In the wake of the #MeToo movement, Washington state's legislature has adopted sweeping reforms to state laws against discrimination and created a work group to develop model sexual harassment policies and best practices. Washington’s new laws will require employers to:
Lane Powell’s Labor and Employment Team has prepared this summary highlighting key takeaways from the new employment laws, along with a Lawyers for Employers™ Compliance Checklist.
Act Encouraging Disclosure of Workplace-Related Sexual Harassment or Assault. This law places new restrictions on an employer’s ability to require employees to sign nondisclosure agreements or waivers relating to workplace-related sexual harassment or assault.
Prohibition on Waivers of Discrimination Claims and Confidential Dispute Resolution Processes. This new law renders any provision in an employment contract or agreement against public policy and void and unenforceable if it requires an employee to waive or release: (1) their right to publicly pursue a cause of action arising under the Washington Law Against Discrimination and the Washington State Civil Rights Act or federal antidiscrimination laws; (2) their right to publicly file a complaint with state or federal agencies; or (3) if it requires an employee to resolve claims of discrimination in a dispute resolution process that is confidential.
Gender Pay Equity Act. The gender pay equity legislation will update Washington’s current pay equity law, which has remained unchanged since it was enacted in 1943. The new law will apply to all employers with one or more employees in the State of Washington. Key provisions include the following:
Washington Fair Chance Act. This new law restricts employers from considering arrests and convictions in employment decisions until after the employer determines the applicant is otherwise qualified for the position, subject to several exemptions. Key provisions of the new law include:
Employers must act promptly because these five new laws are expected to become effective in mid-June. For employers doing business in Washington, Lane Powell offers this Lawyers for Employers™ checklist for complying with the new Washington laws:
✔ Review job advertisements and postings. Ensure that ads or postings do not contain categorical exclusions for felons or individuals with a criminal record.
✔ Review employment applications. Applications should not ask applicants to disclose whether they have been arrested, have been convicted of a felony, or otherwise solicit any information about an applicant’s criminal history.
✔ Review employment contracts. These new laws impact virtually all employment-related contracts that require confidentiality relating to workplace matters and all agreements that waive or release discrimination claims. Review employment agreements, confidentiality agreements, severance plans, separation agreements and settlement agreements for compliance with the new laws. Agreements should also contain severability provisions so that if some provision is void or unenforceable, the remainder is still enforceable.
✔ Review employee handbooks and policies. These new laws collectively address how employers handle discrimination, harassment and retaliation claims, serving as added incentive for addressing inappropriate conduct before it occurs. Employers should review handbooks to ensure that they have robust and clear policies prohibiting discrimination, harassment and retaliation, and a complaint reporting process.
✔ Keep an open door. Managers should ensure that their door is open and any complaints are promptly elevated to HR professionals so that they can be properly investigated.
✔ Train and empower employees to eradicate harassment. To underscore commitment to fostering diversity and eradicating improper conduct, provide interactive and practical training to all employees so that they recognize and report concerns. Managers should be trained on what to do upon receiving complaints.
✔ Review compensation practices. Ensure that existing policies and practices do not violate the pay equity law by prohibiting employees from discussing their wages and benefits with each other, or otherwise discriminate because of gender with respect to wages, benefits or advancement opportunities.
✔ Consider a pay-equity analysis. Consider conducting a pay-equity analysis to identify disparities, working closely with legal counsel to shield audit results on privilege grounds, if possible. If compensation disparities between similarly-employed employees are found, consider whether they are based upon the law’s enumerated bona fide job-related factors. Disparities that are not based on such factors should be promptly corrected.
✔ Review recruiting practices and train managers. Policies and practices around the use of criminal background information should be reviewed to ensure that criminal history is not inquired into, and is not considered, until after an applicant has been screened and deemed “otherwise qualified” for the position. Hiring managers and HR personnel should be trained on the new restrictions.
✔ Stay tuned. The Legislature found that 25-85 percent of working women have experienced sexual harassment on the job, and therefore employers must be encouraged to adopt and actively implement policies to ensure sexual harassment is reported. The Legislature required the Washington State Human Rights Commission to convene a stakeholder work group who must develop and adopt model policies and best practices no later than January 1, 2019.
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