands-free mode; 2) the person is using hearing aids; or 3) the person is engaged in specified emergency-related activities.
Recommendations: Employers who authorize employee use of a motor vehicle for employment purposes should:
- Revise their employment handbooks to reflect these changes in law.
- Notify employees of these changes to ensure they comply with the laws while on duty or driving a company vehicle.
Domestic Partnership Rights
Effective date: Currently effective (as of July 22, 2007)
Summary: Washington now allows individuals who are members of the same sex, or heterosexual couples where one of the persons is at least 62 years of age, to enter into a state registered domestic partnership.
Under this law, domestic partners are now granted certain powers and rights formerly granted only to spouses. These include, 1) health care facility visitation rights, 2) authority of health care providers to disclose information about a patient without the patient’s authorization, 3) inheritance rights; and 4) beneficiary rights in wrongful death actions.
Employers are obligated to grant certain rights to domestic partners pursuant to laws which specifically reference domestic partnerships (e.g., Washington’s family leave law, discussed above).
Recommendations: We recommend that employers,
- Acknowledge domestic partnerships to the extent required to comply with Washington law.
- Inform domestic partners of their rights to the same extent they inform married persons.
- Inform all employees of domestic partners’ rights under laws prohibiting retaliation, such as Washington’s family leave law (discussed above).
Originally appeared in Dorsey's Employment Law Update