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New Laws Place Additional Restrictions on Washington Employers

By: Andrew McKinley

Beginning on June 7, 2018, four new Washington laws will go into effect and place new restrictions on employers in the state.  These laws, discussed in detail below, expand the rights and protections afforded to Washington employees, and may require employers to review and revise their employment advertisements and applications, pre-hiring materials, and arbitration agreements.

Washington Fair Chance Act

The Washington Fair Chance Act prohibits employers from posting advertisements for employment openings that exclude employees from applying.  Employers also may not implement any policies or practices that automatically exclude individuals with a criminal record from consideration before determining whether the applicant is otherwise qualified.  Additionally, employers may not ask about -- or obtain information about -- an applicant’s criminal record until after the employer determines that the applicant is otherwise qualified for the position.  Finally, employers may not reject applicants for failing to disclose a criminal record prior to the determination that the applicant is otherwise qualified. 

The bill excludes a number of employers from its scope, including, for example, employers hiring individuals who will have unsupervised access to children under the age of 18, or vulnerable adults or persons; employers required by law to inquire into, consider, or rely on information about an employment’s criminal record for employment purposes; and law enforcement agencies.

Senate Bill 5996

Senate Bill 5996 provides that, as a general rule, an employer may not require an employee “as a condition of employment” to sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault “in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.”  Moreover, the law prohibits retaliation against an employee for disclosing or discussing (rather than simply complaining about) such harassment or assault.

Notably, the law only applies to agreements into which an employee has entered “as a condition of employment,” and expressly excludes from its coverage settlement agreements between an employer and an employee or former employee who has alleged sexual harassment.  The law also excludes human resources managers, supervisors, or managers who are expected as part of their job duties to maintain confidentiality, as well as individuals requested to maintain confidentiality during an open and ongoing sexual harassment investigation.

Senate Bill 6313

Senate Bill 6313 seeks to limit the enforceability of arbitration agreements between employers and employees.  The law provides that an arbitration provision contained in, for example, a contract of employment, is void and unenforceable if it requires an employee “to resolve claims of discrimination in a dispute resolution process that is confidential” or to waive the right to “publicly pursue” a cause of action, or publicly file a complaint with an agency, under state or federal antidiscrimination laws.   Given the amount of federal law that provides for preemption of state legislation of arbitration agreements under the FAA, this law, like many other state laws, is subject to challenge.  In the meantime, Washington employers need to be aware of its passage.

Senate Bill 6471

Senate Bill 6471 requires the Washington Human Rights Commission to convene a working group to develop model policies and best practices to keep workplaces free of sexual harassment.  The work group will consider the creation and protection of anonymous channels for reporting workplace misconduct, ways to hold human resource departments accountable for enforcing harassment policies, protection against retaliation, required classroom training for all employees, and other issues.

The work group must adopt model policies and best practices by January 1, 2019, which will be posted on the Commission’s website within thirty days.  Employers should keep an eye on these policies and practices as they are posted, as they suggest minimum requirements to which employers should hold themselves accountable.  They also provide strong indications of limitations and requirements that may be employed by the Washington legislature in future bills, thereby allowing employers to plan for future adjustments that may need to be made to their employment practices and procedures.

Employer Takeaways

                Given the host of new laws set to become effective June 7, employers should revisit their policies, procedures, and reporting mechanisms to ensure they remain in compliance.  In addition, employers with questions regarding these new laws would do well to consult with able counsel.