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.
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.
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.
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.
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).
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.
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.
- 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.
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 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.
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.
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.
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.
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.
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.