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1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

Employment disputes can be brought in state court or federal court. To bring certain claims under federal law, an employee must first file a complaint with a federal employment or labor agency, such as the Equal Employment Opportunity Commission. There is no requirement that state claims be brought before a state or local government agency before a lawsuit is filed, although many employees choose to do so. Such agencies include the Washington State Human Rights Commission and the Seattle Office of Civil Rights.

Employees and employers may agree to have employment disputes adjudicated in private arbitration. Arbitration agreements may be unenforceable, however, if they contain provisions that reduce the time in which an employee may bring a claim under a statute, impose prohibitive arbitration costs on an employee, reduce or eliminate categories of damages an employee could otherwise recover, designate a venue outside of the state, and/or shift attorneys’ fees and costs in a manner inconsistent with Washington statutes. Mandatory confidentiality provisions in arbitration agreements are also generally deemed unconscionable by Washington courts.


The Main Sources Of Employment Law

The main sources of employment law are federal and Washington state statutes, regulations, agency interpretations, and judicial interpretations. State employment statutes include the Washington Minimum Wage Act, RCW 49.46 et seq., RCW 49.48 et seq. and RCW 49.52 et seq., the Washington Industrial Welfare Act, RCW 49.12 et seq., the Washington Industrial Insurance Act, RCW Chapter 51, and the Washington Law Against Discrimination, RCW 49.60 et seq.

Additional restrictions on employment conditions can be created by agreement between employers and employees, or by collective bargaining agreements between labor unions and employers. Employee handbooks can sometimes create binding agreements between employers and employees.


National Law And Employees Working For Foreign Companies

Federal and Washington state law will apply to all people who work in Washington State, regardless of the employer or employee’s nationality.


National Law And Employees Of National Companies Working In Another Jurisdiction

Federal law applies to all employees working in the United States. In some circumstances, U.S. federal law applies to non-national employees of United States-based companies. Washington state law typically does not apply to employees working outside of Washington for companies based in Washington state, unless the employer and employee otherwise.


Data privacy

Washington employers may monitor employees with cameras or videos in public work areas. Employers may also monitor an employee's work computer and email. It is best practice to inform employees of workplace monitoring in advance, and may be a mandatory subject of bargaining if the workforce is unionized/represented.

Employers may not record private communications without the prior consent of the employee. Likewise, employers cannot request or require that an employee or job applicant provide them with their social media login information or grant them access to social media accounts.

Employers are also prohibited from requiring employees or applicants to add persons to the list of contacts associated with their personal social networking accounts or alter privacy settings to enable the employer to view the accounts. An employer may not retaliate against employees or applicants for refusing to comply with these prohibited requests/practices.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

There is no requirement that an employee be subject to a written employment agreement. Absent an agreement that states otherwise, employment in Washington State is “at-will,” which means that either party may end the employment relationship at any time, for any reason, with or without cause or notice. For employers and employees who choose to enter into an employment agreement, there are no requirements as to the form of such an agreement, other than common-law contract principles, including offer, acceptance and consideration.


Mandatory Requirements
  • Trial Period

    • Employers are not required to provide employees with a trial or probationary period, although they may do so.

  • Hours Of Work

    • There are no restrictions on the number of hours per day or per week that an employee can be required to work. However, there are restrictions on workers under the age of 18, as well as on certain occupations (e.g. nursing and truck driving). Employees who are not exempt from federal or state wage laws must be paid overtime for any time worked in excess of 40 hours in a workweek.

  • Special Rules For Part-time Work

    • There are no special rules in Washington with regard to part-time work.

  • Earnings

    • As of January 1, 2021, Washington State’s minimum wage is $13.69 per hour. The minimum wage is automatically adjusted each year to correspond with inflation. Workers who are 14 or 15 years old may be paid 85% of the adult minimum wage, or $11.64. There are additional “living wage” and local government minimum wage requirements in certain Washington cities, including Seattle ($16.69 per hour) and SeaTac ($16.57 per hour).

  • Holidays/Rest Periods

    • Employers are not required to provide employees with paid holidays.

    Employers are required by Washington law to provide non-exempt employees with mandatory paid rest breaks. The time and duration of these breaks depend on the working time of the employee. Employees can waive their meal period requirement by mutual agreement, preferably in writing. Rest breaks cannot be waived.

  • Minimum/Maximum Age

    • The minimum age for workers is 14, with limited exceptions. There are restrictions on the hours and types of work for workers under the age of 18, and additional restrictions on the hours and types of work for workers under the age of 16. There is no maximum age for workers.

  • Illness/Disability
    • Sick Leave

      • Washington law requires employers to provide non-exempt employees with one hour of paid sick leave for every 40 hours worked, regardless of full-time, part-time, temporary, or seasonal status. Sick leave may be used for a variety of purposes, including the employee's own health condition, to care for a sick family member, domestic violence issues, and school/workplace closures due to health reasons.

      Employees must be permitted to carry over their accrued, unused paid sick leave balances of 40 hours or less from one accrual year to the next. There is no requirement to cash out unused sick leave upon separation. Certain Washington cities, including Seattle and Tacoma, have passed more generous sick leave laws. For example, in Seattle, all employees (including exempt, non-exempt, temporary, seasonal) are entitled to paid sick at a rate determined by the employer's size. These laws also impose notice and other requirements on employers.

    • Paid Family Medical Leave ("PFML")

      • PFML is a mandatory state-wide insurance program that provides qualifying Washington employees with state benefits for time off to give or receive care. These benefits are funded in part by premiums deducted from employees’ wages and are administered by the Employment Security Department (“ESD”). Eligible employees may receive (1) up to 12 weeks of medical leave; (2) up to 12 weeks of family leave, or (c) up to 16 weeks of combined family and medical leave in a 52-week period for the following reasons, f.e. for medical leave (including prenatal medical care or childbirth) or family leave

      An additional two weeks may be available for serious health conditions relating to pregnancy. Employees may apply for PFML through ESD. Although ESD runs the PFML program, employers are required to provide employees with notice of it.

    • Disability

      • Employees with qualifying disabilities are entitled to reasonable workplace accommodations and/or job-protected paid or unpaid leave under federal and state law, including the Family Medical Leave Act and the Washington Law Against Discrimination.

  • Location Of Work/Mobility

    • Washington law places no restrictions on a worker's mobility. Under some circumstances, employers must pay employees for their travel time, including time spent going to and from different work sites.

  • Pension Plans

    • Pension plans are not required in Washington. If an employer has a pension or retirement plan, it is governed by federal law.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • Employers may not discriminate against pregnant employees.

    Federal and state law afford employees certain types of leave for pregnancy and parental-related absences, including Washington PFML and paid sick leave (described above in the Illness/Disability section). Additionally, the Washington Family Care Act allows employees to take any paid leave offered by their employer to provide treatment or supervision for a child with a health condition.

    Pregnant employees are also entitled to reasonable workplace accommodations. This includes frequent, longer, or additional rest breaks, modified food or drink policies, the ability to sit more frequently, and exemptions from lifting requirements, without an exception for when it may pose a hardship. Additional reasonable accommodations may be required if they would not pose an undue burden on the business.

    For a period of up to two years after childbirth, employers must provide lactating employees with a reasonable break time and a suitable room to express breast milk for a nursing child.

  • Compulsory Terms

    • There are no specific terms that must be included in an employment agreement.

    However, Washington courts are generally reluctant to enforce agreements involving Washington-based employees if they contain an out-of-state choice of law provision.

  • Non-Compulsory Terms

    • Generally, employers and employees may agree to any terms or conditions of employment, provided that the terms do not violate other laws or public policy.


Types Of Agreement

Employment in Washington State is “at-will” employment unless the employer and employee agree otherwise. “At-will” employment means that the employee is employed for an indefinite period of time and that the employer or employee may terminate the employment relationship at any time with or without cause and without prior notice, subject to state and federal discrimination laws. An employer and employee may enter into an oral or written employment agreement. Employment agreements may, under certain circumstances, be implied by actions an employer takes or by policies or written promises that employer makes in offer letters, a policy manual or employee handbook.

Written or oral employment agreements can cover a variety of subjects including length of employment, signing bonuses, and bonus structure. Typically, such agreements are used for high-level executives. If the workplace is unionized, a collective bargaining agreement may also address cover certain workplace issues.


Secrecy/Confidentiality

Washington has adopted the Uniform Trade Secrets Act, which many states have adopted. Under Washington’s trade-secret statutes, employees must keep an employer’s trade secrets confidential during and after employment. In addition, employers and employees may enter into express agreements that create broader confidentiality obligations on employees.

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.


Ownership of Inventions/Other Intellectual Property (IP) Rights

Generally speaking, federal law governs ownership of intellectual-property rights. Employers and employees may agree that employee inventions are owned by the employer, but such agreements must comply with state law, which limits the assignment to certain types of inventions and requires the employer to provide notice that the assignment does not apply to other types of inventions.


Pre-Employment Considerations

Washington's Fair Chance Act prohibits employers from obtaining information about a job applicant's criminal records until after the employer determines the applicant meets the minimum qualifications for the position. The Act also prohibits employers from advertising openings that exclude people with criminal records from applying. Certain Washington cities, including Spokane and Seattle, have implemented similar laws with different requirements.


Hiring Non-Nationals

Employers may not discriminate against employees or applicants based on national origin. However, federal law requires employers to verify that employees are eligible to work in the United States. Employers are subject to penalties for employing people who are not authorized to work in the United States.

 

Hiring Specified Categories Of Individuals

Federal, state and municipal discrimination laws prohibit an employer from discriminating against individuals based on a legally protected characteristic, including disability, HIV/AIDS/Hepatitis C status, race, color, creed, national origin, sex, marital status, age (40+), sexual orientation, gender identity, veteran or military status, whistleblower status, or use of a trained service animal. Washington law places some restrictions on the work that employees under the age of 18 or under the age of 16 can perform.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

Generally, Washington has no specific rules regarding outsourcing and/or sub-contracting employees. However, Washington does have special registration requirements for “Employment Agencies” which may include staffing companies, recruiters, leasing companies, etc.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

If employment is at-will, the employer may change the terms and conditions of employment on a prospective basis. If there is an oral, written, or implied employment contract (or a collective bargaining agreement between an employer and a labor union), the terms of that contract will govern whether and how changes to the contract may be made.


Change In Ownership Of The Business

There are no specific laws governing how the change in ownership of a business affects the employment relationship. Generally, the structure of the transaction and the agreements involved will determine whether there is a continuing employment relationship.


Social Security Contributions

Employers and employees must each make contributions to the federal social security program. The employer must withhold the employee’s contribution from the employee’s pay.


Accidents At Work

Employers must provide employees with a safe workplace. Employers must also participate in the Washington state workers’ compensation program, either by making payments to the state workers’ compensation administrative agency or by self-insuring for workplace injuries. If an employee is injured, the employer must complete documentation provided by the Department of Labor & Industries ("L&I") or its private insurer, and look for opportunities for the employee to return to work (e.g. light duty), if medically approved.


Discipline And Grievance

There are no specific federal or state laws governing a private employer's ability to implement employee discipline or grievance policies. Collective bargaining agreements between labor unions and employers may also address these issues.


Harassment/Discrimination/Equal pay
  • Harassment / Discrimination

    • Federal, state and municipal laws prohibit discrimination and harassment based on protected characteristics such as race (including traits historically associated with race, including, but not limited to hair texture and protective hairstyles such as afros, braids, locks, and twists), creed, color, sex (including pregnancy), religion, age, sexual orientation, gender identity or expression, marital status, national origin, veteran or military status, disability, or use of a service animal by a person with a disability HIV, AIDS, or Hepatitis C status, disability. Discrimination is prohibited in all aspects of employment, including job postings, interviewing, hiring, terms and conditions of employment, and termination of employment.

    Federal and Washington state law also prohibit employers from retaliating against employees who report discrimination or harassment or participate in an investigation into such complaints, or who make use of sick time or other protected leaves.

  • Workplace Accommodations

    • Employees may be entitled to reasonable accommodations in the workplace based on disability, pregnancy, and religion.

  • Equal Pay

    • Gender cannot be a reason for pay differences between employees with similar jobs. Determining if employees have similar jobs is based on skill, effort, and responsibility, not based on job titles. Differences in pay for similar jobs may be acceptable only in certain circumstances (e.g. seniority, differences in education and training, work performance).

    Employees also have the protected right to discuss their wages and have the right to access certain wage and salary information.


Compulsory Training Obligations

Washington law does not impose compulsory training obligations on employers. However, employers who provide training for employees, supervisors, and managers regarding discrimination and harassment may reduce the risk of liability for discrimination and harassment.


Offsetting Earnings

Employers may only offset earnings or make deductions from employees’ earnings for specific reasons authorized by federal or Washington state statute.


Payments For Maternity And Disability Leave

Federal and state law afford employees certain types of maternity and/or disability leave, including Washington PFML and paid sick leave (described above in the Illness/Disability section). Additionally, the Washington Family Care Act allows employees to take any paid leave offered by their employer to provide treatment or supervision for a child with a health condition.

Employees with a qualifying disability may also be entitled to other types of paid or unpaid leave.


Compulsory Insurance

Employers must participate in the Washington state workers compensation program and the Washington state unemployment program. Depending on an employer's size, they may also have insurance obligations under the Affordable Care Act.


Absence For Military Or Public Service Duties
  • Military Service and Military Spouse leave

    • Individuals who voluntarily or involuntarily vacate employment in order to serve state active duty are eligible to be reemployed provided that certain conditions are met.

    An employee whose spouse has received an impending call to active duty during a period of military conflict may take up to 15 days of job-protected leave from work.

  • Jury Duty

    • Employers must allow employees to take a leave of absence while they are serving as jurors. The leave does not need to be paid.


Works Councils or Trade Unions

Under federal law, employees may organize or choose to be represented by a labor union. Union activity is governed by federal law.


Employees’ Right To Strike

Under federal law, employees may strike, subject to certain restrictions. There are limitations on the right of some public employees (e.g., teachers) to strike.


Employees On Strike

Federal law generally prohibits employers from terminating employees who are on strike. An employer’s obligation to reinstate workers whose positions have been filled is subject to certain restrictions under federal law.


Employers’ Responsibility For Actions Of Their Employees

Employers are typically responsible for the conduct of employees who were acting within the scope of employment.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

There are no specific laws governing the termination of employment agreements, unless the employment agreement or collective bargaining agreement includes such limitations.


Instant Dismissal

If an employee is employed at-will, then the employer may dismiss the employee at any time without notice or cause, subject to discrimination and retaliation laws.


Employee's Resignation

An at-will employee may resign at any time, with or without notice.


Termination On Notice

An employee is not required to provide an employer with notice of termination unless they are subject to an employment agreement or collective bargaining agreement that states otherwise.


Termination By Reason Of The Employee's Age

Federal and state law forbid age discrimination against people who are age 40 or older. With limited exceptions, employers may not dismiss, refuse to hire, or deny an employee assignments and promotions because of the employee’s age. It is also unlawful to harass an employee because of that person’s age.


Automatic Termination In Cases Of Force Majeure

If the employment is at-will, the employer or employee may terminate regardless of the reason, including force majeure.


Collective Dismissals

The Worker Adjustment and Retraining Notification (WARN) Act requires companies planning a mass layoff to notify workers 60 days before the closure. Companies must provide written notice to the Employment Security Department and to the chief elected official of the community where the layoff or closure will occur.

Notice is triggered when a covered employer closes a facility that will result in 50 or more employees during a 30-day period. Additionally, a covered employer must give notice if a layoff will result in a loss of 500 or more employees, or 50-499 employees if they make up at least 33% of the workforce.


Termination By Parties’ Agreement

If the employer and employee have an agreement, or if the employer and a labor union have a collective bargaining agreement, then termination must be done in accordance with the terms of the agreement or collective bargaining agreement.


Directors Or Other Senior Officers

There are no special rules for the termination of senior officers. Directors are not employees simply because they are directors. Therefore, if a director is dismissed as an employee, they will remain as a director unless they are removed in accordance with the provisions of the business entity’s bylaws.


Special Rules For Categories Of Employee

There are no special rules for terminating any particular category of employees.


Whistleblower Laws

Federal and state law prohibit employers from terminating or otherwise discriminating against employees who engage in conduct protected by public policy. Examples of protected activity include reporting an employer's illegal activity, reporting unlawful harassment or discrimination, and reporting conduct that is unethical or unsafe. Additionally, the Washington State Whistleblower Act protects state employees who report improper governmental action from discharge, demotion, reduction in pay, denial of employment, and suspension.


Specific Rules For Companies in Financial Difficulties

In addition to complying with WARN Act requirements (described above in the Collective Dismissals section), companies experiencing financial difficulty must also comply with federal bankruptcy laws, which may require them to continue honoring employment agreements and/or continue voluntary employee benefits


Special Rules For Garden Leave

If an employer wishes to enforce a noncompetition agreement pertaining to a laid off employee, the employer must pay the employee's base salary for the restriction period (see Restricting Future Activities section for more information).


Restricting Future Activities

Only employees and independent contractors who earn more than legally established salary thresholds can be subject to non-competition agreements/covenants (i.e. restrictions on their ability to work in a particular industry/type of employer within a defined geographic area for a period of time). In 2021, the salary threshold is $101,390.00 for employees and $253,475.00 for independent contractors. This threshold increases annually for inflation.

Washington's noncompetition law, RCW 49.62 et seq., also imposes other restrictions on an employer's ability to subject employees to noncompetition covenants. For example:

  • Restriction periods exceeding 18-months are presumed unreasonable and unenforceable absent clear and convincing evidence that they are necessary to protect the business.
  • For laid off employees, non-competes are void and enforceable unless the employer pays the base salary for the restriction period.
  • The terms of the noncompete must be disclosed in writing no later than an employee's acceptance of the job offer unless additional consideration is provided.
  • The noncompete cannot require an employee to adjudicate the noncompete outside of Washington State.

Non-solicitation Agreements (i.e. agreements that prohibit hiring of employees or contractors and/or solicitation of clients/customers for a period) are not subject to the same statutory limits outlined above, but must be supported by sufficient consideration and have “reasonable” terms to be enforceable under Washington law.


Severance Payments

There is no requirement under Washington state law to provide employees with severance payments. Employers may voluntarily pay severance to dismissed employees or they may have a severance plan that applies to all employees. If an employer offers a severance payout, the employer may require that the employee sign a release. A release that relates to certain claims, including age discrimination claims under federal law, requires a notice and waiver period, along with specific statutory language.


Special Tax Provisions And Severance Payments

Severance payments are generally taxed in the same way as wages.


Allowances Payable To Employees After Termination

Absent a written agreement to the contrary, there is no requirement for employers to cash out accrued, unused sick leave or vacation leave upon separation. Employees who are dismissed may qualify for state unemployment benefits. Employers pay taxes for these unemployment benefits, and their tax rate may be increased based on a history of high unemployment claims.


Time Limits For Claims Following Termination

The time limits for claims following termination vary by the type of claim. For example, the time limit to bring claims before state agencies, such as Labor & Industries or the Human Rights Commission can be between one and six months. The time limit for claims brought in state or the federal court may be between two years and four years depending on the type of claim and whether or not the conduct is wilful. Discrimination claims under state law must be brought within three years. Claims based on a written contract have a time limit of six years.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

State-mandated Minimum Salary Requirements Exceed Federal Minimums

In Washington the minimum salary level that must be paid for an employee to be exempt as an Executive, Administrative, Professional, or salaried Computer Professional employees (EAPC exemptions, also known as the white-collar exemptions – each governed by specific duties tests as well) now exceeds the federal minimum level. Such employees are exempt from payment of overtime, state paid sick leave requirements, and other mandates that apply only to non-exempt employees.

Effective January 1, 2021, Washington’s Minimum Wage Act imposes different minimum salary amounts depending on the number of employees located in Washington:

  • For employers with 51 or more employees in Washington, to be EAPC exempt an employee must be paid at least $958.30 per week. Annualized, this is a salary of $49,831.60.
  • For employers with 50 or fewer employees in Washington, to be EAPC exempt an employee must be paid at least $821.40 per week. This results in an annual salary of $42,712.80.

There is also a special minimum hourly rate for those that meet the Computer Professional exemption, which allows for hourly pay, instead of salary only. For 2021, those minimums increase to:

  • 2.75 times the minimum wage, which means at least $37.65 per hour, for employers with 50 or fewer Washington-based employees, and
  • 3.5 times the minimum wage, which means at least $47.92 per hour, for employers with more than 50 Washington-based employees.

Employers have the option to pay employees to qualify as exempt Computer Professional on an hourly basis or elect to pay the minimum salary listed above.


Marijuana

Medical and recreational marijuana is legal in Washington State. Nevertheless, an employer may prohibit marijuana use and it may conduct drug tests to ensure compliance with such a prohibition. Employees do not have a private cause of action if they are terminated based on marijuana use, nor does the law require employers to accommodate an employee’s off-site use of medical marijuana.


Domestic Violence Leave

Washington state law provides for special leave for victims of domestic violence (also for family members).

Domestic violence leave is not limited by an employee's available paid time off, although paid time off may be used for that purpose. It can also include reasonable amounts of unpaid leave.


Discrimination Laws Applied to Religious Organizations

The Washington Law Against Discrimination excludes religious not-for-profit organizations from its definition of “employer,” which would seem to place those entities beyond that law’s reach. However, the Washington Supreme Court has ruled that the definition of “employer” may be unconstitutional as applied to secular positions within religious organizations.

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Disclaimer:

© 2021, Miller Nash LLP. All rights reserved by Miller Nash LLP as author and the owner of the copyright in this chapter. Miller Nash LLP has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021