By Elliot Min and Karen Sutherland
During the 2023 Washington legislative session, 487 bills passed that were signed into law. This article is a summary of some of the most notable bills that deal with employment and labor law. The first section covers new laws applicable to a wide variety of employers (private sector, nonprofit, and public sector) and the second section covers new laws specific to public sector (government) employers.
New Laws Applicable to a Private Sector, Nonprofit, and Public Sector Employers
Senate Bill 5123 Cannabis Use by Job Applicants
This bill prohibits most employers from discriminating against a person in the hiring process based on: (a) use of cannabis off the job and away from the workplace; or (b) an employer-required drug screening test that identifies non-psychoactive cannabis metabolites in the person’s hair, blood, urine, or other bodily fluids. This bill does not: (a) prohibit an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites; (b) affect the rights or obligation of an employer to maintain a drug and alcohol-free workplace, or any other right or obligation of an employer required under federal law or regulation; or (c) apply to testing for controlled substances other than pre-employment testing. This bill also does not apply to applicants for a position with a general authority Washington law enforcement agency, certain first responder positions, certain corrections officer positions, and certain safety-sensitive positions in the airline or aerospace industries. This bill adds a new section to RCW 49.44 and is effective January 1, 2024.
House Bill 1106 Unemployment/Expansion of Voluntary Quit for Good Cause
This bill established additional circumstances where a person may voluntarily quit their employment for good cause and be eligible for unemployment benefits (i.e., unemployment insurance). This bill amends RCW 50.20.050 and 50.29.021; adds a new section to chapter 50.04; and is effective July 23, 2023.
Beginning September 3, 2023, employees are not disqualified from receiving unemployment benefits if quitting was necessary because of the death, illness, or disability of any family member, not just an immediate family member. Beginning July 7, 2024, through July 7, 2029, employees are not disqualified from receiving unemployment benefits if quitting was necessary because the care for a child or vulnerable adult in the claimant’s care is inaccessible. To be eligible for accessing benefits for any of these reasons, the claimant must have: (A) made reasonable efforts to preserve the claimant’s employment status by requesting changes in working conditions or the work schedule, or requesting a leave of absence, promptly notifying the employer of the reason, and promptly requesting reemployment when able to resume employment (unless pursuing these alternatives would be a futile act); and (B) The claimant quit and is not entitled to be reinstated to the same or comparable/similar position.
Beginning July 7, 2024, employees are not disqualified from receiving unemployment benefits if they had a regularly scheduled shift or split shift start or end time for the prior 90 calendar days, and the employer, without request by the employee and not based on a system of seniority, changes the shift or split shift start or end time by six or more hours for that shift on a non-temporary basis. Also, beginning July 7, 2024, employees are not disqualified from benefits when they: (A) left work to relocate to follow a minor child who moved outside of the claimant’s labor market; (B) remained employed as long as was reasonable prior to relocating; and (C) had parental rights over the minor child at the time of the job separation.
House Bill 1491 Employee Personal Vehicles
This bill prohibits an employer from: (a) searching an employee’s privately-owned vehicle in the employer’s parking lots or garages or access roads to those areas; and (b) allows employees to keep their private property in their vehicle, subject to certain exceptions. Some notable exceptions include: (a) vehicles owned or leased by an employer; (b) lawful searches by law enforcement officers; (c) when the vehicle is used for work and the employer needs to inspect it to ensure it is suited for work-related activities; (d) where a reasonable person would believe accessing the vehicle is necessary to prevent an immediate threat to human health, life, or safety; and (e) when an employee consents to a search based on probable cause that the employee unlawfully possesses employer property or certain controlled substances. This bill also prohibits an employer from taking adverse action against an employee for exercising the employee’s rights. This bill adds a new section to RCW 49.44 and is effective July 23, 2023.
House Bill 1187 Employee-Union Privilege
This bill establishes a privilege that protects communications between a union representative and an employee the union represents or has represented from examining or disclosing any communication between an employee and union representative that is made in the course of union representation. The testimonial privilege does not apply to any record of communications that are subject under the Public Records Act or any other statutory mandatory reporting requirements. This bill amends RCW 5.60.060 and creates a new section. In addition, it adds new sections to chapters RCW 28B.52, 41.56, 41.76, 41.80, 47.64, 49.36, and 53.18. This bill is effective July 23, 2023.
House Bill 1762 Warehouse Distribution Center Employees
This bill requires certain warehouse distribution center employers to provide written descriptions of quotas, work speed data, and other information to employees. This bill applies to employers “who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary services, or staffing agency, independent contractor, or any similar entity, at any time, employs or exercises control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center in the state or 1,000 or more employees at one or more warehouse distribution centers in the state.” In addition, any quotas must include time for rest breaks, reasonable travel time to rest and meal break locations, and sufficient time for other specified activities. This bill also includes recordkeeping and enforcement provisions and prohibits retaliation and other adverse actions. This bill adds a new chapter to Title RCW 49 and is effective July 1, 2024.
SB 5286 Paid Leave Premiums
This bill modifies the statutory formula for determining the premium assessments the state Paid Family and Medical Leave (PFML) program. On or around October 20th of each year, the Employment Security Department (ESD) must calculate the total premium rate by: (1) calculating an amount that equals 140 percent of the prior fiscal year’s expenses, including the total amount of benefits paid and ESD’s administrative costs; (2) subtract the account balance as of September 30th from the amount determined above; and (3) divide the difference above by the prior fiscal year’s taxable wages. These calculations are subject to certain adjustments to close the collection year with a three-month reserve and keep the premium rate from exceeding 1.20 percent. This bill amends RCW 50A.10.030 and is effective July 23, 2023.
SB 5111 Sick Leave Payouts for Short-term Construction Workers
This bill requires employers to pay the balance of accrued and unused sick leave to construction workers (other than residential building construction) who have not met the 90-day sick leave eligibility threshold at the time of separation of employment. Payment must be made at the end of the established pay period following the worker’s separation. This bill amends RCW 49.46.210 and 49.46.180 and is effective January 1, 2024.
House Bill 1730 Expanding Youth Employment in 21+ Establishments
This bill permits a liquor licensee to employ individuals that are at least 18 years old to perform certain services unrelated to the sale or service of alcohol, but prevents them from: (1) performing any services or work in the bar, lounge, or dining area of the licensed premises; (2) serving food, drinks, or otherwise interacting with the patrons of the licensee; and (3) possessing or consuming alcohol at any time. In addition, the licensee must ensure that a supervisor, who is at least 21 years old, is always present when the individual is working. This bill amends RCW 66.44.316 by creating a new section and is effective July 23, 2023.
New Laws Specific to Government Employers
House Bill 1200 Employee Information/Unions
This bill requires certain public employers to provide employee information to the exclusive bargaining representative for each employee in a bargaining unit if the employer has the information in the employer’s records. Information that must be provided includes: (a) the employee’s name and date of hire; (b) the employee’s contact information, including: (i) cellular, home, and work telephone numbers; (ii) work and the most up-to-date personal email addresses; and (iii) home address or personal mailing address; and (c) employment information, including the employee’s job title, salary or rate of pay, and work site location or duty station. The exclusive bargaining representative may use the information only for representation purposes. If an employer fails to comply with requirements to provide employee information, a court action to enforce compliance may be brought. The requirements do not apply to an employer specifically prohibited in its requirements as a cleared United States Department of Defense contractor from providing employee information on those employees covered by such requirements. This bill adds a new section to chapters RCW 41.56, 41.59, 28B.52, and 41.80. It is effective July 23, 2023.
House Bill 1533 PRA/Employee Information
This bill exempts from disclosure under the Public Records Act (PRA) certain personally identifying information of agency employees if the employee or a dependent of the employee is a survivor of domestic violence, sexual assault, harassment, or stalking. The employee must provide a sworn statement containing information specified in the bill or proof of participation in the state’s address confidentiality program. The information that is protected includes an employee’s personally identifiable information, such as job title, addresses of workstations and locations, work email address, work phone number, or bargaining unit. This new exemption to the PRA does not apply to requests from the media as defined in RCW 5.68.010(5). This bill amends RCW 42.56.250; creates a new section; provides an expiration date; and declares an emergency. This bill has been effective since May 15, 2023. A report on the impacts of this new exemption is due by May 1, 2025.
House Bill 1056 Postretirement Employment
This bill repealed some postretirement employment restrictions for Public Employees’ Retirement System (PERS), the Teachers’ Retirement System (TRS), and the School Employees’ Retirement System (SERS). The restrictions on receiving benefits during postretirement employment for PERS, TRS, and SERS Plans 2 and 3 retirees that retired under the 2008 Early Retirement Factors (ERF) are now lifted to allow receipt of pension payments during employment of up to 867 hours per year of employment with a retirement system employer. Benefits for retired members that choose the 3 percent ERF are adjusted to the reductions in the 2008 ERF for purposes of benefit payments made after the effective date of the act. This bill is repealing some postretirement employment restrictions; amending RCW 41.32.765, 41.32.802, 41.32.862, 41.32.875, 41.35.060, 41.35.420, 41.35.680, 41.40.630, and 41.40.820; creating a new section; and is effective January 1, 2024.
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Elliot Min is a University of Washington law student and 2023 summer associate at Ogden Murphy Wallace, P.L.L.C. (“OMW”). Karen Sutherland is the Chair of OMW’s Employment and Labor Law Group. This article is not legal advice and should not be relied on for any purpose. If you have any questions, feel free to contact Karen Sutherland at ksutherland@omwlaw.com or one of the other OMW Employment and Labor Law attorneys at https://www.omwlaw.com/practices-and-industries/employment-law.
