Employment Law in Washington State

Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire or promote the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with or without reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, so long as it's true and isn't provided to maliciously harm the employee. An employer who provides false information that disparages the employee may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In Washington, employees are presumed to be "at will." At-will employees may be terminated for any reason, so long as it is not illegal. Generally, employees that work under an employment contract can only be terminated for reasons specified in the contract. In Washington, in order to overcome the at-will presumption, an employee must show that the employer made clear and unequivocal statements of job security to the employee.

The most common exception to employment-at will is for public policy. This holds that an employee is wrongfully discharged if the termination is counter to an explicit policy of the government. One example is the discharge of an employee for filing a workers' compensation claim.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. It also provides more convenient access by employees and managers. At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

In Washington, in limited circumstances, the at-will presumption can be overcome and a just-cause employment relationship can be created by an employee's legitimate expectations that are grounded in an employer's policy statements. The employee has to show that the employer, through the employee manual or otherwise, made representations or promises that termination would be only for just cause.

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain to a state or federal agency about an unsafe work environment and be protected against employer reprisals.

The US Congress created the Occupational Safety and Health Administration (OSHA) in 1971 to develop and enforce workplace safety and health rules throughout the country. States may choose to run their own safety and health programs as long as they are at least as effective as OSHA. Washington has chosen to run its own program and most employers in the state, therefore, are subject to enforcement by the Washington State Department of Labor and Industries (L&I) and not by federal OSHA.

OSHA does cover workplaces with federal employees, nonfederal employees working on federal reservations and military bases, employees working on floating worksites and employees working for tribal employers on tribal lands.

The Washington Industrial Safety and Health Act (WISHA) requires employers to provide safe and healthful workplaces for all employees. It gives L&I the responsibility to establish and enforce workplace safety and health rules. L&I provides workplace safety and health, including inspections and enforcement, consultation, technical assistance, training, education and grants. L&I inspectors enforce WISHA rules by inspecting workplaces without advance notice including investigations of work-related deaths, injuries and employees' complaints. When WISHA inspectors find a violation in a workplace, they issue a citation to the employer and a penalty may be attached.

Workplace Injury

Worker's compensation laws are designed to compensate employees, who have been injured or killed in work related accidents, regardless of fault and without the need for litigation, according to a fixed monetary scheme. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

L&I administers an insurance system that provides benefits to employees who have suffered a work-related injury or illness and protects employers from compensation and the costs associated with litigation over work-related injury claims.

The amount of compensation paid to an employee depends upon the classification of his or her disability:

• Partial Permanent Disabilities. If your injury or occupational disease caused permanent loss of bodily function, you will receive a permanent partial disability award. The amount you receive for any physical loss is established by the Legislature and does not include compensation for pain and suffering. There are two types of permanent partial disabilities:
• Specified disabilities: Some disabilities have awards that are already set by law. These are easily quantified losses, such as loss of your vision or hearing, or the loss of an eye, leg, foot, toe, arm or finger by amputation.
• Unspecified disabilities: These disabilities include every other type of impairment caused by an on-the-job injury or occupational illness, including the partial loss of function to a limb.
• Total Permanent Disabilities. If your accident results in the loss or total paralysis of both legs or arms, one leg and one arm, or a total loss of eyesight, you are eligible for a pension by law, even if you are able to return to work. If vocational and medical evaluations determine that your injury prevents you from ever becoming gainfully employed, you may be paid a monthly pension for life.

If you are the surviving spouse of someone who dies from a work-related injury or occupational disease, you and your spouse's dependent children will receive a monthly pension. The amount you will receive is based on the formula used for setting time-loss compensation payments.

Monthly pension payments are made for the worker's children at the time of the injury. Payments continue until they are age 18, or age 23 if they are full-time students at an accredited school. If a dependent child is an invalid, monthly pension payments are made until he or she is no longer dependent.

Washington's workers' compensation system is premised on a trade-off between employees and employers. Employees promptly receive workers' compensation benefits for on-the-job injuries, and the limited workers' compensation benefits are the exclusive remedy against the employer, even when the employer was negligent.

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment" which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct--an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment--an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

The Washington State Human Rights Commission (HRC) enforces the Washington State Law Against Discrimination. State law protects all people in Washington from unfair and discriminatory practices in employment. Employers with less than eight employees are exempt from the State Law Against Discrimination so that the Human Rights Commission cannot investigate sex discrimination complaints against employers with less than eight employees. However, some cities and counties have adopted ordinances that do protect employees of smaller employers.

The common-law tort of wrongful discharge is an exception to the general "at-will" employment doctrine. This means that smaller businesses may be subject to lawsuits from employees who believe that they have been fired because of sex discrimination.

There are many ways that employment can be terminated which, although they seem unfair, do not constitute wrongful termination. If you have been the victim of wrongful termination at your place of work in Washington, call a wrongful discharge attorney to discuss your wrongful termination claim.

Family and Medical Leave

Under federal law, eligible employees are allowed to take up to 12 weeks of unpaid medical leave, with continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers that had 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

Washington employers with 100 or more employees must also comply with the Washington Family Leave Act. Under that statute, employees are entitled to 12 workweeks of unpaid family leave during any 12-month period to care for a newborn or adopted child under six or a terminally ill child under 18 years of age. Like the FMLA, the statute includes notice, return to work and anti-discrimination provisions. Unlike FMLA, the Washington Statute leave is in addition to any leave for sickness or temporary disability because of pregnancy or childbirth. Also, an employee returning from leave is entitled to a position within 20 miles of the employee's workplace when leave commenced. The Washington statute is administered and enforced exclusively by L&I.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Washington's unemployment insurance program is administered by the Washington State Employment Security Department, which supports workers during times of unemployment. It provides monetary compensation to workers who have been terminated without cause, through no fault of their own, and is intended to provide temporary income while the employee seeks new employment. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

If you have been laid off or lost your job through no fault of your own, you may qualify for unemployment insurance benefits. These benefits are a temporary source of income while you look for work - or in limited, approved cases - while you retrain.

Unemployment insurance is designed to assist workers unemployed through no fault of their own. Unemployment insurance is 100% funded by employers through payroll taxes. It is not based on financial need. Although weekly benefits are not meant to completely replace your regular earnings, the benefits can help you meet expenses until you find a new job.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Related Web Links:

- Washington Department of Labor Industries
- Employment Law for Employees message boards for more help