H-4836.1

SECOND SUBSTITUTE HOUSE BILL 2511

ByHouse Appropriations (originally sponsored by Representatives Stonier, Sells, Gregerson, Ormsby, Chapman, Valdez, Chopp, Bergquist, Davis, Doglio, Frame, Ramel, Pollet, Macri, Goodman, Riccelli, and Robinson; by request of Attorney General and Office of the Governor)

AN ACT Relating to providing labor protections for domestic workers; amending RCW 49.60.040; adding a new chapter to Title 49 RCW; prescribing penalties; and providing an effective date.

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

(1) "Casual labor" refers to work that is irregular, uncertain, and incidental in nature and duration and is different in nature from the type of paid work in which the worker is customarily engaged in.

(2) "Discrimination" means employment discrimination prohibited by chapter 49.60 RCW, including discriminatory harassment.

(3) "Discriminatory harassment" is unwelcome conduct that is based on a protected class listed in RCW 49.60.030(1) where the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. "Discriminatory harassment" includes sexual harassment.

(4) "Domestic service" means household services for members of households or their guests in private homes. This includes the maintenance of private homes or their premises.

(5)(a) "Domestic worker" includes hourly and salaried employees who are paid wages for their services and includes any worker who:

(i) Works for one or more hiring entity; and

(ii) Is an individual who works in residences as a nanny, house cleaner, home care worker, cook, gardener, or household manager, or for any domestic service purpose including but not limited to: Caring for a child; providing support services for a person who is sick, convalescing, elderly, or a person with a disability; providing housekeeping or house cleaning services; cooking; providing food or butler services; parking cars; cleaning laundry; gardening; or working as a household manager.

(b) "Domestic worker" does not include:

(i) Persons who provide babysitting on a casual labor basis;

(ii) Persons who provide services or supports for a family member on a casual labor basis;

(iii) Any individual employed in casual labor in or about a private home, unless performed in the course of the hiring entity's trade, business, or profession;

(iv) Individual providers, as defined in RCW 74.39A.240;

(v) An au pair participant who has been granted a J-1 visa for participation in the federal department of state designated exchange visitor program governed by 22 C.F.R. section 62.31;

(vi) Persons who perform house sitting, pet sitting, and dog walking duties that do not involve domestic service;

(vii) Persons providing services to another family member who is sick, convalescing, elderly, or a person with a disability, where the family members do not intend to establish an employer-employee relationship. An employer-employee relationship does not exist under such circumstances when:

(A) The family members have mutually agreed that care is provided gratuitously; or

(B) The family member provides services for fewer than fifteen hours per week and the family member providing care does not provide domestic services in the person's ordinary course of business.

(6) "Employ" includes to permit to work.

(7) "Family member" shall be liberally construed to include, but not be limited to, a parent, child, sibling, aunt, uncle, cousin, grandparent, grandchild, grandniece, or grandnephew, or such relatives when related by marriage or any individual related by blood or affinity whose close association with the individual is the equivalent of a family relationship.

(8) "Hiring entity" means any employer, as defined in RCW 49.46.010(4), and in RCW 49.60.040(11), who employs a domestic worker, as well as any individual, partnership, association, corporation, business trust, or any combination thereof, which pays a wage or pays wages for the services of a domestic worker. It includes any such entity, person, or group of persons that provides compensation directly or indirectly to a domestic worker for the performance of domestic services and any such entity, person, or persons acting directly or indirectly in the interest of the hiring entity in relation to the domestic worker. "Hiring entity" does not include a state agency or home care agency as defined in RCW 70.127.010 and licensed under chapter 70.127 RCW if the home care agency receives funding through RCW 74.39A.310.

(a) Request that the domestic worker allow the hiring entity, on either a mandatory or voluntary basis, to have possession of any personal effects, including any legal documents, including forms of identification, passports, or other immigration documents;

(b) Engage in any form of discrimination or discriminatory harassment as defined in section 2 (2) and (3) of this act;

(c) Terminate a domestic worker, retaliate against a domestic worker, reduce the pay of a domestic worker, or refuse to offer future assignments to a domestic worker for requesting reassignment due to any alleged discrimination or abusive behavior that falls under the requirements in (b) of this subsection;

(d) Subject a domestic worker to conduct with the purpose or effect of unreasonable interfering with the domestic worker's work performance by creating an intimidating, hostile, or offensive work environment;

(e) Monitor or record, through any means, the activities of the domestic worker using a bathroom or similar facility, in the domestic worker's private living quarters, or while the domestic worker is engaged in personal activities associated with dressing or changing clothes;

(f) Monitor, record, or interfere with the private communications of a domestic worker;

(g) Communicate to a person exercising rights protected under this chapter, directly or indirectly, the willingness or intent to inform a government employee or contracted organization suspected citizenship or immigration status of a domestic worker or a family member to a federal, state, or local agency because the domestic worker has exercised any right under this chapter;

(h) Take any adverse action against a domestic worker because the domestic worker has exercised their rights provided under this chapter. Such rights include, but are not limited to: Filing an action, organizing or communicating amongst themselves, participating in political speech, disclosing their immigration status, or instituting or causing to be instituted any proceeding under or related to this chapter.

(2) A domestic worker who files a complaint or brings suit alleging discrimination in violation of RCW 49.60.180 shall be entitled to all the procedural and substantive rights available under chapter 49.60 RCW except when:

(a) The hiring entity is a person who is elderly or has a disability that results in discriminatory or harassing behaviors; and

(b) A hiring entity informs a domestic worker, providing home care or personal care services to a person who has a documented behavioral condition, that the hiring entity has reason to believe that those behaviors will result in discrimination and abusive conduct likely occurring in or around the client's home prior to assigning the employee to that client and throughout the duration of service; and

(c) The behaviors can be shown as directly resulting from a diagnosed and documented cognitive impairment; and

(d) The domestic worker voluntarily agrees to initiate or continue the employment relationship; or

(e) A hiring entity receiving personal care services, as defined in RCW 74.39A.009, refuses to hire an employee based on gender preferences.

(3) Except where subsection (2)(b), (c), and (d) of this section apply, there must be a disclosure of information about the behavioral health needs of the individual being cared for, as well as tools and supports available to the domestic worker, including but not limited to any applicable behavior management plan. The disclosure should be reviewed regularly and must be updated when any changes in behavior occur.

(2) No hiring entity or any other person shall communicate to a person exercising rights protected under this chapter, directly or indirectly, the willingness or intent to inform a government employee or contracted organization of suspected citizenship or immigration status of a domestic worker or a family member to a federal, state, or local agency because the domestic worker has exercised a right under this chapter.

(3) It is unlawful for a hiring entity to take any adverse action against a domestic worker because the domestic worker has exercised their rights provided under this chapter. Such rights include, but are not limited to: Filing a complaint, disclosing their immigration status, or instituting or causing to be instituted any proceeding under or related to this chapter.

(4) Adverse action means any action taken or threatened by a hiring entity against a domestic worker for their exercise of rights under this chapter, which may include, but is not limited to:

(a) Denying the use of any rights provided under this chapter;

(b) Denying or delaying payment due under this chapter;

(c) Terminating, suspending, demoting, or denying a promotion;

(d) Reducing the number of work hours for which the domestic worker is scheduled;

(e) Altering the domestic worker's preexisting work schedule;

(f) Reducing the domestic worker's rate of pay; and

(g) Threatening to take, or taking action, based upon the immigration status of a domestic worker or a domestic worker's family member.

(5) It shall be considered a rebuttable presumption of retaliation if the employer or any other person takes an adverse action against a domestic worker within ninety calendar days of the domestic worker's exercise of rights protected under this chapter. However, in the case of seasonal employment that ended before the close of the ninety calendar day period, the presumption also applies if the employer fails to rehire a former domestic worker at the next opportunity for work in the same position. The employer may rebut the presumption with clear and convincing evidence that the adverse action was taken for a permissible purpose.

(2) Any agreement between such domestic worker and the hiring entity allowing the domestic worker to receive less than what is due shall be no defense to such action.

(a) A structure for an ongoing domestic worker standards board, including determining the authority and scope of the board. Such authority and scope shall include, but are not limited to, training on relevant labor laws, benefits, and protections; discrimination and sexual harassment; workplace safety standards; requirements on tax obligations; job skills and accreditation; fair scheduling practices; scope of rights and benefits that may apply to independent contractors; outreach, education, and enforcement practices to ensure compliance with applicable labor standards and to provide effective and updated information to both hiring entities and domestic workers;

(b) Access to benefits including, but not limited to, methods to make paid sick leave under RCW 49.46.210 and state industrial insurance available to domestic workers;

(c) Methods to increase access to paid family and medical leave;

(d) Legislative, regulatory, or other changes that should be made to the way hiring entities or domestic workers engage with the state industrial insurance system;

(e) The possible role of intermediary nonprofit organizations that make referrals for domestic workers and provide assistance.

(2) The work group shall include at least one representative from each of the following groups that reflects a balance in membership and interests:

(a) Directly impacted domestic workers employed in private homes;

(b) Unions, work centers, or intermediary nonprofit organizations that assist or refer such directly impacted workers;

(c) Hiring entities who directly employ single domestic workers in private homes;

(d) An organization that educates and organizes household hiring entities;

(e) At least two members of the department of labor and industries with expertise in industrial insurance and wage and hour laws and rules;

(f) One representative from the department of social and health services;

(g) An organization representing the area agencies on aging;

(h) An organization representing retired persons;

(i) One representative from the governor's office; and

(j) One representative from the attorney general's office.

(3) Representatives shall be appointed by the governor by July 1, 2020.

(4) The work group shall report its findings and recommendations to the governor's office, attorney general's office, and appropriate committees of the legislature by April 1, 2021.

Sec. 11. RCW 49.60.040 and 2018 c 176 s 2 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Aggrieved person" means any person who: (a) Claims to have been injured by an unfair practice in a real estate transaction; or (b) believes that he or she will be injured by an unfair practice in a real estate transaction that is about to occur.

(2) "Any place of public resort, accommodation, assemblage, or amusement" includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children's camps: PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution.

(3) "Commission" means the Washington state human rights commission.

(4) "Complainant" means the person who files a complaint in a real estate transaction.

(5) "Covered multifamily dwelling" means: (a) Buildings consisting of four or more dwelling units if such buildings have one or more elevators; and (b) ground floor dwelling units in other buildings consisting of four or more dwelling units.

(6) "Credit transaction" includes any open or closed end credit transaction, whether in the nature of a loan, retail installment transaction, credit card issue or charge, or otherwise, and whether for personal or for business purposes, in which a service, finance, or interest charge is imposed, or which provides for repayment in scheduled payments, when such credit is extended in the regular course of any trade or commerce, including but not limited to transactions by banks, savings and loan associations or other financial lending institutions of whatever nature, stock brokers, or by a merchant or mercantile establishment which as part of its ordinary business permits or provides that payment for purchases of property or service therefrom may be deferred.

(7)(a) "Disability" means the presence of a sensory, mental, or physical impairment that:

(i) Is medically cognizable or diagnosable; or

(ii) Exists as a record or history; or

(iii) Is perceived to exist whether or not it exists in fact.

(b) A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.

(c) For purposes of this definition, "impairment" includes, but is not limited to:

(i) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or

(ii) Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(d) Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and:

(i) The impairment must have a substantially limiting effect upon the individual's ability to perform his or her job, the individual's ability to apply or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions of employment; or

(ii) The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.

(e) For purposes of (d) of this subsection, a limitation is not substantial if it has only a trivial effect.

(8) "Dog guide" means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.

(9) "Dwelling" means any building, structure, or portion thereof that is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land that is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

(10) "Employee" does not include any individual employed by his or her parents, spouse, or child((, or in the domestic service of any person)).

(11) "Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons((,)) and does not include any religious or sectarian organization not organized for private profit. "Employer" also includes a hiring entity who employs a domestic worker, as defined in section 2 of this act, regardless of the number of employees the hiring entity employs.

(12) "Employment agency" includes any person undertaking with or without compensation to recruit, procure, refer, or place employees ((for an employer)).

(13) "Families with children status" means one or more individuals who have not attained the age of eighteen years being domiciled with a parent or another person having legal custody of such individual or individuals, or with the designee of such parent or other person having such legal custody, with the written permission of such parent or other person. Families with children status also applies to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years.

(14) "Full enjoyment of" includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, sex, sexual orientation, national origin, or with any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, to be treated as not welcome, accepted, desired, or solicited.

(15) "Honorably discharged veteran or military status" means a person who is:

(a) A veteran, as defined in RCW 41.04.007; or

(b) An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.

(16) "Labor organization" includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment.

(17) "Marital status" means the legal status of being married, single, separated, divorced, or widowed.

(18) "National origin" includes "ancestry."

(19) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.

(20) "Premises" means the interior or exterior spaces, parts, components, or elements of a building, including individual dwelling units and the public and common use areas of a building.

(21) "Real estate transaction" includes the sale, appraisal, brokering, exchange, purchase, rental, or lease of real property, transacting or applying for a real estate loan, or the provision of brokerage services.

(22) "Real property" includes buildings, structures, dwellings, real estate, lands, tenements, leaseholds, interests in real estate cooperatives, condominiums, and hereditaments, corporeal and incorporeal, or any interest therein.

(23) "Respondent" means any person accused in a complaint or amended complaint of an unfair practice in a real estate transaction.

(24) "Service animal" means any dog or miniature horse, as discussed in RCW 49.60.214, that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by the service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks. This subsection does not apply to RCW 49.60.222 through 49.60.227 with respect to housing accommodations or real estate transactions.

(25) "Sex" means gender.

(26) "Sexual orientation" means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

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