Washington State recently passed several employment-related laws that take effect on June 7, 2018. These laws:
- Void nondisclosure agreements that prevent employees from disclosing workplace sexual harassment;
- Prohibit employers from requiring employees to resolve discrimination claims through confidential dispute resolution; and
- Amend Washington’s existing domestic violence leave law to provide greater rights and protections, including workplace accommodations, to victims of domestic violence, sexual assault, or stalking.
In addition to these laws, a new statute directs the Washington State Human Rights Commission (WSHRC) to develop model sexual harassment policies by January 2019.
Washington employers should be also aware that the Washington Equal Pay Opportunity Act and the Washington Fair Chance Act also go into effect on June 7, 2018.
Workplace Sexual Harassment: Use of Nondisclosure Agreements Is Barred (SB 5996)
Beginning June 7, 2018, Washington employers will be barred from requiring employees to sign nondisclosure agreements, as a condition of employment, which prevent employees from disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events, or occurring off-site between employees. Under the new law, such nondisclosure agreements are void and unenforceable.
However, in certain circumstances, employers may restrict employees from disclosing workplace sexual harassment or assault. This exception is limited to employees who are expected to maintain confidentiality as part of their assigned job duties, such as Human Resources staff, supervisors or managers. Confidentiality may also be imposed when employees are notified and asked to participate in an ongoing investigation regarding alleged sexual harassment.
The law also prohibits employers from retaliating against employees who disclose sexual harassment or sexual assault occurring in the workplace or between colleagues. Notably, this conduct is already protected under the Washington Law Against Discrimination (“WLAD”) and Title VII, which both prohibit retaliation.
However, settlement agreements are excluded under this law, meaning employers may continue entering into confidential settlement agreements with employees to resolve allegations of sexual harassment or assault.
Employers may not require new employees to sign nondisclosure agreements that restrict them from disclosing workplace sexual harassment or assaults. Employers should continue to encourage employees to promptly report workplace related sexual harassment or assaults and remind employees of a strict prohibition of retaliation. If employees make allegations of sexual harassment or assault, employers may continue to enter into confidential settlement agreements with employees to resolve these allegations.
Discrimination Claims: Use of Agreements Requiring Confidential Arbitration Is Barred (SSB 6313)
Substitute Senate Bill 6313 limits employers’ ability to require confidential arbitration of state and federal discrimination and harassment claims. First, the law voids any provision in employment agreements that require employees to “resolve claims of discrimination in a dispute resolution process that is confidential.” Second, it also voids provisions that “require” an employee to waive his or her right to “publicly pursue”: (a) claims arising under the WLAD or federal anti-discrimination laws; or (b) complaints with state or federal agencies, such as the EEOC or Washington Human Rights Commission.
We expect several issues to come up under the new law, including how the law may impact existing employment agreements, whether voluntary agreements may be permissible, and whether the new state law may be preempted by the Federal Arbitration Act. We will be issuing a separate advisory further addressing these issues.
The new law injects further complexity into employers’ decisions on arbitration agreements. We recommend that employers consult with experienced counsel to review their arbitration agreements (and other applicable employment agreements) to ensure they understand the risks and benefits of arbitration and to ensure their agreements comply with the new law.
Domestic Violence, Sexual Assault, and Stalking Victims: Expansion of Workplace Protections (HB 2661)
House Bill 2661 amends the WLAD to add “actual or perceived victims of domestic violence, sexual assault, or stalking” as a new protected class.
Employers cannot refuse to hire, discharge, demote or otherwise retaliate against an “otherwise qualified individual” because he or she is an actual or perceived victim of domestic violence, sexual assault, or stalking.
The amended law also requires that employers make “reasonable safety accommodations” requested by a victim of domestic violence, sexual assault, or stalking unless it would impose an undue hardship of significant difficulty or expense. Such accommodations may include: transfer; reassignment; modified schedule; installation of locks; and changed workstation, phone number, or email address.
Additionally, if an employee requests an accommodation, an employer may require verification that (1) the employee or covered family member is a victim of domestic violence, sexual assault or stalking, and (2) the accommodation is for the purpose of protecting the employee from domestic violence, sexual assault, or stalking. An employee sufficiently satisfies this verification requirement by providing a written statement. The verification can also include a police report, court order of protection or separation from the perpetrator, or documentation from an advocate, attorney, member of the clergy or medical professional.
Employers should review and update their Equal Employment Opportunity, accommodation, and leave policies to reflect the inclusion of domestic violence laws. Additionally, employers should train managers on the new law to ensure (1) appropriate documentation is requested if needed and (2) accommodations are provided if requested.
Model Policies for Sexual Harassment-Free Workplaces (SB 6471)
Senate Bill 6471 directs the WSHRC to develop model policies aimed at preventing and eliminating sexual harassment in the workplace.
WSHRC will post the model policies on its website by January 1, 2019 and the Washington Department of Labor & Industries will post the policies on its website thirty days later.
Once WSHRC issues its model policies, employers should review the model policies and consider whether they need to make any updates to their existing policies.
Washington State is following the trend of many states passing new laws in response to the #metoo movement. We expect to see more state and local laws placing restrictions and obligations on employers, particularly around issues related to sexual harassment, sexual assault, and domestic violence. These new laws will likely have a significant impact on Washington employers. Please feel free to contact us with questions or if you need assistance.