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April 2022: Washington Governor Signs “Silenced No More Act” into Law

Update Applicable to:
All employers in the state of Washington

What happened?
On March 24, 2022, Governor Inslee signed into law Engrossed Substitute House Bill 1795 (ESHB 1795), also known as the “Silenced No More Act.”

What are the details?
Going into effect on June 9, 2022, the newly enacted law broadly covers all types of agreements between employees (defined as current, former, and prospective employees or independent contractors) and an employer, including:

  • employment agreements (such as those signed at the beginning of employment);
  • independent contractor agreements;
  • agreements to pay compensation in exchange for the release of a legal claim (settlement or severance agreements); and
  • any other agreement between an employer and employee

Prohibited nondisclosure and non-disparagement provisions cover any conduct that an employee reasonably believes under Washington state, federal, or common law to be illegal discrimination, harassment, retaliation, a wage-and-hour-violation, sexual assault, or conduct that is recognized as violating a clear mandate of public policy.

ESHB 1795 also defines prohibited nondisclosure and non-disparagement provisions to cover conduct that occurs at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee (whether on or off the employment premises).

No Exceptions for Settlement Agreements

ESHB 1795 is much more expansive than the 2018 version it repealed (RCW 49.44.210), which prohibited employers from requiring employees, as condition of employment, to sign nondisclosure agreements preventing employees from disclosing sexual harassment and sexual assault occurring in the workplace or work-related events.

The only stated exceptions to ESHB 1795 are that employers may still keep confidential the amount paid in a settlement of a disputed claim and that the law also does not apply to agreements protecting trade secrets, proprietary information, or confidential information (as long as they do not involve illegal acts). Unlike its California counterpart and its prior version which came out of the #MeToo movement, ESHB 1795 provides no exception for settlement agreements of discrimination claims or lawsuits.

Civil Penalties
Nondisclosure and non-disparagement provisions are not only void and unenforceable under ESHB 1795, violating employers are also subject to civil penalties of actual or statutory damages of $10,000 (whichever is greater), plus reasonable attorneys’ fees and costs, if they:

  1. discharge, discriminate, or retaliate against an employee who discloses conduct they reasonably believed to be illegal discrimination, harassment, retaliation, a wage-and-hour violation, or sexual assault;
  2. request or require an employee to enter into an agreement with a prohibited provision; or
  3. attempt to enforce a provision that is prohibited by this law, whether through a lawsuit, a threat to enforce, or any other attempt to influence a party to comply with a prohibited provision.

Retroactive Effect

Most notably, ESHB 1795 applies retroactively. It invalidates provisions in agreements created before the effective date and that were agreed to at the outset of employment or during the course of employment. However, the retroactivity clause does not apply to a nondisclosure or non-disparagement provision in an agreement to settle a legal claim.

For more information, please see the links below:

Engrossed Substitute House Bill 1795 (ESHB 1795)

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What do employers need to do?
Employers should review the links provided and review and revise any employment agreement with confidentiality and/or non-disparagement provisions to ensure they are in compliance with the law.

April 2022: Washington State Passes Law Requiring Display of Salary Ranges and Other Compensation Information

Update Applicable to:
All employers with 15 or more employees in the state of Washington

What happened?
On March 30, 2022, Governor Inslee signed Senate Bill 5761 (SB 5761) into law, which will have an effect on job postings.

What are the details?
Effective January 1, 2023, the new law will require employers with 15 or more employees to affirmatively disclose in all job postings a wage scale or wage range, as well as “all of the benefits and other compensation to be offered” in connection with the position, regardless of applicant request.

The law does not appear to require job postings, but if a company chooses to post a job, the law would apply. A job “posting” is defined as “any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.”

The new law also removes earlier language that had stated that if no wage scale or salary range existed, the employer would be required to provide the minimum wage or salary expectation set by the employer prior to posting the position or making a transfer or promotion.

With regard to existing employees, the new law retains the current requirement to, upon request of an employee offered an internal transfer to a new position or promotion, provide the wage scale or salary range for the employee’s new position.  However, it rescinds an existing provision of the law that offers employers the ability to provide only the minimum wage or salary expectation set by the employer for the transfer role if no existing wage scale or salary range exists.  That is, under the new law, employers will effectively need to ensure that a wage scale or salary range is available for all roles subject to an internal transfer.

Under the Equal Pay and Opportunities Act (EPOA), job applicants and employees may be entitled to certain damages and other remedies, potentially including reasonable attorneys’ fees and costs, for violations of the statute.

For more information, please see the links below:

Senate Bill 5761 (SB 5761)

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What do employers need to do?
Employers should review the links provided above and ensure that each job posting includes the wage scale or salary range for the position for the new hire, promotion, or transfer, as well as a general description of all benefits and other compensation to be offered.

March 2022: Washington Department of Public Health and King County Lift Mask Mandate

Update Applicable to:
All employers in the state of Washington and King County, Washington

What happened?
On February 28, 2022, Governor Inslee announced that Washington is entering a less restrictive phase of the COVID-19 response and King County, Washington, has also reduced restrictions.

What are the details?
Beginning March 21, 2022, the state will no longer mandate face coverings indoors in businesses, grocery stores, retail establishments, restaurants, bars, gyms, recreational centers, indoor athletic facilities, schools, childcare facilities, libraries, or houses of worship. However, private businesses can still choose to require employees, customers, or residents to wear face coverings.

Even after March 21, 2022, the general mask requirement will continue in healthcare settings (such as hospitals, outpatient facilities, and dental offices), long-term care settings, public transit, taxis, rideshare vehicles, and correctional facilities. Federal law still requires face coverings in certain settings, such as public transportation and school buses. Unvaccinated workers also must continue to wear masks indoors at job sites until further notice.

The Secretary of Health also amended its statewide facemask order (Order 20-03.7) to immediately lift the mask requirement for outdoor events or gatherings attended by at least 500 people.

Beginning March 1, 2022, statewide vaccine verification for large events will no longer be required. No other changes to state vaccination rules have been announced.

King County also announced that, beginning March 1, 2022, restaurants, bars, theaters, and gyms will no longer be required to check the vaccination status of their patrons. Businesses will be free to impose their own vaccination requirements if they choose, but the countywide requirement will disappear. The same is true for outdoor events in King County with more than 500 people, like concerts and sporting events.

All violations of state proclamations are subject to criminal penalties (as is the case with all of the governor’s recent proclamations).

Unvaccinated workers also must continue to wear masks indoors at job sites until further notice.

For more information, please see the links below:

Governor Jay Inslee Statement

Order 20-03.7

King County Masking Guidance

Article

What do employers need to do?
Employers should review the links provided above, reach out to local health departments for guidance, and continue to do their best to ensure the safety of their employees and guests.

February 2022: Washington Delays Implementation of Long-Term Care Legislation

Update Applicable to:
All employers in the state of Washington

What happened?
On January 27, 2022, Governor Jay Inslee signed House Bills 1732 (HB 1732) and 1733 (HB 1733), which delay implementation and propose several reforms to the Washington Cares Act.

What are the details?
The new bills came after legislative leaders announced an intention to delay premium collections for the Washington Cares Fund in December 2021 and to clarify employer obligations under the Act. The delay will allow legislators more time to address the concerns that led to recent court challenges and a citizens’ initiative with the goal of improving the program.

HB 1732 delays implementation of the Washington Cares Act, including employers’ obligation to deduct premiums from employee pay, until July 1, 2023. The Act requires Washington employers to collect a 0.58 percent payroll tax from all employees, and collections were previously set to begin on January 1, 2022.

Under the new law, any premiums already collected from Washington employees in 2022 are to be refunded within 120 days of being collected.

Under HB 1733, the Employment Security Department will begin accepting and approving applications for voluntary exemptions on January 1, 2023. These exemptions exceed those available under the Act as originally enacted and will allow individuals who already have coverage or who are not likely to receive benefits to permanently opt-out. Importantly, military spouses, employees with nonimmigrant visas, and employees who reside in another state but work in the state of Washington may request an exemption from the premium deductions.

Ogletree Deakins suggests that “ue to the implementation delay, employers currently are not required to collect premiums for the Washington Cares Fund from their Washington employees. For employers that started collecting the payroll tax premiums from their Washington employees on January 1, 2022, HB 1732 requires those employers to refund any collected premiums to the employees.”

The Washington Employment Security Department published instructions for employers. Instructions can be found here.

For more information, please see the links below:

Washington Cares Fund Act (House Bill 1323)

House Bill 1732

House Bill 1733

Governor Inslee’s Long-Term Care Delay Announcement (12/17/2021)

WA Employment Security Department Instructions

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What do employers need to do?
Employers should review the links provided above and should not collect any more premiums for the Washington Cares Fund. It is advised by multiple law firms to begin refunding any collected premiums to the employees within 120 days of the date premiums were collected.

January 2022: UPDATE: Washington Governor Clarifies that Employers Are Still “Legally Obligated” to Pay Premiums Under the Washington Cares Act

Update Applicable to:
All employers in the state of Washington

What happened?
In our previous communication here, we informed you about the Washington Cares Fund, which creates a mandatory, public, state-run long-term care insurance program for workers. This is an update to that article.

What are the details?
In light of a class-action lawsuit filed against the Washington Cares Fund and a pending citizens’ initiative (I-1436), which would make it optional to participate in Washington’s long-term care insurance, Washington Governor Jay Inslee announced on December 17, 2021, that he and the State Legislature have been having ongoing discussions about the long-term care legislation and have identified some areas that need adjustments.

As a result, Governor Inslee is ordering the state Employment Security Department not to collect the long-term care insurance payroll taxes from employers that were scheduled to begin in January.

On December 23, 2021, Governor Inslee issued a press release clarifying that starting January 1, 2022, “employers will still be legally obligated to pay the full amount owed to state ESD to begin the long-term care program” under the Washington Long-Term Services and Supports Act until the legislature changes the law.

He added that “s an employer, the state of Washington is following the law and will have to begin collecting money from state employee paychecks as of January .” Based on this latest clarification, employers are expected to begin long-term care premium deductions on January 1, 2022, to avoid potential costs if the legislature fails to amend the law.

For more information, please see the links below:

Governor Jay Inslee Statement (December 23, 2021)

Governor Jay Inslee Statement (December 17, 2021)

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What do employers need to do?
Employers should review the links above and per Governor Inslee’s warning, begin collecting premiums from employees’ paychecks to avoid the chance employers would have to pay the cost of the premiums themselves if the legislature fails to change the law.

December 2021: Washington State Continues to Mandate COVID-19 Vaccination for Certain Workers

Update Applicable to:
All businesses with employees, on-site volunteers, or on-site contractors in a state agency, healthcare setting, and educational setting.

What happened?
On November 24, 2021, Governor Inslee issued Proclamation 21-14.4 which applies a vaccine mandate for certain workers in the state of Washington.

What are the details?
Effective since November 24, 2022, employers are required to enforce the vaccine mandate to employees, on-site volunteers, or on-site contractors for:

  • State agencies;
  • Operators of any educational setting; and
  • Operators of any healthcare setting.

It also applies to “Health Care Providers,” who are defined as:

  • Any individual with credentials listed on the Healthcare Professional Credentialing Requirements list;
  • Individuals who are permitted by law to provide healthcare services in a professional capacity without holding a credential;
  • Long-term care workers (unless specifically excluded); and
  • Workers in any “Health Care Setting,” which is defined as any public or private setting that is primarily used to deliver in-person healthcare services to people.

The Proclamation does not include in-home care or hospice care providers.

The Proclamation has exceptions and exemptions for disability and sincerely held religious beliefs, practices, or observances unless providing accommodation does not cause an undue hardship on the employer.

Under the Proclamation, before granting a disability-related reasonable accommodation, covered employers must obtain from the worker documentation from an appropriate healthcare or rehabilitation professional stating that the individual’s disability necessitates an accommodation and the duration of the need for an accommodation.

Individuals seeking exemption from the vaccine mandate for religious reasons must provide a document that explains the way in which the vaccine requirement conflicts with the individual’s sincerely held religious observance, practice, or belief.

For more information, please see the links below:

Proclamation 21-14.3

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What do employers need to do?
Employers should review the links above and their vaccination policies to ensure they comply with the new mandate.

November 2021: Seattle is Increasing Minimum Wage

Update Applicable to:

All employers in Seattle, WA.

What happened?

On September 30, 2021, Washington State’s Department of Labor and Industries (L&I) announced that the state’s minimum wage will increase, and because of this, Seattle is also increasing its minimum wage.

What are the details?

Beginning January 1, 2022, Seattle will increase its minimum wage to $17.27 per their Minimum Wage Ordinance that went into effect on April 1, 2015, and will continue to increase on January 1, every year.

  • Employers with 501 or more employees will need to pay $17.27 per hour.
  • Employers with 500 or fewer employees can pay $15.75 per hour if they pay $1.52 per hour towards medical benefits and/or if the employee earns $1.52 per hour in tips.

For more information, please see the links below:

Wage increase in Washington State Announcement

Minimum Wage Ordinance

Minimum Wage Table 1

Minimum Wage Table 2

Article 1

What do employers need to do?

Employers should review the information above and prepare to make changes to their payroll system to comply with the upcoming wage increase.

November 2021: Washington State Minimum Wage Increasing in 2022

Update Applicable to:

All employers operating in the state of Washington.

What happened?

On September 30, 2021, Washington State’s Department of Labor & Industries (L&I) announced that the state’s minimum wage will be increasing by 5.83%.

What are the details?

Starting January 1, 2022, Washington State’s current minimum wage will be increasing by 5.83%, based on the L&I’s calculation from the Consumer Price Index Summary.

  • Employees ages 16 and up will have their minimum wage increased from $13.59 to $14.49.

  • Under state law, employers can pay 85% of the minimum wage to workers ages 14-15. For 2022, the wage for that younger group will be $12.32 per hour.

  • Salaried exempt employees will have their wages increased based on the “Salary threshold implementation schedule” provided by L&I.

For more information, please see the links below:

Department of Labor & Industries news release

Consumer Price Index

Salary threshold implementation schedule

Article

What do employers need to do?

Employers should review the information above and prepare to make changes to their payroll system to comply with the upcoming wage increase.

August 2021 Washington HR Legal Updates

Washington’s Wage Recovery Act Passed to Include Statutory Wage Liens on Unpaid Wages

Update Applicable to:
All employers in Washington.

What happened?
On April 16, 2021, Governor Inslee signed Senate Bill 5355 (SB 5355) into law.

What are the details?
Effective January 1, 2022, employees will be able to place a lien on their employers’ property to secure unpaid wages while they wait for a resolution on their unpaid wage claims.

These wage liens can be placed on property owned or subsequently acquired by the employer. This includes:

  • Real property in the state.
  • Goods and tangible chattel paper (i.e., records establishing a monetary obligation or security interests) in the state.
  • Accounts and payment intangibles. Only property in the state of Washington is subject to a lien, but employers or property owners do not need to be located in Washington for the lien to attach.

Specifically for willful violations, the property can include the real property and personal property of any officer, vice-principal, or agent. The lien could also apply to the property of those individuals’ spouses, domestic partners, and heirs.

If an employer or owner believes that the wage claim is frivolous and made without reasonable cause or clearly excessive, the party can file a motion in court directing the employee to appear before the court to show cause as to why the requested relief should not be granted. In addition, employers cannot require their employees to waive their rights to obtain a wage lien in any employment contracts or agreements.

The law can be read here.

An article on the new law can be found here.

What do employers need to do?
Employers should review the law in order to familiarize themselves with it prior to it going into effect so that they are aware of the process and what it provides. The law firm, Perkins Coie LLP, encourages employers to review the law as it has specific provisions setting out procedures on how to foreclose on a lien, the priority a wage lien is given over other types of liens, and form notices of wage liens.

July 2021 Washington HR Legal Updates

Washington Enacts Employee Long-Term Care Insurance Program 

Update Applicable to:
All employers in Washington. 

What happened?
On April 21, 2021, Governor Jay Inslee signed the WA Cares Fund (or “Fund”) into law. 

What are the details?
The WA Cares Fund, effective January 1, 2022, creates a mandatory, public, state-run long-term care insurance program for workers. Employers will not have an employer-paid portion of the premium but are responsible for collecting and reporting the premiums. Key points to keep in mind for this Fund are: 

  • The law imposes a new employee-paid premium of $0.58 per $100 of earnings.
  • There is no employer-paid portion of the premium.
  • Employers are responsible for collecting, remitting, and reporting these premiums, and employers will face penalties if they do not.
  • The benefits offered under the WA Cares Fund are limited.
  • The WA Cares Fund premiums are uncapped, but there is a $36,500 lifetime cap, indexed for inflation, on the benefits an employee can receive, so highly compensated employees will help subsidize the program.
  • WA Cares benefits are available only if the employee receives care in Washington.
  • Employees can opt out of the WA Cares Fund only if they secure their own private long-term care insurance by November 1, 2021, and they apply for and receive an exemption by December 31, 2022. 

The WA Cares Fund is being funded by employee premiums paid via a mandatory payroll deduction. Employers are responsible for collecting and remitting these employee premiums, including submitting a quarterly report of these premiums, to the Washington State Employment Security Department (ESD). 

The premiums deducted from each individual employee in Washington will be based on the employee’s wages equal to $0.58 for every $100 and will be reassessed every other year, starting January 1, 2024, but has a cap of .58%. All employees must contribute (unless approved for exemption) and the employer will withhold the amount and pay it to the WA Cares Fund. 

Employees may opt out of the Fund by attesting that they have purchased private long-term care insurance before November 1, 2021 and applying for exemption on the Washington State Employment Security Department’s (ESD) website. Exemptions will only be accepted from October 1, 2021 through December 31, 2022, once approved the employee will receive an official exemption approval letter from the ESD that the employer must receive. Once received, the employer must stop deducting premiums beginning the first day of the quarter after the quarter in which the exemption was approved. 

Employers and employees that are party to a collective bargaining agreement in existence on October 19, 2017, are not required to reopen the agreement or to comply with the WA Cares Fund law unless and until the existing agreement is reopened, renegotiated, or expires. 

An article on the new Fund can be read here

The official website for the fund is located here. 

What do employers need to do?
Employers should review the fund and update any applicable policies to ensure they are in compliance and prepared to begin deducting and reporting the premiums.

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Washington Enacts Emergency Heat Standard Rule 

Update Applicable to:
All employers in Washington. 

What happened?
On July 9, 2021, Washington’s Department of Labor & Industries filed emergency rules in addition to their existing Outdoor Heat Exposure rules. 

What are the details?
The rules, effective July 13, 2021, the Department of Labor & Industries (L&I) in Washington added emergency rules that are used to provide additional protections to employees who are exposed to extreme heat. 

When the temperature is at or above 89 degrees, the new and existing rules will combine to require employers to: 

  • Provide water that is cool enough to drink safely.
  • Allow and encourage workers to take additional paid preventative cool-down rest to protect from overheating.
  • Be prepared by having a written outdoor heat exposure safety program and providing training to employees.
  • Respond appropriately to any employee with symptoms of heat-related illness. 

When temperatures reach 100 degrees or above, the employers are required to respond by: 

  • Providing shade or another sufficient means for employees to cool down.
  • Ensuring workers have a paid cool-down rest period of at least 10 minutes every two hours.
  • Have and maintain one or more areas with shade at all times, while employees are present, that are either open to the air or provided with ventilation or cooling and not adjoining a radiant heat source, such as machinery or a concrete structure. The shaded area must be large enough to accommodate the number of employees on a meal or rest break. The shaded area must be located as close as practicable to where the employees are working. 

L&I will be working to incorporate the rules as permanent. 

The rule can be read here

Articles on the rule can be read here, here and here. 

What do employers need to do?
Employers should review the emergency rules and make any policy and worksite updates to stay in compliance.

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