5416-S

AN ACT Relating to industrial insurance; and amending RCW 51.48.025.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 51.48.025 and 1985 c 347 s 8 are each amended to read as follows:

(1) No employer may discharge or in any manner discriminate against ((~~any~~)) an employee because ((~~such~~)) the employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title. However, nothing in this section prevents an employer from taking any action against a worker for other reasons including, but not limited to, the worker's failure to observe health or safety standards adopted by the employer((~~, or the frequency or nature of the worker's job-related accidents~~)).

(2) ((~~Any~~)) (a) Termination or other adverse action taken against an employee within the one hundred twenty-day period immediately after any of the following, whichever occurs later, is presumed to be retaliatory in violation of subsection (1) of this section:

(i) The filing of a claim;

(ii) The first communication to the employer of an intent to file a claim;

(iii) The exercise of any other right under this title; or

(iv) An injured worker returns to work following recovery from a covered injury or illness.

(b) The presumption under (a) of this subsection may be rebutted by competent evidence that the termination or other adverse action was not retaliatory, including the following:

(i) The termination or other adverse action was in furtherance of a valid business purpose; or

(ii) The termination or other adverse action was based on documented poor performance by the employee which the employee was made aware of before filing a claim, giving notification of intent to file a claim, or exercising any other right under this title, and the employee was notified that failure to cure the poor performance could be cause for termination or other adverse action.

(c) For the purposes of (b) of this subsection, "valid business purpose" includes, but is not limited to (i) a nonarbitrary written reduction in force procedure, and (ii) the impracticality of maintaining an opening for the employee during the injured employee's recovery period and the absence of any other suitable job for the employee.

In demonstrating the impracticality of maintaining an opening for the injured worker during the employee's recovery period, the employer must show that it was not reasonable to obtain the services normally provided by the injured employee through the use of a temporary substitute employee or by the temporary assumption of the injured employee's duties by other members of the employer's work force.

(d) For the purposes of (b) of this subsection, "valid business purpose" does not include (i) the fact that the employee has filed one or more previous claims under this title, (ii) a determination by the employer that the employee is accident-prone or careless, unless the determination is based on the employee's failure to observe health or safety standards adopted by the employer, and (iii) the fact that the employee has sought to exercise his or her rights under a collective bargaining agreement or any law which has as its purpose the protection of employee's employment rights, health, or safety.

(3) An employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the director alleging discrimination within ninety days of the date of the alleged violation. Upon receipt of ((~~such~~)) the complaint, the director shall cause an investigation to be made as the director deems appropriate. Within ninety days of the receipt of a complaint filed under this section, the director shall notify the complainant of his or her determination. If upon ((~~such~~)) investigation, it is determined that this section has been violated, the director shall bring an action in the superior court of the county in which the violation is alleged to have occurred.

((~~(3)~~)) (4) If the director determines that this section has not been violated, the employee may institute the action on his or her own behalf.

((~~(4)~~)) (5) In any action brought under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section and to order all appropriate relief including rehiring or reinstatement of the employee with back pay.