2024 HR Day on the Hill and Legislative Summary

Amy Robinson | Miller Nash LLP  Amy Robinson, a partner with Miller Nash LLP and the co-chair of the firm’s Employment & Labor Relations Team.

By Amy Robinson of Miller Nash LLP

As many of you can attest from our recent SHRM Day on the Hill our Washington Legislature been busy drafting, considering, debating and adopting a number of new laws that will impact HR professionals and employers in our state. Here are the highlights:  

SB 5979. Defines “Construction Worker” for Sick Leave Payout Requirement
STATUS:  Passed, signed by Gov. Inslee March 13, 2024, effective Immediately.

You may recall our alert just this January regarding a change to the sick leave rules that was uniquely applicable to Washington construction employers. In particular, while the legislature had amended the sick leave law last year to require special payout rules for commercial construction workers who are employed less than 90 days, it did not specifically define “construction worker.”  In its rulemaking, the Department of Labor & Industries adopted a particularly broad definition which included virtually any employee of a commercial construction employer, even those in administration and other non-construction related jobs.   

The legislature has, relatively quickly, rejected that definition, overriding it in favor of a more narrow definition that it felt was in line with its original intent.  Now, rather than covering all employees of non-residential construction employers in Washington, the rule that requires payout of accrued sick leave (or PTO if used to satisfy the sick leave requirements) for any employee who works less than 90 days for the employer now only applies to those who meet the specific statutory definition, which is: 

(A) "Construction worker" means a worker who performed service, maintenance, or construction work on a jobsite, in the field or in a fabrication shop using the tools of the worker's trade or craft. 

SB 5935. Expands Coverage of WA Noncompetition Statute
STATUS:  Passed, signed by Gov. Inslee March 13, 2024, effective June 6, 2024.    

In 2019, Washington enacted a new statute, limiting which employees can be covered by a post-employment noncompetition covenant, and placing specific restrictions on such covenants. That statute, now codified at RCW 40.62, explicitly excluded nonsolicitation covenants from coverage under the statute but defined nonsolicitation covenants ambiguously. 

Effective June 6, 2024, SB 5935 amends the statute so that more restrictive covenants than before will be determined to be “noncompetition” covenants subject to all the statutory requirements in order to be enforceable and accomplish a few other changes:  

1. Many Nonsolicitation Covenants Will Be Subject to the Statutory Requirements
   For example, while companies can still prohibit former employees from soliciting business from a customer without meeting all the statutory requirements, any prohibition on accepting business from or transacting business with customers will be considered a noncompetition covenant and subject to all the requirements of the statute. Those statutory requirements include that at the time of enforcement or the employee’s termination (whichever occurs first), the employee’s annual taxable earnings must meet a set threshold. For 2024, that threshold is $120,559.99. The threshold changes each year for inflation. 

   Additionally, a restriction on soliciting customers can now only apply to current  customers, and not prospective or former customers, in order to be excluded from the requirements of the statute. The new bill does not provide any guidance on what constitutes a current customer. 

2. Now Agreement must be Provided by the Time the Employee Accepts the Job Offer
   While the statute has always required that the terms of the noncompetition covenant be provided to the individual no later than at the time of accepting the offer of employment, the new bill clarifies that it must be before, or at the time of, the “initial oral or written” acceptance of the offer. In situations where there is negotiation of terms of employment back and forth, it may be difficult to determine whether the noncompetition covenant terms were provided by the time of the initial acceptance—particularly if the initial acceptance was oral. If the terms were not provided on time, additional consideration is needed to make the agreement enforceable. 

3. Washington Law Must Apply
   In the original statute, to be enforceable, a noncompetition covenant had to provide all the protections of the Washington statute to Washington employees—but it did not say explicitly that Washington law applied. Now the statute will explicitly require that Washington law apply to any such noncompetition covenant with a Washington-based employee. 

4. Nonparties Can Now Recover Damages  

The original statute provided that any party to an agreement containing a noncompetition covenant could bring an action challenging the restrictions and seek modifications, and/or the greater of actual damages, or $5,000 statutory damages, plus attorney fees and costs. 

Under the new legislation, there is now no requirement that the person or entity bringing suit be a party to the agreement, provided that they can demonstrate they are “aggrieved” by the noncompetition covenant. As a practical matter, this means that the employee’s new employer may also sue to challenge or modify the noncompete covenant and recover their damages and attorney fees. 

SB 6007. Imposes Requirements for Sales of Grocery Stores including Employment Incumbent Employees
STATUS:  Passed, signed by Gov. Inslee March 15, 2024, effective June 6, 2024.

This new law will create a new chapter under RCW 49 that imposes special obligations upon employers, including a transitional retention period for employed grocery retail workers, in the event of a change of ownership, control, or operation of grocery stores in Washington State.  This includes preferential hiring requirements for workers employed by the subject store at the time of sale/transfer/change in control, and a require retention period of 180 days in which the worker’s pay and benefits must be maintained and during which the worker may only be discharged for “cause.” There are also special record retention obligations.

In the event of the potential closure of such an establishment that is located in a geographic area designated by the United States Department of Agriculture as a “food desert”, the statute also requires 180 days notice to the city council, county council, local health department, and attorney general before the establishment can cease to be fully operational and open to the public.

There are some statutory exceptions, including one that would except smaller grocery employers from the requirements provided that both the acquiring employer has less than 300 employees nationwide AND the employer being acquired/purchased/controlled had less than 300 employees prior to such sale/transfer/change in control. 

SB 5778. Employee Free Choice Act
STATUS:  Passed, awaiting Governor’s signature, effective June 6, 2024.

This new law will add a new section to RCW 49.44 that offers job protection to employees who prefer to work instead of listening to an employer’s speech on political or religious matters.  It specifically prohibits employers from disciplining, discharging or otherwise penalizing employees for:

• Refusing to:  

• Attend or participate in an employer-sponsored meeting with the employer or its agent, representative, or designee, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters; or  

• Listen to speech or view communications, including electronic communications, the primary purpose of which is to communicate the employer's opinion concerning religious or political matters; or  

• As a means of requiring an employee to attend a meeting or participate in communications described above; or  

• Because the employee, or a person acting on behalf of the employee, makes a good faith report, orally or in writing, of a violation or a suspected violation of this new law. 

Employees may bring a civil action against the employer under this Act within 90 days of the alleged violation.

This law does not apply to religious corporations, entities, associations educational institutions or societies that are otherwise exempt from federal Title VII, but only with respect to speech on religious matters to employees who perform work connected with the activities undertaken by such religious institution.

HB 2266. New Sanitation Rules for Construction Employers Relating to Menstruation/Milk Expression at the Jobsite
STATUS:  Passed, awaiting Governor’s signature, effective June 6, 2024.  

This law will be incorporated as a new section to RCW 49.17, and enforced pursuant to rules that the Department of Labor & Industries is now charged with adopting, that apply specifically to employers in the construction industry and require: 

1. Menstruating construction workers must be provided:  

2. A minimum size bathroom, accessible on the worksite, that is equivalent to a standard sized portable chemical toilet, or access to a permanent structure with a bathroom. The bathroom must have an internal latch to be secured from inadvertent entry;   

3. Adequate time to accommodate for multiple layers of clothing while using the bathroom; and  

4. An adequate and convenient supply of menstrual hygiene products available at no cost to the workers. Menstrual hygiene products must either be located in all gender-neutral bathrooms and bathrooms designated for workers who menstruate, or provided in kits for each worker who needs such product. 

5. Lactating construction workers must be provided minimum reasonable accommodations that the Department is charged with defining, but to include:  

6. Flexible work scheduling, including scheduling breaks and permitting work patterns that provide time for the expression of milk; 

7. A location, other than a bathroom, that is convenient and sanitary for the worker to express milk. The location must be private and lockable, if possible, and free from intrusion; 

8. Convenient hygienic refrigeration on the worksite for the storage of milk; and 

9. A convenient water source for the worker to clean and wash hands and milk expression equipment. The water source must be in a private location near the location where milk is expressed. 

Although bill becomes law sooner, it prohibits L&I from imposing any monetary penalties until thirty days after the date the department's adopted rule is filed with the code reviser, or July 1, 2025, whichever date is later.

SB 1905. Expands Equal Pay and Opportunities Act to Cover All Protected Classes
STATUS: Passed, awaiting Governor’s signature, effective January 1, 2025.  

Washingtons Equal Pay and Opportunities Act, which was enacted in 2018, and prohibits discriminatory pay practices, in addition to imposing a number of pay transparency related affirmative requirements on Washington employers, has until now only address gender-based pay disparity.  As amended, the law would expand those protections to prohibits disparity in pay based upon any protected class status, not just gender.  The amended statute would define “Protected Class” as follows:  

… age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, as those terms are defined in RCW 49.60.040 

SB 5793: Amends “Family Member” Definition under Sick Leave  
STATUS:  Passed, awaiting Governor’s signature, effective January 1, 2025. 

Under the state’s paid sick leave law, "Family member" has been expanded to include:  

a child, grandchild, grandparent, parent, sibling, or spouse of an employee [which by definition now includes registered domestic partners], and also includes any individual who regularly resides in the employee's home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care. ‘Family member’ includes any individual who regularly resides in the employee's home, except that it does not include an individual who simply resides in the same home with no expectation that the employee care for the individual.

The definitions of child and parent also were expanded to clarify that it includes the child/parent of the employee’s spouse as well as biological, adoptive, de facto, foster, step, legal guardians, and an individual who stood (or for whom the employee stood) in a position of in loco parentis.