Employment related bills that have been signed by the governor:

• SHB 1905 (pay equity):
• • Expands Washington’s existing pay equity law beyond gender to also include membership in a long list of protected classes: 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.
  • Effective July 1, 2025.
• ESSB 5793 (paid sick leave expansion):
  
• • Expands the definition of family member under Washington Paid Sick Leave to match the definition in Washington Paid Family and Medical Leave (WPFML).
  • The revised list of family members for whom an employee may take time off to provide care under Washington Paid Sick Leave now includes the employee’s child’s spouse and “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.”
  • An employee’s registered domestic partner is already covered under current law, but the new bill defines anyone’s “spouse” to include a husband, wife, or state registered domestic partner.
  • The bill also expands the authorized reasons for taking Washington Paid Sick Leave to include situations when an employee’s child’s school or place of care has been closed after the declaration of an emergency by a local or state government or agency, or by the federal government.
  • Effective January 1, 2025.
  • “Emergency” isn’t defined in the bill, but it would be reasonable to assume it includes emergency declarations related to events such as flooding, extreme weather, or wildfire smoke.
  • Also, if you have any employees working in the City of Tacoma, the Tacoma Paid Sick Leave Ordinance says that if the state’s reasons for leave are more generous, the state law applies.
• ESSB 5778 (employer communications on religious or political issues):
• • The “Employee Free Choice Act” prohibits employers from requiring workers to attend employer-sponsored meetings, listen to verbal communications, or view electronic or other communications when the primary purpose is to share the employer’s opinion on religious or political matters.
  • Threatening or imposing any negative consequences for failure to do so is similarly forbidden. The bill broadly defines “political matters” to include “matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulations, and the decision to join or support any political party or political, civic, community, fraternal, or labor association or organization.”
  • Effective June 6, 2024.
  • It’s possible this law could be challenged because the National Labor Relations Act (NLRA) generally gives employers the right to hold “captive audience” speeches to communicate their point of view during union organizing drives. We’ll keep members informed of any substantive developments.
• ESSB 6069 (mandatory employer-facilitated retirement savings):
• • Establishes Washington Saves, which will require most employers that don’t offer a retirement plan to automatically enroll workers in a state-administered retirement savings plan.
  • Covered employers will deduct a percentage of workers’ paychecks and send it to the state for deposit into individual retirement accounts (IRAs).
  • A governing board will set default rates for contribution percentages (3 to 7 percent) and automatic escalation (up to 1 percent per year). The maximum contribution based on the default escalation will be 10 percent.
  • Workers may modify their contribution rates or opt out of the program at any time.
  • The accounts are portable, so workers may continue contributing even when they change jobs.
  • Employers will have to register with the state, promptly forward employees’ payroll deductions, and provide notices to employees.
  • The bill takes effect on June 6, 2024, but it will take time to get the program up and running. The program is scheduled to launch by July 1, 2027, although the governing board is authorized to stagger implementation in phases after that date.
  • Employers aren’t allowed to contribute to Washington Saves. However, the existing Washington small business retirement marketplace will still offer voluntary options for employer contributions to retirement funds. The bill modifies the marketplace by removing references to payroll deductions for individual IRAs, since those instead will be offered through Washington Saves.
  • This legislation follows similar programs that are already in place in California (CalSavers) and Oregon (OregonSaves).
• E2SSB 5838 (Establishing an artificial intelligence task force)
• • Subject to appropriations, a task force is created to assess current uses and trends by private and public sector entities and make recommendations to the Legislature regarding standards for the use and regulation of AI. The Office of the Attorney General must administer and provide staff support for the task force.
• SB 5979 (paid sick leave clarifications for construction industry):
• • Clarifies the definition of construction workers who are entitled to receive a payout of their accrued but unused sick pay if they terminate employment before reaching their 90-day eligibility period for Washington Paid Sick Leave.
  • A construction worker is defined as “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.”
  • This statutory language overrides existing paid sick leave regulations (WAC 296-128-600(3)) that granted the payout right to employees who aren’t directly engaged in the construction work itself, such as nonexempt administrative staff of a construction company.
  • Effective March 13, 2024.
  • This payout requirement only applies to employers in the construction industry (North American Industry Classification System (NAICS) code 23), but not to employers in residential building construction (NAICS code 2361).
  • Construction industry employers with a collective bargaining agreement continue to be exempt from Washington Paid Sick Leave as long as they qualify for an exemption under RCW 49.46.180.
• HB 1927 (Reducing number of days a temporary disability must continue to receive industrial insurance compensation)
• • Reducing the number of days that a worker's temporary total disability must continue to receive industrial insurance compensation for the day of an injury and the three-day period following the injury.
• SB 6007 (Concerning employment standards for grocery workers)
• • This requires those who purchase a business to hire those employees of the business they are purchasing first before hiring any others.

City of Bellingham Minimum Wage

City Minimum Wage - City of Bellingham (cob.org) (see site for FAQ’s)

• Starting May 1, 2024, the City of Bellingham requires employers to pay the city minimum wage. As of May 1, 2024, the minimum wage in Bellingham is $17.28.
• Minimum wage workers
• • The City’s minimum wage applies to all hours worked by employees within the geographic boundaries of the city of Bellingham. Employers with employees who are paid minimum wage and performing work within the city limits must comply with the minimum wage requirements.
• Minimum wage increases
• • As of May 1, 2024, the current minimum wage in Bellingham is $17.28, which is $1.00 above the Washington State minimum wage for 2024. Further increases in the city minimum wage will be tied to changes to the Washington State minimum wage set under RCW 49.46.
  • Starting May 1, 2025, the city minimum wage will be set at $2.00 above the applicable Washington State minimum wage.
  • Every year after, starting in 2026, the city minimum wage will be set at $2.00 above the applicable Washington State minimum wage effective on January 1 every year. The city will establish the city minimum wage within two weeks of the publication of the new state minimum wage. 
• Enforcement of the minimum wage requirement
• • Employers must ensure they pay minimum wage employees the new minimum wage as of May 1, 2024. Employers must keep records (as required by RCW 49.46.070) and any other information the City may use to confirm they are complying with the minimum wage requirements.
  • Anyone who believes they are not receiving the correct minimum wage may bring a complaint against their employer. Employees who believe their employer is not complying with the new minimum wage rules should contact a private attorney or their union, if they have one, to pursue a complaint. 
  • The court may require employers who violate this requirement to pay back wages or provide other forms of relief to affected employees.

Ch. 6.07 Minimum Wage for Employees | Bellingham Municipal Code
Chapter 49.46 RCW: MINIMUM WAGE REQUIREMENTS AND LABOR STANDARDS

The Washington Department of Labor & Industries (L&I) updated the state’s paid sick leave rules, effective January 1, 2024. Most changes to the rules relate to a new Washington law requiring payout of accrued leave for short-term construction workers. However, some of the rules on usage, paid time off (PTO) programs, and frontloading were also revised.

• Usage: The revised rules clarify that it is an employee’s choice whether to use their accrued paid sick leave, or not. The use of paid sick leave cannot be required (but an employee who chooses not to use their paid sick leave to cover an absence is not entitled to any rights or protection under the paid sick leave law.)
• PTO policy: The updated rules clarify what’s required for a PTO policy to comply with the paid sick leave law and add a new requirement to provide notice if you intend to use a PTO policy to satisfy the state’s paid sick leave requirements. The revised rules also clarify that if you provide more PTO than what’s required by the paid sick leave law, you’re allowed to set different requirements for employees when they use their PTO for non-sick-leave-related reasons, but only if the more generous portion of the PTO is tracked separately from the required paid sick leave portion.
• Negative balance (frontloading): L&I also added a new rule stating that if you allow an employee to use more paid sick leave than they have available in their leave bank, creating a “negative” leave balance, you’re effectively “frontloading” the paid sick leave and must comply with all the specific rules for frontloading.
• Construction workers: Workers covered by the North American Industry Classification System (NAICS) Industry Code 23 (other than residential building construction code 2361) must be paid the balance of their accrued paid sick leave if they separate employment before 90 calendar days.

Key Highlights:  

• The Washington State minimum wage rate for nonexempt employees aged sixteen and older will increase by 3.4 percent in 2024, reaching $16.28 per hour. 
• Overtime exempt workers must be paid at twice the annual minimum wage rate, regardless of the size of the employer. 
• May 1, 2024, Bellingham's minimum wage will increase to $17.28/hour. 

Washington State Overtime Rules Update 

• As of January 1, 2024, in order to maintain exempt status, an employee’s salary must be at least $67,724.80 annually, which equates to 2x’s the state minimum wage. 
• This change comes with the elimination of a differentiation between previously identified small employers (1-50 employees) and large employers (51+ employees). 
  
• Also noteworthy, by January 1, 2028, the salary threshold is planned to increase to 2.5x’s the minimum wage rate, projected currently to be $92,560.00.  
• Salary Threshold Implementation Schedule 

Minimum Wage

• Starting May 1, 2024, Bellingham, Washington, will join other jurisdictions in the state with its own minimum wage rate, a result of a voter-approved ballot measure in November 2023.
  
• • May 1, 2024: $17.28
  • May 1, 2025: Washington State minimum wage plus $2
  • Starting January 1, 2026, Bellingham will synchronize its increases with the start of each year, maintaining the minimum wage as the Washington State rate plus $2.
  • Bellingham Washington Minimum Wage Law in 2024 - GovDocs
    

• January 1, 2024, Washington’s minimum wage will increase to $16.28 per hour (23-29 (wa.gov))
• Other Local Minimum Wage Increases (WA State):
  • SeaTac:  Minimum wage will increase to $19.71 per hour for covered hospitality and transportation industry workers.
  • Seattle: For employers with 501 or more employees, the minimum wage will rise to $19.97 per hour. Small employers (those with 500 or fewer employees) will experience varying increases based on factors like medical benefits and tips.
  • Tukwila: Minimum wage will be $18.29 per hour for mid-size employers and $20.29 per hour for large employers during the period of January 1, 2024 to June 30, 2024. On July 1, 2024, the minimum wage for mid-size employers will increase to $19.29 per hour, while the rate for large employers will remain at $20.29 per hour.

Changes to Pre-employment Drug Screening

• Washington SB 5123
  
• Beginning on January 1, 2024, it will be unlawful for many Washington employers to discriminate against an applicant based on the applicant’s personal use of cannabis off the job and away from the worksite.
• Employers cannot make hiring decision based on the results of a pre-employment drug screen that tests for Non psychoactive cannabis metabolites. 
• The new statute includes a number of exceptions including: positions requiring a federal government background or security clearance, law enforcement, fire departments, other first responders, corrections officers, airline and aerospace positions, and safety sensitive positions where impairment would present a substantial risk of death.  
• The safety sensitive position exception will be the most significant for the broadest range of employers.  Importantly, the applicant must be informed that it is a safety sensitive position before the applicant’s application for employment.  Employers should ensure that job descriptions identify safety sensitive positions and any recruiters, human resources professionals, or others that might be soliciting applicants are aware of safety sensitive positions and inform applicants prior to application.

Paid Family and Medical Leave

• Washington SB 5586
• Provides that a current employer, a current employer's third-party administrator, or an employee may request access to an employee’s Washington Paid Family and Medical Leave Act claim records for the purpose of administering internal employer leave or benefit practices.
  

Paid Sick Leave

• Washington SB 5111
  
• Provides that employers must pay certain temporary construction workers, who have not been employed for 90 days, the balance of their accrued and unused paid sick leave upon separation from employment.
  

Unemployment

• Washington Final Rule re Unemployment for Officers of Employee-Owned Cooperatives (WAC 192-310-190)
• • Excludes certain corporate officers from eligibility for unemployment benefits.
• Washington SB 5176
  
• • Amends the definition of “unemployed” as it relates to officers of cooperative associations.

Salary Threshold for Non-compete Agreements

• Non-Compete Agreements (wa.gov)
  
• Chapter 49.62 RCW: NONCOMPETITION COVENANTS (wa.gov)
  
• In WA State, the thresholds for non-compete agreements will rise to a minimum annual salary of $120,559.99 for employees and approximately $301,399.98 for independent contractors. Further, in 2023 the Federal Trade Commission proposed a rule that would ban non-compete agreements nationwide, however a decision regarding this proposal will not be voted on until at least April 2024.

The Department of Labor & Industries announced an increase in the state minimum wage to $16.24/hour, effective January 1, 2024. Washington’s minimum wage is annually adjusted to inflation. The minimum wage for 14- to 16-year-olds will also be adjusted to $13.84/hour in 2024. Some cities have set higher local minimum wages.

With the annual adjustment of the minimum wage, also comes the annual adjustment to the overtime exemption threshold. The 2024 threshold will be 2x the minimum wage, or at least $1,302.40/week ($67,724.80/year), to avoid overtime.

The overtime exemption threshold is calculated as a multiplier of the minimum wage, and L&I is currently in the midst of an eight-year implementation schedule to increase the multiplier to 2.5x minimum wage. 

You can find more information here: Minimum Wage

Governor Jay Inslee has signed ESSB 5123, which will prohibit Washington employers from requiring pre-employment testing for non-psychoactive cannabis (marijuana) metabolites of applicants who lawfully consume cannabis away from work, except under limited circumstances, effective January 1, 2024. It creates a new protected group and makes it unlawful for employers to discriminate against these lawful cannabis consumers in the hiring process, unless one of the limited exceptions is present. However, the bill doesn’t affect any employer’s rights or obligations to maintain a drug-free and alcohol-free workplace, comply with federal laws or regulations, or test current employees for drugs (including cannabis). The bill also specifies that if a state or federal law requires an applicant to be tested for controlled substances, that law takes priority over the new bill.

Employers may still test job candidates for non-psychoactive cannabis metabolites when they are seeking certain positions in law enforcement or as first responders. In addition, the bill contains three exceptions that may be relevant to manufacturers:

• A position requiring a federal government background investigation or security clearance;
   
• A position in the airline or aerospace industries; or
   
• A safety sensitive position for which impairment while working presents a substantial risk of death. Such safety sensitive positions must be identified by the employer before the applicant submits an employment application.

Find more information here: Vigilant Blog | WASHINGTON: New bill limits most pre-employment cannabis tests

SSB 5217: Authorizes L&I to develop workplace ergonomic safety rules. Effective July 23, 2023, this bill repeals the existing prohibition on ergonomic safety regulations in Washington and authorizes L&I to issue regulations to prevent work-related musculoskeletal injuries and disorders. The bill limits the scope of L&I’s authority to regulate ergonomics to industries with a high frequency of ergonomic injuries, and limits the frequency of new rules to once per year per industry. Vigilant expects that L&I will exercise its new authority to issue regulations and we will keep members informed when they do so.

ESSB 5320: Requires electrician trainees to go through an apprenticeship program. Effective July 1, 2023, trainees who don’t have 3,000 hours of experience must be registered apprentices to perform work limited to electricians. Effective July 1, 2026, all electrical trainees must be registered in an approved apprenticeship program. Additional requirements that take effect on July 1, 2023, are already contained in RCWs 19.28.161, 191 and 195. See L&I’s webpage on electrician licensing, which has been updated to reflect the new law.

ESHB 1106: Unemployment benefits for voluntary resignations. Allows more individuals to qualify for unemployment benefits by expanding the good cause reasons for voluntarily leaving work. For separations on or after September 3, 2023, the existing allowance for good cause to leave work due to the death, illness, or disability of a claimant’s “immediate family” expands to apply to any family member. For separations that occur on or after July 7, 2024, and before July 8, 2029, good cause includes the unavailability of care for a child or a vulnerable adult in the claimant’s care. In both situations, to qualify for unemployment benefits, the claimant must first seek a change in working conditions or work schedule to accommodate the death, illness, disability, or unavailability of care, or request a leave of absence, and must promptly request reemployment when able to return to work. For separations that occur on or after July 7, 2024, good cause also includes relocating to follow a minor child who moved outside of the claimant’s labor market, or situations in which the claimant had a regularly scheduled start or end time for the prior 90 calendar days and the employer (without request by the claimant and not based on a system of seniority) changes the regularly scheduled start or end time by six or more hours on a non-temporary basis. This bill takes effect July 23, 2023.

HB 1262: Child support withholding from lump sum payments. Adopts a program for employers to deduct child support from lump sum payments when an employee is in arrears for child support. Lump sum payments don’t include reimbursement for expenses. Examples of lump sum payments include discretionary and nondiscretionary bonuses, commissions, performance bonuses, merit increases, safety awards, signing bonuses, moving and relocation incentive payments, holiday pay, termination pay, and severance pay. Lump sum payments also include workers’ compensation time loss payments, insurance settlements, and personal injury settlements paid as replacement for wages owed. The bill establishes procedures for notifying the Division of Child Support and determining how much to withhold. This bill takes effect July 23, 2023. We will be updating our Legal Guide, Washington Wage Withholding Handbook.

SHB 1217: Interest charged on settled wage complaints. Requires the Department of Labor and Industries (L&I) to charge one percent interest per month on all amounts owed on settlements of wage complaints even when no citation and notice of assessment is issued. The employee may request a waiver or reduction of interest as part of the settlement process. This bill applies to all wage complaints filed on or after January 1, 2024.

SSHB 1491: Prohibition on searches of employees’ personal vehicles. Generally prohibits employers from searching employees’ personal vehicles located on the employer’s parking lots or garages or located on the access road to those parking lots or garages. The bill provides for limited exceptions to this prohibition: (1) vehicles owned or leased by the employer; (2) lawful searches by law enforcement officers; (3) when the employer requires or allows an employee to use their personal vehicle for work-related activities and the employer needs to inspect the vehicle to ensure it’s suited to conduct the work-related activities; (4) when a reasonable person would believe that accessing an employee’s vehicle is necessary to prevent an immediate threat to human health, life, or safety; (5) when an employee consents to a search by the business owner, owner’s agent, or a licensed private security guard based on “probable cause” (a high legal standard) that the employee unlawfully possesses employer property or a controlled substance in violation of both federal law and the employer’s written policy prohibiting drug use—an employee who consents to such a search may select a witness to be present; (6) security inspections on state and federal military property; (7) vehicles located on the premises of a state correctional institution; or (8) “specific employer areas subject to searches under state or federal law.” You cannot require, as a condition of employment, that an employee or prospective employee waive the right to the protections under the new law. You should review and update any policy language on searches (such as in your drug and alcohol policy) to ensure they comply with the new law. This bill takes effect July 23, 2023.

SB 5111: Paid sick leave cash-out for construction workers. Requires employers to pay any unused and accrued paid sick leave to covered construction workers who separate from employment before reaching the 90-day threshold to use paid sick leave. The bill generally applies to workers covered under North American Industry Classification System (NAICS) code 23 (construction), but carves out an exception for residential building construction, which the bill describes as NAICS code 236100. This appears to be a mistake, since there is no NAICS code 236100, but the 2022 NAICS database lists 2361 as the code for residential building construction, so we recommend reviewing the definition for code 2361 to determine whether the exception applies. This bill takes effect January 1, 2024.

SSB 5286: Washington Paid Family and Medical leave (WPFML) rate calculation changes. Changes the date the state calculates the upcoming WPFML premium rates from September 30 to on or around October 20 each year and also changes the method of calculating the premium rate. This bill takes effect July 23, 2023.

SSB 5586: Access to certain Washington Paid Family and Medical Leave (WPFML) information. Allows interested parties including current employers and their third-party administrators to get the following WPFML claim information from the Employment Security Department (ESD): type of leave being taken; requested duration of leave including the approved dates of leave; and whether the employee was approved for benefits and paid benefits for any given week. Any information provided may only be used to administer internal employer leave or benefit practices under established employer policies. ESD may investigate unauthorized use of these records. This bill takes effect January 1, 2024.

In particular, you should ensure that your search policies and practices comply with SSHB 1491’s restrictions on searches of employees’ personal vehicles.

Find full information here: Vigilant Blog | WASHINGTON: Governor signs 2023 legislation, Vigilant Blog | WASHINGTON: More bills signed from 2023 legislative session

Division: Division of Occupational Safety & Health (DOSH)

Topic: Adoption (CR-103) – Outdoor Ambient Heat Exposure

Brief Description: The purpose of this rulemaking is to update the outdoor heat exposure rules under chapter 296-62 WAC, General Occupational Health Standards, and chapter 296-307 WAC, Safety Standards for Agriculture. On June 28, 2021, L&I received a petition for rulemaking requesting changes to L&I’s rules to include more specific requirements to prevent heat-related illness and injury. The petition for rulemaking was accepted recognizing the need to reexamine the current rules, especially in light of information suggesting the occurrence of heat illnesses below the current trigger temperatures and the increasing temperatures experienced in our state since the rule was first established in 2008.

L&I filed emergency rules related to outdoor ambient heat in the summer of 2021 and 2022 to protect outdoor workers from heat-related illnesses due to outdoor heat exposure. The current rules do not affirmatively address preventative measures to avoid overheating other than access to drinking water. The hazards of heat are well documented and research suggests the occurrence of heat-related illnesses below the current trigger temperatures. Research also documents increased temperatures in Washington since the rule was first established.

The adopted updates add the importance of acclimatization and considerations for cool-down rest periods, gradual increase of work in the heat and importance that employees are unable to build tolerance to working in the heat. They also add the importance of taking preventative cool-down rest periods, and mandatory rest periods when temperatures exceed 90 degrees Fahrenheit. They add training requirements for procedures for shade or other means to reduce body temperature, and employer’s procedures for close observation of employees. Finally, they add the importance of considering the use of engineering or administrative controls to reduce exposure.

Effective date: July 17, 2023

Additional information about this rulemaking:
CR-103 Adoption
Adoption Language
Final Cost-Benefit Analysis (CBA)
Concise Explanatory Statement (CES)

A summary of the ruling is here: AP: The Supreme Court bolsters protections for workers who ask for religious accommodations

Here’s the takeaway: We shouldn’t be relying on Hardison’s “de minimis” language to deny requests for religious accommodations that would have a relatively minor impact on operations. Rather, we should look at whether granting a proposed religious accommodation would impose “substantial additional costs” on the employer’s business. Said differently, for religious accommodations, we shouldn’t be denying proposed accommodations if they would only have a very minimal impact/cost on operations. 

Opinion of the court: GERALD E. GROFF, PETITIONER v. LOUIS DEJOY, POSTMASTER GENERAL