February 2021 Washington HR Legal Updates

Seattle City Council Passes Hero Pay Ordinance

Update Applicable to:
Employers operating within the City of Seattle.

What happened?
On January 25, 2021, the Seattle City Council unanimously passed an ordinance requiring hazard pay for certain grocery business employees during the COVID-19 pandemic.

What are the details?
Much like the cities of California, Seattle has seen it fit to increase compensation to their grocery store workers for the risk they take when working with the public during a pandemic. The ordinance applies only to grocery businesses in Seattle that employ 500 or more employees worldwide regardless of where those employees are employed. A grocery business is defined as a retail store in Seattle that is either of the following: 

  • Over 10,000 square feet and primarily engaged in retailing groceries for offsite consumption; or 
  • Over 85,000 square feet with at least 30% or more of its sales floor area dedicated to the sale of groceries.

Any worker who performs work at a retail location of a grocery business in Seattle and who meets the definition of “employee” under Seattle Municipal Code Section 12A.28.200 must receive hazard pay.  These are any employees who are not employed in a bona fide executive, administrative, professional, or outside sales capacity.  Covered employees include, but are not limited to, full-time employees, part-time employees, and temporary workers. In addition to their regular compensation, the ordinance requires covered employees to receive $4 per hour in hazard pay for each hour worked in Seattle.  Employers are prohibited from reducing employee compensation to prevent employees from receiving the additional $4 per hour in required hazard pay.

Within 30 days of the ordinance’s effective date, employers must display a written notice of rights under the ordinance in a conspicuous and accessible place at any workplace or jobsite where any of their employees work.  The notice must be in English and the primary language(s) of the employees at the workplace. The notice must provide information regarding (1) the right to hazard pay guaranteed under the ordinance; (2) the right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and (3) the right to file a complaint with the Seattle Office of Labor Standards or bring a civil action for ordinance violations.

You can read more about the ordinance here.

What do employers need to do?
Applicable Seattle employers should update their payroll policies to accommodate this temporary ordinance, and work with onsite managers to ensure the posting requirement is met.

January 2021 Washington HR Legal Updates

2021 Washington Privacy Act Released

Update Applicable to:
Employers operating within Washington State.

What happened?
The Washington State Legislature is once again working on passing a complete version of the Washington Privacy Act (WPA), that will impact all employers operating in the state.

What are the details?
The WPA will put several new requirements on businesses that utilize any form of consumer or employee data. Few exemptions are created for business, mostly only exempting state agencies and other forms of data related to health concerns, like HIPAA personal health information.

The WPA would provide consumers (i.e., Washington state residents) with the right to request that controllers (1) correct inaccurate personal data, (2) delete personal data, (3)confirm whether they are processing personal data about a consumer and, if so, allow the consumer to access the categories of personal data, (4) provide the personal data that a consumer previously provided to the controller in a portable and usable format, and (5)permit consumers to opt out of the processing of personal data that is processed for the purposes of targeted advertising, sold to third parties, or used for certain types of profiling decisions. Controllers would have 15 days to process opt out requests and 45 days to process other requests.

The WPA will also, much like other privacy related legislation, regulates the relationship between data processors and controllers. This will require them to enter into written agreements with each other that “set out the processing instructions to which the processor is bound, including the nature and purpose of the processing, the type of personal data subject to the processing, the duration of the processing, and the obligations and rights of both parties.”

As most employers can expect, the WPA will also include a Privacy Notice requirement. The notice will identify, among other things, the categories of personal data the controller processes, the purposes for which the personal data are processed, how and where consumers may exercise their rights, the categories of third parties, if any, with whom the controller shares personal data, and whether the controller sells personal data or uses it for profiling. Additionally, controllers of personal data will be prohibited from processing sensitive personal data without consent 

Should the WPA pass, it currently has an effective date set for July 31, 2022.

You can read more about the legislation here.

The bill may be read here in its entirety.

What do employers need to do?
Washington State businesses should keep a close eye on this legislation, as it will include large administrative costs for companies who handle personal information.

November 2020 Washington HR Legal Updates

State Supreme Court Grants Overtime to Dairy Workers

What happened?
The Washington Supreme Court has ruled that dairy workers, specifically “milkers,” should be entitled to overtime pay rates.

What are the details?
Previously, in the state of Washington, there were many exemptions to the overtime provisions in the state minimum wage laws. The state Supreme Court ruled that it was in direct violation of the state constitution, namely, Article I, section 12, providing that “no law shall be passed granting to any citizen, class of citizens … privileges or immunities which upon the same terms shall not equally belong to all citizens.” With this in mind, the court decided that it is a fundamental “right of all Washington workers in dangerous industries to receive workplace health and safety protections.“ The court then claimed that the Washington legislature had no reasonable ground to favor agricultural employers and exclude agricultural employees from overtime laws.

While this ruling was specifically for dairy workers, the attacks made by the court are against all exemptions related to agricultural workers. With this in mind, the minority’s opinion in this case stated that the ruling essentially “farm workers will now be entitled to future overtime pay,” without qualification.

An article going over this case can be found here.

The Washington Supreme Court case ruling can be found here.

What do employers need to do?
Employers with agricultural employees within Washington State should consult with their employment attorneys immediately to evaluate their next steps. 

August 2020 Washington HR Legal Updates

Washington State Institutes Supplemental Paid Sick Leave

What happened?
On August 13, 2020, Governor Inslee issued Proclamation 20-67: Food Production Workers Paid Leave.

What are the details?
Proclamation 20-67 modifies previous proclamations to prohibit any food production employer from continuing to operate between August 18, 2020, and November 13, 2020, unless it provides its workers with emergency supplemental paid sick leave for a qualifying, COVID-19-related event within this window.

Covered Employers under Proclamation 20-67 include those operating:

  • Orchards, fields, and dairies;
  • All other industries specifically identified in Washington Administrative Code section 296-307- 006, with some exceptions, including timber tracts, Christmas tree growing, tree farms, forest nurseries, and forestry services;
    • Fruit- and vegetable-packaging warehouses (regardless of whether the warehouse is owned by the grower or producer); and
    • Meat and seafood processors and packers, including those falling under the 3116 and 3117 NAICS industry codes.

Also covered are employers that are farm labor contractors under Revised Code of Washington chapter 49.30 (agricultural labor), but only if they are paying wages to a covered worker.

Covered workers under this proclamation are food production workers who have started providing services to a covered employer.  These include, but are not limited to:

  • Domestic workers, i.e., Washington State-based workers, including those domiciled in Washington;
  • “Seasonal or migrant workers,” as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act; and
  • Temporary foreign workers who are lawfully present in the United States to perform agricultural labor or services of a temporary or seasonal nature

Importantly, the use of the term “worker” (rather than employee) appears to be intentional as this proclamation applies to both covered independent contractors and employees who perform work for the covered employer. 

The proclamation specifically defines which COVID-19–related events are qualifying events, which are:

  • The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The covered worker is advised by a healthcare official or provider to self-quarantine or self-isolate due to concerns related to or a positive diagnosis of COVID-19;
  • The covered worker is prohibited from working due to health concerns related to the potential transmission of COVID-19; or
  • The covered worker is experiencing COVID-19 symptoms and is seeking a medical diagnosis. You can read the whole proclamation here.

What do employers need to do?
Employers in Washington working in the food industry should update their leave policies to accommodate this new proclamation.

June 2020 Washington HR Legal Updates

Summary of State Laws (Q1 & Q2 2020)

Paid Family and Medical Leave
Effective March 25, 2020, amendments to Washington’s paid family and medical leave expand the definition of a covered child and include definitions for casual labor, paid time off, and supplemental benefits.

Effective June 11, 2020, this paid family and medical leave is further amended regarding waiting periods, supplemental benefit payments, benefits disqualification, conditional waivers, voluntary plan premiums, and enforcement and penalties.

Hair Discrimination
Effective June 11, 2020, an amendment to the Washington Law Against Discrimination (WLAD) provides that race discrimination includes discrimination based on traits historically associated or perceived to be associated with race, including hair texture and protective hairstyles, such as afros, braids, locs, and twists.

Immigrant Discrimination
Effective June 11, 2020, the WLAD is amended to prohibit discrimination based on citizenship and immigration status.

Pregnancy Discrimination
Effective June 11, 2020, the time to file an administrative complaint with the Washington Human Rights Commission regarding pregnancy discrimination is extended from six months to one year.

Lactation Accommodation
Effective June 11, 2020, employers with 15 or more employees may no longer require certification to support the need for a lactation accommodation.

Overtime Exemption
Effective July 1, 2020, Washington’s overtime exemption regulations are amended to raise the minimum salary levels and simplify the duties test for most exempt employees to more closely align with the FLSA duties tests. Effective January 2021, Washington’s minimum salary will exceed the FLSA amount by rising to approximately $827 per week (or $43,004 per year for employers with 50 or fewer employees and to approximately $965 per week (or $50,180 per year) for employers with more than 50 employees).

Seattle Hotel Employee Protections
Effective July 1, 2020, Seattle’s four ordinances (collectively known as the Hotel Employee Protections Ordinances) require hotel employers to:

  • Take certain steps to protect employees from violent or harassing conduct by guests
  • Limit the workload to reduce frequency and occurrence injuries associated with room cleaning
  • Provide increased access to medical care
  • Take actions to reduce job insecurity

Seattle Paid Sick and Safe Time
Effective March 18, 2020, amendments to Seattle’s PSST permit employees to use PSST when a family member’s school or place of care has been closed and/or when an employee’s place of business (for an employer with 250 or more full-time equivalent employees) has reduced operations or closed for any health or safety reason.

May 2020 Washington HR Legal Updates

Hairstyle/Citizen Discrimination

What happened?
The state of Washington amended discrimination laws regarding hairstyle and citizenship discrimination.

What are the details?
Effective June 10, 2020, employers may not discriminate against applicants based on their hairstyles.

Effective March 18, 2020, employers may not discriminate against applicants based on whether they are a citizen of the United States.

What do employers need to do?
Ensure company policies align with non-discrimination laws and train supervisors and hiring managers on these new requirements.

Resources
https://ogletree.com/insights/washington-amends-its-law-against-discrimination-to-provide- protections-for-hair-textures-and-styles-as-traits-associated-with-race/; http://sdc.wastateleg.org/saldana/2020/03/18/governor-approves-prohibition-on-citizenship- immigration-status-discrimination/

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Paid Family and Medical Leave Act Amendment

What happened?
On March 26, 2020, the governor signed amendments to the Paid Family and Medical Leave Act (PFMLA).

What are the details?
There are significant alterations to this law:

  • An employee has three years to bring a private right of action in court and class actions are permitted;
  • Supplemental benefits were defined as salary continuance and paid time off (such as vacation, personal, sick, compensatory, etc.);
  • An employee can satisfy the waiting period for benefits while being compensated under paid time off;
  • No waiting period for qualifying military exigencies;
  • Family members now include the employee’s spouse; and
  • If an employee is awarded PFMLA, the employee may still be eligible for workers compensation (except for total disability).

What do employers need to do?
Review current policies and procedures to ensure compliance with the above regulations.

Resources
https://www.natlawreview.com/article/washington-amends-its-paid-family-and-medical-leave- act#:~:text=The%20WPFMLA%20now%20includes%20a,limitations%20period%20is%20three%20years.

April 2020 Washington HR Legal Updates

“High Risk” Employees

What happened?
On April 15, 2020, the governor issued a proclamation extending additional protections for “high-risk” employees. This proclamation will remain in effect until at least June 12, 2020.

What are the details?
The following individuals are protected:

  1. Any individual 65 or older;
  2. Anyone living in a nursing home or long-term care facility; and
  3. Anyone with certain chronic underlying health conditions.

If any of the above employees ask for alternative work assignments, the employer must exhaust all possible options, including telework. If unable to accommodate, the employer must provide all paid leave options. The employee may choose whether to use accrued leave or file for unemployment. If paid time off is exhausted, the employee’s benefits must continue until the employee is cleared to return to work. Retaliation is prohibited.

If the employer needs to make a reduction in force, these protected individuals can be terminated, if the employment decision does not adversely impact their ability to obtain unemployment benefits.

What do employers need to do?
Comply with the above requirements for high-risk employees.

Resources
https://www.jacksonlewis.com/publication/washington-proclamation-extending-job-protections-high-risk-employees-during-covid-19-crisis