House of Representatives
Office of Program Research
Labor & Workforce Development Committee
This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.
Brief Description: Concerning the employee antiretaliation act.
Sponsors: Representatives Ryu, Sells, Moscoso, Seaquist, Hunt, Green, Stanford, Appleton, Reykdal, Fitzgibbon, Habib, Bergquist, Goodman, Farrell, Ormsby, Pollet and Walkinshaw.
Hearing Date: 1/21/14
Staff: Joan Elgee (786-7106).
Several laws address employment standards. The Minimum Wage Act (MWA) addresses overtime in addition to minimum wage requirements. The Industrial Welfare Act deals with wages, hours, and working conditions, including child labor, work apparel, and other matters. Under prevailing wage provisions, contractors and subcontractors on public works projects and public building service maintenance contracts must pay their workers prevailing wages. The Wage Payment Act provides for an administrative or court action to collect wages under the Minimum Wage Act and other wage laws, as well as establishes other requirements. It is unlawful to make certain deductions from wages and to otherwise fail to pay wages under other laws.
Under the MWA, it is a gross misdemeanor for an employer to discriminate against an employee because the employee complained to the employer or the Department of Labor and Industries that the MWA has been violated, or because the employee instituted or is about to institute or testified or is about to testify in a proceeding under or related to the MWA.
Summary of Bill:
Retaliation provisions are established in the Minimum Wage Act, the Industrial Welfare Act, the Wage Payment Act, prevailing wage provisions, and wage deduction and other provisions.
Prohibited activities. Employers are prohibited from taking adverse action against an individual because an employee (or former employee for most activities) engaged in specified activities:
Informed another person or complained (or the employer so believes) to the employer, the Department of Labor and Industries (Department), the Attorney General, or any other person that the employer has engaged in conduct that the employee reasonably believes violates the particular law.
Demands a lawful claim under the particular law.
Instituted or is about to institute, or testified or is about to testify in, a proceeding under the particular law, or has otherwise exercised rights (or the employer so believes) under the particular law.
Refused to participate in an illegal activity.
Sought information or informed others about rights under the particular law.
Filed a complaint with the Department or brought suit where the Department was found to have violated the particular law.
A presumption is created that if an employer takes adverse action within 90 days of any of the specified activities, the employer is presumed to have acted in retaliation in violation of the prohibition on adverse action. The presumption also applies in the case of seasonal work lasting fewer than 90 days if the employer fails to rehire a worker at the next opportunity for work in the same position. The presumption may be rebutted by clear and convincing evidence that the adverse action was taken for a permissible purpose.
"Adverse action" means discharging, threatening, failing to rehire after a seasonal interruption of work, engaging in unfair immigration-related practices, filing a false report with a government agency, changing an employee's status to a nonemployee, other listed activities, or otherwise discriminating against an employee. An "unfair immigration-related practice" includes requesting more or different documents than are required under federal law, using the E-Verify system at a time or in a manner not allowed, threatening to file a false police report or contact immigration authorities, withholding or threatening to destroy immigration documents, and other listed activities.
Enforcement. Administrative and court remedies are provided.
The Department may investigate complaints filed by an aggrieved individual or an interested party. If the Department determines a violation occured, the Department may order:
Payment of a civil penalty of $1,000 to $10,000 per individual aggrieved;
Damages of $1,000 to $10,000 to each aggrieved individual, except that if the individual is an employee or former employee, the damages are the greater of the civil penalty or three times the amount of any wages or benefits unlawfully denied or withheld.
Reinstatement of a former employee or front pay in lieu of reinstatement.
Prevailing parties on appeal are entitled to reasonable costs and attorneys' fees. An "interested party" includes the director of the Department, a contractor, a union, and other listed entities.
An aggrieved individual may bring an individual or class action in court. If the court determines a violation occurred, the court must order statutory damages of $1,000 to $10,000, or $10,000 to $25,000 if the employer engaged in a pattern or practice of violations, and attorneys' fees and costs. However, if the aggrieved individual is an employee or former employee the damages are the greater of the statutory damages or three times the wages or benefits withheld. The court may also order actual damages, reinstatement or front pay in lieu of reinstatement or other equitable relief, and suspension of licenses that are specific to the business where the adverse action occurred. The time period for license suspension ranges from 14 to 90 days depending on whether it is a first, second, or third violation. A "pattern or practice" is shown if within the previous 10 years, the employer was convicted of a violation of a retaliation law or is delinquent in payment of a court order or administrative assessment for violation of the retaliation provisions.
A three year statute of limitations for both administrative and court actions is tolled during any time that an employer deterred an action.
A violation of the provisions is a gross misdemeanor.
The criminal violation for retaliation under the Minimum Wage Act is repealed.
Fiscal Note: Requested on January 15, 2014.
Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.